On cross examination, I would say it was a heated cross. The theme of the plaintiffs in the cross examination of Dr. Fisher was that he really was not an independent academic, which is what he was holding himself out to be. That in reality, he was a paid mouthpiece for DePuy. At one point the plaintiffs' attorney referred to him as a jukebox witness, meaning that you put money in his mouth and he will sing anything you want him to sing.
What was presented at trial was evidence that Dr. Fisher had a series of agreements with DePuy where DePuy agreed to fund research at his University and there were a lot of conditions in the agreement. One condition was that he was not allowed to do any research for competitors. He was also directed as to what kinds of research DePuy wanted him to do and primarily the research would be done to promote DePuy's products. The other condition, which was really surprising, was that DePuy had the right to review any publication or any study that he intended to publish before it was submitted for publication and DePuy would be given the right to propose edits, propose a rebuttal, and in essence a right to respond to anything this academic was going to publish. That is an unusual term in a contract like this because it really takes away from the independence of the doctor.
The other thing presented at trial was evidence that Dr. Fisher was publishing papers in scientific journals and not disclosing the fact that he had this relationship with DePuy. At one point, the doctor admitted that he should have disclosed it with respect to one paper, but there were a series of publications, more than 20 that were presented at the trial where this relationship with not disclosed. There was also testimony and documents presented showing that Dr. Fisher was appearing at academic conferences to talk about his research on the DePuy Pinnacle, ASR and other DePuy products, and that before he made these presentations at these academic conferences, DePuy was reviewing his presentations and sending him emails having him expand on certain topics and those expansions of the topics were designed to undercut DePuy’s competitors, specifically Zimmer. There was some testimony that was presented that basically Dr. Fisher was being used as a mouthpiece for DePuy. At least, that is what the plaintiffs' attorneys were insinuating during the cross examination.
This gets into a real interesting area of medical device litigation and we see this a lot, where you have "supposed" experts or academic who publish papers and there are many situations where these academic have a very close to industry that are not disclosed. And their papers are used by the companies to sell their products. There is also situations we’ve seen in other case, and in this case there will be testimony, about the companies actually writing publications, what we call ghost writing, where they actually write a paper and give it to the doctor, the doctor makes a couple of edits and submits it for publication. This happens a lot in the industry. And it's something that a lot of people in the medical community have been rallying against. There are new rules and regulations about disclosing conflicts of interests, but a lot of that stuff is recent.
The testimony of Dr. Fisher initially was helpful for DePuy, but his credibility was undercut a lot by the cross examination by the plaintiffs' attorney.