First Do No Harm (Benjamin Davis Book Series, Book 1)

by A. Turk

  CHAPTER TWENTY-NINE

  WITHDRAWAL OF DEFENSE

  MONDAY, DECEMBER 13, 1993

  Sammie and Davis waited for twenty minutes in the conference room of Dunn, Moore and Thomas, Pierce’s firm. They timed their arrival perfectly, five minutes before the deposition was scheduled to begin. It was supposed to start at nine, and according to the subpoena, English was already fifteen minutes late. It was the first deposition in the Plainview cases scheduled by subpoena. All of the other ninety-nine depositions had been set by agreement of the attorneys as to time and date.

  Dr. English failed to appear for his December 1st deposition in the Malone case. Earlier, Pierce warned Davis that English might not appear because he was afraid to enter the state for fear of arrest by order of Judge Lewis.

  On the run for almost three months Dr. English requested a leave of absence from the hospital that, in light of the circumstances, the hospital was more than happy to grant. As far as Davis knew, Dr. English stayed out of Plains County and the rest of the state.

  English owed a substantial amount of alimony and child support for his two children to his ex-wife, Susan. Judge Lewis was a mean son of a bitch. When he found English in civil contempt, Lewis knew exactly what he was doing. Unlike criminal contempt where the judge must issue a sentence for a specific length of time, under civil contempt the sentence lasts until the offending party cures the contempt. In one case in Tennessee, a woman was held in contempt for more than six years because she refused to let her ex-husband see their son since she alleged he was a child molester. She hid the child while she served her unending sentence in prison. She was a very sympathetic figure. Even the other prisoners treated her with respect and did not bother the middle-class mother. Eventually, the United States Supreme Court ordered her released on the grounds that serving six years for contempt was cruel and inhumane punishment under the Eighth Amendment.

  Davis was growing restless. Besides Sammie, only the court reporter was present. The court reporter had preserved the testimony of more than half the witnesses, so she was well aware of the particulars of the Plainview cases, including the reason for Dr. English’s unavailability.

  About twenty-five minutes after the hour, Pierce and Stevenson entered the room. Both had serious expressions on their faces.

  Pierce took the lead: “He’s not coming. He thinks you’re going to tip Sheriff Dudley and Judge Lewis off to his whereabouts and he’ll be arrested.”

  Davis felt no sympathy for English. He felt sure English either instigated or knew who instigated his beating. Either way, Davis refused to cut him any slack. As usual, English was wrong. Davis wanted English’s deposition. Although he’d love to see the doctor arrested, betrayal wasn’t on Davis’s mind. It wouldn’t be the right thing to do. “Your client is not a very trusting individual, is he?”

  Pierce decided to hold her ace in the hole and force Davis to commit. “We can continue the deposition another day, but there’s no guarantee he’ll show up then. What about taking the deposition out of state? We have to be in Connors next month for Adams’s deposition. We can stay an extra day and get it done. Or how about Bowling Green, Kentucky? It’s over the Tennessee line. That’s only thirty minutes from Nashville.”

  “Why should I accommodate Dr. English? You haven’t cut me any slack in where my depositions could be taken. I’ve had to travel to Plains County at least fifty times when it would have been more convenient for all four attorneys to take those depositions in Nashville, a four-minute walk for any of us. You’ve insisted that all of those depositions be taken in Plains County, despite any inconvenience to the witnesses. What about that quiet room? Could Stevenson have found any place more uncomfortable? Why should I be gracious now? Why shouldn’t I just file a petition for civil contempt?”

  Davis had given Amy her opening. “I’ll tell you why. If you do, and English is held in contempt, his malpractice insurance company will deny him a defense in the Plainview cases. You’ll proceed against Dr. English without any insurance coverage, and he doesn’t have a pot to piss in. How do you think your clients would like that? I can tell you for certain that the other defendants would love it. Imagine an empty chair at trial. I can see it now. The hospital and Dr. Herman blaming English for killing poor Rosie Malone. Under those circumstances, the jury would award most, if not all, of the verdict against Dr. English, and with no insurance, it would be uncollectible.”

