The Litigators

CHAPTER 44


At exactly 9:00 on Thursday morning, a bailiff called the court to order and all rose for the entrance of His Honor. When the jury was in place, he said abruptly, “Continue, Mr. Zinc.”

David rose and said, “Your Honor, the plaintiff rests.”

Judge Seawright was not at all surprised. “Lost some more witnesses, Mr. Zinc?”

“No sir. We’ve simply run out of them.”

“Very well. A motion, Ms. Karros?”

“No, Your Honor, we are ready to proceed.”

“I suspected that. Call your first witness.”

David suspected it too. He had allowed himself to believe that the trial would end abruptly that morning, but it was obvious Nadine and her client smelled blood. From there on, he would have little to do but listen and watch a real courtroom lawyer.

“The defense calls Dr. Jesse Kindorf.” David glanced at the jurors and saw several smiles. They were about to meet a celebrity.

Jesse Kindorf was a former surgeon general of the United States. He held the position for six years and was brilliantly controversial. He castigated tobacco companies on a daily basis. He held large press conferences in which he exposed the fat and caloric content of popular fast foods. He released scathing condemnations against some of the most trusted names in corporate America, consumer product companies that were flat-out guilty of producing and marketing mass quantities of highly processed foods. At various times during his tenure, he was on the warpath fighting butter, cheese, eggs, red meat, sugar, soft drinks, and alcohol, but his most famous brouhaha occurred when he suggested a ban on coffee. He thoroughly enjoyed the spotlight, and with his good looks, athletic build, and quick wit he became the most famous surgeon general in history. The fact that he had crossed the street and was now testifying on behalf of a major corporation was a clear signal to the jurors that he believed in the drug.

And he was a cardiologist, from Chicago. He took the stand and flashed a smile at the jury, his jury. Nadine began the arduous process of going through his credentials in order to have him qualified as an expert. David quickly jumped to his feet and said, “Your Honor, we are happy to stipulate that Dr. Kindorf is an expert in the field of cardiology.”

Nadine turned, smiled, and said, “Thank you.”

Judge Seawright growled, “Thank you, Mr. Zinc.”

The gist of Dr. Kindorf’s testimony was that he had prescribed Krayoxx to thousands of his patients over the past few years, with no side effects whatsoever. The drug worked beautifully for about 90 percent of his patients. The drug dramatically lowered cholesterol. His ninety-one-year-old mother was on Krayoxx, or was until it was pulled by the FDA.

The paralegal scribbled a note on her legal pad and handed it to her boss: “Wonder how much they’re paying him?”

David scribbled back as if they were discussing a major flaw in the testimony. “A lot.”

Nadine Karros and Dr. Kindorf worked their way through a flawless round of batting practice. She served up the fat pitches, he knocked them out of the park. The jury wanted to cheer them on.

When Judge Seawright asked, “Any cross-examination, Mr. Zinc?” David rose and politely said, “No, Your Honor.”

To curry favor with the blacks on the jury, Nadine called a Dr. Thurston, a dapper, distinguished black gentleman with a gray beard and finely tailored suit. Dr. Thurston was also from Chicago and was the senior physician in a group of thirty-five cardiologists and cardiovascular surgeons. In his spare time, he taught at the University of Chicago School of Medicine. To move things along, David did not question his credentials. Dr. Thurston and his group had prescribed Krayoxx to tens of thousands of their patients over the past six years, with spectacular results and no side effects. The drug, in his opinion, was perfectly safe; indeed, he and his colleagues viewed it as a miracle drug. Its presence was sorely missed, and, yes, he planned to immediately resume prescribing it when it reappeared on the market. Most dramatically, Dr. Thurston revealed to the jury that he had taken Krayoxx himself for four years.

To get the attention of the Hispanic lady on the jury, the defense called Dr. Roberta Seccero, cardiologist and researcher at Mayo Clinic in Rochester, Minnesota. David gave the green light on credentials, and Dr. Seccero, to no one’s surprise, sang like a bird on a spring morning. Her patients were mostly women, and the drug did everything but make them lose weight. There was no statistical evidence that those taking Krayoxx were likelier to suffer heart attacks or strokes than those who didn’t take it. She and her colleagues had researched this at length, and there was no doubt. In her twenty-five years as a cardiologist, she had never seen a safer and more effective medication.

