The Associate

by Rachel Sinclair

  In spite of myself, I smiled after reading the article. Not because I was so happy that 35 people were dead at Dr. Kim’s hand. Rather, I was happy because I knew that I was going to get the punitive damages that I was seeking. It was going to be so easy to prove causation in this case, and it was also going to be incredibly easy to prove that Dr. Kim’s actions were intentional. That he intentionally killed Austin Ward. I felt as if this investigation that was apparently going on into Dr. Kim’s background was the smoking gun that I needed to continue with the case. It was the smoking gun that I needed to force a settlement.

  Sure enough, when I got into the office, Pearl gave me a message to call back April Kennedy. April was the defense attorney who was representing Dr. Kim. She was working for a large firm downtown, a firm that specialized in defending medical malpractice cases. I was quite sure that she was getting paid the big bucks and would have had every weapon in her arsenal trained on me and my case. That was what these firms did – intimidate everyone into either dropping their case or settling for less than what the case was worth. Or not filing a case at all. That was obviously the most preferable scenario for April’s firm.

  Well, guess what? It was going to be none of the above for me. I was not only going to pursue this case, but I wasn’t going to let up. Not for a second.

  I called her back, and her secretary put her right on the line. “Hello,” she said. “April Kennedy.”

  “Hi, April,” I said, “This is Damien Harrington. I was returning your call.”

  “Yes, Damien,” she said. “I’m sure that you read about Dr. Kim in the newspaper today. It was surprising to our firm that this would have happened. We would like to schedule a settlement conference in our office today at 3 PM. Are you free at that time?”

  “Sure,” I said, nodding my head. “I’ll be free at that time. I’ll check with my client and see if she’s free, though. I’m not sure. She might be working.”

  “Well, if there’s a scheduling conflict, let me know. For now, though, I would like to invite you to this settlement conference. We’re, uh, lining up the plaintiff’s attorneys to come in for these conferences. We’ll have more openings next week if you would like to check with your client and call me back.”

  “I will.”

  I hung up the phone and immediately called Betsy on her cell. She picked up. “Damien,” she said, almost breathlessly. “I was hoping you would be calling me. I saw the newspaper. I was going to call you. It’s great, isn’t it? Austin will finally get some kind of justice.”

  “Are you at work?”

  “No. I haven’t gone back to work yet. I haven’t had the energy to go back to work. I’m still on FMLA, and I have another two weeks left of it. For now, I’m going to take every day of FMLA I can.”

  “Good. We can go to this settlement conference today, then. We’ll see what they offer us, and then you and I can discuss it. I’m thinking that the offer on the table for us will include at least a million in punitive damages. They won’t call it punitive damages, but they have to take into consideration that any case that they try that has Dr. Kim as one of the defendants is going to result in a pretty substantial punitive damage claim. I’m thinking in my head that actual damages might be in the range of around $50,000 or less. Actual damages take into account pain and suffering – that doesn’t apply here, because Austin suffered no additional pain and suffering due to Dr. Kim’s actions. These damages also take into account lost earnings, and that includes future earnings – that’s dicey because Austin wasn’t expected to live very long, even if this didn’t happen to him. The actual damages also take into account medical bills that might have accumulated from the time of the negligence until the time of the death. Unfortunately, in our case, that would be zero. We could have possibly also gone for loss of consortium, but even that was shaky, because that usually goes to the surviving spouse or the children of the deceased. But loss of consortium literally tries to put a dollar value on companionship, and we certainly could have tried for that, since Austin was your only child and your only family.”

  I was speaking rapidly. I was so excited for this turn of events that I was practically bouncing off the walls. I felt badly that I was that happy about Dr. Kim’s actions. After all, Austin was dead. There was no changing that. No getting around that. No amount of an award was going to be enough, in the end, to make Betsy Ward whole. But I was going to try for as much of an award as I could for her. Maybe I could get enough of an award that she could quit her job and find something that made her truly happy. Maybe she could take a mental health break to Europe and find some kind of joy in that. Or whatever. Money couldn’t buy happiness, but it never actually hurt matters, either.

