Story at Courier-Journal. Decision below. Excerpt from news story:
The Kentucky Supreme Court Thursday reinstated a $42 million fen-phen judgment won by 440 plaintiffs defrauded by Lexington attorneys Shirley Cunningham Jr., William Gallion and Melbourne Mills Jr.
The Court of Appeals in 2011 had thrown out the judgment in the high-profile diet-drug case, saying that a judge should have held a trial before ruling that the attorneys, who have since been disbarred, breached their duties by plundering the $200 million settlement with the manufacturer of fen-phen, which was found to cause heart valve damage and withdrawn from the market.
The appeals court held that a trial was required because an affidavit defending the lawyers from Kenneth Feinberg, an expert on mass torts litigation, created enough of a factual dispute over whether the attorneys took an excessive fee and committed other violations.
But ruling 6-0, the state Supreme Court said the affidavit concerned a matter of law, not fact, and thus didn’t require a trial.
The high court didn’t cite Feinberg’s later disavowal of the affidavit, saying he would have thrown it “in the waste basket” if he had known the truth about the diet-drug case. Feinberg testified in 2010 that his knowledge of the case came exclusively from Gallion.