The Litigators

CHAPTER 39


The second jury was comprised of seven men and five women. Of the twelve, half were white, three were black, two were Asian, one was Hispanic. It was slightly more blue-collar and slightly heavier as a whole. Two of the men were uncomfortably obese. Nadine Karros had decided to use her peremptory challenges to exclude fatties instead of minorities, but she had been overwhelmed by the sheer abundance of girth. Consuelo was convinced that this jury was far more to their liking than the first.

Monday morning, as Wally stood and made his way to the podium, David held his breath. He was on deck, and another heart attack would force him into the lineup against overwhelming competition. He was pulling mightily for the junior partner. Though Wally had lost a few pounds frolicking with DeeAnna, he was still pudgy and unkempt. As far as heart attacks go, he appeared to be a much likelier candidate than Oscar.

Come on, Wally, you can do it. Give ’em hell and please don’t collapse.

He did not. He did a passable job of outlining their case against Varrick Labs, the third-largest drugmaker in the world, a “mammoth corporation” based in New Jersey, a company with a long, deplorable history of littering the market with bad drugs.

Objection by Ms. Karros. Sustained from the bench.

But Wally was careful, and with good reason. When a stray word or two can cost you upward of $10,000, you tiptoe lightly around anything you’re not sure of. He repeatedly referred to the medicine not as Krayoxx but rather as “this bad drug.” He rambled at times but for the most part stayed on script. When he finished thirty minutes after he started, David was breathing again and whispered, “Nice job.”

Nadine Karros wasted no time in defending her client and its product. She began with a lengthy, detailed, but quite interesting list of all the fabulous drugs Varrick Labs had brought to the market over the past fifty years, drugs that every American knew and trusted, and some that most had never heard of. Drugs that we give to our children. Drugs we consume with confidence every day. Drugs synonymous with good health. Drugs that prolong lives, kill infections, prevent diseases, and so on. From sore throats and headaches to cholera outbreaks and AIDS epidemics, Varrick Labs had been on the front lines for decades, and the world was a better, safer, and healthier place because of it. By the time she finished with Act One, many of those in the courtroom would have taken a bullet for Varrick.

Switching gears, she dwelled on the drug at hand, Krayoxx, a drug so effective that it was prescribed by doctors—“your doctors”—more than any other cholesterol drug in the world. She detailed the extensive research that had gone into developing Krayoxx. Somehow, she made clinical trials sound interesting. Study after study had proven the drug to be not only effective but safe. Her client had spent $4 billion and eight years researching and developing Krayoxx, and it stood proudly behind this wonderful product.

Without staring, David watched the faces of the jurors. All twelve followed every word. All twelve were becoming believers. David himself was being persuaded.

She talked about the experts she would call to testify. Eminent scholars and researchers, from such places as Mayo Clinic, Cleveland Clinic, and Harvard Medical School. These men and women had spent years studying Krayoxx and knew it far better than the “lightweights” the plaintiff would present.

Wrapping up, she was confident that when all the proof had been heard, they, the jurors, would have no trouble understanding and believing there was absolutely nothing wrong with Krayoxx, and they would retire and reach a quick verdict for her client, Varrick Laboratories.

David watched the seven men as she walked away. All fourteen eyes followed her closely. He glanced at his watch—fifty-eight minutes—and the time had flown.

Two large screens were erected by technicians, and as they worked, Judge Seawright explained to the jury they were about to watch the deposition of the plaintiff, Ms. Iris Klopeck, who could not attend due to health reasons. Her deposition had been taken and recorded by video on March 30 in a hotel in downtown Chicago. The judge assured the jury this was not unusual and should not influence their opinion in any way.

The lights were dimmed, and suddenly there was Iris, much larger than life, frowning at the camera, frozen, clueless, stoned. The depo had been heavily edited to remove what was objectionable and the squabbles between the lawyers. After breezing through all the background material, Iris got to the topic of Percy. His role as a father, his work history, his habits, his death. Exhibits were offered and flashed onto the screen: a photo of Iris and Percy splashing in the water with little Clint, both parents already morbidly obese; another photo of Percy at the grill with friends around, all preparing to devour bratwurst and burgers on July 4; another of him sitting in a rocker with that orange cat in his lap—rocking, it seemed, was his only exercise. The images soon ran together and formed a picture of Percy that was accurate but not pretty. He’d been a very large man who ate too much, never broke a sweat, was a slob, died too young, with the cause of death fairly obvious. At times, Iris became emotional. At times, she was practically incoherent. The video did little to arouse sympathy. But as her trial team knew so well, it was a much better presentation than having her there in person. Edited, it ran for eighty-seven minutes, and everyone in the courtroom was relieved when it was over.

