[Klein Legal, Flatiron — November 28, 2012, 9:23 PM]
The office was mine when the lights on Harold's side went dark at seven-thirty.
Sarah had left at six. Rachel at five-forty-five. Harold had stayed until seven-fifteen running the quarterly invoice reconciliation and then had come to the door and asked if I needed anything and I had said no and he had gone home. The building made its building sounds after hours — elevator cables, HVAC settling, the city through glass doing what the city did.
I had the Veridion files on the desk.
Not the full production — the full production was 47,000 pages and lived on a server I had accessed via PACER. These were the materials Veridion had sent as preliminary briefing: the complaint, the class certification motion, the preliminary defense strategy memo, the initial deposition summaries, and the privilege log.
The privilege log was twenty-three pages. I had read it in September when it arrived. I had read it again tonight.
The Phase 2 biocompatibility study was not on it.
The Library had been running for two hours at a steady burn, working through the full case strategy assessment I had authorized that morning with $800 of purchased LP. Not a search. A modeling exercise: every viable path to a favorable outcome for the defense. The Library had identified four.
Path A: Full trial defense. Estimated duration 30-42 months. Required: expert testimony recontextualizing the arrhythmia events as within normal device performance parameters. Weakness: expert testimony would be vulnerable to cross-examination citing the Phase 2 study if the study were produced in discovery. The study would be produced in discovery if anyone knew to ask for it. Assessment: viable only if Phase 2 study remains undisclosed. Depends on plaintiffs never discovering its existence.
Path B: Early settlement with confidentiality. Required: motion to seal prior to class certification; confidential settlement of named plaintiffs; aggressive class decertification motion. Duration: 8-14 months. Assessment: viable only if Phase 2 study never becomes a class litigation record. Depends on plaintiffs' counsel not requesting materials that would reveal study's existence.
Path C: Class certification challenge. Required: targeted procedural challenge on adequacy of class representation and predominance of individual issues. Duration: 12-18 months. Win probability on certification challenge: 38%. Assessment: delays inevitable adverse ruling; does not win underlying case. Upon class certification, Path A exposure resumes.
Path D: Negotiate settlement before certification. Requires: disclosure of full liability exposure in confidential mediation. Assessment: this path reveals the Phase 2 study to plaintiffs' counsel. Once revealed, defense value is zero. Only viable if client wishes to settle at full liability.
The Library had tagged them all: #evidence-suppression-required on Paths A, B, C. #self-destructive-action: Don Klein if takes case on Paths A, B, C.
The self-destructive-action tag was the right tag. It was the tag I had kept on Mike's secret for fourteen months. It was the tag the Library applied when a course of action required Don Klein to become the mechanism by which something wrong stayed wrong.
I put the Library analysis down.
I picked up the deposition summaries.
There were fifteen of them, one for each named plaintiff in the initial class. Preliminary depositions, limited scope, taken by plaintiffs' counsel. I was reading them to understand the liability exposure — the standard due-diligence read that a defense attorney would do before accepting an engagement.
I had read eight of them without stopping.
The ninth was a woman named Carol Brant. She was sixty-eight. She had received a Veridion Cardiac Patch in 2009. In the summer of 2011, she had experienced an arrhythmia event that had required hospitalization for four days. Her cardiologist's records, referenced in the deposition, noted that the event was consistent with the device's documented failure mode in a specific subpopulation. The deposition included a section where plaintiffs' counsel had asked her to describe the hospitalization.
The court reporter's transcription of her answer was twelve lines.
I read the twelve lines once.
Then I stopped.
Carol Brant had two adult children and four grandchildren. She had retired from teaching second grade in 2009. She kept a garden. The hospitalization had coincided with her eldest grandchild's first birthday, which she had missed. She did not say this last thing with particular emotion in the deposition transcript — people who have suffered don't usually perform their suffering for depositions; they answer questions — but the information was there, in the timeline, and it was the kind of information that remained in a room after the words had finished.
The Library was still displaying its four paths.
I looked at the paths. I looked at the transcript.
The decision arrived the way certain decisions arrive: not as a conclusion from premises, but as a recognition of something already known. The four paths all required that Carol Brant and the other 3,000 people in the class not know what the Phase 2 study said. Every hour I spent on the Veridion defense was an hour spent keeping that information away from them.
I could argue that the adversarial system required strong defense counsel and that strong defense counsel should be available to everyone including pharmaceutical defendants. This argument was correct. It did not touch the specific fact in front of me: the defense required that specific evidence stay hidden. And the specific evidence, if produced, would tell Carol Brant and fourteen other people something their doctors needed to know.
This was not a close case.
My phone buzzed at 10:47 PM. Harold.
Are we taking it? Need to know for morning docket.
I looked at the text. I typed back: No.
He would not ask why tonight. He would ask in the morning, and the morning answer would be what the morning answer would be.
I opened a new document on the laptop. I typed the refusal letter.
Dear Mr. Oakes — Following review of the preliminary case materials provided by Veridion Pharmaceuticals, Klein Legal respectfully declines this engagement at this time. We wish the company well in its defense of this matter. Please do not hesitate to contact us regarding other matters where our regulatory practice may be of assistance.
I read it twice. I did not send it. I saved the draft.
Then I sat for a moment in the quiet office with the Veridion files on the desk in front of me and the Library's four paths still visible at the edge of my awareness and the transcript of twelve lines from Carol Brant's deposition somewhere in the stack.
The decision was made. The refusal letter would go in the morning. The question that remained was not whether to refuse but what to do with what I had found.
I already knew the answer to that question too.
I just needed one more night before it became irreversible.
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