published in Saturday Night magazine, June 1992
The two-inch, two-column ad ran for a year and a half in newspapers in six major cities:
HEART VALVE PATIENTS
We have successfully represented a number of patients who have
had implanted a Bjork-Shiley 60° or 70° Convexo-Concave
Mechanical Heart Valve in claims against the manufacturer.
Claims have been successfully brought for mental distress
even if there has been no fracture or other malfunction.
For information, contact Brian K. Evans....
Nothing remarkable: lawyers drum up business along these lines thousands of times a day on newsprint, television and subway posters, in every city in the United States. It's called ambulance chasing.
This particular ad, however, ran in Canada, and the address given for Brian Evans was in Whitby, Ontario.
For centuries, bar societies around the world prohibited the advertising of legal services as undignified, even sleazy. But the rules started crumbling in 1977, when the United States Supreme Court outlawed them as impediments to free speech. In Canada, starting with the Law Society of British Columbia in 1984, all ten provincial law societies have now replaced the outright ban with standards of accuracy and "good taste." It's just one way in which Canadian traditions of civil justice are succumbing to the prevailing American business culture. The transformation embraces higher awards for damages, a widening range of causes of action, liberalized procedures for launching class-action suits, and wider use of lawyers' contingency fees--payments directly pegged to the reward received by a successful plaintiff.
Unsurprisingly, the style of practising law is changing too, though for the most part, the metamorphosis goes unremarked even by litigators themselves. It's possible for a modest, upright, hitherto orthodox lawyer to take on what seems no more than a slightly unusual case, pursue it into exciting buit unfamiliar territory, and awaken in due course disoriented, in an altered state. It's almost as though a Yankee virus were working its way through the Canadian Bar.
Take, for example, that same Brian Evans.
Evans's father, George, worked as a millwright for General Motors in Oshawa, Ontario; his mother Kathleen held part-time jobs, sometimes as a Loblaw's cashier, sometimes as an Eatons bookkeeper. Young Brian, born in 1950, attended St Christopher's Catholic School, and on Sundays, was an altar boy at St Mary of the People. In high school, he put aside his thurible but not his moral earnestness and, by the time he was elected president of the Victoria College students council at the University of Toronto, he considered himself a "neo-Marxist".
He enrolled at Osgoode Hall Law School with the idea of using bourgeois law to fight an oppressive Establishment. But it didn't take long for his ideals to become overlaid with an enduring scepticism. To be paid for espousing one side of a complex argument seemed to him the up-market equivalent of prostitution. He dropped out for eighteen months to concentrate on writing poetry and smoking grass. After his return to Osgoode and his graduation, without distinction, in May 1976, Evans articled himself to a respectable Oshawa firm, then quit 11 months later to go into partnership in Whitby with a rugged fellow-irreverent named Nigel Schilling.
Still, his ambivalence endured. To this day--extraordinarily for a lawyer--he never wears a wristwatch and frequently forgets to log his billable hours. And, for the first ten years, he was always doing something "useful" in his spare time--running a foundation to provide low-cost co-operative housing; studying part-time for an M.Ed. degree; establishing a mediation service to settle marital disputes non-adversarially.
At Schilling, Evans, his practice was largely divided between representing abused children for the Children's Aid Society and pursuing tort damages on behalf of accident victims with minor injuries. A tort is any legal wrong which is a breach neither of statute nor of contract, but rather of some more natural duty. The tort of slander, for instance, is essentially the failure to be truthful and fair. But the essential tort of Evans's personal-injury trade was negligence, which amounts to a failure by the tortfeasor to be considerate.
In one such case, Evans won negligence damages of $50,000 from a grocery store for a woman named Loretta Wallace, who had slipped on a frayed carpet. It was this satisfied customer who, when her sister-in-law was urgently casting around for a lawyer in 1984, recommended Evans.
Shirley Wallace called Evans for an appointment. She said she wanted to discuss something that had happened to her son, Glenn, a 28-year-old former maintenance man at K-mart.
