Without precedent, p.1
Without Precedent, page 1
OTHER TITLES BY J. D. TRAFFORD
Good Intentions
Little Boy Lost
Legal thrillers featuring Michael Collins
No Time To Hide
No Time To Die
No Time To Run
This is a work of fiction. Names, characters, organizations, places, events, and incidents are either products of the author’s imagination or are used fictitiously. Any resemblance to actual persons, living or dead, or actual events is purely coincidental.
Text copyright © 2019 by J. D. Trafford
All rights reserved.
No part of this book may be reproduced, or stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without express written permission of the publisher.
Published by Thomas & Mercer, Seattle
www.apub.com
Amazon, the Amazon logo, and Thomas & Mercer are trademarks of Amazon.com, Inc., or its affiliates.
ISBN-13: 9781542040327
ISBN-10: 1542040329
Cover design by Ray Lundgren
First edition
For my father, always optimistic even in passing.
“Somebody has to win the lotto, why not me?”
—JDT
WITHOUT PRECEDENT
Adjective. In the law, a case described as “without precedent” presents a new legal issue or original question of law for which there is no binding authority from an appellate court; such a case presents a novel state of facts involving a question of law never before determined by a court or finder of fact.
CONTENTS
CHAPTER ONE
CHAPTER TWO
CHAPTER THREE
CHAPTER FOUR
CHAPTER FIVE
CHAPTER SIX
CHAPTER SEVEN
CHAPTER EIGHT
CHAPTER NINE
CHAPTER TEN
CHAPTER ELEVEN
CHAPTER TWELVE
CHAPTER THIRTEEN
CHAPTER FOURTEEN
CHAPTER FIFTEEN
CHAPTER SIXTEEN
CHAPTER SEVENTEEN
CHAPTER EIGHTEEN
CHAPTER NINETEEN
CHAPTER TWENTY
CHAPTER TWENTY-ONE
CHAPTER TWENTY-TWO
CHAPTER TWENTY-THREE
CHAPTER TWENTY-FOUR
CHAPTER TWENTY-FIVE
CHAPTER TWENTY-SIX
CHAPTER TWENTY-SEVEN
CHAPTER TWENTY-EIGHT
CHAPTER TWENTY-NINE
CHAPTER THIRTY
CHAPTER THIRTY-ONE
CHAPTER THIRTY-TWO
CHAPTER THIRTY-THREE
CHAPTER THIRTY-FOUR
CHAPTER THIRTY-FIVE
CHAPTER THIRTY-SIX
CHAPTER THIRTY-SEVEN
CHAPTER THIRTY-EIGHT
CHAPTER THIRTY-NINE
ACKNOWLEDGMENTS
ABOUT THE AUTHOR
CHAPTER ONE
Here’s a little secret: most lawyers never see the inside of a courtroom. They sit at a desk, making phone calls, reviewing documents, combing through electronic legal databases, and writing memos. On a good day, they get the privilege to walk down the hall and meet a client in a beige conference room. On a very good day, they get to eat lunch at a somewhat fancy restaurant after that client meeting.
The restaurant, of course, would be one conducive to professionals with expense accounts. That means it has cloth napkins, a decent chicken Caesar salad, interesting art on the walls, and prices that are high, but not so high that the pencil pusher in accounting balks at the reimbursement request.
I’ve never been one of those attorneys. I am a litigator. Lesser attorneys might be content spending their days drafting a will for an old lady or negotiating a contract to buy a building. That, however, wasn’t for me.
At one time, I was a hired gun. Corporations paid ridiculous amounts of money for me to go to court and do battle. It was a game, and I was very good at playing the game. My confidence was my greatest asset and also, I’ve come to understand, my greatest weakness. It blinded me to the unwritten principles of the practice of law: first, creativity is neither sought nor valued; second, the appearance of justice is more important than the achievement of justice; and third, never, under any circumstances, become personally and emotionally involved in any one of your cases, because it will destroy you.
My lack of appreciation and violation of each one of these principles is why I am now on my knees, worshipping a porcelain altar in the sixth-floor bathroom at the Saint Louis Courthouse. I wouldn’t say that it’s nerves. The evidence is in. The jury is about to deliberate. There’s nothing more I can do. Slumped against the wall, I’m left to conclude that my body’s collapse was simply due to the realization of how fast and how far I’d fallen in such a short period of time.
CHAPTER TWO
Less than a year ago, I stood before Federal Judge Susan M. Platte. The courtroom was familiar, and I knew the technology and the layout, because this wasn’t my first time appearing before the judge. It also helped that my firm, Baxter, Speller & Tuft, had built a courtroom replica where we could practice. The firm’s office was on the top floor of a Manhattan office tower, a sixty-story glass box pinning down the corner of Water Street and Maiden Lane.
We lovingly referred to our office as the aquarium, because that was what it looked like, especially at night when all the lights were on. People walking past on the street below saw attorneys and paralegals still working inside. The fish were always swimming, twenty-four hours a day, seven days a week.
