Bodily Harm: A Novel

  Sloane checked his notes. Satisfied, he addressed Judge Rudolph. “I have nothing further on direct.”

  Reid strode to the podium. “But you don’t know that for certain, do you, doctor. As you’ve just said, that’s a guess.”

  “It’s an educated deduction from the evidence.”

  “But not the physical evidence as you’ve described with respect to the condition of the McFarland child’s body, correct?”

  “Correct.”

  “You cannot state with certainty that the magnets caused perforations to the child’s intestines.”

  “I cannot.”

  “And you could not conclude that the magnets caused any transient bacterial infection that occurred just before death.”

  “I could not. The body was too badly decomposed.”

  “Doctor, in giving you your assignment, did Mr. Sloane advise you that he obtained a medical malpractice judgment against the doctor who treated Austin McFarland?”

  Sloane stood. “Objection, Your Honor, it’s irrelevant.”

  “Sustained.”

  “Dr. Desmond, did you inspect these magnets that you removed from Austin’s body closely?”

  “I did.”

  “And did they have any markings on them of any kind?”

  “No, they did not.”

  “And is the same true with respect to the magnets found in the Gallegos child?”

  “That’s correct.”

  “Nothing that would indicate to you a serial number or anything of that sort?”

  “No, nothing like that.”

  “And you are not here to render any conclusions as to the source of these magnets.”

  “I don’t have any such knowledge.”

  “You don’t really care?”

  Sloane stood. “Objection, Your Honor. It’s irrelevant.”

  “Sustained.”

  “The source of the magnets is not significant to the conclusions you’ve shared here today,” Reid said.

  “No, it is not.”

  “So you don’t know if the magnets came from a toy, or an electric toothbrush, or any other of a number of household appliances that the child could potentially have gotten hold of. In fact, the magnets might not necessarily have even been in the child’s home. They could have come from school or any number of other locations.”

  Sloane stood again. “Objection. Counsel’s testifying at this point, Your Honor. Dr. Desmond has already answered that he doesn’t have such knowledge.”

  “Sustained.”

  Reid’s strategy was simple. She would not dispute that which was indisputable—that Mateo Gallegos and Austin McFarland had ingested magnets. Instead she would emphasize that which Sloane could not prove, that the magnets had come from a Metamorphis action figure. Unless Sloane could do that, or otherwise offer a different knockout punch, Judge Rudolph would be hard-pressed to issue an injunction or order that the toy be independently tested.

  “Doctor, I’m assuming that if you noted something in your report you considered it significant, is that a fair assessment?”

  “Yes, I’d say it is.”

  “And you testified that you noted in your report that the Gallegos child appeared to have a puncture wound to his abdomen. So we can assume that you considered that puncture wound to have been significant at the time you performed the autopsy, correct?”

  Desmond smiled, recognizing the lawyer’s trap. “Well . . . it was significant in the sense that I noted it.”

  “Noted it while attempting to determine the cause of the septic poisoning that you believe killed this child, correct?”

  “Yes. I was—”

  “And a potential cause of that poisoning was this rusted nail, correct?”

  Desmond shook his head, eyes closed, looking almost amused. “It isn’t likely.”

  “But it is possible, isn’t it?”

  He sighed, resigned. “It’s possible, yes, but—”

  “So although you indicated you were quite certain the child’s poisoning came from these magnets of unknown origin, you could not rule out conclusively this prior puncture wound, could you?”

  “One hundred percent?”

  “That would be conclusive, wouldn’t it?”

  “I suppose I couldn’t, not one hundred percent.”

  Like a magician, Reid produced a nail, holding the head between her thumb and index finger, so that it looked as long as a spear. Since she had deposed Desmond and had a copy of his report, she knew before the hearing his opinion regarding the size of the nail. “You identified the puncture wound as likely having been caused by a sixteen-penny nail, correct?”

  “I said likely. I can’t be certain.”

  “I don’t think I’ve pounded a nail in my life, Doctor, except to hang a picture frame, but I suspect you’re familiar enough with nails to correct me if I misrepresent that this is a sixteen-penny nail.” She handed Desmond the nail.

  “It appears to be, yes.”

  “How deep did the nail penetrate Mateo Gallegos’s body?”

  “I don’t recall making that notation on my report.”

  She handed him the report. “Please consider it.”

  Desmond did. “No. I did not note it.”

  “Would the depth of penetration be significant to a conclusion as to whether the nail could have caused a septic-type reaction?”

  “In theory it could be, yes.”

  “The deeper the penetration, the greater the potential for poisoning?”

  “Yes, that’s right.”

  “A sixteen-penny nail is three and a half inches.” Reid made it sound like three and a half feet. “And if the nail penetrated up to, say, the head, then it would have penetrated through the subcutaneous tissue to the lining of the stomach, correct?”

  “Correct.”

  “It could also have punctured the intestine, could it not?”

  Desmond hesitated.

  “Doctor?”

  “I can’t rule it out, no. But again, it isn’t likely.”

  “And if it punctured through the tissue to the stomach cavity I would assume that any infection would, remembering my very brief anatomy class, eventually find its way into the small intestine. Am I correct in that assumption?”

