The Appeal (36 page)

Gilbert became captivated by the story and pursued it doggedly. The attempt to get married in Mississippi smelled like a cynical ploy to thrust the same-sex marriage issue to the forefront of the McCarthy-Fisk race. And only McCarthy was getting hurt.

Gilbert badgered the radical lawyer who represented Meyerchec and Spano, but got nowhere. He dogged Tony Zachary for two days but couldn’t get a word. His phone calls to Ron Fisk and his campaign headquarters went unanswered. He spoke to both Meyerchec and Spano by phone, but was quickly cut off when he pressed them on their ties to Mississippi. He gathered a few choice quotes from Nat Lester, and he verified the facts dug up by the law students.

Gilbert finished his report and sent it in.

T
he first fight was over the question of who would be allowed in the room. On the defense side, Jared Kurtin had full command of his battalion and there were no problems. The brawl was on the other side.

Sterling Bintz arrived early and loudly with an entourage that included young men who appeared to be lawyers and others who appeared to be leg breakers. He claimed to represent over half of the Bowmore victims, and therefore deserved a lead role in the negotiations. He spoke with a clipped nasal voice and in an accent quite foreign to south Mississippi, and he was instantly despised by everyone there. Wes settled him down, but only for a moment. F. Clyde Hardin watched from the safety of a corner, crunching a biscuit, enjoying the argument, and praying for a quick settlement. The IRS was now sending registered letters.

A national toxic tort star from Melbourne Beach,
Florida, arrived with his support staff and joined in the debate. He, too, claimed to represent hundreds of injured people, and, since he was a veteran of mass tort settlement, he figured he should handle things from the plaintiffs’ side.

__________

T
he two class action lawyers were soon bickering over stolen clients.

There were seventeen other law firms jockeying for position. A few were reputable personal injury firms, but most were small-town car-wreck lawyers who had picked up a case or two while sniffing around Bowmore.

Tensions were high hours before the meeting began, and once the yelling started, there was the real possibility of a punch being thrown. When the voices were sharpest, Jared Kurtin calmly got their attention and announced that Wes and Mary Grace Payton would decide who sat where. If anyone had a problem with that, then he and his client and its insurance company would walk out the door with all the money. This calmed things down.

Then there was the issue of the press. At least three reporters were on hand to cover this “secret” meeting, and when asked to leave, they were quite reluctant. Fortunately, Kurtin had arranged for some armed security. The reporters were eventually escorted out of the hotel.

Kurtin had also suggested, and offered to pay for, a referee, a disinterested person well versed in litigation
and settlements. Wes had agreed, and Kurtin found a retired federal judge in Fort Worth who worked part-time as a mediator. Judge Rosenthal quietly assumed control after the trial lawyers had settled down. It took him an hour to negotiate the seating. He would have the chair at the end of the long table. To his right, halfway down and in the center, would be Mr. Kurtin, flanked by his partners, associates, Frank Sully from Hattiesburg, two suits from Krane, and one from its liability insurance carrier. A total of eleven at the table for the defense, with another twenty packed behind them.

To his left, the Paytons sat in the center, opposite Jared Kurtin. They were flanked by Jim McMay, the Hattiesburg trial lawyer with four death cases out of Bowmore. McMay had made a fortune on the fen-phen diet pill litigation and had participated in several mass settlement conferences. He was joined by a lawyer from Gulfport who had similar experience. The other chairs were taken by Mississippi lawyers who had legitimate cases from Bowmore. The class action boys were shoved into the background. Sterling Bintz voiced his objection to his placement in the room, and Wes angrily told him to shut up. When the leg breakers reacted badly, Jared Kurtin announced that the class actions were the lowest priority on Krane’s list, and if he, Bintz, hoped to collect a dime, then he should keep quiet and stay out of the way.

“This ain’t Philadelphia,” Judge Rosenthal said. “Are those bodyguards or lawyers?”

“Both,” Bintz snapped back.

“Keep them under control.”

Bintz sat down, mumbling and cursing.

It was 10:00 a.m., and Wes was already exhausted. His wife, though, was ready to begin.