There were Christmas decorations in the stores on Brock Street when a pale limping Glenn Wallace, arrived with his mother at the Schilling, Evans office above Shorty's Cigar Store. Brian Evans sat them down and lit a cigarette; while her son stayed silently in the background, listening to the telling of his story, Mrs Wallace leaned forward on her folded arms and talked with vehemence.
Seven years earlier, in 1977,, Glenn had been in a car accident that left him with a ruptured heart valve. In 1982, surgeons at Toronto Western Hospital had implanted a Bjork-Shiley convexo-concavo (C-C) valve. Then widely considered the state of the art, the dollar-coin-sized C-C consisted of an outer ring, an inner hinged disc and two supporting struts. One strut was an integral part of the ring, the other was welded on.
Two years had now passed since the implant; just weeks ago, on November 15, 1984, Wallace was wakened from a deep sleep by crushing chest pain. With blood gurgling in his throat, he was raced to hospital, and in the ambulance, his heart stopped. The C-C's welded strut had broken away, allowing the disc to float free and flooding the heart with blood. At Toronto Western, doctors restarted his heart and replaced the C-C with a device made by a different company.
After the operation, one of the surgeons had shown Shirley Wallace what was left of the C-C. "This is a piece of crap," he said, "and you should sue the people who made it." Mrs Wallace's voice rose angrily as she repeated these words to Brian Evans.
They'd look terrific before a jury, the lawyer mused, the protective angry mother, the sick depressed son. Aloud, Evans only murmured something sympathetic, and asked what else the doctors had said, scrawling a note: "Guy in California is suing: Dr. knows about it."
But this was not California. Evans showed the Wallaces out, saying he'd request a medical report and get back to them. Then, he laid his sheet of notes in a new brown file, which he added to a pile on a corner of his desk.
Two days after Christmas, on the point of taking a delayed honeymoon in Florida with his new wife, he noticed a headline in The Globe and Mail: "Hospitals using outdated heart valve." Some Canadian surgeons were implanting structurally unsound Bjork-Shiley C-C valves. The manufacturer, Shiley Laboratories of Irvine, Calif., had withdrawn the C-C in favour of a safer model, the Monostrut, but some hospitals were using up C-C inventories. The story said Shiley was facing "a number" of C-C-related lawsuits in the United States.
Evans dug out the Wallace file and was reminded to request the medical report, which arrived in due course and got stuck in the file. It stayed there, untouched, for five months.
The delay was partly due to Evans's latest "useful" extracurricular activity. Running as a Liberal in the May 1985 provincial election, Evans trimmed the Tory margin in Durham West by 5,000 votes. Along the way, he learned how to issue a press statement and provide a colourful quote--training that would soon stand him in good stead.
But there was another reason for procrastinating: a tricky calculation of cost and benefit. The central issue in tort law is: "whose fault is it?" It's seldom easier to resolve this question in the courts than in the school yard, and the stakes are higher--$883,000 for the Vancouver woman whose doctor inseminated her with AIDS-infected sperm; $1.65-million for an Ontario quadriplegic accident victim after an innkeeper allowed a driver to drink too much; $650,000 for the New York City man who jumped in front of a subway train and then claimed the driver should have stopped faster.
But among the 50 or so tort claims that Brian Evans filed each year, the result was almost always a settlement out of court with the defendant's insurers. The sum had never gone into six figures, but the system suited everyone fine. For the liability underwriter, it avoided the risk of large damages; for the plaintiff, it guaranteed enough money to pay Evans's bill and go home with a few thousand dollars. For the lawyers on both sides, it was easy money.
This Wallace matter, Evans knew, was different. He would be taking on Shiley Laboratories, a division of the multinational pharmaceutical giant Pfizer Inc. of New York, and the stakes were just too damned low.