  “And what about the punitive damages, then? What are you going to ask for?”

  I took a deep breath, trying to figure out what a jury would award in a case like this. The doctor deliberately killed Austin Ward. He admitted to it. He confessed. I was going to have to do some research on other jury awards with similar fact patterns before I went to the settlement conference.

  “I don’t know yet. I’ll have to do some research. Juries are a strange phenomenon. I know that, and so do defense attorneys. Everyone in the legal profession knows that. One jury will hear a case and award millions in punitives. Another jury will hear a substantially similar case and award no punitives at all. It’s a roll of the dice, but not really. There is some kind of scientific formula that should be able guide how much I’ll ask for in this case. I’m just not really sure exactly what that formula is just yet.”

  “Well, figure it out. When is our settlement conference?”

  “Today at 3 if you can make it.”

  “I’ll be there.”

  I spent the rest of the day looking at jury verdicts. I knew that I had to be careful about this case, though, because it was a different one. It was no longer just a negligence case. It was an intentional tort. Chances are that Dr. Kim’s malpractice insurance carrier wasn’t going to pay. I was going to have to figure out if Dr. Kim had the assets to cover my claim and all the others that were going to be coming down the pike.

  That was why I wanted that settlement conference to happen soon. I wanted to be at the front of the line in collecting. He wouldn’t be able to declare bankruptcy on my claim, but, then again, there might be only so many funds available.

  That was another thing that I was going to have to look into. I hadn’t asked Garrett to find out about Dr. Kim’s wealth, because, up until this morning, his personal wealth wasn’t relevant. I was going to try to collect against the malpractice insurance. Now, all of a sudden, whether or not Dr. Kim was wealthy became of paramount importance to me.

  “Garrett,” I said, calling him. “I need to find something out. I need to find it out in the next few hours.”

  “Sure, Damien, what do you need?”

  “I need to know how much Dr. Kim is worth. Personally. I need to know all of his assets and how much they’re worth. Can you do that for me in the next few hours?” I didn’t want to postpone the settlement conference, but I also didn’t want to fly blind on this.

  “Sure,” he said. “Let me do some asset checking and I’ll get back with you in about a half hour.”

  A half hour later, Garrett called. “Yeah, Garrett,” I said. “What did you find out?”

  “You’re in luck. Dr. Kim is a very wealthy man. I found out that he has several homes around the world, and is also in possession of precious art work. He apparently bought several paintings over the years from auction houses, and these paintings alone probably are worth in the neighborhood of $250 million. We’re talking Francis Bacon, Kandinsky and Pollock. He came from inherited wealth, but he’s also made a pretty penny at his job for the past 20 years. He’s making about a million a year right now just from his anesthesiologist job. If you’re afraid that he won’t be able to pay a judgment, relax. He’ll be good for any judgment you want to ask for. Ask away.”

  I let out a sigh o
f relief when I got off the phone with Garrett. So, Kim is a wealthy man. I no longer felt that I had to be first in line for the settlement conference, but, in this case, I thought that I better keep my appointment. Betsy Ward was expecting to get this case settled and, by God, I was going to make her happy.

  In the end, I decided that I would go ahead and shoot the moon. Ask for $10 million and negotiate down from there. It certainly didn’t hurt to ask.

  It never hurt to ask.

  Right at 3, I went to the building that housed Edelman, Lathrop and Thomas, which was the largest law firm in the Kansas City area. The firm was situated on the 41st and 42nd floor of One Kansas City Place, which was the tallest building in the area. Since this glass and steel structure only had 42 floors, this meant that the law firm occupied the top two floors of the building, a sign of the firm’s prestige. I got downtown and walked into the building and was impressed and slightly intimidated at the same time.

