The Litigators

CHAPTER 45


Emma had a rough night, and both parents walked the floor in alternating one-hour shifts. When Helen handed her off at 5:30 and headed back to bed, she announced her career as a paralegal was mercifully over. She had enjoyed the lunches, but little else, and besides, she had a sick baby to deal with. David managed to quiet Emma with a bottle and, as he fed her, went online. Varrick’s stock had closed at $40 a share Thursday afternoon. Its steady rise throughout the week was even more evidence that the Klopeck trial was going badly for the plaintiff, though no additional evidence was really needed. Out of his usual morbid curiosity, David checked in with the Hung Juror, who wrote:

In what has to be the most lopsided trial in the history of U.S. jurisprudence, things continue to go from bad to worse for the estate of the late and now much maligned Percy Klopeck. As Varrick Labs’ defense team continues to steamroll over the hapless and grossly incompetent lawyer for Klopeck, one almost feels sorry for the underdog. Almost, but not quite. The question that screams to be answered is, how did this dog of a case manage to get into court, stay in court, and stumble its way to the jury? Talk about an obscene waste of time, money, and talent! Talent, that is, for the defense. Talent is sorely lacking on the other side of the courtroom, where the clueless David Zinc has adopted the unique strategy of simply trying to become invisible. He has yet to cross-examine a witness. He has yet to make an objection. He has yet to make a single move to help his case. He just sits there for hours, pretending to take notes, swapping little messages with his new paralegal, a hot thing in a short skirt brought in to show some leg and try to divert attention from the fact that the plaintiff has no case and the lawyer is incompetent. Unknown to the jury, the new paralegal is actually Helen Zinc, wife of the idiot sitting in front of her. This bimbo is not a paralegal and has no training or experience in the courtroom, so she fits in nicely with the clowns from Finley & Figg. Her presence is obviously a clever ploy to catch the eye of the male jurors and counterbalance the overwhelming presence of Nadine Karros, who is perhaps the most effective courtroom advocate this Hung Juror has ever watched.

Let’s hope this dog is put to sleep today. And maybe Judge Seawright has the guts to grant sanctions for such a frivolous case.

David flinched so hard he squeezed Emma, who momentarily stopped working the bottle. He closed his laptop and cursed himself for looking at the blog. Never again, he vowed, not for the first time.

With the verdict solidly in hand, Nadine Karros decided to push a bit harder. Her first witness Friday morning was Dr. Mark Ulander, Varrick’s senior vice president and director of research. Working from a script, they quickly laid the groundwork. Ulander had three graduate degrees and had spent the past twenty-two years supervising Varrick’s vast development of myriad drugs. Krayoxx was his proudest achievement. The company had spent over $4 billion bringing it to market. His team of thirty scientists had labored for eight years to perfect the drug, to make certain it worked to lower cholesterol, to take no chances with its safety, and to gain FDA approval. He detailed the rigid testing procedures used, and not just for Krayoxx but for all Varrick’s fine products. The company’s reputation was on the line with every drug it developed, and the Varrick reputation for excellence pervaded every aspect of his research. With Nadine’s skillful direction, Dr. Ulander painted an impressive picture of a diligent effort to produce the perfect drug, Krayoxx.

With nothing to lose, David decided to roll the dice and join the action. He began his cross-examination with “Dr. Ulander, let’s talk about all of those clinical trials you just mentioned.” The fact that David was at the podium seemed to catch the jurors off guard. Though it was only 10:15, they were ready to deliberate and go home.

“Where did the clinical trials take place?” David asked.

“For Krayoxx?”

“No, for baby aspirin. Of course for Krayoxx.”

“Sorry, of course. Let’s see. Well, the clinical trials were extensive, as I said.”

“Got that, Dr. Ulander. The question is rather simple. Where were the clinical trials?”

“Yes, well, the initial trials were done with a test group of high-cholesterol subjects in Nicaragua and Mongolia.”

“Keep going. Where else?”

“Kenya and Cambodia.”

“Did Varrick spend $4 billion developing Krayoxx to reap dividends in Mongolia and Kenya?”

“I can’t answer that, Mr. Zinc. I’m not involved in marketing.”

