The King of Torts

The King of Torts Page 16

The office dress code had rapidly evolved into an anything-goes style. The tone was set by the boss who leaned toward jeans and expensive T-shirts, with a sports coat nearby in case he went to lunch. He had designer suits for meetings and court appearances, but for the moment both of those were rare events since the firm had no clients and no cases. Everyone had upgraded their wardrobes, much to his satisfaction.

They met late Monday morning in the conference room - Paulette, Rodney, and a rather rough-looking Jonah. Though she had acquired considerable clout in the short history of the firm, Miss Glick was still just a secretary/receptionist.

"Folks, we have work to do," Clay began the meeting. He introduced them to Dyloft, and relying on Pace's concise summaries, gave a description and history of the drug. From memory, he gave the quick and dirty review of Ackerman Labs - sales, profits, cash, competitors, other legal problems. Then the good stuff - the disastrous side effects of Dyloft, the bladder tumors, and the company's knowledge of its problems.

"As of today, no lawsuit has been filed. But we're about to change that. On July the second, we start the war by filing a class action here in D.C. on behalf of all patients harmed by the drug. It will create chaos, and we'll be right in the middle of it."

"Do we have any of these clients?" Paulette asked.

"Not yet. But we have names and addresses. We start signing them up today. We'll develop a plan for gathering clients, then you and Rodney will be in charge of implementing it." Though he had reservations about television advertising, he had convinced himself flying home from New Orleans that there was no viable alternative. Once he filed suit and exposed the drug, those vultures he'd just met in the Circle of Barristers would swarm to find the clients. The only effective way to quickly reach large numbers of Dyloft patients was by television ads.

He explained this to his firm and said, "It'll cost at least two million bucks."

"This firm has two million bucks?" Jonah blurted, saying what everyone else was thinking.

"It does. We start working on the ads today."

"You're not doing the acting, are you, boss?" Jonah asked, almost pleading. "Please." Like all cities, D.C. had been flooded with early-morning and late-night commercials pleading with the injured to call lawyer so-and-so who was ready to kick ass and charged nothing for the initial consultation. Often the lawyers themselves appeared in the ads, usually with embarrassing results.

Paulette also had a frightened look and was slightly shaking her head no.

"Of course not. It'll be done by professionals."

"How many clients are we looking at?" Rodney asked.

"Thousands. It's hard to say."

Rodney pointed at each of them, slowly counting to four. "According to my numbers," he said, "there are four of us."

"We're adding more. Jonah is in charge of expansion. We'll lease some space out in the suburbs and fill it with paralegals. They'll work the phones and organize the files."

"Where does one find paralegals?" Jonah asked.

"In the employment sections of the bar journals. Start working on the ads. And you've got a meeting this afternoon with a real estate agent out in Manassas. We'll need about five thousand square feet, nothing fancy, but plenty of wiring for phones and a complete computer system, which, as we know, is your specialty. Lease it, wire it, staff it, then organize it. The sooner the better."

"Yes sir."

"How much is a Dyloft case worth?" Paulette asked.

"As much as Ackerman Labs will pay. It could range from as little as ten thousand to as much as fifty, depending on several factors, not the least of which is the extent of the damage to the bladder."

Paulette was working with some numbers on a legal pad. "And how many cases might we get?"

"It's impossible to say."

"How about a guess?"

"I don't know. Several thousand."

"Okay, let's say that's three thousand cases. Three thousand cases times the minimum of ten thousand dollars comes to thirty million, right?" She said this slowly, scribbling the entire time.

"That's right."

"And how much are the attorneys' fees?" she asked. The other three were watching Clay very closely.

"One third," he said.

"That's ten million in fees," she said slowly. "All to this firm?"

"Yes. And we're going to share the fees."

The word share echoed around the room for a few seconds. Jonah and Rodney glanced at Paulette, as if to say, "Go ahead, finish it off."

"Share, in what way?" she asked, very deliberately.

"Ten percent to each of you."

"So in my hypothetical, my share of the fees would be one million?"

"That's correct."

"And, uh, same for me?" Rodney asked.

