That got another chuckle from the jury, and Bob’s jaw muscles tightened.
The video ended with Joel saying, “Mom, I love you. I know I’ll see you again, so I’ll be good until then.”
Tears streamed down Rebecca’s face. I stared at a spot on the wall, unable to move. Fatigue and emotion choked me. I finally rose and turned off the video.
“The plaintiff rests, Your Honor.”
The defense testimony on a “battle of the experts” case was the same as the plaintiff’s, just in reverse. Bob put on expert after expert, and I asked essentially the same questions he had asked my experts: How much are you being paid to be here? You’ve never testified for the plaintiff in a civil case, have you? Do you make mistakes in your work? What was your last mistake?
I tried to challenge the credibility and motivation of each expert. Some experts were too good, and the best I could hope for was to ask a few questions, score a few points, then sit down before actually bolstering their testimony.
Olivia helped me here. I was just too exhausted to keep going. She picked up the reins and did a fantastic job cross-examining a pharmacist who stated that acetonitrile in the doses found in Herba-Cough Max wouldn’t kill a boy like Joel.
“You being objective, Mr. Brail?” she asked.
“Dr. Brail, and yes.”
“Mr. Brail, you make mistakes in your work, don’t you?”
“No.”
“Really? You’ve never made a mistake in your work as a pharmacist or as an expert for the defense?”
“Little oversights, I guess. But I know what you’re asking. You’re asking if my analysis could be wrong, and no, I don’t believe it could.”
“Approach, Your Honor?”
“You may.”
Olivia flashed Bob a document that we’d downloaded from a scientific journal, and then marched to the stand. Because Olivia was using the document to impeach—to call into question the credibility of the witness—we weren’t obligated to send it to Bob prior to the trial. “What is this, Mr. Brail?”
He looked at the document. “It’s a paper I wrote ten years ago.”
“A paper on vaccination for HPV, human papillomavirus infection, is that right?”
“Yes.”
“Please turn to page thirty-two of that paper.”
Brail sighed and turned to the page. “Yes. I’m here.”
“Third paragraph, second sentence. Please read it.”
“Patient twenty-six showed signs of irritation in the upper right quadrant of the vulva.”
“What does that mean?”
“It means her vulva became irritated during the study.”
“On the last page, I’ve included a list of the patients. Please tell us the name of patient twenty-six.”
“Counselor, I don’t know what—”
“Mr. Brail, please read what I asked you to read.”
He rolled his eyes and flipped to the last page. His face changed. It went from the bored confidence he’d displayed during the rest of the cross, to confusion. He flipped back to another page, and then another.
“You seem concerned,” Olivia said.
“It’s . . . nothing big. Just a typographical error. Must be.”
“Please tell us what the error is.”
He glanced to Bob. “Patient twenty-six is a male.”
“Last I checked, males don’t have vulvas, do they?”
“No, Counselor, they don’t.”
“So that was a mistake, wasn’t it, Mr. Brail?”
“Yes.”
“You made a mistake.”
“It’s a minor oversight.”
“This study was published in the Journal of Vaccination Studies, wasn’t it? People are going to be relying on this when they make recommendations to parents about vaccinating their young girls. Yet you didn’t know you’d made a mistake until I pointed it out to you.” He remained quiet. “Mr. Brail, you wouldn’t know if you’ve made a mistake in your analysis in this case, would you?”
“It’s Dr. Brail, damn it!” he blurted out.
I grinned as Olivia sat back down next to me. I fist-bumped her when the jury wasn’t looking.
The essence of the testimonies of Bob’s experts was that, yes, acetonitrile had been and still was manufactured at the plant in Utah, but foolproof procedures separated the nail polish remover from everything else. Acetonitrile could not have been mixed in with any other product. The quality-control manager of the plant was a good witness and explained, for four and a half hours, the process of the plant to ensure that substances used in one product don’t leak into another.
“If an employee came to you,” I said, “and told you they had tainted children’s medicine with acetonitrile, you would fire that employee, wouldn’t you?”
“Well, yes. We can’t have someone that careless working for us.”
“And if someone didn’t want to get fired, the best way to assure that would be to not tell you.”
He shrugged. “I couldn’t say what another person would or wouldn’t do.”
The back-and-forth on expert cross-examination was trench warfare: each side tried to get just one more point with the jury than the other, and each point had to be clawed and fought over.
Another two weeks went by in a flash. I had accepted that I wouldn’t sleep, so I drank a few tumblers of brandy before bed every night and tried to get as much rest as possible. In the morning, I had just enough energy to throw on a suit—most of the time, I wore the same one I’d worn the day before—and sluggishly make my way to court.
Olivia kept me going. When I forgot to eat, she would make a smoothie for me so I got some nutrition. When I pushed myself too far preparing for the next day, she would close my laptop and make me go outside for a walk with her. When I felt like I couldn’t go on anymore, she would hold me in her arms and tell me to keep fighting. Without her, I knew I wouldn’t have made it through to the second month.
