Without precedent, p.8
Without Precedent, page 8
As the other passengers on the red-eye went to sleep, I listened to my breath. I counted my heartbeats, and I waited for my hands to stop shaking. My life at a big firm as a New York attorney was over. The closing date for the brownstone in Park Slope would come and go without me, earnest money lost. I figured that it wouldn’t take long for Tess to move in with her new man. She had a plan for her life, and I had no doubt that she would stick to it, with or without me. Now I had to figure out who I really was.
To Francis, I’m sure that I had sounded confident, like a person who’d found his moral compass. Truthfully, however, that compass was doing nothing but spinning. My head was a muddle of thoughts and emotions, highs and lows. I had to start over.
During a five-hour layover in Chicago, I called my brother. It was four in the morning, but he answered. After he told me that I should’ve waited for a direct flight, I explained everything that had happened, and why I’d rather be in an airport than in New York City. When I was done, there was silence. Then he said, “Sue ’em.”
“Excuse me?”
“I said you should sue all the bastards, every single one. If your boss—Tufty or Tufter or Toffee or whatever—thinks there’s going to be a bunch of lawsuits against these drug companies pushing pain pills, why don’t you just sue them yourself?”
“Because it’s not that easy.” I watched a frazzled mother hustle her young son down the terminal, then added, “The case is impossible.”
In my mind, I cycled through the most common causes of action brought by class action attorneys against pharmaceutical companies. None of the claims fit. There was a weak element in each one, causation the most obvious of them. A plaintiff had to prove direct causation—that the injury would not have occurred absent the manufacturer’s negligence.
“There are too many intervening factors, and all the victims are different,” I said. “They come from different walks of life, different circumstances. A class action would start to fall apart the moment it was filed. That’s why Tuft was so jazzed about the idea. It was low risk, high reward. He knows defending these lawsuits will generate thousands of dollars in billable hours, and in the end they all will be dismissed or fade away with a minimal payout, nuisance value.”
“Then don’t do a class action,” Jackson said. “Just focus on Allison, man. Just hold them accountable for our sister.” Jackson was fully awake. His voice grew louder and a little higher.
“Are you asking to be exploited?”
“In order to jack these corporate bastards up, I am. Exploit me.”
“But Mom and Dad would have to sign on,” I said. “I can’t imagine that.”
“I can,” Jackson said. “They trust you.”
“I’m not so sure about that.”
“At first they’ll be resistant,” Jackson said. “But in the end, they’ll go along, even Dad.”
After we finished talking, I checked the time. There were still several hours before the second leg of my flight. I found a Starbucks near a set of bathrooms and a place for a walk-in massage that hadn’t opened yet. I decided to kill time by drinking coffee and surfing the internet until boarding.
As I sat, exhausted and angry, I thought about what it would be like to be a plaintiff’s attorney suing a giant pharmaceutical company. I’d have an advantage, of course, because I knew all the defenses. I’d see the punches and counterpunches coming. The challenge intrigued me, the risk and redemption. After my brief interactions with the NexBeaux executives at the Yankees game, I already knew they were idiots—and I had an email containing inappropriate jokes to prove it.
As I pulled up various news websites on my phone, I combed through the archives and read more about opioid pain medications. With each article, I began to identify important events and key pieces of information. An outline for a potential lawsuit began to take shape in my head. I took the initial set of facts and tried to think of different ways of distilling the history and nature of opioid painkillers to my advantage. It was all a cycle. Nothing was new. NexBeaux was just doing what every drug company had done since the chemical compounds were discovered over a hundred years ago.
Opioid was just an umbrella term encompassing a variety of drugs with similar elements, most importantly diacetylmorphine hydrochloride, that activate the same part of the brain. It started with morphine. Initially morphine was considered harmless, then people realized that it wasn’t. In the 1890s, the German pharmaceutical company Bayer decided to commercialize a new variation of the chemicals, naming it heroin. Like those who first sold morphine, Bayer marketed heroin as harmless. It was supposedly a nonaddictive form of morphine, but that wasn’t true.
