FEN PHEN ATTORNEY ANGELA FORD CLAIMS THE GIVING OF A DEPOSITION IS A PERMANENT WAIVER OF FIFTH AMENDMENT RIGHTS. JUDGE MAY GRANT PARTIAL DAMAGE RULING BEFORE TRIAL.

Judge Wehr says he may issue a partial ruling on damages, before trial in the Fen Phen civil case. This ruling if actually made, may cost the Fen Phen victims $33 million in attorney fees. 
 

   Fen Phen plaintiff’s attorney Anglea Ford said “it’s too late for the three defendants? to  waive their Fifth Amendment rights against being forced to testify in the civil case against them, because they already had testified in discovery proceedings in the civil case and thereby have waived their right against self-incrimination.
 

Subsequent to the filing of the civil cases, the Federal Government obtained indictments against Shirley Cunningham, Melbourne Mills, and William Gallion for allegedly not paying their clients the share of a $200 million settlement to which they were entitled.
 

Special Judge William Wehr, has indicated that he may delay the civil trial scheduled for September until after the October criminal trial.
 

Judge Wehr also indicated that he may make a partial ruling on damages prior to the trial and leave claims for punitive damages to be heard by a jury.  A partial preliminary ruling will strengthen the claim of Angela Ford for an attorney’s fee by allowing her to claim that she obtained an award before the Federal Government obtained their restitution order.  While that would be nice for Angela Ford, it may have the effect of separating the some 400 plaintiffs Ford represents from $33 million dollars ($100 million claimed less Ford’s contingent fee.)
 

If Judge Wehr continues the civil trial in his court, and doesn’t make a preliminary finding on damages until after the Federal criminal charges against the three Lexington attorneys is heard, then the 400 Fen Phen litigants may be relieved from their attorneys claim for a contingent fee of some $33 million.
 

    The U.S. Attorneys Office has indicated that they are seeking restitution for the disputed funds in the criminal action.  If the funds are recovered through the criminal action, there will be no imposition of attorney’s fee for the amount collect. Ford would not likely earn a fee on those funds.  If the funds are recovered through Ford’s civil action, then she stands to earn as much as $33 million if her claims are upheld and the funds actually collected.
 

The issue of Ford’s potential $33 million contingent fee appears to put her in a conflict with the interests of her 400 Fen Phen clients by her act of opposing the continuance of the civil trial. If the Federal criminal trial goes first, and if the U.S. Attorney is successful in obtaining an order of restitution for any damages, then there would not appear to be any reason for a state civil trial to try to reclaim the same money already awarded by the Federal court.  This would save the civil litigants thousands of dollars in additional court and trial costs, and possible years of appeals.
 

   Ms. Ford claims that when the three Lexington attorneys gave depositions in the civil case, and turned over documents regarding the settlement, that they waived any right to refuse to testify in the civil and criminal cases.   That theory appears to be unsupported by a number of rulings.  We suggest the courts have dealt with this issue on previous occasions and have reached results directly contrary to Ms. Ford’s legal theories regarding the Fifth Amendment.
 

FIFTH AMENDMENT RIGHTS
 

Newman v. Stinson, 489 S.W.2d 826 (Ky., 1972)    October 20, 1972

“The Fifth Amendment provides in part that no person shall be compelled in any criminal case to be a witness against himself nor be deprived of life, liberty or property without due process of law. In Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), it was held that the protection of the Fifth Amendment against self-incrimination extends only to evidence of a testimonial nature.?
 

Com. v. Blincoe, 34 S.W.3d 822 (Ky. App., 2000)    December 22, 2000

“The courts of this Commonwealth zealously protect the rights granted individuals pursuant to the Fifth Amendment of the United States Constitution and Section 11 of the Kentucky Constitution, both of which provide that a witness cannot be compelled to incriminate himself. Commonwealth v. Cooper, Ky., 899 S.W.2d 75, 77 (1995). Further, in order to prevent prejudice to a defendant, the Commonwealth may not call a witness it knows will take the Fifth Amendment on the stand. “

 

PARALLEL PROCEEDINGS

 

See:  PARALLEL PROCEEDINGS – CIVIL ACTIONS, CRIMINAL CASES  This article on LawReader discusses a number of precedent cases where the right against self-incrimination under the 5th. amendment was allowed to be asserted in an action even though a deposition was given in another action.  The law does not favor blanket waivers of immunity.  These rulings strongly rebut Ms. Ford’s claim that giving a deposition in a civil case acts as a blanket and permanent waiver in all subsequent cases.

 

   If  Judge Wehr proceeds with the civil case first, then he may have to confront the possibility of the three civil defendants asserting their 5th. Amendment  rights not to testify.  If he forces them to testify then he risks granting them immunity from criminal prosecution.  A witness is entitled to immunity from a criminal prosecution if he is required to testify despite his constitutional privilege against self-incrimination.

 

   The Court of Appeals of North Carolina has discussed a relevant case. In this decision they held that the granting of a deposition in a civil case did not waive the right to later assert one’s Fifth Amendment rights.

