Second Degree (Benjamin Davis Book Series 2)

by A. Turk

  Two days later, Charlie and Señor Garcia were seated in Amy Pierce’s waiting room. Pierce specialized in defending physicians brought up on charges before the Medical Licensing Board. Señor Garcia had flown down to Nashville on a private jet to come to the aid of his son, yet again.

  Pierce greeted Dr. Garcia and his father and led them back to her office. She sat at her desk, and the Garcias sat across from her in blue leather wingback chairs. Señor Garcia noticed a picture of a young man, who looked about ten or eleven. He asked, “Is that your son?”

  “Yes, his name’s Carter, my only child.”

  Pierce didn’t get into the reasons that she was a single mother and that her disbarred husband, Dan Smith, a drug addict and alcoholic, had seen Carter only once in the last several years.

  “Charles is my only child, so you must know how I feel and that I would do anything to help him.”

  Pierce knew about protecting children. She’d tried to protect Carter from Dan throughout Carter’s life. When the son of a bitch was drunk, he was unpredictable and sometimes violent. Once when they were still married, Pierce was working late, and Dan was supposed to be watching Carter. But he started drinking and behaving wildly, and the child became agitated. Dan picked up the little boy but dropped him, headfirst, onto the edge of the coffee table. Carter was not seriously injured but required stitches, and he still had the scar. Pierce never left her son with Dan again, and she swore he would never have a chance to hurt Carter again or have a role in their lives.

  “Of course. I’ve read the charges as well as the two lawsuits filed in the Circuit Court by Jackson Willis. Mr. Paul was kind enough to fax them over. I must be frank. These charges are very serious, and they could cost your son his Tennessee medical license.”

  Señor Garcia spoke again, “You’ll make sure that doesn’t happen.”

  “I understand from Mr. Paul that there was a third lawsuit that just settled, brought by Benjamin Davis. He represents Dr. Nichols in the other two lawsuits.”

  No one in the room liked Ben Davis, but they agreed that he was a force to be reckoned with.

  “I’ve had my share of trouble with Ben Davis. You’ll be happy to know that the last time my client was charged by him in front of the Medical Licensing Board, my client got off.”

  Pierce failed to mention that her license was suspended for three months at the end of that case because she breached confidentiality and reported a settlement to the IRS.

  She directed her next question to Charlie: “Mr. Paul tells me that you’re also licensed in New York. There haven’t been any charges filed there yet, right?”

  Charlie got very upset. “You mean I might get charged in New York too?”

  “It’s certainly a possibility. Tennessee would send its findings to New York if your Tennessee license were revoked.”

  Señor Garcia stated firmly, “Ms. Pierce, we can’t let that happen. How much is your retainer?”

  “I need $10,000, and I bill at $400 an hour.”

  She’s a bargain. Harrelson charges $800. I guess that’s Nashville’s prices compared to New York’s, thought Garcia.

  Pierce had recently started her own firm, Pierce & Associates. She had been a partner at Dunn, Moore and Thomas, but when she was suspended, they dropped her like a hot potato. At first she was furious, but now she liked being on her own, her own boss, answering to no one. She’d actually pilfered two associates from DMT, and she supervised them with an iron hand.

  Señor Garcia didn’t blink an eye. He pulled out his wallet and counted $10,000 in hundreds. Pierce wrote a receipt, and she had a new client, Dr. Charles Juan Batista Garcia.

  CHAPTER TWENTY-SEVEN

  A LIAR IS DEPOSED

  Monday, April 21, 1997

  Jack Willis was persistent. He reminded Davis of himself. Willis was relentless in trying to get discovery. The purpose of discovery, interrogatories (questions answered on paper under oath), request for admissions (affirmative statements, which had to be either admitted or denied), request for production of documents (providing the other side with responsive documents), and depositions (questioning a witness in person, under oath) is either to find out information or to box witnesses into a corner and force them into taking a position. Dr. Garcia, through his attorney, Lester Paul, had done a masterful job of saying nothing in response to Willis’s discovery.

