The King of Torts

33

With the Orioles six runs down to the Devil Rays — of all teams — Mr. Ted Worley awoke from a rare nap and debated whether to sneak to the toilet then or wait until the seventh inning. He’d been asleep for an hour, which was unusual for him because he napped every afternoon at precisely two. The Orioles were dull but they had never put him to sleep.

But after the Dyloft nightmare he didn’t push the limits of his bladder. Not too many liquids, no beer at all. And no pressure on the plumbing down there; if he needed to go, then he did not hesitate. And what if he missed a few pitches? He walked to the small guest bathroom down the hall, next to the bedroom where Mrs. Worley was perched in her rocker doing the needlepoint that consumed most of her life. He closed the door behind him, unzipped his pants, and began to urinate. A very slight burning sensation caused him to glance down, and when he did he almost fainted.

His urine was the color of rust — a dark reddish liquid. He gasped and braced himself with one hand against the wall. When he finished, he didn’t flush; instead he sat on the toilet seat for a few minutes trying to collect himself.

“What are you doing in there?” his wife yelled.

“None of your damned business,” he snapped back.

“Are you okay, Ted?”

“I’m fine.”

But he wasn’t fine. He lifted the lid, took another look at the deadly calling card his body had just discharged, finally flushed, and walked back to the den. The Devil Rays were now up by eight, but the game had lost whatever importance it had in the first inning. Twenty minutes later, after three glasses of water, he sneaked down to the basement and urinated in a small bathroom, as far away as possible from his wife.

It was blood, he decided. The tumors were back, and whatever form they now had they were far more serious than before.

He told his wife the truth the next morning, over toast and jam. He preferred to keep it from her as long as possible, but they were so joined at the hip that secrets, especially any related to health, were difficult to keep. She took charge immediately, calling his urologist, barking at the appointment secretary, lining up a visit just after lunch. It was an emergency and tomorrow just wasn’t acceptable.

Four days later, malignant tumors were found in Mr. Worley’s kidneys. During five hours of surgery, the doctors removed all the tumors they could find.

The head of urology was closely monitoring the patient. A colleague at a hospital in Kansas City had reported an identical case a month earlier; a post-Dyloft appearance of kidney tumors. The patient in Kansas City was now undergoing chemotherapy and fading fast.

The same could be expected for Mr. Worley, though the oncologist was much more cautious in his first postop visit. Mrs. Worley was doing her needlepoint while complaining about the quality of the hospital’s food, which she did not expect to be delicious but why couldn’t it at least be warm? At these prices? Mr. Worley hid under the sheets of his bed and watched the television. He graciously muted the set when the oncologist arrived, though he was too sad and depressed to engage in conversation.

He would be discharged in a week or so, and as soon as he was strong enough they would begin aggressively treating his cancer. Mr. Worley was crying when the meeting was over.

During a follow-up conversation with the colleague in Kansas City, the head of urology learned of yet another case. All three patients had been Group One Dyloft plaintiffs. Now they were dying. A lawyer’s name was mentioned. The Kansas City patient was represented by a small firm in New York City.

It was a rare and rewarding experience for a doctor to be able to pass along the name of one lawyer who would sue another, and the head of urology was determined to enjoy the moment. He entered Mr. Worley’s room, introduced himself because they had not met, and explained his role in the treatment. Mr. Worley was sick of doctors and, if not for the tubes crisscrossing his ravaged body, he would have gathered his things and discharged himself. The conversation soon made its way to Dyloft, then the settlement, then to the fertile grounds of the legal profession. This fired up the old man; his face had some color, his eyes were glaring.

The settlement, meager as it was, had been completed against his wishes. A paltry $43,000, with the lawyer taking the rest! He had called and called and finally got some young smart mouth who told him to check the fine print in the pile of documents he’d signed. There was a Preauthorization clause that allowed the attorney to settle if the money exceeded a very low threshold. Mr. Worley had fired off two poisonous letters to Mr. Clay Carter, neither of which provoked a response.

