‘Fen-phen’ plaintiffs lose appeal over Fleming’s cut from $339M settlement

By David Yates | Jan 3, 2019

HOUSTON – Around half of the 8,000 plaintiffs George Fleming represented in the “fen-phen” litigation ended up suing the Houston attorney, alleging unreasonable expenses were deducted from the $339 million settlement.

On Dec. 21, the 14th Court of Appeals affirmed a trial court’s take nothing judgment in favor of Fleming.

Court records show six of Fleming’s clients were severed for trial. And a jury found Fleming and his firm did not breach the clients’ fee agreements by charging unreasonable expenses.

In the mid-1990s, users of the prescription diet drug combination fenfluramine/phentermine (fen-phen) began experiencing heart problems. The drug maker, then known as American Home Products and now known as Wyeth, removed fen-phen from the market in 1997.


Across the country, thousands of fen-phen users filed legal actions against the drug maker.

Fleming, and his then-law firm Fleming & Associates, established a nationwide echocardiogram program—at an alleged cost of at least $20 million—to screen potential claimants for eligibility to opt out of the class and assert individual claims.

According to the Fleming Firm, more than 40,000 potential clients were screened, and the firm eventually represented over 8,000 “FDA-positive” claimants in pursuing individual claims for personal injuries against Wyeth.

In 2006, Wyeth and the Fleming Firm’s 8,051 clients agreed to settle the claims for an aggregate amount of $339 million. Wyeth and the Fleming Firm signed a master settlement agreement, pursuant to which Wyeth would escrow the settlement amount and the firm would disburse the settlement amount to each claimant.

More than 95 percent of the Fleming Firm’s clients accepted the settlement and signed releases. A few years later, a number of the Fleming Firm’s former clients who had accepted the settlement and signed releases sued the firm and George Fleming individually for, as relevant here, breach of contract and breach of fiduciary duty.

The clients alleged that the Fleming Firm breached its contractual and fiduciary duties in several respects, which included charging them for their own echocardiograms, despite promises that those tests would be free.

The clients asserted that the firm did not sufficiently disclose the nature of the echocardiogram program deduction in the settlement packets.

Justices found assertions made on appeal were not in the court’s record, holding that because the record does not include a ruling adverse to the appellants, nothing was presented for their review.

The appellants are represented by Houston attorney Paul Kirklin.

Fleming is represented by David Gunn of the Houston law firm Beck Redden and Murray Fogler, attorney for the Houston law firm Fogler, Brar, Ford, O’Neil and Gray.

Appeals case No. 14-17-00209-CV

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