  Today, Dr. Charles Garcia had no place to run. Lester Paul would be at Garcia’s side, but he could not prevent the inevitable. Dr. Garcia had to answer the questions. Willis wouldn’t take “I don’t remember” as an answer.

  Paul insisted that the deposition take place at his office. Davis thought such posturing was childish. Where a deposition took place was irrelevant. Davis was mistaken. Paul wasn’t posturing; he simply wanted access to his private office at breaks so he could smoke his cigarettes. It was his haven. It smelled like an ashtray, and several of his partners constantly complained.

  The deposition was scheduled to begin at nine. Davis brought Sammie along for the experience. She could learn from Willis. The deposition promised to be exciting, the subject matter wasn’t going to be boring, and the deposition of a bad liar was always the most fun.

  Willis walked in with Christy Howard. She was a pretty woman, conservatively dressed in a black business pantsuit. Her long red hair was pulled back into a fiery bun, which was set off by her pale skin and blue eyes. She looked like a schoolteacher rather than the woman who posed so provocatively on her website.

  Everybody sat at the conference table. Dr. Nichols elected not to attend; he’d read Dr. Garcia’s deposition. He didn’t want to be in such a confined space with Garcia. He’d confided to Davis, “The little slime ball makes my skin crawl.” And he was concerned he’d become too emotional.

  In Nichols’s place, Donna attended as the company representative. Bob Sullivan was Nichols & Garcia’s attorney.

  Because it was his office, Lester Paul took charge of the room. “There’s coffee, juice, soft drinks, and water over on that table. Please help yourself. It’s nine thirteen. I thought we’d break at noon for a one-hour lunch. The deposition will end precisely at three thirty. Dr. Garcia has a five o’clock flight to New York.”

  Willis remained calm, but he was annoyed that Paul was trying to limit the time of his examination of Dr. Garcia. He said, “That’s fine. We’ll respect Dr. Garcia’s travel arrangements, but I already know I cannot complete this deposition in less than five hours. I insist that we set a continuation of the deposition right now, or I’m getting the judge on the phone.”

  Willis wasn’t bluffing. Davis used the threat all the time. Most lawyers were afraid to get a judge on the phone when they were being obstructive or difficult. Paul tried to convince Willis to begin without the agreed upon date to resume, but Willis wouldn’t budge. Everybody but Davis had his calendar, so he had to call Bella to get his available dates over the phone. It was agreed that if Willis didn’t complete Dr. Garcia’s deposition by three thirty, the deposition would resume on May 19th, and they would not break until completed. The plaintiff Howard’s deposition was scheduled for May 22nd. She’d have the benefit of hearing Dr. Garcia’s testimony before she’d have to give hers.

  By the time the logistics were worked out, it was ten fifteen, and the deposition had been scheduled for nine. They were already an hour and fifteen minutes late because of Paul’s and Willis’s maneuvering. Paul wanted to take a smoke break but was afraid to ask the others. He started cracking his knuckles, and Davis noticed his yellow fingers from the nicotine.

  The court reporter administered the oath, and the deposition began. The video camera was turned on, and the image of Dr. Garcia appeared on the television screen. Willis had gotten permission from Judge William “Billy” White, the judge in the Howard and Perkins cases, to videotape the depositions of Dr. Garcia, Dr. Nichols, and Donna. Lester Paul, Dr. Garcia’s attorney, got permission to videotape the depositions of Anna Perkins and Christy Howard. White, for e
conomy reasons, had been assigned both cases. A jury demand was made by Willis in each case.

  Willis spent the first forty-five minutes establishing Garcia’s background and education. Willis asked a lot of questions about Majorca, where Garcia spent part of his childhood. He established that Dr. Garcia came from wealth and that his mother was the niece of the Cuban dictator, Batista. There was plenty of time to get to the juicy stuff.

  Willis established that Garcia maintained a Tennessee medical license and a New York medical license and that the Tennessee Medical Licensing Board had brought charges against him based on the allegations of the Perkins and Howard cases.

