Mills' former assistant in fen-phen case loses appeal

bmusgrave@herald-leader.comAugust 28, 2009 

FRANKFORT — Melbourne Mills Jr. will not have to pay a former assistant more than $900,000 for allegedly persuading Mills to pursue a controversial fen-phen lawsuit, the state Supreme Court ruled Thursday.

In January 2006, a Fayette Circuit Court jury awarded $900,000 to Cindy Sawyer of Versailles.

In court documents, Sawyer said she agreed to research and propose possible class-action lawsuits for Mills. Sawyer says she persuaded Mills to file a lawsuit on behalf of thousands of fen-phen clients who say the diet drug damaged their hearts and lungs.

Mills was one of three Lexington-area lawyers who settled a lawsuit on behalf of 441 clients for $200 million in Boone Circuit Court in 2001. Mills and two other attorneys were later charged with fraud in that case. Federal prosecutors say the lawyers on the case took $94 million that should have gone to their former clients. A federal jury, however, acquitted Mills of all charges in July 2008.

Sawyer says that Mills always told her that she would receive a substantial bonus if he ever "obtained a big day." Sawyer and her husband secretly recorded Mills in June 2001 agreeing to pay her more than $1 million. The payments were to be made over 10 years. Mills, according to court documents, refused to sign a contract promising to pay the money.

Fayette Circuit Judge James Ishmael overturned the jury's verdict in April 2007, saying that the oral agreement was not enforceable. The statute of frauds requires that any contract lasting longer than a year be in writing. The fraud statute has numerous exceptions, but none of those exceptions apply in this case, Ishmael wrote.

The Court of Appeals upheld Ishmael's ruling.

On Thursday, the state Supreme Court unanimously upheld the previous rulings.

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