The Appeal (43 page)

They had only one prayer left, and that was for a miracle. Could this be it?

They waited. The decision was due any day now.

__________

B
y early Tuesday afternoon, Josh was beginning to show signs of improvement. He was awake, alert, and following commands. He couldn’t talk, because of the breathing tube, but he seemed fidgety, which was a good sign. The pressure on his brain had been reduced to almost normal levels. The doctors had explained several times that it would take days, maybe weeks to determine a long-term prognosis.

With Josh awake, the Fisks decided to spend the night at home. This was greatly encouraged by the doctors and nurses. Doreen’s sister agreed to sit in the ICU, within fifteen feet of her nephew’s bed.

They left Jackson, relieved to be away from the hospital and anxious to see Zeke and Clarissa. Their conversation was about home-cooked food, long showers, and their comfortable bed. They vowed to savor the next ten hours, because their ordeal was just beginning.

But it would be difficult to relax. On the outskirts of Jackson, Ron’s cell phone rang. It was Justice Calligan, and he began the conversation with a long-winded inquiry into Josh’s condition. He conveyed condolences from everyone at the court. He promised to stop by the hospital as soon as possible. Ron was thankful, but soon had the feeling there was a business angle to the call.

“Just a couple of matters, Ron,” Calligan said, “and I know you’re preoccupied right now.”

“I am indeed.”

“There’s nothing terribly urgent here, except for two cases. It looks as though that Bowmore toxic case is split 4 to 4. No surprise there, I guess. I was hoping you would concur with me on this one.”

“I thought Romano was writing, too.”

“He is, and he’s finished, as is Albritton. All opinions are ready, and we need your concurrence.”

“Let me sleep on it.”

“Fine. The other is that nursing home case out of Webster County. Another 4–4 split.”

“That’s a very ugly case,” Ron said, almost in disgust. In yet another nursing home case, a patient was basically abandoned by the staff and eventually found unfed, lying in his own waste, covered in bedsores, unmedicated, and delirious. The company that owned the
facility had reported huge profits, which came as a surprise to the jury when it was proven just how little was spent on patient care. Nursing home abuse was so rampant Ron was already sick of reading about it.

“Yes, it is. Very tragic,” Calligan said, as if he were capable of sympathy.

“And I guess you want to reverse?”

“I don’t see the liability, and the damages are exorbitant.”

In the three and a half months Ron had been on the court, Justice Calligan had never managed to see liability in any death or injury case. He believed jurors were stupid and easily led astray by slick trial lawyers. And he believed that it was his solemn responsibility to correct every miscarriage of justice (plaintiff’s verdict) from the comfort of his detached environment.

“Let me sleep on it,” Ron said again. Doreen was becoming irritated with the phone call.

“Yes, always a good idea. If we could finish these two cases, Ron, then a short leave of absence might work.”

A short leave of absence, or a long one for that matter, was solely within the discretion of each justice. Ron did not need Calligan to approve it. He thanked him anyway and hung up.

The Fisks’ kitchen was filled with food from friends, mainly cakes and pies and casseroles. A buffet was arranged on one counter, and they ate with Zeke, Clarissa, two neighbors, and Doreen’s parents. They slept six hours, then drove back to the hospital.

When they arrived, Josh was in the midst of a prolonged seizure, the second in the past hour. It passed and his vital signs improved, but it was a setback in his slow recovery. Thursday morning, he was alert again, but irritable, restless, unable to concentrate, unable to remember anything about the accident, and highly agitated. One of the doctors explained that his condition was symptomatic of post-concussion syndrome.

Thursday night, the Rockies’ coach, Ron’s former law partner, drove to Jackson for another visit. He and Ron had dinner in the hospital canteen, and over soup and salad he pulled out his notes. “I’ve done some research,” the coach said. “Win Rite stopped making the lighter bats six years ago, probably in response to complaints about injuries. In fact, the entire industry went to minus four and nothing higher. Over the years, the aluminum alloys got lighter but also stronger. The barrel of the bat wall actually absorbs the ball upon contact, then launches it when the wall pops back into its original position. The result is a lighter bat, but also a much more dangerous one. Safety advocates have been bitching about these bats for a decade, and lots of studies have been done. In one test, a pitching machine threw a fastball at 90 miles an hour, and the ball came off the bat at 120. Two fatalities on record, one in high school, one in college, but hundreds of injuries in all age-groups. So, Little League and some of the other youth organizations got together and banned anything above a minus four.

