The Litigators

CHAPTER 30


Jerry Alisandros finally made good on a promise. He was extremely busy organizing the settlement negotiations, and according to the associate Wally spoke to, he, Jerry, simply didn’t have the time to spend on the phone with the dozens of lawyers he was juggling. But in the third week of July, he finally sent in the experts.

The company’s name was meaningless—Allyance Diagnostic Group, or ADG, as it preferred to be called. As best Wally could tell, ADG was an Atlanta-based team of medical technicians who did nothing but travel the country running tests on people who were clamoring to profit from Jerry’s latest mass tort attack. As instructed, Wally rented two thousand square feet in a dingy strip mall, a space that had once housed a low-end pet supply store. He hired a contractor to erect walls and doors and a cleaning service to fix things up. The front windows were covered with brown paper; there was no signage. He rented a few cheap chairs and tables and a desk and installed a phone and a copier. All bills were sent by Wally to an assistant in Jerry’s firm who did nothing but keep the books dealing with the Krayoxx litigation.

When the space was ready, ADG moved in and went to work. Its team consisted of three technicians, all properly attired in aqua surgical scrubs. Each had a stethoscope. They looked so official that even Wally at first figured they were highly skilled and credentialed. They were not, but they had tested thousands of potential plaintiffs. Their leader was Dr. Borzov, a cardiologist from Russia who had made a lot of money diagnosing patients/clients for Jerry Alisandros and a dozen other trial lawyers around the country. Dr. Borzov rarely saw an obese person who wasn’t suffering from a significant medical problem that could be pinned on the mass-tort-drug-of-the-month. He never testified in court—his accent was too thick and his résumé was too thin—but he was worth his weight in gold in the screening rooms.

David, because he was the de facto paralegal for all (now) 430 non-death Krayoxx clients, and Wally, because he had hustled them all together, were both present when ADG began its assembly line. On schedule, three clients arrived at 8:00 a.m. and were greeted with coffee, Wally, and a cute ADG technician in scrubs and white rubber hospital clogs. The paperwork took ten minutes and was primarily designed to ensure that the client had indeed taken Krayoxx for more than six months. The first client was led into another room where ADG had installed its own echocardiogram and two other technicians were waiting. One explained the procedure—“We’re just taking a digital picture of your heart”—while the other helped the client onto an official, heavily fortified hospital bed that ADG hauled around the country, along with the echocardiogram. As they probed the patient’s chest with the sonar, Dr. Borzov entered the room and nodded slightly at the patient. His bedside manner was never reassuring, but then he had no real patients. He wore a full-length white exam coat, had his name stenciled above the left pocket, and had his own stethoscope for good measure and effect, and when he spoke, his accent conveyed a sense of expertise. He studied the screen, frowned because he always frowned, then left the room.

The assault on Krayoxx was fueled by research purporting to show that the drug weakened the seals around the aortic valve, thus causing a decrease in mitral valve regurgitation. The echocardiogram measured aortic sufficiency, and a decrease of 30 percent was excellent news for the lawyers. Dr. Borzov reviewed the graphs immediately, always eager to find another weakened aortic valve.

Each exam took twenty minutes, so they did three per hour, about twenty-five each day, six days a week. Wally had leased the space for a month. ADG billed the Zell & Potter, Finley & Figg litigation account $1,000 for each exam, with the bills going to Jerry in Florida.

Before that stop, ADG and Dr. Borzov had been in Charleston and Buffalo. From Chicago, they were headed to Memphis, then Little Rock. Another ADG unit was covering the West Coast with a Serbian doctor reading the graphs. Another was harvesting gold in Texas. The Zell & Potter Krayoxx web covered forty states, seventy-five lawyers, and almost 80,000 clients.

To avoid the chaos of the office, David hung around the strip mall and chatted with his clients, none of whom he’d ever met. Generally speaking, they were happy to be there, worried about whatever damage the drug had done to their hearts, hopeful of some type of recovery, overweight and terribly out of shape, but pleasant enough. Black, white, old, young, male, female—obesity and high cholesterol ran the gamut. Every client he spoke to had been thrilled with the drug, delighted with its results, and was now anxious about finding a replacement. Gradually, David chatted up the ADG technicians and learned something of their work, though they were fairly closemouthed. Dr. Borzov would hardly speak to him.

After hanging around for three days, David could tell that the ADG team was not pleased with their testing. Their $1,000 exams were producing little evidence of aortic insufficiency, but there were a few potential cases.

On the fourth day, the air-conditioning system crashed, and Wally’s rented space turned into a sweatshop. It was August, temperature above ninety, and when the landlord refused to return calls, the ADG crew threatened to leave. Wally hauled in box fans and ice cream and begged them to stay and finish the screening. They plowed on, the twenty-minute exams becoming fifteen, then ten, with Borzov barely scanning the graphs on the sidewalk while he smoked cigarettes.

