WHAT ISSUE MIGHT BE CONSIDERED BY THE KY. SUPREME COURT IN THEIR DISCRETIONARY REVIEW OF THE COURT OF APPEALS RULING IN ABBOTT V. GALLION ET AL?
Angela Ford in her brief to the 6th. Circuit attempted to avoid compliance with the U.S. District Court’s order directing her to provide an accounting to the U.S. Justice Department of her handling of funds in the Abbott case. The 6th. Circuit Denied the motion and the accounting in currently in possession of the U.S. Attorney’s office.
About ten days after the accounting was delivered by Ford, the KBA Board of Governors fired Linda Gosnell the KBA Bar Counsel and chief prosecution of ethics complaints against attorneys in Kentucky.
The KBA Board has not stated the reasons for the firing of Gosnell.
On Dec. 21, the Ky. Supreme Court granted Discretionary Review of the Court of Appeals decision in Abbott that remanded the case for a new trial.
The following excerpt from Ford’s brief filed before the 6th. Circuit suggests the grounds that Ford will argue in her brief to the Ky. Supreme Court which is due on Feb. 15, 2012.
As we understand Ford’s argument and the decision of the Court of Appeals issued in Feb. of 2011 the main reason the Court of Appeals reversed the summary judgment
in the Boone Circuit Court (Judge Wehr) was that the Ct. of Appeals reasoned that the statement of Feinberg, who oversaw the distribution of funds to the
Fen Phen plaintiffs presented a fact issue that should be determined by a jury. Therefore the issue could not have been disposed of by a Summary Judgment.
In the excepts below (from Ford’s 6th. Circuit brief) she argues that while Feinberg filed an affidavit raising a jury question, he later recanted the affidavit.
Apparently the Supreme Court found some merit in Ford’s argument. If this is the issue to be decided by the Ky. Supreme Court, (and we are only guessing and they aren’t talking) then the
court must decide the following question: “Can the bell be unrung by an appellate court?”
If a witness gives a statement under oath, can the trial be affected by a subsequent statement made by the same witness which disavows his first statement? One would think that both statements should
be presented to a jury to determine which version of the testimony is credible.
A finding of the bonafides of two statements is not a question of law. In our understanding this is a classic question of fact which can only be determined by a jury.
The decision of the Court of Appeals certainly considered the conflicting Feinberg statements to present a question of fact.
Perhaps the Supreme Court sees issues that we have not perceived. In one to two years we will get to read their decision and find out.
Ford Brief Argument
Case No. 11-6187
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
ANGELA M. FORD,
UNITED STATES OF AMERICA,
Appeal from the United States District Court for the Eastern District of Kentucky (Honorable Danny C.Reeves)
BRIEF OF APPELLANT ANGELA M. FORD
R. Kenyon Meyer
Stephen J. Mattingly
DINSMORE & SHOHL LLP
101 S. Fifth Street, Suite 2500
Louisville, Kentucky 40202
(502) 585-2207 – fax
Counsel for Angela M. Ford
Case: 11-6187 Document:
006111143825 Filed: 12/01/2011 Page: 1
A. The Kentucky Court of Appeals’
opinion in Abbott
In February 2011, the Kentucky Court
of Appeals entered an opinion in Abbott. The Court of Appeals determined
that summary judgment was inappropriate because an affidavit submitted
on behalf of the defendants by attorney Kenneth Feinberg created a question of
material fact on
the breach of fiduciary duty claim. (Court of Appeals’ Opinion, R. 1283-1.) 2
If the opinion becomes final, it will
reverse the Abbott summary judgment and remand the matter to circuit court. The Abbott plaintiffs petitioned
the Court of Appeals for rehearing because Feinberg had since recanted his
affidavit. Although the Court of Appeals denied the petition for rehearing, the
court stated that “upon remand, the trial court may reconsider its opinion and
order. The court may once again reject the affidavit of Mr. Feinberg .
. . .” (R. 1283-7, Order Denying Rehearing.)