First Do No Harm (Benjamin Davis Book Series, Book 1) (12 page)

English interrupted and in a loud voice proclaimed,
“What a bunch of bullshit! Dr. Herman and I gave the best possible care. Medicine is an art, not a science. There is no guarantee in life. Every one of those patients signed a consent form, and each consent form identified the known risks of surgery. Did you say you read the five lawsuits? I was served with another one today. The total now is six.”

Amy asked him to fax over the sixth lawsuit. She then tried to take charge of the situation: “Doctor, I don’t want you discussing these lawsuits with anyone other than Mr. Davenport and me. Anything you say to anyone else is admissible in court. I particularly don’t want you discussing these lawsuits with Dr. Herman or any other hospital employee. If Dr. Herman tries to discuss them, just blame me. For now, all your communications need to come through me—”

He interrupted again and began a tirade about Ben Davis and the unfounded lawsuits.

She let him rant. He needed to vent, and Amy was the only one who could listen without English injuring his defense. But after fifteen minutes, even though she was billing PIC $200 an hour, she heard enough.

Amy politely interrupted. “I apologize, Doctor. I have a four o’clock appointment,” she lied. “My secretary tells me they are waiting in reception. Can I call you tomorrow? What would be a good time?”

“I have a laser gallbladder surgery in the morning. I should be back in the office before noon.”

She looked at her calendar. “Why don’t I call you at twelve thirty, and we can pick up where we left off?”

They said their good-byes, and Amy hung up. Thinking about what just transpired, she picked up the
phone and punched in Lowell Thomas’s extension: “Do you have ten minutes?”

“If we can both bill for it, I’ve got thirty minutes till my next appointment. Come on by.”

Within two minutes, Amy was knocking on Thomas’s door. As she walked in, he asked, “What can I do for you? More important, who are we billing for the next half hour?”

Amy gave Thomas the twenty-minute version of the English lawsuits. She brought in one of the complaints and quoted from the pleading. Thomas silently took in his associate’s words until she paused for a breath.

Thomas jumped in: “Six lawsuits and counting. This could be a gold mine. You’ll never try all six, but if you try one or two, the fees will be close to half a million. PIC will become one of our biggest clients. Thank you, Dr. English.”

Despite the fact that Thomas was her boss and a named partner, Amy interrupted, “That’s why I’m here. This is my big opportunity. And I want some guarantees before I bust my ass and make this firm and its partnership wealthier. Lowell, I’ve worked hard, and I’ve turned in results. If I deliver in these Plainview cases, I want your promise of partnership.”

“Now, don’t be too effective and resolve this matter quickly. We want to milk this situation awhile. You bill, say, at least six hundred hours and then settle them cheap. The new Supreme Court comparative fault and punitive damage opinions should be good for at least a hundred hours of research and briefing alone in these cases,” he told her.

“Lowell, stop seeing dollar signs for a second and answer my question. If I deliver on these Plainview
cases, do I get my partnership?”

Thomas again avoided the question and mentioned that she’d be working with Grayson Stevenson’s firm, which would be representing the hospital. He then said, “We need to feel out the other defense counsel. It’s important we present a united front. Eventually the hospital will turn on the doctors and their insurance companies. These two doctors are pretty much attached at the hip, at least until trial. It sounds like Herman should take the brunt of the fall. In that death case, it was Herman’s patient, and our client smartly left on vacation immediately after surgery. It’s hard to blame English for the postoperative care if he was more than nine hundred miles away.”

Amy was becoming annoyed at Thomas for avoiding the most important question of her life. She needed his commitment, or she would quit right here and now. Why do all the work and just let Thomas and his partners make the money? She wanted a partnership from this opportunity. If not, then she had no doubt that she could easily get a job at another Nashville firm. She was a real asset wherever she went and knew she could eventually earn a partnership anywhere. However, it might be years before she was handed another opportunity like the Plainview cases. Most associates never were offered a partnership on a silver platter, but Plainview was most definitely silver.

