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Sending Thank-You Checks to Expert Witnesses Gets Attorney in Trouble

By William Vogeler, Esq. on May 01, 2018 | Last updated on March 21, 2019

Mark Lanier, a high-profile Houston lawyer, didn't complain too much when an appeals court reversed his $151 million win.

But he didn't like that the U.S. Fifth Circuit Court of Appeals said he was "unequivocally deceptive" at trial. The appeals court said he misled jurors by saying his expert witnesses were unpaid and that the opposing experts gave "bought testimony."

The problem, the appeals court said, was that Lanier paid his experts after the trial. Assessing the aftermath of the reversal of fortune, Lanier said he won't appeal and looks forward to the re-trial.

Reversal of Fortune

The jury actually awarded $502 million in the case against Johnson & Johnson and an orthopedics company, but the trial judge reduced it to $151 million under a damages cap in Texas. It was the bellwether trial for several thousand plaintiffs in multi-district litigation.

The plaintiffs alleged they suffered complications due to a metal-on-metal hip replacement, requiring repeated surgeries. The defendants appealed on various grounds, and the Fifth Circuit granted a new trial.

The appeals court found fault with the trial judge, but excoriated plaintiff's counsel. Lanier told jurors his experts were "not retained," the court said, then paid them $65,000 after the trial.

"That is deception, plain and simple," Judge Jerry Smith wrote. "And to follow that up with [a] post-trial 'thank you' check merely compounds the professional indiscretion."

Next Trial

In news reports, Lanier defended his actions. He said he disclosed the post-trial payments to the defendants.

"This came to light because I told the parties about it," he said. "I never hid anything."

Of course, the trial was already over. But, Lanier said, jurors would have awarded even more if they knew another $10,000 went to a Catholic charity on behalf of his experts.

"I think we'll get more money the next time around," he said.

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