He laughs more openly. “Yep, that's the Scott Winslow I remember.”
He looks at Kevin and says, “Kevin, are there any questions that you have about this process before we get down to it?”
“No, not at this point.”
Jake looks at me. “I see how you got to your demand, given Kevin's salary and bonus structure, but I hope you are coming with an open mind toward achieving a viable number.” This is mediator speak for, “I hope you will reduce that demand a lot in order for me to get this deal done.”
So I give him my equally vague response. “We are certainly here to make good faith efforts to get the case resolved, but we believe that our assessment of value is pretty reasonable.”
I deliver this with sincerity, but I would challenge him to find any real message in that answer.
“All right, I'm going to have an initial meeting with the other side. I will be back. You know where to find coffee and food, right?”
“Yes, thanks, Jake.”
When Jake walks out, Kevin said, “I'm not sure what you told him about whether we would negotiate or not.”
“That's because you were listening carefully, and I didn't really say much. Just keeping our cards close to our vest until we get going.”
“I'm following your lead on this, Scott. Like we talked about, I won't react to any offers as they happen, but I want you to know that I will do what you suggest. Julia is on board also.”
“Thanks, Kevin. I want you guys to know that I want to do what is right for you. We went through a horror show with Jerry Anders, but I can't let that crazy man succeed in affecting your case. You can never let the terrorists win.”
Kevin could only nod.
After almost an hour, Jake Billings returns and sits down.
“So they want me to begin by telling you that your demand is unreasonable. So there you go.” He looks at his notes and then says, “Let's get right to key issues. How are you going to establish the connection between Kevin's complaints and the termination?”
“Kevin complained about the failure to correct deficiencies that were serious and ongoing. We will have testimony concerning what the deficiencies would have cost to correct, and it was appreciable. The accident that occurred relates to those deficiencies, and there will be little doubt that the existing conditions are what can cause exactly what happened. They give rise to the likelihood that pockets of methane build up. And we all know what happens when a tunnel full of methane gas meets with a spark in one of a hundred different ways.” I pause to breathe. “We also have Carl Miller's testimony that he switched the records, so that we can establish the conditions existed and had been the subject of violations, but remained uncorrected in the mine where the explosion took place. Add to that the fact that Kevin has an incredible performance history, a bonus reflective of his successful performance prior to his termination, personal acknowledgment by Constantine in a group setting that Kevin was outstanding, and several co-executives who will testify about Kevin's competence and support the fact that he had complained about these dangerous conditions.”
Billings nods. “Let's talk about the Mr. Valentine character that was mentioned in your brief. How do you establish that he was an agent of the defendants and not some kind of a loose cannon? They say that you can't, and they will make motions to exclude any reference to him at trial. I know it is a sensitive area, but you did have one of those who wanted the case dismissed, right? I mean, can you connect him to the defendants?”
“Not yet, but it doesn't matter.” I let that settle a moment. “Now that we have established that the mine where the injuries occurred is the mine where the danger had been presented because of prior documented violations that went uncorrected, I don't have to care who Mr. Valentine might be.”
“Why?”
“Well, with Miller's testimony, I can establish that the mine with the uncorrected citations is the same mine where the explosion happened. I don't need to establish how Valentine compelled him to make the switch in order to establish that he made the switch.”
“I don't disagree, but if you can associate Valentine's blackmail acts with instructions from the guys in the other room, the punitive damage exposure gets stronger.”
“I agree, and we are working on identifying Valentine. But even if we never do, I think that establishing Kevin was fired because he raised serious safety issues and that those same safety issues led to a disaster that could have been prevented had they done what was right for their employees will provide significant opportunity for punitive damages.”
“Kevin, how are you doing these days?” Jake asks.
“I'm okay. Thanks in large part to Scott. I mean, when I came to see him I was crestfallen. My whole career was spent with these guys, and I gave everything I had. It has certainly changed my life, but Scott is helping me see what these guys did and that helps me move forward with life.”
“What is a good resolution of this case for you, Kevin?”
I jump into this one. “Kevin, don't talk numbers. You and I do that together. If you have other thoughts about what might aid in resolution of the matter, feel free to share them.”
Billings asks, “What about returning to work? I know you and Constantine go back a long ways. Is that something you would consider?”
“I don't think so.” He shakes his head thoughtfully, and then says, “I used to love the company, and Michael showed his true colors with what he did to me. I don't know that I can ever trust them again.”
Jake looks at me. “So do you have a counter for me?”
“It's their turn.”
“What?”
“Look, they offered to settle for $100,000. We countered at $5 million. Doesn't that make it their turn?”
“There's a pretty crazy crowd in there. If I can't take something back to them, we may hit a wall early.”
“Who is in that room there, and which of them is calling the shots?” I ask.
Billings says, “Bob Harris, Michael Constantine, an in-house lawyer named Jeffers, a risk manager, a carrier with coverage above their retention, and an adjuster. They have the board on alert in case a deal is made.”