  Davis glanced over at Sammie and responded to Pierce, “I guess you’ll be out of a job then?”

  Pierce assured him that she wasn’t kidding and that she had already spoken with representatives of the company, and they were willing to pull the plug.

  Davis wasn’t going to be intimidated. Although the insurance company’s position was defendable, Davis couldn’t let English ignore the subpoena. “Make sure you fax the petition for contempt to PIC. Don’t waste time using the mail.”

  For the record, Davis made the subpoena Exhibit 1 and stated that it was ten o’clock and the witness failed to appear. Davis further stated for the record that Ms. Pierce had represented that Dr. English had refused to appear in Plains County or anywhere else in the state for fear of Judge Lewis’s reprisal. Davis also put on the record Ms. Pierce’s threat of the withdrawal of defense and coverage if Davis filed a petition for contempt.

  Davis turned to Pierce. “Anything else you want stated for the record, Ms. Pierce?”

  “Look, Dr. English is unstable and crazy. The affidavit of Mother Superior Nash and the fact you’ve got a restraining order prove that. Dr. English’s insurer is not obligated to indemnify and pay out for someone who’s not cooperating and who’s capable of anything.”

  Davis glared back at Pierce. He was about to test her reaction. “PIC has to pay off if it knew or should have known he was unstable. Also, Plainview Community Hospital should have known of your client’s incompetence and dishonesty. The hospital had the proof sitting in its pathology lab and did nothing. In fact, the hospital hid the proof.”

  Pierce gave Davis a funny look. He couldn’t tell whether she knew about the gallbladder slides. If she didn’t, she would find out soon enough in the Malone case. If she did know, she didn’t take the bait.

  The deposition was adjourned.

  CHAPTER THIRTY

  A RUDE AWAKENING

  MONDAY, DECEMBER 13, 1993

  After the meeting, Amy kept replaying their final conversation in her mind. Davis said that the hospital knew of her client’s incompetency and dishonesty and that the proof was sitting in its pathology lab. She couldn’t call her client. English was on the run, and she could speak to him only when he contacted her. She thought about confiding in Lowell Thomas but decided she better not since she didn’t know the answer to the question. She decided to go straight to the source, the hospital, and call Grayson Stevenson.

  “Grayson, something Davis said is nagging at me.”

  “You sound surprised. The man’s purpose in life is to keep us off balance and chasing shadows.”

  “I’m serious. He claimed that the hospital’s pathology lab knew that English was incompetent and dishonest. He implied that he had the evidence to prove it. I don’t have a client to talk to, so I called you.”

  There was dead silence on Stevenson’s end. After about thirty seconds, Amy asked, “Are you there?”

  “Yeah, look, I don’t want to discuss this on the phone. Call McCoy, and let’s meet at my office at five.”

  “What about Barnes? He’s Dr. Herman’s co-counsel, Jack Barnes?”

  “Forget him. He’d be trouble. We’ll figure out how to deal with Barnes at the meeting.”

  “This sounds pretty serious.”

  “Unfortunately, it is.”

  For the next three hours, Amy speculated on the problem. With Dr. English as her client, she had to think outside the box. After his phone call to Mother Superior Nash, anything was possible. He was a real wild card.

  Sean McCoy showed up wearing a black-and-w
hite polka dot bow tie. When she invited him to the meeting, Amy told him only that the defense team needed to meet. After they sat down at Stevenson’s conference room table, McCoy asked, “Where’s Barnes?”

  Stevenson responded, “He’s not invited. Before we begin, I want to emphasize that this meeting and what’s said here are protected by the co-defendant privilege, and we’re bound to protect our clients from liability.”

  “Isn’t the co-defendant privilege generally used in a criminal case?” Amy asked.

  “Trust me, it’s applicable here.”

  Amy looked over at McCoy, and he nodded.

  Stevenson proceeded to explain that Custodian Johnston had lied in her deposition about the existence of the gallbladder slides and that immediately after the deposition, the slides from 1991 and 1992 had gone missing.

