First Do No Harm (Benjamin Davis Book Series, Book 1) (22 page)

The deposition was adjourned.

After the meeting, Amy kept replaying their final conversation in her mind. Davis said that the hospital knew of her client’s incompetency and dishonesty and that the proof was sitting in its pathology lab. She couldn’t call her client. English was on the run, and she could speak to him only when he contacted her. She thought about confiding in Lowell Thomas but decided she better not since she didn’t know the answer to the question. She decided to go straight to the source, the hospital, and call Grayson Stevenson.

“Grayson, something Davis said is nagging at me.”

“You sound surprised. The man’s purpose in life is to keep us off balance and chasing shadows.”

“I’m serious. He claimed that the hospital’s pathology lab knew that English was incompetent and dishonest. He implied that he had the evidence to prove it. I don’t have a client to talk to, so I called you.”

There was dead silence on Stevenson’s end. After about thirty seconds, Amy asked, “Are you there?”

“Yeah, look, I don’t want to discuss this on the phone. Call McCoy, and let’s meet at my office at five.”

“What about Barnes? He’s Dr. Herman’s co-counsel, Jack Barnes?”

“Forget him. He’d be trouble. We’ll figure out how to deal with Barnes at the meeting.”

“This sounds pretty serious.”

“Unfortunately, it is.”

For the next three hours, Amy speculated on the problem. With Dr. English as her client, she had to think outside the box. After his phone call to Mother Superior Nash, anything was possible. He was a real wild card.

Sean McCoy showed up wearing a black-and-white polka dot bow tie. When she invited him to the meeting, Amy told him only that the defense team needed to meet. After they sat down at Stevenson’s conference room table, McCoy asked, “Where’s Barnes?”

Stevenson responded, “He’s not invited. Before we begin, I want to emphasize that this meeting and what’s said here are protected by the co-defendant privilege, and we’re bound to protect our clients from liability.”

“Isn’t the co-defendant privilege generally used in a criminal case?” Amy asked.

“Trust me, it’s applicable here.”

Amy looked over at McCoy, and he nodded.

Stevenson proceeded to explain that Custodian Johnston had lied in her deposition about the existence of the gallbladder slides and that immediately after the deposition, the slides from 1991 and 1992 had gone missing.

“Those slides prove that Dr. Herman made false diagnoses using his ultrasound, that Dr. English removed healthy gallbladders, and that the hospital’s pathology department was a part of the conspiracy to perform unnecessary surgeries.”

“That’s what Davis alleges in his remaining nine lawsuits. He’s got the slides,” McCoy blurted out.

“Of course he’s got the slides. They didn’t walk out of the hospital on their own,” Stevenson said angrily.

Amy said, “Okay, he’s got them, but can he get them into evidence? They’re stolen, aren’t they?”

Stevenson had obviously given that question much thought. He’d assigned an associate to research the issue. “He can get them in. All he has to do is get one of our witnesses to lie and testify that the slides were destroyed, and he can introduce them to impeach the witness to prove that he or she is lying.”

He handed Pierce and McCoy two different Tennessee Supreme Court decisions that supported this conclusion.

McCoy removed his bow tie and undid the top button of his shirt. “What the hell do we do?”

“I’ve spoken to the board, and if Davis has the slides and can use them, the board wants these cases settled cheaply.”

They discussed how to negotiate the cheapest settlement. Everybody agreed that Davis didn’t want to try the Jones case. It was scheduled first only because the defense won the flip of the coin. It wasn’t a gallbladder case, so the slides were definitely inadmissible.

Amy took the development of the defense strategy to the next level. “He’s feeling pretty confident with those damn slides. We make an offer in Jones and the remaining eight cases but tie them to each other.” Amy insisted that they make a take-it-or-leave-it offer. “Settle all nine, or try Jones. He’ll have to communicate the offers, and that should get his clients fighting. Some will want to negotiate, while others won’t.”