“Fair enough. How many clinical trials were conducted here in the United States?”

“None.”

“How many Varrick drugs are in clinical trials as of today?”

Nadine Karros rose and said, “Objection, Your Honor, on the grounds of irrelevance. Other drugs are not at issue here.”

Judge Seawright paused and scratched his chin. “Overruled. Let’s see where this is going.”

David wasn’t sure where it was going, but he had just won a tiny victory over Ms. Karros. Emboldened, he pressed on. “You may answer the question, Dr. Ulander. How many Varrick drugs are in clinical trials today?”

“Approximately twenty. I could name them all if given a moment or two.”

“Twenty sounds good. Let’s save some time. How much money will Varrick spend this year on clinical trials for all of its drugs in development?”

“Roughly $2 billion.”

“Last year, 2010, what percentage of Varrick’s gross sales came from foreign markets?”

Dr. Ulander shrugged and looked perplexed. “Well, I’d have to check the financial statements.”

“You’re a vice president of the company, aren’t you? And you have been for the past sixteen years, right?”

“That’s true.”

David picked up a thin binder, flipped a page, and said, “This is last year’s financial report, and it plainly states that 82 percent of Varrick’s gross sales were in the U.S. market. Have you seen this?”

“Of course.”

Ms. Karros stood and said, “Objection, Your Honor. My client’s financial records are not at issue here.”

“Overruled. Your client’s financial records are a matter of public record.”

Another tiny victory, and for the second time David got a taste of courtroom excitement. “Does 82 percent sound right, Dr. Ulander?”

“If you say so.”

“I’m not saying so, sir. It’s right here in the published report.”

“Okay, so it’s 82 percent.”

“Thank you. Of the twenty drugs you’re testing today, how many of their clinical trials are being conducted in the United States?”

The witness gritted his teeth, clenched his jaw, and said, “None.”

“None,” David repeated dramatically and looked at the jury. Several of the faces were engaged. He paused a few seconds, then continued: “So Varrick derives 82 percent of its income in this country, yet it tests its drugs in such places as Nicaragua, Cambodia, and Mongolia. Why is that, Dr. Ulander?”

“It’s very simple, Mr. Zinc. The regulatory environment in this country stifles the research and development of new drugs, devices, and procedures.”

“That’s great. So you’re blaming the government for your routine practice of testing drugs on people in faraway places?”

Ms. Karros was back on her feet. “Objection, Your Honor. That’s mischaracterization of what the witness said.”

“Overruled. The jury heard what the witness said. Continue, Mr. Zinc.”

“Thank you, Your Honor. You may answer the question, Dr. Ulander.”

“I’m sorry, what was the question?”

“Is it your testimony that the reason your company runs its clinical trials in other countries is that there is too much regulation in this country?”

“Yes, that’s the reason.”

“Isn’t it true that Varrick tests its drugs in developing countries because it can avoid the threat of litigation if things go badly?”

“Not at all.”

“Isn’t it true that Varrick tests its drugs in developing countries because there is virtually no regulation?”

“No, that’s not true.”

“Isn’t it true that Varrick tests its drugs in developing countries because it’s much easier to find human guinea pigs who need a few bucks?”

There was a scramble over David’s left shoulder as the defense horde reacted. Ms. Karros sprang to her feet and said firmly, “Objection, Your Honor.”

Judge Seawright, who was leaning forward on his elbows, calmly said, “State your objection.”

For the first time all week Nadine struggled for words. “Well, first, I object to this line of questioning on the grounds of irrelevance. What my client does with other drugs is not relevant to this case.”

“I’ve already overruled that objection, Ms. Karros.”

“And so I object to counsel’s use of the term ‘human guinea pigs.’ ”

The term was clearly objectionable, but it was also commonly used and seemed to fit the situation. Judge Seawright thought about it for a while as everyone stared at him. David glanced at the jury and saw some amused faces.

“Overruled. Continue, Mr. Zinc.”

“Were you supervising all of Varrick’s research in 1998?”

Dr. Ulander replied, “Yes, as I’ve said, that has been my role for the past twenty-two years.”

“Thank you. Now, in 1998, did Varrick run clinical trials for a drug called Amoxitrol?”

