By Andrew Jacobson

The first question plaintiff lawyers ask when a new lawsuit comes their way is “where are the deep pockets?” Suing the villain is fine, but winning only gets a piece of paper called a judgment. You need to sue and beat someone with money to pay for a judgment – deep pockets. Sometimes, when the villain is bad (and poor) enough, there are no deep pockets. Sara Montague found out the hard way earlier this year when the California 4th Appellate District denied her appeal against her poisoner’s employer.

Not the path to prosperity. Photo courtesy of Wikipedia Commons, licensed by Bartolomeo1978 under Creative Commons License 3.0.

Ms. Montague was a Kaiser medical assistant. At one point, she had a disagreement about an exam room inventory with another assistant, Teresa Drummond, who was at Kaiser under contract with a staffing agency called Nursefinders. Ms. Montague did not think the disagreement was serious enough to mention to anyone. However, the argument upset Ms. Drummond: later, she spiked Ms. Montague’s personal water bottle with phenol, a weak acid also known as carbolic acid. It was enough to slightly burn Ms. Montague’s throat, and caused her to vomit. Ms. Montague had an apparently airtight case against Ms. Drummond, but that was not where the money was: she needed to get Nursefinders on the hook.

Normally, an employer is liable for everything its employee does in the course of employment. If Ms. Drummond had been carrying the phenol as part of her job and spilled some of it on Ms. Montague, Nursefinders would be liable for Ms. Drummond’s mistake.
However, Ms. Drummond deliberately poured the phenol into Ms. Montague’s water bottle; it was not a mistake. This intentional act was not part of the job, and Nursefinders’ pockets remained undisturbed. Like Romeo Montague of Romeo and Juliet, Ms. Montague found that poison does not equal prosperity.