The King of Torts

Six days after filing the lawsuit, Pace checked in from California. "Tomorrow is the big day," he said.

"I need some good news," Clay said. "The government report?"

"Can’t say," Pace replied. "And no more phone calls. Someone might be listening. I’ll explain when I’m in town. Later."

Someone might be listening? On which end – Clay’s or Pace’s? And who, please? There went another night’s sleep.

The study by the American Council on Aging was originally designed to test twenty thousand women between the ages of forty-five and seventy-five over a seven-year period. The group was equally divided, with one getting a daily dose of Maxatil, the other getting a placebo. But after four years, researchers abandoned the project because the results were so bad. They found an increase in the risk of breast cancer, heart disease, and stroke in a disturbing percentage of the participants. For those who took the drug, the risk of breast cancer jumped 33 percent, heart attacks 21 percent, and strokes 20 percent.

The study predicted that for every hundred thousand women using Maxatil four years or more, four hundred would develop breast cancer, three hundred would suffer some degree of heart disease, and there would be three hundred moderate to severe strokes.

The following morning the report was published. Goffman’s stock got hammered again, dropping to $51 a share on the news. Clay and Mulrooney spent the afternoon monitoring Web sites and cable channels, waiting for some response from the company, but there was none. The business reporters who’d scalded Clay when he filed the suit did not call for his reaction to the study. They briefly mentioned the story the following day. The Post ran a rather dry summary of the release of the report, but Clay’s name was not used. He felt vindicated, but ignored. He had so much to say in response to his critics, but no one wanted to listen.

His anxiety was relieved by the deluge of phone calls from Maxatil patients.

The Gulfstream finally had to escape. Eight days in the hangar, and Clay was itching to travel. He loaded up Ridley and headed west, first to Las Vegas, though no one around the office knew he was stopping there. It was a business trip, and a very important one.

He had an appointment with the great Dale Mooneyham in Tucson to talk about Maxatil.

They spent two nights in Vegas, in a hotel with real cheetahs and panthers on display in a fake game preserve outside the front entrance. Clay lost $30,000 playing blackjack and Ridley spent $25,000 on clothes in the designer boutiques packed around the hotel’s atrium. The Gulfstream fled to Tucson.

Mott & Mooneyham had converted an old train station downtown into a pleasantly shabby suite of offices. The lobby was the old waiting area, a long vaulted room where two secretaries were tucked away in corners at opposite ends, as if they had to be separated to keep the peace. On closer inspection, they seemed incapable of fighting; both were in their seventies and lost in their own worlds. It was a museum of sorts, a collection of products that Dale Mooneyham had taken to court and shown to juries. In one tall cabinet was a gas water heater, and the bronze placard above the door gave the name of the case and the amount of the verdict – $4.5 million, October 3, 1988, Stone County, Arkansas. There was a damaged three-wheeler that had cost Honda $3 million in California, and a cheap rifle that had so enraged a Texas jury that it gave the plaintiff $11 million. Dozens of products – a lawn mower, a burned-out frame of a Toyota Celica, a drill press, a defective life vest, a crumpled ladder. And on the walls were the press clippings and large photos of the great man handing over checks to his injured clients. Clay, alone because Ridley was shopping, browsed from display to display, entranced with the conquests and unaware that he had been kept waiting for almost an hour.

As assistant finally fetched him and led him down a wide hall lined with spacious offices. The walls were covered with framed blowups of newspaper headlines and stories, all telling of thrilling courtroom victories. Whoever Mott was, he was certainly an insignificant player. The letterhead listed only four other lawyers.

Dale Mooneyham was seated behind his desk and only half-stood when Clay entered, unannounced and feeling very much like a vagrant. The handshake was cold and obligatory. He was not welcome there, and he was confused by his reception. Mooneyham was at least seventy, a big-framed man with a thick chest and large stomach. Blue jeans, gaudy red boots, a wrinkled western shirt, and certainly no necktie. He’d been dying his gray hair black, but was in need of another treatment because the sides were white, the top dark and slicked back with too much grease. Long wide face, the puffy eyes of a drinker.

"Nice office, really unique," Clay said, trying to thaw things a bit.

"Bought it forty years ago," Mooneyham said. "For five thousand bucks."

"Quite a collection of memorabilia out there."

"I’ve done all right, son. I haven’t lost a jury trial in twenty-one years. I suppose I’m due for a loss, at least that’s what my opponents keep saying."

Clay glanced around and tried to relax in the low, ancient leather chair. The office was at least five times as big as his, with the heads of stuffed game covering the walls and watching his every move. There were no phones ringing, no faxes clattering in the distance. There was not a computer in Mooneyham’s office.

"I guess I’m here to talk about Maxatil," Clay said, sensing that he might be evicted at any moment.

Hesitation, no movement except for a casual readjusting of the dark little eyes. "It’s a bad drug," he said simply, as if Clay had no idea. "I filed suit about five months ago up in Flagstaff. We have a fast-track here in Arizona, known as the rocket-docket, so we should have us a trial by early fall. Unlike you, I don’t file suit until my case is thoroughly researched and prepared, and I’m ready to go to trial. Do it that way and the other side never catches up. I’ve written a book about pre-lawsuit preparation. Still read it all the time. You should too."

Should I just leave now? Clay wanted to ask. "What about your client?"

"I just have one. Class actions are a fraud, at least the way you and your pals handle them. Mass torts are a scam, a consumer rip-off, a lottery driven by greed that will one day harm all of us. Unbridled greed will swing the pendulum to the other side. Reforms will take place, and they’ll be severe. You boys will be out of business but you won’t care because you’ll have the money. The people who’ll get harmed are all the future plaintiffs out there, all the little people who won’t be able to sue for bad products because you boys have screwed up the law."

"I asked about your client."

"Sixty-six-year-old white female, nonsmoker, took Maxatil for four years. I met her a year ago. We take our time around here, do our homework before we start shooting."

Clay had intended to talk about big things, big ideas, like how many potential Maxatil clients were out there, and what did Mooneyham expect from Goffman, and what types of experts was he planning to use at trial. Instead, he was looking for a quick exit. "You’re not expecting a settlement?" he asked, managing to sound somewhat engaged.

"I don’t settle, son. My clients know that up front. I take three cases a year, all carefully selected by me. I like different cases, products and theories I’ve never tried before. Courthouses I’ve never seen. I get my choice because lawyers call me every day. And I always go to trial. I know when I take a case it will not be settled. That takes away a major distraction. I tell the defendant up front – ‘Let’s not waste our time even thinking about a settlement, okay?’" He finally moved, just a slight shifting of weight to one side, as if he had a bad back or something. "That’s good news for you, son. I’ll get first shot at Goffman, and if the jury sees things my way then they’ll give my client a nice verdict. All you copycats can fall in line, jump on the wagon, advertise for more clients, then settle them cheap and rake yours off the top. I’ll make you another fortune."