Kentucky Law Review

LAWREADER BLOG: "Judge Joseph Bamberger has been criticized for approving a 49% fee for Fen Phen attorneys. But this is a smaller fee Kentucky’s highest court allowed in 1969 class action case."

Op Ed piece from Stan Billingsley styled "Judge Joseph Bamberger has been criticized for approving a 49% fee for Fen Phen attorneys. But this is a smaller fee Kentucky’s highest court allowed in 1969 class action case."

DIET DRUG TRIAL: Deadlocked Jury and New Trial to be set for Gallion and Cunninham; Mills acquitted

U.S District Court Judge William Bertlesman has declared a mistrial, as jurors deadlock on two lawyers charged with diet-drug settlement fraud. The jury had been considering the fate of suspended lawyers William Gallion and Shirley Cunningham Jr., who are accused of defrauding their clients out of $65 million Fen-Phen settlement.  The third attorney defendant Melbourne Mills was acquitted and released.

New trial date to be set.  Click here for N.Ky Post story.

Jason Riley and Andrew Wolfson have a story at the Courier Journal wrapping this up nicely.

Mistrial declared after diet-drug jury deadlocks

COVINGTON, Ky. -- After 52 hours of deliberation over eight days, a federal jury yesterday declared it was hopelessly deadlocked in deciding whether attorneys William Gallion and Shirley Cunningham Jr. defrauded clients of $65 million in Kentucky's 2001 fen-phen settlement.

After the judge declared a mistrial, the jury foreman, Donald Rainone of Erlanger, said jurors were stuck at 10-2 to acquit the defendants, and had been at that vote for much of their deliberations.

"We felt the prosecution just didn't have a strong enough case," Rainone said in a phone interview in which he strongly criticized the prosecution for being unprepared and focusing its case on only Gallion, Cunningham and a third lawyer, Melbourne Mills Jr.

"There's a lot of people that had their hand in this," he said. "There's a lot of people that should have been on trial that weren't."

Rainone declined to say who else should have been on trial, saying he didn't want to "get sued."

Defense attorneys immediately asked that the defendants be released from jail, where they have been since August, pending payment of enormous bonds. Gallion's is set at $52 million and Cunningham's is $45 million.

click on heading above for their ENTIRE story with COMMENTS from READERS and some JURORS!

July 2008 Court of Appeals Argument Calendar posted

July 2008 Court of Appeals Argument Calendar posted

LAWYERS: "Winters And Yonker Must Pay In Civil Theft Case" out of Florida

According to the following story found on line at Tampa Bay Online from the Tampa Tribune - "Winters And Yonker Must Pay In Civil Theft Case." 

Per this story, a Florida civil jury awarded nearly $1 million to Florida attorney Richard Mulholland of Mulholland and Associates on his claims that his former associates, Bill Winters and Mark Yonker, stole clients and case files when they left his firm to start their own firm.

Winters and Yonker also have offices in Louisville and Lexington, Kentucky as well as in Florida.

The Tampa Tribune further reported that

After six days of trial, the jury returned saying Winters and Yonker did not conspire to commit theft. They did, however, commit theft, the jury determined.

The jury said Winters must pay Mulholland nearly $750,000 in damages and $122,500 in legal fees. Yonker must pay nearly $190,000 in damages but does not have to reimburse for any legal fees, the jury determined.

For the complete story by Thomas W. Krause with the Tampa Tribune, then click on the following heading.  An extract of the story is as follows:

Winters And Yonker Must Pay In Civil Theft Case
Published: July 2, 2008

TAMPA - A lawyer who claims two of his associates stole clients and case files when they left to start their own firm was awarded nearly $1 million from a jury on Monday.

Because the allegations involved civil theft, the defendants could be forced to pay three times the awarded damages.

According to a lawsuit, Richard Mulholland, who ran Mulholland & Associates, said William Winters and Marc Yonker removed case files from the office during lunch hours and gave them to a former secretary who copied the files before they were returned. The secretary, Elizabeth Chapa, also hacked into Mulholland's computer system to change phone numbers and addresses of clients so Mulholland would have a difficult time contacting them in an effort to convince them to stay with his firm, the suit alleges.

* * *

Donald Smith, the defense attorney for Winters, said the jury verdict is preliminary and the judge has not entered the final order.

"There are multiple post-trial motions and issues to be decided by the judge on both defendants," Smith said. "This matter is still pending."

He declined further comment.

