DONE GONE WRONG

by Cathy Pickens

  “Okay, so I’m a trial observer. I tell you what I think the jury’s hearing, where the holes are, how they’re leaning.”

  “Yep.” He nodded, his freckled forehead wrinkled. “You know you can’t watch everything, when you’re the one on stage.”

  “That’s it?”

  “Isn’t that enough? You can read the depositions, go through the files, see what we’ve got. But I really just need you in the courtroom, watching my back, making sure I don’t miss anything. Until then, enjoy some good Charleston restaurants and get ready for lots of sitting and watching.”

  Considering what he was paying me, it hardly seemed enough of an assignment. Maybe, since this case was running on such a tight schedule, he just needed a security blanket.

  Jake sighed, frustrated. “I don’t know, Avery. We haven’t got enough. Somebody like this Dr. Demarcos you found might help. . . dammit. This is what it feels like to be flying blind and I’ve just never let myself get in this kind of fix.”

  “Jake, every trial is a play, with a story. Right? So what’s the story you want the jury to hear?” I needed to hear him explain how he saw this case.

  He rared back in his chair, his combative bulldog expression returning. “Story? Ten people died. Their wives, husbands, kids all have a story. One woman is paralyzed for the rest of her life; she can’t even hug her grandkids. Two got shot up so bad they may be wearing their own crap in plastic bags for the rest of their lives. Bullets ripped into the sprinkler system. The medics who came in the loading entrance that day still have nightmares about slipping in the sea of bloody water on the floor. My story is getting injured people some money so they can afford to take care of themselves. Avery, you haven’t had a chance to meet these folks, but they would break your heart. All they did was show up for work. Now they got pain and loss for the rest of their natural-bom days. If they live that long.”

  He was hitting his stride. An evangelist’s lilt carried his zeal. I wasn’t a jury, and this wasn’t an act. He really believed in these clients—and in this case.

  I pushed back, challenging him. “What’s going to make the jury want to give you a happy ending? You got people hurt. But some juror, missing work at his own job to hear this case, he’s thinking, hey, stuff has happened to me, nobody gave me millions. This guy went berserk. Go after him. What’s Perforce Pharmaceuticals got to do with your sad story?”

  He knew I meant to goad him, but it still made his face flush. “Avery, they make millions pushing pills that peopie probably don’t need. They get to thinking they’re the saviors of the human race. Imagine that, getting rich while playing God. They get so rich and so godlike, they think their shit don’t stink no more. They’re making millions every year on this drug, why not make them pay for the problems their drugs cause?”

  “That’s not going to be enough—”

  “Some poor schmuck pays money for a pill that’s supposed to help him but, for him and a few others, it doesn’t help, it makes things worse. So he’s hurt. Really bad. You tellin’ me a jury’s not going to hold that company responsible? Perforce made money selling it. They knew, playing the odds, that some people would be hurt. They sure as hell can set some money aside to pay for the harm their wonder drug caused. Maybe they didn’t mean to make Joe Vincent Wilma crazy, but they did. And they’re in a helluva better position to fix things, financially, than the folks who got shot are.”

  “You saying the drug made him go crazy? Or that it didn’t keep him from going crazy?”

  That made him think a minute.

  “In this case, maybe a little of both.”

  “In a case like this, that might not be enough.”

  He smacked his fist on the desk. “I have the guy who wrote the book—literally—on these types of antidepres-sants. He argues they’re overprescribed and that they actually make some people suicidal, even violent.”

  “Okay, that’s a start. How does he come across on the stand?”

  Jake shrugged. “I didn’t take his deposition, haven’t even met him yet. He’s got great credentials. His book is the one that ignited the national debate on these pills.”

  “So he’ll say Uplift made Ray Vincent Wilma start shooting, unequivocally?”

  Jake nodded.

  “You know as well as I do South Carolina juries aren’t fond of ‘stuff happens’ cases. They want good guys and bad guys. They want to gallop in on a white horse and punish the bad guys. You’re going to have trouble if you just say the drug didn’t keep him from shooting, didn’t keep him from going crazy. You’ve got to convince them the drug made him crazy. You know that, Jake.”