A hundred years later, pharmaceutical companies like NexBeaux tried again. A new batch of opioid products came on the market, and, just like morphine and heroin before it, Bentrax was sold as a wonder drug.
Television commercials encouraged people to “ask your doctor about the benefits of Bentrax and how Bentrax can help you better manage your pain” and promised that the drug was “trusted by doctors” and “less addictive than the leading pain medications.” And just like the original marketing of morphine and heroin, the claims made by NexBeaux about Bentrax were wrong.
This would be the basis of any lawsuit. Keep it simple, I told myself. Don’t overreach. Stray too far or ask for too much and I’d lose.
I kept thinking about the lawsuit and the different angles I could play during the flight home. Eventually I heard the panels open beneath the plane as we descended toward the runway. The wheels fought the wind as they were lowered into position. The captain turned off the cabin lights and rang the bell to prepare for landing. As my ears popped, we fell, bounced twice on the runway, and slowed to a stop.
Just like that, I was back home in Saint Louis.
Jackson met me at the baggage claim, a huge smile on his face. Now that I was unemployed, my brother was finally proud of me. We loaded up his truck with my things and headed to our parents’ house in Benton Park. I looked at the time on the dashboard display, and I was relieved that they’d both likely be gone for the day when I arrived.
“Did you call them like I asked?”
“I did,” Jackson said. “They didn’t say much when I told them that you had quit and were coming home for a little while.” When the music broke for commercials, Jackson turned off the radio. “Want me to come in with you?” He signaled at the exit for I-70 east.
“No,” I said. “I’ll be fine. I’m just going to shower and lie down for a little bit.”
“I’ve been thinking about what we talked about . . . the lawsuit and all.” Jackson accelerated around one car and then another. “I was just shooting my mouth,” he said. “If you don’t want to do it, that’s cool.” Jackson rubbed the morning stubble on his chin. “That’s just what I do. When I’m in a corner, I just wanna fight my way out. Figured you should too.”
“No,” I said. “Don’t apologize. I’ve been defending these people for so long, my perspective is all screwed up. The firm pounds it into your head that the ‘client is always right’ and ‘never tell a client no.’ It wears you down, and you start to minimize and rationalize because everybody around you is minimizing and rationalizing.”
“So you’re actually thinking about doing it?” Jackson’s face brightened, but it was obvious that he was trying to stay level. He didn’t want to scare me off. “You’re gonna take ’em on?”
“I’m definitely thinking about it,” I said. “It may be due to sleep deprivation, but I’m definitely thinking about it.”
“Hot damn.” Jackson honked his horn a few times and accelerated past a large delivery truck. “Maybe you ain’t so bad after all.” Jackson put his hand on my shoulder and gave it a squeeze. “All you gotta do is convince Mom and Dad.”
I nodded as we drove past a broken-down Toyota Corolla. There always seemed to be a car broken down on the side of the road about five miles from the Forty interchange. I pictured Harold Cantor, Megan’s father, and how he probably felt when his attorneys told him that Judge Platte had granted my motion to dismiss the BioPrint case. I wondered if my parents could handle the scrutiny that would come with a lawsuit like this. Could they handle losing? “Let’s just take it one step at a time.”
I was trying to keep both our expectations low and grounded in reality. In addition to convincing my parents, if I was really going to do this, I needed help. Although I was licensed to practice law in Missouri, I couldn’t file a major lawsuit from my parents’ basement. NexBeaux would have an army of lawyers. The thought of facing them alone was frightening. I needed to find an army of my own.
As Jackson exited the highway, I had an idea. Even if it was a small army, at least it would be something.
By early afternoon, I was ready. A little sleep, followed by a shower and a shave, had given me some life. I went out the back door and ventured into our detached garage. Junk was piled everywhere. What room was left was taken up by the Mustang, inoperable due to its lack of an engine or wheels. Other than the occasional push from my mother to sell it, the Mustang had been largely forgotten.
I squeezed past the car, sidestepping boxes of Christmas ornaments and random tools. In the back, hanging from the rafters, was my old Trek mountain bike. I had mowed lawns and done odd jobs for an entire summer to afford it. In junior high and high school, that bike had given me freedom.
