KING COUNTY SUPERIOR COURT
SEATTLE, WASHINGTON
King County Superior Court Judge John Rudolph stared down at Sloane with a mixture of curiosity and confusion, like a man viewing a breed of animal he’d never seen but with which he was vaguely familiar. Two weeks after meeting the McFarlands in his conference room, Sloane was appearing ex parte in Rudolph’s courtroom. Unlike other legal proceedings, in which the attorneys filed their papers days in advance, by appearing ex parte, Sloane had not given Rudolph the opportunity to read the papers before Rudolph’s clerk handed him the copy Sloane brought with him. When Rudolph appeared in court from his chambers his robe was only partially zipped. His clerk, court reporter, and bailiff followed him, a clear indication Rudolph wanted every word spoken in his courtroom on the record. Sitting behind his elevated bench, Rudolph’s already ruddy complexion was nearly as red as his hair.
“I’ve been on the bench for thirty years, Mr. Sloane, and in all those years I have never had anyone make a request like this.”
Michael and Eva McFarland stood beside Sloane. They had provided declarations in support of his motion to set aside the jury’s verdict, but given the unusualness of the request—a winning plaintiff wanting to set aside a judgment—Sloane knew Rudolph would want them in court. Dr. Douvalidis’s counsel was also present.
“I recognize this is unusual, Your Honor.”
Rudolph interrupted him. “Not unusual, Mr. Sloane. Unprecedented. You’re asking the court to throw out a favorable verdict; I’ve never heard or read of such a thing.”
There had been some significant hoops Sloane had to jump through with the county prosecutor to have the body of Austin McFarland exhumed. Because the McFarlands had consented, it eased the paperwork but not necessarily the process. Sloane had to find a forensic pathologist and pay him to perform the autopsy, since the county wasn’t about to foot the bill. But it had not been the procedural aspects that had caused Sloane the greatest angst. As he had promised the McFarlands, he remained present with Austin’s casket from the moment it was exhumed to the moment it was reburied. As difficult as it was to watch the cemetery workers dig up the casket and lift it out of the ground, being present for the autopsy was far worse. But Sloane had kept his word and stayed through it all. And when the pathologist had finished, Sloane ensured that Austin was lowered back into the ground to his final resting place. He went back to the Athletic Club and, overcome by emotion, threw up. Then, after a hot shower, in which he scrubbed at his skin to rid it of the smell of the autopsy, he drank Scotch until he passed out.
Because he had been present, Sloane knew the results of the autopsy that very day, but the pathologist took another three days to complete his written report. Austin McFarland had swallowed five magnets. That fact could not be denied. What was problematic was the condition of the body. With the passage of time, the intestines had deteriorated to unrecognizable muck, and the forensic pathologist Sloane had hired, Dr. Leonard Desmond, the same pathologist who had performed the autopsy on Mateo Gallegos, could opine only that he found the magnets in the abdominal cavity. He could not, even through microscopic analysis, conclude that there had been magnet-induced bowel necrosis or ischemia followed by perforation of the bowel. In short, he could not testify that the magnets were the cause of death. Any such opinion would be based on circumstantial evidence and maybe not even that, if Sloane could not get the Gallegos settlement set aside.
“Children explore the world at this age through their fingertips and their mouths,” Dr. Desmond had said. “It isn’t aberrant behavior. It’s typical. The tendency tapers off at age three, but clinical studies have found that children of all ages put things in their mouths that they shouldn’t. Moreover, because they are told not to put things in their mouths, if the child is asked whether they swallowed something, they will usually deny it.” He held up the small bottle encasing the magnets. “And look at the size and shape of these. They look like pieces of candy.”
With the report in hand, Sloane personally delivered a copy to Dr. Douvalidis’s attorney. Though he also sought to talk to Douvalidis’s wife, she had declined all overtures.
Rudolph spoke to the McFarlands. “Is this your intent? Do you want me to throw out the verdict?”
Michael McFarland answered, “Yes, Your Honor.”
“And you recognize that by throwing out the verdict, you will be required to return all of the money awarded to you in the judgment.”
“We brought the check with us, Judge,” McFarland said.
Rudolph raised a hand. “That won’t be necessary. You can give that to your attorney to handle.” He addressed Douvalidis’s counsel. “And I guess for the record I better ask if you also consent.”
“Yes, Your Honor. I appreciate the McFarlands’ honesty and their integrity. Like you, I’ve been at this for a long time and I’ve never seen anything like this. I must say it renews my faith in the legal system, and in people. What has transpired is tragic and nothing can change that. I have spoken to Mrs. Douvalidis, and she would like the McFarlands to know that she also respects what they are doing here today.”