Since Glenn Wallace had somehow survived the valve-fracture emergency relatively unharmed, a Canadian judge or jury would award no more than $50,000 in damages--too small a risk to worry Pfizer Inc. much. The company's lawyers would contentedly lay siege, delivering a barrage of pretrial motions, subpoenas, documents and technical evidence. Before long, Evans's lowest viable tariff of $150 an hour would exceed his client's highest possible award.
Yet, the sight of the Wallace file on the corner of his desk reproached him. This is what I'm a lawyer for, Evans told himself. It was hard to swallow the idea of a giant corporate tortfeasor causing Glenn Wallace's brush with death, and getting away scot-free. Deep inside Evans's cynical exterior, he was chafing against turning down the hero's role in Saint George v. Dragon.
One day in June, 1985, a few weeks after his election defeat, the Wallace dossier in the desk-corner pile caught Evans's eye once again. But this time it prompted a brainwave. He was nibbling on a close-bitten fingernail, and sighing once more over the niggardliness of Canadian court awards, when it hit him.
"Nigel," he said, barging into his startled partner's office. "Let's nail those guys in their own back yard."
"Which guys?" Schilling said.
There seemed no reason why Wallace shouldn't sue Shiley in California rather than Ontario, and thus turn the cost-benefit equation on its head. In the United States, the trial would be heard by a jury, and there's more chance of enraging a jury than a judge against a big corporation. And whereas U.S. juries can award almost unlimited compensatory and punitive damages, Canadian awards for nonpecuniary damages ("pain and suffering") never exceed $200,000, and punitive add-ons are extremely rare. As well, a losing U.S. plaintiff cannot be saddled with the defendant's legal fees, but in Canada, losing usually comes with a costs order that can mean instant bankruptcy--making the tiniest of settlement offers quite tempting.
Playing at home, with bases loaded against them, Pfizer's lawyers would have to juice up their settlement offer. Glenn Wallace could win even on a lazy fly ball.
But first, Evans would need a pich-hitter: a stateside lawyer to guide the case through the California courts. He scanned a law directory, found a 10-lawyer firm of civil litigators in Irvine, California, that seemed suitable, and fired off a one-page summary of Glenn Wallace's story together with a feeler about cooperation.
The letter intrigued senior partner Jim Capretz enough to order up a publications search on Shiley Laboratories, which told him quite a bit. Hundreds of C-C valves had malfunctioned, and Wallace could not plausibly have brought on his problem. Res ipsa loquitur: the evidence spoke for itself, and Capretz called Evans to discuss a collaboration. It might have been logical for Evans to hire Capretz as his Irvine agent, but after Evans had explained some quaint rules of the Law Society of Upper Canada, the two struck a slightly more novel deal.
Wallace would retain Capretz & Kasdan directly to represent him. He would agree to pay a contingency fee--nothing up front, but a percentage of any award or settlement. This is standard practice in every U.S. state, where fees are set at about thirty percent of the value received. The same goes for every Canadian province except Ontario. Following British tradition, the Upper Canada bar considers it improper for lawyers to assume the risks of a case and to profit by its success.
But Wallace would be billed by Capretz, whose state bar had no such scruples. In turn, Evans would send Capretz a bill consisting not only of a high hourly fee but an additional amount representing "the complexity of the case, the risk of failure, and the value received." This bonus would absolutely not be a contingency fee. There was, you see, no mention of a percentage.
In principle, the arrangement was little different from the established practice among Ontario personal-injury lawyers who routinely take cases knowing that if unsuccessful, the client will be unable to pay a fee. One lawyer's daily classified ad in The Toronto Sun baldly states: "Accident, injury, claims. No fees until settlement." Again, no mention of a percentagebut still a piece of the action.
Capretz & Kasdan filed Glenn Wallace's complaint against Shiley Laboratories in the Los Angeles Superior Court on Halloween, 1985. The next step was to compile evidence proving the two vital elements of a tort: damage and liability.
In Canada, Evans concentrated on establishing damage--requesting medical records and affidavits, helping Wallace reply to written interrogatories from Shiley, and attending depositions in Toronto during which the defendants' L.A. lawyers grilled Wallace, his doctors, and the ambulance driver who had witnessed his near-death.
