Illustration by Danny Elchert
The case of Confidential v. Confidential jumped off the page recently at the website of Missouri Lawyers Weekly.
At first blush, it might seem like none of our business, being confidential and all. Listed as a settlement, it’s a done deal—thus with no prospect of appeal—by two unknown parties.
Who needs that?
But two details you don’t see every day suggest this confidential tale can use a little sunlight:
One, the settlement was for the rather staggering sum of $9.5 million; two, an attorney involved in the case mentioned to Missouri Lawyers Weekly that he had “hustled to file the case before the August 28, 2005, tort-reform deadline.”
Say what?
Turns out the attorney was racing against the state of Missouri’s 2005 tort-reform deadline, meaning that this case was filed under rules that no longer exist in these environs thanks to the “reforms” enacted that year. Specifically, the case was filed in the plaintiff-friendly city of St. Louis, despite the fact that the accident occurred somewhere in central Missouri. That would be a no-no today.
The accident? Oh, that.
A woman was working as a lab technician at a pharmaceutical company in outstate Missouri when a co-worker heated something called phenylacetic acid in an unvented oven next to her office. She was exposed to fumes for 45 minutes before she fell ill and left the room.
She happened to be 11 weeks pregnant at the time. Her baby daughter subsequently suffered severe birth defects.
That child, name unknown (to us), is now 10 and deemed permanently disabled by the state and will require 24-hour care for life. She can’t speak, she’s legally blind, she’s confined to a wheelchair, and she has trouble sitting up, says Dan Ryan, the St. Louis attorney who initially took her case.
Hence the $9.5 million settlement, albeit one in which the pharmaceutical giant admits to no wrongdoing, and both it and its attorneys must remain confidential.
Gee, I wonder how much they’d have settled for had they actually done something wrong?
Hints: It turns out that the woman subsequently had another child with no birth defects. Her special-needs baby was tested extensively, and no known genetic defects were found. The company probably wasn’t settling because it had the world’s greatest defense.
Ryan, meanwhile, adds this interesting wrinkle to the case: Had it happened last week, there’s a real chance that this woman and her family might not have even found a lawyer willing to take the case. This, he claims, is the fruit of “tort reform.”
For perspective, remember that Ryan is the sort of attorney legislators had in mind as a target when they enacted “tort reform” in 2005. He specializes in product-liability and medical-malpractice cases, meaning he is from the part of his profession portrayed by politicians as the lousy, greedy, unprincipled “ambulance chasers” dedicated to ruining our American way of life by extracting giant sums from the unsuspecting companies who made this nation great.
One of the ploys taken away from the likes of Ryan in 2005 was commonly (he says inaccurately) labeled “venue shopping.” This was the sinister practice that trial lawyers used to move their cases in front of evil juries in places like the city of St. Louis, where jurors cannot be counted upon to give a company a decent break.
Contrast this with jurors in “the real America,” to borrow a favorite Palinism. You know, real Americans in the real country, where the air is fresher and the grass is greener and the folks are whiter and large plaintiff victories are as rare as one of those homosexual weddings.
Now what does this have to do with the case of this poor little girl?
Everything.
Ryan was able to “hustle” to get this case filed in the city of St. Louis because at the time, there was a city supplier to the pharmaceutical company named as a co-defendant. That company was eventually released from the case, but the city venue meant the pharmaceutical giant would be facing the great unknown of a jury that might be despicable enough to have more sympathy for the family of the little girl than for the company.
If the case happened today, there would be no suspense: It would have to be filed where the accident occurred, on the home turf of the company, which—it so happens—is located outstate in the Real America.
Is it possible a plaintiff could win a big verdict there? Sure. Is it likely? That’s less certain, given the company’s local power and prominence. And definitely not as likely as in a plaintiff-friendly place like St. Louis, untouched by the company’s clout.
But this case was potentially gigantic, so why wouldn’t plaintiffs’ lawyers be falling all over themselves to take it, regardless of the venue? What’s the big deal about getting a jury pool reputed to be favorable to a victim?
In a word, odds.
