The Appeal

The Appeal Page 30

The first fight was over the question of who would be allowed in the room. On the defense side, Jared Kurtin had full command of his battalion and there were no problems.

The brawl was on the other side.

Sterling Bintz arrived early and loudly with an entourage that included young men who appeared to be lawyers and others who appeared to be leg breakers. He claimed to represent over half of the Bowmore victims, and therefore deserved a lead role in the negotiations. He spoke with a clipped nasal voice and in an accent quite foreign to south Mississippi, and he was instantly despised by everyone there. Wes settled him down, but only for a moment. F. Clyde Hardin watched from the safety of a corner, crunching a biscuit, enjoying the argument, and praying for a quick settlement. The IRS was now sending registered letters.

A national toxic tort star from Melbourne Beach, Florida, arrived with his support staff and joined in the debate. He, too, claimed to represent hundreds of injured people, and, since he was a veteran of mass tort settlement, he figured he should handle things from the plaintiffs' side.

The two class action lawyers were soon bickering over stolen clients.

* There were seventeen other law firms jockeying for position. A few were reputable personal injury firms, but most were small-town car-wreck lawyers who had picked up a case or two while sniffing around Bowmore.

Tensions were high hours before the meeting began, and once the yelling started, there was the real possibility of a punch being thrown. When the voices were sharpest, Jared Kurtin calmly got their attention and announced that Wes and Mary Grace Payton would decide who sat where. If anyone had a problem with that, then he and his client and its insurance company would walk out the door with all the money. This calmed things down.

Then there was the issue of the press. At least three reporters were on hand to cover this "secret" meeting, and when asked to leave, they were quite reluctant. Fortunately, Kurtin had arranged for some armed security. The reporters were eventually escorted out of the hotel.

Kurtin had also suggested, and offered to pay for, a referee, a disinterested person well versed in litigation and settlements. Wes had agreed, and Kurtin found a retired federal judge in Fort Worth who worked part-time as a mediator. Judge Rosenthal quietly assumed control after the trial lawyers had settled down. It took him an hour to negotiate the seating. He would have the chair at the end of the long table. To his right, halfway down and in the center, would be Mr. Kurtin, flanked by his partners, associates, Frank Sully from Hattiesburg, two suits from Krane, and one from its liability insurance carrier. A total of eleven at the table for the defense, with another twenty packed behind them.

To his left, the Paytons sat in the center, opposite Jared Kurtin. They were flanked by Jim McMay, the Hattiesburg trial lawyer with four death cases out of Bowmore.

McMay had made a fortune on the fen-phen diet pill litigation and had participated in several mass settlement conferences. He was joined by a lawyer from Gulfport who had similar experience. The other chairs were taken by Mississippi lawyers who had legitimate cases from Bowmore. The class action boys were shoved into the background. Sterling Bintz voiced his objection to his placement in the room, and Wes angrily told him to shut up. When the leg breakers reacted badly, Jared Kurtin announced that the class actions were the lowest priority on Krane's list, and if he, Bintz, hoped to collect a dime, then he should keep quiet and stay out of the way.

"This ain't Philadelphia," Judge Rosenthal said. "Are those bodyguards or lawyers?"

"Both," Bintz snapped back.

"Keep them under control."

Bintz sat down, mumbling and cursing.

It was 10:00 a.m., and Wes was already exhausted. His wife, though, was ready to begin.

For three hours nonstop they shuffled papers. Judge Rosenthal directed traffic as client summaries were produced, copied next door, reviewed, then classified according to the judge's arbitrary rating system: death was Class One, confirmed cancer was Class Two, all others were Class Three.

A stalemate occurred when Mary Grace suggested that Jeannette Baker be given first priority, and thus more money, because she had actually gone to trial. Why is her case worth more than the other death cases? a trial lawyer asked.

"Because she went to trial," Mary Grace shot back with a hard gaze. In other words, Baker's lawyers had the guts to take on Krane while the other lawyers chose to sit back and watch. In the months before the trial, the Paytons had approached at least five of the other trial lawyers present, including Jim McMay, and practically begged them for help. All declined.

"We will concede that the Baker case is worth more," Jared Kurtin said. "Frankly, I'm unable to ignore a $41 million verdict." And for the first time in years, Mary Grace actually smiled at the man. She could have hugged him.

At one, they broke for a two-hour lunch. The Paytons and Jim McMay sat away in a corner of the hotel restaurant and tried to analyze the meeting so far. Going in, they were consumed with the question of Krane's intent. Was it serious about a settlement?

