The Litigators

CHAPTER 16


Rochelle was at her desk diligently tracking news of a bed linen sale at a nearby discount house when the call came. A Mr. Jerry Alisandros from Fort Lauderdale wanted to speak with Mr. Wally Figg, who was at his desk. She routed the call through and returned to her online work.

Moments later, Wally strutted out of his office with his patented look of self-satisfaction. “Ms. Gibson, could you check flights to Las Vegas this weekend, leaving midday Friday?”

“I suppose. Who’s going to Las Vegas?”

“Well, who else has asked about going to Vegas? Me, that’s who. There’s an unofficial meeting of Krayoxx lawyers this weekend at the MGM Grand. That was Jerry Alisandros on the phone. Maybe the biggest mass tort operator in the country. Says I need to be there. Is Oscar in?”

“Yes. I think he’s awake.”

Wally tapped on the door as he shoved it open. He slammed it behind himself. “Come right in,” Oscar said as he pulled himself away from the paperwork littering his desk.

Wally fell into a large leather chair. “Just got a call from Zell & Potter in Fort Lauderdale. They want me in Vegas this weekend for a Krayoxx strategy meeting, off the record. All the big boys will be there to plan the attack. It’s crucial. They’ll discuss multi-district litigation, which lawsuit goes first, and, most important, settlement. Jerry thinks that Varrick might want a quick endgame on this one.” Wally was rubbing his hands together as he spoke.

“Jerry?”

“Alisandros, the legendary tort lawyer. His firm made a billion off Fen-Phen alone.”

“So you want to go to Las Vegas?”

Wally shrugged as if he could take it or leave it. “I don’t care anything about going, Oscar, but it’s imperative that someone from our firm show up at the table. They might start talking money, settlement, big bucks, Oscar. This thing could be closer than we realize.”

“And you want the firm to pay for your trip to Vegas?”

“Sure. It’s a legitimate litigation expense.”

Oscar ruffled through a pile of papers and found what he wanted. He lifted it and sort of waved it at his junior partner. “Have you seen David’s memo? It came in last night. The one about the projected costs of our Krayoxx litigation.”

“No, I didn’t know he was—”

“The guy’s very bright, Wally. He’s doing the homework that you should be doing. You need to take a look at this because it’s scary as hell. We need at least three experts on board now, not next week. In fact, we should’ve had them lined up before you filed suit. The first expert is a cardiologist who can explain the cause of death of each of our beloved clients. Estimated cost to hire one is $20,000, and that’s just for the initial evaluation and deposition. If the cardiologist testifies at trial, add another $20,000.”

“It’s not going to trial.”

“That’s what you keep saying. Number two is a pharmacologist who can explain to the jury in great detail exactly how the drug killed our clients. What did it do to their hearts? This guy is even pricier—$25,000 initially and the same if he testifies at trial.”

“That sounds high.”

“All of it sounds high. Number three is a research scientist who can present to the jury the findings of his study that will show, by a preponderance of the evidence, that statistics prove you’re much likelier to suffer heart damage while taking Krayoxx than some other cholesterol drug.”

“I know just the guy.”

“Is it McFadden?”

“That’s him.”

“Great. He wrote the report that started this frenzy, and now he’s a bit reluctant to get involved in the litigation. However, if a law firm will fork over an initial retainer of $50,000, he might favor the law firm with a lending hand.”

“That’s outrageous.”

“It’s all outrageous. Please look at David’s memo, Wally. He summarizes the backlash against McFadden and his work. There are some serious doubts about whether this drug actually causes harm.”

“What does David know about litigation?”

“What do we know about litigation, Wally? You’re talking to me, your longtime partner, not some prospective client. We bark and growl about hauling bad guys into the courtroom, but you know the truth. We always settle.”

“And we’re going to settle now, Oscar. Trust me. I’ll know a whole lot more when I get back from Vegas.”

“How much will that cost?”

“Peanuts, in the scope of things.”

“We’re in over our heads, Wally.”

“No, we’re not. We’ll piggyback with the big boys and make a fortune, Oscar.”

Rochelle found a much cheaper room at the Spirit of Rio Motel. The photos on its Web site were of stunning views of the Vegas Strip, and it was easy to get the impression that its guests were in the thick of things. They were not, as Wally realized when the airport shuttle van finally stopped. The tall, sleek casino-hotels were visible, but fifteen minutes away. Wally cursed Rochelle as he waited in the sauna-like lobby to check in. A standard room at the MGM Grand was $400 a night. At this dump it was $125, a two-night savings that almost covered his airfare. Pinching pennies while waiting on a fortune, Wally told himself as he climbed two flights of stairs to his rather small room.

