by R. J. Blacks
“Yes, but we haven’t had one for a while. People forget. Always wait for the last minute.”
I enter the living room. It’s neat and clean, consisting of discount store furniture obviously selected for price and not style. A woman on the couch gets up to greet me.
“I’m Victoria Stewart, Kevin’s mother. Please, make yourself comfortable.”
I wander to the couch and sit down. Mr. Stewart sits in an easy chair nearby. Mrs. Stewart leaves the room and I focus my attention on a small memorial on the adjacent wall. There’s an 8 by 10 framed photo of Kevin wearing his graduating cap and a few awards surrounding it. Underneath is a shelf with some items: a watch, a cellphone, keys, and a few coins, presumably the last things he had in his possession before his tragic end. I am saddened by the sudden realization that this victim is not just random fatality, a mere statistic; he was a real person, with people that loved him, and would miss him.
His mother reenters the room carrying a plastic tray. On it are three coffee mugs and a bowl of pretzels. She places them on a serving table, and then sits on the couch. I pick up one of the cups and a handful of pretzels and turn to face her.
“I was wondering... Lake George is quite a distance from here. Was your son living near there?”
“He had just started college in Ormond Beach. Oceanography. It was his passion. He wanted to become a marine biologist. Worked really hard during High School. Graduated ninth in his class. And then, when he got accepted to Ormond College, he worked all summer to earn enough money to buy the blue Camaro. He loved that car.”
“And the girl, did you know her?”
“I think she was a friend from the university. She came to the funeral, but after that, we never heard from her.”
“I’m so sorry for both of you. We can’t bring Kevin back, but together we can find justice and perhaps his death will save others.”
Kevin’s parents sit there staring at me, cup in hand, waiting for me to begin and then apprehension overwhelms me. I suddenly realize this may be my only chance to convince them.
“On the surface, your son’s death may appear to be an accident. But I’m a researcher in microbiology, and I have reason to believe those were not ordinary alligators that attacked your son.”
“What do you mean?” Mrs. Stewart says.
“I have evidence those alligators exhibited unusually aggressive behavior that was initiated by a certain pesticide in the water.”
“Aren’t pesticides tested by the EPA?”
“Actually, no. The EPA has certain guidelines that manufacturers must follow when testing the product to determine if it’s safe. The manufacturer then sends their data to the EPA and it’s reviewed by experts to see if it meets the required safety standards.”
“How does the EPA know if the data is reliable?”
“Good question. They assume the manufacturer is capable, diligent, and interested in the public’s well-being. They basically trust companies to be honest.”
“And are they?”
“Think about the tobacco settlement of 1998. For years, independent researchers claimed a plethora of diseases were attributable to cigarettes. But the tobacco industry denied it vigorously for years, quashing every lawsuit with legal technicalities. Only when the evidence was so overwhelming, so patently obvious, that fighting against it would be pointless, did they finally agree to settle.”
“Is that what’s going on here?”
“I don’t know about other pesticides, but for one, Farm-eXia, yes, I think that’s what’s happening.”
“Then why don’t you contact the EPA.”
“Already have. They blew me off. There’s only one way to beat this, with a product liability lawsuit.”
“Then why don’t you do it?”
“Because a product liability lawsuit requires a victim, and in this case that would be your son Kevin. Only the parents can file a lawsuit on behalf of their child. No one else can do it.”
“Unfortunately, we can’t afford a lawyer. Business has been slow the last few years,” Mr. Stewart interjects.
“Don’t worry, it won’t cost you anything. I know a top rated lawyer, a Harvard graduate, which will take your case for 40% of whatever settlement you get.”
“And how much do you get?”
“Nothing.”
“Why would you do this for nothing?”
“Because it’s the science that interests me. It bothers me to no end that a company can release a product to the environment that is unsafe, and do it with impunity. It has to be stopped.”
“Is this going to require a lot of our time?”
“Actually, you only need to sign the papers allowing us to proceed. I’ll prepare all the scientific data and the lawyer will handle the legal end.”
