Law and Addiction

by Mike Papantonio

  “That’s a bold theory.”

  “There is ample evidence to prove it.”

  “Let’s say that’s true. Let’s even say you have a case. What do you honestly think your chances of survival are in that predatory world you just described?”

  “I’d like to think the Bible is right when it says the truth shall set you free.”

  “I’m more of a believer in the song lyrics that say ‘Praise the lord and pass the ammunition and we’ll all stay free.’”

  “I think I have the ammunition to make my case.”

  “You better have, because you’ve targeted a wake of vultures that will try and pick your bones clean before you even know you’re dead. I can promise you that, merely based upon what you’ve already filed. Right now, there is a bounty on your head, and these particular bounty hunters are two-thousand-dollars-an-hour corporate lawyers who will seek to take your scalp.”

  Jake suppressed a shiver, but only just. “That’s why I’m here asking you for advice,” he said, “and what I hope will also be your help. As you know, the McQueen Health Corporation has filed a motion to dismiss in both the West Virginia and Ohio courts where I filed claims. I need advice as to how to proceed. And since I’ve got my hat in my hand already, I’m hoping you’ll consider being my co-counsel in court, at least to fight their first motion to dismiss in West Virginia.”

  Paul raised his brows. “You do understand that beating the motion to dismiss will be the easiest part of your case?” he said.

  “I hope you’re right.”

  “Trust me, I am right.”

  “Intellectually, I understand that, but it scares me to think MHC can stop me at the starting gate and end the race before it begins. I’ve already done so much work and learned so many things. It would kill me to not be able to tell this story in a courtroom.”

  “I’m assuming you’re not surprised that MHC responded as they have?”

  “No,” Jake said, “but . . .” The word hung there as he thought out his answer. “I guess I didn’t expect such a vigorous response.”

  “Welcome to the Big Leagues,” Paul said.

  “What do you mean?”

  “MHC’s motion was designed to scare the bejesus out of you, as well as anyone who might consider coming to your aid.”

  “It did. In comparison, I’m sure my plaintiff’s pleading was amateurish.”

  “Claims can be amended,” said Paul. “Understand that their response was calculated. They threw every conceivable legal and personal attack into their motion because they wanted to create shock value. So how shocked are you?”

  “Let’s just say it got my attention,” said Jake. “And that’s why I’m here seeking out some advice, and maybe a little courage.”

  “I don’t know if I can deliver either,” said Paul, “but on a positive note, I can assure you after twenty years of lawyering that overkill and overreaching on a motion to dismiss shows genuine fear on their part. And it also shows not a little loathing directed your way. They hate you for daring to question their tactics. Goliath—and by that I reference MHC and other Fortune 500 Companies they are in league with—can’t even tolerate the notion of a David challenging them. From the onset they’ll want to squash you.”

  “You mean they won’t just play nice with us?” said Jake.

  Paul met his eyes. Jake was smiling. “Us?” asked Paul. “If you don’t mind my asking, Jake, how much money did you make this past year?”

  “Just under thirty thousand dollars,” he said. After a moment’s hesitation, he decided to be totally forthcoming: “But almost half of that was doing part-time census work. The rest was from offering legal advice.”

  Paul nodded, and then very gently said, “Jake, do you understand that movies featuring the scrappy lawyer taking on the corporate bad guys are not based on reality?”

  “Are you saying it’s a rigged game?” asked Jake.

  “Let’s just say it’s not an even playing field. It’s not David going up against Goliath. No, he’s going up against Goliath and the fifth infantry. And at the end of the day, David ends up bankrupt, with his life in shambles.”

  The lump in Jake’s throat prevented him from breaking the silence. In so many words, Paul Vogel had just told him he thought the case was hopeless. He bit down hard on his lip. He didn’t want to shed bitter tears, or tears of any sort.

  “Thank you for your time, Mr. Vogel,” he managed to say.

  As he rose, Paul said, “Whoa, my young warrior. Sit down.”