  When Willis started asking questions about the charges pending before the board, Paul objected, “I don’t represent Dr. Garcia in the board proceeding. Ms. Amy Pierce represents him in that matter. This is a deposition in the Howard civil case, not in those proceedings. I had no notice that the board charges would be an issue. I insist that Ms. Pierce be present when you question Dr. Garcia about those charges. She needs to be afforded an opportunity to object and advise her client regarding those pending charges.”

  Davis knew that argument was without merit, but Willis took it in stride.

  “Mr. Paul, please advise Ms. Pierce that on May 19th, when we resume this deposition, I will be inquiring into the board charges. She’s invited to attend if she feels her presence is necessary. However, with or without her, I will question Dr. Garcia about the board charges on that date. I’m not changing that deposition date. If she can’t attend, she can have one of her associates attend, or she’ll need to get relief from Judge White or forever hold her peace.”

  Willis then pulled the patient chart of Christy Howard maintained by Nichols & Garcia. He established when Ms. Howard became a patient in February 1996.

  “At the time were you employed by Nichols & Garcia?”

  “I was an employee of the company, and I owned one percent.”

  “What was the purpose of the first meeting?”

  “It was an initial consult to evaluate and discuss options available to the patient.”

  “You would agree that at the first consult, you established a doctor-patient relationship with Ms. Howard?”

  “She was there for a consult. I wasn’t treating her at that time.”

  “As her doctor, you owed Ms. Howard all of the professional and ethical obligations that a doctor would owe one of his patients?”

  “I don’t know. If I give someone an aspirin, is she my patient? If I answer a medical question asked, does that make her my patient?”

  Paul objected, “I think that calls for a legal conclusion.”

  “He’s a doctor. I’m entitled to know when in his opinion he believes a doctor-patient relationship begins.”

  “He’s answered the question. He doesn’t know. Move on.”

  “At that first visit you said you made an evaluation and then discussed her options, correct?”

  “Yes.”

  “After you made your medical evaluation and then gave her, in your medical opinion, her options, did that establish the doctor-patient relationship?”

  “I don’t think so because I hadn’t treated her yet.”

  “Isn’t giving medical advice treating a patient?”

  “Is it medical advice to discuss with someone whether to use Motrin or aspirin?”

  “Look, Doctor, I’m the one asking the questions, not you. You need to start answering my questions, or I’m going to get Judge White on the phone.”

  Paul stood at the table and, louder than intended, said, “Don’t threaten my client.”

  It was starting to get ugly. Davis just sat there. If Willis called the judge and was able to get him on the phone, it wouldn’t be good for Dr. Garcia. Davis didn’t care whether Garcia got in trouble with the judge or not, but Dr. Nichols was paying Davis $400 an hour to sit there, so something productive might as well happen.

  “Jack, you’ve preserved your record. Why don’t you ask him whether he eventually established a doctor-patient relationship with Ms. Howard after he started treating her?”

  “Mr. Davis, this is my examination of the witness, not yours. If you have an objection on behalf of Dr. Nichols, make it, or mind your own business.”

  Davis looked at Sullivan, and they silently agreed this wasn’t their fight. They’d let Willis and Paul just go at it.

  Willis was so angry with Davis he’d lost his train of thought and moved on to the next subject without establishing that a doctor-patient relationship ever existed.

  “Who is Robyn Eden?”

  “She was an employee at Nichols & Garcia. She was the receptionist.”

  “Is she a patient? Did you treat her?”

  Paul actually came out of his chair. “Objection, you have no right to ask the doctor about other patients. I direct him not to answer that question.”

  “If you want to get the judge on the phone, let’s go. This lawsuit is about this doctor dating and having sex with his patients. If Ms. Eden has been treated by Dr. Garcia and he had sex with her, that’s relevant to this case.”

  Paul responded, “We agreed that we’d break at noon. It’s noon.” He desperately needed a smoke.

  Willis didn’t care. “No, you said that we’d break at noon. I never agreed to that. Check the record. I’m going to finish this line of questioning.”

  “That’s fine. You’ll do it without my client and me. We’re going to get a sandwich and will be back at one.”

  With that Paul, Harrelson, and Dr. Garcia got up, left the table, and walked out the door. The others at the table sat there dumbfounded.

