On a breezy Monday in April 2008, Megan Surber gave birth to twins at St. Luke’s Regional Medical Center in Sioux City, Iowa. She and Troy Kunkel each had kids from previous relationships, but these two were their first together, and they were excited—and a little terrified—to be new parents again. They named the boy James and the girl Jeanine.
Tragedy was about to strike the happy family, and it would reveal the aggressive tactics that Jones Day was willing to employ on behalf of a big-ticket client.
James had jaundice and had to stay in the hospital for a week. Jeanine came home after a couple of days. Megan had struggled to produce enough breast milk for both babies, and so she opted for formula.1 On the way out of the hospital, she was handed a care package filled with things like wet wipes, diapers, and Similac NeoSure liquid and powdered formula. The loot came in a Similac-branded bag.
Megan and Troy didn’t have much money. They lived in a small house, which Troy spruced up with carpet and other materials he procured through his job as a construction worker.2 Megan poured Jeanine the liquid formula first, since it was what the nurses had been giving her at the hospital. That was gone within a few days. One evening, Megan sanitized a bottle, boiled water, mixed in a couple scoops of the powdered formula, and fed Jeanine.3 Around that time, James came home from the hospital; he wasn’t served the powdered formula.
The following morning, James was peaceful, but Jeanine was crying. She wouldn’t eat. By the afternoon she was screaming and running a fever. Soon her yelling intensified into an animalistic wail. “It was like a hyena,” Megan told me. The pediatrician told her to bring Jeanine to his office. There, before Megan could even take the infant out of the car seat, the doctor instructed her, with unnerving urgency, to take Jeanine back to St. Luke’s, this time to the ER. She was exhibiting signs of meningitis.
Megan sped to the hospital. The staff performed a spinal tap, which confirmed the pediatrician’s fear: Jeanine had meningitis. The next several hours were a haze. The hospital determined that Jeanine needed to be transferred to the children’s hospital in Omaha, Nebraska, which was better equipped to handle meningitis in a newborn. An ambulance arrived, picked up Jeanine in an incubator, and zoomed off. Megan rushed home to grab a few essentials and then drove the ninety minutes down Interstate 29 to Omaha.
When Megan and Troy arrived, the doctors escorted them into a private room. They explained that Jeanine had contracted a type of meningitis that is caused by a food-borne bacteria, Enterobacter sakazakii. They showed the terrified parents images of their daughter’s brain, and compared them with images of a normal baby’s brain. The two sets of pictures looked very different. The doctors doubted Jeanine would survive the next twenty-four hours.
Megan and Troy peeked in at their daughter. “We named her Peanut because she looked like a peanut in a big old bed with all those wires and tubes,” Megan said.
The most common way for a newborn to contract this type of meningitis was through contaminated powdered formula.4 Theoretically, the bacteria could have been present in other products in Megan and Troy’s house, but Jeanine only ate the formula. Plus, James, who was also in the house but wasn’t fed the powdered formula, didn’t get sick.5
Jeanine defied the odds and survived. But the meningitis had severely damaged her brain. She would never walk or talk or eat on her own. After five months at the children’s hospital, Megan and Troy brought their daughter home in the fall of 2008. They began trying to adjust to their permanently altered life.
About two years later—around the time that German prosecutors were investigating Christian Meister’s accusations and that Jones Day was demanding that Anand Pathak give away P&A’s money—the phone rang at Megan and Troy’s house.
The stress of caring for Jeanine was taking a severe toll on their marriage. Megan and Troy were fighting. Troy in particular was struggling. He’d been so thrilled to have a daughter, to watch her grow up, to help her learn to drive, to meet her first love, to accompany her on life’s journey. Now he felt his dreams were shot. The sight of other fathers walking around with their girls on their shoulders felt like getting punched in the gut. Troy slid back into a drug habit. He hooked up with a younger woman. “We were so lost,” Troy said. “I had one foot out the door.”
Now Megan’s mother and aunt were on the phone. They had seen a slick TV ad for a personal injury lawyer named Nick Stein. “For thirty years, my capable staff and I have been helping people just like you,” Stein intoned, offering a “no-cost evaluation of your case.” Megan’s mom had taken the liberty of calling Stein’s offices at the number that flashed on her screen. Stein had sounded interested in hearing more about what had happened to Jeanine—it was possible they’d have grounds for a lawsuit. “You need to call this guy right away,” Megan’s mom instructed her. And so she and Troy phoned Stein. What did they have to lose?
