The King of Torts

The King of Torts Page 28

The headline in the Daily Profit screamed:

A Lousy Hundred Million ain't Enough

And things got worse after that. The story began with a quick paragraph about the "frivolous" lawsuit filed yesterday in D.C. against Goffman, one of America's finest consumer products companies. Its wonderful drug Maxatil had helped countless women through the nightmare of menopause, but now it was under attack by the same sharks that had bankrupted A.H. Robins, Johns Manville, Owens-Illinois, and practically the entire American asbestos industry.

The story hit its stride when it went after the lead shark, a brash young D.C. hotshot named Clay Carter who, according to their sources, had never tried a civil lawsuit before a jury. Nonetheless, he had earned in excess of $100 million last year in the mass tort lottery. Evidently, the reporter had a trusted stable of ready sources. The first was an executive with the U.S. Chamber of Commerce, who railed against lawsuits in general and trial lawyers in particular. "The Clay Carters of the world will only inspire others to file these contrived suits. There are a million lawyers in this country. If an unknown like Mr. Carter can earn so much so fast, then no decent company is safe." A law professor at a school Clay had never heard of said, "These guys are ruthless. Their greed is enormous, and because of it they will eventually choke the golden goose." A windy Congressman from Connecticut seized the moment to call for immediate passage of a class-action reform bill he'd authored. Committee hearings would take place, and Mr. Carter just might be subpoenaed to testify before Congress.

Unnamed sources within Goffman said the company would defend itself vigorously, that it would not yield to class-action blackmail, and that it would, at the appropriate time, demand to be reimbursed for its attorneys' fees and litigation costs due to the outrageous and frivolous nature of the claims.

The company's stock had declined 11 percent, a loss of investors' equity of about $2 billion, all because of the bogus case. "Why don't the shareholders of Goffman sue guys like Clay Carter?" asked the professor from the unknown law school.

It was difficult material to read, but Clay certainly couldn't ignore it. An editorial in Investment Times called upon Congress to take a serious look at litigation reform. It too made much of the fact that young Mr. Carter had made a large fortune in less than a year. He was nothing but a "bully" whose ill-gotten gains would only inspire other street hustlers to sue everyone in sight.

The nickname "bully" stuck for a few days around the office, temporarily replacing "The King." Clay smiled and acted as if it was an honor. "A year ago no one was talking about me," he boasted. "Now, they can't get enough." But behind his locked office door he was uneasy and fretted about the haste with which he had sued Goffman. The fact that his mass tort pals were not piling on was distressing. The bad press was gnawing at him. There had not been a single defender so far. Pace had disappeared, which was not unusual, but not exactly what Clay needed at the moment.

Six days after filing the lawsuit, Pace checked in from California. "Tomorrow is the big day," he said.

"I need some good news," Clay said. "The government report?"

"Can't say," Pace replied. "And no more phone calls. Someone might be listening. I'll explain when I'm in town. Later."

Someone might be listening? On which end - Clay's or Pace's? And who, please? There went another night's sleep.

The study by the American Council on Aging was originally designed to test twenty thousand women between the ages of forty-five and seventy-five over a seven-year period. The group was equally divided, with one getting a daily dose of Maxatil, the other getting a placebo. But after four years, researchers abandoned the project because the results were so bad. They found an increase in the risk of breast cancer, heart disease, and stroke in a disturbing percentage of the participants. For those who took the drug, the risk of breast cancer jumped 33 percent, heart attacks 21 percent, and strokes 20 percent.

The study predicted that for every hundred thousand women using Maxatil four years or more, four hundred would develop breast cancer, three hundred would suffer some degree of heart disease, and there would be three hundred moderate to severe strokes.

The following morning the report was published. Goffman's stock got hammered again, dropping to $51 a share on the news. Clay and Mulrooney spent the afternoon monitoring Web sites and cable channels, waiting for some response from the company, but there was none. The business reporters who'd scalded Clay when he filed the suit did not call for his reaction to the study. They briefly mentioned the story the following day. The Post ran a rather dry summary of the release of the report, but Clay's name was not used. He felt vindicated, but ignored. He had so much to say in response to his critics, but no one wanted to listen.