“I was against the settlement,” Mr. Worley kept saying.

“I guess it’s too late now,” Mrs. Worley kept adding.

“Maybe not,” the doctor said. He told them about the Kansas City patient, a man very similar to Ted Worley. “He’s hired a lawyer to go after his lawyer,” the doctor said with great satisfaction.

“I’ve had a butt full of lawyers,” Mr. Worley said. Doctors too, for that matter, but he held his tongue.

“Do you have his phone number?” Mrs. Worley asked. She was thinking much more clearly than her husband. Sadly, she was also looking down the road a year or two when Ted would be gone.

The urologist just happened to have the number.

The only thing mass tort lawyers feared was one of their own. A predator. A traitor who followed behind fixing their mistakes. A subspecialty had evolved in which a few very good and very nasty trial lawyers pursued their brethren for bad settlements. Helen Warshaw was writing the training manual.

For a breed that professed so much love for the courtroom, tort lawyers fell limp with the visual of themselves sitting at the defense table, looking sheepishly at the jurors as their personal finances were kicked about in open court. It was Helen Warshaw’s calling to get them there.

However, it rarely happened. Their cries of Sue the World! and We Love Juries! evidently applied to everyone else. When confronted with proof of liability, no one settled faster than a mass tort lawyer. No one, not even a guilty doctor, dodged the courtroom with as much energy as a TV/billboard lawyer caught scamming a settlement.

Warshaw had four Dyloft cases in her New York office and leads on three more when she received the call from Mrs. Worley. Her small firm had a file on Clay Carter and a much thicker one on Patton French. She monitored the top twenty or so mass tort firms in the country and dozens of the biggest class actions. She had plenty of clients and lots of fees, but nothing had excited her as much as the Dyloft fiasco.

A few minutes on the phone with Mrs. Worley, and Helen knew exactly what had happened. “I’ll be there by five o’clock,” she said.

“Today?”

“Yes. This afternoon.”

She caught the shuttle to Dulles. She did not have her own jet, for two very good reasons. First, she was prudent with her money and didn’t believe in such waste. Second, if she ever got sued, she did not want the jury to hear about a jet. The year before, in the only case she’d managed to get to trial, she had shown the jury large color photos of the defendant lawyer’s jets, both of them, inside and out. Along with photos of his yacht, Aspen home, etcetera. The jury had been very impressed. Twenty million in punitive damages.

She rented a car — no limo — and found the hospital in Bethesda. Mrs. Worley had collected their papers, which Warshaw spent an hour with while Mr. Worley took a nap. When he woke up, he did not want to talk. He was wary of lawyers, especially the pushy New York female variety. However, his wife had plenty of time and found it easier to confide in a woman. The two went to the lounge for coffee and a long discussion.

The principal culprit was and always would be Ackerman Labs. They made a bad drug, rushed the approval process, advertised it heavily, failed to adequately test it, failed to fully disclose everything they knew about it. Now the world was learning that Dyloft was even more insidious than first thought. Ms. Warshaw had already secured convincing medical proof that recurring tumors were linked to Dyloft.

The second culprit was the doctor who prescribed the drug, though his culpability was slight. He relied on Ackerman Labs. The drug worked wonders. And so on.

Unfortunately, the first two culprits had been fully and completely released from all liability when Mr. Worley settled his claim in the Biloxi class action. Though Mr. Worley’s arthritis doctor had not been sued, the global release covered him as well.

“But Ted didn’t want to settle,” Mrs. Worley said more than once.

Doesn’t matter. He settled. He gave his attorney the power to settle. The attorney did so, and thus became the third culprit. And the last one standing.

A week later, Ms. Warshaw filed a lawsuit against J. Clay Carter, F. Patton French, M. Wesley Saulsberry, and all other known and unknown attorneys who had prematurely settled Dyloft cases. The lead plaintiff was once again Mr. Ted Worley from Upper Marlboro, Maryland, for and on behalf of all injured persons, known and unknown at the time. The lawsuit was filed in United States District Court for the District of Columbia, not too far from the JCC offices.