The next thing they knew, Stein, who was based in Indiana, had flown into Sioux City and was sitting on their sofa. Megan and Troy introduced him to Jeanine. It turned out that Stein had worked on a number of other cases in which newborns were brain damaged after consuming bacteria-ridden powdered formula. The first case had walked in the door of his law offices several years earlier, a woman carrying a limp one-year-old who reminded Stein of a rag doll. He’d spent years on that case and ultimately negotiated a sizable settlement. More cases followed, and Stein secured settlements for them, too. The payouts were sometimes in the millions of dollars.
Sitting inside Megan and Troy’s home, Stein looked around and found the whole scene—their poverty, their little girl’s devastating brain damage—heartbreaking. He could see the family was fraying. “Just hold on a little bit longer, guys,” he urged them. The meeting ended with a group hug. For the first time in a long time, Megan and Troy felt hope.6
Similac was made by Abbott Laboratories, a multinational company headquartered outside Chicago. Stein had gone up against Abbott in the past; it was not an easy adversary. His firm comprised only himself and a couple of other lawyers, and he was getting older and wasn’t sure he had the stamina for another protracted battle. He invited a Minneapolis lawyer at a slightly larger firm to run the case. His name was Stephen Rathke, a former county attorney. After meeting Troy and Megan, Rathke enlisted a Sioux City law firm to act as local counsel.
They all agreed that a lawsuit would be filed on Jeanine’s behalf by what’s known as a conservator—in this case, Security National Bank in Sioux City. If the suit was successful, the bank would manage whatever money was collected to pay for Jeanine’s care. The setup meant nobody would be able to accuse Megan and Troy of trying to get rich off their disabled daughter. And because Megan and Troy wouldn’t be the plaintiffs, their personal histories (there were a handful of convictions and some past drug use) were less likely to become an issue.7
On February 15, 2011, Security National Bank sued Abbott in federal court, seeking $16 million in compensatory damages to cover the lifetime of costs of caring for the nearly three-year-old girl.
Abbott was ready. Since 1987, the company had been represented by a team of lawyers in Jones Day’s Chicago office.8 Abbott was an important source of business; in pitch documents seeking new customers, Jones Day cited the company as one of its leading clients.9 In the past few years alone, the law firm had sued a rival health-care company for infringing on Abbott’s patents.10 It had defended Abbott against claims that one of its prescription drugs, Lupron, had permanently disabled a teenager.11 And it had battled other lawsuits brought by the parents of children who suffered severe brain damage from meningitis after consuming powdered Similac formula.
The details of those other meningitis cases were remarkably similar to what had happened with Jeanine—right down to the fact that Abbott had provided the formula to hospitals, doctors, and parents as part of promotional campaigns designed to boost sales. In one case in rural North Carolina, a new mother was given a can and ten single-serving packets of Similac powdered formula as she left the hospital.12 In another, Abbott had sent an unsolicited mailing with four packets of powdered formula to a Louisiana family.13 In both cases, the infants had contracted meningitis.
Jones Day’s tactics in these suits were wide-ranging—but they almost always amounted to the opposite of the firm’s recommendation, more than sixty years earlier, that the East Ohio Gas Company accept responsibility for the tragic explosions. Abbott and its lawyers leveled personal attacks.* They waged procedural wars of attrition—filing motions to change venues, filing motions to disqualify lawyers, filing motions for the sake of filing motions—in the hopes of wearing down the plaintiffs. They tried to throw judges and juries off the scent by arguing that while the deadly bacteria was known to flourish in powdered formula, in theory it could’ve come from anywhere.
