by A. Turk
In the Howard complaint the sexual allegations were even more graphic than in the Perkins lawsuit. Willis described the ten-inch sexual device in particular detail: black in color with deep purple bulging veins, divided into three ribbed sections. The Howard complaint alleged that Ms. Howard required vaginal reconstructive surgery as a direct and proximate result of its use.
The Howard complaint alleged that at first, like in the Perkins case, the plaintiff was impressed and flattered by Dr. Garcia’s sexual overtures. There were dinners, dancing, and consensual sex, including at Howard’s condo. According to the Howard complaint, Dr. Garcia changed once he introduced the dildo into their relationship. He became physically and verbally abusive. The complaint claimed that at first the plaintiff thought that they were engaged in some type of role-playing game, but as that evening went forward, Dr. Garcia forced the plaintiff to do things that would psychologically mar her for the rest of her life. It alleged that Dr. Garcia, because of the relationship of doctor-patient, had some sort of power over Ms. Howard, like Svengali. The plaintiff alleged that she was currently under psychiatric care twice a week.
There were now two women claiming they had sex with Dr. Garcia in Dr. Nichols’s office. Davis wondered, How was that possible? Where was the staff? Why would these women subject themselves to be treated in such a humiliating fashion? How could voluntary lovemaking change so quickly? Why would these women allow themselves to be abused by Dr. Garcia? These were all good questions, and Davis intended to get to the bottom of them. He decided he’d let Sammie interview the staff—all women. They were more likely to open up to Sammie than to Morty or him.
Davis thanked Willis for the information, promised him they’d talk in the next few days, and agreed that a quick settlement might be in everyone’s best interest. In return Willis agreed to hold off filing and, more important, agreed not to give any interviews or make any comments about the Perkins case. Davis hoped that without any further information from Willis the news coverage of the lawsuit would end.
Davis was only partially right. There was no TV coverage, and only a brief follow-up article appeared in the newspaper. Morty swore he’d get even at his next poker game with its editor.
CHAPTER TWENTY-THREE
SPANISH INQUISITION
Wednesday, July 10, 1996
Davis changed his mind; he wasn’t willing to simply rely on Sammie’s notes or recount of the meetings. He needed to hear the tone of each woman’s voice and observe her body language. He’d let Sammie handle the interviews, but he decided to be present.
She started with the new receptionist and asked about her duties. They were the same as those of Robyn Eden. She’d never met either Perkins or Howard so her interview was short and sweet. Sammie worked her way up to Donna, the office manager.
All of the staff, except Donna, found Dr. Garcia charming and were shocked when he left. They were even more shocked by the allegations of the lawsuits. Even though Dr. Nichols had warned his staff not to discuss the lawsuits, they talked about nothing else. That was human nature. None of the staff ever saw Dr. Garcia act inappropriately with any patient. According to the staff, he always acted professionally. A few commented that it was obvious that Dr. Garcia and Donna didn’t get along, but they all felt that Donna, who was used to running the office, was threatened by Dr. Garcia.
By the time Sammie got to Donna, it had been a long day, and most of the answers from the Nichols staff had been identical and unhelpful. Davis, who knew Donna pretty well, could tell immediately that she had more information than the others. That was not surprising since Donna had been involved in the storage closet videotaping and ran the office. Her body language showed him that there was a serious problem; her arms were crossed, and her brow was furrowed. Davis, an exceptional trial attorney, knew how to read people.
Davis took over the questioning of Donna and told her, “Relax, we’re on the same side. Just tell me what you know about any sexual misconduct by Dr. Garcia. You’ll feel better getting it off your chest.”
“At the Christmas party, Dr. Garcia and Robyn Eden came out of the copier room together, and I don’t think they were making copies. He looked real suspicious, and I stared them down …”
Davis cut her off. “Donna, before every deposition, I tell the witness to tell the truth but not to guess. I also explain that a guess is as bad as a lie because that uncertain answer can be used against you. The door to the copier room was closed. You don’t know what went on in there. The only two people who know what happened in the copier room are Robyn and Dr. Garcia. There’s no reason for you to speculate.”
Donna nodded, and Davis hoped that there would be no further discussion about speculated misconduct. He certainly hoped that Donna wasn’t asked a direct question under oath about the Christmas party or about Dr. Garcia and Robyn. Sammie’s notes of their meeting with Donna, although protected by the attorney work product privilege, did not contain any reference to the copier room.
Davis then asked the million-dollar question: “What about patients? Did you ever see any evidence that he fooled around with patients in the office?”
“Never, but the treatment room doors were always closed, and they are well insulated for privacy.”
Davis liked the first part of that answer but not the second part.
“Do you remember anything unusual about either Ms. Perkins or Ms. Howard?”
“No, both women were in their mid-thirties, attractive but aging. They each purchased multiple procedures. No indication outside the treatment room of hanky-panky.”
“We need to change the office policy,” Davis said. “I don’t want any treatment of patients without another staff member in the room. Consults can remain private.”
“What about Dr. Dowdle? Does she need another female in the room?”