“So who is calling the shots?”
“Harris is doing most of the talking, but Constantine is the guy to convince.”
“Who happens to be the same guy who is personally implicated in all this,” I say.
“Correct.”
“You can tell them we will take 4.75, but they need to make a significant six-figure move before we go any further.”
He shakes his head. “I'm not sure they're ready for that, but I'll give them the message and make the case for why that makes sense.”
He departs for the other conference room, and I walk back to see Kevin and to check e-mail. It is ninety minutes before Jake emerges from the defense room. He sits down and says, “They are at $275,000. They continue to tell me that you can't prove who Valentine is, so you can prove that they had any role in Miller's activities.”
“I don't think that matters,” I reply. “Like I said, once it is shown that Miller changed the records, they have serious uncorrected violations in the same mine where the explosion occurred. This not only makes our case, but they are also probably thinking will come to be a public relations nightmare for Consolidated. We are happy to play out the hand if that's how they want it to go.”
We spend additional time talking through the facts. Jake periodically asks Kevin a question, and it is clear he is impressed with the responses and will reinforce to the other side what a good witness Kevin will be if we wind up at trial. Jake considers in silence, and then says, “You are too far apart. I am concerned that if we continue at this rate, we'll hit a wall shortly. Will you guys go to one million if they go to five hundred thousand?”
We ask for time to consider and Kevin and I discuss it for twenty minutes. We then refuse their proposed range, but tell Jake we will go to three million if they go to one million. He disappears for almost two ho
urs, which is not a good sign.
Jake walks into the room and sits down with us at 2:45 p.m. “They will go to six hundred thousand if you go to one million. That's the most I could get them to move.”
“Thanks for your hard work, Jake. Looks like they are not ready to settle the case for what we believe it's worth. Please tell them we appreciate the effort, but we are moving forward with the case.” I stand and put my jacket on, and Kevin follows my lead.
“I understand, but don't go yet. Let me tell them this is it. That you're leaving unless they do something significant enough to make you stay.”
I nod. “Okay, a few more minutes can't hurt.”
Jake nodded and left the room. It was 4:10 p.m. when we saw him again.
“They are offering $600,000 and the opportunity for Kevin to return to work at the same salary he was making when he left. They will give you a two-year contract with right to terminate for cause or with six months' severance if the termination is without cause.”
Kevin and I discussed it for a half hour, and then relayed to Jake that Kevin would not return to work for them for the reasons previously discussed. We countered the $600,000 offer with $2.5 million. It was then 5:20 p.m. We next saw Jake at 7:10 p.m., and he was looking pretty beat up.
“You look a little the worse for wear,” I joke.
Jake grinned. “It is an intense environment in there.”
“Is Michael angry?” Kevin asks.
“No, he's the voice of sanity in that room. And I really believe that he wants you to come back.” Kevin listens quietly but does not respond.
“Is there another offer?” I ask.
“There is: $650,000, last, best, and final, with confidentiality regarding the settlement terms. And the offer also remains open for you to return to work.”
Kevin shakes his head. “I hear what you are saying, but I'm not sure that I can ever trust Michael again.”
Kevin and I speak privately again, and then I walk over to Jake's office. All staff are now gone, so it is just he and I in the area. “We are going to decline the offer,” I say.
Jake takes on a pained look. “Are you sure? I mean, I really think that they are getting reasonable.” He pauses. “Scott, my gut is that Constantine is sincere about wanting your guy to come back to work. I've seen a lot of empty offers, and I don't think this is one of them. They really believe Walters has a great deal to offer Consolidated.”
“Better late than never,” I say.
“All right,” Jake says, “but I'm going to keep working this. This case should get settled.”
“I appreciate that, even knowing that you think all cases should get settled.”
* * *
I arrive home at 9:20 p.m. I kiss Lisa, and then I say, “What did I miss today?”
“I can't get used to seeing all of the life support equipment all around him. It's all so massive and mechanical,” she says, and I can see the sadness in her eyes. “Joey moved a couple more times, and my heart fluttered. Even though they keep saying that is to be expected and that he is still asleep, it gets your hopes up.” She pushes a tear away and adds, “I know he can't wake up until they bring him out of the coma, but with every movement, there is some excitement. I guess my head knows he can't wake up alone, but my heart is looking for any sign.”
After we talk about Joey and then Katy, I update her on the mediation. We drink a glass of wine together as we talk, and I remember my visit to the psychologist and what Pat had told me, about the importance of talking and sharing—saying everything and nothing. I know he is right, because I find a glimmer of hope in our conversation.
Just after midnight, Lisa says that she is going to try to get some sleep. I kiss her good night and then walk into Katy's room and kiss my little girl on the forehead. She wiggles but does not awaken. I sit beside her and say a silent prayer that she will always be protected. Then I walk into Joey's room and sit on his empty bed. I look around at his model airplanes and his posters on the wall. Musicians and athletes surround me. His old stuffed bear, Monte Burke, sits there looking worn and lonely. I grin at the fact that Joey selected both first and last names for his bear and neither were names we had ever heard.
