The Litigators

CHAPTER 32


Fresh from a long Labor Day weekend, Wally wrote to his client Iris Klopeck:

Dear Iris:

As you know, our trial is set for next month, October 17 to be exact, but this is not something to worry about. I spent most of last month negotiating with the attorneys at Varrick, and we have arrived at a very favorable settlement. The company is in the process of offering a sum in the neighborhood of $2 million for the wrongful death of your husband, Percy. This offer is not official, but we expect to receive it in writing within the next fifteen days. I know this is considerably more than the $1 million I promised, but, nonetheless, I need your approval to accept this offer when it is formally put on the table. I’m quite proud of our little boutique firm. We are like David battling Goliath, but right now we’re winning.

Please sign the attached form authorizing the settlement and mail it back.

Sincerely,

Wallis T. Figg

Attorney and Counselor-at-Law

He sent similar letters to the other seven clients in his wonderful little class of death cases, and when he finished, he kicked back in his swivel rocker, placed his shoeless feet on his desk, and once again contemplated the money. His dreams were interrupted, though, when Rochelle buzzed in with a curt “That woman is on the phone. Please talk to her. She’s driving me crazy.”

“Okay,” Wally snapped and stared at the phone. DeeAnna was not going away quietly. During the drive home from Lake Michigan, he had picked a fight with her and managed to escalate it to the level of some serious name-calling. In the heat of the battle, he had announced that they were through, and for two tranquil days thereafter they did not speak. Then she showed up at his apartment, drunk, and he relented and allowed her to sleep on the sofa. She was apologetic, even pitiful, and managed to offer some manner of sexual adventure every five minutes. Wally had declined, so far. Now she was calling at all hours and had even appeared at the office several times. But Wally was determined. It had become clear to him that his Krayoxx money wouldn’t last three months with DeeAnna in the picture.

He picked up the phone and offered a brusque “Hello.” She was already crying.

The windy, gloomy Monday would long be remembered at Zell & Potter as the Labor Day Massacre. No holiday was being observed—they were professionals, not laborers, not that it mattered. Holidays were often ignored, as were weekends. The building was open early, and by 8:00 a.m. the halls were buzzing with lawyers eagerly pursuing a variety of defective drugs and the companies that made them.

Occasionally, though, a pursuit yielded nothing. A chase went nowhere. A well was dry.

The first blow landed at 9:00 a.m., when Dr. Julian Smitzer, the firm’s director of medical research, insisted on seeing Jerry Alisandros, who really didn’t have the time but couldn’t say no, especially when the matter was described by his secretary as “urgent.”

Dr. Smitzer had completed an illustrious career as a cardiologist and researcher at Mayo Clinic in Rochester, Minnesota, and with an ailing wife headed for the sunshine of south Florida. After a few months, he was bored. By chance he met Jerry Alisandros. One meeting led to another, and for the past five years Dr. Smitzer had supervised the law firm’s medical research, at an annual salary of $1 million. It was a natural fit because he had spent most of his career writing about the evils of Big Pharma.

In a law firm full of hyperaggressive lawyers, Dr. Smitzer was a revered figure. No one questioned his research or his opinions, and his work was far more valuable than what he was paid.

“We have a problem with Krayoxx,” he said not long after he’d taken a seat in Jerry’s grand office.

After a deep, painful breath, Jerry said, “I’m listening.”

“We’ve spent the past six months analyzing the McFadden research, and I am now of the opinion that it is flawed. There is no credible statistical evidence that the consumers of the drug have a higher risk of stroke and heart attack. Frankly, McFadden fudged his results. He’s an excellent doctor and researcher, but he obviously became convinced the drug was dangerous, then tweaked his findings to fit his conclusions. The people who take this drug have many other problems—obesity, diabetes, hypertension, atherosclerosis, to name a few. Many are in terrible health, and elevated cholesterol can be expected. Typically, they take a handful of pills several times a day, Krayoxx being just one, and so far it has been impossible to determine the effects of the combinations of all these drugs. Statistically, there might, and I emphasize that word, be a slight increased chance for a heart attack or stroke by Krayoxx users, but then again there may not be. McFadden studied three thousand subjects over a two-year period—a small pool in my opinion—and found only a 9 percent higher chance of stroke and heart attack.”

“I’ve read the report, Julian, many times,” Jerry said, interrupting. “I practically memorized it before we jumped into this litigation.”

“You jumped in too fast, Jerry. There’s nothing wrong with this drug. I’ve spoken with McFadden at length. You know how heavily he was criticized when the report came out. He’s taken the heat, and now he’s backing off the drug.”

“What?”

“Yes. McFadden admitted to me last week that he should have included more subjects. He’s also concerned with the fact that he did not spend the time studying the effects of the combinations of multiple drugs. He is planning to reverse himself and try to salvage his reputation.”

Jerry was pinching the bridge of his nose as if he might crush it. “No, no, no,” he kept mumbling.

Smitzer pressed on. “Yes, yes, and his repair work will be forthcoming.”

“When?”

“Roughly ninety days. And it gets worse. We’ve studied, thoroughly, the effects of the drug on the aortic valve. As you know, the Palo Alto study seemed to link the leakage in the valve to a deterioration caused by the drug. This now looks doubtful, highly so.”