“For consistency we’d better maintain the same policy for both doctors.”
Davis figured he learned what he could from Donna, but he ended the interview with a common question he asked of witnesses: “Donna, is there any question I haven’t covered that you think I should have asked?”
“I didn’t like Charlie Garcia. I knew there was something wrong about him, but I couldn’t put my finger on it. Obviously I was right, but he had everyone else snowed.”
Sammie, who had been quiet, chimed in, ”Not everybody!”
Glancing at his niece, Davis ignored her comment. There was nothing to be gained by exploring it. She wasn’t going to be a witness in the case.
Davis called both Harrelson and Pinsly about the Howard lawsuit. They claimed to be shocked, but Davis suspected that Harrelson knew better. Based upon the allegations of the Perkins lawsuit, no one should have been surprised by Dr. Garcia’s conduct. Pinsly was now in a real fix. Tennessee Mutual, under Dr. Nichols’s malpractice insurance policy, would be required, now that there were two lawsuits, to pay out more legal fees, and Tennessee Mutual was exposed to two potential judgments.
Pinsly was concerned about how many more lawsuits were out there. He’d begrudgingly accepted that Davis would represent Dr. Nichols, at Nichols’s expense, and that his company would hire separate counsel for the corporation and Dr. Garcia. He suggested Bob Sullivan for the corporation and Lester Paul for Garcia. Davis liked Sullivan and respected him. They could work together. That was important since Nichols owned ninety-nine percent of the corporation, and Sullivan would be representing the company. Lester Paul was another story; he was a typical arrogant member of the defense Bar. They were both qualified, with substantial trial experience, so Davis decided it wasn’t worth fighting with Pinsly over his choices.
Davis faxed the Howard complaint to Harrelson, Pinsly, Sullivan, and Paul. He waited two hours and then called Paul.
“Hello, Lester. It looks like you’ve pulled the tough defendant in these cases.”
Paul, a short bald man about sixty-five, mistook Davis’s comment as criticism and fired back: “Look, Ben, don’t try to turn on my client. If my boy goes
down, so does yours.”
Paul was quick tempered, and he disliked Davis because Davis was 6 and 0 against him. Constantly losing had a way of affecting one’s judgment. For that reason the conversation was off to a rocky start. Davis wasn’t going to let Paul implicate his client. “All the complaints allege as to the company is that your client was falsely advertised and promoted. That’s Sullivan’s client, not mine. Dr. Nichols hasn’t even been accused of doing anything wrong by these women.”
“I spoke to Harrelson and the parents. Why don’t you drop your contract lawsuit? That litigation is only going to hurt us and give Willis an advantage in his cases.”
“I don’t think so. Why don’t you have Mom and Dad just pony up and release the funds held by the court?”
“You’ll have to litigate to get those funds, and it may take you a while to get them. I’ve been retained to represent Dr. Garcia and his parents,” Paul informed Davis.
“Don’t hold your breath, Lester. FYI, Willis let me accept service in the Howard case for Dr. Nichols and the corporation. You might want to accept service for Dr. Garcia.”
“Why would I do that? It just makes Willis’s job easier. What are you doing talking to Willis anyway? He’s the enemy.”
Paul was just being himself. He couldn’t help it. He was predictably uncooperative.
Davis decided he’d see just how far he could push him. “You know, Lester, both of these lawsuits raise serious ethical concerns. The Medical Licensing Board frowns on a doctor having sex with his patients. Someone has to report this to the board. It would be far better for your client if he did rather than someone else.”
“I don’t think that’s necessary.”
“It sure is. I’m sure you’d prefer not to, but someone has to. I’ll give you forty-eight hours to self-report, or either I on behalf of Dr. Nichols or Sullivan on behalf of the corporation will report your client and provide the board with copies of the two complaints.”
“That’s not going to help either of our clients.”
“You’re probably right, but neither will the press if Willis files the Howard complaint. We’ve got to stop that from happening. The only way to prevent that is to settle. Tennessee Mutual has to do the responsible thing and settle these cases. Your client deserves all the bad press he gets. My client’s only mistake was hiring your son-of-a-bitch client.”
“I’ll talk to Pinsly.”
Davis wasn’t going to hold his breath. Paul was greedy and arrogant. He didn’t care that Nichols spent more than twenty years to build his practice and reputation, and because of Garcia’s libido, all that hard work was about to come crashing down.
After they hung up, Davis faxed Paul a confirming letter giving him the forty-eight hours and copied Sullivan. At the close of the business day he called Sullivan. They were on the same page. Sullivan represented the company, which was owned ninety-nine percent by Nichols. Sullivan and Davis would work together to protect Dr. Nichols’s interest.
Sullivan was a few years older than Davis. He had a red full beard with flakes of gray in his moustache and a full head of red hair. When he was nervous, he took out his black comb and groomed his beard. During their dealings, Davis found it an annoying habit, but Davis still liked and respected him. Lester Paul was a whole other story.