  I walked to the elevator and pushed it. There were actually two sets of elevators – one set of elevators took you up to the 20th floor. The other set of elevators bypassed the bottom 20 floors and went from floor 20 up to the top. Once I got into the elevator, it whooshed so quickly up to the top of the building that I almost had a sense of vertigo.

  The settlement conference that I was supposed to attend was on the top floor. The glass doors to the suite were etched with the law firm’s name, and, when I opened the door, there was an enormous circular structure that was manned by the petite blonde girl with bobbed hair and an obvious fake rack. She smiled at me. “Can I help you?”

  “Yes. Damien Harrington here to see April Kennedy. I’m scheduled in for a settlement conference for one of Dr. Kim’s cases.”

  “Is your client here?”

  “No, not yet,” I said.

  “I’ll call Ms. Kennedy and let her know that you are here but that your client is not at the moment. Do you expect your client by the appointed time?”

  “Yes.” I nodded my head. “I called her to let her know.”

  She smiled again and got on her phone and dialed. “Ms. Kennedy, there is a Mr. Damien Harrington here to see you.” She looked up at me while she spoke. “I’ll let him know.” Then she hung up the phone. “Ms. Kennedy told me to escort you back to her conference room whenever you’re ready.”

  I took a deep breath and got my briefcase out. “Thank you,” I said. I opened up the briefcase, so that I could be ready for the conference. The file was in there in a brown accordion folder that opened up. Inside the folder was individual Manila folders with tabs. One Manila folder was for medical records for Austin, another was the information about Dr. Kim, another was information about Betsy, still another housed relevant information about Austin. Included in this file was Austin’s grade reports from his private school, his SAT scores – a 2250 out of a possible 2400 – and his ACT scores. He scored an average ACT of 34 out of a possible 36. His math score was a perfect 36. He had already been accepted at MIT at the time of his death. I found this out when Betsy received the MIT acceptance letter in the mail two weeks after Austin passed. Also included in this file was the acceptance letter to Harvard. All this showed Austin’s potential. I also decided to go ahead and include the results of the genetic test that demonstrated that Austin had the BCR genetic marker and that he could have fully benefited from gene therapy. Included were some scholarly articles that I found that showed that gene therapy had been successful in treating other hard-to-treat leukemia cases, and that it was successful in actually curing many different people around the world.

  In other words, if Austin didn’t die by being given the wrong drug during his surgery, he might have been saved by gene therapy. That might have been the most important piece of information that I had. Austin had the possibility of living a long life, and had the possibility of becoming a NASA engineer. The current NASA aerospace engineers were being paid around $100,000. By the time Austin graduated with his bachelor’a degree, he probably could have started making $125,000 or more. Lifetime earnings for Austin therefore could have been well in the millions. Granted, this was not an easy argument to make, considering Austin’s prognosis, but these people were not in the position to bargain. It was in their interest to quietly settle as many cases as they could, because they also had Menorah Hospital as a client, and Menorah Hospital was where Dr. Kim primarily worked. Dr. Kim was finished as an anesthesiologist, of course, and his reputation was being dragged through the mud. But Menorah Hospital wanted this story off the front pages as soon as possible, and the only way to do that was to make sure that there weren’t any loud victims’ families going to the paper every day of the week.

  This case was going to blow up huge. It already was on the front page of the paper, and it had the potential to be on the front page for weeks. I remembered one case where there was a doctor who was diluting chemotherapy drugs. The doctor was not only on the front page of the paper for weeks, he was on the evening news every single night. He eventually became a national scandal. Dr. Kim had the same potential – to become a national scandal. He could become the subject of documentaries and could easily have his story featured on the national 24-hour news channels such as MSNBC, CNN and Fox. That would be Menorah Hospital’s biggest nightmare.

