In United States v. Cunningham, the Sixth Circuit affirmed the convictions of a pair of Kentucky lawyers related to the $200 million Fen-Phen settlement. The Court’s opinion chronicles the actions of Shirley Cunningham, Jr. and William Gallion, who were lawyers representing 440 individuals who had opted out of a nationwide Fen-Phen class action. While the lawyers succeeded in securing a $200 million settlement for their clients, the client would ultimately receive only approximately $73.5 million of that amount, with various attorneys and a cy pres fund receiving the balance. Calling this “a massive scheme to defraud their clients,” the Sixth Circuit did not hesitate to affirm the convictions.
One notable aspect of the court’s opinion was its consideration of the exclusion of expert testimony. As Max reported yesterday and Emily reported last week, Daubert issues have been at the forefront of the Sixth Circuit’s case law recently. This case explored the exclusion of the testimony of an attorney as an expert witness to testify on the appropriateness of the defendants’ actions in connection with a significant settlement in a complex case. The district court initially found the attorney expert not qualified as an expert because the attorney had no real qualifications other than his own practice. The Sixth Circuit expressed “grave doubt” about the correctness of this ruling, but ultimately did not need to address it because it found the testimony inadmissible for other reasons. In general, the attorney was offering his view of the correctness or appropriateness of the defendant’s actions under the terms of the retention agreement as well as Kentucky law. However, the Sixth Circuit found that the expert’s testimony “contained numerous misstatements of the law.” The government apparently proffered its own expert legal ethics to provide similar testimony, but the Circuit upheld the admission of that testimony because the expert accurately summarized and testified on the relevant legal issues. (Practice note: when retaining an attorney expert, make sure he or she knows the law!).
At the end of its decision, the Sixth Circuit noted a circuit split based on the district court’s refusal to permit one of the defendants to waive his right to a unanimous jury verdict prior to the declaration of a mistrial during the first trial proceeding. While the Eleventh Circuit permits a criminal defendant to waive his right to a unanimous verdict under certain criteria, prior Sixth Circuit case law had found to the contrary (the Court also noted that other circuits shared its view). Not surprisingly, the Sixth Circuit stood by its prior authority, and rejected this argument. But we would imagine that this will be the foundation for an upcoming cert petition.