Chapter Thirteen
By the time Sarah returns, Don Harrison from the Centers for Disease Control and Prevention is answering Messick’s first question.
“The CDC has been keeping statistics on AIDS since 1981, when the disease first appeared.”
It is still called the CDC, whose name was originally the ‘Communicable Disease Center.’ Then, in 1970, it became the ‘Center for Disease Control,’ and finally in 1992 the ‘Centers for Disease Control and Prevention.’ In making the change, Congress apparently knew that saying ‘CDCP’ would never catch on and mandated that the acronym stay the same.
“Mr. Harrison, I'm not going to ask you for all the valuable information you have at your disposal from the CDC at this time. I am going to ask your permission, and that of Your Honor, to ask a very few specific questions directly concerning the issue at hand, and then ask you to come back later – maybe several times more – to offer more data and statistics when those subjects arise? Is this all right with you?”
“It’s okay with me.”
“Your Honor?”
Judge Watts is very cautious. “For the time being. Mr. Crawley?”
“No objection, Your Honor.”
The Judge turns back to Messick. “Proceed.”
“Mr. Harrison, have you heard the previous witnesses discussing Koch's Postulate Number One?”
“I heard them, yes.”
“I see you brought a lot of reports with you today, and I’m glad about that. So tell me, in all of the CDC's reports, are you aware whether there has been any mention of a diagnosis of AIDS in a patient that did not have the virus called HIV?”
“Well, I want to be clear, we don’t test every AIDS patient for HIV.”
“I know that. I’ll get to that in a minute. Right now, I want to know whether there has been any mention of a diagnosis of AIDS in a patient who was tested that did not have the virus called HIV?”
“Yes, there have been some cases like that reported.”
“And how about AIDS patients who were tested that did not even have the antibodies to HIV?”
“Well, that’s what I meant by my first answer. We don’t test for the actual HIV, Mr. Messick. We only test for the HIV antibodies.”
“I understand, Mr. Harrison. So tell me, how many cases of AIDS are on record where no HIV and no HIV antibodies were found?”
Harrison spends quite a bit of time combing through the statistics he brought with him, looking for the answer.
“Can’t find it, Mr. Harrison?”
“Give me another minute, please, because I’m sure it must be here.”
“I will.” He turns and looks at the jury while still addressing Harrison. “By the way, I’ve had the same trouble. Back around 1990 it was fairly easy to get this answer. But I guess you guys at the CDC have buried this information as deep as you could since then.”
Harrison finally stops looking. “I know I’ve seen that statistic before. Apparently I didn’t bring the right charts with me today, but I think it’s somewhere around 4,000 cases.”
Messick had been pacing up and down in front of the jury while Harrison was searching for the answer. Now he whips around to face Harrison and acts completely surprised.
“4,000 cases?”
“Actually, a little over 4,000 cases, if I recall correctly.”
“Do you mean to tell this court that there are more than 4,000 cases of AIDS where the patient was HIV-negative – not that they weren't tested, but that they were tested and found not to have the virus called HIV or its antibodies?”
“Yes, that’s correct.”
Messick goes to his table and picks up a stack of papers.
“Yes, Mr. Harrison, I have that record here.” Messick smiles at Harrison and can’t resist gloating a little. “You may want to get a copy of this when we’re finished.” Then he looks through the papers for a minute. “And you are correct, Mr. Harrison; it’s 4,621 cases of AIDS who were HIV-negative – no HIV and no HIV antibodies. But they still had AIDS according to their medical diagnosis, Mr. Harrison?”
“Yes.”
“Wow!” Messick looks at the jury like he doesn’t understand. Of course, he hopes they understand from the previous testimony that these two things – AIDS but no HIV – cannot co-exist together if, in fact, HIV caused AIDS. Now he’s ready for the next step.
“Mr. Harrison, you mentioned that not all AIDS patients were tested for HIV. Let’s go back to the late 1980's, as AIDS was reaching epidemic proportions. Can you tell us how many cases of AIDS were actually tested for HIV, let’s say in the first five years, up until 1989? In other words, how many confirmed AIDS diagnoses got an HIV test?”
Harrison consults his notes but comes up empty-handed again. “I don't have those numbers nationwide.”
“Well, then, let's just say in San Francisco, one of the hotbeds of AIDS. Do you have the figures for San Francisco of how many AIDS cases were tested for the presence of HIV?”
Harrison thumbs through some more papers and finally finds what he’s looking for.
“Yes, here it is. Seven percent.”
Once again Messick pretends like he cannot believe the answer.
“Only seven percent? Looks like Dr. Peterson was doing well to test almost fifty percent of his patients!” He pauses, and then, as if he had an afterthought, “How about another hotspot – New York?”
“Same time frame, Mr. Messick?”
“Yes.”
“About the same. Seven percent.”
“So in the two busiest AIDS cities in the late 1980’s, only seven percent of diagnosed AIDS cases were tested for HIV?”
“Yes.”
“Just to be conservative, let’s say it was ten percent instead, okay? Let’s give you a little margin of error.”
Harrison doesn’t answer as Messick returns to the lectern, and with more flair than necessary he takes out a pen, flips to a clean sheet on his yellow pad and starts writing something.
“And what percentage of all AIDS cases nationally occurred in San Francisco and New York during that time?”
Once again Harrison consults his statistics book.
“About a third of all cases.”