There is so much of Joey here that there is a comfort in seeing everything he loves. I smile widely as I look at the things that are important to my little boy. And at the same time, I am fighting a dark shadow in the form of a fear that he may never return to all of this. My boy may never be back to this room. It's a gut punch. We may never see the things that would become important to him in the future. That tape is playing again, and I'm finding it hard to get my breath.
It is never far from my mind that I failed to protect him. That he is in ultimate jeopardy because I didn't take care of him—the sacred job of a parent. This will be another long night as I am lost in the feelings of imminent and ultimate loss that sweeps over me in waves.
Chapter 29
August 3, 2016
I arrive at the office at 6:00 a.m., planning to leave by 11:00 a.m. to spend extra time with Joey. I am walking to my desk with coffee when the phone rings.
I pick it up and say, “Simmons and Winslow.”
“Hi, Scott. It's Lee.”
“Morning, Lee.”
“I started looking around last night but wanted to get your blessing before I go much further.”
“Looking around for what?” I ask, now curious.
“I want to find Anders.”
“You think you can?”
“I don't know. It's like finding a single needle in ten haystacks because I have no clue where to look or even who he is now.”
“So where do you start?”
“I know one of the guys who creates needles, so I thought I would start with him.”
“Go for it. Just so I have an idea, can you ballpark how much it will cost me to chase down your ideas?”
“Yes, it will cost you nothing in my time—out of pocket expenses only. This is something that I want to do.”
I am suddenly silenced. When the words come to me, I say, “Thank you, Lee.”
“I will keep you posted on anything I can find out. In the interim, know that I am with you and Lisa.”
I feel humbled and grateful—the way you always feel when a friend stands by you during the worst of times. “You're a good friend.”
“So are you, Scott. Take care.”
* * *
I sit in Pat Jackson's nautical living room, and he hands me a glass of water. He sits down and says, “I'm glad you came back.”
I nod. “I found you gave me good advice last time. I talk to Lisa about everything and nothing, and she shares the same way. Some days that alone has kept us going.”
“Good work, Scott,” he says, nodding. “Don't allow walls to be created by emotional distance.”
I smile weakly. “You know, that statement was very shrink-like.”
“We all have our manner of speaking, I guess. There are times that you sound pretty lawyer-like, too.”
“No doubt. Lisa tells me I could work on being a little more folksy.”
He laughs. “Exactly. But you probably can't stay in that gear, right?”
“Right.”
He dons a more serious expression. “So what do good days and bad days look like right now?”
I sit back in my chair. “Let me do bad days first, because those are more frequent and familiar. They are the days that I spend obsessing back and forth between fear that I may never get my son back again and guilt about having put him in that position. There are some days when I never think about anything else.”
“Let's talk about the guilt,” Pat says. “Let's attack this at an intellectual level, which is where you live most of the time. If you can accept what I am about to share at an intellectual level, it may sink in emotionally along the way.”
“Okay, I'll try.”
“What you are doing is holding yourself accountable simply because something bad happened.”
“Wait a second,” he says. “We all live in a world where bad things happen and where children are particularly vulnerable. Someone can run over your children while they cross in a crosswalk or do a hundred other things that inadvertently cause injury. That's before we get to those who are intentionally engaging in acts that endanger our kids.” He watches my expression closely. “We have to accept the fact that those things happen, and they happen to good people. Would you blame the parent of a child who was attacked while walking home from school like he or she did a hundred times before?”
“No, probably not, unless there were other facts that made it clear that that parent wasn't looking out for the kid.”
“Scott, you and your family were attacked by a guy with a gun in your own driveway. You were not an accomplice.”
“I do know that, but I keep thinking of things that I might have done differently. Maybe put myself between the kids and Anders.”
He shrugs. “You can do that all day long. Won't get you anywhere good.” He leans forward and says, “As far as I can tell, you and Lisa have been nothing but great parents. Your kids know it too. Give yourself a break.” He lets it settle on me and adds, “On the other hand, situational distress and anxiety is a perfectly appropriate and healthy response here. You are still on hold—waiting for Joey to return and not knowing whether it is possible. It's anxiety-provoking, and all you can do is wait and pray. I really get it, and I just want you to know that there is nothing inappropriate in your responses. And if you keep talking to each other, you and Lisa can make it through whatever happens.”
I let out a breath and feel my heart pounding hard. “There are just some days when I feel panicked about the possibility that Joey won't come home. I sit up at night and stare at the wall, and I play our memories on an endless loop. Once in a while I drift off thinking about Joey, and it's almost like he's back. Then I suddenly wake and realize where he is all over again. It's like getting the bad news all over again.”
Pat nods. “I understand.” He reflects and then says, “Have you tried sleeping when you are with Joey?”
[2017] The Whistleblower Onslaught Page 26