Ulander shot a look of panic at the defense table, where several of the Varrick lawyers were sporting their own looks of panic. Ms. Karros jumped up again and forcefully announced, “Objection, Your Honor! That drug is not in question here. Its history is totally irrelevant.”

“Mr. Zinc?”

“Your Honor, that drug has an ugly history and I don’t blame Varrick for trying to keep it quiet.”

“Why should we talk about other drugs, Mr. Zinc?”

“Well, Judge, it seems to me as if this witness has placed the company’s reputation into issue. He testified for sixty-four minutes and spent most of his time trying to convince the jury that his company places great importance on safe testing procedures. Why can’t I explore this? It seems quite relevant to me, and I think the jury would find it interesting.”

To which Nadine quickly replied, “Your Honor, this trial is about a drug called Krayoxx, nothing more. Anything else is a fishing expedition.”

“But as Mr. Zinc correctly pointed out, you placed the company’s reputation into issue, Ms. Karros. You weren’t required to do this, but that door is now open. Objection overruled. Continue, Mr. Zinc.”

The door was indeed open, and Varrick’s history was fair game. David wasn’t certain how it had happened, but he was thrilled nonetheless. His self-doubt was gone. The gnawing fear had disappeared. He was on his feet, all alone against the big boys, and he was scoring points. It was showtime.

“I asked about Amoxitrol, Dr. Ulander. Surely you remember it.”

“I do.”

With a bit of flair, David waved his arm at the jury and said, “Well, tell the jury about that drug. What was it intended to do?”

Ulander sank a few inches in the witness chair and again looked at the defense table for help. Grudgingly, he began talking, but in very short sentences. “Amoxitrol was developed as an abortion pill.”

To help him along, David asked, “An abortion pill that could be taken up to one month after conception, sort of an expanded version of the morning-after pill, right, Doctor?”

“Something like that.”

“Was that a yes or a no?”

“Yes.”

“The pill would basically dissolve the fetus, and its remains would eventually be flushed out with other bodily waste, is that correct, Doctor?”

“In a simplified form, yes, that is what the drug was supposed to do.”

With at least seven Catholics on the jury, David didn’t have to glance over to see how this was being received.

“Did you conduct clinical trials for Amoxitrol?”

“We did.”

“And where did these trials take place?”

“Africa.”

“Where in Africa?”

Ulander rolled his eyes and grimaced. “I can’t, uh, you know, I would have to check that.”

David walked slowly to his table, riffled through some papers, and extracted a binder. He opened it, flipped pages as he walked back to the podium, and asked, as though he were reading from the report, “In what three African countries did Varrick conduct clinical trials for its abortion pill Amoxitrol?”

“Uganda for sure. I just can’t—”

“Do Uganda, Botswana, and Somalia sound right?” David asked.

“Yes.”

“How many African women were used in the study?”

“Do you have the answer there, Mr. Zinc?”

“Does the number four hundred sound right, Doctor?”

“It does.”

“And how much money did Varrick pay to each pregnant African woman to abort her pregnancy with one of your pills?”

“Do you have the answer there, Mr. Zinc?”

“Does $50 per fetus sound right, Dr. Ulander?”

“I guess.”

“Don’t guess, Doctor. I have the report right here.”

David flipped a page, took his time, let the pathetic amount of the bounty rattle around the courtroom. Nadine Karros rose again and said, “Your Honor, I object. The report Mr. Zinc is using is not in evidence. I have not seen it.”

David snapped, “Oh, I’m sure she’s seen it, Your Honor. I’m sure all the big shots at Varrick have seen it.”

“What report are you using there, Mr. Zinc?” the judge asked.

“It’s an investigation done by the World Health Organization in 2002. Their scientists tracked the world’s largest pharmaceutical companies and the way they use human guinea pigs in poor countries to test drugs they hope to market in rich countries.”

The judge held up both hands and said, “That’s enough. You can’t use the report if it’s not in evidence.”

“I’m not offering it as evidence, Your Honor. I’m using it to impeach this witness and question the fine reputation of this wonderful company.” By now, David felt no restraint in choosing his words. What was there to lose?

Judge Seawright frowned and scratched his chin some more, obviously uncertain. “Ms. Karros,” he said.

