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Ken Feinberg and the Kentucky fen-phen suit

On February 10, we reported how a Kentucky appellate court threw out a summary judgment against the infamous Kentucky fen-phen attorneys, relying on a dispute of fact created by an expert report by Kenneth Feinberg that the attorneys' conduct (since resulting in some criminal convictions and disbarments) was handled "properly and ethically" and that he had seen "nothing that credibly suggests any misconduct by the attorneys."

Friday, Andrew Wolfson reported that that same expert report came up in the Kentucky disciplinary hearings against Stan Chesley, the famed Cincinnati lawyer who helped structure the settlement, and walked away with an outsize $20 million fee even as tens of millions were being stolen from the putative clients. Feinberg says that he wrote the affidavit as a favor to his friend Chesley, all of his information for his expert report came from what William Gallion chose to tell him and show him, and that he would have thrown the report in the wastebasket and never prepared the affidavit if he had known the truth. (Whether Feinberg would have stood by his expert report had Gallion paid Feinberg the $50,000 fee he had promised is a question for an alternative universe.) Feinberg admitted that he "knew nothing about the actual factual occurrences in this case" when he wrote the affidavit that was used to defeat summary judgment.

This happens all too often: ethics experts often take a set of facts favorably construed by their clients, put on blinders and do not conduct any investigation of the truth of those assumptions, and then issue an opinion that their client did no wrong, and judges accept the opinion without care for the methodology used to reach it, even though the expert essentially assumed the conclusion. In this case, the trial court does seem to have disregarded the Feinberg opinion, but apparently failed to provide sufficient reasoning to persuade the appellate court to do the same. On remand, the trial court can simply point to Feinberg's disavowal and issue the same result, but it appears that the attorneys for Gallion's victims are going to ask the Kentucky Supreme Court to do that, a questionable strategy, given that Feinberg's disavowal took place well after the underlying summary judgment.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.