The Litigators

CHAPTER 14


Within a week of filing its lawsuit, the firm had a total of eight death cases, a respectable number and one that would certainly make them rich. Because Wally said it so often, it had become the accepted belief that each case meant roughly half a million dollars in net fees to Finley & Figg. His math was shaky and riddled with assumptions that had little basis in reality, at least at such a preliminary stage of the litigation, but the three lawyers and Rochelle began to think in terms of that kind of money. Krayoxx was making news around the country, none of it positive, and its future looked ominous, as far as Varrick Labs was concerned.

The firm had worked so hard to get the cases, it was a shock to realize they could actually lose one. Millie Marino arrived at the office one morning in a foul mood and demanded to see Mr. Figg. She had hired him to probate her husband’s estate, and then she had reluctantly agreed to pursue a Krayoxx claim for his death. In Wally’s office, behind closed doors, she explained she could not resolve the fact that one lawyer in the firm—Oscar—had prepared a will that kept a sizable asset—the baseball card collection—out of her reach, and now the other lawyer—Wally—was probating that same will. This, in her opinion, was a glaring conflict of interest, and downright sleazy to boot. She was upset and began crying.

Wally tried to explain that lawyers are bound by rules of confidentiality. When Oscar prepared the will, he had to do what Chester wanted, and since Chester wanted his baseball cards hidden until after his death, then given to his son, Lyle, so be it. Ethically, Oscar could not divulge any information to anyone about Chester and his will.

Millie didn’t see it that way. As his wife, she had a right to know about all of his assets, especially something as valuable as his cards. She had already talked to a dealer, and the Shoeless Joe card alone was worth at least $100,000. The entire collection might fetch $150,000.

Wally really didn’t give a damn about the baseball cards, or the estate for that matter. The $5,000 fee he had once contemplated was now peanuts. He had a Krayoxx case on the line here, and he would say or do anything to keep it. “Frankly,” he said gravely as he glanced at his door, “between the two of us, I would have handled it differently, but Mr. Finley comes from the old school.”

“Meaning what?” she asked.

“He’s pretty chauvinistic. The husband is the head of the house, keeper of all assets, the only decision maker, you know the type. If the man wants to hide things from his wife, nothing wrong with that. Me, I’m much more liberated.” He followed this with a nervous laugh that was confusing.

“But it’s too late,” she said. “The will has been written. Now it’s going to probate.”

“True, Millie, but things will work out. Your husband left his baseball cards to his son, but he left you with a beautiful lawsuit.”

“A beautiful what?”

“You know, the Krayoxx thing.”

“Oh, that. Yes, I’m not too happy with that either. I’ve talked to another lawyer, and he says you’re in over your head, says you’ve never handled a case like this.”

Wally gasped for air, then managed to ask, in a squeaky voice, “Why are you talking to other lawyers?”

“Because he called me the other night. I checked him out online. He’s in a big firm with offices all over the country, and all they do is sue drug companies. I’m thinking about hiring him.”

“Don’t do that, Millie. These guys are famous for signing up a thousand cases, then screwing their clients. You’ll never talk to him again, just some young paralegal in the back room. It’s a scam, I swear it is. You can always get me on the phone.”

“I don’t want to talk to you on the phone, or in person either.” She was on her feet, gathering her handbag.

“Please, Millie.”

“I’ll think about it, Figg, but I’m not happy.”

Ten minutes after she left, Iris Klopeck called and asked to borrow $5,000 against her portion of the Krayoxx settlement. Wally sat at his desk with his head in his hands and wondered what might happen next.