Down in California, the liability team started one step ahead of the opposition because of that state's strict product liability law. Whereas a Canadian manufacturer is liable only for proven negligence in design or manufacture, most U.S. manufacturers are automatically liable for any defective products. Capretz's team would merely have to prove that Shiley's C-C was more prone to failure than was reasonable for this type of product. But extra damages could be won by proving actual negligence or, best of all, fraudulent misrepresentation of the valve's capabilities.
Pursuing all three goals, Capretz's junior partner Vance Simonds slapped Shiley's lawyers with a routine discovery request for "all documents related to strut fractures," which precipitated a deluge of papers. More documents came from Washington D.C., where Ralph Nader's consumerist organisation Public Citizen had built up a thick dossier on the C-C.
By the fall of 1986, at least 91 C-C valves had fractured, resulting in 34 deaths. Even though 86,000 C-C valves had been implanted, the fracture total was way out of line: whatever other problems they may have, heart valves seldom, if ever, fall apart. The documents, along with oral depositions of Shiley employees and former employees, also indicated Shiley had delayed reporting fractures to the U.S. Food and Drug Administration and had underplayed the quality-control problem in letters to physicians. Three months before Wallace received the C-C valve, the FDA had asked Shiley to cease distributing the valves, and the company had refused.
By 1987, Pfizer Inc. was facing more than 125 lawsuits from fracture victims, many of them represented by Robins, Kaplan, Miller & Ciresi of Minneapolis, the giant legal firm whose Dalkon Shield class action had recently forced A.H. Robins Co. to shelter under bankruptcy protection.
It surprised nobody when Shiley started settling out of court.
On July 6, 1987, Evans issued a press statement announcing that Glenn Wallace had become the first Canadian to gain a C-C settlement. A standard clause kept the amount secret, but a good guess would be close to one million U.S. dollars. TV stations and newspapers across the country quoted Wallace as saying that he wouldn't have to work again, "even if I live a long time." More importantly, the reports mentioned Brian Evans's name.
The phones started ringing at Schilling, Evans and within a few months, Vance Simonds had filed complaints in regard to three more Canadian C-C fractures. One of these had led to the death of Toronto patient Joyous deBock; Evans represented her children and husband at the inquest. This in turn produced more news stories, and more calls.
One of the calls came from a widow out west. Her husband had had a C-C valve, and had died a few years ago, apparently of cardiac arrest.
"I'm really sorry," Brian Evans said. "Was there an autopsy?"
"Then, it's possible his valve fractured. Perhaps you could exhume the body for examination?"
But the dead man had been cremated, and his ashes interred at the local cemetery.
"Oh. Ah, I see," said Evans, lighting a Camel and thinking fast. Just possibly, the valve's space-age alloy had survived the flames. He explained this to the widow and said it might be worth digging up the ashes to take a look.
"You'd need a lawyer present to certify the jar's contents," Evans explained. "And," he added, remembering that the cemetery scene might one day have to be related to a jury, "you might invite your priest or minister along, to, ah, preserve the solemnity of the occasion."
Evans consulted a metallurgist, but the answer wasn't encouraging: the valve was indeed indestructible, but the crucial weld was not, so a separated strut in the ashes would prove nothing. But before Evans could phone the widow, she called him to report regretfully that she had already disinterred the ashes. The jar contained no valve, intact or otherwise--only ash.
Evans put down the phone feeling sad, as it was clear the widow could have used some of Shiley's money. He also had a fleeting sense that he had crossed some kind of line: Is this what I've come down to? he asked himself with a grimace and a shrug. Sifting for dollars?
He also wondered whose ashes were in the jar.
Unfortunately for Evans, most of the new round of phone calls were coming not from the victims of weld fractures but from people with intact implants who wanted to know if they were at risk. A check of the serial numbers on their implant identification cards usually revealed they had some type of valve other than a C-C. The occasional caller sounded disappointed. "Does that mean I can't sue?" one asked.