Rudolph nodded his head. “Mr. and Mrs. McFarland, I sat through the trial of this matter with you for three weeks, and while I was not allowed to express any of my feelings during that proceeding, nothing prevents me from doing so now. There is never anything more tragic than for a parent to bury their child. We spend our lives trying to protect the ones we love, but we can’t protect them against every potential danger out there. What happened to your son is a tragedy that should never befall a family.”
“That’s why we did it, Judge,” Michael McFarland said. “So maybe no other family has to go through it, so that maybe Austin’s death might help prevent it from happening again.”
“It’s very admirable.” Rudolph turned his attention to Sloane. “Mr. Sloane, my hat is off to you as well. The court is well aware of the recent events that befell you, and I offer my sincerest condolences.”
Sloane thanked him.
“So be it,” Rudolph said. He took a pen and signed the order Sloane had prepared. “The judgment is vacated.”
SLOANE LED THE McFarlands to microphones set up on the courthouse steps where Dr. Douvalidis’s attorney, Manny and Rosa-Maria Gallegos, and several reporters waited beneath one of those glorious Seattle September skies unblemished by even a single cloud, and the temperature hovered in the midseventies with a light breeze. Birds sang in the surrounding trees. The Gallegoses had found courage in the McFarlands’ unselfish act and Sloane’s assurances that he would represent them and ensure they would never be deported.
Sloane had accurately predicted that the local and national media contacts he had made from his work as a legal commentator would deem newsworthy his motion to set aside a favorable verdict, which, as Rudolph had confirmed, was “unprecedented.” To further ensure a crowd, he had remained coy about the legal basis for the motion, saying only that he would reveal recently discovered information at a press conference following the hearing.
Sloane stepped to the microphones, the McFarlands at his side.
“This morning, Michael and Eva McFarland did something extraordinary. They asked Judge John Rudolph to throw out the favorable verdict we obtained against Dr. Peter Douvalidis more than a month ago. Recent information has come to our attention that Dr. Douvalidis’s actions were not directly responsible for the death of the McFarlands’ son Austin. I have in my hand and will disseminate to the media a report from forensic medical examiner Leonard Desmond of a recent autopsy performed on Austin. That autopsy revealed that Austin ingested five very small, but very powerful, magnets, and it is Dr. Desmond’s belief that those magnets, manufactured in China, attracted one another, causing the thin intestines to eventually perforate and allow bacteria to seep into the body cavity and bloodstream. Austin died as a result of that poisoning.”
“How did the child come in contact with the magnets?” a reporter asked.
“It is our belief, and it will be our allegation, that the magnets that killed Austin McFarland came from the prototype of a toy created by Kendall Toys, a toy that Kendall is close to putting on the market. My office will be filing a lawsuit today on behalf of the McFarlands, as well as Manny and Rosa-Maria Gallegos, whose son, Mateo, also died from the ingestion of these magnets.”
“How did you learn about this?” another reporter asked.
“The information of a possible connection between the deaths and these magnets, as well as the defective design of the toy, came from a source I cannot identify at this time.” Sloane turned and motioned Michael McFarland forward. “Michael McFarland would like to make a brief statement.”
McFarland wore dark glasses to shield the bright sun and to hide his red, puffy eyes. He thanked Sloane and apologized publicly to Dr. Douvalidis. “Raising children always comes with risks. Parents expect skinned knees, even the occasional broken bone from a fall off a bike or jungle gym. They don’t expect pieces from a broken toy to rip holes through their child’s gut. I hope that our actions today, if nothing else, keep another family from having to suffer through what we have gone through for more than a year. I hope it means that Austin’s death will not be in vain.”
McFarland folded his piece of paper and stepped back. The questions flew. Sloane did his best to answer them. The reporters wanted to know more about the toy. Strategically, Sloane did not provide it. He cited confidentiality agreements signed by the two families preventing them from releasing the name of, or any specifics about, the prototype.
“However, I expect all of that information will be made public through discovery,” he said, purposefully.
After several more minutes answering questions, Sloane thanked the media and started to step away from the microphones. One of the reporters shouted a final question, and it stabbed Sloane like a sharp knife.
“Has there been any further information on the man who killed your wife?”
Sloane took a moment. “No,” he said. “Her killer is still out there.”
