January 31, 2004
In Trial Work, Edwards Left a Trademark
By ADAM LIPTAKand MICHAEL MOSS
n 1985, a 31-year-old North Carolina lawyer named John Edwards stood before a jury and channeled the words of an unborn baby girl.
Referring to an hour-by-hour record of a fetal heartbeat monitor, Mr. Edwards told the jury: "She said at 3, `I'm fine.' She said at 4, `I'm having a little trouble, but I'm doing O.K.' Five, she said, `I'm having problems.' At 5:30, she said, `I need out.' "
But the obstetrician, he argued in an artful blend of science and passion, failed to heed the call. By waiting 90 more minutes to perform a breech delivery, rather than immediately performing a Caesarean section, Mr. Edwards said, the doctor permanently damaged the girl's brain.
"She speaks to you through me," the lawyer went on in his closing argument. "And I have to tell you right now — I didn't plan to talk about this — right now I feel her. I feel her presence. She's inside me, and she's talking to you."
The jury came back with a $6.5 million verdict in the cerebral palsy case, and Mr. Edwards established his reputation as the state's most feared plaintiff's lawyer.
In the decade that followed, Mr. Edwards filed at least 20 similar lawsuits against doctors and hospitals in deliveries gone wrong, winning verdicts and settlements of more than $60 million, typically keeping about a third. As a politician he has spoken of these lawsuits with pride.
"I was more than just their lawyer," Mr. Edwards said of his clients in a recent essay in Newsweek. "I cared about them. Their cause was my cause."
The effect of his work has reached beyond those cases, and beyond his own income. Other lawyers have filed countless similar cases; just this week, a jury on Long Island returned a $112 million award. And doctors have responded by changing the way they deliver babies, often seeing a relatively minor anomaly on a fetal heart monitor as justification for an immediate Caesarean.
On the other side, insurance companies, business groups that support what they call tort reform and conservative commentators have accused Mr. Edwards of relying on questionable science in his trial work. Indeed, there is a growing medical debate over whether the changes have done more harm than good. Studies have found that the electronic fetal monitors now widely used during delivery often incorrectly signal distress, prompting many needless Caesarean deliveries, which carry the risks of major surgery.
The rise in such deliveries, to about 26 percent today from 6 percent in 1970, has failed to decrease the rate of cerebral palsy, scientists say. Studies indicate that in most cases, the disorder is caused by fetal brain injury long before labor begins.
An examination of Mr. Edwards's legal career also opens a window onto the world of personal injury litigation. In building his career, Mr. Edwards underbid other lawyers to win promising clients, sifted through several dozen expert witnesses to find one who would attest to his claims, and opposed state legislation that would have helped all families with brain-damaged children and not just those few who win big malpractice awards.
In an interview on yesterday, Mr. Edwards did not dispute the contention that the use of fetal heart rate monitors leads to many unneeded Caesarean deliveries or that few cases of cerebral palsy are caused by mishandled deliveries. But he said his cases, selected from hundreds of potential clients with the disorder, were exceptions.
"I took very seriously our responsibility to determine if our cases were merited," Mr. Edwards said. "Before I ever accepted a brain-injured child case, we would spend months investigating it."
As for the unneeded Caesareans, he said, "The question is, would you rather have cases where that happens instead of having cases where you don't intervene and a child either becomes disabled for life or dies in utero?"
A Talent for Trials
Lawyers in North Carolina agree that Mr. Edwards was an exceptionally talented lawyer, endowed with a prodigious work ethic, native self-confidence, good looks, charisma and an ability to talk about complicated subjects in accessible language.
That, said his former partner Wade M. Smith, is a lethal combination in a trial lawyer. "People don't see him coming until it's too late," Mr. Smith said. "It's true in politics and it was true in the law."
Even Mr. Edwards's former adversaries give him grudging praise. "He has an ingratiating way," said Dewey W. Wells, a former state court judge in North Carolina who litigated against Mr. Edwards as a defense lawyer, "particularly with jurors and particularly with women on juries."
Mr. Edwards tried his first big personal injury case in 1984, seven years after graduating from the University of North Carolina law school. He had clerked for a federal judge, worked briefly for a firm in Nashville and then joined Tharrington, Smith & Hargrove, a small firm in Raleigh, N.C., with only a limited litigation practice.