“But the problem is obvious. Win Rite and the other
bat makers have a million of the old bats still out there, still being used, and we finally saw one in the game last Friday.”

“There was never a recall?” Ron asked.

“None whatsoever. And they know the damned things are dangerous. Their own tests prove it.”

Ron was nibbling on a saltine, certain of where this was going and unwilling to help it get there.

“The Rolling Fork team is probably liable, but it’s not worth the trouble. The City of Russburg could be held liable because the umpire, a city employee by the way, failed to check the equipment. And the big tuna is, of course, Win Rite. Assets of two billion. Tons of insurance coverage. Very good case of liability. Damages undetermined but substantial. All in all a strong case, except for one small problem. Our supreme court.”

“You sound like a trial lawyer.”

“They’re not always wrong. If you ask me, I say you should consider filing a product case.”

“I don’t recall asking you, and I can’t file a lawsuit. I’d be laughed out of the state.”

“What about the next kid, Ron? What about the next family that will go through the same nightmare? Litigation has cleaned up a lot of bad products and protected a lot of people.”

“There’s no way.”

“And why should you and the State of Mississippi get stuck with a million bucks in medical bills? Win Rite is worth billions. They made a lousy product; make them pay.”

“You are a trial lawyer.”

“No. I’m your former partner. We practiced together for fourteen years, and the Ron Fisk I remember had great respect for the law. Justice Fisk seems determined to change all of it.”

“Okay, okay. I’ve heard enough.”

“I’m sorry, Ron. I shouldn’t have—”

“It’s okay. Let’s go check on Josh.”

__________

T
ony Zachary returned to Jackson on Friday and heard the news about Josh Fisk. He went straight to the hospital and eventually found Ron napping on a waiting room sofa. They talked for an hour about the accident, about the surgery, and also about Tony’s fishing expedition down in Belize.

Tony was deeply concerned about young Josh. He certainly hoped the child would make a quick and complete recovery. But what he wanted to know, but couldn’t bring himself to ask, was, “When might you finish up with the
Krane
appeal?”

As soon as he was in his car, he called Barry Rinehart with the disturbing news.

__________

A
week after he arrived at the hospital, Josh was moved from the ICU to a private room, one that was immediately inundated with flowers, stuffed animals, cards from his fifth-grade classmates, balloons, and enough candy to feed an entire elementary school. A cot was
arranged so that one of his parents could sleep next to his bed.

While the room at first gave the impression of a lighter mood, things turned gloomy almost immediately. The team of neurologists began extensive evaluations. There was no paralysis, but a definite decline in motor skills and coordination, along with severe memory loss and an inability to concentrate. Josh was easily distracted and slow to recognize objects. The tubes were gone, but his speech was noticeably slower. Some recovery was likely in the months to come, but there was a good chance of permanent damage.

The thick head bandages were replaced with much smaller ones. Josh was allowed to walk to the restroom, a heartbreaking sight as he shuffled awkwardly forward, one clumsy step after another. Ron helped him, and fought back tears.

His little baseball star had played his final game.

D
r. Calvin Treet drove to Russburg and arranged a meeting with the ER physician who had read the wrong CT scan. After they examined the two scans, Josh’s and the other patient’s, they argued briefly before the doctor admitted that the emergency room that night had been chaotic and understaffed, and, yes, mistakes were made. The fact that he’d botched the treatment of the son of a supreme court justice was overwhelming. “Will the family file suit?” he asked, clearly shaken.

“I don’t know, but you should notify your insurance company.”