"Same for you. Same for Jonah. And, I must say, I think that's on the low side."

Low side or not, they absorbed the numbers in muted silence for what seemed like a very long time, each instinctively spending some of the money. For Rodney, it meant college for the kids. For Paulette, it meant a divorce from the Greek she'd seen once in the past year. For Jonah, it meant life on a sailboat.

"You're serious, aren't you, Clay?" Jonah asked.

"Dead serious. If we work our butts off for the next year, there's a good chance we'll have the option of an early retirement."

"Who told you about this Dyloft?" Rodney asked.

"I can never answer that question, Rodney. Sorry. Just trust me." And Clay hoped at that moment that his blind trust in Max Pace was not foolish.

"I almost forgot about Paris," Paulette said.

"Don't. We'll be there next week."

Jonah jumped to his feet and grabbed his legal pad. "What's that Realtor's name?" he asked.

On the third floor of his town house, Clay had put together a small office, not that he planned to do much work there but he needed a place for his papers. The desk was an old butcher block he'd found in an antique store in Fredericksburg, just down the road. It consumed one wall and was long enough for a phone, a fax, and a laptop.

It was there that he made his first tentative entry into the world of mass tort solicitation. He delayed the call until almost 9 P.M., an hour at which some folks went to bed, especially older ones and perhaps those afflicted with arthritis. A stiff drink for courage, and he punched the numbers.

The phone was answered on the other end by a woman, perhaps Mrs. Ted Worley of Upper Marlboro, Maryland. Clay introduced himself pleasantly, identified himself as a lawyer, as if they called all the time and there was nothing to be alarmed about, and asked to speak to Mr. Worley.

"He's watching the Orioles," she said. Evidently Ted didn't take calls when the Orioles were playing.

"Yes - would it be possible to speak to him for a moment?"

"You say you're a lawyer?"

"Yes ma'am, from right here in D.C."

"What's he done now?"

"Oh, nothing, nothing at all. I'd like to talk to him about his arthritis." The first impulse to hang up and run came and went. Clay thanked God no one was watching or listening. Think of the money, he kept telling himself. Think of the fees.

"His arthritis? Thought you were a lawyer, not a doctor."

"Yes ma'am, I'm a lawyer, and I have reason to believe he's taking a dangerous drug for his arthritis. If you don't mind, I just need him for a second."

Voices in the background as she yelled something to Ted who yelled something back. Finally, he took the phone. "Who is this?" he demanded, and Clay quickly introduced himself.

"What's the score?" Clay asked.

"Three-one Red Sox in the fifth. Do I know you?" Mr. Worley was seventy years old.

"No sir. I'm an attorney here in D.C., and I specialize in lawsuits involving defective drugs. I sue drug companies all the time when they put out harmful products."

"Okay, what do you want?"

"Through our Internet sources we found your name as a potential user of an arthritis drug called Dyloft. Can you tell me if you use this drug?"

"Maybe I don't want to tell you what prescriptions I'm taking."

A perfectly valid point, one Clay thought he was ready for.

"Of course you don't have to, Mr. Worley. But the only way to determine if you're entitled to a settlement is to tell me if you're using the drug."

"That damned Internet," Mr. Worley mumbled, then had a quick conversation with his wife who, evidently, was somewhere near the phone.

"What kind of settlement?" he asked.

"Let's talk about that in a minute. I need to know if you're using Dyloft. If not, then you're a lucky man."

"Well, uh, I guess it's not a secret, is it?"

"No sir." Of course it was a secret. Why should a person's medical history be anything but confidential? The little fibs were necessary, Clay kept telling himself. Look at the big picture. Mr. Worley and thousands like him might never know they're using a bad product unless they were told. Ackerman Labs certainly hadn't come clean. That was Clay's job.

"Yeah, I take Dyloft."

"For how long?"

"Maybe a year. It works great."

"Any side effects?"

"Such as?"

"Blood in your urine. A burning sensation when you urinate." Clay was resigned to the fact that he would be discussing bladders and urine with many people in the months to come. There was simply no way around it.

The things they don't prepare you for in law school.

"No. Why?"