Jones Day’s strategy in the Kunkel case would involve a little bit of everything. The firm was not interested in settling. To manage the case, Jones Day fielded a couple of veteran litigators in its Chicago office, Dan Reidy and June Ghezzi. Reidy was the partner responsible for managing the Abbott relationship.14 Ghezzi had a specialty defending drugmakers accused of harming consumers.15
Some Jones Day lawyers regarded Ghezzi as talented but unpleasant. When the Sioux City suit was filed, she phoned an associate who was on parental leave with a two-week-old baby. “When are you coming back from leave?” were the first words out of her mouth. No congratulations, no niceties, just a return-to-work edict in the form of a blunt question. At least one longtime attorney had resigned from Jones Day in part because of what he viewed as the toxic environment Ghezzi created. Reidy, however, didn’t see it that way. He liked Ghezzi and regarded her as a gifted litigator. And so she stayed.16
Early on a Saturday morning in December 2013, a judge named Mark Bennett walked into Sioux City’s federal courthouse, in a handsome stone building that occupied most of a block. Bennett had been out of town for a speaking engagement, and he headed into his office to catch up on work. As he entered his chambers, he was surprised to see cardboard boxes stacked everywhere. His immediate thought was that maybe another judge had been assigned to move in. It didn’t make much sense, but what other explanation was there for the huge jumble of boxes?17
Another judge was not moving in. The boxes contained evidence that Jones Day wanted to be able to introduce at the upcoming trial. Bennett had been on the federal bench for decades, but he had never encountered so much evidence. A couple of days later, he convened a meeting of the lawyers on both sides. As they sat around a table in his chambers, Bennett laced into the Jones Day team for their “incredible obstructionist conduct.”18 This was an Eighth Amendment violation,19 he told them, tongue-in-cheek: It would be a cruel and unusual punishment to make anyone read even a small fraction of what was contained in the cardboard boxes littering his chambers. The printed list of the exhibits in those boxes was thicker than the Sioux City phone book.
Bennett had been around long enough to suspect what was going on. Jones Day had no intention of using most of this evidence in the trial. No, he reckoned, the firm was trying to snow the plaintiff’s lawyers with tens of thousands of pages of paperwork that they would have to sift through. Bennett also noted that the strategy may have reflected the fact that Jones Day had “a lot of associates to keep busy,” and preparing all this paperwork was a surefire way to pile up the billable hours.20
Bennett prided himself on being a discerning judge with a populist streak. The signature on his email featured Martin Luther King Jr.’s famous quote, “The arc of the moral universe is long, but it bends toward justice,” followed by a line of commentary: “But the thing of it is—it does not bend on its own.” The judge harbored a deep distrust of lawyers from large corporate firms, having seen them play all manner of barely acceptable games in his courtrooms over the years. (Dan Reidy, the Jones Day litigator, recognized Bennett’s predisposition, telling me that the judge was “deeply and irrevocably prejudiced against ‘big firms.’”)
The mountain of evidence Jones Day had dumped in his chambers was the first indication to Bennett that these lawyers were up to the usual tricks of a big-city firm. (Reidy countered that the plaintiffs were responsible for much of the evidence.) The second sign came soon afterward, when the lawyers submitted transcripts of depositions that had been conducted months earlier. Bennett was in the habit of reviewing deposition transcripts before trials began so that he could rule on any objections that had arisen during the sessions. He started flipping through one of the transcripts. “I was shocked by what I read,” he told me.
To the surprise and irritation of some of her Jones Day colleagues, Ghezzi had insisted on being present for many depositions involving Abbott employees. She did not sit idly by. Time after time, as Stephen Rathke questioned Abbott witnesses, she interrupted with objections. That was poor form, but what really got Bennett steamed as he read the transcripts was his sense that Ghezzi was using her objections to steer the witnesses’ testimony. That was potentially a violation of the federal rules of civil procedure, which require objections to be “stated concisely in a nonargumentative and nonsuggestive manner” and warn that “an excessive number of unnecessary objections may itself constitute sanctionable conduct.”21
In August 2012, Rathke had deposed two Abbott employees, a research scientist specializing in neonatal nutrition and a quality-assurance manager at Abbott’s Arizona factory. Over the course of about seven hours, Ghezzi had interrupted 115 times22—an average of one objection every three or four minutes. At one point, Rathke asked whether bacteria found in the Arizona facility might be the same bacteria that infected Jeanine. Ghezzi interrupted: “Objection—vague and ambiguous.”
“That would be speculation,” the witness echoed. Rathke rephrased. Ghezzi interrupted again. “Object to the form of the question. It’s a hypothetical; lacks facts.”
