A Minor Fall

by Price Ainsworth

  I nervously drummed my fingers on the steering wheel while nodding my understanding of the instructions and glancing at the rear view mirror to see if I knew anyone in the cars behind me. When she finally handed me the stapled sack with the prescription, I screeched the tires as I pulled away from the window.

  I opened the sack while driving and put the brown bottle of pills in my pocket. I tore up the label attached to the bag into little pieces so that I could flush them down a toilet.

  The next outbreak? I knew there was no cure, but I had not begun to calculate the consequences of the next outbreak. What was I supposed to do? I dug around in my glove compartment and found a bottle of Aleve, and transferred the contents of the two bottles. Then I scraped the label off the bottle that had contained the acyclovir, tore it up into little pieces and stuffed that into my pocket to be flushed later as well.

  Was I going to have to repeat this episode every month? Would I ever be able to have sex again? I assumed I wouldn’t ever be able to have sex again with Michelle. What about the fact that I had already had sex with her once? Maybe, while she was pregnant, I could avoid having sex with her, but what was I going to do after the baby was born? Would I only be able to have sex with women that had herpes? Beth was the only person I knew with herpes, or who knew that I had been exposed to herpes. Would I have to have secret sex with Beth any time that I felt like I just had to have sex?

  I stopped at a gas station and disposed of the label remnants. As I flushed them down the toilet, I realized that I had thrown away my entitlement to a refill, and that someday, after three or four more outbreaks, I would have to return to the clinic.

  I drove through Hermann Park and watched the couples with strollers leaving the butterfly museum. I had to talk to somebody. I had to ask somebody the questions that were racing through my head, even if he or she couldn’t answer them. I called Beth on her cell phone, and asked her to meet me at the Monarch Bar in the Hotel Zazu, which was the old Warwick Hotel beside Hermann Park.

  It was almost lunchtime, but the Monarch Bar was deserted. It billed itself as the “scene to see and be seen,” but there were only a few people in the lobby checking out of the hotel. I found a seat in the back and ordered a Corona. I told the waitress I was waiting for someone, but that I didn’t expect to order lunch. I wondered as she took my order if she could tell that I was harboring a venereal disease. Could she tell that I had been unfaithful to my wife? Could she tell that I was watching my world crash down around me?

  I saw Beth as she walked through the front door, across the lobby, and into the dimly lit, overly decorated bar. Apparently back when “George Bush the First” had been president, the Queen of England or British Prime Minister stayed at the Warwick. I doubt if either would have stayed at someplace called the “Hotel Zazu.” In any event, the Monarch moniker was still affixed to the bar. But that could just be because of its proximity to the butterfly museum. Beth was wearing jeans and a sweater with the cross necklace on the outside of the turtleneck. As she sat down across from me at the table where I was sitting, her eyes were red and swollen, but she still looked incredible. The anger, that I had intended to unleash on her, melted away as I watched her sit down.

  “It’s official,” I said, “I’ve got it.”

  She looked around to be sure that nobody could hear us before she said, “I was afraid of that. I’m so sorry. I never would have done anything to hurt you. Did you go to the doctor?”

  I told her about the dehumanizing experience at the STD clinic. I asked her whether the medication had helped her, and she told me that it had. When a waitress came by I ordered another beer, and Beth ordered coffee with cream. The question about what to do next sat between us for a considerable period of time without either of us addressing it, or even talking. I sipped my beer, and she stirred cream into her coffee cup.

  “What’s the story with your husband?” I asked, deciding that my anger was better vented against him.

  “He and I have barely spoken. He says he doesn’t have it. He says I must have gotten it someplace else. I think he’s lying to me. I don’t know. He could have had it for years and not told me. He could have gotten it last month, for all I know. When I tried to talk to him about it, he just claimed that he had to leave on business and began packing a bag. I screamed at him to stop and talk to me, but he just packed his things and left with me yelling at him.