  “You are.”

  “And the stomach has a rich blood supply, which, if infected, could result in the circulation of that contaminated blood throughout the body.”

  “Correct.”

  Reid let Judge Rudolph ponder that information for a moment as she flipped through her notes. Then, as if stumbling on her next line of questioning, she asked, “And would whether or not the child had a recent tetanus shot also be significant as to whether the rusted nail could cause an infection?”

  “Yes, but—”

  “Thank you, doctor. I have nothing further.”

  Sloane was on his feet before Judge Rudolph asked if he had any redirect.

  “Doctor, it appeared to me that you wanted to explain your last answer before you were cut off. Would you like to do so?”

  “Yes, I would. Tetanus shots protect against clostridium Tetani, which is a cause of tetanus. It is not usually a cause of sepsis. What I was attempting to explain was that all of the factors counsel mentioned—the nail, the rust, the depth of penetration of the nail, and the date of the deceased’s last tetanus shot—could be of import in theory, but not with respect to the evidence that was before me.”

  “And what specific evidence are you referring to?”

  Desmond’s voice grew more adamant. “There were six magnets in the child’s intestines,” he said. Sloane thought he might add, “Good God, are you people stupid?” but the doctor refrained. “There is no doubt those magnets had perforated the child’s intestines. It was very clear to me where the septic poisoning had originated.”

  Reid declined to recross. There was no need. She had scored what points she could and was abiding by the lawyer’s well-known adage: if you’ve scored a few points on cross-examination be
grateful, sit down, and shut up.

  The court took its afternoon recess following Dr. Desmond’s testimony. Before leaving the courthouse for lunch Sloane and John Kannin slipped into the men’s room. After making sure they were alone, Kannin said, “She didn’t get any mileage out of the rusted nail with Rudolph. Maybe with a jury, but Rudolph isn’t going to buy it.”

  Sloane wasn’t so sure. “We’re asking him for extraordinary relief. Any doubt Reid can introduce isn’t going to help. Besides, without some better evidence that the magnets came from the prototype, we can’t win. We both know that.”

  ALTHOUGH SLOANE HAD gone over Rosa-Maria Gallegos’s testimony the day before, she still looked apprehensive as she took the witness stand that afternoon, opening and closing the clip in her hair. They had rehearsed the questions and answers, but it was more difficult to simulate the anxiety a courtroom produced for the average person.

  Sloane eased Gallegos into the examination by having her talk about her family and Mateo. When he felt she had settled in and relaxed a bit, he began in earnest.

  “Are you a legal resident of the United States, Rosa-Maria?”

  She shook her head. “No.”

  “Then how is it that your husband works for a company like Kendall Toys?”

  “He uses a different Social Security number, from his cousin.”

  “His real name is not Manuel Gallegos?”

  “Here he is Manny Gallegos.”

  “How long has your husband been employed at the Kendall Toy manufacturing plant?”

  “Four years.”

  “And during that time his employer never questioned him about his residency or Social Security number?”

  Reid objected. “The question is irrelevant.”

  Rudolph nodded his head. “Sustained. Mr. Sloane, move on.”

  Sloane knew that Manny Gallegos’s illegal status and use of a false identity was largely irrelevant to the hearing for an injunction, but getting Reid to object that the information was irrelevant would prevent her from bringing it up on cross-examination to imply that the Gallegoses were dishonest.

  “At some point, Mrs. Gallegos, did your son Ricky come into possession of a Metamorphis action figure?”

  “Yes. My husband’s boss gives it to him for being a good employee and asked to have Ricky play with it. They paid us fifty dollars.”

  “And for how long did your son Ricky play with the toy?”

  “It was about one week.”

  “And where did he play with it?”

  “In our home.”

  “How big is your home, Mrs. Gallegos?”

  Reid looked about to stand but caught herself.

  “It is not very big.”

  “How many bedrooms?”

  “Ricky and Mateo share a room,” she said, still speaking as if her youngest were alive. “My husband and I sleep in the other room.”

  “Your two sons shared a room. Is there another room to keep things like toys?”

  She smiled. “No. There is no room.”

  “During that period of time when the toy was in your home, did your son Mateo play with it, or was he with his brother when Ricky played with it?”

  Gallegos lowered her head to compose herself, wringing her hands in her lap. Tears rolled down her cheeks. “We try to tell Ricky not to let Mateo play with it because the box warns about choking, but Mateo, he wanted to. He was always, you know, ‘Me, me. I want to play.’”

  “And do you know if your son Ricky ever let Mateo play with the toy?”

  “We did not think so, but he told us later that he did.”

  Reid stood. “Objection, Your Honor, hearsay.”

  “I can bring Ricky here and put him on the stand, Your Honor, but I question whether that is really necessary.”

  “I’ll allow it,” Rudolph said.

  “Did Ricky ever tell you that any pieces of the Metamorphis broke?”

  “He said that some did.”

  “And did Ricky ever mention seeing any magnets from the toy?”

  She shook her head. “No.”

  “So he did not tell you that he thought Mateo swallowed any magnets?”

