The Fifth Circuit held that ?deceptive? payments made by plaintiff?s attorney to expert witnesses warranted a new trial. In DePuy Orthopedics, Inc., Pennico Hip Implant Product Liability Litigation, 888 F.3d 753 (5th Cir., 2018) plaintiffs? attorney told the jury that two orthopedic surgeons, who testified as experts, did so because of concern for the plaintiffs. After a 502 million dollar verdict for the plaintiffs, defendant discovered that the plaintiffs? attorney had given a $10,000.00 donation to a charity chosen by one of the orthopedic surgeon before the trial and then paid $35,000.00 as a ?thank you? after the trial. The other surgeon was paid $30,000.00 after the trial.
Vacating the award and ordering a new trial the Court of Appeals pointed out that the central question was not whether the disclosure of the payments was ?outcome ? terminative? for the trial. To the contrary, the key is whether disclosure of the payment ?would have opened up potentially promising impeachment tactics on cross-examination which it certainly did.?