KENDALL TOYS’ CORPORATE HEADQUARTERS
RENTON, WASHINGTON
THIS WAS HIS worst nightmare. Malcolm Fitzgerald watched David Sloane’s press conference on the flat-screen television beside framed awards Kendall Toys had received from the Toy Manufacturer’s Association and other industry organizations. Sloane had not been bluffing; he had a plaintiff. A simple phone call had confirmed that Mathew McFarland had been a member of one of the Metamorphis focus groups. Fitzgerald wouldn’t need to create wall space for any more awards if Metamorphis did not make it to the market, and at the moment, Sloane appeared a formidable impediment to that happening.
“You should not have met with him without me present.” Barclay Reid turned off the television and walked to the conference table where Fitzgerald sat running a finger over his lips, a nervous habit. Though he had loosened the knot of his tie and unbuttoned the top button of his shirt he felt anything but comfortable.
“Hindsight is twenty-twenty,” Fitzgerald said. “What do we do now?”
Reid walked to Fitzgerald’s end of the table and fixed him with her green eyes. “Is there any evidence of any other complaints, anything that would have put the company on notice that the toy could be problematic?”
“Nothing.”
“I need to know everything, Malcolm. I can’t have any surprises when I stand up in court. If there is anything out there, tell me now.”
“There’s nothing.”
“What about Sloane’s allegation of an independent designer?” She flipped through a pad of notes. “Kyle Horgan?”
“I told you, I have no idea who the guy is. Metamorphis was designed in-house. This guy is a liar.”
“What about someone else in the office, one of your designers?”
“I’ve already asked. No one knows anything about him. Metamorphis passed inspection by the PSA, and the factory in China manufacturing the plastic has been independently certified.”
“He’ll depose you. What you knew will come out.”
Fitzgerald walked to the marble counter in the corner and poured a drink, adding two chunks of ice. What the hell, he was going to miss his racquetball workout anyway. “I’m not worried about being deposed. I’m worried about Sloane disclosing anything about the design. If we can keep Metamorphis under wraps for just a bit longer, I’ll do more than save this company. I’ll take it to a level even Sebastian Kendall never dreamed of.”
Arms crossed, Reid said, “I’d still prefer that Sloane make the first move.”
Fitzgerald scoffed, pointing at the darkened television screen. “I think he just did.”
“Filing a temporary restraining order could be tricky. It gets Sloane into court and before a judge a lot sooner than would otherwise be the case. If you wait—”
“I can’t afford to wait. I can’t afford the possibility of Sloane leaking the design. You know as well as I that it would take another company no time at all to rush a knockoff to the market. We’d lose our window of opportunity, not to mention the millions I’ve invested in production, marketing, and advertising. We’d be done. I don’t have a choice.”
Reid nodded. “Okay. Then we’ll serve Sloane’s office with the TRO this afternoon and seek a hearing for tomorrow. I already have half a dozen people working on it.”
Fitzgerald sipped his drink. “What are the chances the court will grant the TRO?”
“The TRO should be a slam dunk.”
“I hate it when you say that.”
“Have I ever been wrong?”
“There’s always a first time.”
“Then let me put it this way. If everything you are telling me is as you say, there is a strong likelihood we will succeed on the merits given that all of Sloane’s evidence is circumstantial. This isn’t a class action. Sloane represents one family, maybe two depending on how the judge rules on the settlement agreement, and there is no chance of irreparable harm to his clients since the children are already dead. Their remedy is monetary damages. The likelihood of irreparable harm to Kendall if Sloane discloses anything about the design is equally clear. It would be reversible error for a court not to grant the restraining order.”
“I liked it better when you called it a slam dunk.”
Reid gathered her suit jacket from the back of a chair and picked up her briefcase. “I want you at the hearing tomorrow. I want the court to understand that Kendall is taking these allegations very seriously. Two children are dead. I want the judge to see the face of a toy maker, not a big corporation.”
ONE UNION SQUARE BUILDING
SEATTLE, WASHINGTON
SLOANE HUDDLED IN a conference room with John Kannin and Tom Pendergrass. Each had arrived with a mug of coffee, anticipating a long night. Carolyn had stayed late to field calls from the media, and it had not taken long for the telephone to start ringing. The major news networks had picked up the story, as had Internet news outlets. Some had begun to introduce the story as “an honest act,” and others quickly picked up this tagline.
Barclay Reid had acted nearly as quickly. Late that afternoon, as Sloane had predicted, Reid tried to bury him in paper. The motion for a temporary restraining order was classic big-firm overkill. With declarations and exhibits, it was a 176-page tome that Sloane hoped would only serve to piss off a judge and his clerks, who would be forced to work late to read it and prepare for the hearing. Besides, the introduction of computers into the legal profession had effectively leveled the battlefield between big firms and small. Every law office kept forms on their computers along with legal research on a variety of topics as well as previously filed motions. With the click of a few keys, a lawyer could fashion together the basics for almost any pleading in a matter of minutes, then go to work on the specific facts.
