Impact (36 page)

“Except for such instances of coercion, Your Honor, I am loath to report that our settlement discussions have been hampered by the unwarranted recalcitrance of the defendants in the face of
massive
evidence of their—”

“Excuse me, Mr. Scallini,” Judge Powell interrupts. “I think I would like to hear from Mr. Chambers at this point. You are representing the airline, are you not, Mr. Chambers?”

“I am, Your Honor.”

“Have you settled with any of the plaintiffs in the case?”

“No.”

“If there is a simple reason for that, perhaps you will enlighten me.”

Chambers bows his head. “We have not settled because we believe the demands of the plaintiffs are excessive if not outrageous in their overreaching, given the absence of anything resembling misfeasance on the part of SurfAir or the other defendants.”

The judge's sigh is audible in the tenth row. “I take it you are not prepared to confess liability in this matter.”

“Not only are we not prepared to confess liability, we are prepared to strenuously resist its imposition. This was an accident in every sense of the word, Your Honor. No one is at fault. Nothing was defective. Ergo, no one should have to pay.”

“There are more than a hundred families and loved ones who
are
paying, Your Honor,” Vic Scallini intones, “paying for this tragedy every day of their lives in pain and in sorrow and in the involuntary penury imposed on them by the defendants, who writhe and wriggle like vipers to escape their responsibility to those who trusted SurfAir to transport them without incident from the great city in the south to the great city in which we meet today. The conduct of the defense in the face of this avalanche of human misery is intolerable, and as I have for forty years, I pledge to do my
utmost
to—”

The judge waves for silence and adopts a weary smile. He has seen and heard it all before, seen and heard enough. He looks at Hawley Chambers. “You have served a cross claim in this matter, have you not, Mr. Chambers? A suit by SurfAir against both Hastings and the government for contribution and for loss of the aircraft? That indicates that SurfAir believes fault was involved, does it not?”

Chambers bows his head. “The claim is on file, Your Honor. For strategic reasons.”

“Well, I am going to separate those matters from the passenger cases in any event, so we need not get bogged down in such questions now. What I want to do is what I always do in these cases, which is to get relief to the victims as quickly and as economically as possible. Your vociferous denial of liability suggests my wish for an early solution may go abegging. However, I am an optimist. Mr. Scallini, as chairman of the plaintiffs' committee, I assume you dispute Mr. Chambers's statement.”

Scallini grasps his lapels and swells his chest. “I most certainly do, Your Honor. I not only
dispute
it, in a very short period of time I will be prepared to lay it waste.”

“Which leads us to the next point. What is the status of discovery? How close are we to trial?”

“Close, Your Honor. In spite of the determined, not to say maniacal, resistance of the defendants—including the federal government, to its eternal shame, I might note—I am proud to say that definite lines of liability are developing. We are hampered, of course, by the continued lack of a National Transportation Safety Board report in the case.”

“When is the report due? Does anyone know?”

A portly gentleman rises from the end of the counsel table. “Bert Askwith, Your Honor. FAA staff attorney. The report will appear within three months. One series of hearings remains to be completed, after which the report will be prepared and published in due course.”

“Is there some difficulty that was unexpected?”

“Well, Your Honor, as you know, usually in these matters the problem is obvious. However, in this instance the proximate cause was not readily apparent. We naturally do not want to suggest blame where none properly attaches, so as always, we are proceeding with care and with thoroughness.”

The judge nods. “Of course. Mr. Scallini, what is the precise status of your discovery?”

“We have completed the first wave of liability discovery in the form of depositions, Your Honor. They have revealed
fascinating
threads. As fascinating as they are deplorable. It appears likely that the wing and tail assemblies of the H-11, which were manufactured by Air Technologies of Japan, were designed so that in the event of an attempted recovery from a stall condition, the aircraft would become unresponsive to both elevator and aileron controls due to matters of lift interruption and air-wash diversion. Upon closer examination of this phenomenon, I feel certain that—”

“How much
longer
, Mr. Scallini?” the judge interrupts again, this time with zest. “That is what we are concerned with here.”