The rainbow was completed when Ms. Karros called to the stand a young Korean doctor from San Francisco who, oddly enough, looked remarkably similar to juror Number 19. Dr. Pang enthusiastically endorsed the drug and expressed dismay at its removal from the market. He had given it to hundreds of patients with outstanding results.

David had no questions for Dr. Pang either. He was not about to bicker with any of these renowned doctors. What was he supposed to do—argue medicine with some of the best doctors in the business? No sir. He stayed in his chair and kept one eye on his watch, which was moving rather slowly.

There was no doubt that had there been a juror of Lithuanian descent, Nadine would have pulled another expert from her magic hat, one with a Lithuanian surname and immaculate credentials.

The fifth witness was the chief cardiologist at the Feinberg School of Medicine, Northwestern University. Her name was Dr. Parkin, and her testimony was a little different. She had been hired to do a thorough analysis of Percy Klopeck’s medical history. She had reviewed his records from the age of twelve and those of his siblings and parents to the extent they were available, and she also had taken recorded statements from his friends and co-workers, those willing to cooperate. At the time of his death, Percy was taking Prinzide and Levatol for hypertension, insulin for adult-onset diabetes, Bexnin for arthritis, Plavix as a blood thinner, Colestid for atherosclerosis, and Krayoxx for high cholesterol. His happy pill of choice was Xanax, which he either bummed off friends, stole from Iris, or bought online, and he used it daily to battle the stress of life with “that woman,” according to one of his co-workers. He occasionally used Fedamin, an over-the-counter appetite suppressant that was supposed to make him eat less but seemed to backfire. He had smoked for twenty years but managed to stop at the age of forty-one with the aid of Nicotrex, a nicotine-laced chewing gum that was known to be highly addictive. He chewed it nonstop, going through at least three packages a day. According to blood work a year before he died, Percy’s liver was showing a decreasing level of function. He loved gin and, according to credit card records subpoenaed by Ms. Karros, purchased at least three fifths a week from Bilbo’s Spirits on Stanton Avenue, five blocks from his home. He often felt bad in the morning, complained of headaches, and kept at least two large bottles of ibuprofen close by on his cluttered work desk.

When Dr. Parkin finished her lengthy narrative about Percy’s habits and health, it seemed patently unfair to blame his death on just one drug. Since there had been no autopsy—Iris had been too upset to even think about it—there was no positive indication that he died of a heart attack. His death could have been caused by the all-encompassing “respiratory failure.”

Wally and Oscar had discussed having the body exhumed to get a clearer picture of what killed him, but Iris flew into a rage. Plus, the exhumation, autopsy, and reburial would have cost almost $10,000, and Oscar flatly refused to spend the money.

In Dr. Parkin’s opinion, Percy Klopeck had died young because he was genetically predisposed to an early death, one made even more probable because of his lifestyle. She also offered the opinion that it was impossible to predict the cumulative effect of the astonishing barrage of his medications.

Poor Percy, thought David. He lived a short, uneventful life and died peacefully in his sleep, with no clue whatsoever that his habits and ailments would one day be dissected so thoroughly by strangers in open court.

Her testimony was devastating, and there was not a single part of it that David wanted to revisit on cross-examination. At 12:30, Judge Seawright adjourned until 2:00 p.m. David and Helen hustled from the courthouse and enjoyed a nice, long lunch. David ordered a bottle of white wine, and Helen, who rarely drank, enjoyed a glass. They toasted Percy, may he rest in peace.

In David’s novice opinion, Nadine and the defense stumbled slightly with the afternoon’s first witness. He was Dr. Litchfield, a cardiologist and cardiovascular surgeon from the world-renowned Cleveland Clinic, where he saw patients, taught, and researched. He had the tedious task of walking the jurors through Percy’s last echocardiogram, the same video that had knocked them out in the hands of Igor Borzov. Sensing that another viewing of that footage would not be well received, Nadine stepped on the gas and opted for a scaled-down version of the testimony. Bottom line—there was no reduced regurgitation of blood from the mitral valve. The left ventricle was not enlarged. If the patient did indeed die of a heart attack, its cause could not be determined.