Circuit Judge Richard Nielsen has not yet ruled on post-trial motions or the possibility of tripling the damages. Hearings on those matters are set to begin Monday.

* * *

Mulholland asked for $4 million in damages, claiming civil theft and conspiracy to commit civil theft.

See also, Lawyers on the hook for on $1M for story at TampaBay.com from the St. Petersburg Times by reporter Colleen Jenkins.

 

LAWREADER: "Speaker Richards: Chief Justice Minton Wins Big in Meeting with Legislators"

Now Chief Justice Minton met with legislators the day before his swearing in.  Lawreader reports - Speaker Richards: Chief Justice Minton Wins Big in Meeting with Legislators.

SCOCKY: Supreme Court race for Lambert's seat includes Dyche, Venters, Maguire, Breashear and Lovelace Interested or Announced; Hoover no longer considering run

From Joseph Gerth at the Courier Journal indicating that attorney Jeff Hoover is no longer seeking the appointment to replace Lambert on the Kentucky Supreme Court.

Robbie Dyche and Daniel Venters will be seeking the appointment. 

Pulaski Family Court Judge Walter F. Maguire said that he, too, would run for the office but that he would not seek an appointment by Beshear. 

Leonard Brashear, of Hyden, also will run for the position in November and probably will seek Beshear's appointment, said his campaign consultant, Dale Emmons. 

Circuit Judge Eddie Lovelace, of Albany, also said he's "giving it some very serious thought."

Lawyers, judges line up for high court seat
Beshear to appoint jurist until election

By Joseph Gerth • jgerth@courier-journal.com • June 29, 2008

Lawyers and judges across Southern Kentucky are lining up for a chance to replace former Chief Justice Joseph Lambert on the state Supreme Court.
Advertisement

Lambert retired Friday, the day Justice John D. Minton Jr. of Bowling Green was sworn in as the court's fifth chief justice.

Gov. Steve Beshear will appoint someone from the state's 3rd Supreme Court District to replace Lambert, a process that will take at least a month.

A special election will be held in November to decide who fills the remainder of Lambert's term, which ends in 2010. Among those interested in the position are a former Kentucky Court of Appeals judge from London; two veteran judges from Somerset; a lawyer from Hyden and a longtime judge from Albany.

* * *

Robbie Dyche, who spent 20 years on the Kentucky Court of Appeals, said he would run in November and ask Beshear to appoint him to the post. He might be the favorite since he would be running in a district that elected him numerous times in the past.

Former Circuit Judge Daniel Venters, of Somerset, announced this weekend that he is seeking the appointment and is running in the November election.

Pulaski Family Court Judge Walter F. Maguire said that he, too, would run for the office but that he would not seek an appointment by Beshear.

To accept such an appointment, Maguire said he would have to resign his current position and only be assured of serving a few months on the bench before he must face election.

And Leonard Brashear, of Hyden, also will run for the position in November and probably will seek Beshear's appointment, said his campaign consultant, Dale Emmons.

Circuit Judge Eddie Lovelace, of Albany, also said he's "giving it some very serious thought."

* * *

AOC: Chief Justice Lambert's Farewell Remarks Upon His Retirement

Here are the remarks by Chief Justice Lambert on the occasion of his retirement:

REMARKS BY JOSEPH E. LAMBERT
Chief Justice of Kentucky

June 13, 2008

Counsel, distinguished guests,

It's a long-standing tradition for retiring Justices to say a few words at the conclusion of their last oral argument, and I'll follow that tradition here today. I deeply appreciate all of you for being here. I take your presence as an expression of goodwill and friendship, and for that I'm grateful.

It seems only a short while ago that I was taking this Bench for the first time, but the calendar tells me it that was almost 22 years ago. My first colleagues were Justice Roy Vance, Justice James B. Stephenson, Justice William M. Gant, Justice Charles M. Leibson, Justice Donald C. Wintersheimer, and, of course, Chief Justice Robert F. Stephens. To most of them, since I was the youngest justice ever on the Court, my age made me a bit of a curiosity. (Justice Gant always called me "young man.") From that first group of colleagues I learned a great deal about this institution and its role in Kentucky government.

I learned to deeply appreciate the rich history and traditions of this Court, and to understand that the way things were done was the product of reasoned decisions made over the course of generations. Through the years, I learned to deeply appreciate the judicial process. I've often thought that if only the public we serve could see our decision-making process, its fairness, if not always its wisdom, would be accepted. I have served on this Court with 26 Justices and, while some have been closer friends than others, I deeply appreciate all of those colleagues.

