Posts tagged as:

fen-phen

A Florida cardiologist has been sentenced to six years in federal prison and ordered to pay $4.5 million in restitution after serving to review the echocardiograms of more than 1,100 prospective claimants on a fen-phen settlement trust fund; many of the claimants he diagnosed were not in fact ill. “The physician was also to be compensated $1,500 for each claimant who qualified for benefits when that person’s claim was paid, according to the U.S. Attorney’s Office for the Eastern District of Pennsylvania, which prosecuted the case.” At trial, he testified “that his medical reports had been forged by the mass tort lawyer who had hired him on a contingency fee basis, the record states.” As I observed in The Litigation Explosion, medicine, like law, is a profession in which the prohibition of contingency or success fees developed early, in large part because it was expected that such fees would work to the benefit of dishonest practice. [Penn Record]

Sorrows of a Texas fen-phen lawyer now accused (in a civil lawsuit) of getting creative with his clients’ expense allocations. [Houston Chronicle via Ted at PoL]

Overlawyered readers are well aware of the sorry history of the fen-phen litigation; those that aren’t are advised to check out Professor Lester Brickman’s summary.

In April 2008, the Diet Drugs MDL district court awarded $567 million the class counsel in that case, basing the award in part on representations by class counsel about future class recovery. A year later, a plaintiff’s attorney requested the court reopen the question of the fee award because the class counsel had exaggerated those estimates. The district court refused, holding that the one-year delay in bringing the Rule 60(b) motion was not a “reasonable time.” There has been an appeal to the Third Circuit, and, today, the Center for Class Action Fairness filed an amicus brief in support of the appeal that itself provides a short overview of the history of the fen-phen MDL. Many thanks to Chris Arfaa for his generous help in filing the brief.

The story is from Kentucky, but it’s different from and evidently unrelated to the much-publicized episode in which three lawyers from that state arranged to divert large sums from the proceeds of a group settlement of fen-phen claims. Patricia Fulkerson of Nelson County sued the lawyer and law firm that had represented her in her fen-phen claim, saying that the lawyer sexually harassed her and that the law firm (quoting Andrew Wolfson in the Louisville Courier-Journal) “exaggerated her heart injuries — and those of other clients — so it could collect higher fees”:

A former paralegal in the firm, Fonda Walters, testified in a deposition that it exaggerated the injuries of a half-dozen clients, and that their initial test results, which had showed little or no heart damage, were altered. …Walters acknowledged she was fired from the firm in connection with a dispute over a bonus she claims she was owed.

The law firm’s defense raised (inter alia) an interesting argument:

Those lawyers also have argued that the alleged altering of Fulkerson’s medical records by the Florida-based firm of Wasserman Riley & Associates also doesn’t amount to negligence because “the claimed goal of the alleged malpractice was to get her more money.”

Apparently the judge rejected that argument, though. In a second Journal-Courier report dated June 22 — the same date as the above item, but presumably subsequent to it — Wolfson reports that Fulkerson’s lawsuit “has been successfully mediated and will be dismissed, lawyers for both sides said.” Speaking to the Broward-Palm Beach (Fla.) New Times, partner Jay Wasserman called the claims of diagnosis-embellishment “absolute nonsense”:

Wasserman also says there were only about six claims filed among the many prospective clients who received the complimentary tests. “If [falsifying results] was going on, why didn’t we have a much bigger number?” Wasserman asks, adding that since the reports were produced by experts and would be part of the case, it wouldn’t be possible to fake them, even if he wanted to.

More: Ronald Miller.

You may recall the earlier trial of the Kentucky fen-phen attorneys who had stolen tens of millions of dollars from their clients ended in a mistrial for two and an acquittal for their third compatriot. This time around, a federal court jury, after ten hours of deliberation, found William Gallion and Shirley Cunningham Jr. guilty of eight counts of fraud and one count of conspiracy. A streamlined prosecution case no doubt helped make a difference; defense attorneys sought to blame the matter on Stan Chesley, who negotiated the underlying settlement and received millions more than he was contracted to receive, and it remains mysterious why he was not charged. [Courier-Journal]

{ 3 comments }

Mississippi:

The 5th U.S. Circuit Court of Appeals on Monday upheld the conviction of Vicksburg lawyer Robert Arledge, convicted of bilking the drug company Wyeth of more than $6.7 million over the diet drug Fen-Phen….

U.S. District Judge David Bramlette sentenced Arledge to six years in prison for knowingly allowing clients to make claims of about $250,000 each for health complications although they had no legitimate reason.

Seems it was a clergy scandal as well as a lawyer scandal:

Regina Reed Green of Fayette, who pleaded guilty to tax evasion involving false Fen-Phen claims, testified Arledge knew about the scheme to defraud the drug company. She said he told her every resident of 9,740-population Jefferson County would get $1 million.