  Jake sank back into the chair.

  “I just wanted to make sure you understood what you’re going up against,” Paul said. “Or I should say, what we’re going up against. I’ll be your second chair in the motion-to-dismiss hearing.”

  Jake let out pent-up air and even managed a smile. He reached across the desk, and this time shook the hand of his co-counsel.

  4

  JAZZ HANDS

  The Robert C. Byrd Courthouse, named after the eight-term U.S. senator, took up an entire city block in Charleston, West Virginia. The two men followed the deserted sidewalk around the impressive—and to Jake’s eye, intimidating—nine-story courthouse. The building incorporated a combination of neoclassic, Egyptian, and art deco designs, including forty-foot marble walls inset with tall stained-glass panels.

  “Some building,” said Jake with an admiring nod. “This is the right place for us to make history,” said Paul, offering a subtle reminder about why they were there.

  It certainly wasn’t Paul’s first rodeo; during his years practicing law in West Virginia, Jake knew, he had won some of the largest verdicts in the state.

  “I like the sound of that,” said Jake, his breath visible in the morning chill.

  Their steps were unhurried; Paul made sure their conversation was as well. He knew how much this proceeding meant to Jake, and how worried he was.

  “Did you stay with family or friends here in town last night?” Paul asked.

  29 Jake shook his head. “I knew I was too worked up to be fit company for anyone, so I got up early and made the drive from Oakley. And when I say ‘got up,’ that means I got out of bed after hours of not being able to sleep.”

  Paul looked him over and nodded with approval. “Your youth serves you well. I don’t see any dark circles. What I see is a confident lawyer ready to kick butt.”

  “Thanks,” said Jake. “Out of curiosity, though, when was the last time you saw your ophthalmologist?”

  Paul smiled. The more the two had worked together, the more Jake had come to appreciate Paul’s easygoing sense of humor—and Paul himself.

  “I’m a firm believer in having a prescription for rose-colored glasses,” Paul said. “You’ll find them helpful if you’re going to be a good trial lawyer.”

  “I thought justice was supposed to be blind.”

  “Lady Justice does wear a blindfold—but that doesn’t mean she never peeks out from under it.”

  “I did my due diligence on Perry,” said Jake, shifting topics. Judge Willard Perry was sixty-four years old and had been a U.S. District Court judge for the last five years. “He’s conservative. I don’t think anyone would characterize him as a plaintiff’s judge.”

  “It doesn’t matter if he’s conservative or liberal,” said Paul. “What matters is if he’s fair and follows the letter of the law. From my experience with him, Judge Perry will do that.”

  “What else can you tell me about him?”

  “He was born and raised in West Virginia. I’m sure you’ll have known individuals much like him. He likes to cut to the chase and sometimes has fun doing it. What you’ll need to remember in this proceeding is that less is more. You excel when it comes to the facts, figures, and statistics surrounding this case, but most of those things are not germane to a motion to dismiss. Remember the acronym KISS—keep it simple, stupid. This is a relatively straightforward hearing. The corporate mouthpieces are going to come in and make those same three basic arguments
they laid out in their pleading. We’re going to hear that every word in the complaint you filed failed to state a legitimate legal claim that the court can grant any relief for. And then they’re going to argue that even if you did succeed in providing a legitimate legal claim, it’s all for naught, as they had no control over any of the bad things that doctors, pharmacists, and drug dealers did with their perfectly safe product. And, finally, they’re going to argue that it’s impossible for you to prove exactly how much money Wirt County lost because of costs related to EMT services, county hospital services, extra police services, and court costs. And the first words out of your mouth will be . . .”

  Jake replied with the words Paul had made him memorize; it was the same response most lawyers used to refute any motion to dismiss: “Your Honor, West Virginia law is clear on the guidelines for granting summary judgment: The court must treat as true all well-pleaded facts stated in the complaint in a light most favorable to the claimant.”