  “I’m thinking of running, too,” I said.

  “What do you mean?”

  “I think I’m going back to Kentucky on the pretense of working on the case. I’m thinking about leaving today. I have to take three pills a day for five days, so I’ll probably be back in about a week. Do you know of anything that needs to be done on the case out there? Did you ever finish up that discovery?”

  “No, I don’t think I will,” she said. “There really isn’t much that needs to be done in Kentucky, however. I guess I am going to call Riza and tell her the status of everything, and that I am moving because of my husband’s work. I don’t know what I am going to say. But I think I am not going back to work at Peters & Sullivan any time soon. Another unexplained gap on my resume. It would be hard to say which has been more disappointing between my career and my personal life.”

  “Something will turn around.”

  “No,” she said, “it’s like I am damaged goods now. Nobody will want me. Remember when you were single? Each time you had sex with someone, there was that pang of fear the next day as you asked God to please not let you catch anything or get pregnant? It’s like when you get drunk and hungover, and you make a deal with God that if He’ll just let you feel better, you’ll never get that drunk again, but the after-sex remorse is a bigger deal. I thought I was past all of that.”

  Nervously, she reached into her purse and fumbled around until she pulled out a crumpled copy of a newspaper page. Beth unfolded it and spread the page out over the table where we were sitting. It was a page out of the personals section of Free Press Houston, a weekly newspaper that was usually available in Houston at most coffee shops and diners. The paper generally covered stories about local politics and entertainment, but it always carried an entertaining section of personal ads. The paper would highlight a particularly outrageous ad each week. “Look at this,” she said. “This is where I am in my life.”

  Beth had circled the highlighted ad from that week’s paper:

  Have you been recently diagnosed with genital herpes? Are you concerned that your sex life is over? Has your diagnosis left you sexually frustrated? Are you afraid to discuss your diagnosis with potential partners?

  I’m 6'1" SWM, H/WP and I’ve also been diagnosed with genital herpes. Life does go on! We can enjoy sex together and not worry about spreading the disease further! Contact me at Box BW63T. Photo available.

  “Can you believe this?” Beth asked. “Apparently, this guy is preying on women like me, who have recently been diagnosed with herpes. Worse yet, I’ve actually been thinking about calling him.”

  “Don’t call him,” I said. “Who knows if herpes is the only disease he has?”

  Beth looked at me, and her eyes widened. In a moment, she put her hand over her face and started to cry. I felt sorry for her, and I felt sorry for me. I could tell that she was farther along than I was in a process of realization of the complications of contracting an incurable venereal disease. I had already started to worry about passing the disease to Michelle, and I had only briefly considered the implications of not ever having sex again.

  When Beth showed me the personal ad from the Free Press Houston, the thought became more concrete in my mind.

  Of course, the thought crossed my mind again that I could have sex with Beth. If we just had sex with each other, nobody else would ever get the disease from either of us. She was beautiful. I honestly believed that she liked me. Maybe she and I could just leave and start a new life somewhere, and not ever tell anybody about the disease.

  As attractive as Beth might have been,
sex with her was not something in which I had any interest. She must have read my thoughts. She looked at me with her hand over her mouth, and whispered, “You think I am damaged goods also, don’t you?”

  “No, of course not, not the way you mean it. But do you think God is punishing us for having an affair” I asked.

  “Yes, don’t you?”

  “I haven’t let myself think about it yet. I guess part of me does. Part of me says this is a virus that seeks a host where it can replicate and survive, and it doesn’t discriminate between moral or immoral hosts.”

  “Somebody had to put the virus here in the first place,” she said.

  “We’re just feeling guilty.”

  “And I’m scared,” she said. “I’m scared that my husband and I will end up divorced, and I don’t have a job, and we have all these debts from his harebrained business schemes. He’s a drug rep. We don’t have that kind of money. And, nobody will ever want me again. And I’ll never have children. And I won’t be able to find a job. I never have truly practiced law. I’m a glorified computer operator. I haven’t read a case since studying for the bar exam.”

