A Class Action

by Gene Grossman

  “Okay, professor, if you’re so smart, why don’t you give me a perfect example of that Latin mumbo-jumbo and let me know how it has anything to do with that case you got assigned from the defense firm.”

  “All right Stuart, here goes. A person has an operation at the hospital. Next day the patient feels some discomfort in her side. They X-ray her and discover that there’s a surgical tool someone forgot to take out of her body during the recent surgery.”

  Everyone in the room winces at the thought of this terrible possibility. “I know it sounds horrible, but if it did happen that way, the patient’s lawyer can use the doctrine of Res Ipsa to avoid the necessity of proving up the duty and breach portions of the negligence case, because the fact that there is a surgical instrument inside the client’s body shortly after surgery speaks for itself. The only thing the lawyer might have to do is show a picture of the client’s X-ray prior to the surgery, to establish that she didn’t have that surgical instrument in there to begin with, because in that case, the doctors might only be sued for missing it in the first X-ray.” Stuart is now rubbing his chin.

  “Hmmm. Okay Peter, maybe that left-over scalpel does prove negligence, but it doesn’t nail down who did it.”

  “It doesn’t have to. All it does is speak for itself as to the fact that there has been some negligence. That’s all the doctrine is supposed to do. After that, it’s always the lawyer’s job to place the blame that’s already been established onto the responsible party.”

  “All right. I think I get it now. But please tell me exactly what the Suburban plaintiff’s lawyer means by it.”

  “Simple Stuart – he’s contending that the mere fact of the explosion so soon after the Suburban being serviced by experts on that type of vehicle speaks for itself too. There’s no way the explosion could have been caused without the negligence of someone working at that dealership. Just like in the scalpel case, it doesn’t nail down who was negligent… all he’s contending is that for darn sure, someone was negligent.”

  All the while we’re talking the television set is on, but with the volume muted, so as not to disturb our dinner conversation. We usually leave it on because the dog enjoys watching the pet food commercials. Suddenly Suzi picks up the TV remote and raises the volume so we can hear the local newsreader. “Well, folks, looks like we’ve got a strange situation here in West Los Angeles. Another Suburban serviced by that same dealership has exploded this evening. Fortunately it wasn’t fatal, but the hood did blow off the vehicle, scaring the heck out of the driver. She’s right over there. The paramedics have just finished up with her and I’m going over to interview her now…”

  That was all I need to hear and Suzi knows it, because at that point she puts the volume back onto ‘mute.’

  “Well Pete, I guess that sort of speaks for itself too.”

  Stuart is right. This second explosion is much more than I ever expected. It raises too many questions. I’ve never heard about things like this happening before, so I’m mentally ruling out a design defect in that particular model of vehicle. The only other two remaining possibilities are that someone at that dealership is playing some really sick practical jokes, or it’s merely a coincidence that two similar model vehicles both had explosions, shortly after being serviced at the same dealership.

  It shouldn’t take a Las Vegas odds-maker to figure out that it’s probably not a coincidence.

  *****

  Chapter 3

  Charles Indovine likes to make his calls bright and early in the morning. He’s heard that the word on the street is about the same lawyer handling the first Suburban explosion having sent his investigator over to solicit the second owner as a client too. Now that the same guy represents them both, he’s threatening to bring a class action against the dealership. I don’t know much about class actions, but I would rather not have Indovine know about my inexperience.

  “He must be crazy. I’ve heard of classes with as few as twenty people, but the court would never certify a class that had only two plaintiffs.”

  “Well, you might be correct there, Pete. The Numerosity requirement for class certification probably wouldn’t be satisfied with just two, but we don’t know how many more there might be out there. I spoke to Mister Uniman and we were thinking that this could present some extremely large liability exposure for the dealership, and we don’t think you’re equipped to handle it at this time. The case needs investigation and a lot of technical knowledge, and we don’t know…”

  “Hold on Charles. We went through this last time, when you guys wanted to yank that slip-and-fall wrongful death case from me, and I wound up saving Uniman over a million dollars. Please, let me look into this for another couple of days. If I can’t find out anything useful, then you can have the case back.”

  Silence on the other end, for what seems like an hour. “Peter, we’ll give you until the end of the week, but if your investigation hasn’t come up with anything mitigating by then, we’re going to assign it to our class action department. It’s our duty to the client.”

  That was it. I got another couple of days out of him, so I call Jack Bibberman. He’s helped me out of some real tough ones in the past, and I’m starting to rely on him like Nero Wolfe relied on Archie Goodwin. He’s not the best investigator in the world, but he’s a schleppy, non-threatening kind of guy who people feel comfortable with. Somehow he gets them to tell him things that no other cop or investigator would succeed in drawing out of people. Maybe it’s because when they see him they spot a guy who’s lower on the food chain then they are. If you look up failure in the dictionary, you should see a picture of Jack B. He can do anything but make a living – but I like him, and he always comes through for me.

