Legal News

Jury Foreman in Fen-Phen: Prosecutors Didn?t Do Their Job Correctly

By Dan Slater

William Gallion enters the Federal Courthouse in Covington, Ky., June 21, 2007. (Credit: AP/Ed Reinke)

Sometime next week, we’re likely to find out whether William Gallion and Shirley Cunningham, the two remaining defendants in the Fen-Phen lawyer trial, will face a second trial. Last Thursday, a mistrial was declared when jurors told Judge William Bertelsman they were “hopelessly deadlocked.”

Cunningham, Gallion and a third defendant, Melbourne Mills, who was acquitted, were on trial in federal court for allegedly bilking their clients out of $65 million of a $200 million settlement over alleged injuries caused by the diet drug Fen Phen.

Shirley Cunningham Jr. enters the Federal Courthouse in Covington, Ky. , June 21, 2007. (Credit: AP/Ed Reinke)

But things seem to be looking up for Gallion and Mills. The jury foreman from the first trial, Donald A. Rainone, told the Lexington Herald-Leader that the majority of the jury — including himself — thought that others involved in the 2001 settlement, approved by Boone Circuit Court judge Joseph “Jay” Bamberger, should’ve been charged as well. (Rainone, who declined to name names could’ve been referring to Judge Bamberger, who at the first trial testified to being “embarrassed” by the way he handled the underlying Fen-Phen suit, or Stanley Chesley, the well-known Cincinnati lawyer who negotiated the settlement for a fee of $20 million.)

Rainone also said the jury did not believe that prosecutors proved their case against Cunningham and Gallion. “There was an element of doubt, and the instructions Judge Bertelsman gave us is if there is reasonable doubt, then you have to acquit,” Rainone told the Herald-Leader. “I don’t think they did their job correctly,” Rainone said of federal prosecutors. “We had a lot of doubt.” (Judge Danny Reeves was assigned to the case this week after Bertelsman, who oversaw the first trial, recused himself.)

Rainone said the 10 jurors felt that there were ethical problems in the way the lawyers handled the $200 million settlement in the diet-drug case, but he said they did not believe prosecutors proved that there was criminal intent.

Rainone said the majority of the jury did not believe that there was a conspiracy to take the money from the clients. “We went to form a time line of the conspiracy and we couldn’t come up with when this actually started. To have a conspiracy we felt that it had to be put in motion by one or two people. We felt that there were one or two people that were not indicted that should have been.”

The federal prosecutor’s office in the Eastern District of Kentucky declined to comment.

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