With some effort, I managed to lift the bicycle off the hooks without knocking everything down. I put it on my shoulder and hauled it outside. In the light, I could better assess its condition. As expected, the tires were flat. Cobwebs draped across the frame and crowded the spokes. Overall, however, not bad. The gears and chain seemed OK. My worst fear was that they would have been covered in rust, but the garage had kept the bike dry. With a little solvent, the gears and chain would shine again.
I found my father’s toolbox and a half-full can of WD-40 on the garage’s workbench. I checked my watch—a quarter past one. Plenty of time. According to the law school’s online schedule, Professor Sherman Friedman’s class met at three.
Sherman and I had met our first day of law school. Incoming students were divided into four-person study groups during orientation. Sherman was one of the three others who were in my group. He came from a prominent Jewish family in Saint Louis, generations of lawyers. From day one, Sherman made it clear to everyone that he was only getting his law license because his father had told him that he’d get cut out of his will if he didn’t carry on the family tradition.
I figured if I could get the bike going, I’d be able to catch him before class.
Forty minutes later, I was on the road. It’d been more than ten years since I’d been on a bike, and the feeling was wonderful. At a stop sign, I looked down at my hands and smiled at the bit of grease on my knuckles. Two weeks ago I couldn’t have imagined being back in Saint Louis and living in my parents’ basement, much less pedaling my old Trek through the neighborhood.
I cut down to Broadway and fifteen minutes later took Chouteau Avenue to the Riverfront Trail. I biked along the river, past the Arch, and up to the Eads Bridge. As cars passed at sixty miles an hour, I couldn’t help wondering what would happen if I got clipped. Only a few feet separated me from the railing—I could easily topple over the side and fall into the Mississippi—but I pushed those thoughts out of my mind as I crossed. Although the wind rocked me back and forth, cars gave me plenty of space. It helped that I wasn’t trying to cross at rush hour.
The Cahokia College of Law was not Harvard. If Harvard was a Lamborghini, then Cahokia was a 1970s Eastern European moped. Don’t get me wrong; I’m not a snob. Not every lawyer from a top-tier law school became a brilliant attorney, but Cahokia occupied a precarious position in the manufacturing and minting of baby lawyers in America.
According to U.S. News & World Report, Cahokia ranked dead last among law schools. Its accreditation was under review, and the federal Department of Education was investigating it for violations of student lending practices because too many kids were taking out loans and defaulting soon after graduation—if they ever graduated at all.
Founded in the late 1970s, Cahokia was meant to provide an opportunity to individuals who wanted to become a lawyer as a second career. A night school, it catered to men and women in their late thirties and early forties. Its early life wasn’t bad. Few, if any, Cahokia graduates became judges or occupied prestigious positions in the Bar Association, but the school did provide hundreds of competent, affordable lawyers who’d eventually hang out their shingles in old neighborhood storefronts. These solo practitioners, these one-attorney shops, would represent people going through divorce, drafting a will, or seeking affordable representation for a low-level criminal offense. Their clients didn’t care whether their lawyer could successfully petition the United States Supreme Court or whether they were members of the local country club—they just wanted some help navigating the courts.
I locked my bike next to the entrance of the building in East Saint Louis, not far from the hospital. This was considered the nice part of town, although it still looked pretty rough to me. East Saint Louis was distinct from Saint Louis. Located just across the river in Illinois, East Saint Louis had always played second fiddle to its bigger cousin. When Saint Louis prospered, East Saint Louis prospered a little less. When Saint Louis struggled, East Saint Louis collapsed. While some might already know that from Jonathan Kozol’s profile of the city’s crumbling schools in his seminal book, Savage Inequalities, for most, the problems facing East Saint Louis were best illuminated by the theft of the Griswold family’s hubcaps in Chevy Chase’s classic comedy National Lampoon’s Vacation.