When the lights came on, Judge Seawright declared it was time for lunch and they would reconvene at 2:00 p.m. Without a word, Wally vanished with the crowd. He and David had planned to have a quick sandwich in the building and plot strategy, but David gave up after fifteen minutes and left to eat alone in the café on the second floor of the building.

Oscar was out of the hospital and convalescing in Wally’s apartment. Rochelle checked on him twice a day—still no sign of his wife or daughter. David called him with a brief update on the start of the trial and put a positive spin on things. Oscar feigned interest, but it was obvious he was happy to be where he was.

At 2:00 p.m., the courtroom came to order. The bloodletting was about to begin, and Wally seemed remarkably at ease. “Call your next witness,” the judge said, and Wally reached for his notepad. “This will be ugly,” he whispered, and David caught the unmistakable odor of freshly consumed beer.

Dr. Igor Borzov was led to the witness stand, where the bailiff presented a Bible to help with the swearing in. Borzov looked at the Bible and began shaking his head. He refused to touch it. Judge Seawright asked if there was a problem, and Borzov said something about being an atheist. “No Bible,” he said. “I don’t believe it.”

David watched in horror. Come on, you quack, for a $75,000 fee the least you can do is play along. After an awkward delay, Judge Seawright told the bailiff to lose the Bible. Borzov raised his right hand and swore to tell the truth, but by then the jury had already been lost.

Working from a carefully worded script, Wally led him through the rituals of qualifying an expert. Education—college and med school in Moscow. Training—a residency in cardiology in Kiev, a couple of hospitals in Moscow. Experience—a brief stint on staff at a community hospital in Fargo, North Dakota, and private practice in Toronto and Nashville. The night before, Wally and David had rehearsed with him for hours, and they had pleaded with him to speak as slowly and clearly as possible. In the privacy of their office, Borzov was somewhat comprehensible. On center stage, though, and in a tense courtroom, Borzov forgot their pleas and delivered his rapid-fire responses in an accent so thick it barely resembled English. Twice the court reporter called time-out for clarification.

Court reporters are brilliant in their ability to digest mumblings, speech impediments, accents, slang, and technical vocabulary. The fact that she couldn’t follow Borzov was devastating. The third time she interrupted, Judge Seawright said, “I can’t understand him either. Do you have an interpreter, Mr. Figg?”

Thanks, Judge. Several of the jurors were amused by the question.

Wally and David had actually discussed the hiring of a Russian interpreter, but that discussion had been part of a broader plan to forget Borzov, forget any expert, forget all witnesses as a whole, and simply not show up for the trial.

After a few more questions, Wally said, “We tender Dr. Igor Borzov as an expert witness in the field of cardiology.”

Judge Seawright looked at the defense table and said, “Ms. Karros?”

She stood and with a wicked smile replied, “We have no objections.”

In other words, we’ll help feed him all the rope he needs.

Wally asked Dr. Borzov if he had reviewed the medical records of Percy Klopeck. He replied with a clear yes. For half an hour, they discussed Percy’s dismal medical history, then began the tedious process of admitting the records into evidence. It would have taken hours if not for the remarkable cooperation of the defense. Ms. Karros could have objected to a lot of the material, but she wanted everything laid out for the jurors. By the time the four-inch-thick file was admitted, several of them were struggling to stay awake.

The testimony improved dramatically with the aid of a greatly enlarged diagram of a human heart. It was presented on a large screen, and Dr. Borzov was given wide latitude in describing it for the jury. Walking back and forth in front of the screen, and with the aid of a pointing stick, he did a decent job of describing the valves, chambers, and arteries. When he said something that no one understood, Wally helpfully repeated it for the benefit of the others. Wally knew this would be the easy portion of his testimony, and he took his time. The good doctor seemed to know his stuff, but then any second-year med student was well versed in this material. When the tutorial was finally finished, Borzov returned to the witness stand.

Two months before he died in his sleep, Percy had undergone his annual physical, complete with EKG and echocardiogram, thus providing Dr. Borzov with something to talk about. Wally handed him the echo report, and the two spent fifteen minutes discussing the basics of an echocardiogram. Percy’s showed a marked decrease in the regurgitation of blood from the left ventricle chamber.

David took a deep breath as lawyer and witness waded into the minefield of technical, medical jargon. It was a disaster from the very beginning.

Krayoxx supposedly damaged the mitral valve in such a way that it impeded the flow of blood as it was being pumped out of the heart. In an attempt to explain this, Borzov used the term “left ventricle ejection fraction.” When asked to clarify this for the jury, Borzov said: “The ejection fraction is actually the ventricular volume at end-diastole minus end-systole, the ventricle volume, and that divided by the total volume times one hundred is the ejection fraction.” Such language was incomprehensible to laymen when delivered in slow, precise English. Out of Dr. Borzov’s mouth, it was nothing but gibberish and sadly comical.