  He stretched back in his chair, studying the hunting prints, the mahogany paneling, the deep bookcases, his lips sucking in and out. After a bit, he leaned slowly forward.

  “You’re right, dammit. That’s the difference between bringing a lawsuit and suing somebody, isn’t it? I’ve got a lawsuit, but am I really suing anybody? We can show this drug makes some people jittery or suicidal. But, frankly, did clear evidence develop in time for the company to pull the drug or strengthen the warning label? I just don’t know that we can prove that.”

  Jake was basing his case on strict liability, a no-fault claim, rather than on negligence. Under strict liability, a company could have done everything feasible or imaginable to test its product, to try to make it completely safe. No product can ever be completely safe, though. A predictable but unavoidable number of people will be injured using any product. For a dangerously defective product, strict liability allows the unlucky consumers who draw the short straw to recover for their injuries, while the company spreads the cost of the risk to everyone who buys the product. In theory, spreading the risk makes sense. To hardworking South Carolina jurors, strict liability cases smack of unfairness—making a company pay for something it couldn’t fix.

  “A jury can’t get excited about slamming a company that’s trying to do its best.”

  “Dammit.” He thumped his acre-sized desk with his fist. “I know that. I’d a helluva lot rather have a negligence case, where I could point the finger and punish somebody for messing up.”

  He smacked his palms on his padded chair arms. Not nearly as painful as punching the desk. “Problem is, I’m not sure we can get evidence that moves this toward a negligence case. That’s what I want—I want to prove Perforce was at fault, that they did something wrong, that they could’ve done something to stop this before Ray Vincent Wilma went crazy and mined his life and all those others.”

  He fiddled with the humidor on his desk. When he spoke again, his voice was quiet. “You put your finger on it. That’s why I’m not happy with this case. Avery, you know what I want? I want you to make me happy with it.”

  “I appreciate your faith. But the only thing that ever makes you happy is somebody writing you a big check.”

  “You cut me, Av’ry.” Some of the fire returned to his eyes. “It’s not just about money.”

  “Sure.”

  He leaned forward, earnest now. “You know better than that. Was your paycheck what made you fight so hard for your clients? Watching you in court, I never believed that for a minute. Money makes a great scorecard, but it never inspires passion.”

  “Nice cars, the most incredible historic mansion in Charleston, and playthings galore. Jake, you love money.”

  His tone was serious. “I’d be lying; I like my toys. But they came later. Much later. Weren’t you drawn by the idea you could help somebody, somebody no one else was willing to fight for, somebody who’d been pummeled by the system? Money just tells me whether I’m winning or losing.” He cocked his head, grinning. “I admit, it’s more fun now that my side of the scorecard looks really good. Especially the Porsche. But having money also means I can gamble on cases nobody else will take. This is one of those cases.”

  “Maybe nobody should take this case. Maybe Perforce doesn’t deserve to pay for the acts of a sad, crazy man. You’ve got another problem, if you dare admit
it—some of the people he shot practically asked for it.”

  His reaction surprised me: he nodded in agreement. ‘That’s going to be a tough thing to handle. The whole culture at that plant begged for a shooting spree. Practically every one of them carried guns to work. They ridiculed and sabotaged each other relentlessly. Threw sucker punches in the break room. Even at their friends. Sheesh. The place was out of control, a cauldron.”

  “How do you think the jury’s going to overlook that? They can’t. What about Vincent Wilma himself? The man was a walking wreck, long before he ever heard of Uplift. He was violent. He’d attempted suicide. For years, he’d told his buddies he was going to blow the place up. Heck, he was on disability leave for his nerves when he showed up with his guns.”

  “But look at it. He’d never done anything before. Never. He talked big, like a lot of inadequate losers. But Av’ry, he never did anything. Not until he took Uplift. Not until it carried him over the edge.” He emphasized the last words with jabs of his finger.

  “True,” I said, more to placate him than from any conviction. “But I just don’t see the science to support it. This looks to me like a sad ‘stuff happens’ case.”

