Fen Phen trial testimony may be clearing name of Judge Bamberger

By LawReader Senior Editor Stan Billingsley    May 27, 2008

The Government has introduced evidence from the Fen Phen trial Judge Joseph Bamberger for over 20 hours, with more questioning to continue. The cross examination by the defense has not yet commenced.

The Government is demonstrating through the testimony of Judge Bamberger, that he made numerous orders concerning elements of the class action, and that the defendant attorneys lied to the court on significant issues.

Federal Judge Bertlesman has limited each side to 57 hours of testimony, and the use of Judge Bamberger for 20 hours (so far) indicates the importance of his testimony to the case.

This trial so far has presented quite a different picture about Judge Bamberger than the one painted by the Angela Ford, the current Fen Phen plaintiff’s lawyer, in her many press disclosures (which appear to have violated Judge Wehr’s gag order).  The Government so far has presented a case which shows the lying and improper conduct came not from a Judge in Boone County but from Lawyers from Fayette County.

This trial raises the question that everyone who has been so eager to condemn Judge Bamberger of complicity should consider.  If Bamberger was complicit in the hiding of fees the original plaintiff’s lawyers paid themselves, why did they find it necessary to repeatedly lie to him?Example:  They did not mail out the required settlement notice, after obtaining approval from the court on the wording of the notice. (??)

Every judge should consider how correct their decisions would be if the attorneys were constantly lying to them about what was being done.  It is very easy to look back in hindsight and say you would have done something differently…it is quite another to actually be in the hot seat and make calls based on the information given to you.

The Judicial Conduct Commission sanctioned Judge Bamberger for a decision he made six months after he left office.  He violated what they considered an “appearance of impropriety”.   The Rules of Judicial Conduct clearly say that even a sitting judge may serve on the Board of a charitable trust.

Bamberger agreed, to his often expressed everlasting regret, to serve on the Charitable Trust six months after he retired and had no control over the case.  Another fact that should bother the bar is that during the class action proceedings, and before final fee orders and settlement were approved by Judge Bamberger, the Kentucky Bar Association received complaints about the conduct of Attorney William Gallion in the case, and they never gave the trial judge a head’s up.  No one gave him any warning that something might be wrong about to occur.

How informed would your decisions be if the people before you were lying, and everyone who claimed to know of misdeeds by the attorneys didn’t share that information with you?

We imagine that the defense will try to lay the blame on Judge Bamberger when they cross-examine him if they choose to do so.  They will have great difficulty in accomplished this shell game since the video tapes of all of Judge Bamberger’s hearings are available and show how they mislead the court on numerous issues.  How can they sell the defense that they fed the judge false information, but then relied on his decisions for guidance?  There is an old computer term which applies here, it is called in shorthand GI-GO.  (Garbage in –garbage out.)

The Cincinnati Enquirer reported:

Former Boone Circuit Judge Joseph “Jay” Bamberger stepped down from the stand Tuesday after three days of testimony in the federal trial of three lawyers charged with defrauding their clients out of $65 million. 

Bamberger presided over a class-action settlement of $200 million for 440 people who experienced heart damage after taking the now banned diet drug fen-phen. 

The defendants – Shirley Cunningham Jr., William Gallion and Melbourne Mills Jr. – took $65 million in legal fees that they were not entitled to, according to federal prosecutors. If convicted of conspiracy to commit wire fraud, the lawyers could get up to 20 years in prison and be forced to pay millions of dollars in restitution. 

They already have a $45 million civil judgment levied against them in state court for the handling of the fen-phen settlement. Authorities said Cunningham and Gallion used the ill-gotten gains to purchase the racehorse Curlin, last year’s Preakness winner and Horse of the Year. 

The lawyers’ defense, in part, is that Bamberger approved of them taking $125 million in fees and expenses from the settlement. 

Bamberger testified that he never would have approved the fees had the defendants told him the truth – that they had signed a contract with each defendant that called for about one-third of the settlement for legal fees. 

Bamberger said he also was not told the Kentucky Bar Association had launched an investigation into the settlement and had subpoenaed records when he approved the lawyers’ fees. 

Prosecutors contend Bamberger had no legal authority to approve the legal fees, and U.S. District Judge William Bertelsman said Bamberger clearly did not follow Kentucky’s guideline for conducting a class-action suit. 

Bamberger resigned in February 2006 rather than face the possibility of being removed from the bench for mishandling of the class-action case. 

Bamberger said he followed the advice of Gallion, the other defendants and class-action expert Stan Chesley of Cincinnati when making decisions in how to proceed with the fen-phen suit. 

 

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