  “Those slides prove that Dr. Herman made false diagnoses using his ultrasound, that Dr. English removed healthy gallbladders, and that the hospital’s pathology department was a part of the conspiracy to perform unnecessary surgeries.”

  “That’s what Davis alleges in his remaining nine lawsuits. He’s got the slides,” McCoy blurted out.

  “Of course he’s got the slides. They didn’t walk out of the hospital on their own,” Stevenson said angrily.

  Amy said, “Okay, he’s got them, but can he get them into evidence? They’re stolen, aren’t they?”

  Stevenson had obviously given that question much thought. He’d assigned an associate to research the issue. “He can get them in. All he has to do is get one of our witnesses to lie and testify that the slides were destroyed, and he can introduce them to impeach the witness to prove that he or she is lying.”

  He handed Pierce and McCoy two different Tennessee Supreme Court decisions that supported this conclusion.

  McCoy removed his bow tie and undid the top button of his shirt. “What the hell do we do?”

  “I’ve spoken to the board, and if Davis has the slides and can use them, the board wants these cases settled cheaply.”

  They discussed how to negotiate the cheapest settlement. Everybody agreed that Davis didn’t want to try the Jones case. It was scheduled first only because the defense won the flip of the coin. It wasn’t a gallbladder case, so the slides were definitely inadmissible.

  Amy took the development of the defense strategy to the next level. “He’s feeling pretty confident with those damn slides. We make an offer in Jones and the remaining eight cases but tie them to each other.” Amy insisted that they make a take-it-or-leave-it offer. “Settle all nine, or try Jones. He’ll have to communicate the offers, and that should get his clients fighting. Some will want to negotiate, while others won’t.”

  Pierce was pretty proud of herself and could tell that she had impressed her co-counsel, McCoy, by his next comment.

  “Great idea. Some of those cases aren’t scheduled to be tried until 1996 or 1997. Those clients don’t want to wait till then. They’ll want money now.”

  Amy also shared her last conversation with Davis about PIC’s withdrawal of English’s defense. She could tell that neither attorney cared for the strategy because it reduced the number of sources of payment from three to two, but both conceded that the threat added pressure on Davis.

  Amy asked her co-counsel under the privilege: “What do we do about Barnes?”

  McCoy was quick to answer: “We share with him the settlement strategy, but we don’t discuss the slides. He’d turn us in to the Disciplinary Board, for sure. I don’t think he’d think he was bound by the co-defendant privilege; he’d rationalize reporting us as his ethical obligation.”

  Amy agreed. Jack Barnes was a straight arrow, and those slides proved the conspiracy between Dr. Herman, Dr. English, and the hospital.

  When she got back to her office, a phone message was waiting from Dr. English: he would call her at eight. She made arrangements for her neighbor to pick up Carter after school. She grabbed a sandwich and worked in the office while waiting for English’s call. At exactly eight, the phone rang.

  The conversation didn’t go well from the start. Amy tried to get Dr. English to return, face his contempt, and cooperate in his defense of the Plainview cases.

  In response, he kept asking, “What’s in it for me?”

  Amy warned him that his insurance company, PIC, could pull the plug on his defense. He just didn’t seem to get it. Either that, or he didn’t care. When she mentioned the pathology slides, he went ballistic.

  “Davis stole those slides. When did they go missing?”

  Amy explained that the hospital discovered their disappearance about a week after the custodian’s deposition and Steine’s heart attack at the hospital.

  “I bet there was no heart attack. Davis just used it as a diversion. He’s a sneaky little prick.”

  Amy rejected that theory; she was there. Steine had a heart attack. There was objective evidence. But English was probably right that Davis obtained the slides during or right after Steine’s hospitalization. “What difference does it make? He’s got them and can prove that you removed healthy gallbladders.”

  “And I should come back why?”

  “Because you’ll be on the run for the rest of your life, and they’ll eventually catch up with you.”

  “I’m not coming back until we get those slides.”