His anxiety was relieved by the deluge of phone calls from Maxatil patients.

The Gulfstream finally had to escape. Eight days in the hangar, and Clay was itching to travel. He loaded up Ridley and headed west, first to Las Vegas, though no one around the office knew he was stopping there. It was a business trip, and a very important one.

He had an appointment with the great Dale Mooneyham in Tucson to talk about Maxatil.

They spent two nights in Vegas, in a hotel with real cheetahs and panthers on display in a fake game preserve outside the front entrance. Clay lost $30,000 playing blackjack and Ridley spent $25,000 on clothes in the designer boutiques packed around the hotel's atrium. The Gulfstream fled to Tucson.

Mott & Mooneyham had converted an old train station downtown into a pleasantly shabby suite of offices. The lobby was the old waiting area, a long vaulted room where two secretaries were tucked away in corners at opposite ends, as if they had to be separated to keep the peace. On closer inspection, they seemed incapable of fighting; both were in their seventies and lost in their own worlds. It was a museum of sorts, a collection of products that Dale Mooneyham had taken to court and shown to juries. In one tall cabinet was a gas water heater, and the bronze placard above the door gave the name of the case and the amount of the verdict - $4.5 million, October 3, 1988, Stone County, Arkansas. There was a damaged three-wheeler that had cost Honda $3 million in California, and a cheap rifle that had so enraged a Texas jury that it gave the plaintiff $11 million. Dozens of products - a lawn mower, a burned-out frame of a Toyota Celica, a drill press, a defective life vest, a crumpled ladder. And on the walls were the press clippings and large photos of the great man handing over checks to his injured clients. Clay, alone because Ridley was shopping, browsed from display to display, entranced with the conquests and unaware that he had been kept waiting for almost an hour.

As assistant finally fetched him and led him down a wide hall lined with spacious offices. The walls were covered with framed blowups of newspaper headlines and stories, all telling of thrilling courtroom victories. Whoever Mott was, he was certainly an insignificant player. The letterhead listed only four other lawyers.

Dale Mooneyham was seated behind his desk and only half-stood when Clay entered, unannounced and feeling very much like a vagrant. The handshake was cold and obligatory. He was not welcome there, and he was confused by his reception. Mooneyham was at least seventy, a big-framed man with a thick chest and large stomach. Blue jeans, gaudy red boots, a wrinkled western shirt, and certainly no necktie. He'd been dying his gray hair black, but was in need of another treatment because the sides were white, the top dark and slicked back with too much grease. Long wide face, the puffy eyes of a drinker.

"Nice office, really unique," Clay said, trying to thaw things a bit.

"Bought it forty years ago," Mooneyham said. "For five thousand bucks."

"Quite a collection of memorabilia out there."

"I've done all right, son. I haven't lost a jury trial in twenty-one years. I suppose I'm due for a loss, at least that's what my opponents keep saying."

Clay glanced around and tried to relax in the low, ancient leather chair. The office was at least five times as big as his, with the heads of stuffed game covering the walls and watching his every move. There were no phones ringing, no faxes clattering in the distance. There was not a computer in Mooneyham's office.

"I guess I'm here to talk about Maxatil," Clay said, sensing that he might be evicted at any moment.

Hesitation, no movement except for a casual readjusting of the dark little eyes. "It's a bad drug," he said simply, as if Clay had no idea. "I filed suit about five months ago up in Flagstaff. We have a fast-track here in Arizona, known as the rocket-docket, so we should have us a trial by early fall. Unlike you, I don't file suit until my case is thoroughly researched and prepared, and I'm ready to go to trial. Do it that way and the other side never catches up. I've written a book about pre-lawsuit preparation. Still read it all the time. You should too."

Should I just leave now? Clay wanted to ask. "What about your client?"

"I just have one. Class actions are a fraud, at least the way you and your pals handle them. Mass torts are a scam, a consumer rip-off, a lottery driven by greed that will one day harm all of us. Unbridled greed will swing the pendulum to the other side. Reforms will take place, and they'll be severe. You boys will be out of business but you won't care because you'll have the money. The people who'll get harmed are all the future plaintiffs out there, all the little people who won't be able to sue for bad products because you boys have screwed up the law."