“Can we think about it?”
I’m overcome by this uneasy feeling if I don’t get a commitment today, I’ll never hear from them again. A couple of days will go by, and then a week, and then the whole thing will be forgotten. I need to put some pressure on them.
“I’d love to tell you we have all the time in the world, but we don’t. I’ve been working on this for six months and my samples are already getting stale. If we don’t start now, all that work will be lost. And to be totally honest, I’m not sure I can do this all over again.”
“How much would we get?”
“It would be based on your son’s earning potential. Let’s just say he became an oceanographer and worked for forty years. I’m not sure what they make, but let’s say an average salary of $100,000 per year. So over forty years, that would be $4 million. You would get 60% of that, about $2.4 million. But it could go higher, up to $10 million or more.”
“$2.4 million? That would solve a lot of problems,” Mrs. Stewart says. Mr. Stewart nods in agreement.
“Do it for Kevin, not for the money. The award sends a signal to other corporations that unsafe behavior will not be tolerated by the public.”
Mr. and Mrs. Stewart look at each other and I can see they are in a quandary. I reach into a manila envelope and take out an agreement drafted by Berkeley and included in the package he sent me. I hold it up for both of them to see.
“This agreement allows us to file a lawsuit in your behalf. If you sign it now, we’ll get started right away, and the next thing you know, you might be opening a letter with a check inside for $2.4 million.”
Secretly though, I don’t have a clue whether they’ll get any money or not, or if we can even win this case. But I have to present it in the most favorable light and hope we can pull it off, because if I don’t, my efforts of the last six months will be all for naught.
I place the contract in front of Mrs. Stewart, hand her a pen, and then wait. I have this feeling that if she signs it, Mr. Stewart will too.
She rolls the pen between her thumb and forefinger, deep in thought, unsure what to do. She looks at George, then back at the contract, then at George again.
“I agree with Indigo. We shouldn’t be doing this for the money. We should do it for Kevin,” and then she scribbles her name on the contract.
“Thank you Mrs. Stewart,” I say, and then hand the contract and pen to Mr. Stewart. He signs it without hesitation, as I expected, and hands everything back to me.
“You’ll keep us informed, I presume?” he asks.
“Absolutely. You’ll be getting monthly updates on our progress.”
Both Mr. and Mrs. Stewart sit there quietly, and I sense an air of melancholy. This has reopened a wound and I feel bad about it. I try to uplift their spirits.
“This is a great thing you’ve done,” I say. “When this case is over, Kevin will be in the hearts and minds of everyone, even those that didn’t know him. He’ll never be forgotten.”
I get up and Mr. Stewart walks me to the front door. I bid them a goodbye, and then head back home, overjoyed I managed to get the contract signed. But then, as I’m driving alone on the interstate, I keep thinking about the situation at the St
ewart home. They spent their best years raising their son, and then, he was gone. How sad.
...
As soon as I arrive back home, I call Berkeley and let him know I got the agreement signed.
“Okay, I’ll start on the legal work. How’s the science coming?” he asks.
The truth is: I’m in a quandary where to go with this. I know practically nothing about putting together a legal brief, let alone one that will withstand the intense cross examination of experts in the field. But if I come across as ambivalent or indecisive, he might back out, so I do what I have to do, give it my best bluff and knock the ball back into his court.
“Fine,” I say. “I’m working on it now.”
“Great. Send me a copy as soon as it’s done. Be prepared though, I might change a few things.”
“Oh, I expected that,” I say, and then we terminate the call.
I spread all the legal books, binders, and papers Berkeley sent me over my bed and immerse myself in a crash course on legal proceedings. The yellow highlighting and the sticky notes next to the points he wants me to focus on facilitate my understanding and the task goes quickly.
I learn there are three parts to a lawsuit: the pleadings, the discovery, and the trial. The pleadings can be further broken down into the “complaint” and the “answer.” The complaint consists of three main parts: (1) What the defendant did, or in some cases, failed to do, (2) What harm it caused, and (3) The legal basis why the defended should be held liable for that harm. It’s clear from his notes, Berkeley wants me to take the lead in parts one and two, and he’ll handle part three, the legal implications.
