A Long Summer
Sunday May 13, 2012, Mother’s Day morning: Helen, Mary and I have just finished up three grueling days of work at the flower shop.Mother’s day is the busiest time of the year for us.We couldn’t have made it if we didn’t have family and friends helping.As it is we have to make a long distance delivery up by Mt Rainier on Monday and none of us want to do it.My cousin Kathy who came to help is just about ready to leave for home and to celebrate her own Mother’s Day with her son.We make money on Mother’s Day, but not on a lot of the other days and now we are coming into the “flower shop doldrums”.We have some weddings, but not enough to help us out financially.We could try looking for other jobs, but Mary will not be able to hold down a full time job anytime in the future.
Monday May 14: Another bombshell just landed as if we didn’t have enough trouble already.Judge Noel has ordered another settlement conference for August 23, 2012 in Minnesota and at least Mary has to be there.This means spending time and money none of us have.We don’t have any idea why Judge Noel is doing this.The defendants have to be there also but they do not have to offer any more for a settlement than they have already. The judge can’t do anything to them for having no empathy towards us.I fear the defendants will jump at the chance to make our financially devastated family spend money we don’t have just to come back and give them the opportunity to “land more body blows” on all of us.My son Adam is getting married at our house on August 17.This is not good timing!
Tuesday May 16: I stayed home from the flower shop to mow the lawn and plant tomato and pepper plants.I’m trying to keep my life as normal as possible but Mirapex follows me around and ruins everything.Mary just called me in tears.They have just changed the date of her settlement conference to August 15!She is afraid that she will miss her brother’s wedding if she’s gets stuck there.She is also afraid the trip will be for nothing but discouragement.She wanted to drive straight there to save money, but now she can’t.I don’t think that Helen and I have enough air miles left to help them.Her despair is playing right into the defendants’ hands, but how can she possibly help it?
Last time the defendants jerked everyone around when their lawyers couldn’t make some of the dates for the settlement conferences in November of 2011.I’m pretty certain that the defendants will do the same again.It’s a good tactic on their part.I don’t know if Mary can hold up until August and then what will happen if she gets deselected again?
July 9, 2012: If all the stress over running a flower shop with long hours for Helen, Mary and I with little monetary compensation, unsuccessfully meeting our bills, and trying to keep everyone on an even keel isn’t enough on our plates, a new bomb shell hits us.On June 29 the defendants filed a motion to have Mary and five other plaintiffs represented by H. Lee Thompson accept settlements that they never agreed to.I went to the Pacer site and downloaded the motion.There are no words to describe my feelings when reading their motion titled “Motion to Enforce Settlement Agreements”.I was incredulous to say the least.
After racking our brains we remembered a letter we had received from one of the many defendants’ lawyers Author J. Liederman.Mary had gotten the letter on March 8, 2012.In the letter Liederman acknowledged the receipt of a demand for a full and final settlement of Mary’s claim.We dismissed the letter as another devious ploy by the defendants to browbeat Mary into a settlement.Mary immediately sent the following email to H. Lee Thompson dated March 10, 2012.
I did not agree to settle for the amount of $xxxxx.Please do not go forward with this settlement.Please also forward to me the reference present demand that you sent to Author Liederman.
Thank you! Mary Magalhaes”
When we didn’t hear anything else about it we put it out of our minds.Later we found out that at least one of Lee’s clients felt that they had to sign and accept the agreement.There probably was more that we didn’t know about.Thank heavens that we are not on our own, but have a strong family for support.
After I calmed down enough the read the defendants motion and make sense of it this is what I found out.On March 12, 2012 Lee had sent a list of demands by email to the defendants for each of his remaining 18 clients.The 18 clients included Mary and the four others named in the motion.Apparently it is only five clients that had never agreed to the demands that Lee sent, or at least five clients that objected.Those other four had also refused to sign the 19 page releases; releases that would absolve the defendants of further lawsuits, forbid under penalty the telling of their stories, and of disparaging the two pharmaceuticals in the future. The March 12 email was referred to in the motion, but it is not available to see on Pacer.It is “sealed” from public view because it contains the settlement offer amounts for all of the 18 clients.
The defendants are arguing in the motion that Lee’s demands for his 18 clients constitute enforceable contracts regardless of the wishes of the individual clients or whether they agreed to the demand amounts he sent in the March 12 e-mail.We don’t know if Lee included the settlement offer for Mary in his e-mail by mistake.We do know that he didn’t send us the e-mail as we asked, but this could have been due to the legal prohibitions.We may never know the answer. Right now that this is the least of our problems.
