by John Grisham
was already seeing someone else, on the sly of course. There were rumors that Paula had also found someone new. At any rate, the marriage was happily over with, though the divorce had a ways to go.
At 4:30, a nurse led them to Oscar’s bed for a brief hello. He was awake, thoroughly covered with tubes and monitors, and breathing on his own. “Great opening statement,” Wally said and got a weak smile in return. They were not about to mention the mistrial. After a few awkward efforts at conversation, they realized Oscar was too fatigued to chat, so they said good-bye and left. On the way out, a nurse informed them that surgery was scheduled for 7:00 the following morning.
At 6:00 the following morning, David, Wally, and Rochelle surrounded Oscar’s bed for a final round of well-wishing before he went to the OR. When a nurse asked them to leave, they went to the cafeteria for a hearty breakfast of watery eggs and cold bacon.
“What happens to the trial?” Rochelle asked.
David gnawed a piece of bacon and eventually replied, “Not sure, but I have a hunch we won’t be getting much of a continuance.”
Wally was stirring his coffee and observing two young nurses. “And it looks like we’re both getting promotions. I’ll have the lead, and you’re getting moved to the second chair.”
“So the show goes on?” Rochelle asked.
“Oh yes,” David said. “We have very little control over what’s happening now. Varrick is calling the shots. The company wants a trial because the company wants vindication. A huge victory. Headlines. Proof that its wonderful drug is not so bad after all. And, most important, the judge is clearly on their side.” Another bite of bacon. “So, they have the facts, the money, the experts, the legal talent, and the judge.”
“What do we have?” she asked.
Both lawyers thought about that for a while, then both began shaking their heads. Nothing. We have nothing.
“I guess we have Iris,” Wally finally said and got a laugh. “Lovely Iris.”
“And she’s gonna testify in front of the jury?”
“No. One of her doctors e-mailed a letter saying she is physically unable to testify in court,” David said.
“Thank God for that,” Wally said.
After an hour of killing time, the three voted unanimously to return to the office and try to pursue something productive. David and Wally had a dozen things to do for the trial. A nurse called at 11:30 with the welcome news that Oscar was out of surgery and doing well. He could not see visitors for twenty-four hours, which was also well received. David e-mailed the latest update to Judge Seawright’s clerk and fifteen minutes later got a reply requiring all lawyers to be in his chambers at 2:00 p.m.
“Please give my regards to Mr. Finley,” His Honor said indifferently as soon as the lawyers were seated, David and Wally on one side and Nadine and four of her henchmen on the other.
“Thanks, Judge,” Wally said, but only because a response was required.
“Our new plan is as follows,” Seawright said without breaking stride. “There are thirty-four jurors left in the pool. I will summon them back Friday morning, October 21, three days from today, and we will select a new jury. Next Monday, October 24, we will start the retrial. Any comments or concerns?”
Oh, lots of them, Wally wanted to say. But where should I begin?
Nothing from the lawyers.
The judge continued: “I realize this does not give the plaintiff’s lawyers much time to regroup, but I’m convinced that Mr. Figg will do as well as Mr. Finley. Frankly, neither has any experience in federal court. Substituting one for the other will not damage the plaintiff’s case in any way.”
“We are ready for trial,” Wally said loudly, but only to retaliate and defend himself.
“Good. Now, Mr. Figg, I will not tolerate any more of your ridiculous comments in court, regardless of whether the jury is present.”
“I apologize, Your Honor,” Wally said with a phoniness that was obvious.
“And your apology is accepted. However, I am levying a fine of $5,000 against you and your firm for such reckless and unprofessional behavior in my courtroom, and I’ll do it again if you step out of line.”
“That’s a bit steep,” Wally blurted.
So the hemorrhaging continues, David thought to himself. Seventy-five thousand to Dr. Borzov; $50,000 to Dr. Herbert Threadgill, their expert pharmacologist; $15,000 to Dr. Kanya Meade, their expert economist; $25,000 to Consuelo, their jury consultant. Throw in another $15,000 to get all the experts to Chicago, feed them, put them up in nice hotels, and Iris Klopeck and her dead husband were costing Finley & Figg at least $180,000. Now, thanks to Wally’s big mouth, they had just lost another $5,000.
Bear in mind, David kept telling himself, this was supposedly cheap money being thrown up as a defense. Otherwise, they would be sued for malpractice and face some rather terrifying sanctions for filing such a frivolous case. In effect, they were burning serious cash to make their frivolous case appear less frivolous.
Such maneuverings had never been mentioned during law school at Harvard, nor had he ever heard of such insanity during his five years at Rogan Rothberg.
On the subject of sanctions, Ms. Karros took charge and said, “Your Honor, this is a Rule 11 motion we are filing at this time.” Copies were slid across the table as she continued, “We are requesting sanctions on the grounds that Mr. Figg’s reckless actions in court yesterday caused a mistrial, resulting in unnecessary expense to our client. Why should Varrick Labs pay for the plaintiff’s unprofessional behavior?”
Wally shot back, “Because Varrick has a book value of $48 billion. My net worth is substantially less.” Humorous, but no laughs.
Judge Seawright read the motion carefully, and when David and Wally realized this, they began reading too. After ten minutes of silence, the judge said, “Your response, Mr. Figg?”
Wally tossed his copy of the motion onto the table as if it were filthy. “You know, Judge, I can’t help the fact that these guys charge a zillion dollars an hour. They are obscenely expensive, but that should not be my problem. If Varrick wants to burn its cash, then it certainly has plenty to burn. But don’t get me in the middle of it.”
“You miss the point, Mr. Figg,” Nadine replied. “We wouldn’t be doing the extra work if not for you and the mistrial you created.”
“But $35,000? Come on. Do you people really think you’re that valuable?”
“Depends on the outcome of the trial, Mr. Figg. When you filed this lawsuit you asked for, what, a hundred million or so? Don’t criticize my client for putting up a vigorous defense with good legal talent.”
“So, let me get this straight. During this trial, if you and your client do something to sort of string things along, you know, drag out the trial, God forbid make a mistake, anything like that, then I can file a quick motion for sanctions and collect some money? Am I right about this, Judge?”
“No. That would be a frivolous motion, subject to Rule 11.”
“Of course it would!” Wally said with a belly laugh. “You guys make a great tag team.”
“Watch it, Mr. Figg,” Judge Seawright growled.
“Knock it off,” David whispered. A few seconds of silence followed as Wally settled down. Finally, the judge said, “I agree that the mistrial could have been avoided, and that it has caused additional expense. However, I think $35,000 is somewhat on the excessive end. Sanctions are in order, but not to that extent. Ten thousand dollars is a more reasonable sum. It is so ordered.”
Wally exhaled—another shot to the gut. David’s next thought was to try to speed things along so the meeting could come to a merciful end. Finley & Figg couldn’t afford much more. He offered a lame “Judge, we need to get back to the hospital.”
“Adjourned, until Friday morning.”
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 a
nd 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