  “He did not say that, no.”

  “And did you ever find any magnets in your house?”

  She shrugged. “I don’t remember seeing them, no.”

  Again, Sloane had no choice but to bring up the unfavorable testimony. He would have preferred something else, like Ricky having seen Mateo putting the magnets in his mouth, but that had not been the case. Sloane changed gears.

  “Could you talk a bit about when you first realized Mateo was sick?”

  Reid again objected. “We’re not contesting that the boy became ill,” she said. “We’ll stipulate to the medical records, which document his symptoms. To go through it is irrelevant.”

  It was a good objection and Rudolph sustained it. Reid did not want Rosa-Maria discussing the emotional trauma of watching her son grow more and more ill. Not wanting to end on a sustained objection, Sloane asked a few additional questions before sitting. To his surprise, Reid pushed back her chair. Cross-examining a mother who had lost a child was risky on a number of levels, but by the time she reached the lectern, Reid seemed to have undergone a transformation. The attack dog was gone.

  “Mrs. Gallegos, you testified that you never saw a magnet in your house, did you?”

  She shook her head, wiping at her tears. “No.”

  “Aside from your son telling you that pieces of the plastic cracked, you have no information that the toy was defective or broken in any way, do you?”

  “I saw the pieces.”

  “And boys being boys, you don’t know if the plastic cracked because your son might have played too roughly with the toy, for instance.”

  “No, I do not know.”

  “And it is true, is it not, that three weeks before he became ill, Mateo fell while playing outside and landed on a rusted nail.”

  “Yes,” she said.

  “And you never had your son treated for that wound, did you?”

  “No,” she said.

  “And your son Mateo had never had a tetanus shot, had he?”

  “No. Ricky got one at school, but Mateo is too young.”

  “Nothing further, Your Honor.”

  Rudolph excused Rosa-Maria Gallegos.

  Sloane stood and called Eva McFarland to the stand.

  As with Rosa-Maria Gallegos, Eva fidgeted when she sat and her voice cracked when she answered Sloane’s initial questions. Sloane again took his time, hoping to calm her. When she seemed to relax, he led her through the same series of questions to establish that Mathew McFarland had been part of a Kendall focus group, and had received the Metamorphis toy and played with it in the McFarland home. He also established that Austin had been in contact with the toy and had played with it with his brother and by himself, and that pieces of the plastic had cracked.

  “Did you ever find any of the magnets within those pieces?” Sloane asked.

  She nodded. “I did. I found one stuck to the small piece of metal at the bottom of a leg of one of the kitchen chairs. The chair was wobbling like it was uneven and when I looked, there it was. It was very strong. I had to pull it off.”

  “Did you look for others?”

  She nodded. “I did, but I didn’t find any but that one.”

  After several additional question, Sloane switched gears. “Eva, I’d like to ask you about the symptoms that Austin suffered when he became ill,” he said, but Reid was on her feet, objecting.

  “Kendall will stipulate to the contents of the autopsy report and to the medical records, which document Austin McFarland’s symptoms.” Reid would again take her chances with the autopsy report, particularly since Dr. Desmond could not definitively conclude the magnets were the cause of the septic reaction; she did not want another grieving mother on the stand talking about her dying child.

  Sloane argued to the contrary, but nearing the end of the day, Rudolph
agreed with Reid.

  “While I am certainly sympathetic, I am well aware of the McFarlands’ prior testimony on the subject and I agree with counsel. I don’t think that Mrs. McFarland could add to the evidence already before the court,” he said, an ominous comment that did not bode well for Sloane or his clients.

  CHAPTER

  FOURTEEN

  ONE UNION SQUARE BUILDING

  SEATTLE, WASHINGTON

  Back in his office, Sloane felt the fatigue of the day. He rubbed his eyes to clear his vision and massaged the stiffness in the muscles of his neck. His limbs begged for exercise but were not going to be appeased anytime soon. He had sent the Gallegoses back to their hotel and sent the McFarlands home. Eva had expressed disappointment that she was not allowed to testify about Austin. After days battling anxiety caused by the anticipation of returning to the witness stand, she felt cheated out of the opportunity to talk about her son’t illness. Sloane tried to pacify her with the knowledge that he had submitted a comprehensive brief detailing Austin’s symptoms, but it was little consolation, and he knew words on a page were a poor substitute for a mother’s testimony. He feared Rudolph’s decision was a further indication he had already made up his mind.

  John Kannin knocked on Sloane’s partially opened door. He held a bottle of Corona and a can of Diet Coke. “Thought you might need a beer.”

  The bottle felt cold in Sloane’s hand and the beer a welcome respite for his throat. As Kannin sat across the desk, Sloane thought back to an evening when he and Tina had shared Chinese food and Tsingtao beer in his San Francisco office. For ten years she had been his assistant, but firm protocol had prevented him from pursuing her. Now he saw those years as lost time they might have shared but never would. When he witnessed his mother’s murder, Sloane had been just a child and his mind had eased his loss by burying the memory. Even when it resurfaced as a nightmare thirty years later, Sloane could not mourn her death. The years had tempered his memory and blunted his emotions.