(Un)signed, Sealed, Delivered

Even Tom Girardi depends on the kindness of strangers

Published in 2008 Southern California Super Lawyers — February 2008

The envelope arrived in the mail just the way Tom Girardi likes it: unexpectedly, anonymously and with no return address. During his career handling products liability, toxic torts and pharmaceutical liability cases against large corporations, Girardi had received these kinds of envelopes before. Usually it meant he was about to have a good day. A very good day.

Once before, one such envelope contained a memo that helped break perhaps his best-known case—the Pacific Gas & Electric Company (PG&E) cover-up of its contamination of the water supply of Hinkley, Calif. The cancer-causing chemical chromium-6 that was present in the water was sickening the people of Hinkley and became the basis for the movie Erin Brockovich. The 1972 memo, from a Hinkley employee to management, asked, “The chromium levels are now much greater than is allowable. Should we give the people bottled water?” The reply read, “The less said about this the better. It could lead to liability problems.” PG&E eventually settled for $333 million. Earlier this year, history repeated itself when Girardi received another anonymous memo in the mail for another case against PG&E.

It hasn’t always been a letter. The first time he received an anonymous tip was on a Monday morning way back in 1982. As Girardi was heading to court to represent a family injured when their U-Haul truck overturned, his phone rang. Girardi almost didn’t answer, but curiosity got the better of him. “Ask U-Haul about the tests they did this weekend at the track in Arizona,” the caller barked, and hung up. Girardi subpoenaed the tests. He handed them to the defense attorney, who smiled and said, “I think we’ll go to settlement.”

Once the beans spilled spontaneously, while Girardi was taking a deposition from someone in middle management. The manager was giving his testimony about how the company conducted proper tests that disproved blah blah blah, when suddenly he paused, his eyes welled up, and he said, “I can’t live with this …”

What’s weird is that Girardi never finds out who the anonymous mailers and callers are. He understands a whistleblower would want to keep his job, but he figures that once the case is over, he will reveal himself. This has never happened.

Now here was another unmarked envelope in his hands. Girardi opened it. It contained an internal company memo regarding his upcoming Rockwell case. The corporation was being sued for covering up radiation leaks. The author of the letter—probably not the same as the anonymous sender—was a senior management person at Rocketdyne, which owned Rockwell at the time. He wrote to his supervisor objecting to the scheduling of future test firings of the toxic gas NTO at one facility near a populated area. He said the “same tests can just as easily be facilitated at the Santa Susana test site without endangering the public.” The supervisor wrote back, “It doesn’t matter if we kill a few people with our testing because Rockwell has a large legal staff that can take care of that kind of thing.”

And now Girardi had it.

“Isn’t that great?” Girardi chimes gleefully from his Wilshire Boulevard office in the Girardi Keese building. “Can you believe that?” At 68, he retains a certain impishness, and looks a little and sounds a lot like John McCain.

“Lawyers who win these cases shouldn’t get any credit,” he laughs. “The Deep Throat at U-Haul won it for us, the PG&E tip won it for us, this Rockwell letter will win it for us. Someone with a great moral conscience won these cases.”

Of course, most cases don’t rely on a last-minute deus ex machina memo arriving through the postal system. Girardi has won damages against Kaiser Permanente for dumping indigent and homeless people back on the street while they still needed treatment (as seen in Michael Moore’s Sicko); a $350 million settlement with Lockheed, Shell Oil, Exxon and other defendants; $45 million against Ford Motor Co. on behalf of a 12-year-old boy paralyzed because of a defective seat belt in a minivan accident; a case that found that various Hollywood movie studios had engaged in “creative bookkeeping” on their blockbuster movies to minimize profit-sharing payouts; and a $1.87 billion settlement against Sempra Energy for statewide price fixing during California’s energy crisis in 2000. In November, Girardi settled with Merck for $4.85 billion on behalf of 15,000 plaintiffs in connection with the Vioxx lawsuits.

“You think the government and the FDA are taking care of you?” he asks. “Look at Vioxx. Before they sold the first tablet, the manufacturers knew Vioxx would cause clotting. When they were going to start clinical trials, a memo from their chief scientist asked, ‘Are we going to give aspirin with this? Because if we don’t, we’re going to have so many [heart attacks] it will kill the drug.’ So they knew, and didn’t give aspirin. The FDA approved it anyway. The people on the committees to approve the drugs all have ties to the pharmaceutical companies.

“The only legitimate safety the people have is trial lawyers.”

A few months ago, Girardi made a similar point when, by invitation, he stepped into the belly of the beast, and addressed the general counsels of 300 corporations.

“Putting out a good, safe product costs a lot of money. When other companies cut corners, your companies cannot compete,” Girardi told them. “By keeping them honest, or making them pay huge penalties when they cheat, we level the playing field. You need me.”

Girardi says that organizations like the Chamber of Commerce promulgate the image of “greedy lawyers.” “For them, there’s no such thing as a meritorious lawsuit. It’s always a ‘frivolous’ lawsuit.” To help counter that perception, last year he began hosting a weekly one-hour radio show, “Champions of Justice,” which brings in top California attorneys, state Supreme Court justices and other members of the legal community to discuss law-related issues. The overwhelmingly positive response, he says, has made this the “most important” thing he has done in the past year.