July 10, 2012: Lee asked Mary to send an affidavit to him that he would include in his response to the defendants motion.His response has to be filed before the hearing on the motion that is scheduled for July 30.Here is a copy of her affidavit that she sent Lee.
AFFIDAVIT OF MARY D. MAGALHAESpage 1 of 3
I ____________________________________ upon oath state as a resident of the state of Washington and the county of King that I have personal knowledge of the following events.
July 12, 2012
To whom it may concern:
I’m writing this affidavit in response to “Defendants’ Motion to Enforce Settlement Agreement” (CASE 0:11-cv-00412-MJD-FLN, Document 47, Filed 06/29/12) and the “Memorandum of Law in Support of Defendants’ Motion to Enforce Settlement Agreements” (CASE 0:11-cv-0042-MJD-FLN,Document50, Filed 06/29/12).
The defendants assert that:
On February 22, 2012 Mr. Thompson informed counsel for BIPI’s insurers that he was still awaiting word on settlement from certain clients and hoped to provide settlement demands from them within a week.
On March 2, 2012 Mr. Thompson sent to Nicole Washienko, representing BIPI’s insurers, an e-mail containing individual settlement demands for each of his 18 remaining Mirapex clients (excluding Sabaj), including the five Plaintiffs at issue in this motion.
All five Plaintiffs agreed to fully and finally settle their claims against Defendants and dismiss their pending lawsuits with prejudice.
Plaintiffs’ counsel possessed all necessary authority to settle his clients’ claims in full.
Their new-found buyer’s remorse notwithstanding, these Plaintiffs remain parties to binding settlement agreements reached through good-faith, arms-length negotiations by their authorized counsel.
I, Mary D. Magalhaes testify in this affidavit:
That between February 22, 2012 and March 2, 2012 I never authorized Mr. H. Lee Thompson either by e-mail, written letter, conversation in person or by telephone, or fax to put forward to the defendants a demand of $30,000 for a full and final settlement of my claim against both BIPI and Pfizer.
That Mr. H. Lee Thompson never discussed with me that he was putting forward such a claim either by e-mail, written letter, conversation in person or by telephone, or by fax before March 2, 2012,
That I never received a copy of the referenced March 2, 2012 e-mail from Mr. H. Lee Thompson to the Defendants.
That the first time I was made aware of this e-mail was on July 9, 2012 when my father John D. Locatelli logged onto PACER and read Document 47 and Document 50.
That when I received a copy of the March 8, 2012 e-mail from Arthur J. Liedermanacknowledging the receipt of the demand of $xxxxx for a full and final settlement of my claim I emailed on March 10, 2012to Mr. H. Lee Thompson that I had never agreed to that settlement amount (see the copy of the email on page 3)
That the defendants’ claim that I am “suffering from “new-found buyer’s remorse” is totally, unequivocally, absolutely unfounded as I never “purchased” the demand of $xxxxx for a full and final settlement in the first place.
That neither the defendants, Mr. H. Lee Thompson, nor the court will be able to produce any e-mail, conversation by phone in person, letter or fax that will show that I was aware of the March 2, 2012 e-mail to the defendants or that Mr. H. Lee Thompson discussed this demand with me before it was sent on March 2, 2012 as none exist.
Mary D. Magalhaes
We are in constant e-mail with the other four victims and we are all pretty upset.Some of them are losing the will to continue.I suppose that is a proven technique that the defendants use; wear out and browbeat the plaintiffs.Some days, today is one of them, I feel like giving up.Then I look behind me to see if anyone is in line to take over.So----I guess I’ll keep going.
July 19, 2012:Lee had just sent his reply to the motion and I’m just reading it on Pacer.I’m impressed with his arguments against their motion and he makes it very plain that he didn’t consider any settlement final until he discussed it with his clients.There is a lot of discussion of what contract law to apply in this case.All the court procedure is from the Federal Court rules of Minnesota.However, in applying the law to individual cases, the law that applies is normally the one from the state that the plaintiff lived in when the damage from Mirapex happened.
It would be nice if the law was that simple----but----in the case of a motion that is against multiple people from different states it is possible to apply the law from only one to simplify the proceedings.The defendants are arguing through a complex, and not clear to me, argument that in this case New York contract law should apply to all.Lee has included Mary’s affidavit in his reply to the motion.