Or was it a stunt to push along the company's agenda? The fact that the national business papers knew so much about the secret settlement talks made the lawyers suspicious.

But so far Mr. Kurtin had given every indication that he was a man on a mission.

There had been no smiles from the Krane suits or the insurance boys, perhaps a sign that they were about to part with their money.

At 3:00 p.m. in New York, Carl Trudeau leaked the word that the negotiations were progressing nicely down in Mississippi. Krane was optimistic about a settlement.

Its stock closed the week at $16.50, up $4.00.

At 3:00 p.m. in Hattiesburg, the negotiators reassumed their positions, and Judge Rosenthal started the paper mill again. Three hours later, the initial accounting was complete. On the table were the claims of 704 people. Sixty-eight had died of cancer, and their families were blaming Krane. A hundred and forty-three were now suffering from cancer. The rest had a wide range of lesser illnesses and afflictions that were allegedly caused by the contaminated drinking water from the Bowmore pumping station.

Judge Rosenthal congratulated both sides on a hard and productive day, and adjourned the meeting until nine o'clock Saturday morning.

Wes and Mary Grace drove straight to the office and reported to the firm. Sherman had been in the negotiating room all day and shared his observations. They agreed that Jared Kurtin had returned to Hattiesburg with the goal of settling the Bowmore litigation and that his client seemed committed to that end. Wes cautioned that it was much too early to celebrate. They had managed only to identify the parties. The first dollar was nowhere near the table.

Mack and Liza begged them to go to the movies. Halfway through the eight o'clock show, Wes began to nod off. Mary Grace stared blankly at the screen, munching on popcorn and mentally crunching numbers related to medical expenses, pain and suffering, loss of companionship, loss of wages, loss of everything. She did not dare entertain thoughts of calculating attorneys' fees.

There were fewer suits and ties at the table Saturday morning. Even Judge Rosenthal looked quite casual in a black polo shirt under a sport coat. When the restless lawyers were in place and things were quiet, he said, with a great old voice that must have dominated many trials, "I suggest we start with the death cases and walk through them all."

No two death cases were the same from a settlement standpoint. Children were worth much less than adults because they have no record of earning power. Young fathers were worth more because of the loss of future wages. Some of the dead folks suffered for years, others went quickly. Everyone had a different figure for medical bills.

Judge Rosenthal presented another scale, arbitrary but at least a starting point, in which each case would be rated based on its value. The highest cases would get a 5, and the cheapest (children) would get a 1. Time-out was called several times as the plaintiffs' lawyers haggled over this. When it was finally agreed upon, they began with Jeannette Baker. She was given a 10. The next case involved a fifty-four-year-old woman who worked part-time in a bakery and died after a three-year battle with leukemia.

She was given a 3.

As they plowed through the list, each lawyer was allowed to present his particular case and plead for a higher rating. Through it all, there was no indication from Jared Kurtin of how much he was willing to pay for any of the death cases. Mary Grace watched him carefully when the other lawyers were talking. His face and actions revealed nothing but deep concentration.

At 2:30, they finished with Class One and moved to the longer list of those claimants who were still alive but battling cancer. Rating their case? was trickier. No one could know how long each would survive or how much each would suffer.

No one could predict the likelihood of death. The lucky ones would live and become cancer-free. The discussion disintegrated into several heated arguments, and at times Judge Rosenthal was flustered and unable to suggest a compromise. Late in the day, Jared Kurtin began to show signs of strain and frustration.

As 7:00 p.m. approached and the session was mercifully winding down, Sterling Bintz could not restrain himself. "I'm not sure how much longer I can sit here and watch this little exercise," he announced rudely as he approached the table at the far end, away from Judge Rosenthal. "I mean, I've been here for two days and I haven't been allowed to speak. Which, of course, means my clients have been ignored. Enough is enough. I represent a class action of over three hundred injured people, and you all seem determined to screw them."

Wes started a rebuke, but thought better of it. Let him ramble. They were about to adjourn anyway.

"My clients are not going to be ignored," he practically shouted, and everyone grew still. There was a hint of madness in his voice and certainly in his eyes, and perhaps it was best to let him rant a little. "My clients have suffered greatly, and are still suffering. And you people are not concerned with them. I can't hang around here forever. I'm due in San Francisco tomorrow afternoon for another settlement.

I got eight thousand cases against Schmeltzer for their laxative pills. So, since everyone here seems quite content to chat about everything but money, let me tell you where I am."