Nadine Karros rose and said, “Your Honor, please.”

Judge Seawright shook his head as if he’d been slapped and said, “Come on, Mr. Figg.”

Three of the jurors were glaring at David as if he had insulted them. A couple were suppressing chuckles.

Treading water, Wally asked his witness to speak slowly, clearly, and, if possible, in easier language. They plodded along, Borzov trying his best, Wally repeating virtually everything he said until some clarity was achieved, but not much and not nearly enough. Borzov discussed the grading of mitral insufficiency, the regurgitation of the left atrial area, and the level of severity of the mitral regurgitation.

Long after the jury gave up, Wally asked a series of questions about the interpretation of the echocardiogram, and it prompted this response: “If the ventricle was totally symmetrical and had no discrepancies in the wall motion or geometry, it would be a prolate ellipsoid. Just defines flat end and pointed end and gentle curve, an ellipsoid fraction. So the ventricle would contract down, would still be a prolate ellipsoid, but all walls would move except the plane of mitral valve.”

The court reporter raised her hand and blurted, “I’m sorry, Your Honor, but I’m not getting this.” Judge Seawright’s eyes closed, his head was down, as if he, too, had given up and just wanted Borzov to finish and get out of the courtroom.

“Fifteen-minute recess,” he mumbled.

Wally and David sat silent before two untouched cups of coffee in the small café. It was 4:30 Monday afternoon, and both felt as though they’d spent a month in Seawright’s courtroom. Neither wanted to see it again.

While David was stunned by Borzov’s thoroughly discreditable performance, he was also thinking about Wally’s drinking. He wasn’t drunk and didn’t appear under the influence, but any return to the bottle for an alcoholic was troubling. He wanted to quiz him, to see if he was okay, but the place and time seemed inappropriate. Why bring up such a dreadful subject under such miserable circumstances?

Wally stared at a spot on the floor, motionless, off in another world.

“I don’t think the jury is with us,” David said offhandedly, no effort at humor. But Wally smiled and said, “The jury hates us and I don’t blame them. We won’t make it past summary judgment. As soon as we finish our case, Seawright will throw us out of court.”

“So a quick end? Can’t blame him for that.”

“A quick and merciful end,” Wally said, still staring at the floor.

“What will it mean for the other issues, like sanctions and malpractice?”

“Who knows? I think the malpractice cases will go away. You can’t get sued just because you lose a case at trial. Sanctions, though, could be another story. I can see Varrick going for our jugulars, claiming the case had no merit.”

David finally took a sip of coffee. Wally said, “I keep thinking about Jerry Alisandros. I’d like to catch him in an alley and beat him senseless with a baseball bat.”

“Now that’s a pleasant thought.”

“We’d better go. Let’s finish with Borzov and get him out of here.”

For the next hour, the courtroom suffered through the tortuous process of watching the video of Percy’s echocardiogram while Dr. Borzov attempted to describe what they were seeing. With the lights dimmed, several of the jurors began to nod off. When the video ended, Borzov returned to the witness chair.

“How much longer, Mr. Figg?” the judge asked.

“Five minutes.”

“Proceed.”

Even the flimsiest of cases require certain magical language. Wally wanted to slip it in quickly while the jury was comatose and, just maybe, the defense was ready to go home. “Now, Dr. Borzov, do you have an opinion, based on a reasonable degree of medical certainty, as to the cause of the death of Mr. Percy Klopeck?”

“I do.”

David was watching Nadine Karros, who with little effort could have excluded any and all expert opinions from Borzov on numerous grounds. She seemed to have no interest in doing so.

“And what is that opinion?” Wally asked.

“My opinion, based on a reasonable degree of medical certainty, is that Mr. Klopeck died of acute myocardial infarction, or heart attack.” Borzov offered this opinion slowly, his English much clearer.

“And do you have an opinion as to the cause of his heart attack?”

“My opinion, based on a reasonable degree of medical certainty, is that the heart attack was caused by an enlarged left ventricle chamber.”

“And do you have an opinion as to what caused the enlargement of the left ventricle chamber?”

“My opinion, based on a reasonable degree of medical certainty, is that the enlargement was caused by the ingestion of the cholesterol drug Krayoxx.”

At least four of the jurors were shaking their heads. Two others looked as though they wanted to stand and yell obscenities at Borzov.

At 6:00 p.m., the witness was finally excused and the jury sent home.

“Adjourned until nine o’clock in the morning,” Judge Seawright said.

Riding back to the office, Wally fell asleep in the passenger’s seat. Stuck in traffic, David checked his cell phone, then went online to check the market. Varrick’s stock had jumped from $31.50 to $35.00.

News of the company’s imminent victory was spreading fast.