“Yeah, those are hypotheticals,” the witness parroted. Rathke rephrased the question one more time. Ghezzi: “Same objection.”
“Not going to answer,” the witness stated.
“You’re not going to answer?” Rathke asked.
“Yeah, I mean, it’s speculation. It would be guessing.”
“You don’t have to guess,” Ghezzi chimed in.
Over and over and over this tag-team routine played out.23 Sometimes Ghezzi took things a step further, instructing the witness whether and how to answer Rathke’s questions—a flagrant violation of deposition rules. Asked if she knew about Abbott’s testing procedures, one witness replied: “Very limited knowledge.”
“If it’s no, then just say no,” Ghezzi interjected.
During a break in one deposition, Rathke’s cocounsel, a Sioux City lawyer named Tim Bottaro, took Rathke aside. Ghezzi was dominating what was supposed to be the plaintiff’s deposition. “Why don’t you just let June do the deposition?” Bottaro scolded. “You’re getting steamrolled!”* Bottaro told me he never understood why Rathke didn’t more strenuously object or complain to the judge about Ghezzi’s conduct. (For his part, Rathke told me that complaining would have wasted precious time during the depositions. “I tried to relegate all of this as background noise, because I regarded it as a tactic to distract me,” he said.)
Some Jones Day associates on the case privately grumbled about Ghezzi’s antics and wondered whether she was going to get in trouble with the court. It was one thing to object, even to do so regularly. That laid the groundwork for the trial judge to block parts of a deposition from being used in court; that was fair game. Once an objection was noted for the record, the witness would still answer the other lawyer’s question. What was not fair game was constantly speaking up beyond those objections, especially in a way that influenced how the witness answered the opposing lawyer’s questions.
The depositions were important. Even before the trial, Abbott unsuccessfully sought a summary judgment ruling based in part on the depositions.24 Portions of Abbott witnesses’ depositions would be read aloud to jurors during the trial. There was no telling what the witnesses might have said if Ghezzi hadn’t been interrupting every few minutes, coaching the Abbott employees and rattling Rathke.25
Rathke’s inability to control his own depositions was bad enough. But then came Jones Day’s depositions of Megan and Troy. Megan’s lasted more than seven hours. When she and Rathke walked into the conference room where the deposition was taking place, they were met by a row of Jones Day lawyers wearing what looked like tailored suits. Megan was intimidated. The lawyers started with easy questions. How old was she? Where was she from? Then things got tougher. They spent what felt like hours asking and reasking the same set of questions about the ninety-second process of her preparing the fateful formula. “It went from nice to mean to nice to mean to nice to mean,” Megan recalled. Rathke at times tried to move the questions along, but the Jones Day lawyers shut him down.26 He slouched in his seat, looking defeated. (“I was bored,” he told me.) The more the Jones Day lawyers asked Megan the same question a different way, the more she tried to use different words to answer the questions. She just wanted this to end. “It was horrible,” she said. “They broke me.”
Then it was Troy’s turn. He had a history of drug use. When he and Megan got together, he’d quit. But after the family returned from Omaha and the reality had started to sink in that their daughter would forever be brain damaged and probably wouldn’t live past twenty, drugs had offered an escape. So had his fling with a younger woman. None of it lasted long. Troy got clean, he and the woman split up, Megan knew all about it and had forgiven him, and that was that. Except that now, sitting in that bland conference room, facing a row of Chicago lawyers in their fancy suits, they wanted to talk about this ugly period from years earlier.* It didn’t take long for Troy to explode.
At home that evening, Megan and Troy compared notes. They discussed how Rathke had appeared cowed the moment he’d come face-to-face with the Jones Day team. They were disgusted with these hired guns. “I understand they’ve got a job to do, but at some point you’ve got to have a heart,” Troy said. “They wanted to ruin the credibility of me and Megan so that little girl wouldn’t get no help.”
As the trial approached in January 2014, Rathke was feeling good. Another meningitis case had recently settled with Abbott, leaving him hopeful that he might be able to score a last-minute deal. Barring that, he was optimistic that he’d win in court. A few weeks earlier, the plaintiff’s team held a mock trial in Minneapolis with a focus group of jurors. Bottaro was there, and he warned Rathke that Minneapolis liberals were not good proxies for Sioux City conservatives. The lawyers watched the jury deliberate via a closed-circuit TV. The faux verdict came in: The “jurors” awarded $25 million in damages to the plaintiffs. Rathke embraced the TV screen, Bottaro told me.