  Rubbing his beard, Sullivan was the first to speak, “I guess we better get some lunch.”

  Davis and Donna stood to follow Sullivan.

  Willis grabbed Davis’s arm and said, “Ben, I’m sorry I lost my cool. Paul is such a horse’s ass. I know you were only trying to help and move things along. I can’t stand Garcia, and I don’t like Paul any better. Sorry.”

  “It’s okay. We all get frustrated at times. You’ve got his answers, and his demeanor is preserved on video. At some point you’ll go to Judge White. Build your record, and give Dr. Garcia enough rope to hang himself.”

  “You’re absolutely right. After today, I’ll get to depose this asshole at least twice more: in the continuation of this deposition, on May 19th, and in the Perkins case. He’ll be sick of me before I’m through with him.”

  Everyone left the conference room and had lunch. By one, all of the players were back in their seats.

  Willis started right back in. “Who at Nichols & Garcia knew that you were dating Robyn Eden?”

  “I don’t know.”

  “Did you keep your relationship with Ms. Eden a secret?”

  “It was my personal life. It wasn’t anybody’s business.”

  Willis artfully established that Ms. Eden was an employee and patient of Dr. Garcia. He established that their personal relationship began around the end of 1995. Davis laughed to himself. Lester Paul just missed Willis’s sly way of proving Robyn Eden was a patient, and Dr. Garcia had a doctor-patient relationship with her. Paul must have been half asleep, dreaming about his unfiltered Camels.

  “Did you date your other patients?”

  “Yes.”

  “Did you date Ms. Howard after she became your patient?”

  Garcia admitted having sex with Ms. Howard but claimed she instigated sex. Willis asked if there were other patients.

  Paul objected, “He’s not going to identify the names of his other patients.”

  “What about Anna Perkins?”

  Paul yelled out, “That’s not relevant to the Howard case.”

  Now it was time for Willis to get angry. “Like hell it’s not. It shows a pattern of conduct. As counsel for Ms. Perkins, I waive any confidentiality she might have to Dr. Garcia disclosing that they dated and had sex.”

  “I don’t think you can make that waiver.”

  “Ms. Perkins
has sued the man for $10 million. I don’t think she’d mind his admitting to having sex with her.”

  Paul was getting red in the face, and his glasses made his eyes look like they were bulging. “I don’t care what you think, Mr. Willis. What the law says is relevant is what counts.”

  Willis turned to Garcia, “But you admit you had sex with Ms. Howard after the doctor-patient relationship was established?”

  “Yes.”

  “How many times?”

  Garcia couldn’t remember how many times. Willis established that it was less than fifty and more than five.

  “What about Ms. Perkins?”

  Paul objected again, “This isn’t a deposition in the Perkins case.”

  “We’ll be talking to Judge White before May 19th, the next time we’re together. I’m confident he’ll rule that this line of questioning is relevant.”

  In his mind, Davis agreed with Willis.

  “Let’s try it a different way. How many female patients did you have sex with, with whom you had a doctor-patient relationship?”

  Paul didn’t object, and Garcia just sat there. Davis assumed he was mentally counting the number of patients.

  “Six.”

  “Does that include Ms. Howard, Ms. Perkins, and Ms. Eden?”

  “Seven.”

  “So, you had sex with seven female patients when you worked for Dr. Nichols?”

  Davis, who was listening intently, objected. “Dr. Garcia never worked for Dr. Nichols. Nichols & Garcia, a professional corporation, employed him. Dr. Nichols was not his employer; he’s just another employee. I don’t even understand why he’s a defendant in this case.”

  Willis, on edge, snapped at Davis, “Dr. Nichols is a defendant because I sued him. If you’re so sure he shouldn’t be here, file a motion for summary judgment, and see if Judge White will let Dr. Nichols out.”

  “That’s why I’m glad you’re conducting this deposition, so I can file parts of it with the court in support of my motion.”

  Davis forgot that the camera was running, or he wouldn’t have made the last remark. After the taking of Dr. Garcia’s deposition, he did in fact plan on filing a motion for summary judgment.