In fact, even those who did have C-Cs had no claim for product liability unless and until the devices actually malfunctioned. Evans's California partners had heard that the Robins, Kaplan firm in Minneapolishad one valve client, Judy Khan, who was suing Shiley for emotional distress. But since her valve had not (yet) physically injured her, the legal odds were against the case.
In early September, 1988, two of Evans's three valve-fracture cases were settled in quick succession. More cases were trickling in, but most known C-C malfunctions had already reached litigation, so the well would soon run dry. The time might be coming to take a shot at suing over a still-intact valve.
If so, it would be a long shot. The tort would not be product failure but mental distress--the anxiety caused by having to live with a valve that might, or might not, fail at any moment. And courts (on both sides of the border) subject claims for distress and "nervous shock" to rigorous tests. While emotional harm may aggravate physical damages, there are few instances (all in the United States) in which the fear of harm has been enough to incur an award.
Then, on September 15, 1988, Brian Evans got a phone call that started a whole new poker game.
It was publicity, once again, that provoked the call. Evans had released a statement announcing the two settlements, and supplied a new line of quotes. The Globe and Mail reported on its front page that Evans was "concerned" about the large number of "cardiac time bombs" still in Canadian hearts. To The Toronto Star, Evans said that about 10,000 C-C valves had been implanted in Canada (which was about five times the correct figure) and mused: "How many people have died with the fracture of their valve undetected?"
Evans says that these Naderesque remarks were in no way intended to solicit calls from patients with intact C-C valves. But hey, he got one anyway.
One of those who read the Star's story was Connie Cooper, a 49-year-old widow in Mississauga, Ont., who possessed not one but two working C-Cs. She phoned Evans right away and the following afternoon, he was drinking tea in her apartment.
"So," the lawyer asked pleasantly, "how can I help?"
"What I want to know," Cooper said, "is exactly what could happen to me if one of these valves goes wrong."
"Well, you could die."
The wan brunette was a plaintiff made in heaven. Quiet-spoken, polite and articulate, she was nonetheless fiery-eyed about having been misinformed about the safety record of the two (count 'em!) C-Cs she'd received back in 1982. What was more, she had recently heard from Dr Hugh Scully of Toronto General Hospital that one of her valves was in "Group One" of C-C valves, the highest risk group of all. Operating to replace the valves would be too dangerous, Dr Scully had said, because of Cooper's poor general health and history of multiple surgery.
Evans even recognized Scully's name: the surgeon had been identified as a member of an advisory panel to Shiley Laboratories. "So, Jim," he told Capretz later that day, "here we have Hugh Scully himself saying that a C-C valve should be removed, but that he can't do it for this woman."
As Simonds explained during a later conference call, "Group One" valves had been withdrawn from circulation and manually adjusted to open 70° instead of the normal 60°. Shiley had produced just 521 of these "remilled seventies", later making 3,500 other "seventies" from scratch. The "seventies" were never sold in the United States, and the FDA had even revoked its export permit in 1983. Shiley went right on marketing them out of its Brussels office.
The "seventy" proved at least seven times more lethal than the standard 60° valve. The odds against Connie Cooper suffering a valve explosion sometime in the 25 years after surgery were no better than three to one. An anxiety claim for Cooper against Shiley was simply too compelling to pass up, and Simonds filed suit on November 8, 1988.
Brian Evans's first distress plaintiff was an instant media hit. The "walking time bomb," enthralled reporters called her, and CBC-TV's "the fifth estate" placed a microphone against her chest so that viewers could hear the valve say, "tick-tock, tick-tock."
Years later, what Evans would vividly remember driving his white Cadillac home from Cooper's place after one media interview or another, and being possessed, there on Highway 401, by a wild mix of elation, terror and lust. No more easy-money lawyering; he was into hard-ball high-risk litigation now, part of a team of high-powered lawyers, and boy, was it great. He shoved a tape of George Harrison's album Cloud Nine into the car stereo, turned the volume up, and zoomed eastward, dreaming of an army of future plaintiffs with working valves--and millions of dollars in fees.