Inside the law school’s entryway, a security officer was stationed at a desk. I signed in and was directed to the clinic offices and classroom in the basement. When I eventually found the Civil Litigation Clinic, Sherman was standing in front of a small group of his students—very small. Three in all. I had expected more, but it made sense. When trying to find information about Sherman, I found a recent newspaper article that stated that enrollment at Cahokia had dropped 300 percent in the past five years, partly due to the economy and partly due to accreditation issues.
I stood in the back and listened to Sherman rail against the excesses of capitalism, like an overweight Bernie Sanders. “Don’t buy into the myth that our country is bankrupt. Don’t buy into the myth that we can’t afford to provide housing and health care and education to the poor. Are we not wealthier than France and Canada and Norway? Are we not ten times more powerful? Then why can’t we do it? These are the ideas you must keep in the forefront of your mind when asking a jury for damages. To most people, ten thousand dollars sounds like a lottery jackpot, but it’s nothing to these companies. They spend more than that on paper clips.”
The students, a ragtag bunch, laughed and nodded. Each of them had at least one visible tattoo. The skinny woman in the front row had purple spiked hair and what appeared to be a nail through her nose. Even Sherman wasn’t wearing a suit, not even khakis or a dress shirt. Just jeans, sandals, and a faded pink T-shirt from his niece’s bat mitzvah.
I gotta get Sherman and Jackson together. The world will never be the same.
When Sherman noticed me, he did a double take. I’d rarely seen him this speechless. “My God,” he said, recovering, “speaking of the capitalist bourgeoisie.” The class turned to see who Sherman was talking about. “Ladies and gentlemen, we have here a real bona fide corporate blood-sucking lawyer.” Sherman bowed his head slightly. “I want to introduce you to my friend and former law school classmate, Matthew Daley.”
Sherman clapped, and his students clapped along with him. He pointed to a seat near his desk. “Please come forward and sit. The force is a powerful thing, young Jedi. Perhaps I can teach you how to use your powers for good instead of evil.”
“Thanks,” I said as I sat down. “I need all the help I can get.”
Later, the students filed out, leaving Sherman and me to ourselves. “I can see why you love to teach,” I said.
Sherman walked over to the desk where I was sitting. “It never gets old.” He gathered up his notes. “Too bad they’re probably going to shut this place down. I’m not sure what’ll happen.” He paused, and his shoulders slumped. “I doubt I’ll be able to find another teaching gig.” Sherman walked toward the door, and I followed. “Let’s lock up, and I can show you my fancy office with a view of a parking lot and a self-storage facility. Sort of give you the grand tour.”
He guided me up to the third floor. His office was filled with treatises and biographies of various lawyers, particularly Clarence Darrow. Even in law school, Sherman loved Clarence Darrow, the lawyer who famously took on William Jennings Bryan in defense of a teacher who taught the theory of evolution in violation of Tennessee law.
I sat down in a chair across from Sherman’s cluttered desk. “Are you serious about the school closing down?”
“Did you see my class? When I started working here, I’d have twenty kids. Now it’s three.” Sherman picked up a pen and started fiddling. “It’s all wrapped up in the crackdown on those for-profit technical schools. You know the ones—they take out a bunch of cheap television ads during the afternoon reality shows and charge kids who don’t know any better about twenty thousand dollars to learn how to frost a cake or install computer software, but the degree doesn’t actually improve their job prospects.” Sherman looked around him. “We got lumped into that, and I have to admit that sometimes I don’t think this school is much different. There are too many lawyers, and the world doesn’t necessarily need this school. We aren’t for-profit scum, but our graduates certainly struggle, no denying that.”
Sherman looked out the window. The law school’s lawn was filled with bare trees anxiously waiting for those first few days of real Missouri heat to fully come alive. It wouldn’t be long. Sherman then turned and looked at me. “But you saw them and heard them in there. Those kids are going to end up taking cases nobody else will. They’re going to represent people at an affordable price or probably for free.” He set his pen back down on his desk. “I don’t know if that justifies the student loans that every single one of them has or not. I’ve got a lot of mixed emotions about it . . . Maybe I’m just rationalizing my own existence.”