Messick starts doing some math with his pen on the paper. Obviously, he had done this math before – many times before – but it gives time for the jury to do the math themselves. All of a sudden, Messick’s head jerks back as he presumably sees the answer his scratch marks produced. He takes a deep breath and prepares to deliver his blow to Mr. Harrison.
“So we know that at least 4,600 AIDS cases never had the HIV or its antibodies, but we only tested roughly ten percent of the AIDS victims for HIV during those years, in two cities that represented one-third of the AIDS population.” Messick turns to the jury to try to keep things in perspective. “I realize this is beginning to sound like one of those high school math questions where a train leaves Boston traveling 90 miles an hour….” Many of the members of the jury chuckle and relax a little, and then Messick turns back to the witness. “But, Mr. Harrison, if we had tested one hundred percent of all AIDS cases, do you have any idea how many more cases might have also been HIV-negative, with no virus and no antibodies, based on the same ratios?”
“I have no idea.”
“Well, let’s see if we can do the math. Do you know how many of the 4,600 cases that were HIV-negative occurred in San Francisco and New York?”
Harrison looks at one page of his notes, and then another, and then a third.
“No, sir, I don’t have that information.”
“Too bad, because we can’t do this completely accurately without it. But I think it’s safe to assume that if San Francisco and New York represented one-third of all AIDS cases in this country, they probably also had about one-third of the 4600 HIV-negative cases as well, or a little over 1500 without HIV. But let’s be generous again and say it’s only a thousand. We’ve agreed that we only tested ten percent of all AIDS cases in those two cit
ies. If we had tested one hundred percent just in San Francisco and New York, we could easily end up with over 10,000 AIDS cases with no HIV and no HIV antibodies. Correct?”
“I suppose that's possible. I don’t know. As I said, I haven’t done the math.”
Messick hands Harrison his yellow pad and says, “Take a look.”
Harrison glances at the scribbled math and hands the pad back to Messick, who asks, “Would you like me to give you a pen and the time to do it yourself, Mr. Harrison?”
“No, Mr. Messick. I’ll take your word for it.”
“10,000 AIDS cases with no HIV! Wow! And we were just dealing with the statistics prior to 1990, which means there could be thousands more AIDS cases with no HIV and no HIV antibodies since then, doesn’t it, Mr. Harrison?”
“It’s possible, yes,” Harrison muttered, although he wished to God it weren’t.
Messick walks to his table and finds yet another report that he holds up toward Harrison. “Mr. Harrison, are you familiar with Koch's Postulate Number One?”
“I'm not an expert…,” he starts, hoping not to have to answer the next question.
“I’m not asking for an expert opinion from you. I’m simply asking, are you familiar with Koch's Postulate Number One?”
“Somewhat.”
“And are you familiar with the National Institute of Allergy and Infectious Diseases, part of the National Institutes of Health?”
“Of course.”
“This is a report from them, first written in November 1994 and updated as recently as 2003, called The Evidence That HIV Causes AIDS.” Messick opens the report and finds the page he wants. “Let me read you two section headings. The first is, and I quote, ‘HIV can be detected in virtually everyone with AIDS,’ unquote. The second is, quote, ‘Nearly everyone with AIDS has antibodies to HIV,’ unquote. Virtually everyone, nearly everyone. And still they have the audacity to say, and again I quote, ‘HIV fulfills Koch's Postulates as the cause of AIDS.’” He puts the report back down on his desk and goes and stands at the jury rail without looking directly at any juror. “Mr. Harrison, does Koch’s Postulate Number One say that you have to find the cause of an infectious disease in virtually every case, or nearly every case?”
“No, sir, at least not to my knowledge it doesn’t.”
“Then please tell me, Mr. Harrison, What is your conclusion when we know for a fact that, even prior to 1990, there were 4,621 cases, and probably more than 10,000 cases, with no trace of the virus called HIV and no trace of HIV antibodies, when Koch's Postulate Number One requires HIV to be present in every case of AIDS?”
“As I said, I'm no expert...”
Before Harrison could finish, Crawley is on his feet.
“Objection!”
“Yes, Mr. Crawley?”
Crawley is just standing there waiting for Judge Watts to automatically sustain his objection without requiring an explanation. He tries not to show his surprise when she doesn’t, and quickly comes up with the best he can think of at the time.
“This witness has not been certified as an expert in this field. Mr. Messick is asking for an expert conclusion.”
“Your Honor, on the contrary. I'm not asking for Mr. Harrison's expert opinion. I'm asking him, as someone whose profession is dealing with the statistics of the causes of disease, to comment on the logic in this case.”
As Judge Watts hesitates, Crawley doesn't argue, fully expecting her to eventually rule in his favor, as usual. He is taken aback to hear her say instead, “I'm going to allow the witness to answer the question.”
Crawley is stunned, and Harrison is more than disappointed. He’s scared. He can’t lie on the witness stand, but he’s not sure he’ll have a job waiting for him at the CDC if he tells the truth.
“I would have to say that...it would be difficult to say that the statistics supported Koch's Postulate.”
“No further questions. But as we discussed, I reserve the right to recall this witness at a later time.”
Judge Watts looks at Crawley, who has turned to confer with his team again.
“Mr. Crawley?”
“One moment, Your Honor,” without turning around.
“Mr. Crawley?” Judge Watts is clearly becoming impatient.
Crawley finally stands up and faces the bench. “No questions, Your Honor.”
Judge Watts looks at Crawley like he’s making a big mistake.
“All right. It's lunchtime. Back at two p.m.” and she gavels the morning session into recess.
Wrongful Death: The AIDS Trial Page 14