  Yes, I had April Kennedy over a barrel. I had the feeling that, since I was no doubt one of the earliest settlement cases for them, I could ask for much more than I would even be entitled to in a trial and get it. All I had to do was tell them that if they didn’t meet my demands that I would send Betsy to the nearest reporter to sob and cry and give her story. Betsy did make a very sympathetic character, considering that Austin was her only child and her only family.

  I looked at the clock and saw that it read 3 PM. I glanced into the hallway, hoping to see Betsy, but I didn’t. I decided to call her.

  “I’m almost there,” she said when I called. I could tell that she had been crying – her voice was cracking as she spoke. “I’m sorry I’m running late. I’ll be there as soon as I can.”

  I hung up. I hated that she was running late. I liked to be prompt to my meetings, especially something as important as this one was. Especially since I knew that April had probably scheduled several of these settlement conferences back to back. I was slotted for an hour, and I knew that at 4 PM there was probably somebody coming in, and another at 5, and probably late into the night. There were 35 victims in this case, and I knew that this firm was going to want to settle with all of them in a matter of days.

  At 3:15, I was becoming more concerned. I kept seeing the blonde receptionist glance at me, and, from time to time, she received a call from April inquiring about where I was. “His client isn’t here yet,” she would say. “I’ll let you know when she shows.”

  Finally, at 3:20, she showed up. “I’m so sorry,” she said. She sounded out of breath. “I need to tell you something before we go in there. I’m late because I was at home, debating on what to do.”

  I rolled my eyes. “We need to get in there. She’s waiting on us. We only had an hour to negotiate as it is. Now we only have 40 minutes. I’m quite sure that April is tightly scheduled on this.”

  “This will only take a minute,” she said. “I need to speak with you out in the hall. I don’t want any of those lawyers to hear me.”

  I opened the door to the suite. “I’ll be right back,” I said to the blonde receptionist.

  Betsy and I got into the hallway. “Okay, we’re here. Now what? What were you going to tell me?”

  She glanced down at the floor. “There are a few things that you need to know. The only reason why I’m telling you this is because it might come up. I don’t know if those lawyers know about this.”

  I rolled my eyes. “Know about what? And why are you waiting until now to tell me something that is apparently important?”

  She ran her foot along the glossy marble floor. “I didn’t know how to tell you about this. But I need to. I need to, because I think that Min-ju
n might have said something to them.”

  “Who is Min-jun?” I shook my head. Min-jun was the first name of Dr. Kim. He was from Korea, and that was a common boy’s name. I just didn’t know why Betsy would be calling Dr. Kim by his first name, so I was confused.

  Then it dawned on me. Amelia, my daughter, told me that Betsy and Dr. Kim were having an affair. That would be why Betsy would be calling Dr. Kim by his first name.

  “Min-jun Kim,” she said. “Dr. Kim.” She continued to look down at the floor. “I started having an affair with him because I knew what he was doing. I knew what he was up to. And I wanted him to do the same thing to Austin.”

  I was comprehending what she was saying. It didn’t make a lick of sense to me. Betsy knew that Dr. Kim was deliberately killing people and she didn’t tell me about it? And what did she mean, she wanted Dr. Kim to do the same to Austin? “I’m sorry?” I asked her. “I don’t understand?”

  She looked furtively around. “I wanted Austin to die peacefully,” she said. “And I wanted Dr. Kim to do it.”

  Chapter 18

  I bit my lower lip, feeling the rage coming in from my chest area and spread. I took a deep breath. “You knew what Dr. Kim was doing,” I said slowly. “And you wanted him to kill Austin.” I looked up at the ceiling. I actually understood. Betsy wanted Austin to die peacefully because she had seen her husband linger with the same disease and it was the most painful experience of her life. I got that. I didn’t condone it. To me, she was no different than my feckless and unfaithful wife, Sarah, who, no doubt, would love to arrange the same thing for Amelia. She probably would do that if she could. So, yeah, I did understand why Betsy would do what she did.