Legal Ethics

Ken Feinberg’s Retracted Affidavit Cited in Appeals Ruling Favoring Fen-Phen Lawyers


Mass torts expert Kenneth Feinberg, in the news for overseeing the BP fund to compensate Gulf oil victims, once believed that lawyers accused of bilking their fen-phen clients out of $94 million did nothing wrong.

Feinberg wrote an affidavit supporting the fen-phen lawyers in 2006, but in September testimony he said he didn’t know of any wrongdoing when he wrote it, the Louisville Courier-Journal reports. If he had known that the lawyers lied to their clients, Feinberg said, “I would have thrown my affidavit in the wastebasket.”

Two of the fen-phen lawyers Shirley Cunningham Jr. and William Gallion, were sentenced to up to 25 years in prison in 2009, while a third, Melbourne Mills Jr., was acquitted in the same case. All three, however, were held liable for $42 million in a civil case decided on summary judgment in 2007.

The Kentucky Court of Appeals reversed the civil judgment earlier this month, saying the trial judge should not have ruled without a trial because of the factual issues in dispute, the Herald-Leader reported at the time. The appeals court opinion (PDF) cited the 2006 Feinberg affidavit.

“In my opinion, the case was handled properly and ethically,” Feinberg wrote in the affidavit. “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 … 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.”

Feinberg disavowed those statements in an ethics case against Stan Chesley, a Cincinnati lawyer who was paid about $20 million to help negotiate the settlement, the Courier-Journal says. In his September testimony, Feinberg said that when he wrote the affidavit, his knowledge of the case came mostly from Gallion.

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