The firm took the case that resulted in Mr. Edwards's first big jury verdict as a favor to a state senator and lawyer who had let it languish. Mr. Edwards, then a young associate, got the assignment because it was considered a loser.
"I said, `Let's dump the file on John's desk,' " said Wade H. Hargrove, a former partner at the firm.
The plaintiff in the case, Howard E. G. Sawyer, was disabled as a result of what Mr. Edwards said was an overdose of a drug used in alcohol aversion therapy. O. E. Starnes, who represented the hospital, had never heard of Mr. Edwards.
"He came over here and ate our lunch," Mr. Starnes said.
The jury awarded Mr. Sawyer $3.7 million.
"That created a buzz," Mr. Hargrove said. "The revenue that he was producing was an out-of-body experience. John would pick up an $800,000 fee for making a few phone calls."
In the years that followed, Mr. Edwards handled all sorts of cases. He litigated contract and insurance disputes. He sued the American National Red Cross three times, claiming that the AIDS virus was transmitted through tainted blood products, and obtained a confidential settlement in each case. He defended a Wilmington, N.C., newspaper owned by The New York Times Company in a libel suit.
In 1993 Mr. Edwards founded his own firm with an old friend, David F. Kirby. Now known as Kirby & Holt, the firm boasts on its Web site that it still holds the record for the largest birth-injury settlement in North Carolina.
Michael J. Dayton, editor of The North Carolina Lawyers Weekly, which frequently published summaries of Mr. Edwards's trial victories and settlements, based on information his firms provided, said his stature was uncontested.
"On the plaintiffs' side, he was absolutely the top one," Mr. Dayton said.
Parents Felt He Cared
Something more than Mr. Edwards's reputation attracted David and Sandy Lakey of Raleigh, N.C., the parents of a young girl injured in a swimming pool. The Lakeys say all the lawyers they interviewed except Mr. Edwards wanted one-third of any award, which one of them predicted would not exceed $1.5 million. Mr. Edwards offered to take a smaller percentage, unless the award reached unexpected heights.
In 1997, it did. A jury awarded the Lakeys $25 million, of which Mr. Edwards got one-third plus expenses.
He so impressed the Lakeys that they worked as volunteers in his Senate campaign the next year.
"I know how intelligent he is, how capable and how deeply he cares," Ms. Lakey said.
In some ways, he might even have been too successful. In response to a large punitive award against a trucking company whose driver was involved in a fatal accident, the North Carolina Legislature passed a law that barred such awards unless the employee's actions had been specifically approved by company officials.
Over time, Mr. Edwards became quite selective about cases. Liability had to be clear, his competitors and opponents say, and the potential award had to be large.
"He took only those cases that were catastrophic, that would really capture a jury's imagination," Mr. Wells, a defense lawyer, said. "He paints himself as a person who was serving the interests of the downtrodden, the widows and the little children. Actually, he was after the cases with the highest verdict potential. John would probably admit that on cross-examination."
The cerebral palsy cases fit that pattern. Mr. Edwards did accept the occasional case in which a baby died during delivery; The North Carolina Lawyers Weekly reported such cases as yielding settlements in the neighborhood of $500,000. But cases involving children who faced a lifetime of expensive care and emotional trauma could yield much more.
In 1985 he handled his first cerebral palsy case, for Jennifer Campbell, the girl whose voice he recreated at trial. In his book "Four Trials," Mr. Edwards described the case as an uphill battle. The doctor was esteemed and worked at a prestigious teaching hospital. Mr. Edwards's associate interviewed 41 obstetricians before finding one local doctor who would make a good witness.
It was clear which evidence would be crucial: "I had to become an overnight expert in fetal monitor readings," Mr. Edwards wrote.
In other cases, too, his colleagues say, the fetal monitor readings would constitute the key evidence.
"It's just like a black box in a car," said Douglas B. Abrams, Mr. Edwards's co-counsel in a cerebral palsy case settled for $1 million in 1995. "You know when a truck driver was driving too fast."
Doctors say that is an oversimplification.
"It seems to me that only trial lawyers are experienced at reading fetal monitor strips and are able to tell me exactly when infants became asphyxic," or deprived of oxygen, said Dr. William J. West Jr., an obstetrician and the president of First MSA Inc., which administers health care savings accounts.
