Bodily Harm (22 page)

“It would make a good doorstop,” Kannin said, weighing the stack of paper in his hand. “I have to give you your kudos, you played Reid like a drum, and that’s no easy task.”

Sloane had thought of the strategy after Kannin reminded him that he had no plaintiff, and even if he did, it would take months before the matter ever reached trial, far too late to keep Kendall from releasing Metamorphis. What Sloane needed was a temporary restraining order preventing Kendall from releasing the toy until it had been independently tested, but Sloane had little chance of getting a TRO, even if he had a plaintiff. A court would not grant a TRO without Sloane showing irreparable harm to his clients. As tragic as the deaths of two boys remained, there was nothing the court could do to change that. The court would deny Sloane’s request because his clients’ recourse was to obtain a money judgment against Kendall. That had been the reason for Sloane’s meeting with Malcolm Fitzgerald. If he could get Fitzgerald to believe he still had the design from Horgan’s file, and that he intended to make that information public, he might just force
Kendall
to move for a temporary restraining order. If so, Sloane
could get his concerns about the toy’s safety before a judge in a matter of days, rather than months.

And even if Kendall won at the TRO stage, Sloane would have another shot at a subsequent hearing on whether the court should enter a permanent injunction, which was an equitable remedy fashioned by the judge using his or her discretion on how best to balance the competing interests of the two parties. If Sloane could get a sympathetic judge he might, at a minimum, get her to order that Kendall submit Metamorphis for independent testing to ensure its safety. The question was whether Fitzgerald would fall for Sloane’s bluff. There was no guarantee he would, not with Barclay Reid as Kendall’s attorney.

Sloane’s investigation revealed Reid to be a graduate of Harvard Law School, where she had been editor of the
Law Review
. She hit the ground running upon graduation and had her own office up and running within two years, growing that office to nearly five hundred attorneys in multiple cities during the next fifteen years. “High energy” and “motivated” were two descriptions reporters often used to describe her. In her early forties, with a teenage daughter from a failed marriage, Reid had served as president of the Washington Bar Association in between putting the fear of God in those she litigated against. An article in the
Bar News
written as her term of office ended quoted her as saying she “missed the litigation trenches.”

“Who’s our judge?” Kannin asked.

“Rudolph.”

Kannin’s eyebrows nearly blended into his hairline. “You’re kidding?”

“I just found out myself, and I don’t think it was the luck of the draw. I think he has an interest in how all of this is going to play out,” Sloane said.

Kannin tapped the pleading. “Rudolph hates this kind of stuff. He doesn’t mind working hard, but it throws off his entire staff’s
calendar, and he’s protective of their time.”

“My inclination is to take the opposite approach.” Sloane directed his comments to Pendergrass, who would draft the initial response. “I want to file something lean and to the point. Insinuate from our response that this is overkill, this is a company worried because it has something to be worried about. If there wasn’t any truth to the allegations they wouldn’t be going to this extreme.”

“We definitely have the better story,” Pendergrass said. “I’ll argue the death of two children over the potential loss of corporate profits any day.”

“Just one child at this point,” Sloane said. “After the hearing on the TRO we’ll file the motion to have the settlement in Gallegos set aside. If we succeed, we’ll add them to the lawsuit.”

“We’ll succeed,” Pendergrass said. “You have Dayron so scared he’ll sign a declaration saying just about anything. The fact that he told the Gallegoses they’d be deported if they didn’t agree, and that they don’t read English, provides a solid basis for getting the settlement thrown out.”

“What about the money?” Kannin asked.

“Moore says he doesn’t have it. He’s sending me a check for three thousand dollars and a note to repay it,” Pendergrass said.

“We’ll advance it, and we’ll pay the Gallegoses’ share,” Sloane said. “I don’t want it taken out of their pocket.”

Anticipating that Sloane would focus on children’s lives over corporate profits, Reid had tried to soften that argument in her moving papers by including a sworn statement from Malcolm Fitzgerald in which he declared that he was a father himself and would never allow a Kendall toy to injure a child if he could prevent it. It came off sounding stilted and forced, but it also let Sloane know that Kendall would argue it had no knowledge the toy could be dangerous, and that if Sloane could somehow prove
it was, Kendall would argue that the toy was not intended for children under the age of seven and that the two deaths were more the product of parental neglect than product defect.