All this was possible, if only Cooper won. It felt, as Evans later recalled, "a bit like being told you are one of five people, one of whom has won the Wintario, but it'll be three years before they announce which one. Meanwhile, you've gotta keep buying those tickets, gotta keep going to work every day."
The publicity was already doing its job, and intact-C-C patients phoned in from across the country. One by one, starting with George Retzlaff, a former "Hockey Night in Canada" producer who had received a 70° valve (not remilled) in December 1982, Vance Simonds filed their claims.
But the Whitby-Irvine coalition concentrated on Cooper, whose trial date was set for August 1990. This wqas the big onea potential precedent. Shiley's lawyers knew that too; fighting every step of the way, they asked for a stay on the grounds of forum non conveniens--essentially, arguing that it would be more appropriate for the case to be heard back in Ontario. In the fall of 1989, the Los Angeles trial judge said no, and an appeal panel declined to overrule him.
Next, a windfall. By now, Shiley had established a warehouse for its C-C files, and handed a key to any plaintiff's lawyer who wanted to dig into the haystack. There, for five weeks, two Capretz & Kasdan lawyers and two paralegals photocopied 130,000 pages. Amongst these was a telex sent to a Shiley executive in March 1982--three months before Connie Cooper's implant--from Swedish surgeon Viking Bjork, inventor of the C-C. A patient of Doctor Bjork's had suffered a fracture to his "seventy", with resulting brain damage. A distraught Bjork, having already urged Shiley to quit fiddling with the C-C and develop a nonwelded alternative, now demanded an urgent response and concluded: "Your reputation is depending on some radical and quick action in changing your management."
Learning that Bjork was vacationing in Florida, Simonds had him subpoenaed for the Cooper trial. A jury might be interested in hearing Bjork on the matter of the telex and other failed attempts to warn Shiley off the C-C. In the late fall of 1989, on the day Capretz's partner Kenneth Kasdan was due to conduct a deposition of the chairman of Pfizer Inc. in New York, the defendant's lawyers called with an settlement offer.
Back in Whitby, Evans followed the resulting bargaining with less than his full attention. His five-year marriage was in ruins, a fact that he today blames partly on his having become consumed by the practice of law. Ever since Wallace had heated up and the great ambulance chase had begun, Evans had been a full-time lawyer who was no longer doing anything "useful" on the side to help keep his perspective.
The deal on Cooper was closed on December 6. Evans dashed off a press statement, faxed it to Canadian Press, and caught a train to Brockville with his four-year-old daughter, Alissa, of whom he has joint custody. He had promised Alissa the train trip and a pre-Christmas visit with her aunt and cousins, and for once, the reporters would have to wait.
They didn't, of course. When the train pulled in, Evans's oldest nephew was on the platform, shouting, "Uncle Brian, you're in the paper." The paper was not the Globe--although both that paper and the Los Angeles Times had given the news front-page treatment--but The Brockville Reporter Times. The headline read: "Mississauga lady first ever compensated for potentially defective heart valve."
In the early months of 1990, Pfizer Inc. shares fell from $72 to $60 in the wake not just of Cooper but also a crucial January appellate ruling in favour of Robins, Kaplan's lead anxiety case, Khan, on a crucial point of law. An appeals panel held that contrary to Shiley's arguments, California courts could indeed grant distress damages in the absence of physical injury--although only if fraudulent misrepresentation, rather than mere negligence, were proved.
The judgment injected new earnestness to the search for non-fracture--or, as the Whitby-Irvine team rather morbidly put it, "pre-fracture"--plaintiffs. In April, 1990, for the first time, paid advertising was added to the mix. The "HEART VALVE PATIENTS" newspaper ads ran --after getting law society clearance--in four Canadian provinces. Capretz, meanwhile, sent a form letter to heart specialists in both countries, quoting valve-breakage statistics and urging the physicians to consider informing their C-C patients of the potential for fracture.
