The Litigators Read online

  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.”

  CHAPTER 15

  At least twice a year, and more often if possible, the Honorable Anderson Zinc and his lovely wife, Caroline, drove from their home in St. Paul to Chicago to see their only son and his lovely wife, Helen. Judge Zinc was the chief justice of the Supreme Court of Minnesota, a position he had been honored to hold for fourteen years. Caroline Zinc taught art and photography at a private school in St. Paul. Their two younger daughters were still in college.

  Judge Zinc’s father, and David’s grandfather, was a legend named Woodrow Zinc, who at the age of eighty-two was still hard at work managing the two-hundred-lawyer firm he’d founded fifty years earlier in Kansas City. The Zincs had deep roots in that city, but not deep enough to keep Anderson Zinc and his son from fleeing the harshness of working for old Woodrow. They wanted no part of his firm and left Kansas City, and this had caused a rift that was just beginning to mend.

  Another rift was brewing. Judge Zinc did not understand his son’s sudden career change and wanted to get t
o the bottom of it. He and Caroline arrived in time for a late lunch on Saturday afternoon and were pleasantly surprised to see their son at home. He was usually at the office, downtown in a tall building. On a visit the previous year, they had never actually laid eyes on him. He came home after midnight on a Saturday, then left to return to the office five hours later.

  Today, though, he was on a ladder cleaning the gutters. He jumped down and hurried to greet them. “You look great, Mom,” he said as he lifted her up and spun her around.

  “Put me down,” she said. David shook hands with his father, but there was no hug. The Zinc men did not hug each other. Helen appeared from the garage and greeted her in-laws. She and David were both grinning goofily about something. He finally said, “We have some big news.”

  “I’m pregnant!” Helen blurted.

  “You two geezers are about to be grandparents,” David said.

  Judge and Mrs. Zinc took the news well. They were, after all, in their late fifties and many of their friends were already grandparents. Helen was thirty-three, two years older than David, and, well, it was certainly about time, wasn’t it? They digested this amazing news, rallied nicely, then offered congratulations and wanted details. Helen gabbed away as David unloaded their luggage and everyone moved inside.

  Over lunch, the baby talk eventually subsided, and Judge Zinc finally got down to business. “Tell me about your new firm, David,” he said. David knew damn well his father had dug and dug and found what little there was to know about Finley & Figg.

  “Oh, Andy, don’t start that,” Caroline said, as if “that” were a raw subject that should be avoided. Caroline agreed with her husband and believed David had made a serious mistake, but the news of Helen’s pregnancy had changed everything, for the future grandmother anyway.

  “I told you on the phone,” David said quickly, anxious to have this discussion and get it over with. He was also prepared to defend himself, to fight if necessary. His father chose a career that was not what old Woodrow wanted. David had now done the same.

  “It’s a small two-man firm with a general practice. Fifty hours a week, which gives me time to fool around with my wife and keep the family name going. You should be proud.”

  “I’m delighted Helen is expecting, but I’m not sure I understand your decision. Rogan Rothberg is one of the most prestigious law firms in the world. They’ve trained judges, legal scholars, diplomats, and leaders of business and government. How can you just walk away from that?”

  “I didn’t walk away, Dad, I ran. And I’m not going back. I hate the memories of Rogan Rothberg, and I think even less of the people.”

  They were eating as they spoke. Things were cordial. Andy had promised Caroline he would not provoke a fight. David had promised Helen he would not engage in one.

  “So, this new firm has two partners?” the judge asked.

  “Two partners and now three lawyers. Plus Rochelle, the secretary, receptionist, office manager, and a lot of other things.”

  “Support staff? Clerks, paralegals, interns?”

  “Rochelle handles all that. It’s a small firm where we do most of our own typing and research.”

  “He’s actually home for dinner,” Helen added. “I’ve never seen him so happy.”

  “You look great,” Caroline said. “Both of you.”

  The judge was not accustomed to being outnumbered or outflanked. “These two partners, are they trial lawyers?”

  “They claim to be, but I have my doubts. They’re basically a couple of ambulance chasers who advertise a lot and survive on car wrecks.”

  “What made you choose them?”

  David glanced at Helen, who looked away with a smile. “That, Dad, is a long story that I will not bore you with.”

  “Oh, it’s not boring,” Helen said, barely suppressing laughter.

  “What kind of money do they make?” the judge asked.

  “I’ve been there three weeks. They have not shown me the books, but they’re not getting rich. And I’m sure you wanna know how much I’m making. Same answer. I don’t know. I get a piece of what I bring in the door, and I have no idea what might walk in tomorrow.”

  “And you’re starting a family?”