Here, in the real courtroom, Trenton Page, senior vice president of BioPrint Pharmaceuticals, sat at my table with a notepad and pen. Next to him was a partner at the firm and my mentor, Francis Kirsch. Even though Francis’s presence was unnecessary, the old guard wanted to keep an eye on me. Since I’d made partner less than a year earlier, I didn’t mind. I liked Francis. He had guided me since I was a summer associate. He had helped me avoid internal firm politics and fed me good projects along the way. I knew he took pride in my work—in what I’d become—and enjoyed watching me perform.
I waited for Judge Platte to grant me permission to proceed, and, when she did, I stood a little straighter, planted my feet, and began. I had notes on the podium in front of me, but I didn’t need them. I knew what Judge Platte wanted. She wanted a legitimate basis to dismiss the plaintiff’s case and clear it off her docket, because that was what all judges wanted. They had to manage their caseload and keep it at a reasonable level. Every day hundreds of lawsuits and motions were filed, and if judges didn’t resolve them quickly, they’d soon be buried so deep that they’d never get out of the hole.
“Your Honor, as you know, at a very basic level, every lawsuit must state a valid claim. The defendant, BioPrint Pharmaceuticals, filed this motion to dismiss because the lawsuit lacks that most fundamental requisite.”
Judge Platte was what our law firm’s database referred to as an “active judge,” meaning that she didn’t just sit and listen. She asked questions and challenged attorneys to debate and consider various hypotheticals. It didn’t take her long to interrupt.
“But, Mr. Daley”—Judge Platte leaned forward—“the allegation is that thousands of children diagnosed with cancer took your client’s drug and died.” She shook her head ever so slightly, suggesting sympathy for the plaintiffs and playing to the audience.
Behind me, in the gallery, there was a reporter for the Wall Street Journal and another from the New York Times. The rest of the seats were filled with lawyers with similar cases, wanting to see how the arguments played out, as well as law clerks, new associates, and courthouse voyeurs simply wanting to see a show.
Judge Platte continued. “That seems like a prima facie basis of negligence to me. Whether the families can ultimately prove it is another thing, but to stand there and say that your client shouldn’t even be subjected to discovery or investigation seems like a stretch.” Judge Platte folded her arms across her chest and leaned back in her big leather chair, clearly indicating that she was going to be skeptical of any response on behalf of my client.
I didn’t become flustered or defensive. I knew what needed to be done: acknowledge the emotion, redirect the court’s focus toward dry legal issues, and shift the liability to somebody else. The last step was key, something that most corporate defense counsel forgot. They’d get bogged down in case law and statutory interpretation. They’d act cold and indifferent to the injured, like a technocrat, and ignore the fact that a judge was human.
I understood that it was important for Judge Platte to think, even if it was an illusion, that the victim would be made whole elsewhere. The judge needed to go to bed at night believing that, although she had dismissed the lawsuit, the victim would still be OK because another lawsuit could be filed in a different court, with different claims, and heard before a different judge. She needed to believe that she did no harm. That was an essential element of any good corporate defense.
“Your Honor.” I paused, shifting my focus to Harold Cantor, the victim’s father. Then I looked at the attorneys on either side of him at the plaintiff’s table. They worked on contingency—they wouldn’t get paid unless they won. Although they considered themselves to be topflight litigators and trial attorneys, they were more akin to gamblers. Once the cards turned cold, they would fold and settle for pennies.
As rehearsed, I held their gaze and took in a deep breath. Then I spoke softly and deliberately. “I t hink what happened to Megan Cantor and the other children was an absolute tragedy.” I bowed my head. Like any good actor, I had the ability to make this gesture seem spontaneous and sincere. “She was too young to die, and I can only imagine the pain that her loss has caused Mr. Cantor and the rest of her family. Their sadness is real. Their pain is real. Their anger is real.”
With step one, acknowledgment of the emotion, completed, I turned back to Judge Platte and held out my hands. Almost apologetically, I said, “But that doesn’t mean we can ignore the law.” My argument moved away from the emotion and now focused the judge on the dry legal arguments that favored my client.
“They have filed a class action,” I said, “which requires commonality among all the class members. They assert that the commonality shared is that each of the class members took a cancer medication sold by my client, BioPrint, which I do not dispute. I know my client may not like to hear me say that, because most attorneys want to fight everything, but I’ve always been straight with the court. The children have that in common. Again, I don’t dispute that fact. However, when you read my supporting memoranda and the attached case law, it soon becomes very clear that this commonality is not enough to go forward.”
I moved to the side of the podium, controlling my pacing as I transitioned into my main legal argument. “There needs to be a breach of duty. And here, my client did not violate any duty. BioPrint developed an effective cancer drug. That drug was rigorously tested over the course of ten years, and it went through all the studies and safeguards required by the Food and Drug Administration before a new drug can be sold to the public. There’s no allegation—none—that my client failed its due diligence or hid information from regulators or anybody else. It got approval for that drug to be sold, and it’s been very successful in saving the lives of people diagnosed with various forms of cancer throughout the United States and the world. Nobody is alleging that this drug, when used as approved and prescribed, is dangerous or ineffective. It works. When tumors are spreading, whether that’s in the lungs or other places in the body, BioPrint’s drug inhibits the growth of existing tumors and stops more tumors from growing at the cellular level. I think that even the plaintiff’s counsel will concede that this drug works.”