"In our experience," Capretz wrote, "some implantees apparently suffered unnecessarily [after fractures] and did not act until it was too late." Small print below Capretz's signature allowed that, "Under the rules of the State Bar of California, this correspondence may be deemed to be an advertisement and is hereby identified as such."
Capretz & Kasdan was now building a solid portfolio of U.S. "prefracture" plaintiffs that would soon grow to 165. So, it was more of a blow to Evans than to Capretz when an appeals court in Orange County--rebutting its counterpart in Los Angeles--declared California a forum non conveniens for the wives and children of two dead Scandinavian C-C-fracture victims (who were represented by another U.S. firm). The Stangvik and Karlsson families, the court ruled, would have to sue back in Sweden and Norway.
Sooner or later, the Supreme Court of California would have to settle the forum issue, but meanwhile, Pfizer had brought a motion for a stay in the case of Evans's new lead client, George Retzlaff. When the trial judge ruled for Retzlaff, Shiley lodged an appeal, signalling to plaintiffs and shareholders alike that notwithstanding its settlement with Connie Cooper, Evans's heaven-sent plaintiff, it would fight other "prefracture" cases all the way. In the company's view, it owed nothing to the 55,000 people worldwide whose lives were still being saved, from heartbeat to heartbeat, by C-C valves.
By now, Brian Evans was spending about a quarter of his time on C-C cases. He had picked up a couple of new "post-fractures" and sent them on their way to settlement, but his efforts for dozens of new "pre-fracture" clients would be wasted if California turned away all foreign plaintiffs. Still, this was no time for doubts. In October 1990, Evans flew to Winnipeg to meet with four more "pre-fracture" patients who had responded to his ad in the Winnipeg Free Press. Naturally, he produced a couple of them at a press conference.
After the usual scrum, an enterprising CKND-TV reporter took client Karl Purpur aside and asked him, on camera, how he'd learned his C-C valve was suspect. Purpur answered that his first inkling of a risk was when he saw Evans's ad. "So I asked my doctor," Purpur said, "and he said, `No, that's a good valve, everything is fine,' so now who're you going to believe?"
Before leaving town that afternoon, Evans asked a local lawyer to get him a video tape of the evening's local newscasts, and when the tape arrived in Whitby, he took it home, put it in the VCR, and called to Alissa: "Wanna see Daddy on television, darling?"
Alissa ran over and jumped into his lap as Evans hit the remote.
"According to an Ontario lawyer, some heart surgery patients may be at risk," the CKND report began. "Karl Purpur has just been told by lawyer Brian Evans that his heart valve was made in a series of a defective batch."
Evans's pale face appeared on the screen, his sparse eyebrows arching as he said in a hushed, slightly defensive tone: "My purpose here is simply to notify people in Manitoba who may have a defective valve that they have a defective valve, and to advise them what they have to do, and also to speak to their doctor about the problem."
Alissa clapped her hands and laughed: "There's Daddy." But Evans was sitting dead still. I look like a shyster, he thought. His face was replaced on screen by that of local heart surgeon Jim Parot, who was talking about Evans: "I don't know what his motives are but he's ... raising concern ... and causing a lot more anxiety than is probably necessary."
Evans sent his daughter off to play and sat there thinking for a while. Could there be a germ of truth in the surgeon's words? Was he, Evans, "causing anxiety" in valve patients? And how would that look in court? Could Shiley argue that the plaintiffs' anxiety was caused by their own lawyer?
And maybe they're better off not knowing, Evans berated himself. It's one thing to be an ambulance chaser, but do I have to knock them down first?
Evans's dark night of the soul lasted a few hours, until his mind focused anew on what to him seemed and still seemsa fundamental truth. How can it be wrong for me to inform them of what they have a right to know? he decided. The only thing wrong about it is, Pfizer should have told them first.
