The Litigators

by John Grisham

  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.”

  CHAPTER 46

  With three blacks on the jury, David made the tactical decision to spend more time in Africa with Dr. Ulander. During the recess, Judge Seawright decided to allow David to explore the backgrounds of only three additional drugs. “I want the jury to get this case this afternoon,” he said. Ms. Karros was still objecting, hotly at times, and the judge was still overruling her objections.

  The jurors were brought in and took their seats. Dr. Ulander returned to the witness stand. David addressed him, “Now, Dr. Ulander, do you remember a drug called Klervex?”

  “I do.”

  “Was it made and marketed by your company?”

  “It was.”

  “When was it approved by the FDA?”

  “Let’s see. Early in 2005, I believe.”

  “Is it now on the market?”

  “It is not.”

  “When was it taken off the market?”

  “Two years later, 2007, in June, I believe.”

  “Did your company voluntarily recall the drug, or was its removal mandated by the FDA?”

  “FDA.”

  “And at the time of its recall, your company was facing several thousand lawsuits because of Klervex, correct?”

  “Correct.”

  “In layman’s terms, what kind of drug was this?”

  “It was for hypertension, for patients who suffered from elevated blood pressure.”

  “Were there any unpleasant side effects?”

  “According to the mass tort lawyers, there were.”

  “Well, what about the FDA? It didn’t yank the drug because the mass tort lawyers were upset, did it?” David was holding another report, and he waved it slightly as he spoke.

  “I guess not.”

  “I didn’t ask you to guess, Doctor. You’ve seen this FDA report. Klervex caused severe, even blinding migraine headaches in thousands of patients, did it not?”

  “According to the FDA, yes.”

  “Do you dispute the FDA’s findings?”

  “I do.”

  “And you supervised the clinical trials of Klervex?”

  “My staff and I supervise the testing of all pharmaceuticals made by our company. I thought we had already established that.”

&
nbsp; “My deepest apologies. How many separate clinical trials were conducted during the testing of Klervex?”

  “At least six.”

  “And where did these take place?”

  The beating would not end until the cross-examination was over, so Ulander plunged ahead. “Four in Africa, one in Romania, one in Paraguay.”

  “In Africa, how many subjects were treated with Klervex?”

  “There were roughly one thousand patients in each trial.”

  “Do you remember what country or countries?”

  “Not precisely. Cameroon, Kenya, and perhaps Nigeria. I can’t recall the fourth.”

  “Were these four trials conducted simultaneously?”

  “Generally speaking, yes. Over a twelve-month period in 2002 and 2003.”

  “Isn’t it true, Doctor, that you, and I mean you personally, knew almost immediately that there were significant problems with the drug?”

  “What do you mean by ‘almost immediately’?”

  David walked to his pile, picked up a document, and addressed the court: “Your Honor, I would like to admit into evidence this internal memo sent to Dr. Mark Ulander from a certain Varrick technician by the name of Darlene Ainsworth, dated May 4, 2002.”

  “Let me see it,” the judge said.

  Nadine stood and said, “Your Honor, we object on the grounds of relevance and lack of a proper predicate being laid.”

  Judge Seawright scanned the two-page memo. He looked at Dr. Ulander and said, “Did you receive this, Doctor?”

  “I did.”

  David jumped in to help. “Your Honor, this memo was leaked by a Varrick whistle-blower to the plaintiffs’ lawyers in the Klervex litigation two years ago. Its authenticity was established at that time. Dr. Ulander knows it well.”

  “That’s enough, Mr. Zinc. It will be admitted.”

  Mr. Zinc plowed on: “The memo is dated May 4, 2002, correct, Dr. Ulander?”

  “Correct.”

  “So, some two months after Varrick began its clinical trials in Africa, this memo comes across your desk. Look at the second page, last paragraph. Would you please read that to the jury, Dr. Ulander?”