This is not intended as a retrospective of my career, though I firmly believe we have done a lot of good things for the Court of Justice and for the people of Kentucky during my tenure. Neither is it meant as an elegy. Rather, this is to acknowledge that today is my final appearance on the Supreme Court bench during oral argument. While I won't be here when the Court reconvenes in August, my thoughts will be with my colleagues and Court staff as you do your best to do justice for the litigants who come before you, and as you apply the time-honored principles of Kentucky law. [remainder of remarks below the fold]

HL POLWATCHERS: "Beshear sues David Williams back in veto case"

From J Stamper at HL Polwatchers:  Beshear sues David Williams back in veto case

COMAIR: Map maker removed from Comair crash suit

Herald Leader update on Comair Crash trials:

Map maker removed from Comair crash suit

A company that publishes airport diagrams is not liable for the Comair Flight 5191 crash that killed 49 people at Blue Grass Airport, a federal judge has ruled. U.S. District Judge Karl Forester dismissed third-party claims against Jeppesen Sanderson Inc., in the complex litigation over the August 2006 crash that is scheduled for trial on Aug. 4. Jeppesen had been sued by First Captain James Polehinke and the estates of Capt. Jeffrey Clay and flight attendant Kelly Heyer in 22 lawsuits. Polehinke, the flight's only survivor, and Comair have been sued by dozens of relatives of the crash victims. Forester cited Polehinke's testimony in a sealed deposition to support the ruling.

ELSEWHERE: When law, marketing, and football recruiting don't mix

Prof. Chen's interesting post on Duke University's abject admission which is beneficial to the legal proceedings might run counter to the rest of the university's best interests by declaring in so many words that their football program is pretty low on the list.  Ouch.

The Cardinal Lawyer: More on Duke football: An abject, on-the-record confession of athletic inferiority

HL: Medical negligence case goes to jury in Lexington against gynecologist on claim of unnecessary removal of ovaries

From the Herald Leader is a story on medical negligence case with Plaintiff Lawyer Sheila Heistand and Insurance Lawyer Don Brown trying the case against Dr. Michael Guiler, who had previously been in the national spotlight because of other lawsuits filed in 2003 alleging he had branded “UK” — for University of Kentucky, his alma mater — on uteri before he removed them.

Updated: Jury finds Lexington gynecologist not guilty
By Anna Tong
A Lexington gynecologist was found not guilty of unnecessarily removing an Owingsville woman's ovaries Tuesday night.

Click on heading for the entire story by Anna Tong:.

Lexington gynecologist's case goes to the jury
By Anna Tong
atong@herald-leader.com
A medical malpractice case in which an Owingsville woman accused a Lexington gynecologist of unnecessary castration — removing her healthy ovaries — without warning her of the surgery's consequences went to the jury Tuesday.

The defense argued that the doctor used sound medical judgment.

“He's done the worst thing a physician can do — he violated her trust,” said Lexington attorney Sheila Hiestand.

The plaintiff, 38 year-old Connie Grimes, wept quietly after closing arguments, leaning on her husband.

Grimes is one of six women who filed a lawsuit against Dr. Michael Guiler in 2003, saying he performed medically unnecessary oophorectomies. The cases are being tried separately.

Removing a woman's ovaries results in early menopause and leaves patients at risk for breast cancer, embolisms and dementia because they can no longer produce their own estrogen.

Guiler has previously been in the national spotlight because of other lawsuits filed in 2003 alleging he had branded “UK” — for University of Kentucky, his alma mater — on uteri before he removed them.

Grimes is seeking almost $900,000 in reparations for the aftereffects of what she thinks was an unnecessary oophorectomy. She said that while she signed a consent form, she did not fully understand the consequences of having her ovaries removed at age 31.

For other stories involving Dr. Guiler posted at the Kentuck Law Blog, then click here.

CJ OP-ED: "The right's last redoubt" and Supreme Court independence (and the rest of the judiciary for that matter)

This op-ed piece on how to change the direction of the Supreme Court with a look down memory lane at the Roosevelt post-depression court-packing scheme should prove interesting reading for those who wish to "impact" our United States Supreme Court as a Constitutionally created co-equal branch of the government.