For better or worse, the practice of law in Canada has already changed forever. The day will not come again when lawyers are prevented from using media ads and mass marketing to chase up clients, or from taking a case on speculation, or from mouthing off to the press in the thinly disguised pursuit of new business. The effects of this transformation have yet to show up in hard statistics, because both federal and provincial governments have been less than meticulous about tracking the pace of the various kinds of litigation. But the number of new civil actions across Canada already exceeds 1,000 each court day, and the cost is huge.
Canadians now spend around $1.3-bllion a year on liability insurance, which is three times then 1980 amount. In 1990, there were 908 new medical malpractice suits, and 277 successful plaintiffs received damages or settlements totalling more than $47-million. In the same year, physicians paid out more than $25,000,000 in legal costs. Admittedly, such numbers are tiny compared to the United States, where 50,000 civil cases are launched each day, U.S. business lobbyists have declared war on the litigation "explosion," and President George Bush has launched a 50-point legal reform program to "restore sanity to our civil justice system."
There are few signs of a similar debate in Canada, except in the arena of road accident cases, where spiralling liability premiums have obliged Quebec and Ontario to put strict limits on limit the right to sue, applying the no-fault settlement model pioneered by workers' compensation schemes. By early 1991, the new Ontario scheme law, had decimated Brian Evans's once-lucrative auto caseload.
By the fall of that year, the prognosis for his C-C cases wasn't looking so good, either. In November, the Supreme Court of California delivered the last word on Stangvik v. Shiley Inc. Citing a need to stem the flow of foreign litigation into already-overcrowded California courts, the justices ruled that fractured-valve cases should be contested in the patients' home countries. The sweeping terms of the verdict gave little cause for optimism about the fate of Evans's 45 Canadian "pre-fracture" plaintiffs.
In the likely event of these cases being thrown out of California, Evans could theoretically bring the cases home and test Ontario's brand-new class-action process, which was approved in principle by the legislature this spring. He would file suit not for one plaintiff at a time but for all Ontarians (some 700) among the 1,700 Canadians who are living with the C-C valve--thus drastically raising the settlement stakes for Pfizer. The new legislation even provides for a contingency-type fee, and a government fund to help out with costs if necessary. But to succeed, Evans would have to persuade a judge to break new Canadian legal ground by awarding damages for emotional distress in the absence of tangible injury.
Most probably, therefore, the great ambulance chase will peter out with not many more than a dozen victors' names to add to that of Glenn Wallace, the first Canadian to win a settlement. Connie Cooper remains the world's only successful "pre-fracture" plaintiff.
The three accepted goals of the tort system are, according to one scholar, " fairness," "deterrence," and "compensation." Both Glenn Wallace and Connie Cooper believe the system has done its job. "I helped make the company see that human life ... should mean a little more to them," says Wallace. "A wrong was done," says Cooper, "and something had to be done. `Let justice prevail,' isn't that what they say?"
For its part, Pfizer Inc. has now settled with at least 400 fracture victims and taken steps to inform all living C-C patients of the risk of fracture and to pay for their consultations with cardiologists. Meanwhile, the company has sold off the Irvine plant. Its stock has been rising placidly on Wall Street since February 1990, and the Value Line rating service has this advice for investors: "We continue to recommend the purchase of high-quality Pfizer shares...
"We caution however that the stock may exhibit more volatility than usual in this unsettled market, due to ongoing litigation."
As for the compensation aspect, Wallace used part of his cheque to buy himself a new car, house, fishing boat, and a half share in a billiards hall, where he helps out some nights tending bar and repairing cues. Cooper, whose two C-C valves continue to say "tick-tock," helped her son buy a new car and her brother-in-law to expand his carpet-cleaning business. She is planning a trip to England and Tahiti.
And Brian Evans? He has bought himself a condominium in Pickering and an unpretentious cottage on Black Lake. When his partner Nigel Schilling bought a big-game fishing boat and christened it Cardiac Arrest, Evans told friends his new cottage would be called "Valvehalla," but he later thought better of it. "It wouldn't exactly be in good taste," he murmurs.