Megan and Troy were nervous, unsure whether they’d get justice. Jeanine and James were almost six years old. Jeanine was immobile and mute and had to be fed through a tube. But the family was tough. Megan and Troy had inured themselves to the feeling of having people stare at them—looking at them like they were small, as if they had done something to bring this misfortune upon themselves—as they struggled to get Jeanine and her wheelchair out of a car.
Because they were possible witnesses, Megan and Troy weren’t allowed into court to watch the trial. It was just as well. Nobody disputed that Jeanine had been infected by Enterobacter sakazakii or that it had caused her brain damage. The question was where the bacteria came from. Rathke and his expert witnesses argued that the lone logical explanation was that it was in the powdered Similac formula. After all, that was the only thing Jeanine had consumed. And powdered formula was a known breeding ground for this exact type of bacteria.
Jones Day’s strategy was to raise doubt and to blame the plaintiff—the same playbook that the law firm had mastered when it first took on RJR as a client. Jeanine did not make an inviting target, but her parents did. Reidy used Megan’s deposition to impeach her credibility. Why had her answers kept changing? Wasn’t it possible that something other than the formula had poisoned Jeanine? The formula that the government had tested didn’t contain Enterobacter sakazakii. (The bacteria has a tendency to clump together, and it was entirely possible that the portion that Jeanine ate was contaminated even though the tested sample was clean.) What if visitors had brought the bacteria into the house? Maybe it was lurking on the bottle that Megan had used or in the water that she had mixed with the powder. Really, it could have come from anywhere.
“Abbott blames the mom, the dad, the brother, all the other relatives that might have held the baby, the family dog, the kitchen, the city’s water, the other food in the refrigerator. They even point a finger at the doctor,” Rathke told the jury during his closing arguments.
“We’re not trying to blame anybody with respect to this,” Reidy responded. “We’re trying to show where else it can come from.”27
After a two-week trial, the jury deliberated for seven hours.28 Then the verdict was announced: Abbott was not liable. Jones Day’s lawyers had managed to sow doubt about the source of the poisonous bacteria. Rathke called Megan and Troy. “I hate to tell you this, but we lost,” he said.29 They had watched plenty of legal dramas on TV, and there always seemed to be another court to appeal to, another angle to pursue. Now Troy realized that wasn’t how the real world worked. “There was nothing more we could do,” he said. Every part of the process felt like it had been stacked against them. Troy felt foolish for having had faith in the legal system to begin with.*
Bennett was not stunned by the verdict—he had been impressed by Reidy and Ghezzi’s lawyering during the trial—but he thought it was the wrong outcome. The fact that Jeanine consumed the powdered formula and got meningitis, and James didn’t get the formula and didn’t get sick, struck him as powerful evidence. (Unlike in criminal cases, where prosecutors must prove the defendant’s guilt beyond a reasonable doubt, the threshold in civil trials is lower: The plaintiffs need to show that a “preponderance of the evidence” supports their claim—in other words, that it is more likely than not to be true.) “I thought it should have come out the other way,” Bennett told me. “If it had been a bench trial, I would have ruled for the plaintiffs in all likelihood.”
The verdict might have been the end of the matter, except that Bennett was still seething about what he’d seen when he’d read the deposition transcripts. At one point during the trial, Bennett had called out Ghezzi for making meritless objections as Rathke questioned a witness on the stand. “Well, I’m sorry, Your Honor,” Ghezzi had replied, “but that was my training.”30 Bennett heard that as an admission that Ghezzi had learned her techniques at Jones Day, confirming his suspicions about the underhanded, win-at-all-costs tactics that were rife at corporate law firms. “Their conduct was not pushing the envelope. It was burning up the envelope completely,” Bennett told me. “I thought their conduct was appalling. It was the worst by a factor of ten” that he had seen as a judge.
During his two-decade career on the bench, Bennett had only rarely punished lawyers for misbehavior. But he thought Ghezzi’s actions warranted sanctions. Normally such a punishment would be in the form of a fine. But Bennett doubted that would do much to deter other lawyers, especially Ghezzi’s colleagues at Jones Day, who he figured had been schooled in the same obstructionist tactics.
