First Do No Harm (Benjamin Davis Book Series, Book 1) (40 page)

Most people in the courtroom didn’t know that Dr. English was going to his jail cell anyway, regardless of how well he took the verdict. English was now being held in contempt by two judges, and his prospect of seeing daylight was increasingly unlikely.

As Davis walked out the courtroom door, the jury foreman grabbed him by the elbow. “Mr. Davis, I just want you to know what a learning experience watching you and Mr. Steine has been. I know it’s been a once-in-a-lifetime experience to participate in these jury deliberations. I’ll be a better lawyer for it. Thank you for keeping me on the jury.”

Davis wished the young lawyer good luck. He was waiting on his Bar results taken in July.

Morty, Davis, and Sammie made their way past a pushy TV news reporter from Nashville and the newspaper reporters from Plainview County standing just beyond the courthouse steps. They figured that Boxer’s gag order was still in effect, offering no comment as they went. There were reporters taking notes in the courtroom, so Davis knew that Dr. English’s antics would be mentioned in the press, despite any gag order.

The Davis team headed straight for Davis’s convertible and out of town. In the safety of the car Sammie asked, “What do you think Boxer has up his sleeve?”

Davis laughed and said one word, “Settlement.”

Davis learned from Lorraine Burke that Judge Boxer called the high school principal and commandeered the facility for the entire day. School didn’t start until next Monday, but the staff was supposed to be there, preparing for the new school year. Instead, the staff was given the day off. Boxer refused to inconvenience Hewes County’s high school. Plainview needed to clean up its own mess.

Plainview was just as hot, and the humidity just as unbearable, as Hewes City. It was so bad that Morty wouldn’t let Davis drive with the top down.

As everyone assembled in the high school’s auditorium, Davis spotted Stevenson.

Wearing a perfectly pressed blue pinstriped suit and with his white hair styled immaculately, Stevenson looked like a television attorney. He addressed the judge, and Davis could tell that he regretted the decision the moment he opened his mouth.

“Well, we’re back here at the high school. It feels like déjà vu, doesn’t it, Judge?”

“Not quite, Mr. Stevenson. The Medical Licensing Board has found Dr. Herman reckless, and the jury found all three defendants reckless in the Malone case. Or have you forgotten?”

Stevenson turned the same shade of green as McCoy’s bow tie.

“Look, gentlemen and Ms. Pierce, I want these cases settled,” said Boxer. “It’s in the best interests of all the parties, and more important it’s in the best interests of two communities. These lawsuits are tearing Plainview apart. The community is taking sides, and many people have lost faith in the hospital. The town needs a hospital. I’m also concerned about Hewes County. Its resources and citizens will be exhausted by these cases.”

Davis had to agree. An appeal and seven more trials would destroy not only both communities but also his law practice and marriage.

“I want all counsel, the defendants, and their insurance people in classroom 11 in five minutes. The plaintiffs will wait in the auditorium. It’s the only room big enough to hold the plaintiffs from all eight cases. Mr. Davis or one of his team will be providing you with updates as these negotiations progress.”

Classroom 11 was a tight squeeze with more than fifteen people in the room. Boxer came in and suggested that the men take off their jackets and roll up their sleeves if they thought it would help.

“Look, there’s no court reporter present. That’s no accident. We’re going to have a frank discussion off the record.”

No one dared challenge the judge. He held substantial discretionary power under the law.

“I’ll decide what record is made after this hearing if this case goes to the Court of Appeals. I meant what I said in there. We’ve got to get these cases settled.”

Stevenson spoke up again. Davis gave him credit for guts. “It has to be fair—”

Boxer cut him off. “A jury’s found your hospital guilty of recklessly credentialing these two doctors and allowing them to perform unnecessary surgeries to make more money. You might want to listen rather than talk. I’m reversing my ruling about whether the plaintiffs can introduce evidence of a pattern of reckless care. This jury verdict supports that decision. Mr. Davis, you draw the order.”

Morty cleared his throat and asked the judge if he would take a question.