Wally’s lawsuit was assigned to the Honorable Harry Seawright, a Reagan appointee who had been on the federal bench for almost thirty years. He was eighty-one, anticipating retirement, and not too excited about a lawsuit that could take a few years to resolve and eat up his calendar in the process. But he was curious. His favorite nephew had been taking Krayoxx for several years, with great success and no side effects at all. Not surprisingly, Judge Seawright had never heard of the law firm of Finley & Figg. He directed his law clerk to check out the firm, and the clerk’s e-mail read: “A 2 man ham and egg operation on Preston, Southwest Side; advertises for quickie divorces, DUIs, the usual criminal, domestic, injury practice; no record of any filings in federal court in the past 10 years; no record of jury trials in state court in past 10 years, no bar association activity; they do occasionally go to court—Figg has either 2 or 3 DUIs in past 12 years; firm was once sued for sexual harassment, settled.”

Seawright was incredulous. He e-mailed his clerk: “These guys have no trial experience, yet they filed a $100 million lawsuit against the third-largest pharmaceutical company in the world?”

The clerk responded: “Correct.”

Judge Seawright: “Insane! What’s behind this?”

The clerk: “Krayoxx stampede. It’s the latest and hottest bad drug in the country; mass tort bar is in frenzy. Finley & Figg probably hopes to ride coattails all the way to a settlement.”

Judge Seawright: “Keep digging.”

Later the clerk responded: “The lawsuit is signed by Finley & Figg, but also a third lawyer—David E. Zinc, former associate at Rogan Rothberg; I called a friend there—said Zinc cracked up, bolted ten days ago, somehow landed out there at FF; no litigation experience; guess he found the right place.”

Judge Seawright: “Let’s watch this case closely.”

The clerk: “As always.”

Varrick Labs was headquartered in a baffling series of glass and steel buildings in a forest near Montville, New Jersey. The complex was the work of a once famous architect who had since repudiated his own design. It was occasionally praised as daring and futuristic, but much more often it was denounced as drab, hideous, bunker-like, Soviet style, and a lot of other unkind words. In several ways it resembled a fortress, surrounded by trees, away from the traffic and crowds, protected. Because Varrick got sued so often, its headquarters seemed fitting. The company was hunkered down out there in the woods, braced for the next assault.

Its CEO was Reuben Massey, a company man who had led Varrick for many years, through turbulent times, and always to impressive profits. Varrick was in a constant state of war with the mass tort bar, and while other pharmaceuticals wilted or folded under waves of litigation, Massey managed to keep his stockholders happy. He knew when to fight, when to settle, how to settle cheap, and how to appeal to the lawyers’ greed while saving his company tons of money. During his term, Varrick had survived (1) a $400 million settlement for a denture cream that caused zinc poisoning; (2) a $450 million settlement for a stool softener that backfired and clogged things up; (3) a $700 million settlement for a blood thinner that cooked a bunch of livers; (4) a $1.2 billion settlement for a migraine remedy that allegedly caused high blood pressure; (5) a $2.2 billion settlement for a high blood pressure pill that allegedly caused migraines; (6) a $2.3 billion settlement for a painkiller that was instantly addictive; and, worst of all, (7) a $3 billion settlement for a diet pill that caused blindness.

It was a long, sad list, and Varrick Labs had paid dearly in the court of public opinion. Reuben Massey, though, continually reminded his troops of the hundreds of innovative and effective drugs they created and sold to the world. What he did not talk about, except in the boardroom, was the fact that Varrick had profited from every drug that had been targeted by the plaintiffs’ lawyers. So far, the company had won the battle, even after forking over huge settlements.

Krayoxx, however, could be different. There were now four lawsuits; the first one in Fort Lauderdale, the second in Chicago, and now two new ones in Texas and Brooklyn. Massey closely monitored the workings and dealings of the mass tort bar. He spent time each day with his in-house lawyers, studying the lawsuits, reading the bar journals and newsletters and blogs, and talking to his lawyers in big firms across the country. One of the most revealing signals in any looming war was TV advertising. When the lawyers began bombarding the airwaves with their sleazy, get-rich-quick come-ons, Massey knew Varrick was in for another expensive brawl.

Krayoxx ads were popping up everywhere. The frenzy had begun.

