HOUSTON – Today, the 14th Court of Appeals reversed a trial court’s judgment in favor of attorney George Fleming and Fleming & Associates, remanding the case for further proceedings.
Around half of the 8,000 plaintiffs Fleming represented in the “fen-phen” litigation ended up suing the Houston attorney, alleging unreasonable expenses were deducted from the $339 million settlement.
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 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.
Court records show the case returned to the 14th Court from the Texas Supreme Court.
Based on a jury verdict favorable to the Fleming Firm in a related case, the Fleming Firm moved for traditional summary judgment in this case, asserting affirmative defenses of collateral estoppel, waiver, and release. The trial court granted the Fleming Firm’s summary judgment motion without stating reasons, leading to the appeal.
The 14th Court previously held that the Fleming Firm failed to establish conclusively its right to judgment as a matter of law on each affirmative defense. And as to the firm’s collateral estoppel defense, justices stated that the reason the Fleming Firm failed to carry its summary judgment burden was because the firm’s evidence was not properly authenticated.
The Fleming Firm appealed to the Texas Supreme Court, challenging the 14th Court’s holding on the collateral estoppel defense.
The Supreme Court concluded that the trial court did not abuse its discretion by finding the documents authentic and reversed the 14th Court’s judgment, remanding the case for consideration on the issue justices previously did not reach – whether the Fleming Firm was entitled to judgment as a matter of law on collateral estoppel grounds.
“Having now considered the parties’ arguments regarding the Fleming Firm’s collateral estoppel defense, we hold that the firm failed to conclusively establish its defense,” the opinion states. “Accordingly, we reverse the trial court’s judgment and remand the case for further proceedings.”
The plaintiffs 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. 14-17-00223-CV