She needed to be somewhat diplomatic with Thomas and not blow her opportunity. It was still his firm and his firm’s client. Davenport and PIC would stay with DMT if she decided to leave. So she took a slightly different approach: “In each case the plaintiff is seeking punitive damages based on recklessness. The Tennessee
Supreme Court opinion in Hodges vs. Toof will, as you say, guarantee a hundred hours of research and briefing. I suspect the six cases will require at least a hundred depositions. The depositions, for the most part, must be taken in Plains County, and I’ll charge $200 an hour to travel back and forth for each deposition and court appearance. I’ll be billing a fortune over the next eighteen months. I can stretch these cases out for at least three years.”

Thomas was getting more excited by the moment, as if he was watching a pole dancer at a strip club. However, his available half hour was up, and his secretary buzzed to say that his appointment was waiting.

Amy stood her ground. “I need an answer right now. I’m not leaving your office without your promise of a partnership.”

She folded her arms across her chest and waited for Thomas’s next move. He clearly didn’t like her ultimatum. But the single mother was convinced that the best move was to press the issue.

Thomas stared at her hard; she’d cornered him and was insisting on an answer.

Amy was both excited and scared by what he might say next.

“You deliver on these Plainview cases, and you get your partnership.”

“That’s two points, Lowell. I’ll send you a confirming memo when I get back to my office.”

Davis was tired. He had slept only two hours the previous night, worrying about the scheduling conference before Judge Boxer.

Morty had always told Davis that the judicial system was supposed to have a predetermined order, but it was flawed and almost never worked the right way. The goal of the scheduling conference was to set deadlines. Deadlines meant that the cases were moving toward trial. Plaintiffs wanted cases to get to trial while defendants rarely wanted to see the inside of a courtroom. A trial carried the risk of a jury verdict. Generally, delay was a defendant’s friend. In the case of the Plainview lawsuits, Davis needed the order of the trials to be set so he knew on which case to focus his time and money.

It was a beautiful November morning in Middle Tennessee, and the temperature was mild. Davis and Morty were in Davis’s black Eldorado convertible. Davis didn’t let Sammie attend the meeting with defense attorneys, held the day before. She spent the day at the office with Bella, while Morty and Davis met with Stevenson, Pierce, McCoy, and Barnes.

Morty scolded Davis that not including Sammie was a bad decision. “How do you expect her to learn if she
doesn’t observe what happens in the real world and how we handle it? You’re a schmuck. She’s my responsibility. I’m making the call next time.”

Davis was forced to be defensive: “Look, she’s got skills, but she’s a distraction. She takes up my time and energy.”

“It’s no longer your problem,” Morty shot back.

Davis changed the subject. “How long do you think this damn hearing will take?” he yelled over the howling wind.

Morty hated that the top was down in November. Davis also had annoying habits, which included playing music too loud, without the courtesy of headphones.

Morty expected the hearing to last a few hours. That is, he said, “unless Boxer takes immediate and absolute control of his courtroom. I doubt he will. There are a lot of strong personalities, and they’ll be long-winded.”

Davis didn’t like that answer. He figured that Morty included himself as one of those strong personalities and, jokingly he thought, long-winded. There were at least four defense lawyers for four defendants, and he represented only one party in each case. The process could easily turn into a free-for-all, which would not be in his clients’ best interest.

Davis decided to put in his two cents. “I don’t think it will take that long. The parties’ counsel got a lot of hard work done yesterday. We spent four hours together. We just haven’t agreed on the order of the cases. It’s our choice. We filed the lawsuits, so we get to decide the order. I wish we had found case law to support that position.”

Morty said, “We can assume the defendants didn’t find anything favorable on the point either, or they
would have argued it yesterday and included those citations in their brief. The judge should be pleased with all that was accomplished by the parties before this hearing.”

