A recent Texas Lawyer story, “Firm Vows Appeal After $4 Million Judgment in Fen-Phen Fee Fight,” reports that a battle between plaintiffs firms over fen-phen attorney fees wrapped up on March 23 in a state district court in Houston.  Dan Barton, The Barton Law Firm and The Johnson-Barton Joint Venture secured a nearly $4 million judgment in a breach of contract suit against Fleming, Nolan & Jez.  G. Sean Jez, a partner in Fleming Nolan in Houston says, “We will be filing an appeal.”

The breach of contract suit stems from a dispute over attorney fees some fen-phen cases the plaintiffs had referred to what was then Fleming & Associates under a 2002 litigation contract.  The underlying fen-phen suits settled by 2006.  The plaintiffs filed the petition in Daniel P. Barton, et al. v. George Fleming et al. in August 2009.  The plaintiffs alleged Fleming & Associates and George Fleming had breached a contract by deducting expenses, not specifically listed in the 2002 contract, from their share of fees.  In the petition, the plaintiffs brought breach of contract and promissory estoppels causes of action and sought damages as well as attorneys’ fees.

District Judge Sylvia Matthews granted the plaintiffs summary judgment on the breach of contract claim.  Because of that ruling, plaintiffs’ attorney Fred Hagan says, the plaintiffs subsequently dropped the promissory estoppels cause of action.  According to the March 23 judgment, the following took place in the litigation before the trial: On Sept. 6, 2011, Matthews granted in part a summary judgment motion ordering Fleming & Associates to pay $2.6 million in damages to the plaintiffs.  On Dec. 29, 2011, she granted another summary judgment motion and ordered Fleming & Associates to pay the plaintiffs $305,000 in certain reimbursements expenses and attorneys’ fees.

A trial began on Feb. 27.  On March 1, a jury issued a verdict awarding the plaintiffs $790,000 in attorneys’ fees for litigation of the Barton suit and a possible additional $130,000 for appeals.  Hagans, a partner in Houston’s Hagan Burdine Montgomery & Rustay who represents the plaintiffs in Barton, says the fen-phen clients the plaintiffs referred to Fleming & Associates constituted about 2,000 of the 8,000 clients whose suits Fleming & Associates handled.