The likes of Ryan are the riverboat gamblers of the legal profession. As lucrative as a giant personal-injury suit can be, it’s all about risk and reward, about playing the odds.
Product-liability cases can be extremely complex, requiring that attorneys advance large sums of their own money for expert witnesses and research. They’re generally up against deeper-pocket opponents with the ability to make litigation painfully expensive, Ryan says. It’s an investment, and often a risky one.
Indeed, Ryan says he had neither the resources nor access to the expert witnesses necessary to handle this case, and he was able to do so only by partnering with the much larger Simon Law Firm of St. Louis. John Simon, managing partner of the firm, worked with Ryan, and the two say they spent about $300,000 on the case.
Simon says he and an associate spent “a good part of a year’s time on this case,” which he said involved more than 40 to 50 depositions. He said he wouldn’t make a blanket assertion that the case wouldn’t have been taken had the venue been in outstate Missouri, but it’s also possible that Ryan—looking at the odds—wouldn’t have brought it to him in the first place.
The bottom line is this: The relatively few (mostly big-city) firms with the resources to handle giant cases will probably keep getting them with or without tort reform. It’s the little folks injured in the most conservative venues who stand to lose the most from “tort reform.”
That’s an angle you don’t hear every day.
This was hardly a cut-and-dried case, especially since it involved an obscure chemical with no clear data about risks posed to pregnant women. At the time of the accident, a doctor told the mother that the relatively brief exposure to the fumes would probably pose no problem to her baby.
Only after the child was born with the severe defects—and the mother did extensive Internet research on their possible linkage to the accident—did she get the case before Ryan, he says. And that was after being turned down by another attorney.
The company hotly contested any linkage between the chemicals and the birth defects and argued that the mother might have had genetic defects. After she was tested several times by all sides’ doctors and found not to have them, the company still claimed there might have been “unknown genetic defects,” Ryan said.
The plaintiffs’ lawyers discovered that “this chemical had been tested on laboratory mice and the defects that had been found on the fetuses of the mice were very similar to what she had,” Ryan said. Since human testing is illegal, it’s the best scientific argument they had.
Ryan said the plaintiffs had other positives: strong expert witnesses; “stupid” conduct by the co-worker in “irradiating a chemical in a room full of people with no vent”; evidence that a re-creation of the experiment after hours caused workers to be sick the next day; and, of course, the DNA tests showing no known genetic defects in the baby, along with the fact that her second child had no similar birth defects.
Still, Ryan said, it was a surprise to the plaintiffs that the company settled.
“They’re so big, we just thought they’d roll the dice.”
The settlement meant a big payday for the lawyers—Ryan isn’t saying how big, but typically the attorneys take at least a third off the top when they win—but even with all that, Ryan insists he would likely not have taken this case had the venue been in outstate Missouri.
The risk of a loss before a pro-defendant jury would have made the substantial upfront investment a bad bet, he insists. Conversely, he doesn’t think the company would have been willing to settle at all were it not for the threat of a bad verdict in the city.
Who knows?
What’s certain, Ryan says, is that the family would have faced a lifetime on public assistance without the settlement. He adds that this wasn’t like winning the lottery for them. Actual medical bills to this point have been $450,000, with future medical expenses, rehabilitation, and 24-hour assistive care estimated at another $6 million.
“These are nice, salt-of-the-earth people in their mid-thirties living on a farm in central Missouri,” Ryan says. “He’s Jack Armstrong, the all-American boy, and she’s Nancy Drew, the all-American girl.
“Their only motivation was to get help for their daughter.”
And where are they now?
They haven’t moved. He still has his job. She still works for the pharmaceutical company after all these years, Ryan says.
Hello?
“She needs the job. The money they got is for their child.”
Aren’t you glad the next Mr. and Mrs. Confidential won’t have it so easy in Missouri thanks to “tort reform”?
Maybe this is our business, after all. 7
A co-owner of St. Louis Magazine, Ray Hartmann is a panelist on KETC Channel 9’s Donnybrook, which airs Thursdays at 7 p.m.
