Earlier this month, the Kentucky Court of Appeals vacated a $42 million summary judgment in favor of the 431 fen-phen plaintiffs against Chesley, Cunningham, Gallion and another attorney in the case. The court said that the lawyers had presented an issue of triable fact regarding their handling of legal fees. The decision came after Kenneth Feinberg retracted an affidavit supporting the attorneys’ position. Feinberg is the attorney presiding over the BP oil spill settlements.
Here is the Kentucky Court of Appeals’ decision in Cunningham v. Abbott, 2011 WL 336459 (February 4, 2011, Ky. App.), which, as the article described, relied on Feinberg’s affidavit in reversing the Fen-Phen plaintiffs’ summary judgment against their counsel, Chesley, Shirley A. Cunningham, Jr., William J. Gallion, and Melbourne Mills, Jr., and vacated the damages award.
Feinberg, in addition to administering claims resulting from the BP oil spill, is an expert in mass torts and served as special master of the September 11th Victim Compensation Fund.
The opinion explains that Feinberg provided a seventeen-page affidavit on behalf of the lawyers in opposing summary judgment, in which he stated:
In my opinion, the case was handled properly and ethically. I have seen nothing that credibly suggests any misconduct by the attorneys or any inappropriate action by the judge who presided over the case. It appears that the instant action against the plaintiffs’ attorneys in Guard is based on nothing more than misinformation or lack of understanding of the procedures involved in class action or common fund or aggregate mass tort settlement.
The Kentucky court ruled that Feinberg’s affidavit "was sufficient to create genuine issues of material fact" and reversed the summary judgment in the Fen-Phen plaintiffs’ favor.
There’s just one problem: according to this story by Louisville Courier-Journal reporter Andrew Wolfson, Feinberg testified last September in a separate disciplinary action against Chesley that almost everything he knew about the case came from Gallion (one of the plaintiffs’ attorneys) and that if he had known about the extent of the lawyers’ misconduct, he "would have thrown [his] affidavit in the waste basket."
The article says that Angela Ford, who represents the plaintiffs, will appeal the decision to the Kentucky Supreme Court, relying on Feinberg’s disavowal of his affidavit. I thought the comment from James Shuffett, Melbourne Mills, Jr.’s lawyer was interesting. He said that Feinberg’s renunciation was irrelevant because it occurred three years after the trial court had ruled against the lawyers.
Shuffett may be correct on the chronology — the trial court granted summary judgment on March 8, 2006 and it appears that Feinberg first renounced his affidavit in September 2010 — but it ignores — perhaps understandably — the effect of the affidavit on the appeal. According to this docket sheet from the Court of Appeals for one of the cases referenced in the opinion, the appeal was argued on June 18, 2009, so the renunciation, which occurred while the court was considering the appeal, could have been very relevant to the Court of Appeals.
I leave it to people smarter than me to figure out how (the why is fairly obvious) Cunningham et al. ever thought they could ethically and practically justify taking so much in fees from their clients or why someone of Feinberg’s reputation would even get involved in the mess. (Apparently, Gallion promised him a $50,000 fee for his work, but never paid up, and Chesley ended up paying Feinberg $10,000.)