"We have some preliminary research that Ackerman Labs, the company that makes Dyloft, is trying to cover up. The drug has been found to cause bladder tumors in some of the folks who use it."

And so Mr. Ted Worley, who just moments earlier had been minding his own business and watching his beloved Orioles, would now spend the rest of that night and most of the next week worrying about tumors growing wild in his bladder. Clay felt rotten and wanted to apologize, but, again, he told himself that it had to be done. How else might Mr. Worley learn the truth? If the poor man indeed had the tumors, wouldn't he want to know about them?

Holding the phone with one hand and rubbing his side with the other, Mr. Worley said, "You know, come to think of it, I do remember a burning sensation a couple of days ago."

"What are you talking about?" Clay heard Mrs. Worley say in the background.

"If you don't mind," Mr. Worley said to Mrs. Worley.

Clay charged in before the bickering got out of hand. "My firm represents a lot of Dyloft users. I think you should consider getting tested."

"What kind of test?"

"It's a urinalysis. We have a doctor who can do it tomorrow. Won't cost you a dime."

"What if he finds something wrong?"

"Then we can discuss your options. When the news of Dyloft comes out, in just a few days, there will be many lawsuits. My firm will be a leader in the attack on Ackerman Labs. I'd like to have you as a client."

"Maybe I should talk to my doctor."

"You can certainly do that, Mr. Worley. But he may have some liability too. He prescribed the drug. It might be best if you get an unbiased opinion."

"Hang on." Mr. Worley covered the receiver with his hand and had a contentious chat with his wife. When he returned he said, "I don't believe in suing doctors."

"Nor do I. I specialize in going after the big corporations that harm people."

"Should I stop taking the drug?"

"Let's do the test first. Dyloft will likely be pulled off the market sometime this summer."

"Where do I do the test?"

"The doctor is in Chevy Chase. Can you go tomorrow?"

"Yeah, sure, why not? Seems silly to wait, doesn't it?"

"Yes, it does." Clay gave him the name and address of a doctor Max Pace had located. The $80 exam would cost Clay $300 a pop, but it was simply the price of doing business.

When the details were finished, Clay apologized for the intrusion, thanked him for his time, and left him to suffer while he watched the rest of the game. Only when he hung up did Clay feel the beads of moisture just above his eyebrows. Soliciting cases by phone? What kind of lawyer had he become?

A rich one, he kept telling himself.

This would require thick skin, something Clay did not possess and was not certain he could develop.

Two days later, Clay pulled into the Worleys' driveway in Upper Marlboro and met them at the front door. The urinalysis, which included a cytological exam, revealed abnormal cells in the urine, a clear sign, according to Max Pace and his extensive and ill-gotten medical research, that there were tumors in the bladder. Mr. Worley had been referred to a urologist whom he would see the following week. The examination and removal of the tumors would be by cystoscopic surgery, running a tiny scope and a knife in a tube through the penis into the bladder, and while this was purported to be fairly routine, Mr. Worley saw nothing ordinary about it. He was worried sick. Mrs. Worley said he hadn't slept the last two nights, nor had she.

As much as he wanted to, Clay could not tell them that the tumors were probably benign. Better to let the doctors do that after the surgery.

Over instant coffee with powdered creamer, Clay explained the contract for his services and answered their questions about the litigation. When Ted Worley signed at the bottom, he became the first Dyloft plaintiff in the country.

And for a while it seemed as if he might be the only one. Working the phones nonstop, Clay succeeded in convincing eleven people to show up for the urinalysis. All eleven tested negative. "Keep pushing," Max Pace urged. About a third of the people either hung up or refused to believe Clay was serious about what he was saying.

He, Paulette, and Rodney divided their lists between black and white prospective clients. Evidently blacks were not as suspicious as whites because they were easier to persuade to go see the doctor. Or perhaps they enjoyed the medical attention. Or maybe, as Paulette suggested more than once, she had the better gift of gab.

By the end of the week, Clay had signed up three clients who tested positive for abnormal cells. Rodney and Paulette, working as a team, had seven more under contract.

The Dyloft class action was ready for war.