  “You’ll find another job,” I said.

  “And I’m scared for you, too.”

  “For me?”

  “Yes. I know I don’t know you well. Certainly not well enough to have sex with you. But I know how you are about keeping secrets. You’re not planning on telling your wife, are you? How are you going to keep it from her? Are you just going to stop having sex with your wife? How long can you keep that up? You can’t just move to Kentucky indefinitely.”

  “No,” I said.

  “Oh, my God. You’ve already had sex with her, haven’t you? She’s pregnant, Davy. You have to tell her. Have you had sex with her during this outbreak?”

  “That’s not really any of your business, is it?”

  “No,” she said. “It never should have been any of my business. I’m sorry, Davy. I can’t tell you enough how sorry I am, but I can’t continue to sit here and talk to you about this right now. I have to go.” I would never see her again, and I knew that as she hurriedly crossed the lobby and went out through the front door.

  I finished my beer and paid the tab, but before I left, I called Joe Abney, a friend of mine who worked at the Willis & Bonham firm over on the Gulf Freeway. The firm specialized in mass torts, having made fortunes in representing asbestos victims and people who had taken Fen-Phen and other prescription drugs with deleterious side effects. The firm was always testing the litigation waters, to see what the next big mass tort might be. For every Fen-Phen success, there was a breast implant, Accentual, or Baycol disaster. Sometimes the cases panned out; sometimes they didn’t. But, always, the cases were huge undertakings requiring a great deal of staff and funding.

  I knew that one key to success in the mass tort context was to try to keep the cases in state court and out of the federal courts where the multidistrict litigation panel could scoop up the cases and send them to the federal judge and venue of the panel’s choosing. The plaintiffs’ attorneys would rather keep the cases in a Houston state court, where the juries were more likely to be favorable to the plaintiff’s side and where the judges had to stand for election instead of being appointed for life like federal judges. One way to avoid federal court was to sue an “instate” defendant, thereby avoiding the federal court’s diversity jurisdiction. Federal courts have diversity jurisdiction over suits between parties from different states. However, if one defendant is from the same state as the plaintiff, there is no diversity jurisdiction. I asked my friend Abney if Willis & Bonham was looking at any new litigation against Merck.

  “We might be,” he said. “Why do you ask? Are you looking to refer cases? That doesn’t sound like the Peters & Sullivan I know,” he said.

  “No,” I said. “I just thought you might like to know who their local drug rep is for purposes of avoiding diversity in any filings in the Houston area.” I gave him the name of Beth’s husband and their home address. By the time I got home from Kentucky five days later, Beth’s husband had been sued individually, along with Merck, in 2,500 Vioxx cases in a Harris County state court. His life as a drug manufacturer’s representative was finished.

  I spent most of my time when I got back from Kentucky sitting in my office with the door closed. I had read everything online that I could stomach about genital herpes, and I had even called a toll-free number at the Centers for Disease Control to ask questions. I searched the Internet for articles about ongoing research for a cure, but nothing looked very promising—at least not in the short-term. The known medications coupled with the body’s immune system would kill a portion of the virus during an outbreak but not the virus that lay dormant in the spine. I imagined that it was something like the arcade game in which you bop the varmint on the head when it appears from its hole and wait for the next one to appear. The trick would be getting the entire virus to present itself for destruction at one time, and it didn’t appear that anybody was going to solve that problem any time soon.

  The blisters on my penis had scabbed over and were still unsightly, but I had avoided being naked around Michelle because sex had been the farthest thing from her mind. Morning sickness had not been restricted to mornings, and she had spent most of her time either at work or in bed.

  My caseload had dwindled down to just the Kentucky case against Boyd Oil. While there were multiple plaintiffs involved, there was only one set of operative facts, and there was not much to do on the case at that point except prepare to take the depositions of Boyd’s personnel and their experts. If the judge ruled against us on the motion to strike our expert, the depositions would probably not go forward.