“I’m on it,” Pendergrass said, getting to his feet and leaving the office.

“You got what you wished for,” Kannin said.

Sloane nodded but couldn’t help but consider the adage that having got what he wished for might not be such a good thing.

CHAPTER
NINE

KING COUNTY COURTHOUSE

SEATTLE, WASHINGTON

The following morning, still limping but no longer using a cane, Sloane again entered Judge John Rudolph’s courtroom, this time with both John Kannin and Tom Pendergrass accompanying him. Sloane would argue the matter, but he wanted to send a message to Barclay Reid and Kendall that he could and would staff the case. Kannin also had a prior relationship with Rudolph, who had presided over the criminal calendar for many years and, as Kannin put it, “appreciated my brand of practice,” which Sloane interpreted to mean fighting until, and sometimes after, the bell.

Sloane recognized Reid from photographs in the various legal periodicals. But she was more attractive in person, her hair more auburn than brown and her eyes nearly jade. She met Sloane in the courtroom head-on, like a semitrailer driving a one-lane highway. That, and a firm handshake, indicated she was not intimidated by Sloane’s record. Reid had brought a team of lawyers with her, as well as Malcolm Fitzgerald, and they set up at the table closest to the empty jury box.

The fire again burned when Sloane saw Fitzgerald, and he turned and took a moment to calm down, admonishing himself to stay on course.

“You okay?” Kannin asked.

Sloane now had a responsibility to the Gallegoses and McFarlands, who all had sacrificed much. His first obligation was to find justice for them. In the process he would obtain his own revenge, destroying Kendall Toys and ruining Malcolm Fitzgerald before putting the man in jail.

Rudolph’s staff entered first and sat in the well beneath the judge’s desk. Rudolph followed his bailiff and seemed to make a production of dropping Reid’s tome with a thud on his desk before sitting and rearranging papers. He looked up at Sloane over bifocal glasses but it was Reid who spoke first.

“Your Honor, before we get started I want to be sure that the courtroom is closed to the public and that the participants be forbidden to talk about these matters outside of these proceedings.”

Reid sought a gag order.

Rudolph looked to the back of the courtroom, where several people sat. “I’m going to have to ask you all to leave,” he said, turning to his bailiff. “Quinn, clear the courtroom.”

After the bailiff had escorted out all spectators, Rudolph turned back to Sloane’s table, wasting no time.

“Who’ll argue?” he asked.

“I will, Your Honor.” Sloane stood.

“Then tell me why I shouldn’t grant this order. The design of this toy is trademarked and proprietary, and Kendall has demonstrated a substantial risk of harm if you were to disclose that design in court papers or otherwise to the public.”

“They certainly have met that element of their burden, Your Honor, but as the court recognizes, irreparable harm is only one of four elements they are required to meet. First, they won’t
succeed on the merits because we will prove that the design is defective, that the plastic components do not meet ASTM standards, and that Kendall was given notice of this potential danger before it gave these toys to these children as part of focus groups. They also cannot reasonably argue that the financial harm the company might suffer from a delay in production outweighs the potential injuries that will result to children if they put a defective toy in the marketplace. The public interest in this instance clearly does not weigh in favor of the moving party.”

“Can you show that Kendall had reason to know the toy was dangerous?”

“Your Honor, under a strict liability theory, if I show that Kendall placed a defective and dangerous product into the marketplace, it is responsible for all injuries caused by that product regardless of its knowledge or fault.”

“Then let’s answer that question. What evidence do you have that the product is dangerous? Or that these magnets did not come from some other source?”

Sloane knew Rudolph was testing him, and that he was not achieving a passing grade. But this hearing was not about winning; it was about educating the judge. “Austin McFarland’s older brother, Mathew, and Mateo Gallegos’s older brother, Ricky, were both members of Kendall focus groups for the toy Metamorphis. The toy was in their homes. The parents’ declarations establish that fact. Metamorphis is a product in which the magnets are encased in plastic. Austin McFarland and Mateo Gallegos both died from the ingestion of tiny but powerful magnets that eroded their intestines.”

