Legal News

With Allegations of Juror-Stalking, Fen-Phen Trial Grows Even Stranger

By Dan Slater

When the Fen Phen lawyer trial began in Kentucky, several weeks ago, we thought to ourselves, borrowing the words of Justice Stevens, what an odd flyspeck of a case! Three lawyers stood accused of bilking their clients out of $65 million of a $200 million settlement over alleged injuries caused by the diet drug Fen-Phen. What followed, at trial, were tales of drunken lawyers, charitable funds created for the benefit of the Fen Phen attorneys and a judge admitting on the stand to being embarrassed by his handling of the case. We at LBHQ thought, man, this Fen Phen lawyer case just keeps on giving!

But, believe it or not, the case in Covington has grown more bizarre still. The AP is reporting that U.S. District Judge William Bertlesman, who’s presiding over the trial, today threatened to charge lawyers and witnesses with contempt of court after jurors said they thought parties in the case were following them and eavesdropping. “If someone is doing this, they will find themselves in real trouble,” Bertlesman reportedly said.

Defense attorneys, federal prosecutors and an attorney for plaintiffs in a related civil case told the judge that any contact with jurors outside the courtroom was inadvertent.

In other action, yesterday, according to the Herald-Leader, Richard Robbins, an expert for the defense, which began putting on its case Friday, testified on behalf of the three defendants — Shirley Cunningham Jr. (left), Melbourne Mills Jr. (center) and William Gallion (right) — that they were bound by the settlement agreement with fen-phen manufacturer American Home Products not to discuss details of the settlement. If details of the settlement had become public, he said, the three lawyers could have been fined.

Prosecutors allege that as part of the fraud, the three failed to tell clients how much the total settlement was for, threatened many with a fine if they told their family members about the settlement and also failed to tell many that some of the settlement money was going into a non-profit. The three Lexington-area lawyers deposited millions of the settlement money into their own accounts after the settlement was reached in 2001 and then later moved some of that money back into the settlement account after the Kentucky Bar Association issued a subpoena asking about the details of the settlement, the indictment alleges.

Robbins testified that the judge decides if and when clients are notified in a class action. “It is the judge’s responsibility to decide when notice should be given and what that notice should consist of.”

LB’ers: We know the next MPRE isn’t for quite a while, but let’s warm up. Is it possible that a settlement agreement could trump a lawyer’s duty to inform his client of a settlement offer?

Full post as published by Law Blog - WSJ.com on June 10, 2008 (boomark / email).