  Paul nodded his approval. “Perfectly said. And you will repeat it over and over to the judge, all the while intertwining it with ugly facts. One of my favorite sayings is: There is nothing uglier than reason when it is not on your side. Remember, we don’t need to win our case here. We simply need to be the voice of reason and remind the judge what the law is, while filling his ears with the kinds of facts that will predispose him to dislike our opponents. Our goal is to live so we can fight another day, and maybe in the process tilt the judge’s attitude ever so slightly against these predators. Roger that?”

  Jake nodded. Paul made it sound so simple. He’d learned a lot from Paul’s mentoring; at the same time he felt like an athlete who’d heard enough coaching and just wanted to get out there and play.

  As they rounded a corner of the building, they saw a uniformed deputy approaching the front doors of the courthouse. In his hand was a set of keys.

  “Looks like the bailiff is here,” said Paul. “What do you say we get out of the cold?”

  Jake’s heart was pounding so hard he could only hear half of what Paul was saying. He tried looking at the typed notes he’d spent so many hours preparing, but reading them was like trying to understand a foreign language. For one panicked moment, Jake even had trouble remembering his own name.

  Maybe I should write it down, he thought, so that I don’t forget it.

  Even though court employees had gone about making preparations for the first case to be heard, the courtroom had remained quiet. Voices had been respectfully lowered; greetings had been muted. Jake was reminded of the hushed activities preceding the start of church.

  That quiet came to a sudden end with the appearance of the defendants. Paul and Jake had both made guesses as to the size of the lawyers’ contingent. Now was the moment of truth.

  “It will be as much about show as anything else,” Paul said. “In a motion to dismiss, you don’t need more than two attorneys. That means they’ll probably have four. And of those four, I’m guessing at least two will be female. We can also expect at least one minority attorney. That will send a supposedly subliminal message demonstrating how fair and evenhanded the defendants are.”

  “Five attorneys,” Jake had guessed, arguing just to be contrary.

  As it turned out, the defendants marched in with four attorneys and a paralegal. Two of the attorneys were female. One of the male attorneys was black; one of the females was Asian. The paralegal was Latina. All were impeccably dressed.

  “Wolves in sheep’s clothing,” whispered Paul, “and by that, I mean Oxxford and Armani worsted wool suits.”

  One of the two male attorneys was clearly in charge. His subordinates, who carried enough items for them to qualify as Sherpas, were tending to him as if he were a potentate. The attorney looked their way, flared his nostrils as if smelling something questionable, and then approached their table. He offered a wide smile that showed teeth bleached to an unnatural whiteness, and extended a hand. “Mr. Rutledge? I’m Nathan Ailes.”

  Paul shook his head along with Ailes’s hand. “I wish I was the more handsome and youthful Mr. Rutledge,” he said, “but I must confess that I am only the second chair, Paul Vogel.”

  An apparently chagrined Nathan Ailes said, “My mistake.” Then he turned to Jake and appeared surprised—if not somewhat aghast—at what he saw. With an expression bordering on disbelief, he looked Jake up and down. The worn state of Jake’s shoes brought on a momentary smirk.

  Jake hoped he wasn’t blushing. His entire body was suddenly hot, and his stomach felt as if he’d been hit deep in the solar plexus.

  “I apologize, Mister Rutledge,” Ailes said, though it sounded as if he were questioning the use of the word Mister.

  The two men shook hands, and then Ailes made a point of rubbing his hand dry before withdrawing.

  It was bad enough to feel like a fool, Jake thought, but worse to hear Paul laughing. He turned, ready to tell Paul off, but the other man spoke first.

  “What an asshole,” Paul whispered. “And what a bad actor the way he pretended he didn’t know who you were. I guarantee you MHC had their investigators find out everything they could about you. This Ailes guy probably even knows your favorite brand of toothpaste. I guess he thought by holding his nose up in the air and acting like you were a mere mortal, you would be intimidated.”

  Jake’s sweats suddenly vanished. He was breathing again. The pit in his stomach had mostly filled in.

  “You ever see that movie A Knight’s Tale?” Paul asked.