“Go ahead, Mr. Steine.”

“Can you tell us if each defendant is liable for the $2 million punitive damage award, or is that award divided between the parties based upon the percentages assigned by the jury? There’s a pretrial motion pending that the court took under advisement.”

“Good question. I elected to hold off ruling on that one; I have no guidance because our Supreme Court didn’t answer the issue. If the Supreme Court meant to apply comparative fault to punitive damages, it could have held so. I’m holding each of the defendants liable for the entire $2 million, just like in the old days, joint and several liabilities. Mr. Davis, you can go after any of the defendants, or one of the defendants to collect your $2 million in punitive damages. The defendants can file a lawsuit against each other to figure out if the $2 million should be divided based on percentage. That should cost them each at least another $200,000 in legal fees.”

Boxer was letting the two insurance companies and the Board of Directors of the hospital know that they would be spending a fortune in legal fees to resolve all these issues and that they were better off using those same funds to settle Plainview.

Davis thought that he would add fuel to the fire: “Just for everybody’s information, the plaintiff will be seeking collection of the award of punitive damages from the hospital, not the doctor defendants, since I suspect their policies might not cover punitive damages. That could be another lawsuit between the defendants.”

Boxer turned to Pinsly of Tennessee Mutual and Davenport of PIC and demanded, “What’s the dollar limit of your policies, and are punitive damages covered?”

Both remained quiet, and McCoy broke in: “Judge, this isn’t federal court where insurance limits are discoverable. Under Rule 408 of the Tennessee Rules of Evidence, those dollar amounts are not admissible or even discoverable under Rule 26 of the Rules of Civil Procedure—”

“Damnit, McCoy, I’m not the plaintiff, and I’m not trying to introduce the dollar amounts of coverage into evidence. How much does each of your companies have?”

Pinsly reported that $1,980,000 was left, and Davenport, English’s insurer, had a few dollars less because of the Jones settlement.

“You’re both kicking in $2.5 million each to get these cases settled,” said the judge firmly.

Pinsly protested, “That’s more than our coverage.”

“You would have spent more than $2 million each on legal fees if you were to appeal and try all cases. I’m doing you a favor. Let me remind everyone, I’m the presiding judge on the other cases in which there will probably be more than a hundred motions filed. If the defendants aren’t reasonable and get these cases settled, I predict they might not win any of those motions.”

Davis thought,
Boxer made a good point. A smart lawyer knows when to keep his mouth shut
.

“The jury found that the doctors were sixty percent comparatively at fault, so the hospital’s going to match the payment of the two insurance companies and pay another $5 million, for a total settlement of $10 million. I’m saving the hospital legal fees as well. That’s a nice, round, even number. Does that work for you and your clients, Mr. Davis?”

“I’d like to confer with my team and my clients, but I think I can make that work, Your Honor. How would the settlement funds be divided?”

“That will be my decision. You’ll submit a damage sheet on each case, and I will divide the total settlement among the eight cases. Everyone will agree to be bound by my decision as a condition of settlement. This method doesn’t place Mr. Davis in a conflict of interest between his clients. He won’t be in the uncomfortable position of dividing the pie among them.”

Pierce got the judge’s attention: “Mr. McCoy and I have to make a phone call before we can agree to the terms of any settlement.”

“There are three pay phones in the lobby. Call whoever you want, but come back here in one hour with a settlement.”

Davis, Morty, Littleton, and Sammie joined their clients in the auditorium and got their permission to take the deal. They spoke in vague terms without disclosing the total settlement of $10 million. His clients trusted Davis and gave him the authority to settle their cases. Davis wondered whether the defense would succumb to Boxer’s blackmail and pay the $10 million.

An hour later, they were all back in classroom 11, and they had a deal.