In any event, Mr. Edwards's closing argument in the Campbell case still resonates in North Carolina.
"It would have been a very, very cold heart that was not reached by that, because Senator Edwards lived in that case," the judge who presided over the trial, Herbert O. Phillips, said in a recent interview. "That was Edwards, and Edwards was that case. He projected that oneness with his client and carried that to the jury, and he did it well."
The lawyer on the other side, Robert Clay, agreed.
"I was thinking that is really a bold thing to do," Mr. Clay said. "There is not really one lawyer in a thousand who could do that without having it turn against him because he is being hokey. It's just such a blatant appeal to emotions, like putting up a sign: `I'm appealing to your emotions.' But John could get away with it."
Not entirely. Five weeks after the verdict, Judge Phillips ruled it "excessive" and said it appeared "to have been given under the influence of passion and prejudice," adding that "the evidence was insufficient to support the verdict." He gave the Campbells a choice: They could accept half of the $6.5 million the jury awarded or face a new trial. They declined to take half, appealed the case and eventually settled for $4.25 million.
Next weekend, members of the Birth Trauma Injury Litigation Group of the Association of Trial Lawyers of America will gather in Atlanta for a two-day conference. On the agenda the first morning: "Electronic Fetal Monitoring: Understanding How the Strips Can Help or Hurt Your Case."
A Medical Advance Is Rethought
Electronic fetal heart monitoring was introduced in the 1960's to great fanfare. Advocates thought it would prevent most cerebral palsy by providing continuous immediate data on how babies were weathering labor and delivery.
But in the 1980's, scientists began to challenge the premise that medical care during delivery had much to do with cerebral palsy. Studies concluded that 10 percent or fewer of cases could be traced to an oxygen shortage at birth. The vast majority of children who developed cerebral palsy were damaged long before labor, the studies found.
Then a series of randomized trials challenged the notion that faster delivery could prevent cerebral palsy. Reviewing data from nine countries, two researchers reported last year that the rate of the disorder had remained stable despite a fivefold increase in Caesarean deliveries.
Dr. Karin B. Nelson, a child neurologist with the National Institutes of Health, says the notion that paying greater heed to electronic monitoring will prevent brain injuries remains just that, a notion. "Evidence of high medical quality contradicts the assumption that the use of electronic fetal monitoring during labor can prevent brain damage," Dr. Nelson said.
Mr. Edwards's colleagues in the plaintiffs' bar do not accept that analysis. "You find me a low C-section rate," said Daniel B. Cullan, a doctor, lawyer and co-chairman of the trial lawyer association's birth trauma group, "and I'll show you children in wheelchairs."
Mr. Edwards's former colleagues in the plaintiffs' bar certainly support his candidacy. His campaign is disproportionately financed by lawyers and people associated with them, according to the Center for Responsive Politics, which calculates that about half of the $15 million he has raised comes from lawyers. People associated with Baron & Budd, a Dallas law firm noted for its work on behalf of plaintiffs in asbestos cases, contributed $77,250, the largest amount, the center found.
Mr. Edwards has declined to discuss his fees as a lawyer or the size of his personal fortune. Senate disclosure forms suggest that he is worth anywhere from $12 million to $60 million.
Some say that the biggest losers in litigation over brain-damaged babies are the parents of children whose cases are rejected by lawyers.
"For the one or two who got a substantial jury verdict," said George W. Miller Jr., a former state representative in North Carolina who practices law in Durham, "there were 99 that did not get anything, either because they were not able to finance litigation or their claim was questionable."
"The real issue," Mr. Miller added, "is who knows what causes these kinds of medical problems?"
He said he planned to bring up the issue of compensation with a state commission that is studying medical malpractice. One approach would be to limit awards and create a fund to be shared by all families with similarly afflicted children.
This is not the first time Mr. Miller has championed the idea. In 1991, his legislation to create such a fund was defeated, in large part by the state's trial lawyers. Among those who spoke out against the bill was Mr. Edwards, who called it a baby tax.
But Mr. Miller says he had lined up another financial source. Insurance companies hard hit by malpractice suits had agreed to subsidize the fund.