Part one is pretty easy. The defendant, GWI, manufactured and marketed a pesticide, Farm-eXia, failed to test it adequately, and then convinced the public and the EPA it was perfectly safe.
For part two, I propose the following: Farm-eXia was released to the environment, contaminated lakes and wetlands, and caused the death of Kevin Stewart by its toxic actions on aquatic animals, in this case alligators, who became unusually aggressive and attacked the victim.
I email my part of the complaint to Berkeley, and then call him to see if he received it.
“Okay, that’s good,” he says. “But I think I’m going to send them a demand letter first.”
“A demand letter? That wasn’t in any of the law books.”
“It’s really more of a courtesy, not required by law. But the lawyers we’re dealing with are top notch. They’ve already set you up in case you confront them with a lawsuit. They’re one step ahead of you and we haven’t even started yet.”
“Set me up?”
“Yes. The minute you file a lawsuit, they’ll tell a judge they offered to work with you and you refused.”
“The letter... from GWI.”
“Exactly. That will no doubt anger the judge, because believe it or not, judges prefer disputes be settled out of court to save time. He would see you as uncooperative which plays right into their strategy. He may even order you to work with them to alleviate the issue, and if you don’t, hold you in contempt of court, if he wanted to play hardball.”
“You think he would do that?”
“Probably not, but you never know. Never underestimate your opponent. First thing they teach you in law school.”
“I’m glad you’re on my side.”
“This is just the beginning. Wait until the mud starts flying.”
“So you’re good with what I wrote?”
“I also need some scientific evidence we actually have a case. Otherwise they’ll think we’re bluffing.”
“How about the report I sent to the EPA? It’s all in there.”
“Perfect. I’ll refer to it in the letter and include a copy.”
“What are you going to ask for?” I say.
“Basically damages. Let’s see, Kevin was enrolled to become a marine biologist. He would probably average $140,000 a year over a forty year career which gives us... hold on a minute... $5.6 million. And I’m going to throw in an additional $2.4 million for the emotional distress of the parents and the loss of joy of seeing their son succeed in life. Eight million total.”
“And what about taking Farm-eXia off the market?”
“We can’t ask for that. If they’re smart they would do that anyway. But my guess is it makes too much money. They would just see the $8 million as a business expense.”
“What about the bad publicity?”
“Before they fork over $8 million they’re going to demand absolute secrecy. And if anyone spills the beans later, they could demand the money back.”
“So they have all the good cards.”
“In a manner, yes. The smart thing to do would be to just pay the $8 million and be done with it. But my guess is, there are egos at play. Always are. And when egos get in the way, people do irrational things. They probably think this will be a cakewalk, and just ignore us.”
“How will we know?”
“I’ll give them ten days to respond. We don’t want to drag this out for too long.”
We conclude the call and I go back to my day job at Semi-Environmental waiting for the ten days to pass. The rest of the time I help out at the restaurant. Will and Juanita are seeing each other on a regular basis and I’m waiting for a happy announcement. But I just keep that to myself. It’s something they need to work out by themselves and it’s none of my business.
A week passes and then Berkeley calls.
“They want to meet with us.”
“What does that mean?” I ask.
“It sounds like they want to settle.”
“So much for egos.”
“Yeah, never would have believed it,” he says.
“Where and when?”
“Jacksonville, in three days. They have a local sales office there.”
“In three days?”
“Apparently they want to move fast. I guess before you can add anything more to the complaint. You need to contact the Stewarts right away so I can give them an answer today.”
I call Mrs. Stewart and explain the situation. She agrees to meet us in Jacksonville since it would be only an hour’s drive for them. I call Berkeley back and let him know.
“Great,” he says. “I want you to bring everything you have on this case. All your findings, data, pictures, anything that would bolster your argument in case they grill you while we’re there. No one hands over $8 million without a fight.”