  Jake started nodding. It had been a favorite of his and Blake’s.

  “You remember what that self-satisfied prick of a count said after he beat the knight in their first joust? ‘You have been weighed, you have been measured, and you have been found wanting. In what world could you possibly beat me?’”

  And now Jake answered it with the knight’s words: “‘In this world,’” he said, “‘and at this time.’”

  “My feelings exactly,” said Paul.

  Jake felt a fire rising from deep inside him all the way to his eyes. He was a knight errant on a Holy Grail mission. This was the first battle in his crusade to avenge Blake.

  “I got your back, brother,” he whispered.

  vvv The bailiff called everyone to rise, and Judge Willard Perry entered the courtroom. Perry wasn’t a big man, but he exuded authority. His salt-and-pepper hair was cropped in a military cut. He wore blackrimmed glasses that seemed to have the dual purpose of vision enhancement and prop. Paul had told Jake that whenever the judge heard something he didn’t like, or he thought an argument was going on too long, he would move his glasses down his nose so as to better glower at the attorneys. Many judges liked the sound of their own voices, Paul had said, but not Perry. Jake quickly saw this demonstrated in court. Perry made it clear he was not in love with anyone’s oratory, not even his own.

  That included Nathan Ailes, who prided himself a poet. He’d hardly started his opening remarks when the judge told him, “Get on with it.”

  Ailes smiled and said, “Yes, Your Honor,” pretending that he was fine with being forced to rein in his verse. Ailes looked at his notes, then back up at the judge.

  “There are ten valid reasons to dismiss this claim,” he said, holding up both hands to signal the number ten.

  The finger waving was not to Judge Perry’s satisfaction; he pulled his glasses down his nose, and Ailes dropped his jazz hands.

  “Those ten reasons are included in our response to the plaintiff’s pleading. It is our belief that each and every one of those reasons demonstrates that what was alleged by the plaintiff cannot be proven.”

  Jake’s original pleading had been all of twelve pages long. Its brevity, he’d told Paul, was a result of his not being paid by the hour. The truth of the matter was that because Jake had never written such a document before, he’d been more comfortable keeping it succinct. Besides, he’d known he could add to the claim in the future. Paul had tidied up the pleading but had added only one more page to
its length. Their opponents weren’t as pithy. The defense’s motion to dismiss had run twenty-five pages.

  “Mr. Rutledge asserted in his claim,” Ailes said, “that my client caused widespread addiction, along with many other ills in this world, because of their having lawfully distributed medicinal opioid products.”

  Ailes shook his head and looked over at Jake disparagingly. That was enough in the way of dramatics to bring the judge’s glasses down over his nose again.

  “That allegation cannot be proven,” said Ailes, “but let’s say for the sake of argument that their claim could be proven. There still is no case because there is no cause of action under West Virginia law.

  “Further, the plaintiff’s claim implies that my client is somehow responsible for the drugs after they are distributed. I don’t think we have to remind this court that the defendant is in the business of health care, and not law enforcement. As such, my client is not empowered, nor does it have any legal duty, to provide any form of law enforcement in regard to the products marketed, nor is it encouraged to do so.

  “The claim also states that my client should have foreseen the consequences that would result from its having distributed these drugs. If it please the court, health care companies are not in the psychic business. Not only is MHC innocent of malfeasance, it is also innocent of anything that could be characterized as negligence. What the McQueen Health Corporation does is simple to understand, even if Mr. Rutledge misses the obvious. It distributes a product designed to improve the lives of people suffering from pain. What the rest of the world does with that product after MHC has lawfully circulated it is beyond its control.”

  The judge began impatiently tapping his index finger; there was something gavel-like about his action, but Ailes pretended to ignore the tapping and continued speaking.

  “Also, Your Honor, contrary to what this young man hints at in his complaint, my client can’t tell doctors who they should be writing prescriptions for, or for how many pills. That is the responsibility of physicians; it is not the responsibility of my client.”