He had their attention. Jared Kurtin and the money boys perked up and stiffened a bit. Mary Grace watched every wrinkle in Kurtin's face. If this nut was about to throw a figure on the table, she wanted her adversary's reaction.

"I'm not settling my cases for less than a hundred thousand each," Bintz said with a sneer. "Maybe more, depending on each client."

Kurtin's face was frozen, but then it usually was. One of his associates shook his head, another one smiled a silly smile of amusement. The two Krane executives frowned and shifted as they dismissed this as absurd.

As the notion of $30 million floated around the room, Wes did the simple math. Bintz would probably take a third, throw a few crumbs at F. Clyde Hardin, then quickly move on to the next mass tort bonanza.

F. Clyde was cowering in a far corner, the same spot he'd occupied for many hours now. The paper cup in his hand was filled with orange juice, crushed ice, and four ounces of vodka. It was, after all, almost 7:00 p.m. on a Saturday. The math was so simple he could do it in his sleep. His cut was 5 percent of the total fees, or $500,000 under the rather reasonable scheme being so boldly suggested by his co-counsel.

Their arrangement also paid F. Clyde $500 per client, and with three hundred clients he should have already received $150,000. He had not. Bintz had passed along about a third of that, but seemed disinclined to discuss the rest. He was a very busy lawyer and hard to get on the phone. Surely, he would come through as promised.

F. Clyde gulped his drink as Bintz's declaration rattled around the room.

Bintz continued. "We're not taking peanuts and going home," he threatened. "At some point in these negotiations, and the sooner the better, I want my clients' cases on the table."

"Tomorrow morning at nine," Judge Rosenthal suddenly barked. "As for now, we are adjourned."

"A Pathetic Campaign" was the tide of the lead editorial in Sunday's Clarion-Ledger out of Jackson. Using a page out of Nat Lester's report, the editors damned the Ron Fisk campaign for its sleazy advertising. They accused Fisk of taking millions from big business and using it to mislead the public. His ads were filled with half-truths and statements taken wholly out of context. Fear was his weapon-fear of homosexuals, fear of gun control, fear of sexual predators. He was condemned for labeling Sheila McCarthy a "liberal" when in fact her body of work, which the editrtrs had studied, could only be considered quite moderate. They blasted Fisk for promising to vote this way or that on cases he had yet to review as a member of the court.

The editorial also decried the entire process. So much money was being raised and spent, by both candidates, that fair and unbiased decision making was in jeopardy.

How could Sheila McCarthy, who had so far received over $1.5 million from trial lawyers, be expected to ignore this money when those same lawyers appeared before the supreme court?

It finished with a call to abolish judicial elections and have the judges appointed based on merit by a nonpartisan panel.

The Sun Herald from Biloxi was even nastier. It accused the Fisk campaign of outright deceit and used the Darrel Sackett mailing as its prime example. Sackett was dead, not loose and on the prowl. He'd been dead for four years, something Nat Lester had learned with a couple of quick phone calls.

The Hattiesburg American challenged the Fisk campaign to retract its negative and misleading ads and to disclose, before Election Day, its contributions from big donors outside the state. It urged both candidates to clean up the race and honor the dignity of the supreme court.

On page 3 of section A of the New York Times, Gilbert's expose ran with photos of Meyerchec and Spano, as well as Fisk and McCarthy.

It covered the race in general, then focused on the gay marriage issue created and injected into the race by the two men from Illinois. Gilbert did a thorough job of accumulating evidence that the two men were longtime residents of Chicago and had virtually no ties to

Mississippi. He did not speculate that they were being used by conservative political operatives to sabotage McCarthy. He didn't have to. The punch line was delivered in the final paragraph. Nat Lester was quoted as saying:

"These guys are a couple of stooges being used by Ron Fisk and his backers to create an issue that does not exist. Their goal is to fire up the right-wing Christians and march them down to the polls."

Ron and Doreen Fisk were at the kitchen table, ignoring their early coffee, rereading the Jackson editorial, and fuming. The campaign had gone so smoothly. They were ahead in all the polls. Nine days to go and they could see the victory Why, then, was Ron suddenly being described as "deceitful" and "dishonest" by the state's largest newspaper?

It was a painful, humiliating slap, one that they had no idea was coming. And it was certainly not deserved. They were honest, upstanding, clean-cut Christian people.

Why this?

The phone rang and Ron grabbed it. Tony's tired voice said, "Have you seen the Jackson paper?"

"Yes, we're looking at it now."

"Have you seen the one from Hattiesburg and the Sun Herald?"

"No. Why?"

"Do you read the New York Times?"

"No."

"Check them out online. Call me in an hour."