“Shall I ask Doug?”
“Absolutely. Be at my boat at 7:00 AM.”
I call Doug, but he tells me he can’t make it this time, has a client coming to visit that day.
Three days go by and I get up at 4:30 AM to allow time to prepare for the trip. Once again I forgo the Native American outfit in favor of business casual, and then, drive the sixty mile trip by myself meeting Berkeley at his boat as planned. He’s dressed in slacks and a plain blue shirt with a tie and jacket draped over his arm.
“Where’s Doug?” he asks.
“Couldn’t make it this time.”
“Well, we don’t really need him. And since it’s only the two of us, I’ll drive.”
He leads me to a bright red Lamborghini Gallardo Spyder. I circle the car admiring the excellence of the design. It’s beautiful, a work of art, but I’m surprised. Somehow, I had imagined him driving something more conservative.
“I thought Bostonians liked Rolls-Royce,” I say.
“Rolls-Royce! You’ve got to be kidding. They’re for bankers, with no sense of humor.”
Berkeley presses a button on his keyless remote, and then, opens the passenger door for me. I slide into the red leather seats raked back at a sharp angle. He closes the door, gets into the driver’s seat, and pushes another button causing the convertible top to fold back into the trunk. Then the engine comes to life with a very pleasing growl and the next thing I know we’re cruising on I-95 at 100 mph, my hair dashing wildly in the wind. I hold it down as best I can, desperately trying to keep it from be
coming a frizzy mess, but I’m losing the battle.
“Aren’t you concerned about the police?” I ask.
“Of course I’m concerned. But what’s the point of having a Lamborghini if you can’t drive it fast?”
We make the hundred mile trip to Jacksonville in only an hour giving us an average speed of 100 mph. I’m certain there were times when he had it up to one-fifty, but I kept quiet, basked in the adrenalin rush, and hoped we wouldn’t be spending the day at the police station.
Berkeley parks the car, puts up the top, and then, puts on a tie. I grab my hair brush and hastily try to comb out the knots in my hair. He looks in his rear-view mirror, straightens his tie, and then turns to me.
“The meeting’s at nine, but as a courtesy, they’ll let us use a private office for an hour, to go over our notes.”
We get out of the car and Berkeley locks the doors. He puts on the jacket, and then, we make our way to the lobby. Inside, Mr. and Mrs. Stewart are waiting by the door. The four of us squeeze into an elevator and ride it to the twelfth floor. Berkeley strolls up to the receptionist and introduces himself. She leads us to an empty office, switches on the light, and invites us to enter. As we take a seat, she exits, closing the door behind her.
“Feel free to speak freely,” Berkeley says. “I don’t think it’s bugged. That would be quite unprofessional.”
Mrs. Stewart turns to face Berkeley.
“What do we need to do?” she asks.
“Actually, nothing. You’ve hired us to represent you. We do all the work. The only reason GWI wanted you here today is to see how resolute you are. See if there’s any wiggle room. My advice would be to keep silent and deflect all questions to me.”
I spend the time reviewing my notes, and then, fifteen minutes later, there’s a tap at the door. Berkeley tells whoever it is to enter. A lady walks in pushing a serving tray with some pastries and a coffee urn on it. She places everything on the table and then leaves the room pushing only the empty tray. Mr. and Mrs. Stewart spend the time sipping on coffee and sampling the pastries.
At 8:55 AM, there’s another tap at the door and the receptionist peeks in. She tells us our hosts are ready to begin so we follow her down the hall to the main conference room. It’s huge, with floor to ceiling windows facing the Atlantic, a giant flat-screen TV at one end, a bar at the other end, Greek statues in the corners, and in the middle, a table large enough to double as a roller-skating rink. Six people are sitting around the table, two of which I recognize immediately. They’re the two men that got me kicked out of school, the two people I despise more than anyone in the world, Eldridge Broadhampton, the founder of GWI, and his special council, Ellis Grimes.
