Judge Recuses Self from Kentucky Fen-Phen Retrial

The federal judge who oversaw the eight-week trial of two lawyers accused of conspiring to defraud their clients out of $65 million in a diet-drug settlement won’t handle the retrial.

U.S. District Judge William O. Bertelsman, who has senior judge status, issued an order on July 7 saying he would no longer hear criminal cases, but would still preside over civil cases.

The order transferred all pending criminal cases, including a retrial in the fen-phen case, to U.S. District Judge Danny C. Reeves.

Bertelsman presided over the trial of suspended lawyers Shirley Cunningham Jr., William Gallion and Melbourne Mills Jr. The three men were charged with conspiracy to commit wire fraud.

Mills was acquitted. Jurors failed to reach a verdict on Cunningham and Gallion last week after eight days of deliberations, prompting Bertelsman to declare a mistrial.

Prosecutors said the men conspired to shortchange their clients after they won a $200 million settlement over the diet-drug fen-phen. The men denied wrongdoing. A new trial date has not been set.

Cunningham’s attorney, Steve Dobson, said defense lawyers feel good about a retrial regardless of the judge because jurors were split 10-2 in favor of a not guilty verdict during the first trial. He declined to address Bertelsman’s move directly.

“We will continue to vigorously defend our client,” Dobson said.

A message left for federal prosecutors was not immediately returned Monday.

Gallion and Cunningham own a minority interest in Curlin, the 2007 Horse of the Year. A state judge last week ordered that interest managed by a receiver, taking all decision-making away from the two suspended attorneys.

Bertelsman became a lightning rod for criticism from defense lawyers, who moved multiple times to have Bertelsman step down from the case. The defense attorneys accused Bertelsman of being biased against their clients, especially after Bertelsman ordered the men jailed pending trial.

A pending retrial is not the only legal issue facing Gallion and Cunningham. The attorneys, along with Mills, are defendants in a civil suit brought by more than 400 of their former clients.

A state judge ordered the three suspended attorneys to repay $42 million plus interest, finding that they illegally took the money from the fen-phen settlement. A trial on punitive damages has yet to be scheduled.

Bertelsman was in private practice in Newport until 1979 when he was appointed by President Jimmy Carter to a new seat on the federal bench. Bertelsman served as chief judge from 1991 until 1998. He assumed senior status on February 1, 2002.