Treet took the file to Jackson and discussed it with Ron and Doreen. He walked them through standard CT scan procedure, then recounted his conversation with the ER doctor.

“What should’ve been done?” Doreen asked.

Treet knew the question was coming. He knew he
would be asked by his friends to pass judgment on the performance of another doctor. He had decided days ago to be as honest as possible. “They should’ve brought him here immediately and removed the blood clot. It’s brain surgery, but it’s not a complicated procedure. Josh would have been home two days after surgery, completely healed with no damage whatsoever.”

“This CT scan was taken at eight o’clock Friday night,” Ron said. “You saw Josh in Brookhaven about nine hours later, right?”

“Something like that.”

“So for nine hours the pressure continued to build inside his skull?”

“Yes.”

“And the compression of the brain by the blood clot damages the brain?”

“Yes.”

There was a long silence as they danced around the obvious conclusion. Ron finally asked, “Calvin, what would you do if it were your kid?”

“Sue the bastard. It’s gross negligence.”

“I can’t sue, Calvin. I’d make a mockery out of myself.”

__________

A
fter a game of squash, a shower, and a massage in the Senate gym, Myers Rudd ducked into a limo and suffered through the late afternoon traffic like everyone else. An hour later, he arrived at the general aviation terminal at Dulles, and there he boarded a Gulfstream
5, the newest in the fleet owned by Mr. Carl Trudeau. The Senator did not know who owned the jet, nor had he ever met Mr. Trudeau, which in most cultures would seem odd since Rudd had taken so much money from the man. But in Washington, money arrives through a myriad of strange and nebulous conduits. Often those taking it have only a vague idea of where it’s coming from; often they have no clue. In most democracies, the transference of so much cash would be considered outright corruption, but in Washington the corruption has been legalized. Senator Rudd didn’t know and didn’t care that he was owned by other people. He had over $11 million in the bank, money he could eventually keep if not forced to waste it on some frivolous campaign. In return for such an investment, Rudd had a perfect voting record on all matters dealing with pharmaceuticals, chemicals, oil, energy, insurance, banks, and on and on.

But he was a man of the people.

He traveled alone on this night. The two flight attendants served him cocktails, lobster, and wine, and the meal was hardly over when the Gulfstream began its descent into Jackson International. Another limo was waiting, and twenty minutes after landing, The Senator was dropped off at a side entrance of the University Medical Center. In a room on the third floor, he found Ron and Doreen staring blankly at a television while their son slept. “How’s the boy?” he asked with great warmth as they scrambled to get to their feet and look somewhat presentable. They were stunned to see the
great man himself suddenly appearing from nowhere at 9:30 on a Tuesday night. Doreen couldn’t find her shoes.

They chatted softly about Josh and his progress. The Senator claimed to be in town on business, just passing through on his way back to Washington, but he’d heard the news and felt compelled to drop in for a quick hello. They were touched by his presence. In fact, they were rattled and found it hard to believe.

A nurse broke things up and declared it was time to turn off the lights. The Senator hugged Doreen, pecked her cheek, squeezed her hands, promised to do anything within his power to help, then left the room with Ron, who was startled to see no signs of an entourage hovering in the hallway. Not a single staffer, gofer, bodyguard, driver. No one.

The Senator had come to visit, all by himself. The gesture meant even more to Ron.

As they walked down the hall, Rudd offered the same quick “Howdy” and the same plastic grin to everyone they passed. These were his people, and he knew that they adored him. He was blathering on about some mundane fight in Congress, and Ron was trying to appear captivated while suddenly wishing the man would just wrap things up and leave. At the exit doors, Rudd wished him well, promised to pray for the family, and extended offers to help on any front.

As they shook hands, The Senator, almost as an afterthought, said, “By the way, Judge, it’d be nice to finish that
Krane
appeal.”

Ron’s hand went limp and his jaw dropped. He tried to think of a response. As he treaded water, The Senator gave his parting shot. “I know you’ll do the right thing. These verdicts are killing our state.”

Rudd grabbed his shoulder, blessed him with another plastic grin, then walked through the doors and disappeared.