Pierce was pretty proud of herself and could tell that she had impressed her co-counsel, McCoy, by his next comment.

“Great idea. Some of those cases aren’t scheduled to be tried until 1996 or 1997. Those clients don’t want to wait till then. They’ll want money now.”

Amy also shared her last conversation with Davis about PIC’s withdrawal of English’s defense. She could tell that neither attorney cared for the strategy because it reduced the number of sources of payment from three to two, but both conceded that the threat added pressure on Davis.

Amy asked her co-counsel under the privilege: “What do we do about Barnes?”

McCoy was quick to answer: “We share with him the settlement strategy, but we don’t discuss the slides. He’d turn us in to the Disciplinary Board, for sure. I don’t think he’d think he was bound by the co-defendant privilege; he’d rationalize reporting us as his ethical obligation.”

Amy agreed. Jack Barnes was a straight arrow, and those slides proved the conspiracy between Dr. Herman, Dr. English, and the hospital.

When she got back to her office, a phone message was waiting from Dr. English: he would call her at eight. She made arrangements for her neighbor to pick up Carter after school. She grabbed a sandwich and worked in the office while waiting for English’s call. At exactly eight, the phone rang.

The conversation didn’t go well from the start. Amy tried to get Dr. English to return, face his contempt, and cooperate in his defense of the Plainview cases.

In response, he kept asking, “What’s in it for
me
?”

Amy warned him that his insurance company, PIC, could pull the plug on his defense. He just didn’t seem to get it. Either that, or he didn’t care. When she mentioned the pathology slides, he went ballistic.

“Davis stole those slides. When did they go missing?”

Amy explained that the hospital discovered their disappearance about a week after the custodian’s deposition and Steine’s heart attack at the hospital.

“I bet there was no heart attack. Davis just used it as a diversion. He’s a sneaky little prick.”

Amy rejected that theory; she was there. Steine had a heart attack. There was objective evidence. But English was probably right that Davis obtained the slides during or right after Steine’s hospitalization. “What difference does it make? He’s got them and can prove that you removed healthy gallbladders.”

“And I should come back why?”

“Because you’ll be on the run for the rest of your life, and they’ll eventually catch up with you.”

“I’m not coming back until we get those slides.”

“Well, I can’t get them back.”

“Maybe you should try a little harder!” he screamed at her. And with that English hung up.

Davis preferred to open his mail rather than delegate the task to Sammie or Bella. Some days, like today, he was a day late. The third envelope he opened was from Amy Pierce. As he read the letter, he could feel his anger rising. He reread the letter and shook his head. Only Pierce had the ability to piss him off while making a settlement offer.

She wrote,

Davis was furious. He grabbed the Code of Professional Responsibility, the ethical code for the practice of law. He quickly confirmed his suspicion that an attorney could not create a conflict of interest for another attorney. Davis slammed the book down so hard his hand vibrated. This offer placed all of his clients in conflict with one another because the acceptance of one offer was tied to all the others.
I just can’t consider any of the offers because they are unethical
, he thought.

The Code of Professional Responsibility and his contracts required Davis to take all offers made to his clients for consideration. However, if Davis communicated the offers to his clients, thus creating a conflict, he would be willingly and knowingly buying in to the defendants’ plan. They were trying to get him in conflict with his clients in the hopes of dividing and conquering them. That course of action would probably result in Davis’s firing or withdrawal from one or more of the Plainview cases.

Littleton was a whole different problem. That asshole didn’t care about the clients or the ethics. All he cared about was money, and these settlements meant a
big payday for him. He hadn’t done any of the work and wasn’t planning on doing any.

Davis decided not to tell Littleton about the offers, but then he noticed that Pierce copied Littleton on the correspondence. She was a real piece of work. She refused to copy Littleton on dozens of correspondences and ignored him when he complained. The one correspondence that Davis didn’t want Littleton to see, there was the “cc. Bradley Littleton.” He needed to call Littleton before he read his mail and could get on the phone to their clients.