Bottom line—Borzov was a fool.

David had a quick vision of Wally, lying peacefully in a comfortable bed, wearing a gown or pajamas or whatever Harbor House distributed, sober now, tranquil due to a sedative, maybe reading or just gazing at Lake Michigan, his thoughts a million miles away from the carnage in Courtroom 2314. Yet it was all his fault. In the months he’d spent racing around Chicago, visiting low-end funeral parlors, passing out brochures in gyms and fast-food joints, he had never, not once, paused to study the physiology and pharmacology of Krayoxx and its alleged damage to heart valves. He had simply and eagerly assumed the drug was bad and, egged on by smart guys like Jerry Alisandros and other tort stars, had joined the parade and begun counting his money. Resting now in rehab, was he even thinking about the trial, about the case getting dumped on David while he and Oscar were laid up licking their wounds? No, David decided, Wally was not worrying about the trial. Wally had bigger issues—sobriety, bankruptcy, a job, his firm.

The next witness was a professor and medical researcher from Harvard who had studied Krayoxx and written a definitive article in the New England Journal of Medicine. David managed to get a slight chuckle when he did not question the professor’s résumé. He said, “Your Honor, if he went to Harvard, I’m sure his credentials are outstanding. He must be brilliant.”

Fortunately, the jurors had not been informed that David was a graduate of the Harvard School of Law; otherwise, the wisecrack could have backfired. Harvard grads who talked about being Harvard grads were not generally well regarded in Chicago.

“Pretty stupid,” read the note from the paralegal.

David did not respond. It was almost 4:00 p.m., and he just wanted to leave. The professor droned on about his research methods. Not a single juror was paying attention. Most appeared brain-dead, thoroughly numbed by this futile exercise in civic responsibility. If this is what made a democracy strong, then God help us.

David wondered if they were already discussing the case. Each morning and each afternoon Judge Seawright gave the same lecture about improper contact, the prohibition against reading about the case in the newspapers or online, and the need to refrain from chatting about the case until all evidence had been presented. There were plenty of studies on the behavior of juries, the dynamics of group decision making, and so on, and most found that jurors couldn’t wait to begin gossiping about the lawyers, the witnesses, even the judge. They tended to pair off, to buddy up, to separate into cliques and camps and begin their considerations prematurely. Seldom, though, did they do so as an entire group. More often, they hid their little private sessions from each other.

David tuned out his fellow Harvard alum and flipped a few pages of his legal pad. He resumed work on a rough draft of his letter:

Dear So-and-So:

I represent the family of Thuya Khaing, the five-year-old son of two Burmese immigrants who are in this country legally.

From November 20 until May 19 of this year, Thuya was a patient in the Lakeshore Children’s Hospital here in Chicago. He had ingested a near-lethal amount of lead, and on several occasions was kept alive by a respirator. According to his doctors, and I have included with this letter a summary of their statements, Thuya now suffers brain damage that is permanent and severe. He is not expected to live but a few more years; however, there is a chance he could survive up to twenty years.

The source of the lead swallowed by Thuya is a toy made in China and imported by your division Gunderson Toys. It is a Halloween novelty called Nasty Teeth. According to Dr. Biff Sandroni, a toxicologist you’ve probably heard of, the fake teeth and fangs are coated with various colors of bright paint and loaded with lead. I have attached a copy of Dr. Sandroni’s report for your reading pleasure.

I have also enclosed a copy of a lawsuit I will soon file against Sonesta Games, in federal court here in Chicago, in the very near future.

If you would like to discuss

“Cross-examination, Mr. Zinc?” Judge Seawright interrupted.

Again, David stood quickly and said, “No, Your Honor.”

“Very well, it is now 5:15. We will adjourn until nine in the morning with the same instructions to the jury.”

———

Wally was in a wheelchair, dressed in a white cotton bathrobe with cheap canvas slippers barely covering his chubby feet. An orderly rolled him into the visiting room, where David was waiting, standing at a large window, staring into the darkness of Lake Michigan. The orderly left and they were alone.