__________

F
or three hours nonstop they shuffled papers. Judge Rosenthal directed traffic as client summaries were produced, copied next door, reviewed, then classified according to the judge’s arbitrary rating system: death was Class One, confirmed cancer was Class Two, all others were Class Three.

A stalemate occurred when Mary Grace suggested that Jeannette Baker be given first priority, and thus more money, because she had actually gone to trial. Why is her case worth more than the other death cases? a trial lawyer asked.

“Because she went to trial,” Mary Grace shot back with a hard gaze. In other words, Baker’s lawyers had the guts to take on Krane while the other lawyers chose to sit back and watch. In the months before the trial, the Paytons had approached at least five of the other trial lawyers present, including Jim McMay, and practically begged them for help. All declined.

“We will concede that the
Baker
case is worth more,” Jared Kurtin said. “Frankly, I’m unable to ignore a $41 million verdict.” And for the first time in years, Mary Grace actually smiled at the man. She could have hugged him.

At one, they broke for a two-hour lunch. The
Paytons and Jim McMay hid away in a corner of the hotel restaurant and tried to analyze the meeting so far. Going in, they were consumed with the question of Krane’s intent. Was it serious about a settlement? Or was it a stunt to push along the company’s agenda? The fact that the national business papers knew so much about the secret settlement talks made the lawyers suspicious. But so far Mr. Kurtin had given every indication that he was a man on a mission. There had been no smiles from the Krane suits or the insurance boys, perhaps a sign that they were about to part with their money.

__________

A
t 3:00 p.m. in New York, Carl Trudeau leaked the word that the negotiations were progressing nicely down in Mississippi. Krane was optimistic about a settlement.

Its stock closed the week at $16.50, up $4.00.

At 3:00 p.m. in Hattiesburg, the negotiators reassumed their positions, and Judge Rosenthal started the paper mill again. Three hours later, the initial accounting was complete. On the table were the claims of 704 people. Sixty-eight had died of cancer, and their families were blaming Krane. A hundred and forty-three were now suffering from cancer. The rest had a wide range of lesser illnesses and afflictions that were allegedly caused by the contaminated drinking water from the Bowmore pumping station.

Judge Rosenthal congratulated both sides on a hard
and productive day, and adjourned the meeting until nine o’clock Saturday morning.

Wes and Mary Grace drove straight to the office and reported to the firm. Sherman had been in the negotiating room all day and shared his observations. They agreed that Jared Kurtin had returned to Hattiesburg with the goal of settling the Bowmore litigation and that his client seemed committed to that end. Wes cautioned that it was much too early to celebrate. They had managed only to identify the parties. The first dollar was nowhere near the table.

Mack and Liza begged them to go to the movies. Halfway through the eight o’clock show, Wes began to nod off. Mary Grace stared blankly at the screen, munching on popcorn and mentally crunching numbers related to medical expenses, pain and suffering, loss of companionship, loss of wages, loss of everything. She did not dare entertain thoughts of calculating attorneys’ fees.

__________

T
here were fewer suits and ties at the table Saturday morning. Even Judge Rosenthal looked quite casual in a black polo shirt under a sport coat. When the restless lawyers were in place and things were quiet, he said, with a great old voice that must have dominated many trials, “I suggest we start with the death cases and walk through them all.”

No two death cases were the same from a settlement standpoint. Children were worth much less than adults
because they have no record of earning power. Young fathers were worth more because of the loss of future wages. Some of the dead folks suffered for years, others went quickly. Everyone had a different figure for medical bills. Judge Rosenthal presented another scale, arbitrary but at least a starting point, in which each case would be rated based on its value. The highest cases would get a 5, and the cheapest (children) would get a 1. Time-out was called several times as the plaintiffs’ lawyers haggled over this. When it was finally agreed upon, they began with Jeannette Baker. She was given a 10. The next case involved a fifty-four-year-old woman who worked part-time in a bakery and died after a three-year battle with leukemia. She was given a 3.

As they plowed through the list, each lawyer was allowed to present his particular case and plead for a higher rating. Through it all, there was no indication from Jared Kurtin of how much he was willing to pay for any of the death cases. Mary Grace watched him carefully when the other lawyers were talking. His face and actions revealed nothing but deep concentration.