  Eileen had taken on Beth’s job of completing the plaintiffs’ discovery responses, and I was merely signing off on them as she completed each set. Our local counsel in Kentucky was planning on presenting the plaintiffs for their individual depositions, assuming that we overcame Boyd’s motion on our expert. It seemed like I was just killing time waiting for the next shoe to drop, but I kept my office door closed and tried to look busy. I tried unsuccessfully to remember my ideas for the next few lines of my poem. I scribbled ideas for a short story but I didn’t really write a paragraph.

  As was his customary practice, Sullivan burst through my office door one morning without knocking. I had situated my computer monitor facing away from the door for just such an occurrence. I clicked the mouse with the cursor on the minimize key, and asked him what was up. He closed the door behind him as he sat down in one of the client chairs and put his feet up on my desk.

  “Good work on that expert motion,” he said. He tried his best to sound encouraging. “I think we’ll be okay.”

  “I hope so.”

  “I’m doing some work on checking out the judge. You were right to think there might be a problem.” Sullivan looked at his shoes for a moment, evaluating the results of a recent shine. He frowned at a spot and then smiled as he looked back up at me. “How’s the baby business at home?”

  “Fine, I guess. Michelle has been pretty sick.”

  “That’s what I heard. Serves her right for what she put her mother through.” I too had heard the stories about how sick Amy had been for the first three months that she carried Michelle. “But it passes,” he said. “Keep a ready supply of saltines and 7UP.” Somehow I doubted that he had ever made many runs to the convenience store for crackers and soda. “What do you have scheduled for tomorrow?” Sullivan asked.

  “Nothing. I’m just getting ready for Boyd’s people and their experts. Assuming we get to go forward.”

  “Good,” he said. “Can you try a rear-end collision tomorrow? The case shouldn’t last three days. The plaintiff is the wife of a friend of mine from the River Oaks Country Club. She was rear-ended on Westheimer. Whiplash, physical therapy visits. Routine stuff.” Sullivan made it sound like I would be doing him a big favor by agreeing to try the case, but there was really no way I could refuse.
/>   “Sure,” I said, happy to have something to think about other than my personal problems. Sullivan got up and opened the door.

  “Great,” he said. “I appreciate your doing this. I’ll send the file around. It should be fairly straightforward, but it may be difficult to use your usual biblical references,” he said winking at me. Then, to Eileen, seated at her desk outside my door, he asked, “How are the discovery responses coming? I’m sorry that our contract lawyer fizzled out on us. Eileen, please let Riza know if you need any help on this.”

  “Honestly, Mr. Sullivan, Beth had finished most of the work. It’s just a matter of putting the discovery responses into the correct format. I think I can get it all done on time.”

  A few minutes later, one of the mailroom clerks showed up in my office with a five-inch folder containing the Jean Henderson file. A quick glance through it suggested that this might be one of those “good experience” as opposed to “good verdict” cases.

  As simple as a rear-end collision lawsuit should be to try, the actual trial of such a case is complicated by the many hurdles set up by the law to keep the injured party from being compensated. These hurdles, well known to any second-year, personal injury trial lawyer, sound ridiculous and arcane to litigants experiencing a trial for the first time.

  A woman is in an accident through no fault of her own. In Mrs. Henderson’s case, she was sitting at a red light on her way to work as a real estate broker at an office on Westheimer. There was a light rain. The driver of the pickup truck that hit her car told the investigating police officer at the scene that he had gotten a call on his cell phone moments before the wreck. He looked down to pick up the phone to see who was calling, and when he looked back up, he had to slam on his brakes in an unsuccessful effort to keep from colliding into Mrs. Henderson’s Mercedes-Benz. The defense in the case had taken the position that, immediately before the impact, Mrs. Henderson had veered into the defendant’s lane so that she could turn right at the intersection to get to her job.