Darren Rucker testified on a Friday. He was my star witness, even though I hadn’t called him. If I had, I could’ve only used direct examination and couldn’t ask leading questions, so instead, I’d let Bob call him. My plan was simple: I was going to hammer him with all 254 email customer complaints and introduce them as evidence—preferably, after he read each and every one to the jury.
“Tell us what happened when you found out about this tragedy, Mr. Rucker,” Bob said to him after about thirty questions.
“I was devastated. I mean, this was the company I’d devoted my life to, and now, here were three little children who were sick because some maniac decided to use us as a murder weapon. I can’t describe to you how awful I felt.”
“What actions did your company take?”
“We set up a task force to deal with this immediately. We hired investigators and worked with the FDA to get everything off the shelves as fast as we could. We were open to the media, we opened our labs to the FDA and law enforcement . . . I can tell you I got very little sleep during that time. Same for the CEO, Mr. Holloway.”
“You did everything you could?”
“We did everything. I don’t even know how much money we spent to stop this. It felt sometimes like Mr. Holloway was willing to go bankrupt if he could save more kids from getting poisoned. We did everything we could.”
Bob nodded. “Do you regret what happened?”
“What kind of question is that? Of course I regret it. If I could, I would gladly give my life to save that boy’s. But life doesn’t work that way. All I know is I went down to quality control after this happened and had them walk me through the process of handling acetonitrile. There is no way any of our acetonitrile got into Herba-Cough Max. It’s impossible.”
“Thank you,” Bob said.
I stood up. “You said the first thing you did was get a task
force together, right?”
“Yes.”
I lifted an email off my desk and asked the judge if I could approach the witness. “What is this, Mr. Rucker?”
He looked it over. “It’s an email.”
“It’s an email from you to your head of distribution, correct?”
“Yes.”
“And it’s dated April eighth, correct?”
“Yes.”
“The date after this story became public.”
“I guess so.”
“Please read the email for the jury.”
He hesitated, then began to read. “Taylor, we need to assure everyone that only Herba-Cough Max is affected. I want personal calls to all the major pharmacies and grocery chains. Assure them everything else is fine and testing clear.” He handed the sheet of paper back.
“So the first thing you did was not setting up a task force, was it? It was making sure that your distributors didn’t pull all your products off the shelf.”
“I did a lot of things. It was a chaotic time. None of us were sleeping. We were working tirelessly to make sure everyone was safe. We even asked that all bottles of Herba-Cough Max be disposed of.”
“Oh, right. You asked everyone who had Herba-Cough Max to throw it away and not use it, correct?”
“Yes. We felt that was the safest course.”
“They also can’t test it, can they?”
“I don’t know what you mean.”
“I mean, if they throw it away, those bottles can’t then be tested to find out if they contained acetonitrile, can they?”
“We did it for their safety. Not because we were worried about tests.”
I took out the big guns. A stack of 254 emails. I approached him slowly and stood in front of the witness box.
“How many complaints did Herba-Cough Max receive before April seventh?”
“Something like two hundred and fifty.”
His honest answer surprised me, and I had to pretend to look at the pages for a moment.
“Please read this first email.”
He looked at the sheet of paper, then back up at me. “No.”
“Excuse me?” I said.
“I won’t read it. I know what you’re trying to do. You’re trying to make it look like we knew about all these sick children and we still kept the medicine out there just to make money. I won’t do that. This company cares about people, and I won’t do that to them.”
I looked to the judge. “Your Honor?”
“Mr. Rucker,” the judge said, “those are exhibits that have been marked for introduction. They are part of the case. If Mr. Byron would like you to read one, please do so.”
Rucker shook his head. “I won’t do that. That’s slimy, and I won’t do it. I don’t care if I go to jail. I died the day I found out about those kids. I’m not going to sit here and help you make us look like we’re monsters. I won’t do it.”
“You had almost three hundred parents telling you your medicine made their children sick, and you did nothing about it, and you’re going to sit there and be upset that I want the jury to hear it?”
“Do you know how many bottles of Herba-Cough Max we’ve sold? In the millions. A certain number of complaints are expected. It says on the bottle, which I don’t know if you’ve actually read, that there may be adverse side effects because no medicine is a hundred percent safe. The multivitamins you take in the morning cause half of one percent of the population to go into anaphylactic shock. Do you expect the vitamin company to pull it off the shelves?”
“I expect them to warn me.”
“We did warn them. Read the bottle. We don’t know what it will do to everyone. We don’t know if someone tampered with it at the stores. We don’t know everything—we can’t. I have children, too. You think I’d just let them take tainted medicine? Medicine is as much art as science. It took me six years of practicing as an ER doctor to figure that out. That’s why I’m working for a pharmaceutical company. We help more people every single day than I could’ve helped in a lifetime as a lone doctor.” He shoved the emails aside. “I’m not letting you turn all our good work into another yacht for you. We save lives. What do you do, Mr. Byron? Other than robbing those who help people?”