“Why are you in a wheelchair?” David asked as he dropped onto a leather sofa.

“I’m sedated,” Wally replied slowly and softly. “They’ll give me some pills for a couple of days to, uh, sorta soothe things along. If I try to walk, I might fall, crack my skull, or something.”

Twenty-four hours off a three-day binge, and he still looked rough. His eyes were red and puffy, his face sad and defeated. He needed a haircut. “Are you curious about the trial, Wally?”

Hesitation as this was processed, then, “I’ve thought about it, yes.”

“You’ve thought about it? That’s awfully nice of you. We should finish tomorrow, we being me on our side of the room with no one but my lovely wife, who’s pretending to be a paralegal and is already tired of watching her husband get his ass kicked, and what seems like an ever-growing mob of dark suits on the other side, all hovering around the lovely Nadine Karros, who, believe me, Wally, is even better than advertised.”

“The judge wouldn’t continue the case?”

“Why should he, Wally? Continue to when, and why? What, exactly, would we have done with another, say, thirty or sixty days? Go out and hire a real trial lawyer to try the case? Let’s hear that conversation: ‘That’s it, sir, we’ll promise you $100,000 and half of our cut to walk into that courtroom with a lousy set of facts, an unsympathetic client, a judge who’s even more unsympathetic, against an extremely talented defense team with unlimited cash and talent, representing a large and powerful corporate defendant.’ Who would you pitch that to, Wally?”

“You seem angry, David.”

“No, Wally, it’s not anger; it’s just the need to rant, to bitch, to blow off some steam.”

“Then go right ahead.”

“I asked for a continuance, and I think Seawright would have considered it, but why? No one could say when you might be able to come back. Oscar, probably never. We agreed to go forward and get it over with.”

“I’m sorry, David.”

“So am I. I feel like such a fool sitting there with no case, no clue, no weapons, nothing to fight with. It’s so frustrating.”

Wally lowered his chin to his chest as if he might start sobbing. Instead, he began mumbling, “I’m sorry, so sorry.”

“Okay, look, Wally, I’m sorry too. I didn’t come here to beat you up, okay? I came to check on you. I’m worried about you, so are Rochelle and Oscar. You’re sick and we want to help.”

When Wally looked up, his eyes were wet, and as he spoke, his lip quivered. “I can’t keep doing this, David. I thought I had it whipped, I swear I did. One year, two weeks, two days, then something happened. We were in court Monday morning, I was nervous as hell, terrified really, and I was overcome with this vicious desire for a drink. I remember thinking, you know, a couple of drinks will do the trick. Two quick beers and I’ll settle down. Alcohol is such a liar, such a monster. As soon as we broke for lunch, I scooted out of the building and found a little café with a beer sign in the window. I got a table, ordered a sandwich, drank three beers, and, wow, it tasted so good. And felt even better. Back in the courtroom, I remember thinking, you know, I can do this. I can drink and it’s no problem. I got it whipped, you know? No problem. Now look at me. Back in rehab and scared shitless.”

“Where’s your car, Wally?”

He thought about it for a long time and finally gave up. “I have no idea. I blacked out so many times.”

“Don’t worry about it. I’ll find the car.”

Wally wiped his cheeks with the back of his hand, then wiped his nose with a sleeve. “I’m sorry, David. I thought we had a chance.”

“We never had a chance, Wally. There’s nothing wrong with the drug. We joined a stampede that was going nowhere, and we didn’t realize it until it was too late.”

“But the trial’s not over, is it?”

“The trial’s over but the lawyers are still at it. The jury gets the final word tomorrow.”

Nothing was said for several minutes. Wally’s eyes cleared, but he had trouble looking at David. Finally, he said softly, “Thanks for coming, David. Thanks for taking care of me, and Oscar and Rochelle. I hope you won’t be leaving us.”

“Let’s not talk about that now. You get good and detoxed. I’ll check you out next week, then we’ll have another firm meeting and make some decisions.”

“I’d like that. Another firm meeting.”