Jailed Fen-Phen attorney wants new judge

Chris Rizo Apr. 9, 2008, 2:12am

Judge William Bertelsman

COVINGTON, Ky.-An embattled plaintiffs' attorney behind bars pending trial for allegedly bilking clients out of $46 million from Kentucky's Fen-Phen settlement says the judge hearing his case should be disqualified.

Jailed attorney Shirley Cunningham Jr. contends that U.S. Senior District Judge William Bertelsman's prejudice in the matter renders him "wholly incapable of serving as a judge," according to an affidavit filed in the United States District Court for the Eastern District of Kentucky.

Cunningham, 53, and co-defendants William Gallion, 57, and Melbourne Mills Jr., 76, have been held in the Boone County Detention Center without bail since August, pending their trial May 12 in U.S. District Court in Covington, Ky.

After their indictments last June, the three lawyers initially were freed on their own recognizance. Then, at a hearing in August, Bertelsman jailed them when their attorneys requested a continuance.

They are held on charges of conspiracy to commit wire fraud in a scheme to allegedly bilk more than 400 clients out of $46 million in Kentucky's $200 million Fen-Phen diet-pill settlement.

The settlement was reached with diet drug maker American Home Products, now known as Wyeth, in Boone Circuit Court in 2001.

The attorneys' former clients have already won a $42 million civil award against the lawyers who represented them in a case taking on the manufacturer of Fen-Phen, the diet-drug linked to heart damage and pulmonary hypertension.

In a 53-page affidavit, Cunningham alleges that the judge said at a hearing in January that "the amount of restitution is going to have to be secured before anybody's released."

Neither Gallion nor Mills joined in the motion filed by Cunningham.

The jailed attorneys contend that Kentucky's rules on class action lawsuits are ambiguous. They said they relied on Boone Circuit Judge James Bamberger, who presided over the original Fen-Phen class action suit, to set the fees they received.

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