All of the attorneys and Sammie went to the typing classroom, and Sammie was designated official typist of the settlement agreement. It was a short document, which provided that the total settlement amount and the individual settlement amounts would remain confidential. It provided that Davis’s clients, the plaintiffs, would be told only the amount of their own settlement and that all parties were bound to keep the settlements confidential from any third party. All that could be revealed to the press was that all of the cases had been settled. Nothing more could be said. The defense insisted upon that term. It provided that Judge Boxer had complete authority to divide the settlement among the Plainview cases.

The document was circulated, and every party signed it. There were almost twenty signatures. A copy was made for Davis, Stevenson, Pierce, and McCoy. The judge kept the original. No other copies would be made.

Boxer emphasized the need for confidentiality: “I want each of you to explain to your clients the importance of confidentiality. I don’t want anyone talking to the press. Limit your remarks to ‘the cases have settled. No further comment.’ Period. Don’t let me find any of you in contempt. As a gesture of goodwill, I release both Mr. Steine and Dr. English from their contempt findings.”

Boxer could release Dr. English only from his contempt finding. English would be returning to his cell under Judge Lewis’s contempt finding.

Davis went into the auditorium to address his clients: “This has been a long fight. We’ve worked hard
together, and we’ve won an important victory. We will collect money, but Plainview is the true winner. Remember, you must keep the dollar amount of your settlement confidential. You can’t discuss it, not even among yourselves. Judge Boxer was very clear on that point. After the judge decides how to divide the settlement, I’ll be meeting with you individually to go over expenses and arrange payment through my escrow account. You should all be proud of the part you played in these cases. I know I am.

“A wise old man once taught me,” Davis looked over at Morty, so the clients would know his source, “that as a lawyer, all I could get my injured clients were money and justice. Good health was beyond my means. I hope today that you all believe I secured you both good settlements and justice. If you feel that way, then I’ve done my job.”

All of the parties left the high school and were just standing around on the steps when a tall man in a blue suit walked up to Littleton and Davis.

“Mr. Littleton, Mr. Davis, I’m John Rothschild. I’m a United States marshal. I have a notice of lien to serve on both of you on behalf of the Internal Revenue Service for taxes owed by Mr. Littleton.”

Littleton was shocked. Davis felt a heavy weight on his shoulders and felt sick to his stomach. He looked over at the defendants, and English was giggling like a little girl. Those bastards were behind this. Davis knew that an IRS lien would cause a long delay of payment to the clients and of repayment of his expenses and his fee.

Davis was furious at Littleton and let him have it: “Brad, you’re a useless piece of shit. You did nothing to earn your fee, and now your IRS problems will delay
our clients getting their settlements. You’re a disgrace to the profession and to human beings.”

Davis and the others strode away, leaving Littleton alone on the steps of the high school.

The last ten weeks had been hellish. Davis lost whole nights of sleep; he’d stay up and eat. Not snack, but have a second continuous supper. He’d gained more than fifteen pounds. Littleton’s IRS lien prevented payment of any portion of the $10 million of settlement proceeds. Morty filed a lawsuit in federal court to get the funds released so they could at least be paid to the clients. All of the Plainview clients had called at least twice about the status of their funds. Several called twice a week. All Davis could tell them was that there was a hearing scheduled in front of Judge Henry Wise on November 14th and that he was sure that the clients’ portion of the settlement would be released—at least he hoped so.

The bastard Littleton was in hiding, not answering the telephone or responding to hate mail. Littleton wasn’t a likable guy, but now he was downright hated.

Today was the big day of the hearing before United States District Court Judge Henry Wise, scheduled at one o’clock. Davis had appeared before Judge Wise at least thirty times, but Morty would argue the motions. The judge was a personal friend of Morty, who helped Wise get to the bench during the Kennedy administration. They played poker together every third
Thursday of every month. Davis was confident that he would be treated fairly because of Morty’s relationship. Besides, right was still right.

Littleton and the IRS attorney, Barton Lee, shared the defense table. Davis enjoyed watching Littleton squirm, sitting next to the IRS attorney. Littleton was forced to hire his own lawyer, Robert Yates. Littleton was a fool but not fool enough to act as his own lawyer. Yet Yates was marginal at best.