  The witness obviously didn’t want to read anything, but he adjusted his glasses and began: “Patients have been taking Klervex for six weeks, forty milligrams, twice daily. Seventy-two percent show decreased blood pressure, systolic and diastolic. Side effects are worrisome. Patients complain of dizziness, nausea, vomiting, and many, approximately 20 percent, suffer severe headaches so debilitating it is necessary to stop the drug. After comparing notes with other med techs here in Nairobi, I strongly suggest that all trials be suspended for Klervex.”

  “Now, Dr. Ulander, were the trials suspended?”

  “No, they were not.”

  “Were there similar reports from the field?”

  Ulander sighed and looked at the defense table, helpless.

  “I have copies of the other reports, Dr. Ulander, if they might refresh your memory,” David offered helpfully.

  “Yes, there were other reports,” Ulander said.

  “And this technician, Darlene Ainsworth, is she still employed by Varrick?”

  “I don’t think so.”

  “Is that a yes or a no, Doctor?”

  “No, she is not employed.”

  “Isn’t it true, Dr. Ulander, that she was terminated one month after sending you this memo about the horrors of Klervex?”

  “She wasn’t terminated by me.”

  “But she was terminated by Varrick, wasn’t she?”

  “Well, I’m not sure how she left the company. She may have resigned.”

  David again walked to his table and picked up a thick document. He looked at Judge Seawright and said, “Judge, this is Dr. Ulander’s deposition from the Klervex litigation two years ago. May I use it to refresh his memory?”

  “Just answer the question,” the judge snapped angrily at the witness. “Was this employee terminated by Varrick one month after she sent you that memo?”

  Startled by the rebuke from His Honor, Dr. Ulander’s memory was instantly refreshed, and he said, “Yes, she was.”

  “Thank you,” the judge said.

  David looked at the jury as he spoke. “So, in spite of these warnings from the field, Varrick pushed on and gained FDA approval in 2005, right, Dr. Ulander?”

  “The drug was approved in 2005.”

  “And once it was approved, Varrick aggressively marketed the drug in this country, right, Dr. Ulander?”

  “I have nothing to do with marketing.”

  “But you are on the board, right?”

  “Right.”

  “Then all hell broke loose. Complaining of severe migraines and other side effects, at least eight thousand Varrick consumers filed lawsuits in 2005, right, Doctor?”

  “I don’t have access to those numbers.”

  “Well, let’s not nitpick here, Doctor. I’ll try to wrap this up a bit quicker. Has your company gone to trial anywhere in this country to defend its drug Klervex?”

  “Once.”

  “And Varrick has settled over twenty-five thousand lawsuits for the drug as of last week, right, Doctor?”

  Nadine was back. “Objection, Your Honor. Settlements in other cases are not relevant to this one. I think Mr. Zinc has stepped over the line.”

  “I’ll decide that, Ms. Karros. But your objection is sustained. Mr. Zinc, no talk of other settlements.”

  “Thank you, Your Honor. Now, Dr. Ulander, do you recall a Varrick drug called Ruval?”

  Ulander sighed again and began to study his feet. David walked to his table to reshuffle his files and fetch another stack of memos extracted from Varrick’s dirty laundry. In short order, he established that (1) Ruval was supposed to alleviate migraine headaches but it also dramatically increased blood pressure; (2) it had been tested on migraine sufferers in Africa and India; (3) Varrick knew of its side effects but tried to bury this information; (4) damaging internal company memos were discovered by trial lawyers in the ensuing litigation; (5) the FDA had eventually recalled the drug; (6) Varrick was still defending various class actions and not a single case had gone to trial.

  At 1:00 p.m., David made the decision to quit. He had grilled Dr. Ulander unmercifully for almost three hours, with no counterpunch from Ms. Karros, and he had scored enough points. The jury, at first amused by the dirt on Varrick, now seemed ready to eat lunch, deliberate, and go home.

  “A quick lunch,” the judge said. “Back here at 2:00 p.m.”

  David found an empty corner of the café on the second floor of the building and was eating a sandwich and looking over his notes when he felt someone approach from behind. It was Taylor Barkley, a Rogan associate, one of the few David had met and occasionally