 

Staton v. Brame, 136 NC App 170 (98-1501) 12/21/1999

 

“Constitutional Law–self-incrimination–different proceeding
    The trial court erred by granting a motion to compel defendant Brame’s response to deposition questions in this state action involving misappropriation of funds when he had previously given relevant testimony in a deposition as part of federal bankruptcy/equitable distribution proceedings. The federal bankruptcy/equitable distribution proceeding is a separate proceeding from the state court action, and defendant’s waiver of his right against self- incrimination in the federal proceeding did not apply in the state court action.?

 

“…   An analogous issue arose in State v. Pearsall, 38 N.C. App. 600, 248 S.E.2d 436 (1978). Pearsall involved an armed robbery in which two defendants were charged, then tried separately. One defendant, Williams, after being convicted, entered notice of appeal. Williams then provided self-incriminating testimony at her co-defendant’s first trial. However, when Williams was called as a witness at the co-defendant’s second trial, she refused to testify, exercising her Fifth Amendment rights. Noting that Williams’ own appeal was still pending at the time she refused to testify when called as a witness in the second trial, we held that her testimony in the first trial did not operate as a waiver of her Fifth Amendment rights in the second trial.

 

“It is the majority view that a witness who testifies to incriminating matters in one proceeding does not thereby waive the right to refuse to answer as to such matters on subsequent, separate, or independent trial or hearing.? Id. at 603, 248 S.E.2d at 438 (citations omitted).?

 

“… Mudd is readily distinguishable. A civil deposition in state court is manifestly different from an equitable distribution/bankruptcy proceeding in federal court. Not only are there significant procedural and jurisdictional differences, the two depositions have different purposes. Brame’s deposition in the bankruptcy matter pertained to resolution of equitable distribution matters between Brame and his former spouse; the attempted deposition in the case at bar apparently related to his authority to act on behalf of plaintiffs. Unlike the defendant in Mudd, Brame was not being asked to provide details underlying earlier testimony he had provided in the same type of proceeding before the same court. Therefore, Brame was entitled to exercise his right against self-incrimination under the Fifth Amendment of the United States Constitution, and the trial court erred when it granted Centura’s motion to compel Brame to answer deposition questions.?
 

“… Accordingly, it is unnecessary to address Brame’s claim under Article I, Section 23 of the North Carolina Constitution. “[B]ecause the United States Constitution is binding on the states, the rights it guarantees must be applied to every citizen by the courts of North Carolina, so no citizen will be ‘accorded lesser rights’ no matter how we construe the state Constitution.? State v. Jackson, 348 N.C. 644, 648, 503 S.E.2d 101, 103 (1998). We have determined that Brame effectively invoked his Fifth Amendment right against self-incrimination when he was deposed in the case at bar; he has no lesser right under our state constitution.?

 

CONTINUANCES

 

There are numerous cases which suggest that it is an appropriate, although not mandatory,  procedure for a civil trial to be delayed pending a criminal trial involving the same parties.

 

See: Volmar Distrib., Inc. v. New York Post Co., 152 F.R.D. 36 (S.D.N.Y. 1993)

 

“The strongest case for granting a stay is where a party under criminal indictment is required to defend a civil proceeding involving the same matter. While the Constitution does not mandate a stay in such circumstances, denying a stay might undermine a defendant’s Fifth Amendment privilege against self-incrimination. Refusing to grant a stay might also expand the rights of criminal discovery beyond the limits of Fed. R. Crim. P. 16(b), expose the basis of the defense to the prosecution in advance of trial, or otherwise prejudice the case.? 
 

 

Immunity
   

There are also cases which suggest that if a judge orders a defendant to testify even though he has asserted his Fifth Amendment right not to testify, that the court may

automatically be granting immunity from criminal prosecution to the defendant.

 

Informal offers of immunity from tend to be binding in the federal courts out of fairness. The courts have developed a concept of ‘nonstatutory’ immunity whereby the courts will enforce informal or procedurally flawed grants of immunity on equitable grounds. This concept of immunity may apply when a court forces a defendant to testify even though he has asserted his Fifth Amendment right to remain silent.  Federal Courts have “honored? immunity agreements made by a state. 
 

See: Baxter v. Palmigiano, 425 U.S. 308 (1976) “(prison disciplinary hearings are not criminal proceedings; but if inmates are compelled in those proceedings to furnish testimonial evidence that might incriminate them in later criminal proceedings, they must be offered whatever immunity is required to supplant the privilege and may not be required to waive such immunity).?

 

TESTIMONY CAN BE COMPELLED IF THERE IS STATE AND FEDERAL IMMUNITY FROM PROSECUTION GRANTED

 

See: Gardner v. Broderick, 392 U.S. 273 (1968).

“The privilege against self-incrimination is applicable to state as well as federal proceedings. U.S. Const. amend V. The privilege may be waived in appropriate circumstances if the waiver is knowingly and voluntarily made. Answers may be compelled regardless of the privilege if there is immunity from federal and state use of the compelled testimony or its fruits in connection with a criminal prosecution against the person testifying.?
 

 

 

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