“He’s picking facts from a report that’s not in evidence, a report the jury will not see, unless he can somehow get it admitted into evidence,” she said, still composed but clearly agitated.

“Here’s what we are going to do, Mr. Zinc. You can use the report for impeachment purposes only, but the information must be conveyed in a manner that is exact, straightforward, and not the least bit slanted to suit your purposes. Understand?”

“Sure, Judge. Would you like a copy of the report?”

“That would be helpful.”

David walked to his table, picked up two more binders, and as he sort of strutted around the courtroom, he said, “I have an extra copy for Varrick, though I’m sure they’ve already seen it. Probably buried in a vault.”

“That’s enough of the extraneous comments, Mr. Zinc,” His Honor barked.

David said, “Sorry.” He handed a copy to the judge and then tossed one on the table in front of Nadine Karros. Back at the podium, he looked at his notes, then glared at Dr. Ulander. “Now, Doctor, back to Amoxitrol. When Varrick was testing the drug, was your company concerned with the ages of these young pregnant African women?”

For a few seconds, Ulander was unable to speak. He finally mumbled, “I’m sure we were.”

“Great. So how young was too young, Dr. Ulander? What were Varrick’s guidelines on age?”

“The subjects were required to be at least eighteen years old.”

“Have you ever seen this report, Doctor?”

Ulander again looked desperately at Nadine Karros, who, along with the rest of her squad, was cowering and making eye contact with no one. Finally, he uttered an unconvincing “No.”

Juror Number 37, a fifty-one-year-old black male, made a hissing sound that was meant to be heard and vaguely sounded like the word “shit.”

“Isn’t it true, Doctor, that pregnant girls as young as fourteen were given Amoxitrol to abort their fetuses? Page 22, Judge, last paragraph, second column.”

Ulander did not respond.

Reuben Massey was sitting next to Judy Beck in the first row, defense side. As a seasoned veteran of the tort wars, he knew it was crucial to maintain a veneer of complete calm and confidence. But his heart pounded with anger, and he wanted to leap forward and grab Nadine Karros by the neck. How was this happening? How had this door been not only cracked but kicked wide open?

Varrick could have easily won on summary judgment, and he would be back at his desk, safely ensconced at corporate HQ relishing the victory and pulling strings to get Krayoxx back on the market. Instead, he was watching his cherished company get thrashed by an absolute novice.

The novice pressed on. “Now, Dr. Ulander, did Amoxitrol ever make it to the market?”

“No.”

“Had some problems with it, didn’t you?”

“Yes.”

“What were some of the side effects?”

“Nausea, dizziness, headaches, fainting, but this is common with most emergency contraceptives.”

“You failed to mention abdominal bleeding, didn’t you, Dr. Ulander? Just an oversight, I’m sure.”

“There was abdominal bleeding. That’s why we stopped the testing.”

“You stopped it rather quickly, didn’t you, Doctor? In fact, the trials were terminated about ninety days after they began, right, Doctor?”

“Yes.”

David paused for drama; the next question was the most brutal. The courtroom was silent. “Now, Dr. Ulander, from Varrick’s sample of four hundred pregnant women, how many died from abdominal bleeding?”

The witness slowly removed his glasses and placed them in his lap. He rubbed his eyes, glanced at Reuben Massey, then gritted his teeth, looked at the jurors, and said, “We were made aware of eleven deaths.”

David hung his head for a moment, then took a load of paperwork to his table and swapped it for another stack of papers. He had no idea how far he could go at this point, but he was not quitting until instructed to do so. He returned to the podium, arranged things, and said, “Now, Doctor, let’s talk about some of Varrick’s other drugs that did make it into the marketplace.”

Ms. Karros stood and said, “Same objection, Your Honor.”

“Same ruling, Ms. Karros.”

“In that case, Your Honor, could we please have a brief recess?”

It was almost 11:00 a.m., past Judge Seawright’s usual break time of 10:30. He looked at David and said, “How much longer, Mr. Zinc?”

David held up his legal pad and said, “Gosh, Judge, I don’t know. I have a long list of bad drugs.”

“Let’s meet in chambers and talk about it. Fifteen-minute recess.”