“Six months, Your Honor. At most.”

Several chuckles can be heard. Everyone in the room knows the schedule Vic has in mind will take two years to complete. So far, Vic's “first wave” has barely scratched the surface of the evidence. The deposition of the traffic controllers alone took four weeks by the time each member of plaintiffs' committee got his shot and the schedules of the defense lawyers were accommodated. Which threw the rest of the schedule out of whack, which meant—

As the judge prods Vic for more specific information, Hawthorne loses the thread of the debate and closes his eyes. Vaguely, he senses more heated argument, demands emanating from the bench and denials following from the table below. When he tunes back in, the judge is saying, “I won't have this matter drag on for two more years, Mr. Scallini. If you can't get it to trial before then, I'll remove you as chief counsel and appoint someone who can.”

“We'd be ready for trial
now
if the defense had shown any degree of—”

Judge Powell bangs a fist on the table. “I'm through with charge and countercharge, gentlemen. As far as I'm concerned, it's the fault of everyone in this room that this matter isn't farther along. At the next sign of delay, I'm going to impose monetary sanctions on the attorneys responsible. Those of you who have been in my court before know that I mean what I say. Now. Is there any further business?”

Hawthorne waits for two minor matters to be discussed, then rises to his feet. The judge finally catches his eye and smiles. “Yes, Mr. Hawthorne?”

“Your Honor, I am counsel for plaintiff in twelve death cases, collectively known as Warren versus SurfAir. All were originally filed here in the Northern District and all involve California plaintiffs. The applicability of California law in these cases is, I believe, indisputable.” He hesitates, and finds solace in his objectives one last time.

“Yes, Mr. Hawthorne?” Judge Powell prods.

“Your Honor, at this time I move that those cases—plus the case of Donahue versus SurfAir, a single survivor action in which the plaintiff is represented by Keith Tollison, Esquire, of Altoona, California, who is present this afternoon—I move that those thirteen matters be set for trial no later than one month from today.”

Vic Scallini leaps to his feet, only to be shoved aside by Hawley Chambers. “Your
Honor,”
Chambers explodes. “This is entirely outside the guidelines of multidistrict proceedings. Mr. Hawthorne apparently intends to go forward on his own, duplicating the discovery of the rest of the plaintiffs, making the defense endure needless repetition of a host of procedures, causing untold delay and expense that will—”

“Our discovery is
complete
, Your Honor,” Hawthorne interrupts loudly. “And the same should be true for the defense, since the depositions of the named plaintiffs have been taken to the extent that notice has been filed. We're ready for trial. I'm prepared to file plaintiffs' proposed pretrial statement on liability issues and a list of proposed witnesses and to issue subpoenas to various agents and employees of the defendants who are in the room today. Further delay is unconscionable. My clients have suffered enough.”

Chambers is fumbling through a stack of pleadings as thick as a brick. “Mr. Hawthorne's complaint contains some
eighteen
causes of action, Your Honor,” he pleads, his voice catching on the final word, making the sound of a startled goose. “Are we to conclude that he intends to proceed with them
all?
There has been
no
narrowing of the issues in this case, no theory of liability offered by Mr. Hawthorne, no …
nothing
. This grandstand play is unexpected from a man of Mr. Hawthorne's reputation.”

Hawthorne's smile is his most avuncular. “I can take care of Mr. Chambers's problem right now.”

The judge hides a smile behind his palm. “How is that, Mr. Hawthorne?”

He crosses his arms, determined to appear more confident than he feels. “If this case is set for trial within the next two months, my clients agree to dismiss with prejudice all claims against the defendants except for the fourth and twelfth causes of action set forth in their respective complaints.”

“Four and twelve?” Chambers intones as he pages madly through his file. “What the hell are? … Here. Why that's … crashworthy? You're going to trial on
crashworthiness?
Good God, man. No one's ever won a crashworthy case in the history of commercial aviation. No one's seriously argued that a modern airliner is not fit for—”

“Maybe it's time they did.” The judge's paternal inflection has been replaced by a mastiff's bark.