  “Not to me, Av’ry.” He leaned forward. “I truly believe Ray Vincent Wilma wouldn’t have rained his life and the lives of everyone at the plant that day had it not been for Uplift. I believe that. My gut tells me Perforce Pharmaceuticals knew that was a risk, knew more than we’ve been able to uncover so far. Certainly more than Pete knew when he filed this suit. We’re on the train now, though. Out of time and rolling. That’s what frustrates me—every instinct I have says there’s more. We just don’t have it. And I’m afraid we’re out of time to find it.”

  I felt like a psychiatrist sitting beside a couch, purring um-hms in a caring tone while the patient discovered for himself what was wrong. No point reinforcing how out of time he was, so I changed the subject. “Have they made any settlement noises?”

  “Nah, not really. They might tomorrow or Monday, though. The judge hasn’t really twisted any arms, at least not since I’ve been involved.”

  “Any way to bluff a settlement offer out of them? You know what a trial like this costs a company. The attorneys’ fees aside—and defense lawyers get paychecks whether it’s win, lose, or draw—think about the salaries their management people are soaking up. While they’re preoccupied with this, they sure aren’t developing and selling new drags.”

  His smile was rueful. “Would you have settled a case like this, Miz Corporate Defense Attorney? You guys can be talked into letting go of some cash when it’s an isolated incident, one without much chance of repetition. But Perforce has other Uplift cases lined up. They know this one looks like the weakest of the bunch. That’s why they’re holding our feet to the fire on this trial date. They’re not afraid of bad publicity from a trial. They’re afraid of a settlement that makes them look like easy pickin’s the next time there’s a suicidal spree killer with a prescription for Uplift.”

  He was right. I wouldn’t offer to settle if I were on the other side, at least not until I’d tested the plaintiffs for a few days in court.

  “Perhaps,” my words ran ahead of what I could deliver, “we can still uncover something helpful. I’ve got some ideas on the medical research end, checking up on Uplift’s FDA approval and use history. A long shot, but...” I shrugged. “If nothing else, you can just plan on taking your A-game into court next week. Sometimes David pops the giant in just the right spot.”

  “That’s encouraging, Av’ry. Very encouraging.” Jake sighed, long and lugubrious, and checked the Waterford crystal clock on his wall. “Lila ought to be here any minute. We’re going over the jury pool, see what she’s got on those good souls. Did you look the list over? Know anybody?”

  “Nope. Not one.” I certainly didn’t plan to stay around and share Jake’s attention with Lila James. Her claws come out and she spends too much energy trying to keep Jake cornered and away from any interloper. Way too much energy. “Better spend my time reading files.”

  He nodded, studying his notes. “There was something else. Oh, their experts. Do you have a list?”

  “I haven’t seen theirs, and I don’t have a complete list of your witnesses.”

  “I thought I’d asked Lila to get you that already.” His tone said he thought he’d forgotten something. My experience said he hadn’t forgotten—and neither had Lila.

  He pushed a sheet of paper across to me. “Our main expert seldom agrees to testify, so he won’t come across looking like a hired gun. He’s written books deriding psychiatric drags and medical-establishment approaches to mental illness, depression in particular. I’m also planning to use Perforce’s own people as my witnesses. Radical, I know...”

  I tried to read and listen. Then I didn’t hear him any more, transfixed on one name. Dr. Langley Hilliard.

  “They’re using Langley Hilliard?”

  Something in my tone clued him in. I could almost see the pieces trickle into place in his brain.

  “Oh, God. Avery.”

  Langley Hilliard had been my expert witness and the reason I’d left Charleston three months earlier, out of a job and, in my irrational moments, wondering if “Want fries with that?” was in my future. Now here the SOB was again.

  “Is this Lila’s idea of a joke?” I knew my face was red, and my eyes burned. The ice in my voice wasn’t lost on Jake.

  “Avery. I thought you knew he was involved.”

  “She thinks it’s funny to blindside me with that pompous, self-serving asshole? Some warped sense of fun.”