"Is it bad?"

"Yes."

They read and fumed for another hour, then decided to skip church. Ron felt betrayed and embarrassed and was in no mood to leave the house. According to the latest numbers from his pollster in Atlanta, he had a comfortable lead. Now, though, he felt defeat was certain.

No candidate could survive such a thrashing. He blamed the liberal press.

He blamed Tony Zachary and those who controlled the campaign. And he blamed himself for being so naive. Why did he place so much trust in people he barely knew?

Doreen assured him it was not his fault. He had thrown himself so completely into the campaigning that he'd had little time to watch everything else. Any campaign is chaotic. No one can monitor the actions of all the workers and volunteers.

Ron unloaded on Tony during a lengthy and tense phone conversation. "You've embarrassed me," Ron said. "You've humiliated me and my family to the point that I really don't want to leave the house. I'm thinking about quitting."

"You can't quit, Ron, you have too much invested," Tony replied, trying to control his panic and reassure his boy.

"That's the problem, Tony. I've allowed you guys to generate too much cash, and you cannot handle it. Stop all television ads right now."

"That's impossible, Ron. They're already in the pipeline."

"So I'm not in control of my own campaign, is that what you're telling me, Tony?"

"It's not that simple."

"I'm not leaving the house, Tony. Pull all the ads right now. Stop everything, and I'm calling the editors of these newspapers. I'm admitting my mistakes."

"Ron, come on."

"I'm the boss, Tony, it's my campaign."

"Yes, and you've got the race won. Don't screw it up with only nine days to go."

"Did you know that Darrel Sackett was dead?"

"Well, I really can't-"

"Answer the question, Tony. Did you know he was dead?"

"I'm not sure."

"You knew he was dead and you deliberately ran a false ad, didn't you?"

"No, I-"

"You're fired, Tony. You're fired and I quit."

"Don't overreact, Ron. Settle down."

"You're fired."

"I'll be down in an hour."

"You do that, Tony. You get down here as quick as possible, and until then you're fired."

"I'm leaving now. Don't do anything until I get there."

"I'm calling the editors right now."

"Don't do that, Ron. Please. Wait until I get there."

The lawyers had little time for newspapers on Sunday morning. By eight o'clock they were gathering at the hotel for what would surely be the most important day yet.

There had been no indication from Jared Kurtin as to how long he might negotiate before heading back to Atlanta, but it was assumed that round one would be over on Sunday afternoon. Other than the $30 million suggestion made by Sterling Bintz the evening before, there had been no talk of money. That had to change on Sunday. Wes and Mary Grace were determined to leave that day with a general idea of how much the Class One and Class Two cases were worth.

By 8:30 all the plaintiffs' lawyers were in place, most of them huddled in serious conversations, all of them ignoring Sterling Bintz, who in turn ignored them. His entourage was still intact. He was not speaking to the other class action lawyer from Melbourne Beach. Judge Rosenthal arrived at 8:45 and commented on the absence of everyone on the defense side. The trial lawyers finally noticed this. There was not a soul sitting opposite them. Wes punched in the number of Jared Kurtin's cell phone, but listened to his recording.

"We did agree on 9:00 a.m., didn't we?" asked Rosenthal, five minutes before the hour. It was unanimously agreed that nine was the magic hour. They waited, and time suddenly moved much slower.

At 9:02, Frank Sully, local counsel for Krane, walked into the room and said, somewhat sheepishly, almost in embarrassment, "My client has decided to recess these negotiations until further notice. I'm very sorry for the inconvenience."

"Where's Jared Kurtin?" Judge Rosenthal demanded.

"He's flying back to Atlanta right now."

"When did your client make this decision?"

"I don't know. I was informed about an hour ago. I'm very sorry, Judge. I apologize to everyone here."

The room seemed to tilt as one side sank under the weight of this sudden turn of events. Lawyers giddy in anticipation of finally slicing up the pie dropped their pens and pencils and gaped at one another in shock. Great gasps of air were discharged. Curses were mumbled just loud enough to be heard. Shoulders sagged. They wanted to throw something at Sully, but he was just the local and they had learned a long time ago that he had no clout.

F. Clyde Hardin wiped sweat from his wet face and tried valiantly not to throw up.

There was a sudden rush to leave, to clear out. It was maddening to sit there and stare at the empty chairs, chairs once occupied by men who just might have made them rich. The trial lawyers quickly gathered stacks of papers, restuffed their briefcases, and offered brusque goodbyes.

Wes and Mary Grace said nothing as they drove to their apartment.