The four hours of hard work resulted in ten draft-scheduling orders, which set deadlines over the next five and a half years. The trials were scheduled about five months apart with the first case being set sometime in January 1994. The attorneys were in general agreement on the order of the deadlines. The group was able to agree that in the ten cases there were at least eighty-eight specific individuals who had to be deposed, including twenty-three plaintiffs. These witnesses included the injured plaintiffs, their spouses, and the ten Malone children.

The parties agreed that certain depositions, known as common depositions, would be taken only once and then used in all ten cases, which would save both time and money. There were at least forty-eight common depositions; the cost would be shared among Davis’s ten clients.

Apart from the common depositions, Davis would have deposed at least seventeen witnesses whose testimony would pertain only to a single case. Everyone agreed that it was impossible at that point to set specific depositions until the order of the cases was determined. The attorneys brought their calendars and set aside seventy-six days between Thanksgiving 1992 and July 4th, 1993, to take depositions in the Plainview cases. Coordinating seventy-six dates for depositions among at least four lawyers’ calendars was a monumental feat. The lawyers would later determine which depositions would be taken on which dates. The order of
depositions would be determined based upon the availability of the witnesses.

It was a delicate balance for the plaintiffs. Davis and Morty wanted to push the cases to trial, yet they had to give themselves sufficient time to prepare each case.

Despite the general agreement among counsel, the previous night’s meeting ended badly. Without any intent, Davis happened to glance over at Stevenson’s open folder and discovered that Stevenson had a generic letter that Davis sent to all ten of his own clients. Like Morty, Davis could read upside down. Davis was outraged that Stevenson had the document. The letter notified Davis’s clients of the upcoming scheduling conference and had no strategic value, but Davis’s concern was that Stevenson had the letter. There was a leak, and eventually that leak would provide critical information to the defense. The leak had to be plugged or used to the plaintiffs’ advantage.

Before leaving Stevenson’s office, Davis took Morty aside and revealed what Stevenson had. Morty pointed out that only their clients, their clients’ families, or someone with access to the ten mailboxes could have taken and provided the letter to adversary counsel. Morty convinced Davis not to confront Stevenson and instead figure out a way to use the theft of their communications to their advantage.

Davis took Morty’s advice but could not control his emotions. His attitude changed during the last part of the meeting when he accused Grayson Stevenson of trying to manipulate the jury and the outcome of the trial. The parties could not agree on trial venues or the order the cases would be tried. Davis argued that his clients could not get a fair and unbiased trial in Plains
County. The hospital was the largest employer in the county, and people not working at the hospital were related to or friends with someone employed there.

Stevenson argued that the defendants had a right to try the cases before the citizens of Plains County, not by strangers. Stevenson’s position was generally correct under Tennessee law. Therefore, the burden was on Davis to prove that a fair trial was impossible. Under the law, Davis would have to present at least three affidavits of disinterested citizens that a fair trial was impossible in Plains County. The final decision about where the trials would be held would be within the discretion of Judge Boxer.

After the meeting, Morty suggested that their plan should be to isolate those persons whom they suspected had fed the defendants the letter and feed them harmless false information. If they could reduce the number of suspects to five or six, they could vary the false information to isolate the traitor. If they could discover the identity of the source, the defendants and their counsel would be in trouble.

Morty and Davis had no problem with defense counsel trying to manipulate the verdict by who sat on the jury. An attempt to manipulate the order of the cases was a legitimate goal of defense counsel. That was their job, but using stolen letters crossed the line.

The order in which the cases were tried was critical. Whether the defendants were negligent was an important question. The more important question, however, was whether the first jury found recklessness and awarded punitive damages, and the dollar amount awarded to the first plaintiff was most important. The dollar amount of compensatory damages depended on
the specific circumstances of each case and the extent of the plaintiff injuries. Another factor in the amount of the award was just how likable the plaintiff was. Whether punitive damages were awarded was a matter of how upset Davis could get the jury. The jury needed to want to punish the defendants.