  “Avery, I swear. I thought you knew. I certainly didn’t expect it to still be this raw with you. You really need to get a grip.”

  “Raw?” The word rolled up out of my throat, my voice husky. If Jake had known me well, he’d have known to be afraid. “Jake, the son of a bitch is a liar. He lies under oath. Anything to win. That’s the kind of case you like? Then you shouldn’t have bothered calling me.” I was out of my chair and pacing.

  “Avery.” Jake seemed to think repeating my name and patting the air with his hands would somehow cool me off. “I don’t know what happened with you and Hilliard last October, but I’ve been in cases with him before. He’s a bit old-fashioned, with a doctors-are-God complex, but I’ve not had any problem with him.”

  “You can’t trust him, Jake. He’s slick and he’s believable. And he’s a gahdammed liar.” I punched the last word out with venom.

  “Av’ry.” Jake moved back to using a placating drawl. “That’s exactly why I needed you. You know this medical mumbo jumbo backwards and forwards. You’ll be able to sniff it out, if Hilliard or anybody else stretches anything. They’re using Hilliard as an expert on research protocols. If anybody can give me what I need to break him down, it’s you.”

  “So you did set me up. Jake, you sorry son of a bitch.”

  “You gotta clear your head, honey. I didn’t mean to surprise you with this. Why the hell would I do that? That’d be suicide. I thought you knew, figured you’d seen his name on a witness list, read his deposition, that Lila had briefed you. Something.”

  “Lila—”

  He cut me off. “Don’t bother goin’ there, either. We’ve both been running like something crazy, trying to get ready for this trial. We’ve got loose ends flapping around all over the place. Hell, you haven’t even had time to read through half the pretrial discovery. So get off your conspiracy pony and decide whether you can handle being in the same courtroom with Hilliard again or whether you’re going to slink off with your tail between your legs.”

  Damn him. His careful aim pricked my righteous indignation in just the right spot—my stubborn refusal to back down from a fight. I slid into my chair, my jaw muscles still knotted.

  “Jake, you’re still a son of a bitch.” But he was right. Hilliard was on the other side. If he tried some of his slimy slip-and-slide, we’d make sure the jury spotted the slug trail.

 
Jake visibly relaxed. “Av’ry, we gotta keep some perspective on this. We can’t let prejudices or grudges cloud our judgment, can we?”

  We?

  “You have a copy of his deposition I can take with me? I’d like to read it tonight, before I see Demarcos tomorrow morning.”

  “Sure. We keep all that in the storage room, next to the file cabinets you’ve been rummaging through. The depositions are in notebooks, alphabetical by last name.”

  “Any other surprises before I take my homework assignments and go?”

  “Now, how the hell am I supposed to know what’s going to set you off the next time?” He gave me an impish smile.

  “Just lie to me. That’ll do it every time.”

  “I consider myself warned.”

  My stomach was giving me that little butterfly-nervous feeling I get when I’m heading where I shouldn’t. I hadn’t been sure about working on this case. After all, can a defense attorney change her stripes? Even the scant few criminal cases I’d been involved with pro bono or while clerking had been on the defense side. Being the pursuer was an unnatural act, maybe a switch I couldn’t make. Plaintiffs’ lawyers tend to be renegades. I’d seen only a few driven by principle. Most seemed driven by nothing but the next payment on their sports cars.

  Jake Baker did a good job talking the passion, but I hadn’t been able to watch him close up for long enough to tell what he was made of, how much of it was principle. This trial would tell me. It would also tell me whether moving from one side of the courtroom to the other was an uncrossable divide.

  Jake led the way down the hall. My feet sank into the thick carpeting, the gilt-framed artwork closed the walls in on us. The utilitarian workroom was hidden from clients and lined with binder-filled shelves and steel filing cabinets. “Here’s Hilliard’s deposition. It’s a big one. Here’s a couple of others that cover some of the same points. These witnesses won’t come up until later in the case, so we’ve got some time to develop—hell, what am I saying? We don’t have time for anything.” He smoothed the crown of his wiry gold hair.