He couldn’t rent a car because of his DUI conviction and lack of a valid license. He asked around and learned that another shuttle ran from the Spirit of Rio to the Strip every thirty minutes. He played dollar slots in the lobby and won $100. Maybe this was his lucky weekend.

The shuttle was packed with overweight retirees. Wally couldn’t find a seat, so he stood, clutched the handrails, rocked along in bodily contact with sweaty people, and, as he glanced around, he wondered how many might be Krayoxx victims. High cholesterol was definitely on display. He had business cards in his pockets, as always, but he let it pass.

He roamed the casino for a while, watching closely as an astonishing variety of people played blackjack, roulette, and craps, games he’d never played and had no desire to try now. He killed some time at a slot machine and twice said no thanks to a comely cocktail waitress. Wally was beginning to realize that a casino was a lousy place for a recovering drunk. At 7:00 p.m., he found his way to a banquet room on the mezzanine. Two security guards blocked the door, and Wally was relieved when they found his name on the list. Inside, there were two dozen or so well-dressed men, and three women, engaged in light chatter over drinks. A buffet dinner was being arranged along a far wall. Some of the lawyers knew each other, but Wally was not the only rookie in the crowd. They all seemed to recognize his name, and they all knew about his lawsuit. Before long, he was beginning to fit in. Jerry Alisandros sought him out, and they shook hands like old friends. Others crowded around, then little pockets of conversation peeled off here and there. They talked about lawsuits, politics, the latest in private jets, homes in the Caribbean, and who was getting divorced and remarried. Wally had little to add, but he gamely hung on and proved to be a good listener. Trial lawyers prefer to do all the talking, and at times they all talked at once. Wally was happy to just grin, listen, and sip his club soda.

After a quick dinner, Alisandros stood and began the conversation. The plan was to meet at nine the following morning, in the same room, and get down to business. They should be finished by noon. He had spoken several times with Nicholas Walker at Varrick, and obviously the company was shell-shocked. In its long and colorful history of litigation, it had never been hit so fast and so hard with so many lawsuits. It was scrambling to get some sense of the damage. According to experts hired by Alisandros, the potential pool of injured or dead could be as high as half a million.

This news—of so much misery and suffering—was well received around the table.

The potential cost to Varrick, according to yet another expert hired by Alisandros, was at least $5 billion. Wally was fairly certain he was not the only one at the table who did a quick multiplication: 40 percent of $5 billion. The others, though, seemed to take it all in stride. Another drug, another war with Big Pharma, another massive settlement that would make them even richer. They could buy more jets, more homes, more trophy wives, assets Wally cared nothing for. All he wanted was a chunk in the bank, enough cash to make life enjoyable and free from the daily grind.

In a roomful of considerable egos, it was only a matter of time before someone else wanted the floor. Dudley Brill, from Lubbock, boots and all, plunged into the retelling of a recent conversation with a high-ranking Varrick defense lawyer in Houston, who strongly implied that the company had no plans to settle until after the drug’s liability was tested before a few juries. Therefore, based on Brill’s analysis of a conversation no one else in the room knew about, he was of the firm opinion that he, Dudley Brill of Lubbock, Texas, should lead the first trial, and do so in his hometown, where the jurors had proven they loved him and would fork over huge sums if he asked for them. Brill had obviously been drinking, as had everybody else but Wally, and his self-serving analysis touched off a furious debate around the dinner table. Before long, several skirmishes were under way, with tempers flaring and insults being traded.

Jerry Alisandros managed to bring order. “I was hoping we could save all of this for tomorrow,” he said diplomatically. “Let’s retire now, go to our separate corners, and come back tomorrow all sobered up and rested.”

From the looks of things the following morning, not all of the trial lawyers went to their rooms and to bed. Puffy eyes, red eyes, hands grabbing cold water and coffee—the signs were there. There was no shortage of hangovers. There were not as many lawyers either, and as the morning dragged on, Wally began to realize a lot of business had been conducted over drinks late the night before. Deals had been cut, alliances forged, backs stabbed. Wally wondered where he stood.

Two experts talked about Krayoxx and the most recent studies. Each lawyer spent a few minutes talking about his or her lawsuit—number of clients, number of potential client deaths versus injuries, judges, opposing counsel, and verdict trends in the jurisdiction. Wally winged it nicely and said as little as possible.

An incredibly boring expert dissected the financial health of Varrick Labs and deemed the company fit enough to sustain huge losses from a Krayoxx settlement. The word “settlement” was used frequently and was always ringing in Wally’s ears. The same expert became even more tedious when analyzing the various insurance coverages Varrick had in force.

