A Matter of Happenstance

A MATTER OF HAPPENSTANCE

By David L. Elkind delkind8@gmail.com

Sam Benson and Scott Ferguson hated each other from the moment they met on the second day of high school. Sam was playing lacrosse for the first time in gym class but quickly felt comfortable catching the ball and running while cradling it in his lacrosse stick. Sam was racing to the goal when Scott, with a crazed look on his face,  slammed his stick on Sam’s wrist. Sam screamed as he writhed in pain. He wanted to hit Scott when the pain subsided but when he saw Scott’s size he reluctantly backed off.

They were frequent adversaries after that. Scott was aggressively stroking Sam’s girlfriend’s shoulder at a party one night when Sam broke a vodka bottle and looked at Scott menacingly. “If you don’t move away from her right now,” Sam said, “I’m going to carve my initials onto your pretty face.“ Scott scowled as he walked away. Sam knew who had slashed his father’s car tires that night but he didn’t care.

Sam was the grandson of Holocaust survivors. He focused on doing well in school and on helping others. “What happened to my grandparents was a matter of  happenstance,” Sam told his friend Greg. “Hitler could have come along at almost any time. We’re lucky that we’re not at risk now because of our religious beliefs. I feel a duty to help others because of that.” Sam helped out in as many charitable events as he could.

Sam graduated law school cum laude. He went to work at the top law firm in the area. In eight years he made partner. His specialty was suing insurance companies on behalf of large corporate clients to obtain insurance to pay for their liabilities.  

Scott’s father was a multi-millionaire philanthropist who won wide recognition for his good deeds. Scott wanted to be the polar opposite of him.  “My father is this great hero,” he told his best friend, Todd Rappaport. “My goal is to be on the dark side.” Scott spent much of his youth drinking, doing drugs and fighting. He accepted few boundaries. One night  he took his car drag racing at the outskirts of town. He was so happy when he won the race that he didn’t notice the man crossing the street in front of him until it was too late. Scott killed the man instantly. He was distraught that he had killed someone but also frightened that he was likely going to jail. His father, however, paid the one witness a fortune to make sure that he couldn’t remember what had happened. “All that it took to solve the problem was money,” Scott’s father told his mother. “Although it cost a lot, I got it done.”

Scott’s college performance was mediocre but when he started work handling claims at his uncle’s insurance company, Absolute Insurance, he found his niche. Scott handled progressively more expensive claims and his approach was always the same. “Just say no,” he said to his colleagues. “Unless the law is clearly against us the policyholder is going to have to sue us to get coverage. If we decide to settle a claim the policyholder is going to have to take a significant haircut if they want to get any money.”

When Scott progressed to a senior position he gave his staff metal buttons to wear that said, “The answer is no.” He laughed as he said during a staff meeting, “Never wear those buttons outside the office.” Because he was handsome and well-spoken Scott became Absolute’s star witness whenever a case went to trial. He would testify why a claim wasn’t covered by Absolute’s insurance policies and juries would agree with him. “Each of the women jurors wants to have your children,” Absolute’s lawyer laughed during one trial.

When Sam’s client presented a claim for insurance coverage for environmental liabilities to Absolute Scott denied coverage and Sam started a lawsuit against Absolute. Sam scheduled a settlement meeting with Absolute at his client’s request even though Sam knew that it would be a waste of time. The meeting was barely a half-hour old when Scott started hurling insults at Sam. When they were outside moments later Sam told the client, ”I should have told the cabbie to keep the meter running.”

The client shook his head in disgust. “I understand that you guys were hostile in high school,” he said, “but at some point he’s going to have to outgrow it.”

“Winning this case will help,” Sam said, a determined look on his face.  

The litigation was almost as hostile as the settlement meeting. By mid-September they were six months from trial. Sam had told his secretary, Sandra, to screen all of his calls while he read Absolute’s new motion papers but Sandra knocked on the door. “There’s a gentleman on the line who says it’s important. His name is Scott Ferguson.”   

Sam was determined not to show emotion when he took the call. “To what do I owe the pleasure of this call, Scott? Are you calling to gloat about your motion papers?”

“No Sam, I wouldn’t waste your or my time on that. But you have to admit they’re pretty good.”

“I don’t know,” Sam said. “They were disappointingly predictable.”

“I would be laughing if it weren’t for the nature of my call,” Scott said, his voice uncharacteristically soft. “I’m sure you’re shocked that I’m calling you after all the garbage between us and I’m calling to ask a big favor. But you’re the only person I can think of who can help on this.” 

“What’s up?”

“Do you remember a guy from high school named Todd Rappaport?”

“Yeah, he was one of your boys. One of your closest friends, right?”