"I asked about your client."

"Sixty-six-year-old white female, nonsmoker, took Maxatil for four years. I met her a year ago. We take our time around here, do our homework before we start shooting."

Clay had intended to talk about big things, big ideas, like how many potential Maxatil clients were out there, and what did Mooneyham expect from Goffman, and what types of experts was he planning to use at trial. Instead, he was looking for a quick exit. "You're not expecting a settlement?" he asked, managing to sound somewhat engaged.

"I don't settle, son. My clients know that up front. I take three cases a year, all carefully selected by me. I like different cases, products and theories I've never tried before. Courthouses I've never seen. I get my choice because lawyers call me every day. And I always go to trial. I know when I take a case it will not be settled. That takes away a major distraction. I tell the defendant up front - 'Let's not waste our time even thinking about a settlement, okay?'" He finally moved, just a slight shifting of weight to one side, as if he had a bad back or something. "That's good news for you, son. I'll get first shot at Goffman, and if the jury sees things my way then they'll give my client a nice verdict. All you copycats can fall in line, jump on the wagon, advertise for more clients, then settle them cheap and rake yours off the top. I'll make you another fortune."

"I'd like to go to trial," Clay said.

"If what I read is correct, you don't know where the courthouse is."

"I can find it."

A shrug. "You probably won't have to. When I get finished with Goffman they'll run from every jury."

"I don't have to settle."

"But you will. You'll have thousands of cases. You won't have the guts to go to trial."

And with that he slowly stood, reached out a limp hand, and said, "I have work to do."

Clay hustled from the office, down the hall, through the museum/lobby, and outside into the fierce desert heat.

Bad luck in Vegas and a disaster in Tucson, but the trip was salvaged somewhere over Oklahoma, at 42,000 feet. Ridley was asleep on the sofa, under the covers and dead to the world, when the fax machine began humming. Clay walked to the rear of the dark cabin and retrieved a one-page transmission. It was from Oscar Mulrooney, at the office. He'd pulled a story off the Internet - the annual rankings of firms and fees from American Attorney magazine. Making the list of the twenty highest-paid lawyers in the country was Mr. Clay Carter, coming in at an impressive number eight, estimated earnings of $110 million for the previous year. There was even a small photo of Clay with the caption: "Rookie of the Year."

Not a bad guess, Clay thought to himself. Unfortunately, $30 million of his Dyloft settlement had been paid in bonuses to Paulette, Jonah, and Rodney, rewards that at first had seemed generous but in hindsight were downright foolish. Never again. The good folks at American Attorney wouldn't know about such bighearted bonuses. Not that Clay was complaining. No other lawyer from the D.C. area was in the top twenty.

Number one was an Amarillo legend named Jock Ramsey who had negotiated a toxic-waste-dump case involving several oil and chemical companies. The case had dragged on for nine years. Ramsey's cut was estimated at $450 million. A tobacco lawyer from Palm Beach was thought to have earned $400 million. Another one from New York was number three at $325 million. Patton French landed at number four, which no doubt irritated him greatly.

Sitting in the privacy of his Gulfstream, staring at the magazine article featuring his photo, Clay told himself again that it was all a dream. There were 76,000 lawyers in D.C., and he was number one. A year earlier he had never heard of Tarvan or Dyloft or Maxatil, nor had he paid much attention to mass tort litigation. A year earlier his biggest dream was fleeing OPD and landing a job with a respectable firm, one that would pay him enough for some new suits and a better car. His name on a letterhead would impress Rebecca and keep her parents at bay. A nicer office with a higher class of clients would allow him to stop dodging his pals from law school. Such modest dreams.

He decided he would not show the article to Ridley. The woman was warming up to the money and becoming more interested in jewelry and travel. She'd never been to Italy, and she'd dropped hints about Rome and Florence.

Everybody in Washington would be talking about Clay's name on the top twenty list. He thought of his friends and his rivals, his law school pals and the old gang at OPD. Mostly, though, he thought of Rebecca.