CHAPTER TWENTY-FOUR
STRANGE BEDFELLOWS
Monday, July 22, 1996
As Davis promised, he filed a motion for default judgment against the Garcias in the breach of contract case. The Garcias, under the Tennessee Rules of Civil Procedure, had to file an answer to the complaint within thirty days of receipt of the complaint. Davis mailed Dr. Garcia and his parents their copy of the complaint by certified mail, return receipt requested. The green cards evidenced delivery to Charlie on June 18th and to his parents on June 19th.
An answer is a responsive pleading that admits, denies, or claims there is insufficient information to either admit or deny a specific allegation of the complaint. Thirty days passed; none of the defendants filed an answer.
By suing not only Charlie Garcia but also Nichols and the practice, Jack Willis created quite a conflict for Tennessee Mutual. All of the liability derived from Garcia’s wrongful conduct, sexual in the Perkins case, but professional and sexual in the Howard case. Davis wasn’t worried about the professional negligence aspect of the Howard case. Her necrotic lip was a simple malpractice action, and insurance would cover it. Davis was worried about the sexual allegations of both cases. Garcia would argue it was voluntary, but Nichols didn’t want to join that argument or try to explain Garcia’s conduct at all. This was a major conflict, and that was why each defendant retained separate counsel.
Davis was pleased to be working on the same side as Bob Sullivan. He could not say the same about Lester Paul, Garcia’s counsel, who was a typical defense lawyer with very little imagination. He had poor eyesight and wore glasses with very thick lenses that exaggerated the expressions of his eyes, sometimes giving him a bizarre look. His physical shortcomings aside, Davis didn’t trust him; they’d butted heads several times. Morty thought Paul was a weasel.
Davis’s loyalty was clear in the sex cases. He represented Dr. Peter Nichols, who’d been sued individually. He’d be the easiest defendant to represent. He did nothing wrong, and Nichols wasn’t Garcia’s employer. Sullivan’s client, the company, was.
Bella buzzed in. “I’ve got Lester Paul on line one.”
“Good morning, Lester. What can I do for you?” Davis asked.
“In the contract dispute as local counsel with Mr. Harrelson, I need a thirty-day extension so I can familiarize myself with the case and the documents.”
“That’s bullshit, Lester. Harrelson’s your co-counsel, and he’s staying in the case. He already knows the facts and the documents. He created them. Second, Harrelson has already shared with me his absurd defenses. They’ll be struck down on summary judgment. Sorry, no extension. My motion for default is scheduled to be heard in thirteen days. If you file your answers before the date of the hearing, I’ll strike my motion.”
“Steine taught you better than that. I’m asking for common courtesy.”
Paul was actually right. Morty did teach Davis professional courtesy, but he also taught him not to be pushed around and delayed by the other lawyer’s tactics. It was a thin line, and a good lawyer learned to walk it through experience and good judgment.
“I’d talk to Harrelson. I’m sure you boys can whip up an answer in thirteen days. It only took God six days to create the heaven and the earth. In light of your client’s conduct and the fact my poor client has been named a defendant in two lawsuits and has been forced to file a third to collect his money owed, I think you should be extending the professional courtesy.”
“I don’t owe Peter Nichols anything. His insurance company hired me to represent Dr. Garcia in the Willis lawsuits. My obligations are to Dr. Garcia.”
“You may be right, Lester, and like you, I owe nothing to the Garcias. It’s not in Dr. Nichols’s best interest to delay. His money is sitting with the court. I’d like to schedule the depositions of your clients as soon as possible.”
“My clients live in New York.”
“Those are your paying clients. Dr. Garcia lives right here in Nashville. To expedite these depositions, I’ll travel to New York, even though I could compel your paying clients to come to Nashville.”
Davis was trying to provoke Paul. He just didn’t like him. Davis was determined to push the breach of contract case forward toward summary judgment.
“I’ll let you know about our availability.”
Within fifteen minutes, Davis had faxed Paul a letter offering to take Dr. Garcia’s deposition at Paul’s office on August 7th, 8th, or 9th. He also offered to take the parents’ deposition at Harrelson’s office in New York, New York, on August 16th or 17th.
About two o’clock Sammie walked into Davis’s office. “We’ve got a problem.”
“What else is new?
We’re practicing law. All we do is handle other people’s problems. Look at the bright side. At least they’re other people’s problems, and we’re well paid to worry about them and resolve them.”
“Very funny. I’m not there yet. I still have a full year of classes and the Bar to take. But for now, Peter Nichols called. Garcia is advertising Garcia kissable lips.”
“I can’t believe the little putz has the nerve to advertise with these lawsuits pending. I’ll write Paul and Harrelson a letter threatening to get an injunction if their client doesn’t cease and desist from using the trademark, Garcia kissable lips.”
Legally, Nichols & Garcia owned the name. Charlie Garcia didn’t have the right to use it. As Davis was dictating the letter, Bella walked into his office and brought him a fax from Jack Willis. The letter suggested that Davis schedule a meeting between Willis and defense counsel to discuss the cases and see if a settlement could be reached before there was any undue publicity. Davis asked Bella to set up a conference call with Paul, Sullivan, and Pinsly.