  Jack succeeds in getting interviews with the drivers of both Suburbans, and also obtains a list of all the dealership’s employees. I remind myself to have Jack get a statement from Joe Morgan, the last mechanic to sign off on both of the Suburbans. I also wanted to know exactly where each of those vehicles was driven, so Jack got their exact routes for me and learned that they didn’t explode on the same day they were picked up from the service bay. It took at least a day or two of driving before each one blew its hood off. My next step is to follow their steps to try and see if there’s any way that something might have been done to those vehicles after they left the dealership.

  I hear the pitter-patter of big paws entering my stateroom. It’s a dogmail for me. The kid’s note reminds me to reset my odometer for every trip I make on this case so she can do precise billing. She’ll be charging Indovine for my time and mileage when preparing the weekly statement sent to his office, and because this will probably be the last chance we have to get any money out of this case, she wants to make the most of it.

  I read the message and wash my hands. I’m going to have to tell that kid to put future messages on his collar instead of in his mouth.

  The next couple of days are spent going over witness statements and mapping out routes to follow. This is the end of the week, so if I don’t come up with anything Indovine will be taking the case back. Maybe he’s right. Class action defense requires a full staff of people to process all the paperwork, and I just don’t have it. I’m going to take care of the last item on my check-list, so I go to the dealership and introduce myself to the assistant manager. When he finds out I’m on his side, he offers full cooperation. I tell him that I’m going to re-trace the routes driven by those two claimants and he surprises me with an offer.

  “Hey, as long as you’re trying to re-create their routes, why not drive the exact same kind of vehicle they were driving? I see you’ve got a big Hummer, so it shouldn’t be any problem for you to drive a big Suburban.”

  I thank him and tell him that I really don’t want to impose.

  “Hey, no problemo. There’s one right over there that was just serviced… and no customer can complain about your using it, because it’s assigned to our general manager’s wife… and she won’t be here to pic
k it up until late this afternoon. You said you’ll be back here by noon, so there shouldn’t be any problem.”

  Why not? I take the keys and start out on my first route, with several pages printed out from Mapquest.com and the statements of both drivers. I know exactly where they went, what stores they stopped at, where they parked, and exactly where the explosions took place. Following instructions from Jack and Suzi, I created a logbook to record exact mileage and driving times. And just to play safe, I drive as slowly as traffic will allow. I don’t want to cause too much of an accident if the hood of this thing gets blown off.

  The trips were nothing special. The main thing I was looking for was any place that one of them might have stopped long enough to allow someone access to the engine compartment. The first driver’s route went past the soccer field, probably to drop off the players, and then on to the other important places like a hairdresser, the Galleria, and a gourmet food store. Good thing that the kids were dropped off before the car exploded. If she had driven another few miles before picking them up, the Suburban would have been loaded with a girls’ soccer team, and the hysterical screams would have been louder and more damaging than the explosion.

  The other one’s routine was similar, with the same types of stops. It seems to be the fad nowadays for husbands married to women barely five feet tall to get them huge trucks to drive. I guess they see some need to drive such big heavy vehicles to pick up the family’s dry cleaning and groceries. But who am I to talk? I bought a huge Hummer mainly to drive a kid and a dog downtown a couple of times each year.

  I bring the borrowed Suburban back to the dealership a little after one in the afternoon, make my final entries in the logbook, and look for the assistant manager to thank him for his cooperation. He’s nowhere to be seen. I ask a salesman where the assistant manager is, and he tells me that the general manager was really pissed at him for letting me use his wife’s vehicle. She’ll be there in a couple of hours to get it.

  That was unfortunate. I certainly didn’t want to get the guy in any trouble.

  Suzi figures the mileage and does the final billing for Indovine’s office. I guess I’m out of the class action business for now. Whenever I’m in a down mood, I try to give myself a little gift. Tonight it’ll be the unfinished business I left at Laverne’s houseboat last time, so I walk over there to get the clink and wink.

  As usual, we get comfortable, open a can of wine from her private reserve, and get into bed to watch the early evening news.

  After the reports of car-jackings, bank robberies, and the results of last night’s high-speed chases, the announcer has a news flash. “Just an hour ago, there was another explosion of a vehicle serviced at the same West Los Angeles dealership – but this time, there were two deaths… the wife of the dealership’s general manager and her mother. The explosion didn’t kill these women, but it forced the driver to lose control and the car flipped off of Mulholland Drive and down a steep two hundred foot embankment.”

  I may have quite a bit of cheap wine in me, but not too much to realize that those two women died in the same Suburban that I was driving earlier today.

  *****

  Chapter 4

  What the hell could have happened to that Suburban between the time that I drove it and the time it blew up?

  Any normal person in my place would probably think he just survived a close call, but I think not. There’s got to be more involved here than a poorly designed vehicle. I hope that Indovine’s high-priced class action department doesn’t get sucked into giving away a lot of Uniman’s insurance money to settle these cases, because something smells funny here. I make a mental note to drive the same route from the dealership to where this last car went off of Mulholland, just to check out the route between the dealership and there… but this time I’ll be in my Hummer – no more borrowing cars from that dealership.