You might suspect that Girardi chose this field of law to avenge some great injustice inflicted upon his family when he was a child, but instead, he describes his childhood in L.A. with two younger brothers as “pretty easy,” and swears that his inspiration for studying law was watching Perry Mason on TV. His father, Al, helped design radar systems, and his mother was a traditional homemaker. “We had pasta on Thursday, roast beef on Sunday. You could set a clock by it.”

After graduating from Loyola Law School, Girardi spent a year doing a fellowship at NYU, and worked as an insurance adjuster for AllState, before returning to L.A. and opening his own firm. He basically took whatever walked in through the door. One day in 1969, what walked through the door made Girardi’s career.

Percy Williams, a 19-year-old African American, was hurt in a fight. Bon-Air Hospital, where he was brought, released him, believing he was drunk. His aunt picked him up, and the next day Williams woke up paralyzed because he’d broken his neck in the fight.

The resulting $1.4 million verdict was the first $1 million medical malpractice verdict ever. After that, referrals and calls started rolling in, and Girardi found his niche.

Despite all the high-profile mega-money cases—cases that have landed him membership in the Inner Circle of Advocates, reserved for the 100 lawyers who have obtained the largest verdicts in the U.S.—Girardi says that his most important case occurred way back in the beginning—in 1965—when he represented a middle-aged woman who was rear-ended. His mother attended the trial, and when the defense attorney aggressively cross-examined the woman and exposed that she’d been involved in six prior “accidents,” Girardi’s mother grabbed her son during the break, and scolded, “You ought to be ashamed of yourself.” She walked out, and never watched her son in court again.

“It taught me a lot,” Girardi says. “You’ve got to look into cases fairly seriously, and make sure that your people aren’t lying to you.”

His father was a different story. When Al retired from ITT at age 65, Girardi recruited him to help out around the office. For the next 27 years his dad “ran the firm,” until a broken hip forced him out at 92. Among his duties were helping with day-to-day administration, finding the best deals on supplies, and coming to court to look over jurors and giving his son sage counsel like “You know, juror No. 5 thinks you’re an asshole.”

Al, who Girardi describes as a “soft, sweet man” passed away a couple of years ago.

Robert Keese, the other name on the marquee, began as Girardi’s law clerk. While the firm has now grown to 32 lawyers, Girardi states, “No one leaves.” Indeed, there is almost unheard-of longevity among the staff. Girardi has had all of two secretaries in 42 years; Keese, one in 40. One person has answered the phone for four decades, and there are two secretaries, both 42, who began when they were 18.

Girardi attributes the remarkably low turnover to treating employees well. Similarly, he describes the firm’s approach to law as “very gentle.”

“We never make a motion if we can send a letter,” he says. “And we never send a letter if we can make a phone call. And we’re very giving to the other side. If you want to continue the case, you want to call in another expert, ‘Yes, yes, yes.’”

While this policy is based on civility, “we’ve learned there’s a lot of money in decency.”

For example, if Girardi has an expert available, he’ll volunteer to let the defense depose him right away. Civil, sure, but “that way, when the defense lawyer writes up his report to the insurance carrier or the company, we have input.”

In Erin Brockovich, Girardi’s work on the case was conflated into the character portrayed by Peter Coyote. It cast him on the side of the angels, but after the glowing reviews came out, a handful of articles, including one in The New York Times, criticized the verdict for being based on bad science, claiming that while chromium-6 was deadly if inhaled, it wasn’t shown to be particularly harmful when ingested.

But the truth turned out to be more insidious. The one study on the subject, published in 1987 by JianDong Zhang, a doctor in China, concluded that drinking it did indeed increase cancer rates. Then, in 1997, Zhang appeared to retract his conclusions, and the EPA downgraded the risk of drinking chromium-6. But in court it was shown that PG&E hired an official investigator who went to China and paid Zhang—who didn’t read English—$2,000 to sign a paper refuting his earlier study, and didn’t truthfully inform him regarding what he was signing. After Zhang died, Girardi got access to the will, which exposed the payoff. The 1997 study was discredited, and recently the EPA revised its findings.

“Can you imagine what corporate America will do instead of paying?” Girardi asks.

“There’s a huge penalty for losing an election,” says Girardi, who is lending support to both John Edwards’ and Hillary Clinton’s presidential campaigns. “Just look at the Supreme Court decisions on antitrust. The whole idea of antitrust is that corporations can’t gang up on the guy who uses their stuff. When you lessen those laws, you bless the conduct.”

Unsurprisingly, Girardi is also contemptuous of the California law that caps medical malpractice awards for pain and suffering at $250,000. “These cases require expensive medical experts to testify. The cap removes the company’s incentive to settle, so they go all the way to court. After expenses and fees, someone made blind, or who has the wrong leg cut off, gets 125 grand for life. It’s despicable.”

Girardi says he has no plans to retire, because he still finds work exciting.

“The stuff that gets me hot is when the other side intentionally tries to screw someone and we catch ’em.”

Life is not all work, though. Girardi plays golf once a week, spends time with his wife of 11 years, Erika, 35, a professional singer/dancer, and has a weekly dinner date at Madeo’s restaurant with Warren Beatty, movie mogul Steve Bing and occasional “guest stars” like Mick Jagger, who, Girardi says, “knew more about American politics than most Americans.”

And recently he began daily workouts with a personal trainer, resulting in a loss of 30 pounds. “I want to stick around for a while. I’m having too much goddamned fun.”

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