In an order made without comment, the U.S. Supreme Court has declined to examine the decision of the Kentucky Supreme Court that restored a $42-million judgment against three attorneys who stole from the $200-million settlement fund created for victims of diet-drug fen-phen. Cunningham v. Abbott No. 13-1157 (U.S., cert. denied May 27, 2014). The fund was created by a settlement deal with fen-phen maker American Home Products Inc. (AHP) after the drug was purportedly linked to primary pulmonary hypertension and vascular heart disease in 1997.
A trio of attorneys—Shirley Cunningham Jr., William Gallion and Melbourne Mills Jr.—joined two other lawyers to sue AHP and, upon securing the $200-million settlement, were tasked with distributing the fund to the plaintiffs. Instead, the three attorneys failed to inform the claimants of the settlement and took most of the fund themselves, leaving $45 million for victims. In the claimants’ lawsuit against the attorneys for breach of fiduciary duty, the trial court granted summary judgment for the plaintiffs and ordered the attorneys to pay $42 million in damages. Later, the appeals court overturned the decision, citing a material issue of fact created by expert testimony about attorney’s fee contracts. Finally, the Kentucky Supreme Court examined the issue, ruling unanimously that the testimony “shed no light whatsoever” on the suit’s essential facts and reinstating the $42-million judgment. With the U.S. Supreme Court denying certiorari, the case has now effectively ended.