AUSTIN - The Texas Supreme Court concluded on Friday that Attorney George Fleming has been “judicially estopped” from establishing an essential component of a summary-judgment motion seeking to dismiss malpractice claims over his handling of fen-phen litigation.
The case, Rebecca Wilson et al. vs. George Fleming and Fleming & Associates, has been before the high court before concerning the summary judgment ruling, which was in Fleming's favor.
The Supreme Court’s opinion states that Fleming and his law firm represented more than 8,000 (roughly half of which are now part of the current litigation) plaintiffs in a mass-tort action against the manufacturer of a diet pill known as “fen-phen.” Before suing the drug manufacturer in 2001, Fleming spent roughly $20 million to medically screen over 40,000 potential claimants. About 20 percent of them became his clients.
In 2006, Fleming settled the case for $339 million. He reimbursed himself for the costs of the screenings by deducting that amount from the settlement funds. Based on the clients’ contingency agreements with him, he then distributed their percentage of what remained.
“In other words, he charged his clients not just for their own medical-screening costs but also for those of approximately 32,000 people who never became his clients and who did not participate in the underlying case,” the opinion states. “This financial choice led to further litigation, now casting Fleming as the defendant in various actions brought by his former clients.”
Following a bellwether trial, a jury found in favor of Fleming. Fleming then moved for summary judgment, asserting defensive collateral estoppel against the plaintiffs, court records show.
“Fleming, who in the past had successfully emphasized the many alleged differences among the various plaintiffs, now argued that the… trial resolved the common issues against each of the approximately 4,000 remaining plaintiffs,” the opinion states.
Fleming asserted three grounds for summary judgment in his motion: defensive collateral estoppel, waiver, and release. He raised only collateral estoppel when he challenged the court of appeals’ first judgment, so only that ground for summary judgment remained live, according to the opinion.
Court records show the trial court granted summary judgment for Fleming and the case began bouncing between appellate courts. On remand from the Supreme Court, an appellate court held that Fleming could not establish his entitlement to defensive collateral estoppel.
Once back in the Supreme Court, justices found that even setting aside any distinction between offensive and defensive collateral estoppel, Fleming must carry his own summary-judgment burden to establish his affirmative defense.
“The doctrine of judicial estoppel forecloses his ability to do so because he is estopped from asserting that the thousands of remaining plaintiffs’ claims are materially indistinguishable,” the opinion states. “We therefore have no occasion to resolve the correctness of Fleming’s current position—correct or not, he is estopped from asserting it. We thus reserve for future cases the extent to which, under Texas law, one may impliedly agree to be bound by a judgment to which one is not a party such that nonparty preclusion applies.
“The judgment of the court of appeals is affirmed.”
Supreme Court case No. 22-0166