“It would make a good doorstop,” Kannin said, weighing the stack of paper in his hand. “I have to give you your kudos, you played Reid like a drum, and that’s no easy task.”
Sloane had thought of the strategy after Kannin reminded him that he had no plaintiff, and even if he did, it would take months before the matter ever reached trial, far too late to keep Kendall from releasing Metamorphis. What Sloane needed was a temporary restraining order preventing Kendall from releasing the toy until it had been independently tested, but Sloane had little chance of getting a TRO, even if he had a plaintiff. A court would not grant a TRO without Sloane showing irreparable harm to his clients. As tragic as the deaths of two boys remained, there was nothing the court could do to change that. The court would deny Sloane’s request because his clients’ recourse was to obtain a money judgment against Kendall. That had been the reason for Sloane’s meeting with Malcolm Fitzgerald. If he could get Fitzgerald to believe he still had the design from Horgan’s file, and that he intended to make that information public, he might just force Kendall to move for a temporary restraining order. If so, Sloane could get his concerns about the toy’s safety before a judge in a matter of days, rather than months.
And even if Kendall won at the TRO stage, Sloane would have another shot at a subsequent hearing on whether the court should enter a permanent injunction, which was an equitable remedy fashioned by the judge using his or her discretion on how best to balance the competing interests of the two parties. If Sloane could get a sympathetic judge he might, at a minimum, get her to order that Kendall submit Metamorphis for independent testing to ensure its safety. The question was whether Fitzgerald would fall for Sloane’s bluff. There was no guarantee he would, not with Barclay Reid as Kendall’s attorney.
Sloane’s investigation revealed Reid to be a graduate of Harvard Law School, where she had been editor of the Law Review. She hit the ground running upon graduation and had her own office up and running within two years, growing that office to nearly five hundred attorneys in multiple cities during the next fifteen years. “High energy” and “motivated” were two descriptions reporters often used to describe her. In her early forties, with a teenage daughter from a failed marriage, Reid had served as president of the Washington Bar Association in between putting the fear of God in those she litigated against. An article in the Bar News written as her term of office ended quoted her as saying she “missed the litigation trenches.”
“Who’s our judge?” Kannin asked.
“Rudolph.”
Kannin’s eyebrows nearly blended into his hairline. “You’re kidding?”
“I just found out myself, and I don’t think it was the luck of the draw. I think he has an interest in how all of this is going to play out,” Sloane said.
Kannin tapped the pleading. “Rudolph hates this kind of stuff. He doesn’t mind working hard, but it throws off his entire staff’s calendar, and he’s protective of their time.”
“My inclination is to take the opposite approach.” Sloane directed his comments to Pendergrass, who would draft the initial response. “I want to file something lean and to the point. Insinuate from our response that this is overkill, this is a company worried because it has something to be worried about. If there wasn’t any truth to the allegations they wouldn’t be going to this extreme.”
“We definitely have the better story,” Pendergrass said. “I’ll argue the death of two children over the potential loss of corporate profits any day.”
“Just one child at this point,” Sloane said. “After the hearing on the TRO we’ll file the motion to have the settlement in Gallegos set aside. If we succeed, we’ll add them to the lawsuit.”
“We’ll succeed,” Pendergrass said. “You have Dayron so scared he’ll sign a declaration saying just about anything. The fact that he told the Gallegoses they’d be deported if they didn’t agree, and that they don’t read English, provides a solid basis for getting the settlement thrown out.”
“What about the money?” Kannin asked.
“Moore says he doesn’t have it. He’s sending me a check for three thousand dollars and a note to repay it,” Pendergrass said.
“We’ll advance it, and we’ll pay the Gallegoses’ share,” Sloane said. “I don’t want it taken out of their pocket.”
Anticipating that Sloane would focus on children’s lives over corporate profits, Reid had tried to soften that argument in her moving papers by including a sworn statement from Malcolm Fitzgerald in which he declared that he was a father himself and would never allow a Kendall toy to injure a child if he could prevent it. It came off sounding stilted and forced, but it also let Sloane know that Kendall would argue it had no knowledge the toy could be dangerous, and that if Sloane could somehow prove it was, Kendall would argue that the toy was not intended for children under the age of seven and that the two deaths were more the product of parental neglect than product defect.
“I’m on it,” Pendergrass said, getting to his feet and leaving the office.
“You got what you wished for,” Kannin said.
Sloane nodded but couldn’t help but consider the adage that having got what he wished for might not be such a good thing.