  “Well, I can’t get them back.”

  “Maybe you should try a little harder!” he screamed at her. And with that English hung up.

  CHAPTER THIRTY-ONE

  COMPLICATED OFFERS

  WEDNESDAY, DECEMBER 15, 1993

  Davis preferred to open his mail rather than delegate the task to Sammie or Bella. Some days, like today, he was a day late. The third envelope he opened was from Amy Pierce. As he read the letter, he could feel his anger rising. He reread the letter and shook his head. Only Pierce had the ability to piss him off while making a settlement offer.

  She wrote,

  Dear Mr. Davis,

  I’ve been designated and authorized by the defendants to make offers in each of the Plainview cases to settle all claims against all defendants. Please be advised that each offer is contingent on all of the plaintiffs in all cases accepting their offer. Please be advised that if one of the plaintiffs rejects this offer, all offers are withdrawn. The following offers are made:

  Jones—$66,000

  Malone—$120,000

  Williams—$84,000

  Boyers—$84,000

  Andre—$89,000

  Darsinos—$100,000

  Mueller—$100,000

  Lane—$126,000

  Gerst—$170,000

  These offers shall expire at 5:00 p.m. on Thursday, December 16, 1993.

  Amy Pierce

  Davis was furious. He grabbed the Code of Professional Responsibility, the ethical code for the practice of law. He quickly confirmed his suspicion that an attorney could not create a conflict of interest for another attorney. Davis slammed the book down so hard his hand vibrated. This offer placed all of his clients in conflict with one another because the acceptance of one offer was tied to all the others. I just can’t consider any of the offers because they are unethical, he thought.

  The Code of Professional Responsibility and his contracts required Davis to take all offers made to his clients for consideration. However, if Davis communicated the offers to his clients, thus creating a conflict, he would be willingly and knowingly buying in to the defendants’ plan. They were trying to get him in conflict with his clients in the hopes of dividing and conquering them. That course of action would probably result in Davis’s firing or withdrawal from one or more of the Plainview cases.

  Littleton was a whole different problem. That asshole didn’t care about the clients or the ethics. All he cared about was money, and these settlements meant a big payday for him. He hadn’t done any of the work and wasn’t planning on doing any.

  Davis decided not to tell Littleton about the offers, but then he noticed that Pierce copied Li
ttleton on the correspondence. She was a real piece of work. She refused to copy Littleton on dozens of correspondences and ignored him when he complained. The one correspondence that Davis didn’t want Littleton to see, there was the “cc. Bradley Littleton.” He needed to call Littleton before he read his mail and could get on the phone to their clients.

  “Brad, have you opened your mail this morning?”

  “No, what’s up?”

  It figured. He was a lazy bastard.

  “There’s a letter from Pierce. She’s offering to settle the Plainview cases—”

  Littleton cut him off. “That’s great. Let me get it.”

  “Read it, but do nothing else. We’ll meet later today to figure out how to respond. How’s one o’clock? Don’t call the clients. We need to talk this through first.”

  They agreed to meet at Davis’s office at one. Davis was proud of himself. He didn’t try to bully Littleton. He reasoned with him and put him off.

  His next move was to call Pierce and demand that she withdraw the offers. If she refused, Davis would report her first to the Disciplinary Board and then to Judge Boxer. The defendants could make a collective lump sum offer as to all defendants in each case, but they couldn’t ethically tie them to each other; that pitted one plaintiff against another.

  Davis calculated in his head the attorney fees that he would earn if he presented these offers and all plaintiffs accepted. He would be able to recoup the $254,000 he had advanced in the Plainview cases. If he didn’t settle, he would have to invest another $50,000 in the Jones case alone, and that case wasn’t worth the investment, low damages.

  Yet Davis blocked the idea of a settlement from his mind. He desperately wanted to settle, but ethically he couldn’t consider these offers. He forced himself to finish opening the mail. He debated whether to call Morty, but he was a big boy and knew the answer to the question. He would tell Morty about the offers after he spoke with Pierce.