“The evidence showed that when Green became concerned that she might be caught fabricating the prescriptions and expressed a desire to stop her illegal activity, she contacted (the Rev. Gregory) Warren,” the appeals court wrote. “Warren tried to convince Green to continue fabricating the prescriptions, but Green was not assuaged.”

Green testified Arledge persuaded her to continue: “And he said … I wasn’t going to get in any trouble because like (Warren) said, they were going to box all those files up, put them away, and never be seen again.”

Earlier coverage here, here, and here (via).

Lester Brickman has a new must-read paper on an under-reported problem:

Lawyers obtain the “mass” for some mass tort litigations by conducting screenings to sign-up potential litigants en masse. These “litigation screenings” have no intended medical benefit. Screenings are mostly held in motels, shopping center parking lots, local union offices and lawyers’ offices. There, an occupational history is taken by persons with no medical training, a doctor may do a cursory physical exam, and medical technicians administer tests, including X-rays, pulmonary function tests, echocardiograms and blood tests. The sole purpose of screenings is to generate “medical” evidence of the existence of an injury to be attributed to exposure to or ingestion of defendants’ products. Usually a handful of doctors (“litigation doctors”) provide the vast majority of the thousands and tens of thousands of medical reports prepared for that litigation.

By my count, approximately 1,500,000 potential litigants have been screened in the asbestos, silica, fen-phen (diet drugs), silicone breast implant, and welding fume litigations. Litigation doctors found that approximately 1,000,000 of those screened had the requisite condition that could qualify for compensation, such as asbestosis, silicosis, moderate mitral or mild aortic value regurgitation or a neurological disorder. I further estimate that lawyers have spent at least $500 million and as much as $1 billion to conduct these litigation screenings, paying litigation doctors and screening companies well in excess of $250 million, and obtaining contingency fees well in excess of $13 billion.

On the basis of the evidence I review in this article, I conclude that approximately 900,000 of the 1,000,000 claims generated were based on “diagnoses” of the type that U.S. District Court Judge Janis Jack, in the silica MDL, found were “manufactured for money.”

Despite the considerable evidence I review that most of the “medical” evidence produced by litigation screenings is at least specious, I find that there is no effective mechanism in the civil justice system for reliably detecting or deterring this claim generation process. Indeed, I demonstrate how the civil justice system erects significant impediments to even exposing the specious claim generation methods used in litigation screenings. Furthermore, I present evidence that bankruptcy courts adjudicating asbestos related bankruptcies have effectively legitimized the use of these litigation screenings. I also present evidence that the criminal justice system has conferred immunity on the litigation doctors and the lawyers that hire them, granting them a special dispensation to advance specious claims.

Finally, I discuss various strategies that need to be adopted to counter this assault on the integrity of the civil justice system.

Watch what you say about lawyers dept.: The high-profile mass tort firm of Napoli Bern Ripka and Associates LLP recently filed a defamation suit in Suffolk County, N.Y. against ex-client Scott Spielberg, a former cab driver who lives in Nevada.

The firm claims that Mr. Spielberg defamed the firm when he wrote to the office of the Manhattan district attorney asking prosecutors to open an investigation into what Mr. Spielberg alleges is the firm’s mishandling of earlier litigation involving the diet drug fen-phen.

The lawsuit also claims that Mr. Spielberg slandered the firm in conversations he had with a New York Times reporter, Anthony DePalma, who wrote a lengthy article about the involvement of a name partner at the firm, Paul Napoli, in the fen-phen litigation.

Yet, Mr. DePalma’s article doesn’t quote Mr. Spielberg or mention him at all. Napoli Bern is representing the vast majority of thousands of ground zero workers in their suits alleging that the city failed to protect them from toxins at the site that have caused respiratory and other illnesses. …

“They don’t want me to be able to talk to the press or law enforcement,” Mr. Spielberg said of the suit against him.

(Joseph Goldstein, “Seeking To Cut Off Criticism, Law Firm Sues Former Client”, New York Sun, Jun. 6).

{ 1 comment }

The press is starting to catch on to the scandal of Judge Bamberger not being charged in the Kentucky fen-phen settlement scandal, and we have criminal trial updates after the jump.

[click to continue…]

{ 2 comments }

The name does have a clean, daisy-fresh smell to it, like a good laundry. In this case the laundering being done was of settlement money in the Kentucky fen-phen scandal. (WSJ law blog, Louisville Courier-Journal, Lexington Herald-Leader, Krauss @ PoL).

{ 2 comments }

Here’s your $3 million bonus, young man, and whatever you do, don’t tell the clients how much the case settled for (Jim Hannah, “Fen-phen lawyer details bonus”, Cincinnati Enquirer, May 15; earlier)(via Slater, WSJ law blog).

