To be sure, Mr. Misny is not talking about 675 individual cases, nor about cases that went to trial. But he said he has settled cases for that many people since the beginning of August. Nearly all the cases were against pharmaceutical companies, with the plaintiffs claiming harm by prescription drugs.
The deluge of business is all because of a hunch Mr. Misny said he developed in early 2007. That was when he started thinking the U.S. Supreme Court was not going to continue to allow pharmaceutical companies to shield themselves from liability lawsuits using the so-called “pre-emption defense.” The concept essentially allowed the companies to avoid product liability suits, including in some cases where they failed to warn patients of possible side effects, because the drugs were approved by the U.S. Food and Drug Administration.
The pre-emption defense made it almost impossible to win a case against a drug company, Mr. Misny said. But he had a notion that the defense was going to be wiped out by the Supreme Court, in part because legislators at the time were stating publicly that Congress did not intend for the FDA to grant drug and medical device makers such a broad defense from lawsuits.
He correctly predicted the outcome of a landmark case, known as Wyeth v. Levine, in which the high court in March 2009 ruled 6-3 that FDA approval did not shield companies from lawsuits.
By that time, Mr. Misny's money was on the table. He'd mortgaged his house and raised a few million dollars, all of which he spent on television advertising around the country, seeking clients whose cases would benefit from — or even be made possible by — just such a ruling.
“I made a huge bet,” Mr. Misny said, noting that he advertised in big markets in about 16 states. He asked viewers if they had taken certain drugs and had certain conditions later — and promised to “make them pay” if plaintiffs brought him their claims against the drug makers.
Grudging respect
Even some defense attorneys for the pharmaceutical companies concede Mr. Misny made a smart bet and that the Wyeth ruling was every bit as big and important as Mr. Misny envisioned and now claims.
“I hate to give Tim any credit for anything, but he's right,” said Cincinnati attorney Brian Goldwasser, with a long pause and a chuckle.
The ruling affected makers of drugs and medical devices, both of which Mr. Goldwasser represents as a partner with the Cleveland-based Reminger law firm. The entire industry was surprised at the ruling, he said.
“It used to be pretty much that, since drug companies have to do so much clinical testing before a drug is submitted (for FDA approval), that almost any claim based on a failure to warn was pre-empted,” Mr. Goldwasser said.
With the ruling, plaintiffs' attorneys began actively seeking clients with claims against drug companies. By then, though, Mr. Misny already had lined up about 1,000 clients who had contacted him as a result of his advertising.
The goal, he said, was never to engage in long, drawn-out trials. It was to get the companies to pay as much and as quickly as possible, sometimes for clients who desperately needed the money for medical treatments or were dying from problems with the drugs they took, Mr. Misny said.
In other words, the goal was to settle, which is how the cases generally have been resolved so far. The client receives 60% of the proceeds and Mr. Misny gets the rest — often splitting his share with the outside law firms to which he assigns most of the case work.
But actual negotiations are done personally by him, Mr. Misny said. He negotiates for groups of clients that have taken a single drug, such as Avandia or Accutane, and about five such groups account for most of those 675 cases he's recently settled, he said.
Mr. Misny still handles car accident cases, worker injury cases and the other sorts of personal injury cases he's been doing since 1981, but the pharmaceutical cases now make up the largest portion of his work.
He's mad for Max
Mr. Misny's skill, he said, is in analyzing a case initially to see if it can win a settlement, then building up a case that will convince the defendant to pay.
Mr. Misny won't say how much he makes on the average case or how much he's made to date. He wryly cites “confidentiality clauses” in his settlements. He'll only say that he spent a few million dollars on advertising and that he made many times that back in his share of the settlements to date. He also has gained some national fame and notoriety; you can even find parodies of some of Mr. Misny's commercials on Comedy Central's web site and, of course, YouTube.
Mr. Goldwasser, however, said he has not seen Mr. Misny advertise in Cincinnati. He said he's only aware of him because he grew up here and saw Mr. Misny's local advertisements.
Mr. Misny said he already was wealthy, even before the spate of recent settlements, from 30 years of lawyering and 20 years of advertising, mostly in Northeast Ohio before he went national. His web site touts several victories in which he and his clients settled for awards in excess of $1 million, all before the current round of pharmaceutical cases.
He isn't shy about showcasing the wealth his career has brought and seems to relish showing guests around his estate, complete with deer, turkey, red fox and streams stocked with trout.
The place was built during Cleveland's industrial heyday of the early 20th century, was later owned by the wealthy Prescott family and then by well-known industrialist Harry Figgie. The main house — there's also a guest house — is about 16,000 square feet, he said, and about one-fourth of it is the third floor, which consists entirely of themed playrooms for Mr. Misny's infant son, Maximilian.
“Max,” as he's known in Misnyland, even got to go to the Vatican for his baptism, thanks to a promise Mr. Misny and his wife, Stephanie, made to each other on a visit to Rome before he was born. Highlights of that event are available to the world in a video on Mr. Misny's web site.
But Mr. Misny is not particularly extravagant in his personal style.
“I don't think I've bought any new clothes in two or three years,” he joked.
A long way from Euclid
He roams the estate in his pickup truck, often smoking cigars as his dogs, a Doberman and a pug, ride in the back. It's his only vehicle, and it has all the smells and discarded wrappers of a teenager's Saturday night out.
“I called the dealership and said, "What's a good vehicle for plowing snow.' They said, "A Ford F-150,' so I said "Send one over.' They said, "What color?' and I said, "Surprise me.'”
Nor is he as hard-nosed as one might imagine. His volume jumps at time, echoing from within his 6-foot-5 frame as if a courtroom persona has overtaken him while he runs off on passionate tangents about victims' rights or the callousness of some drug companies. But then he'll talk about something such as the trout in the streams on his property. Originally, he bought them because he liked a recipe that called for fresh trout.
“Then, we started naming them,” he said.
Ultimately, with the exception of a few meals stolen by local heron, the trout have not been eaten. Instead, there are pellet dispensers alongside the stream so they can be easily fed.
With regards to business, though, Mr. Misny has always been aggressive.
He grew up in a “one-bedroom bungalow in Euclid,” he said, sharing an attic room with his older brother, Tom. He scrubbed toilets and trash cans at a local golf course to raise money for his high school tuition at St. Joseph. When, as a child, his grandmother took him through the Terminal Tower in downtown Cleveland and told him he'd have a law office there some day, he didn't doubt for a minute she was right, he said.
The law office ended up in Kirtland, where Mr. Misny employs six paralegals to help him wade through the constant inflow of potential new cases and to manage existing ones.
Going forward, Mr. Misny said he'll likely grow the firm but will remain its only attorney. He'll add more co-counsels with which to share cases, he said, but not partners. The presence of partners, he said, would make it difficult to make the bet he made on pharmaceutical lawsuits, since some partners might not have shared his sense of the direction of the law.
As for being a pariah, Mr. Misny said he knows a lot of people don't like personal injury attorneys. That's fine with him. Ask him if he cares that people call him an ambulance chaser and he offers a pat answer.
“Let's not talk about my family,” he said with a laugh.
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