Borrowing a page from the defendants’ own playbook, Ms. Warshaw faxed copies of her lawsuit to a dozen prominent newspapers fifteen minutes after she filed it.

A brusque and burly process server presented himself to the receptionist at Clay’s office and demanded to see Mr. Carter. “It’s urgent,” he insisted. He was sent down the hall where he had to deal with Miss Glick. She summoned her boss, who reluctantly came from his office and took possession of the paperwork that would ruin his day. Maybe his year.

The reporters were already calling by the time Clay finished reading the class action. Oscar Mulrooney was with him; the door was locked. “I’ve never heard of this,” Clay mumbled, painfully aware that there was so much he didn’t know about the mass tort game.

Nothing wrong with a good ambush, but at least the companies he had sued knew they had trouble brewing. Ackerman Labs knew it had a bad drug before Dyloft hit the market. Hanna Portland Cement Company had people on the ground in Howard County assessing the initial claims. Goffman had already been sued by Dale Mooneyham over Maxatil, and other trial lawyers were circling. But this? Clay had had no idea that Ted Worley was sick again. Not a hint of trouble anywhere in the country. It just wasn’t fair.

Mulrooney was too stunned to speak.

Through the intercom Miss Glick announced, “Clay, there’s a reporter here from the Washington Post.”

“Shoot the bastard,” Clay growled.

“Is that a ‘No’?”

“It’s a ‘Hell no!’ ”

“Tell him Clay’s not here,” Oscar managed to say.

“And call security,” Clay added.

The tragic death of a close friend could not have caused a more somber mood. They talked about spin control — how to respond, and when? Should they quickly put together an aggressive denial to the lawsuit and file it that day? Fax copies to the press? Should Clay talk to the reporters?

Nothing was decided because they could not make a decision. The shoe was on the other foot; this was new territory.

Oscar volunteered to spread the news around the firm, spinning everything in a positive light to keep morale up.

“If I’m wrong, I’ll pay the claim,” Clay said.

“Let’s hope Mr. Worley is the only one from this firm.”

“That’s the big question, Oscar. How many Ted Worleys are out there?”

Sleep was impossible. Ridley was in St. Barth, renovating the villa, and for that Clay was grateful. He was humiliated and embarrassed; at least she didn’t know about it.

His thoughts were on Ted Worley. He was not angry, far from it. Allegations in lawsuits are famously off the mark, but these sounded accurate. His former client would not be claiming to have malignant tumors if they did not actually exist. Mr. Worley’s cancer was caused by a bad drug, not by a bad lawyer. But to hurriedly settle a case for $62,000 when it was ultimately worth millions smacked of malpractice and greed. Who could blame the man for striking back?

Throughout the long night, Clay drowned in self-pity — his badly bruised ego; the utter humiliation among peers, friends, and employees; the delight of his enemies; the dread of tomorrow and the public flogging he would take in the press, with no one to defend him.

At times he was afraid. Could he really lose everything? Was this the beginning of the end? The trial would have enormous jury appeal — for the other side! And how many potential plaintiffs were out there? Each case was worth millions.

Nonsense. With twenty-five thousand Maxatil cases waiting in the wings he could withstand anything.

But all thoughts eventually came back to Mr. Worley, a client who had not been protected by his lawyer. The sense of guilt was so heavy that he felt like calling the man and apologizing. Maybe he would write him a letter. He vividly remembered reading the two he’d received from his former client. He and Jonah had had a good laugh over them.

Shortly after 4 A.M., Clay made the first pot of coffee. At five, he went online and read the Post. No terrorist attacks in the past twenty-four hours. No serial murderers had struck. Congress had gone home. The President was on vacation. A slow news day, so why not put the smiling face of “The King of Torts” on the front page, bottom half? MASS TORT LAWYER SUED BY THE MASSES was the clever headline. The first paragraph read:

The remaining eight paragraphs were no better. A severe case of diarrhea had hit during the night, and Clay raced to the bathroom.