I swallowed. My throat felt like sandpaper. My heart was beating so hard, I thought the jury could hear it. I fumbled with the papers, and a few of them fell. “I . . . um.” I glanced to Rebecca. She wasn’t looking at me.
I looked at the jury. They weren’t on my side anymore. They were staring at Rucker as if he were someone they needed to protect from me. I sat back down. “Nothing further for this witness, Your Honor.”
42
We sat in the conference room at the office that night—Marty, Raimi, Olivia, and I. No one said anything for a long time until Marty finally commented, “That went really bad, Noah. They were sympathizing with him. They felt bad that he had to be up there, going through this.”
“We should settle,” Raimi said. “They won’t offer the same, but if they offer anything, we should take it.”
Olivia sat upright, her back straight and her arms close to her body, as though preparing for an attack. She seemed pissed, either that we were losing, or that she had to watch me go through that. “They’re still scared. Before today, it could’ve gone either way.”
“Sorry, missy, but you’re not even really an attorney here,” Marty said. “I don’t even know what you’re doing here.”
“Hey, I’ve done more on this case than you did.”
“I’m one of the partners here. You don’t speak to me that way.”
I drifted off and stared out through the glass walls into the law firm. I had lost the case. I had a sense for juries, of when they were on my side and when they weren’t. That one witness had turned them against me. I rubbed my forehead. Raimi was right. We needed to settle for whatever pennies they would throw our way.
For some reason, just then, I thought of my father. I wondered if he would want to see me like this: defeated. In a way, he could never defeat me. One time, he beat me and I didn’t cry. He kept hitting me, and I wouldn’t respond. He stopped beating me after that. At that moment, he realized he couldn’t defeat me.
No, I wouldn’t let them do this. There was something . . . there was always something. Since I was a kid, I’d held an unshakeable belief that if a person wanted something bad enough, the universe would provide it. There was something in us that touched a mystery beyond ourselves . . . there had to be. Otherwise this was all for nothing.
I stared out into the firm for a good half hour while everyone argued. Then I noticed something. I glanced into the office of one of the paralegals across the hall. She had photos of her kids on her desk. Her kids . . .
“He said he has kids,” I interrupted, as the three of them were arguing.
“So?” Marty said.
“Raimi, I want to send out a subpoena for Rucker’s kids right now. How can I do it?”
“What?” Marty said. “That’s crazy. The defense needs notice. You can’t just call witnesses.”
“Raimi, there’s gotta be a way.”
He thought for a second. “I guess if you called them as impeachment witnesses under Rule 607, the notice requirement might be waived. But they’d have to show that Rucker was untruthful on the stand. Otherwise, it’s not impeachment.”
“I’ll draft the subpoenas. Marty, call Bob and let him know what we’re doing. Get the judge on the phone in my office,” I said, hurrying out of the room.
“What? What the hell are you doing, Noah?”
“Winning this case.”
I waited in my office for the conference call. Raimi sat across from me. The phone rang, and I heard Judge Hoss’s voice.
“Mr. Byron, I just received this fax stating you have subpoenaed three of Mr. Rucker’s chil
dren.”
“Yes, Your Honor.”
“This is one of the most underhanded, disgusting schemes,” Bob bellowed into the phone, “by any defense counsel I have ever worked with. To drag children into this is deplorable.”
“They’re impeachment witnesses, Judge. I need them to show that Mr. Rucker was untruthful today. I don’t need to give notice to the defense for impeachment witnesses.”
The judge said, “Mr. Walcott, what are the children’s ages?”
“Eight, ten, and thirteen. Your Honor, I would demand immediate sanctions for sending those subpoenas to my client’s—”
“Hold your horses, Mr. Walcott. I’m making my ruling. I’m quashing the subpoenas for the eight-year-old and ten-year-old. And shame on you for trying that, Mr. Byron. I will allow the thirteen-year-old to testify if he can show that Mr. Rucker was untruthful on the stand. If not, his entire testimony will be stricken. Mr. Walcott, can you get the boy there tomorrow?”
“I don’t know, Judge.”
“He’s thirteen. Just write him a sick note and get him there. I don’t want to keep this jury any longer than necessary.”
“Yes. Fine. I’ll get him there.”
“Good. Mr. Byron, you have a short leash. If I feel you are abusing that boy in any way, his testimony will end.”
“I understand.”
“Good. I’ll see you tomorrow then.”
I hung up the phone and stared at Raimi. He said, “I hope you know what you’re doing.”
“Me, too.”
43
I was walking into the courtroom when someone pushed me from behind. Darren Rucker stood there, his face contorted with rage.
“You cocksucker!” He stuck his finger in my face. “My kids? You’re going to drag my kids into this! When this is over, I’m going to have your Bar license. Count on it.”
I let him go in first, then I went and sat at the plaintiff’s table with Olivia and Rebecca. The judge came out, and we all rose. He sat, booted up his computer, then said, “The plaintiff has made a request that an impeachment witness be called. I have granted that request. Please bring out the jury, and we’ll proceed.”
An Invisible Client Page 20