Or as George Santayana more aptly put it "Those who cannot learn from history are doomed to repeat it."  The conservatives lament their caving in nearly a century ago to the pressures of liberalism in the face of a national economic emergency (a/k/a the "depression") and the putative dire consequences thereof, but seem to forget that this same characterization of an "active" court can apply with equal force today.  Unintended consequences can occur when constitutional requirements are abdicated for political expediency whether motivated by the right, the left, the progressives, the regressives, the liberals, the conservatives, or whoever and whatever.

The right's last redoubt

If the long conservative era that began with Ronald Reagan's election is over, will the judges appointed during the right's ascendancy be able to block, frustrate and undermine the efforts of a new progressive majority?

HL: Public defenders sue state over funding [updated with link to copy of complaint]

From Herald Leader is story about public defender's suit of budget funding.  If anyone emails me a copy of the complaint filed, I will post it to this story. {updated with link to copy of complaint by clicking here!  Many thanks to one of our readers!!!  Although I must confess the method of making this point is difficult to grasp, the point to be made is clear.  Plus a similarly framed lawsuit worked years ago to take on the financial and other difficulties in our public school system.  And it worked!}

Public defenders sue state over funding

State public defenders filed a sweeping lawsuit Monday seeking a declaration that the state's indigent defense system is inadequately funded and unconstitutional. Reeling from a $2.3 million budget cut for this fiscal year, which starts today, the Department of Public Advocacy filed a declaratory judgement petition in Franklin Circuit Court asking a judge to order the state finance cabinet to pay for private lawyers in cases where public defenders have withdrawn because of budget cuts. In the alternative, public defenders are asking the courts to set a deadline for the General Assembly to allocate more money. If the legislature does not provide ”sufficient“ funds, then public defenders want the courts to dismiss all charges for criminal defendants who don't have public defenders because of budget cuts. ”Not only are the lives and liberty of some of our most vulnerable citizens at risk, but the fairness, reliability and credibility of the criminal justice process are rightly in question,“ Louisville's chief public defender, Dan Goyette, said in a statement. ”We can ill-afford a loss of public confidence in our adversary legal system and with it respect for the rule of law.“

CJ: Diet drug trial - Mills found not guilty; Cunningham, Gallion hung jury but judge sends back to reconsider

The Courier Journal reports on the Fen Phen trial with video of Melbourne Mills leaving the jail:

Jury clears one lawyer in fen-phen fraud trial
In its sixth day of deliberations, the jury in Kentucky’s fen-phen diet-drug case announced today that it had found Melbourne Mills Jr. not guilty of defrauding 431 clients.

But its foreman said it couldn’t reach a unanimous decision on the other two defendants — William Gallion and Shirley Cunningham Jr. – and Senior U.S District Judge William O. Bertelsman ordered the jury to return tomorrow to try again.

Click on heading for rest of story.

TECH: Acrobat for Legal Professionals has on-line free one-hour seminars on new update

Acrobat 9 eSeminars: See the new stuff!

You can see Acrobat 9 and never leave your office . . .  Sign up for one of our free 1-hour eSeminars where I'll show off the latest legal-specific features of Adobe Acrobat 9.

HL POLWATCHERS: "Former Rep. Gross Clay Lindsay dies at 77"

Former Rep. Gross Clay Lindsay dies at 77

By Herald-Leader Pol Watchers

FRANKFORT -- Former House Judiciary Chairman Gross Clay Lindsay, a Henderson Democrat who was a key figure in modernizing the state's court system and changing criminal laws, died early Wednesday morning at his home of natural causes, Henderson County Coroner Bruce Farmer said. He was 77.

HL: "Senate approves pension bill, session nearly done"

Senate approves pension bill, session nearly done FROM Polwatchers at HL

HL POLWATCHERS: "Investigators cast wide net in transportation probe"

Investigators cast wide net in transportation probe

DIET DRUG TRIAL: Monday ends with no fen-phen verdict

Herald Leader updates us on the diet drug trial in "Monday ends with no fen-phen verdict"

HL: Spindletop story on Jessamine County woman

From Herald Leader:

State says woman violating order in Spindletop case A Jessamine County woman notorious for selling ”shares“ in ”unpaid royalties“ from the 1901 Spindletop oil strike in Texas again faces 120 days in jail. The Kentucky Department of Financial Institutions on Monday filed a motion in Franklin Circuit Court to hold Jewell Robbins in contempt of court. ”DFI believes Robbins continues to defy the court's order to refrain from selling securities,“ the state said in a press release. A hearing is scheduled for 9:30 a.m. July 9. Since 1985, Robbins, 75, sold fractional interests in anything she might recover from lawsuits filed on behalf of Spindletop heirs. In 2006, she signed a voluntary permanent injunction barring her from selling any securities; in 2007, she was found in contempt of that and sentenced to 120 days but the sentence was suspended. Last October, Robbins was ordered to give the state her bank records and the names of potentially thousands of investors, many in Kentucky, Ohio, Indiana, Michigan and West Virginia.