Bennett wanted to really send a message—to the whole corporate bar. He was sick of these slick, high-priced lawyers prancing into federal courtrooms and then stomping all over attorneys from the government or small firms that weren’t bankrolled by multinational companies. So he got creative.31 He ordered Ghezzi (or another partner at Jones Day) to produce a training video in which she explained the impropriety of her objections and witness-coaching.
The unusual punishment got everyone’s attention, just as Bennett had hoped. (A federal appeals court later overturned it on technical grounds without ruling on whether Ghezzi’s conduct was sanctionable.*) Bennett soon was fielding emails from lawyers nationwide thanking him for taking a public stand against abusive discovery and deposition practices by big law firms.32
In Boston, Dick Daynard, a law professor at Northeastern University, began using the episode as a teaching aid. After discussing the case and Ghezzi’s conduct with his students, he’d pose a question: Back when Ghezzi was in law school, had she envisioned a future in which she would use dubious tactics to defend a giant company against a poor family whose child had been brain damaged? Was that her goal as an aspiring lawyer? No? “So how do you keep yourself from doing that?” Daynard would ask.
In each class, Daynard told me, the students would spend time batting around various ideas before eventually arriving at a version of the same answer. The solution, they concluded, was that throughout your career, you had to periodically ask yourself two simple questions: Am I proud of the work I’m doing? Am I the person I want to be?
At 8:30 on a brisk Thursday morning, a few days after Jeanine’s thirteenth birthday, I connected with Megan and Troy over FaceTime. Megan was in the back, smoking a cigarette. She had just returned from an early morning shift—4:30 a.m. to 8:00 a.m.—sanitizing the MidAmerican Energy offices in Sioux City, wiping down phones, toilets, door handles to make the place safe for workers during the pandemic. Troy would be heading there from noon to about 6:00 p.m. to do a general clean and another sanitization. They needed to work these hours so they could take care of Jeanine in between nursing shifts.
The family had moved to a cramped three-bedroom house in a converted army barracks out by the Sioux Gateway Airport. Their walls were decorated with intricate dream catchers that Megan had collected. Two cats, Phoebe and Smokey, stalked the house, and a brown boxer, Scrappy, loafed on a couch.
Jeanine was in bed, which is where she spent most of each day, clutching two Elmo dolls. Daniel Tiger’s Neighborhood was playing on a small TV. Jeanine was wearing a black and white sweater and had a bow in her hair. A blue glove covered her left hand to discourage her from chewing her fingers. A few stuffed animals dangled from a contraption mounted over her bed; in the mornings, when she woke up, she liked to swat at the toys and watch them move. “She understands cause and effect,” Megan told me.
Jeanine was laughing and cooing and gurgling, and her open-mouthed smile illuminated her colorful bedroom. “She’s basically in a permanent baby phase,” Megan explained. Jeanine couldn’t swallow, but sometimes Megan and Troy put small bits of frosting or ice cream into her mouth, causing Jeanine to lift her arms and kick her feet. “That girl gets a sugar high,” Troy boasted.
I asked what would be different if they had prevailed in their lawsuit against Abbott. “Well, nothing,” Troy said at first. Their daughter would still be brain damaged, their lives would still be hard. He paused. Then he started ticking off the things that, in fact, would be much different.
They would have a medically equipped house designed for someone in a wheelchair.
They could afford to replace their 1998 Chevy’s broken wheelchair lift, which had electrical problems and was leaking hydraulic fluid.
They could get Jeanine new wheelchairs as she grew, rather than waiting five years for insurance to pay for one.
They wouldn’t have to worry about becoming ineligible for government services if they started earning a little more money.
They could have paid the physical therapists to keep coming. Troy had heard of situations where someone with a terrible injury was never supposed to walk again and then ended up walking again with hard work and a lot of help. “Without that money, she lost that opportunity,” he sighed.
As we talked, a nurse was preparing to pour a bottle of PediaSure into Jeanine’s feeding tube, one of her six daily meals. PediaSure is made by Abbott. Troy shook his head with disgust. “Every time you have to open one of those bottles,” he said, “it’s a slap in the face.”