July 26, 2012:Thankfully Joe and Mary had insurance that will pay to have the ice-storm damaged roof repaired.The payout was enough to have the roof repaired by professionals, but today Joe and I are starting the repairs ourselves. This will enable us to repair more of the roof than was storm damaged.Large sections of the roof over the laundry room have rotted away and I can see down to the washer and drier from on the roof.Over the kitchen the roof is really spongy and has several leaks.It looks like the weather will be sunny for several days so we will remove the whole south half of the roof today.This is the section with the most leaks and also has the damage from the limbs.
The sun is going down and I’ve just gotten out of the shower.I’m still on my feet so that is good.Joe and I used the time honored flat shovel method to scrape the roofing off of the flat roof.Several layers of roofing were on top of the original tar and tar paper roof.I hope what doesn’t kill me will make me stronger, but it looks like at least three more days of grueling work to get the new roof on.All the years of building our own homes must have physically and mentally toughened me up.
July 27, 2012:It’s getting dark, I just finished my shower and I’m still alive.Today we had to remove the rotted roof boards that we exposed yesterday and sister-in and replace quite a few 2x6 roof rafters that were also rotted.Both Joe and I had one leg break through the roof, but thankfully we didn’t break anything important (roof or us).I went through first and just as Joe was finished laughing at me, he plunged through.All those repairs are done and tomorrow we will cover the whole south half with plywood.
July 29, 2012: Yesterday Joe and I successfully laid down the plywood, and today we will lay down the rolled roofing.I’m not looking forward to it as this will involve roofing tar and anyone that has worked with roofing tar will know it most likely means a big mess.When I was younger and had black hair, the blobs of tar that invariably stuck in my hair didn’t show.Now that I’m grey they do show up.It’s dark again and we are done!If it rains the house is safe.Today was a bridal shower for my son’s bride-to-be Sara and thankfully my son-in-law Mark drove out to our house from Seattle with my daughter Amy.With Mark’s help we were able to finish in one day.With all of the Mirapex caused problems at least we shouldn’t have to worry about slugs in Mary and Joe’s kitchen cupboards again.
July 30, 2012:The hearing on the motion to force the settlements is this morning.Mary had arranged last week to be present at the hearing by phone.The District Judge assigned to these cases is Davis, but he requested that the Magistrate Judge, Noel, handle and decide this motion.I’m really hoping that Judge Noel will ask questions of the plaintiffs and give them a chance to speak.Mary’s on the phone now.
It’s over and I’m pretty disappointed in the hearing.Mary said that each side repeated their arguments and the Judge never asked questions of her or the other plaintiffs present by phone.The Judge will now prepare his decision and it will be posted on Pacer.I don’t know how long this will take.
Mary has been trying to save up money to pay for the trip back to the settlement conferences scheduled for the 15th of August, but she hasn’t been able to buy the plane tickets yet.This isn’t good news as buying the tickets last minute will increase their costs.Some others of the five plaintiffs in the motion have already purchased their tickets.The conferences will be only two days before my son’s wedding and the wedding will be at our lakefront home!I keep picturing what a stroke from the stress will feel like. I hope it’s like a light turning off, but who knows.I don’t want to linger so I’m counting on a quick exit.
August 3, 2012:We just found out that the conferences have been cancelled!The defendants had argued that no matter which side wins the other side would appeal the decision, which would make settlement conferences at the scheduled time superfluous.This is good for us as we didn’t waste money on plane tickets.Unfortunately, some of the other four scheduled for conferences will have to eat the cost of their tickets.Attendance at the conferences is mandatory whether the plaintiffs can afford to go or not.However, it seems like the defendants are given preferential consideration for their schedules and last minute changes to give deference to them is always possible.I’m glad that we are not going back.Why give them another chance to jerk us around like the last time?
August 8, 2012:Judge Noel has just posted his decision.It is short, to the point and very infuriating.I’m trying to console Mary, and at the same time not smash everything around me in my own fury.
The judge ruled that any conversations and understandings between Mary and her lawyer H. Lee Thompson (the same for the other four plaintiffs) were not relevant to his decision.His decision was solely based on the applicable contract law.Apparently Lee entered into an enforceable contract (as the judge sees it) with the defendants as Mary’s representative, and the court can force Mary to take the settlement against her will.It doesn’t matter to the court that Mary never authorized that settlement amount, or for Lee to argue that he never intended the offers to be finalized until he discussed them with his clients and they signed the 19 page release forms.I can now understand why some people snap and go on a rampage, but I have to concentrate so I can figure out what to do next.