At 2:30, they finished with Class One and moved to the longer list of those claimants who were still alive but battling cancer. Rating their cases was trickier. No one could know how long each would survive or how much each would suffer. No one could predict the likelihood of death. The lucky ones would live and become cancer-free. The discussion disintegrated into several heated arguments, and at times Judge Rosenthal was flustered and unable to suggest a compromise. Late in
the day, Jared Kurtin began to show signs of strain and frustration.

As 7:00 p.m. approached and the session was mercifully winding down, Sterling Bintz could not restrain himself. “I’m not sure how much longer I can sit here and watch this little exercise,” he announced rudely as he approached the table at the far end, away from Judge Rosenthal. “I mean, I’ve been here for two days and I haven’t been allowed to speak. Which, of course, means my clients have been ignored. Enough is enough. I represent a class action of over three hundred injured people, and you all seem determined to screw them.”

Wes started a rebuke, but thought better of it. Let him ramble. They were about to adjourn anyway.

“My clients are not going to be ignored,” he practically shouted, and everyone grew still. There was a hint of madness in his voice and certainly in his eyes, and perhaps it was best to let him rant a little. “My clients have suffered greatly, and are still suffering. And you people are not concerned with them. I can’t hang around here forever. I’m due in San Francisco tomorrow afternoon for another settlement. I got eight thousand cases against Schmeltzer for their laxative pills. So, since everyone here seems quite content to chat about everything but money, let me tell you where I am.”

He had their attention. Jared Kurtin and the money boys perked up and stiffened a bit. Mary Grace watched every wrinkle in Kurtin’s face. If this nut was about to throw a figure on the table, she wanted her adversary’s reaction.

“I’m not settling my cases for less than a hundred thousand each,” Bintz said with a sneer. “Maybe more, depending on each client.”

Kurtin’s face was frozen, but then it usually was. One of his associates shook his head, another one smiled a silly smile of amusement. The two Krane executives frowned and shifted as they dismissed this as absurd.

As the notion of $30 million floated around the room, Wes did the simple math. Bintz would probably take a third, throw a few crumbs at F. Clyde Hardin, then quickly move on to the next mass tort bonanza.

F. Clyde was cowering in a far corner, the same spot he’d occupied for many hours now. The paper cup in his hand was filled with orange juice, crushed ice, and four ounces of vodka. It was, after all, almost 7:00 p.m. on a Saturday. The math was so simple he could do it in his sleep. His cut was 5 percent of the total fees, or $500,000 under the rather reasonable scheme being so boldly suggested by his co-counsel. Their arrangement also paid F. Clyde $500 per client, and with three hundred clients he should have already received $150,000. He had not. Bintz had passed along about a third of that, but seemed disinclined to discuss the rest. He was a very busy lawyer and hard to get on the phone. Surely, he would come through as promised.

F. Clyde gulped his drink as Bintz’s declaration rattled around the room.

Bintz continued. “We’re not taking peanuts and going home,” he threatened. “At some point in these negotiations,
and the sooner the better, I want my clients’ cases on the table.”

“Tomorrow morning at nine,” Judge Rosenthal suddenly barked. “As for now, we are adjourned.”

__________

“
A
Pathetic Campaign” was the title of the lead editorial in Sunday’s
Clarion-Ledger
out of Jackson. Using a page out of Nat Lester’s report, the editors damned the Ron Fisk campaign for its sleazy advertising. They accused Fisk of taking millions from big business and using it to mislead the public. His ads were filled with half-truths and statements taken wholly out of context. Fear was his weapon—fear of homosexuals, fear of gun control, fear of sexual predators. He was condemned for labeling Sheila McCarthy a “liberal” when in fact her body of work, which the editors had studied, could only be considered quite moderate. They blasted Fisk for promising to vote this way or that on cases he had yet to review as a member of the court.

The editorial also decried the entire process. So much money was being raised and spent, by both candidates, that fair and unbiased decision making was in jeopardy. How could Sheila McCarthy, who had so far received over $1.5 million from trial lawyers, be expected to ignore this money when those same lawyers appeared before the supreme court?