“That’s right. He’s been my closest friend since grade school. We talk all of the time. He’s been doing okay managing a bunch of restaurants in New York. He has a wife and three kids. Life was good until about a year ago when he was diagnosed with spinal cancer. They treated it with surgery and radiation but it came back with a vengeance and has started to metastasize. Traditional chemotherapy hasn’t been very useful for treating his type of cancer but they’ve started experimenting with a new type of chemo that shows great promise. The problem is that the FDA hasn’t yet approved the new treatment and Todd’s insurance company refuses to provide coverage because they say it’s experimental. If I had the money I would have paid for it myself but I can’t. I was hoping you could help.”

Sam had been prepared for a confrontation when he took the call but Scott had floored him. “That’s terrible news,” Sam said somberly. “What do you want me to do?”

“I need someone to go after the insurance company on a pro bono basis. Given our past, I wouldn’t blame you if you told me to go to hell but it’s not for me, it’s for Todd. I thought about other people who represent policyholders and frankly, Sam, you’re the best one I can think of right now to handle it. Unfortunately, time is not in our favor. If things don’t get turned around soon Todd won’t last a year.”

“Well, I guess I should thank you for considering me but I have to get approval for this. I should be able to get back to you in a day or two, tops.”

“I appreciate that,” Scott said. He gave Sam his cell phone number and told him to call anytime. 

Sam contacted the pro bono partner at the firm and quickly got permission for the representation. His next call was to his friend, Jim Salter.

“It’s amazing how things can turn around in life like this,” Jim said. “Rappaport was not the asshole that Scott was but he wasn’t exactly a saint, either. What are you going to do?”

“I don’t know,” Sam said, “but I’ve got to make up my mind soon.”

He went home and had a late dinner alone with his wife, Karen. He spoke about the pending case. He then told her about the call from Scott. “I’m really on the fence about this,” he said.

“I know that he’s a jackass, but if it was a stranger, would you take the case?” Karen asked.

“In a heartbeat.”

“Is your hesitancy because of Scott or Rappaport?” 

“I never cared for Rappaport, but my real problem is with Scott,” Sam said.

“Well, Scott’s life isn’t the one in the balance. If you don’t take the case and Todd dies how would you feel?”

“I would feel horrible. Honey, you’ve helped me make up my mind. I’ll take the case.”

Karen smiled. “It’s always been like you to do the right thing.”

Sam excused himself and called Scott. “I’m going to take the case.”

“Thank you,” Scott said. He got right to the point. “I’ll get you the file tomorrow. Sam, the gloves are going to stay off in our litigation.”

“I wouldn’t have it any other way,” Sam said.

Sam immediately focused on Todd’s case. When he got the file the day after speaking to Scott he read it twice and he was furious. The new type of chemotherapy had recently shown promise as a treatment for spinal cancer. The treatment had not yet been approved by the Food and Drug Administration but all of the testing so far had yielded favorable results. It clearly was headed for FDA approval but that hadn’t occurred yet. As a result, Todd’s insurance company, Exemplar Insurance, had taken the position that it was barred by an exclusion for experimental treatment.

Sam was concerned about the exclusion until he read the policy definition of experimental treatment: ”those procedures and/or treatments which are not generally accepted by the medical community.” He told his associate, Ellen Larkin, who was helping him on the matter, “We got a break. It didn’t say that experimental meant something that wasn’t FDA-approved. We just need to show that this treatment is accepted in the medical community and we can win this. Find me a good expert.”

He first tried to settle the matter without litigation. He met with three claims officials of Exemplar at their headquarters in Delaware. They were dismissive and arrogant. “If the FDA hasn’t approved it, it’s experimental.”

“That’s not what your policy definition says,” Sam shot back.

“That’s too bad,” an Exemplar representative said.

“A young father is dying and your response is to re-write your insurance policy to say what you wished it said. There is an easy way and a hard way to solve a problem and you’ve chosen the hard way.” Sam’s voice was calm but he gave them a withering stare. “Big mistake.”

Sam was swamped at work because of the upcoming trial. Sleep was at a premium and he had little time for family involvement but Karen remained supportive. Somehow he found the time he needed. He filed suit for Todd in federal court in New York City and asked the court for an early status conference. At the conference he asked the judge for an expedited discovery schedule and an early trial, which he said would take one day. The judge granted his request. Sam took just two depositions of Exemplar witnesses. Ellen separately conducted research on medical journals. She found the perfect expert witness to testify with respect to the insurance policy exclusion. Sam was pleased when the expert’s deposition went well. Exemplar didn’t name an expert witness. 

The trial was held on January 5. A judge would decide the case instead of a jury. Sam called Todd as his first witness. Todd was weak and thin but sat up straight. His face was gaunt, his hair gray, and he looked like he was in his 50’s rather than months from turning 40. He described his condition and the treatments he had endured. His voice was barely audible and the judge asked him twice to speak louder. He said his prognosis without chemotherapy was less than a year. “I don’t know if I can stand the thought of living that long knowing it’s only going to get worse.” He paused repeatedly while testifying but somehow didn’t cry. His wife’s cries, however, could be heard throughout the courtroom. 