I’m totally taken aback by Noel’s ruling.Taken to the extreme any lawyer for a plaintiff could enter into an agreement with the defendants and sell the plaintiffs out for a cent and the plaintiffs would be forced to take such a settlement.This is true even if the plaintiffs specifically and unequivocally told their lawyer not to make that offer. Does anyone else think that there is something very, very wrong with this decision?
The Judge stipulates that each of the four defendants will settle their lawsuits for the amount that Lee demanded in the March 12, 2012 email; that they will sign a statement releasing the defendants of all future lawsuits from taking Mirapex and that the amount of the settlements will be sealed.Apparently all of the other prior settlement amounts have also been sealed by the court.I can’t find in his ruling any provision that would require the signing of the 19 page release favored by the defendants.I’m beginning to think that the defendants will never, never give Mary any justice.Lee will probably appeal this decision to district judge Davis, but that won’t matter anyway.If the defendants lose the appeal they will never stop filing motions to have Mary’s case dismissed and this will drag out forever.There will be no justice through the legal system.
August 14, 2012: I’ve just read Lee’s objections to Judge Noel’s decision.Lee has several objections to Judge Noel’s ruling, but they all stem from the Judge’s decision to completely ignore any plaintiff testimony.Here is his final statement.
“All plaintiffs object to the Magistrate Judge’s proposed report and recommendations because the Magistrate Judge’s ruling is erroneous, denial of due process of law as the Court failed to consider plaintiffs affidavits and declaration statement timely submitted to material terms and facts in dispute.”
It’s in the hands of Judge Davis now. Mirapex is the gift to our family that keeps on giving, giving grief that is.Helen has been noticing that her eyesight has been deteriorating for some time.We used to have good health insurance for her through my policy at the University of Washington, a policy that I could keep going after I retired.After Mirapex gutted our finances we struggle to keep up with the payments, but couldn’t manage it.I’m thankfully on Medicare now, but I have chosen an inexpensive plan that is heavy on prevention, but light on payments for serious treatment.Helen is without any health insurance.We are one serious illness away from total financial disaster.
We managed to sell a nice antique piece of furniture at our shop that Helen got as an inheritance from her brother.I talked Helen into spending the money to have her eyes checked.Evidently she has cataracts that are progressing.Now she can’t deliver flowers as she cannot see the street signs or addresses from the delivery truck.We went to a music concert at the church where my oldest daughter Amy sings in the choir.Helen couldn’t see which one was Amy from the pew we were seated in.Our granddaughter Annelies is taking dance lessons and I talked Helen into taking opera glasses with her to her last performance.Helen was crying coming out of the concert.They were tears of joy as she could finally see Annelies’ face as she danced.I was hoping that this meant that glasses would help her see better.We took a chance and had her eyes checked.The optometrist warned us that the glasses would not work as good as the opera glasses did.Unfortunately she was right.Mirapex keeps claiming victims.
While all the drama of the defendants ruling is going on Mirapex added more horror to my life.All through being employed at the University of Washington as a scientist I enjoyed good dental care.A toothache was promptly taken care of, and a broken tooth was fixed before a toothache could happen.Early in the year I busted a large chunk out of a right bottom molar.I quit chewing on that side and my tongue eventually stopped hurting from the rough edges of the tooth.
I hoped that being careful with chewing and good brushing and flossing would keep further trouble from happening.We had no money for a dentist visit, especially for the expense of fixing a broken tooth.A few weeks ago I developed a violent toothache in the broken tooth.I was hoping that “mind over matter” could help me endure the pain.I went on the Net and researched home remedies for toothaches.I imagined that eventually the infection would push out from being trapped in my tooth and the release in pressure would cause the pain to lessen.Several people suggested going to the pet store and buying antibiotics sold for goldfish, that way avoiding the expense of a dentist visit.
Instead I tried several other home remedies employed by other “down on their luck” people.Nothing much worked, but finally when the pain became almost unbearable the pressure on the nerve in my tooth lessened.Now I can bear the pain and get on with my life.I’m counting on the fact that humanity survived in spite of rotten teeth and no dentists.If we ever get back financially from the Mirapex wreck the first thing to spend money on is Helen’s eyes and then my teeth. The one benefit of the toothache is that it hardens my resolve to not quit.Every throb reminds me of how terrible the defendants have treated us and how disgusted it makes me to think how they pretend to care about each and every patient who takes their medicine.