I stopped, then repeated myself a third time. “It works.” Looking down at my notes, I felt all eyes on me. The silence had drawn them in. Now it was time to begin a new attack from a slightly different angle. “In order to have a proper lawsuit, the plaintiffs need to allege a breach of duty, which they have not. There’s nothing in the complaint that indicates any fraud or misrepresentation. Nothing. This drug works when it is used as approved and prescribed.”
Judge Platte cleared her throat. “Obviously there has been something.” She wasn’t going to let me go that easily, and I hadn’t expected her to. “There are many cases where the causation isn’t proven specifically, but liability attaches. For example, a plane falls out of the sky and all the passengers are killed. Everybody knows that planes don’t just fall out of the sky. Something happened, and it really doesn’t matter whether it was pilot error or engine failure—liability attaches to the owner and operator of the airplane. Res ipsa loquitur, the fact speaks for itself. The fact that it occurred—the plane falling out of the sky—presumes negligence. Isn’t that the same scenario as what’s going on here?”
The judge’s question provided a perfect opportunity for step three: shifting the liability and absolving Judge Platte of any guilt she may feel about dismissing a lawsuit against a company that likely caused the death of little Megan Cantor and others. Now I’d offer her a solution, a path toward granting my motion to dismiss and allowing her to sleep soundly knowing that she didn’t just screw over the parents of thousands of dead children. That was what good corporate defense lawyers did.
“There is a difference, here, an important distinction, Your Honor. An airline interacts directly with the public, sells tickets, maintains its own planes, and transports its passengers. That isn’t how our health care system works, however. Our health care system is much more complex and fragmented. My client had nothing to do with prescribing this medicine. The injury to the plaintiffs was caused not by my client, but rather by the doctors who improperly prescribed the medication. As you know and the plaintiffs concede, this medicine was approved and tested for adults. It was never approved or tested to be used for children. Doctors took it upon themselves to experiment—”
“But that’s not unusual,” Judge Platte interrupted. “Off-label prescribing has gone on for years, and certainly BioPrint knew that doctors would experiment.”
“You are right.” I wasn’t going to argue the point, because it would simply undermine my credibility. “There are often four or five additional uses for every drug on the market, and there’s nothing per se wrong with prescribing a drug for an off-label use, if the parents and children know exactly what is happening and give their knowing consent.”
I paused, looking down as if the tragedy was weighing on me as well, then continued. “I don’t know if the doctors did their jobs or not, but it would be the primary focus of a medical malpractice claim against the oncologists who used my client’s product for off-label, nonapproved purposes. Each of these doctors has malpractice insurance, and there are other courts who are in a better position than this one to hear and determine those individual malpractice claims.”
I could see that Judge Platte was listening closely. Her demeanor toward me softened.
“By this motion,” I said, “I’m not saying that there shouldn’t be accountability. The people responsible should be held accountable. This is a very tragic situation. If the doctor misled or failed to properly advise Mr. Cantor or other parents, then that doctor should be held accountable. My client, however, did nothing wrong. We weren’t in the examination rooms. We weren’t a part of those conversations between the doctors and the children’s parents. We don’t know what was said, and the plaintiffs allege no specific action that BioPrint took that caused this harm.”
I looked back over at the plaintiff’s table. “I’m afraid their attorneys are simply seeking the easiest path to the deepest pocket. They’re trying to convert individual malpractice claims into a class action, while ignoring the actual doctors that may not have properly disclosed the risk of this medicine to their patients.”
I paused once again, using the silence for emphasis. “There are other legal remedies available to these plaintiffs to make them whole. This lawsuit should be dismissed, and the families should feel free to pursue those other legal remedies. Where, I might add, their claims will be heard and decided much quicker than through a national class action, and, frankly, the damages could be much more favorable than the meager payouts that too many victims receive as a result of these large, cumbersome lawsuits.”
CHAPTER THREE
It didn’t take long for Judge Platte to rule on my motion to dismiss. The order was issued late Friday afternoon, just one week after our arguments. The timing suggested that she wanted to minimize press coverage, knowing that by Friday afternoon the weekend editions of most newspapers had already been set and few reporters wanted to stay late and write something new.
Since the federal courts had gone electronic decades ago, there wasn’t an envelope containing a paper copy of the judge’s order. Instead I clicked a link at the bottom of an email sent by the clerk of courts. Judge Platte’s order opened on my computer, and I scrolled down to the bottom of the first page.
My heart rate quickened, as it always does when reading these, then I saw it: “Based upon the arguments, memoranda, and file in the above captioned matter, the Court hereby Orders that: Defendant’s motion to dismiss is hereby granted.”
I clapped my hands together and spun around in my chair, like a little kid. Then I scanned her supporting memorandum, recognizing the language and cases that the judge had cited. Judge Platte had parroted back my arguments. Then I smiled as I read her final paragraph, where she sympathized with the families and encouraged them to individually evaluate whether a medical malpractice claim was appropriate.
Acknowledge the emotion, redirect the court’s focus to dry legal issues, and shift the liability to somebody else. Works every time.