Massey had worried about a few of Varrick’s other targets. The migraine pill was a huge blunder, and he still cursed himself for ramming it through research and approvals. The blood thinner almost got him fired. But he had never doubted Krayoxx, nor would he ever. Varrick had spent $4 billion developing the drug. It had been tested extensively in clinical trials in third-world countries; the results had been spectacular. Its research was thorough and immaculate. Its pedigree was flawless. Krayoxx caused no more strokes and heart attacks than the daily vitamin pill, and Varrick had a mountain of research to prove it.

———

The daily legal briefing was held at precisely 9:30 in the Varrick boardroom on the fifth floor of a building that resembled a Kansas wheat silo. Reuben Massey was a stickler for punctuality, and his eight in-house lawyers were in their seats by 9:15. The team was led by Nicholas Walker, a former U.S. attorney, former Wall Street litigator, and the current mastermind behind every defense Varrick erected to protect itself. When the lawsuits began dropping like cluster bombs, Walker and Reuben Massey spent hours together, coolly responding, analyzing, scheming, and directing counterattacks when necessary.

Massey entered the room at 9:25, picked up an agenda, and said, “What’s the latest?”

“Krayoxx or Faladin?” Walker asked.

“Gee, I almost forgot about Faladin. Let’s stick to Krayoxx for the moment.” Faladin was an antiwrinkle cream that was allegedly causing wrinkles, according to a few loudmouthed lawyers on the West Coast. The litigation had yet to gain momentum, primarily because the lawyers were finding it difficult to measure wrinkleness, before and after.

Nicholas Walker said, “Well, the gates are open. Snowball’s rolling down the mountain. Pick your metaphor. All hell’s breaking loose. I chatted with Alisandros at Zell & Potter yesterday, and they’re getting flooded with new cases. He plans to push hard to establish multi-district in Florida and keep his finger on things.”

“Alisandros. Why do the same thieves show up at every heist?” Massey asked. “Haven’t we paid them enough over the past twenty years?”

“Evidently not. He’s built his own golf course, for Zell & Potter lawyers only and a few lucky friends, and he invited me to come down and play. Eighteen holes.”

“Please go, Nick. We need to see how wisely our money is being invested by these thugs.”

“Will do. I got a phone call late yesterday afternoon from Amanda Petrocelli in Reno, says she’s hooked her a few death clients, putting together a class, and will file suit either today or tomorrow. I told her it really didn’t matter to us when she filed suit. We can expect more filings this week and next.”

“Krayoxx is not causing strokes and heart attacks,” Massey said. “I believe in this drug.”

The eight lawyers nodded their heads in agreement. Reuben Massey was not one to make bold statements or false claims. He had doubts about Faladin, and Varrick would eventually settle for a few million, long before a trial.

Number two on the legal team was a woman named Judy Beck, another veteran of the mass tort wars. She said, “All of us feel the same, Reuben. Our research is better than theirs, if they actually have any. Our experts are better. Our proof is better. Our lawyers will be better. Perhaps it’s time we counterattack and throw everything we have at the enemy.”

“My thoughts exactly, Judy,” Massey said. “You guys have a strategy?”

Nicholas Walker said, “It’s evolving, but for now we go through the same motions, make the same public comments, watch and wait and see who files what and where. We look at the lawsuits, study the judges and the jurisdictions, and we pick our spot. When the stars are all aligned—the right plaintiff, the right city, the right judge—then we hire the hottest gunslinger in town and push hard for a trial.”

“This has backfired, you know,” Massey said. “Don’t forget Klervex. That cost us two billion.” Their miracle blood pressure pill was destined for greatness until thousands of its users developed horrific migraines. They—Massey and the lawyers—believed in the drug and rolled the dice with the first jury trial, which they fully expected to win in a slam dunk. An overwhelming victory would dampen the tort bar’s enthusiasm and save Varrick a ton of money. The jury, though, felt otherwise and gave the plaintiff $20 million.

“This is not Klervex,” Walker said. “Krayoxx is a much better drug, and the lawsuits are much weaker.”

“I agree,” Massey said. “I like your plan.”