After two hours, Wally needed a break. He eased out and went to find a restroom. When he returned, Jerry Alisandros was waiting outside the door. “When are you headed back to Chicago?” he asked.

“In the morning,” Wally replied.

“Flying commercial?”

Of course, Wally thought. I do not have my own jet, so like most poor Americans I’m forced to pay for a ticket on a jet owned by someone else. “Sure,” he said with a smile.

“Look, Wally, I’m headed to New York this afternoon. Why don’t you hitch a ride? My firm just bought a brand-new Gulfstream G650. We’ll have lunch on the plane and drop you off in Chicago.”

There would be a price to pay, a deal to be cut, but Wally was looking for one anyway. He had read about rich trial lawyers and their private jets, but it had never crossed his mind that he would see the inside of one. “That’s very generous,” he said. “Sure.”

“Meet me in the lobby at 1:00 p.m., okay?”

“You got it.”

There were a dozen or so private jets lined up on the deck at McCarran Field’s general aviation center. As Wally followed his new pal Jerry past them, he wondered how many were owned by the other mass tort boys. When they got to Jerry’s, he climbed the steps, took a breath, then stepped inside the gleaming G650. A striking Asian girl took his coat and asked what he wanted to drink. Just club soda.

Jerry Alisandros had a small entourage with him—an associate, two paralegals, and an assistant of some kind. They huddled briefly in the rear of the cabin as Wally settled into the rich leather seat and thought about Iris Klopeck and Millie Marino, and those wonderful widows whose dead husbands had led Wally into the world of mass torts, and now to this. The flight attendant handed Wally a menu. Down the aisle, far away, he could see a kitchen with a chef, just waiting. As they taxied, Jerry made his way to the front and sat down opposite Wally. “What do you think?” he asked, raising his hands to take in his latest toy.

“Sure beats commercial,” Wally said. Jerry howled with laughter—no doubt the funniest thing he’d ever heard.

A voice announced takeoff, and they all buckled their seat belts. As the jet left the runway and shot upward, Wally closed his eyes and tried to savor the moment. It might never happen again.

As soon as they began to level off, Jerry came to life. He popped a switch and pulled a mahogany table out of the wall. “Let’s talk business,” he said.

It’s your plane, Wally thought. “Sure.”

“How many cases do you realistically expect to sign up?”

“We might get ten death cases; we have eight now. Non-death, I’m not sure. We have a pool of several hundred potential cases, but we haven’t screened them yet.” Jerry frowned as if this weren’t enough, not worth his time. Wally wondered if he might order the pilot to turn around or open a hatch somewhere.

“Have you thought about teaming up with a bigger firm?” Jerry asked. “I know you guys don’t do a lot of mass tort work.”

“Sure, I’m open to that discussion,” Wally replied, trying to conceal his excitement. That had been his plan since the beginning. “My contracts provide for a contingency fee of 40 percent. How much do you want?”

“In our typical deal, we front the expenses, and these are not cheap cases. We find the doctors, experts, researchers, whomever, and they cost a fortune. We take half the fee, 20 percent, but the expenses are paid back to us before any split of the fee.”

“That sounds fair. What’s our role in this?”

“Simple. Find more cases, death and non-death. Round ’em up. I’ll send a draft of an agreement on Monday. I’m trying to piece together as many cases as possible. The next big step is the creation of an MDL—multi-district litigation. The court will appoint a plaintiff’s trial committee, usually five or six seasoned lawyers who will control the litigation. That panel is entitled to an additional fee, usually around 6 percent, and this comes off the top and out of the lawyers’ portion.”

Wally was nodding along. He’d done some research and knew the ins and outs, most of them. “Will you be on the trial committee?” he asked.

“Probably, I usually am.”

The flight attendant brought fresh drinks. Jerry took a sip of wine and continued. “When discovery starts, we’ll send someone to help with the depositions of your clients. No big deal. Pretty routine legal work. Keep in mind, Wally, that the defense firms see this as a gold mine too, so they work the cases hard. I’ll find a cardiologist we can trust, one who’ll screen your clients for damage. We’ll pay him out of the litigation fund. Any questions?”

“Not now,” Wally said. He was not pleased to be giving away half the fee, but he was delighted to be in business with an experienced and deep-pocketed tort firm. There would still be plenty of money for Finley & Figg. He thought of Oscar and couldn’t wait to tell him about the G650.

“What’s your best guess for the timeline?” Wally asked. In other words, when can I expect some money?

A long, satisfying pull of the wine, and, “Based on my experience, which, as you know, Wally, is quite vast, I expect we’ll reach a settlement in twelve months and start disbursing money right away. Who knows, Wally, in a year or so you might have your own airplane.”