CJ: "Champion of the disabled"

Courier Journal op-ed story by lawyer Bob Heleringer:

Champion of the disabled

In February 1977, I had been a lawyer less than six months when an urgent telephone call came into my office.

"Bobby, this is Louise." "Louise" was Louise Underwood, the long-time bookkeeper for my family's furniture store, Heleringer's.

"The state is closing Hazelwood," she said, "and moving our children out to nursing homes. And they're doing it right now."

"Louise," I replied, "What and where is Hazelwood?"

I soon learned that Hazelwood was the old South Louisville sanitarium the state had converted in the early 1970s to an ICF/MR (intermediate care facility for the mentally retarded) for nearly 250 severe/profoundly retarded adults. Louise had a brother-in-law, Ronnie Underwood, who lived there.

Unthinkable but true, state officials had given no advance notice to the parents/families about Hazelwood's closing or the ultimate destinations of their loved ones' transfer. Galvanized into action by Louise, and after a law partner had kindly given me directions to the federal courthouse, I soon found myself standing

UofL LAW: Kathy Urbach new Associate Dean for Career Services and Public Service Program

Career Services and Public Service Dean Selected from UofL Law Blog
The University of Louisville's Brandeis School of Law welcomes new Assistant Dean for Career Services and the Public Service Program Kathy Urbach. In this role, Urbach will assist students in obtaining part-time positions while in school and full-time legal employment upon graduation; she will also direct the Law School's Samuel L. Greenebaum Public Service Program. Urbach will join the law school on July 7, 2008.

UofL LAW: "Law School Seeking Assistant Dean for Admissions"

Law School Seeking Assistant Dean for Admissions from UofL Law Blog.

UofL Law: Publications by Brandeis Law Faculty Posted on their blog

From the UofL Law School Blog is the following list of "kudos" for the faculty regarding recent presentations and publications:

Professor James T.R. Jones presented "Severe Mental Illness, Stigma, and the Value of Treatment" for the Psychopathology class of the Kent School of Social Work, University of Louisville, June 4, 2008.   

The May 2008 Women Lawyer's Association's annual legal ethics seminar was presented by Professor Grace M. Giesel.  Her presentation was titled "Recent Developments in Legal Ethics: Mass Tort Settlements, Metadata and Other Topics."

In addition to their regular duties, a number of law school faculty provide CLE presentations to the bar at the Louisville Bar Association. The following presentations were given during the first six months of 2008:

"Obtaining Racial Diversity in Our Schools without Using Race-Two Steps Forward, or Ten Steps Back" by Professor Cedric M. Powell was presented on February 28, 2008.

"Using the Internet to Locate Legal Information" by Professor Will Hilyerd was presented on May 12, 2008.

"Annual Spring Ethics CLE" was presented by Professor Grace Giesel on May 16, 2008.

Dean Jim Chen presented "Public Service Lawyering, By the Rules," to the local bar on June 4, 2008.

"Decoding the Kentucky Constitution" will be presented by Professor Kurt Metzmeier on June 30, 2008.

LBA: Golf Scramble set for Aug. 11, 2008

Annual LBA, Jefferson County Law Library, and UofL Law School "Golf Scramble" to be held on August 11, 2008 at the Louisville Standard Golf Club.  From the UofL Law News is the following:

LBA Golf Scramble

The LBA's 17th Annual Golf Scramble is scheduled for August 11, 2008, at Standard Country Club. The event raises funds for three important groups:

The Brandeis School of Law's Public Service Program.

Jefferson County Public Law Library, and the 

LBA Diversity Scholarship

LAWREADER: "Judges 64 pages of instructions could explain why Fen Phen jury goes into the sixth day of deliberation"

For those interested in the jury instructions involving the criminal trial of the diet drug lawyers, then click on Judges 64 pages of instructions could explain why Fen Phen jury goes into the sixth day of deliberation