We’ve extensively covered the scandal over charges that attorneys William Gallion, Shirley Allen Cunningham Jr. and Melbourne Mills Jr. siphoned off $65 million or so in settlement money due claimants in the diet drug litigation, using the proceeds to buy, among other things, the Preakness-winning race horse Curlin. Ted notes the latest developments over at Point of Law, as does Carter Wood. (Wolfson/Courier-Journal, WSJ law blog).

More from WSJ law blog: Mills’ lawyer tells jury his client “was hospitalized for an ‘alcoholic seizure’ a month after the case was settled, didn’t take part in any court hearings and was too drunk at the time to be responsible,” while prosecutor says “that Mills ‘sat back and laughed’ when the other two described a plan to overcharge the clients.”

{ 1 comment }

Philadelphia federal district court judge Harvey Bartle III has awarded $567.67 million in fees to plaintiff’s lawyers in the gigantic fen-phen litigation, which has lasted nine years. Judge Bartel accepted 70 firms’ claim to have spent 578,048 hours on the suit (Alison Frankel, American Lawyer, Apr. 10). Ted, at Point of Law, notes that the sum does not include large contingent fees obtained on behalf of claimants who opted out of the group settlement.

{ 3 comments }

April 5 roundup

by Walter Olson on April 5, 2008

  • Ninth Circuit, Kozinski, J., rules 8-3 that Roommates.com can be found to have violated fair housing law by asking users to sort themselves according to their wish to room with males or other protected groups; the court distinguished the Craigslist cases [L.A. Times, Volokh, Drum]
  • Class-action claim: Apple says its 20-inch iMac displays millions of colors but the true number is a mere 262,144, the others being simulated [WaPo]
  • U.K.: compulsive gambler loses $2 million suit against his bookmakers, who are awarded hefty costs under loser-pays rule [BBC first, second, third, fourth stories]
  • Pittsburgh couple sue Google saying its Street Views invades their privacy by including pics of their house [The Smoking Gun via WSJ law blog]
  • U.S. labor unions keep going to International Labour Organization trying to get current federal ground rules on union organizing declared in violation of international law [PoL]
  • Illinois Supreme Court reverses $2 million jury award to woman who sued her fiance’s parents for not warning her he had AIDS [Chicago Tribune]
  • Italian family “preparing to sue the previous owners of their house for not telling them it was haunted”; perhaps most famous such case was in Nyack, N.Y. [Ananova, Cleverly]
  • Per their hired expert, Kentucky lawyers charged with fen-phen settlement fraud “relied heavily on the advice of famed trial lawyer Stan Chesley in the handling of” the $200 million deal [Lexington Herald-Leader]
  • Actor Hal Holbrook of Mark Twain fame doesn’t think much of those local anti-tobacco ordinances that ban smoking on stage even when needed for dramatic effect [Bruce Ramsey, Seattle Times]
  • Six U.S. cities so far have been caught “shortening the amber cycles below what is allowed by law on intersections equipped with cameras meant to catch red-light runners.” [Left Lane via Virtuous Republic and Asymmetrical Information]

{ 7 comments }

In Sunday’s Times reporter Anthony DePalma takes a much-needed look at attorney Paul Napoli and his Napoli Bern law firm, which is now representing thousands of plaintiffs claiming injury from 9/11 dust inhalation and before that made its name in the fen-phen litigation. Among the controversies that have trailed it to the present day from that affair: charges that it divvied up settlements in a way favorable to its own fee interests, and that it used unreliable “echo mill” expert reports from echocardiologists attesting injury to fen-phen claimants. Prof. Lester Brickman, friend of this site, is quoted extensively. See our extensive earlier coverage at Overlawyered: Dec. 16, 2002, Sept. 21, 2003, etc. (echo mills); Dec. 28, 2001, Feb. 14, 2005, and Mar. 29, 2007 (settlement practices); Feb. 25, 2008 (broad net cast in 9/11 suits)(cross-posted from Point of Law).

Don’t IX

by Ted Frank on February 24, 2008

Another bunch of things not to do if you’re a member of the legal profession.