There was no cross-examination. Todd’s oncologist testified next about the chemotherapy he hoped to administer to Todd but he said it was very expensive. Without insurance it would be unaffordable. The only cross-examination was to get the oncologist to admit the chemotherapy was not guaranteed to work. Even then he had a great comeback. “But if we do nothing he’s guaranteed to die.”

Sam’s last witness was the one Ellen had found, Dr. Martin Dresher, an oncologist who had published an article in the Journal of the American Medical Association about new treatments for spinal cancer and had specifically described promising trials using the same chemotherapy that Todd’s oncologist had proposed to use on him. Sam painstakingly took him through his medical background and cancer practice, focusing on the awards that he had won and achievements that were recognized throughout the medical community. He easily qualified Dr. Dresher as an expert. Sam then went through Dr. Dresher’s article in detail, highlighting the discussion of the chemotherapy treatment for spinal cancer.

“Dr. Dresher,” Sam asked, “is this the only medical article of which you are aware that discussed the benefits of using this chemotherapy to treat spinal cancer?”

“No,” he said. “Mine was the first in this country. There was one six months earlier in a British medical journal that focused on bone cancer generally but specifically mentioned this new therapy as a promising development for treating spinal cancer. A third article will be published next month in an Indian medical journal. The author and I spoke two weeks ago.”

“What did he tell you?”

“He said that his article will say that this is the first therapy that promises effective treatment for spinal cancer.”

“Do you know the current status of the FDA approval process?”

“I hear it is going through smoothly and may be complete by this time next year.”

“Do you consider the use of this chemotherapy to treat spinal cancer to be generally accepted by the medical community today?”

“Yes, it is. This has been discussed at medical conferences I have attended, at least three in the last nine months. The consensus is this is the most positive development that has come out in the treatment of spinal cancer. It’s been called a game changer.”

“Thank you, doctor, no further questions.”

The cross-examination tried to focus on the uncertainty of the benefits of using the chemotherapy to treat spinal cancer. Dr. Dresher was firm. “Nothing is guaranteed but the oncologists who specialize in this area are more optimistic than they have ever been.”

Exemplar’s one witness was the head of its claims department. He stated the company’s sympathy for Todd then explained the purpose of the exclusion. “We cannot throw good money at expensive treatments with no proven value,” he said. “If we did, there wouldn’t be enough money left for expensive treatments that did have proven value.”

Sam took the witness through the policy exclusion on cross-examination. “It says not generally accepted in the medical community. It doesn’t say not accepted by the Food and Drug Administration, correct?’

“That’s true.” The witness started to squirm.

“Now, you subscribe to medical journals, like the Journal of the American Medical Association, right?”

“Yes, that’s true.”

“So you would have been aware of Dr. Dresher’s article, right? And perhaps the other one that he mentioned?”

“Well, at least Dr. Dresher’s article.”

“Now, I saw you in the courtroom earlier. You heard Dr. Dresher’s testimony, isn’t that correct?”

“Yes.”

“Is there any doubt in your mind that this procedure is generally accepted by the medical community?”

“I don’t know if I can make that judgment.”

“Well if you can’t, as the head of Exemplar’s claims department, doesn’t that make the exclusion at best ambiguous?”

“I‘m not a lawyer. I can’t answer that.”

“No further questions.”      

The judge called for a recess. Sam put his arm around Todd’s shoulder. They hadn’t seen each other since their high school reunion until just before the trial. Sam wasn’t worried about their trial preparation. He knew that Todd only had to tell the truth. “Are you okay?” Sam asked.

“Yes. Thank you, Sam. Thank you so much,” Todd said, his eyes welling up with tears. Sam just nodded.

The judge came back an hour later. “All rise,” the bailiff shouted.

The judge recited the facts of the case. He focused on Dr. Dresher’s testimony and what it established. He then focused on Sam’s cross-examination of the claims handler. “Although I believe that the plaintiff has established that the cancer treatment is generally accepted by the medical community I don’t have to go that far. The best that can be said for the defense is that the exclusion is ambiguous under these facts. Since any ambiguity has to be construed against the insurer and in favor of coverage, I find for the plaintiff, and I direct the defendant to approve the treatment for Mr. Rappaport. It is so ordered.”

The few people in the courtroom erupted. Sam hugged Todd, who was crying. Soon Sam was crying. Todd’s wife and Scott came towards them. Todd’s wife was kissing Todd and hugging him. Scott was crying. He hugged Todd and then he hugged Sam. “You did it. You did it,” he shouted. Sam stopped crying long enough to smile broadly.        

They left the courthouse together. When they said goodbye Scott shook Sam’s hand and had his left hand on Sam’s shoulder. “Today we don’t talk about our adversity. What you did was extraordinary. You may have saved Todd’s life. All that I can say is thank you. I’m so grateful that you took the case.” They hugged again.