“Your Honor, the schedule Mr. Hawthorne suggests is totally prejudicial to the rights of the defense. This is nothing short of a denial of due
process
. You can't—”

The gavel bangs. “The motion is taken under advisement. I will issue my ruling within a week. In the meantime, if the defense wants to be heard on the point, submit argument to me in writing no later than Friday. Anything else? Fine. Hearing is adjourned.”

The gavel bangs again. A hundred eyes turn Hawthorne's way, trying to assess his sanity. Beyond the faceless mob is Martha's grudging nod of tribute to his gamble and, at the rear of the room, Keith Tollison's astonished comprehension of the implications of the moment. Ed Haroldson wears a gremlin's grin; Vic Scallini, an angry scowl. Above them all, the glow of Judge Powell's thoughtful frown floats across the fluorescent sky.

“Mr. Tollison? Art Ely. Of Litigation Economists.”

“Yes, Mr. Ely. How are you?”

“Well, thank you. I'm sorry to bother you at home.”

“No problem.”

“I'm calling to ask if you received our report on the Donahue matter.”

“I just got it today. Which is good, because the case may go to trial next month.”

“Really? Frankly, we believed there would be more time than that.”

“So did I, but Alec has made a motion for the Donahue matter and several others to proceed on their own. If Judge Powell agrees, I'm going to be out of my mind trying to get ready. Fortunately, your report is one less thing I have to worry about.”

“I wouldn't put it quite that way, Mr. Tollison.”

The beers he'd just imbibed began to seep from behind his brow. “Oh?”

“We were not able to be as … encouraging as we originally supposed.”

“Really? The report looked pretty solid to me.”

“Yes, well, appearances can be deceiving, can't they?”

“Like how?”

“Suffice it to say, Mr. Donahue was not the most scrupulous record keeper we've ever come across. Nor the most accomplished businessman. Nor the most honest taxpayer.”

“But can't you—”

“We've done everything we can, and then some. This report has caused more conflict between my partner and myself than any we've ever prepared.”

“Why is that?”

Ely cleared his throat. “As you know, if this matter goes to trial we will be called upon to defend our analysis in court. Frankly, even with the drastically reduced estimate of earnings I insisted upon, this is the most indefensible document our firm has ever issued.”

“I don't want you to do anything you can't live with, Mr. Ely.”

“I would never go that far, you may rest assured. It's not as though you're an important … that is to say, we have done the best we can—I'll leave it at that. But there is a great deal of ammunition for the defense in this case. A jury could easily find that if Jack Donahue had not been injured, it is much more likely that he would have become a bankrupt than a millionaire.”

“I was afraid that might be the case.”

Ely warmed to the subject. “For instance, his resort project? Nirvana West? You advised us that the trip to Los Angeles had been to secure financing for that project and that his trip had been successful—that financing had been secured.”

“Isn't it true?”

“Only in outline, I'm afraid. Further investigation has revealed that the individual who promised to underwrite the venture is well known to law enforcement agencies in Los Angeles, including the Organized Crime Task Force. In past projects he has been a joint venturer with the Central States' Pension Fund of the Teamsters Union; other associates have included two Las Vegas casino owners currently under indictment for skimming violations. Which in my opinion makes the venture of questionable utility in a litigation context.”

“I'm afraid I agree.”

“Mr. Donahue was not much more successful in his more conventional operations. For example, he built two spec houses back in 1979 but was unable to move them when the market was at its strongest, because inadequate soils analyses caused them to start sliding down the hill even before the subs were paid. He was forced to carry them until foreclosure, back when rates were at sixteen percent, which undermined his cash flow, which caused the Oakwood Acres project to become stillborn after significant architectural and engineering costs were incurred, some of which form the bases for outstanding and uncollected judgments against Mr. Donahue.”