NEW YORK CITY – John Simmons and his firm spend $15 to $20 million a year on advertising, his former chief executive testified at the criminal trial of former New York State Assembly Speaker Sheldon Silver on Nov. 10.
Greg Kirkland testified that the firm employs about 200 persons, which would mean that the firm spends $75,000 to $100,000 per employee on advertising.
Kirkland testified that the firm’s settlements of mesothelioma suits average $1 million.
He testified that 13 years ago, when Simmons hired him, the firm spent $2 to $3 million on advertising and the firm’s mesothelioma settlements averaged $200,000 to $300,000.
He also testified that he worked for the firm, in past tense, though he didn’t say when he left or why.
The finances of the Simmons firm turned into evidence at a criminal trial because Robert Taub, a doctor who once referred mesothelioma patients to Silver, later referred them to Simmons.
Federal prosecutors allege that Taub referred patients to Silver in exchange for state funding of his mesothelioma research center at Columbia University.
The trial has turned into a lesson for jurors on the wealth that mesothelioma cases produce.
Prior to Kirkland’s testimony, New York City lawyer Arthur Luxenberg testified that Silver brought Taub’s referrals to his firm but did not reveal that he awarded state funds to Taub.
Luxenberg, a partner in Weitz and Luxenberg, often looked at Silver instead of the jury when answering questions.
He testified that the firm hired Silver, “for prestige and honor, to help the name of the firm.”
“We didn’t think he would use his position at all to bring in cases,” Luxenberg said.
“I never met Doctor Taub,” he said.
Prosecutor Howard Master asked when Silver asked the firm to support Taub’s foundation.
“I don’t recall discussing mesothelioma research with Sheldon,” Luxenberg said.
Master asked if he learned of a reduction in referrals from Silver.
Luxenberg said Silver indicated that another firm gave Taub money. Master asked who.
“He told me that the Simmons firm had made a contribution to the foundation,” Luxenberg said.
Luxenberg said Silver told him his referrals would continue. He said Silver was unconcerned.
Master said, “He said that?”
Luxenberg said, “He did.”
Prosecutor Andrew Goldstein then called Kirkland to the stand, as a surprise substitute for Simmons.
Goldstein asked Kirkland why mesothelioma cases are most valuable.
Kirkland said, “The only way to get it is asbestos.”
Goldstein asked if the firm set up a foundation.
Kirkland said it started in 2009.
Goldstein asked if he knew Taub.
Kirkland said, “I knew he treated our clients in the past but I didn’t know him.”
Goldstein displayed an agreement for the Simmons foundation to give Taub’s employer, Columbia University, $3,150,000 over five years.
The agreement stated that the Simmons foundation would give the money in honor of Taub.
Kirkland said, “That’s how Dr. Taub and the university wanted it.”
The agreement allowed the Simmons foundation to discontinue its support if Taub ceased working for Columbia.
Kirkland said, “Our relationship was with Dr. Taub. We wanted to support his research.”
Goldstein asked if Taub referred patients to the Simmons firm prior to the agreement, and he said no. Taub began referring patients “a few weeks” after the agreement, Kirkland said.
When asked why the referrals were valuable, Kirkland said asbestos litigation was competitive.
Goldstein quoted Simmons firm email that it was critical to schedule an appointment with a potential client, and he asked why.
“The faster you can get to the living room and sign them, the more successful you are,” Kirkland said.
Goldstein displayed a list of 29 cases that Taub referred to the Simmons firm, and asked how many chose not to use the firm.
Kirkland said three.
Goldstein asked if he was familiar with Sheldon Silver.
Kirkland said Silver told him he referred cases to Weitz and Luxenberg.
Goldstein asked about the firm’s relationship with Weitz and Luxenberg.
Kirkland said they were competitors but Simmons referred some cases to them.
Goldstein asked what Taub’s view of them was.
Kirkland said, “Dr. Taub wasn’t too fond of Weitz and Luxenberg because they didn’t support research.”
Goldstein asked when he learned that the American Cancer Society would honor Taub.
Kirkland said in 2011.
Goldstein asked what Taub asked for.
Kirkland said he wanted the firm to sponsor a room for $100,000.
He said the firm sponsored a table for $6,000.
Goldstein asked if Silver was at the Simmons table, and Kirkland said yes.
“I thought it was a little peculiar, strange,” Kirkand said.
Goldstein asked why, and Kirkland said because Weitz and Luxenberg was a competitor.
Goldstein asked about Miles for Meso.
Kirkland said it was a five kilometer race that Simmons sponsored in Alton and at four or five other places around the country.
He said they talked about doing one in New York.
Goldstein asked if Taub tried to help.
Kirkland said Taub asked Silver to have the race in his district, in lower Manhattan.
Goldstein asked if he met with Silver about it.
Kirkland said they met in Silver’s Assembly office in lower Manhattan in 2011.
“We decided not to pursue it,” Kirkland said. He said holding a race in New York City was different from doing it in Alton.
“It was naïve on our part,” Kirkland said.
On cross examination, defense counsel Stephen Molo asked if Silver was at the Cancer Society benefit as Taub’s friend.
Kirkland said yes.
Molo asked if Simmons hired lawyers away from Weitz and Luxenberg, and Kirkland said yes.
Molo asked if doctors provided five percent of the firm’s referrals.
Kirkland said, “If that.”
Molo asked if Taub discussed funds he received from various sources other than New York State, and Kirkland said no.
“Did you doubt that he wanted to relieve the suffering of mesothelioma patients?” Molo asked.
“No, I have no doubt,” Kirkland said.
Molo asked if Simmons gave Taub $3,150,000 as a quid pro quo, and Kirkland said no.
On re-direct, Goldstein asked if the firm expected referrals from Taub.
“We hoped we would get referrals by promoting research,” Kirkland said.
Goldstein asked where money for Taub’s foundation came from.
“Profits after taxes,” Kirkland said.
The trial filled the court of District Judge Valerie Caproni.
Jurors acted restless and bored, especially on Monday, Nov. 9, when prosecution witnesses dwelt for hours on Assembly procedures.
Each time Caproni summoned lawyers for sidebar conferences, four or five jurors gratefully sprang from their seats to stretch, chat and laugh.
On Tuesday afternoon, at least three of them fell asleep.