———

Judge Seawright set the hearing for August 10, the last possible date on any judge’s calendar before the system shut down for summer vacation. There were no motions pending, no fights brewing, all discovery had proceeded with remarkable cooperation. Varrick Labs, so far, had been unduly forthcoming with documents, witnesses, and experts. Nadine Karros had filed only a handful of benign motions, all of which the judge quickly dispensed with. On the plaintiff’s side, the Zell & Potter lawyers had been remarkably efficient with their requests and filings.

Seawright was monitoring the settlement gossip. His clerks scoured the financial press and watched the serious bloggers. Varrick Labs had issued no formal statement regarding settlement, but it was obvious the company knew how to leak. Its share price dipped as low as $24.50, but the buzz about a massive settlement had moved it back to $30.00.

When the two packs of lawyers were in place, Judge Seawright assumed the bench and welcomed everyone. He apologized for calling the hearing in August—“the most difficult month of the year for busy people”—but he felt strongly that the two sides should get together before everyone scattered. He quickly went through his discovery checklist to make sure both sides were behaving. There were no complaints.

Jerry Alisandros and Nadine Karros were so polite to each other it was almost silly. Wally sat to Jerry’s right, as if he would be the go-to guy in a courtroom brawl. Behind him, and wedged among a group of Zell & Potter lawyers, were David and Oscar. Since the shooting and the publicity, Oscar was getting out more, enjoying the attention. He was also smiling and already considered himself a bachelor.

Changing subjects, Judge Seawright said, “I’m hearing a lot of chatter about a settlement, one big global settlement, as they’re called these days in this business. I want to know what’s going on. As fast as this particular case has come together, it is now in a posture to be placed on my trial calendar. However, if a settlement is likely, then why bother? Can you shed any light on this issue, Ms. Karros?”

She stood, all eyes on her, and took a few elegant steps to the podium. “Your Honor, as you probably know, Varrick Labs has been involved in a number of complicated lawsuits, and the company has its own way of approaching a settlement that involves many plaintiffs. I have not been authorized to initiate negotiations in the Klopeck case, nor have I been authorized by my client to make public statements on the issue of settlement. As far as I’m concerned, we are preparing for trial.”

“Fair enough. Mr. Alisandros?”

They exchanged places at the podium, and Jerry offered up a sappy smile. “Likewise, Your Honor, we are preparing for trial in this case. However, I must say that I, as a member of the Plaintiffs’ Litigation Committee, have had several informal and quite preliminary conversations with the company regarding a global settlement. I believe Ms. Karros is aware that these conversations are taking place, but, as she said, she has not been authorized to discuss them. I don’t represent Varrick so I am not burdened with such constraints. However, the company has not requested that I remain silent about our discussions. In addition, Your Honor, if we reach the point of formal negotiations, I doubt that Ms. Karros will be involved. I know from prior experience that Varrick handles these in-house.”

“Do you anticipate formal negotiations?” asked Seawright.

There was a long pause as many held their breath. Nadine Karros managed to look curious, though she had a clear view of the big picture. No one else in the courtroom did. Wally’s heart was racing as he tasted the words “formal negotiations.”

Jerry shifted weight a few times, then finally said, “Judge, I don’t want to get quoted, so I’ll go the safe route and say that I’m not sure.”

“So you, and Ms. Karros, cannot give me any guidance on the issue of settlement?” Seawright said with a hint of frustration.

Both lawyers shook their heads. Nadine knew damn well the case wouldn’t be settled. Jerry was almost positive that it would. Neither, though, could play his or her hand. And, truthfully and ethically, the judge did not have the right to know their strategies outside the courtroom. His job was to referee a fair trial, not monitor settlements.

Jerry returned to his seat, and Judge Seawright changed subjects again. “I’m looking at October 17, a Monday, as a trial date. I anticipate the trial will last no longer than two weeks.” A dozen lawyers were instantly looking at their calendars, all frowning.

“If you have a conflict, it had better be a good one,” he said. “Mr. Alisandros?”

Jerry stood slowly, holding a small leather appointment book. “Well, Judge, that would mean that we’re going to trial ten months after the lawsuit was filed. That’s pretty quick, don’t you think?”

“Indeed it is, Mr. Alisandros. Eleven months is about my average. I don’t allow my cases to grow stale. What’s your conflict?”

“No conflict, Judge, but I’m more concerned with having sufficient time to prepare. That’s all.”

“Hogwash. Discovery is almost complete. You have your experts. The defendant has its experts. God knows both sides have enough legal talent. October 17 is sixty-eight days away. That should be a piece of cake for a litigator of your reputation, Mr. Alisandros.”

What a show, thought Wally. This case, and all the others, would be settled in a month.

“What about the defense, Ms. Karros?” Seawright asked.

“We have some conflicts, Your Honor,” she said. “But nothing that we cannot work around.”

“Very well. The case of Klopeck versus Varrick Labs is hereby set for jury trial on October 17. Pending a disaster, there will be no delays, no continuances, so don’t even bother to ask.” He tapped his gavel on the bench and said, “Court’s adjourned. Thank you.”