  • Don’t get caught pursuing forged fen-phen claims. (Robert Arledge, Vicksburg, Mississippi, sentenced to 6.5 years, the only lawyer to date to be sentenced in a much larger fen-phen scandal.) [ABA Journal]
  • Don’t try to dissuade a witness from testifying at a deposition. (Cleary Gottlieb, which said it would appeal the judge’s order of sanctions.) [WSJ Law Blog]
  • Don’t inflate your GPA and include fake awards on your resume. (Gregory Haun, DC, recommended for suspension, resigned his six-digit BigLaw associate job.) [Legal Times]
  • Don’t end your jury service by casting a vote to break a deadlock and then sign a statement drafted by the plaintiffs’ attorney asking for a new trial saying that you did so so you can return to work. (California bar has recommended disbarment for Francis Fahy.) [ABA Journal; Recorder ($); Law.com ($)]
  • Don’t steal money from your clients by forging their signatures on insurance company releases to get their settlement money. (Richard Boder, New York, caught as part of a larger scandal involving the illegal use of paid runners to bribe hospital employees about auto accident injuries, sentenced to a year in prison.) [NY Law Journal]
  • Don’t read Maxim in the courtroom. (Todd Paris, held in contempt by North Carolina judge.) [WSJ Law Blog]
  • Don’t have an affair with a judge you’re practicing in front of, or vice versa. (Federal Way, WA, Municipal Court judge Colleen Hartl resigned after bragging about an affair with public defender Sean Cecil, who still has 5 Avvo stars for professional conduct, but has been the subject of a formal complaint to the bar.) [AP/Post-Intelligencer; Federal Way News; Lat]

(Earlier: Nov. 5, etc.)

{ 4 comments }

February 23 roundup

by Ted Frank on February 23, 2008

  • Easterbrook: “One who misuses litigation to obtain money to which he is not entitled is hardly in a position to insist that the court now proceed to address his legitimate claims, if any there are…. Plaintiffs have behaved like a pack of weasels and can’t expect any part of their tale be believed.” [Ridge Chrysler v. Daimler Chrysler via Decision of the Day]
  • Retail stores and their lawyers find sending scare letters with implausible threats of litigation against accused shoplifters mildly profitable. [WSJ]
  • Kentucky exploring ways to reform mass-tort litigation in wake of fen-phen scandal. [Mass Tort Prof; Torts Prof; AP/Herald-Dispatch; earlier: Frank @ American]
  • After Posner opinion, expert should be looking for other lines of work. [Kirkendall; Emerald Investments v. Allmerica Financial Life Insurance & Annuity]
  • Judge reduces jury verdict in Premarin & Prempro case to “only” $58 million. And I still haven’t seen anyone explain why it makes sense for a judge to decide damages awards were “the result of passion and prejudice,” but uphold a liability finding from the same impassioned and prejudiced jury. Wyeth will appeal. [W$J via Burch; AP/Business Week]
  • Judge lets lawyers get to private MySpace and Facebook postings. [OnPoint; also Feb. 19]
  • Nanny staters’ implausible case for regulating salt. [Sara Wexler @ American; earlier: Nov. 2002]
  • Doctor: usually it’s cheaper to pay than to go to court. [GNIF BrainBlogger]
  • Trial lawyers in Colorado move to eviscerate non-economic damages cap in malpractice cases [Rocky Mountain News]
  • Bonin: don’t regulate free speech on the Internet in the name of “campaign finance” [Philadelphia Inquirer]
  • “Executives face greater risks—but investors are no safer.” [City Journal]
  • Professors discuss adverse ripple effects from law school affirmative action without mentioning affirmative action. Paging Richard Sander. Note also the absence of “disparate impact” from the discussion. [PrawfsBlawg; Blackprof]
  • ATL commenters debate my American piece on Edwards. [Above the Law]

{ 2 comments }

January 18 roundup

by Walter Olson on January 18, 2008

  • Protection of ugly garage views? Garrison Keillor vs. neighbors in St. Paul, Minn. [NYTimes]
  • If you’re a lawyer who practices before the south Florida bench, it’s not a recommended career move to use a blog to call one of its judges an “evil, unfair witch” [WSJ Law Blog]
  • Nonprofit sleep-off center that takes in drunks sued after rescuing man who then succeeds in laying his hands on more liquor and drinking himself to death [Anchorage Daily News]
  • New Starbucks offering of “skinny” drinks “could easily be considered a form of size discrimination” and lead to litigation, complains ticked-off barista [StarbucksGossip]
  • Appearance of impartiality? West Virginia high court judge cavorted on Riviera with coal exec whose big case was pending before his court [Liptak/NYT] Update: Now recused, per WV Record.
  • Retired drug enforcement officers sue Universal Studios, saying they were defamed as a group by “American Gangster” [MSNBC]
  • Not much likelihood of confusion: shirtmaker Lacoste can’t keep two dentists in Cheltenham, England from using toothy crocodile as logo for their practice [Reuters]
  • People seized randomly off street for compulsory jury duty in St. Johnsbury, Vt. and Greeley, Colo. [AP/Findlaw via KipEsquire, Greeley Tribune]
  • Federal judge orders attorney Robert Arledge of Vicksburg, Miss. to pay $5.8 million in restitution after conviction for organizing bogus fen-phen claims [Clarion-Ledger; earlier]
  • Canada: abuser of crystal meth successfully sues her drug dealer [BBC]
  • Animal rights group tries to shut down “happy cows” ad campaign [three years ago on Overlawyered]

{ 4 comments }