His buddy at The Wall Street Journal weighed in with the heavy artillery. Front page, left side, same hideous sketch of Clay’s smug face. IS THE KING OF TORTS ABOUT TO BE DETHRONED? was the headline. The tone of the article sounded as if Clay should be indicted and imprisoned rather than simply dethroned. Every business trade group in Washington had ready opinions on the subject. Their delight was thinly concealed. How ironic that they were so happy to see yet another lawsuit. The President of the National Trial Lawyers Academy had no comment.

No comment! From the one and only group that never waivered in its support of trial lawyers. The next paragraph explained why. Helen Warshaw was an active member of the New York Trial Lawyers Academy. In fact, her credentials were impressive. A board-certified trial advocate. Law Review editor at Columbia. She was thirty-eight years old, ran marathons for fun, and was described by a former opponent as “brilliant and tenacious.”

A lethal combination, Clay thought as he ran back to the bathroom.

Sitting on the toilet he realized that the lawyers would not take sides in this one. It was a family feud. He could expect no sympathy, no defenders.

An unnamed source put the number of plaintiffs at a dozen. Class certification was expected because a much larger group of plaintiffs was anticipated. “How large?” Clay asked himself as he made more coffee. “How many Worleys are out there?”

Mr. Carter, age thirty-two, was not available for comment. Patton French called the lawsuit “frivolous,” a description he borrowed, according to the article, from no less than eight companies he had sued in the past four years. He ventured further by saying the lawsuit “...smacked of a conspiracy by the tort reforms proponents and their benefactors, the insurance industry.” Perhaps the reporter caught Patton after a few stout vodkas.

A decision had to be made. Because he had a legitimate illness he could hunker down at home and ride out the storm from there. Or he could step into the cruel world and face the music. He really wanted to take some pills and go back to bed and wake up in a week with the nightmare behind him. Better yet, hop on the plane and go see Ridley.

He was at the office by seven, with a game face on, high on coffee, bouncing around the halls bantering and laughing with the early shift, making lame but sporting jokes about other process servers on the way and reporters poking around and subpoenas flying here and there. It was a gutsy, splendid performance, one his firm needed and appreciated.

It continued until mid-morning when Miss Glick stopped it cold by stepping into his open office and saying, “Clay, those two FBI agents are back.”

“Wonderful!” he said, rubbing his hands together as if he might just whip both of them.

Spooner and Lohse appeared with tight smiles and no handshakes. Clay closed the door, gritted his teeth, and told himself to keep performing. But the fatigue hit hard. And the fear.

Lohse would talk this time while Spooner took notes. Evidently, Clay’s picture on the front page had reminded them that he was owed a second visit. The price of fame.

“Any sign of your buddy Pace?” Lohse began.

“No, not a peep.” And it was true. How badly he needed Pace’s counsel in this time of crisis.

“Are you sure?”

“Are you deaf?” Clay shot back. He was perfectly prepared to ask them to leave when the questions got sticky. They were just investigators, not prosecutors. “I said no.”

“We think he was in the city last week.”

“Good for you. I haven’t seen him.”

“You filed suit against Ackerman Labs on July second of last year, correct?”

“Yes.”

“Did you own any stock in the company before you filed the lawsuit?”

“No.”

“Did you sell the stock short, then buy it back at a lower price?”

Of course he had, at the suggestion of his good friend Pace. They knew the answer to the question. They had the data from the transactions, he was sure of that. Since their first visit, he had thoroughly researched securities fraud and insider trading. He was in a gray area, a very pale one, in his opinion, not a good place to be but far from guilty. In retrospect, he should not have dealt in the stock. He wished a thousand times he had not.

“Am I under investigation for something?” he asked.

Spooner started nodding before Lohse said, “Yes.”

“Then this meeting is over. My attorney will be in touch with you.” Clay was on his feet, headed for the door.