“Brad, have you opened your mail this morning?”

“No, what’s up?”

It figured. He was a lazy bastard.

“There’s a letter from Pierce. She’s offering to settle the Plainview cases—”

Littleton cut him off. “That’s great. Let me get it.”

“Read it, but do nothing else. We’ll meet later today to figure out how to respond. How’s one o’clock? Don’t call the clients. We need to talk this through first.”

They agreed to meet at Davis’s office at one. Davis was proud of himself. He didn’t try to bully Littleton. He reasoned with him and put him off.

His next move was to call Pierce and demand that she withdraw the offers. If she refused, Davis would report her first to the Disciplinary Board and then to Judge Boxer. The defendants could make a collective lump sum offer as to all defendants in each case, but they couldn’t ethically tie them to each other; that pitted one plaintiff against another.

Davis calculated in his head the attorney fees that he would earn if he presented these offers and all plaintiffs accepted. He would be able to recoup the $254,000 he
had advanced in the Plainview cases. If he didn’t settle, he would have to invest another $50,000 in the Jones case alone, and that case wasn’t worth the investment, low damages.

Yet Davis blocked the idea of a settlement from his mind. He desperately wanted to settle, but ethically he couldn’t consider these offers. He forced himself to finish opening the mail. He debated whether to call Morty, but he was a big boy and knew the answer to the question. He would tell Morty about the offers after he spoke with Pierce.

He got the firm’s receptionist and asked for Ms. Pierce.

“Pierce here.”

Davis didn’t even like the way the bitch answered the phone. He controlled his voice as he said, “Hello, Amy, I got your letter and offers. Why would you mail it rather than fax it if you set a Thursday deadline? I just read your letter this morning.”

Davis waited for a response, and after a long pause, Pierce replied, “I wanted to give you as little time as possible. You better get on the phone and communicate those offers to your clients, pronto.”

“That may be the first honest thing you’ve ever said to me, Pierce. Well, your newfound honesty doesn’t matter because you’re withdrawing the offers.”

More silence, then Pierce declared, “You’re obligated to take those offers to your clients and then let the fighting begin. At least one of them will want the money. You created this conflict by taking all of these cases.”

Davis leaned back in his chair and raised his voice significantly: “Look, asshole, your offers violate at least
three disciplinary rules, and if you don’t agree to withdraw these offers, I’ll conference Boxer into this conversation and let him order you to. Oh, let’s not forget the Disciplinary Board. I’ll prepare a complaint against you and Tweedledee and Tweedledum. I’m one step ahead of you. You’re not going to conflict me out of any of these cases, so forget it.”

“Does Bradley Littleton agree with you?”

“I don’t give a shit what that tub of lard thinks. He’s just as unethical as you are. If he gives me a hard time, I’ll bring his ass before the board too. Now withdraw your offers in writing and make new ones that stand on their own merits, or let’s go to trial.”

“Are you sure you want to try the Jones case?”

“I admit it’s my weakest case, but eventually we’ll get to a gallbladder case. That’s when the fun begins.”

Davis wasn’t willing to admit that he had the slides, but they both knew what he was talking about.

Pierce didn’t respond to his threat. She sheepishly said, “I’ll have to talk to McCoy and Stevenson. I can’t act on my own.”

“You have one hour until I call Boxer and prepare my complaint to the board. You know how easy it is to file one of those.”

Pierce hung up. Forty-five minutes later, she called back. “The offers stand, but they’re not tied to each other.”

Davis immediately responded: “Put that in writing and fax it over by one o’clock today, or I go to the judge and the board. Have a nice rest of your day.”

At one o’clock, Littleton arrived at Davis’s office and was ushered into the conference room by Bella. Davis, Morty, and Sammie joined him there. They discussed
the dollar amounts of the offers and appropriate counteroffers. After a half hour, Bella interrupted and brought in copies of the fax from Pierce.