“Why are you telling me this now, Julian?”

“Because the research takes time, and we are just now learning a few things.”

“What does Dr. Bannister say?”

“Well, for starters, he says he’s not willing to testify.”

Jerry rubbed his temples and stood, glaring at his friend. He walked to a window and looked out, at nothing. Since Dr. Smitzer was on the firm’s payroll, he was precluded from testifying in any Zell & Potter litigation, either in discovery or at trial. An important part of his job was maintaining a network of expert witnesses—hired guns willing to take the stand for huge fees. Dr. Bannister was a professional testifier with a thick résumé and a fondness for mixing it up with hotshot lawyers in big trials. The fact that he was now backing down seemed fatal.

———

The second blow landed an hour later with Jerry already on the ropes and bleeding. A young partner named Carlton arrived with a thick report and some grim news. “Things are not going well, Jerry,” he began.

“I know.”

Carlton was supervising the screening of thousands of potential clients, and his thick report was filled with terrible numbers. “We’re not seeing the damage, Jerry. Ten thousand exams so far, and the results are not impressive. Maybe 10 percent have some loss of aortic pressure, but nothing to get excited about. We’re seeing all sorts of heart disease, hypertension, clogged arteries, and the like, but nothing we can link to the drug.”

“Ten million bucks on screenings and we have nothing?” Jerry said, thumbs on temples, eyes closed.

“At least ten million, and, yes, we have nothing. I hate to say this, Jerry, but this drug looks harmless. I think we’re drilling a dry hole here. I’d say we cut and run.”

“I didn’t ask for advice.”

“No, you didn’t.” Carlton left the office and closed the door. Jerry locked it and went to a sofa where he stretched out and stared at the ceiling. He had been there before—caught with a drug that wasn’t quite as bad as he had claimed it to be. There was still a chance Varrick was a step or two behind. Perhaps the company didn’t know what Jerry now knew. With all the settlement buzz, its share price had moved steadily up, closing the Friday before at $34.50. Maybe, just maybe, the company could be bluffed into an even quicker settlement. He had seen it before. A company with plenty of cash and a ton of bad press wants the lawsuits and lawyers to simply go away.

As the minutes passed, he managed to relax. He couldn’t think of all the Wally Figgs out there—they were big boys who had made their own decisions to file suit. And he couldn’t think of all the clients who were expecting a sizable check, and soon. Nor was he too concerned with saving face—he was obscenely rich, and the money had long since toughened his skin.

What Jerry was really thinking about was the next drug, the one after Krayoxx.

The third blow, and the knockout punch, arrived in a scheduled 3:00 p.m. phone conference with another member of the Plaintiffs’ Litigation Committee (PLC). Rodney Berman was a flamboyant New Orleans trial lawyer who had made and lost several fortunes gambling with juries. Thanks to an oil spill in the Gulf, he was currently in the money and had managed to piece together even more Krayoxx clients than Zell & Potter.

“We’re up shit creek,” he began pleasantly.

“It’s been a bad day, Rodney, so go ahead and make it worse.”

“Inside scoop from a very confidential, and very well-paid, I might add, spook who has laid eyes on a preliminary report headed for the New England Journal of Medicine next month. Researchers at Harvard and Cleveland Clinic will declare that our beloved Krayoxx is as healthy as wheat germ and causes no problems whatsoever. No increased risk of heart attack or stroke. No damage to the aortic valve. Nothing. And these boys have résumés that make our guys look like witch doctors. My experts are running for the hills. My lawyers are hiding under their desks. According to one of our lobbyists, the FDA is considering putting the drug back on the market. Varrick is dropping cash all over Washington. What else do you want to hear, Jerry?”

“I think I’ve heard enough. I’m looking for a bridge.”

“I can see one from my office,” Rodney said, somehow managing a laugh. “It’s beautiful, spanning the Mississippi and just waiting on me. The Rodney Berman Memorial Bridge. They’d find me in the Gulf one day, covered in crude oil.”

Four hours later, all six of the PLC members were linked into a conference call Jerry organized from his office. After he summarized the grim news of the day, Berman delivered his version. Each of the six took a turn, and there was not a single piece of good news. The litigation was crumbling on all fronts, on all theories, from coast to coast. There was a lengthy debate over how much Varrick knew at the moment, and the general feeling was that they, the lawyers, were far ahead of the company. But that would change quickly.

They agreed to stop the screening immediately. Jerry volunteered to contact Nicholas Walker at Varrick and attempt to speed up settlement talks. Each of the six agreed to begin buying huge chunks of Varrick common stock in an effort to drive up the price. It was a public corporation, after all, and its share price meant everything. If Varrick believed a settlement would soothe Wall Street, it might decide to get rid of its Krayoxx mess, however harmless the drug might be.

The conference call lasted two hours and ended with a tone that was slightly more optimistic than when it began. They would continue pushing hard for a few more days, maintain their poker faces, play the game, and hope for a miracle, but under no circumstances would they continue spending money on their own Krayoxx mess. It was over; they would cut their losses and move on to the next battle.

Almost nothing was said about the Klopeck trial six weeks away.