  My phone doesn’t stop ringing with calls from friends who knew I had been working on the dealership’s defense. Stuart calls, but I refuse to argue any more with him about the applicability of Res Ipsa in these cases. The afternoon news reports that the class action has now been expanded to include the dealership’s general manager as a plaintiff. He’s also suing for wrongful death. Indovine’s firm is going to make a lot of money on this one, but probably not as much as the insurance company will lose.

  The reporter interviews my ex-wife, the newly elected District Attorney. She plays it safe, only saying that her department is looking into the double deaths and if any evidence of foul play is revealed, they’ll turn it into a criminal investigation.

  From the boat I can see into the lower level garage where the apartment tenants and boat-owners park, and it looks like someone is in my Hummer. When I go over to check, I see it’s our techie dock neighbor Don Paige, and he’s doing some wiring thing near the driver’s seat. As usual, it’s at the kid’s instruction. She was unhappy with the way that I made entries in the logbook, so Don is installing a voice-activated recorder. All I have to do is glance at the odometer and dashboard clock and tell the device where I am, what time it is, and what the odometer reading is. She can then transcribe the recording and do her billing.

  Don reminds me that I have to make sure that the recorder is turned off if I intend to listen to the radio, or I’ll just fill up the recording capacity with music, news and commercials. He gives me a few minutes of instruction on where the various switches are and tells me how lucky I am to have someone like Suzi caring for me so much. I don’t want to disillusion him with my suspicion that her main concern might really be about data collection for more precise billing purposes.

  I’m glad to see everyone’s got something to work on. My drunk driving case is over and Indovine grabbed the Suburban case back from me, so if nothing new comes along soon, I’m on vacation. I haven’t been to the San Fernando Valley in quite a while and since it’s only a half hour away, I’m taking a ride on north the 405 Freeway, over the Sepulveda Pass, to visit Stuart in Van Nuys and see how his used car business is coming along.

  When I get to his warehouse he spots my yellow Hummer and comes outside to greet me with that strong handshake of his. I look around but don’t see any cars. “Stuart, I thought you were going to be selling used cars here. Where are they?”

  “Peter, I’ve developed a unique system for the selling of pre-owned vehicles. The first six cars were trucked out here, and my creative advertising sold them immediately. When the customers started asking about specific models, I talked to the people at I.R.S. to inquire about a greater selection. They told me that car theft in the five Northeast states they cover is in epidemic proportions, and if my customers aren’t too fussy about color, we can be provided with practically anything they want.”

  “So what are you saying, you take orders for specific models now?”

  “You got it, pal. You just tell me what make you want, and I can get it for you. The most popular are Camrys, Accords, and Altimas, so I’ve sort of become a specialist in those. I’ve got a couple of dealers here that are always looking to add some low-mileage ones to their front line, as long as there’s no rust damage… you gotta be careful of that with East Coast cars. You know, the snow, road salt, stuff like that.”

  I offer to take Stuart to lunch but he declines the invitation because he’s waiting for a truckload of cars to be delivered. Just then, a large diesel car-carrier pulls up to his warehouse and honks the horn. It’s got five vehicles on it with one empty slot, which means that another car must have been dropped off somewhere on the way here. The driver lowers two portable metal ramps so the cars can be driven off the truck and into Stuart’s warehouse, where he’ll have them cleaned up and thoroughly detailed inside and out, including the engine.

  Stuart is all smiles. He proudly tells me that four of these five cars are already sold. I see that they still have New York and New Jersey license plates, but Stuart assures me that the paperwork accompanying each car must be all in order because his customers have no prob
lem at our Department of Motor Vehicles when they go in to re-register each car, get a new California license plate and ‘pink slip,’ the California DMV nickname used for a document indicating that the holder has clear ownership. He claims that the paperwork that comes from back east all goes through local DMV offices perfectly.

  It looks like Stuart has everything under control. My cell phone rings. It’s Jack Bibberman calling. He has statements from the employees at the car dealership. I forgot to tell him that the case was taken away from me, but that’s not his fault. I’ll pay him for his time spent and try to get reimbursed by Indovine.

  Witness statements from the dealership all seem to be in order. Before the explosions, each Suburban was brought in and first seen by a ‘write-up’ service manager, who then assigned each vehicle to the crew that does warranty service. Because all the Suburbans involved were recently purchased, everything done to them was covered by their factory warranties. Joe Morgan is the warranty service manager and he worked on all three of them, as well as about twelve other Suburbans during that same period of time. None of the others exploded. Being as thorough as ever, Jack also got copies of the service records on the other twelve cars. They showed the original dates of sale, mileage, and every time they came into the dealership for service. Not a one of the other twelve or the three that exploded were ever serviced anywhere else but right there at that dealership, the place where they were all purchased.