  “Yes, and I’ll be home for dinner with my family, and T-ball, and Cub Scouts and school plays and all the other wonderful stuff parents are supposed to do with their kids.”

  “I was there, David, I missed very little.”

  “Yes, you were, but you never worked for a sweatshop like Rogan Rothberg.”

  A pause as everybody took a breath. David said, “We saved a lot. We’ll survive nicely, just wait and see.”

  “I’m sure you will,” his mother said, switching sides completely and now fully aligned against her husband.

  “I haven’t started the nursery yet,” Helen said to Caroline. “If you’d like, we can go to a great shop around the corner and look at wallpaper.”

  “Perfect.”

  The judge touched the corners of his mouth with a napkin and said, “Associate boot camp is just part of the routine these days, David. You survive that, make partner, and life is good.”

  “I didn’t sign up for the Marines, Dad, and life is never good at a huge law firm like Rogan because the partners never make enough money. I know these partners. I’ve seen them. For the most part, they’re great lawyers and miserable people. I’ve quit. I’m not going back. Drop it.” It was the first flash of anger during lunch, and David was disappointed in himself. He drank some mineral water and took a bite of chicken salad.

  His father smiled, took a bite himself, and chewed for a long time. Helen asked about David’s two sisters, and Caroline jumped at the chance to change the subject.

  Over dessert, his father asked pleasantly, “What type of work are you doing?”

  “Lots of good stuff. This week I prepared a will for a lady who’s hiding her assets from her children. They suspect she inherited some money from her third husband, which she did, but they can’t seem to find it. She wants to leave everything to her FedEx deliveryman. I represent a gay couple who are trying to adopt a child in Korea. I have two deportation cases involving illegal Mexicans who were caught in a drug ring. I represent the family of a fourteen-year-old girl who’s been hooked on crack for two years and there’s no place to lock her up for rehab. A couple of drunk-driving clients.”

  “Sounds like a bunch of riffraff,” the judge observed.

  “No, actually, they’re real people with real problems who need help. That’s the beauty of street law—you meet the clients face-to-face, you get to know them, and, if things work out, you get to help them.”

  “If you don’t starve.”

  “I’m not going to starve, Dad, I promise. Besides, these guys do hit the jackpot every now and then.”

  “I know, I know. I saw them when I was practicing, and I see their cases now on appeal. Last week, we affirmed a $9 million jury verdict, a terrible case involving a brain-damaged kid who got lead poisoning from some toys. His lawyer was a sole practitioner who did a DUI for the mother. He got the case, called in a gunslinger to try it, now they’re splitting 40 percent of $9 million.”

  Those numbers bounced around the table for a few minutes. “Coffee, anyone?” Helen asked. They all declined and moved to the den. After a few moments, Helen and Caroline left to inspect the guest room that was about to become a nursery.

  When they were out of range, the judge mounted his final assault. “One of my law clerks came across a story about the Krayoxx litigation. Saw your picture online, the one from the Tribune, with Mr. Figg. Is he a straight-up guy?”

  “Not really,” David admitted.

  “Doesn’t look like.”

  “Let’s just say that Wally’s complicated.”

  “I’m not sure your career will be advanced if you hang around with these guys.”

  “You could be right, Dad, but for now I’m having fun. I look forward to getting to the office. I enjoy my clients,
the few that I have, and I am enormously relieved to be out of the sweatshop. Just relax a bit, okay? If this doesn’t work out, I’ll try something else.”

  “How did you get involved in this Krayoxx litigation?”

  “We found some cases.” David smiled at the thought of his father’s reaction if he told the truth about their search for clients. Wally and his .44 Magnum. Wally offering cash bribes for client referrals. Wally hitting the funeral home circuit. No, there were things the judge should never know.

  “Have you researched Krayoxx?” the judge asked.

  “I’m in the process. Have you?”

  “Yes, as a matter of fact. The TV ads are running in Minnesota. The drug is getting a lot of attention. Looks like another mass tort scam to me. Pile on the lawsuits until the drugmaker is facing bankruptcy, then broker a huge settlement that makes the lawyers richer and allows the manufacturer to stay in business. Lost in the shuffle is the issue of liability, not to mention what’s best for the clients.”

  “That’s a pretty fair summary,” David admitted.

  “So you’re not sold on the case?”

  “Not yet. I’ve plowed through a thousand pages, and I’m still looking for the smoking gun, the research to prove that the drug hurts people. I’m not sure it does.”

  “Then why did you put your name on the lawsuit?”

  David took a deep breath and thought for a moment. “Wally asked me, and since I’m new at the firm, I felt an obligation to join the fun. Look, Dad, there are some very powerful lawyers around the country who have filed this same lawsuit and who believe this is a bad drug. Wally does not inspire a lot of confidence, but other