“But can you prove the magnets came from the toy, as opposed to some other product? Don’t misunderstand my question.” He looked to Reid and her associates, who until that point had been sitting fat and happy. “I think the evidence I’ve read here would certainly be enough to go to a jury, if this matter were to
get that far. But the standard before me this morning is different. I need to balance the equities here. Can you prove that element?”

“Without a sample of the toy or its component parts, I can’t, Your Honor. But I intend to obtain one through discovery.”

Reid stood. “As Your Honor has correctly pointed out, the issue here is irreparable harm. Kendall is prepared to release this product for the holidays. Preventing Kendall from doing so, based on speculation and innuendo, would result in the loss of millions of dollars, not to mention dozens of lawsuits by retailers. It would cripple the company.”

“I think he has more than speculation and innuendo, Ms. Reid, quite a bit more.”

If the shot hit its mark, Reid did not show it. She continued without a pause. “First, Your Honor, Mr. Sloane represents a single family. He may claim to represent the Gallegoses, but his pleadings do not reflect that he does. Their declaration must be stricken as irrelevant. So we are really talking about evidence of a single child, and up until a few days ago, I don’t need to remind this court that Mr. Sloane was convinced, and convinced a jury, that medical malpractice was responsible for that child’s death. Moreover, even if Mr. Sloane could prove that a Kendall product was responsible for that child’s death, which Kendall vehemently denies, the plaintiff’s remedy is monetary damages. As callous as this may sound, no irreparable harm will befall the McFarlands. The harm has already occurred.”

Reid was correct, of course, and she had stated Kendall’s case eloquently, as Sloane expected, which was why Rudolph’s next question surprised Sloane.

“If we are talking about the potential safety of children, what harm would it be to Kendall if I were to order it to submit a prototype for independent testing?”

Reid remained poised, apparently having anticipated this question. “Your Honor, there is no hard evidence to require such
a drastic measure, and anything that caused a delay in the production of this toy would result in millions of dollars in losses. Kendall has timed the release of this product very carefully with the holiday season. It has contractual obligations with its retailers, and anything that might delay or impede production would cause it to breach those contractual obligations. I have provided you with a declaration from an industry analyst attesting to the fact that nearly seventy-two percent of toys are purchased immediately before the Christmas holiday. In light of this substantial harm, and the lack of any solid evidence that the product is defective, the drastic remedy of delaying production to test the toy is not warranted.”

Sloane said, “If the company has no worries, as it professes, there would be no reason for it to shut down manufacturing or be in any jeopardy of breaching its contracts with its retailers while a prototype is inspected.”

“But there is no need or legal obligation that Kendall do so,” Reid shot back. “We have submitted within our packet of materials evidence that the product meets all applicable ASTM standards and, I will add, voluntary compliance with all federal regulations. The product was also tested and approved by the Product Safety Agency. There is no need for the product to be retested and, I must emphasize, there is no regulation that requires Kendall, or any other manufacturer, for that matter, to have their product independently inspected. Mr. Sloane is asking something of Kendall that no manufacturer is required to undertake.”

“No other manufacturer produced a toy that killed my clients’ child,” Sloane shot back.

“Enough,” Rudolph said, putting a quick end to the bickering. “Both of you will direct your comments to the bench. Do not test my patience. I’ll fine you both.” He sat back, contemplating his options.

Sloane was about to speak when Kannin touched his arm to indicate he’d said enough.

“Here’s what we are going to do,” Rudolph said. “I’m going to grant the motion for a temporary restraining order preventing plaintiffs from disclosing any information pertaining to the design of this product, and I am going to set this matter for further hearing on whether a permanent injunction should issue. At that time I will consider again plaintiffs’ request for an independent inspection of the toy. At the moment I don’t have enough information before me to order that be done. Mr. Sloane, how much time will you need to conduct your discovery on that limited issue?”