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With plaintiffs’ counsel that’s eager for trial, defense counsel that’s encouraged by a previous take-nothing judgment and a Dallas judge who wants the consolidated cases off his docket, it would seem that moving Kelly A., et al. v. NME, et al. toward resolution would be a cinch. Think again. About 22 plaintiffs remain of the original 92 people who filed fraud claims against a chain of psychiatric hospitals and their parent companies in Dallas County’s 160th District Court in 1994. The plaintiffs allege they were kept in hospitals until their insurance money ran dry. The other 70 plaintiffs have either gone to trials that ended in defense verdicts, had their cases dismissed or settled against the hospitals. Nearly six years later, the remaining parties are still waiting for a trial date. Or a settlement. Or a dismissal. If it were only that easy. “Although it’s oh so tempting, I’m not going to comment,” said Judge David Godbey, minutes after finishing a June 16 pre-trial hearing that drew more than 20 lawyers to his courtroom in an effort to resolve some of the 22 cases. “The lawyers have been working hard,” says Godbey, who inherited the cases after he took the bench in 1995. “Probably all of the lawyers and all of the parties have shared in the frustration that isn’t anyone’s fault.” Late last week, Godbey was working on a scheduling order that may include a trial date. Some of the frustration stems from an unusual set of circumstances that has made the cases difficult to move. Taken separately, these kinks may not be all that unusual for multiparty litigation. But rarely do they all happen in succession, say lawyers involved in the case. A sampling of those curves include: a plaintiffs’ lawyer who died in May leaving the cases without a leader; an ensuing probate fight that stymied payments to plaintiffs who have already settled; a critical appellate battle that has been unresolved for two years; and a tornado that destroyed one of the lawyer’s offices. “If there is a disaster within the borders of Texas that could touch it, it has,” says Robert Andrews, a Fort Worth sole practitioner who has assumed the role as lead plaintiffs’ attorney in the cases. He’s the lawyer whose office was hit by the March tornado. Robert Krakow, a partner in the Dallas office of Gibson, Dunn & Crutcher who represents defendants National Medical Enterprises and its successor company, Tenet Healthcare Corp., agrees with the catastrophic assessment of the cases. And like most of the defense attorneys, Krakow and his client just wish the cases would end. “No one is more frustrated than my client. We did not advertise the filings of these cases,” says Krakow, referring to previous plaintiffs lawyers who sought clients through advertising. TRIAL LAWYER WANTED Plaintiffs’ lawyers salivated in 1994 when NME and its subsidiary pleaded guilty to violations of the federal anti-kickback statute and paid $30 million in criminal fines and $350 million in damages. The guilty plea kicked off the filing of individual suits in Dallas, Tarrant and Montgomery counties and elsewhere outside of Texas. But the reason the Dallas cases are hard to get off the ground is because of the plaintiffs’ counsel, the defense alleges. “The real problem of disposing of the Dallas cases is a lack of any true trial counsel who’s willing to take on the representation of the rest of the cases,” Krakow says. In May, Dallas lawyer Parks Bell died. Years earlier, Bell had advertised for clients with the intention of joining forces with a well-capitalized firm to try the NME cases. Baker Botts originally signed on to take Bell’s cases to trial but the firm was conflicted out in 1996 because one of its lawyers had previously represented an NME executive. Dallas trial lawyer William C. Carmody handled trial duties for the plaintiffs instead. Carmody could not be reached for comment by press time. But in March 1999, in a so-called “bellwether” trial in which the plaintiffs picked two cases and the defense picked two cases to be tried together, Carmody and his plaintiffs’ team were handed a take-nothing judgment. The trial was named in May by The National Law Journal as the biggest defense verdict of 1999. After Bell died, Andrews took over, first as custodian of Bell’s law practice and more recently as the plaintiffs’ attorney for Bell’s former clients. Although he’s handled NME settlements as a plaintiffs lawyer — he has settled 69 of the Fort Worth cases — Andrews has never taken an NME case to trial. “We’re more than willing to begin trying the cases as soon as Judge Godbey orders them to be tried,” Andrews says. But he’s had trouble getting a plaintiffs’ lawyer to sign on for assistance. “Listen, I would take any help I could get. As custodian, I broke my back trying to look for help,” Andrews says. According to Andrews, it seems every big-time plaintiffs’ firm he turns to has some lawyer working for it that came from a firm that previously did work for a defendant in the sprawling cases. Some firms are intimidated by the financial aspect of trying the cases, he says. He continues to look for help outside of Texas. But in the meantime, Andrews says he’s over-matched by the defendants financially. Nevertheless, Andrews says he’s ready for trial and is pushing for an October trial date — just as long as each of the plaintiff’s cases are tried separately. “They can’t win them all. They know that,” Andrews says of the defendants. “And if there was a trial in October, they don’t have the time to outspend the plaintiffs’ counsel at a rate they otherwise would.” But the defense sees no reason to go to trial on what it deems as weak cases, especially on an individual basis. “There’s no bluff here,” says John Tilly, a partner in Dallas’ Strasburger & Price who represents several of the defendant hospitals named in the case. “Of the 22 [plaintiffs] left, we believe 15 are time-barred.” “When you do mass advertising, oftentimes people who call have let their claims lapse over time. If we go to trial, we’re talking about cases where events happened 10 years prior and people’s memories fade.” SETTLEMENT OR DISMISSAL? Even for those NME suits that have settled, some of the Dallas cases have been hard to finalize. On June 16 when defense lawyers tried to make a $29,000 partial payment to the court’s registry for some of the plaintiffs who previously settled, they were rebuffed. That’s because Bell’s estate is laying claim to attorneys’ fees as part of a pending probate action. “This court doesn’t have any jurisdiction over the estate of Parks Bell,” says James Hartnett Jr., a Dallas probate lawyer who represented the Bell estate during the June 16 hearing. And Godbey agreed with Hartnett, saying: “I’m not going to authorize the payment of these funds to the court register.” Even Andrews, the plaintiffs’ lawyer, objects to the payment of funds to some of the plaintiffs who settled. Andrews believes that some of the settlements Bell participated in are not valid and should go to trial because Bell was administratively suspended from the practice of law for allegedly failing to pay his State Bar dues. On the other hand, the defense is waiting on a decision from the 5th Court of Appeals in Dallas regarding whether two plaintiffs filed their claims too late. If the appellate court agrees, that could take care of several of the remaining plaintiffs. The appeal was filed in 1998, and lawyers are still waiting for a ruling. Still, after nearly six years of litigation, some lawyers see light at the end of the tunnel. “It started off with 92 and it’s down to 22 plaintiffs,” says defense lawyer Tilly. “That’s the good news.”

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