Taking the last few steps toward Louis, Caroline easily read his mood in the compressed line of his mouth and the tightening of his jaw. He wasn’t happy.
“Eddie helped me file the article—” she began.
“Yes, Silvia informed me. I’m grateful for his efforts,” he said. His words were neutral, but there was no warmth in his voice.
Caroline didn’t know what to say. She just knew with sudden urgency that she had to repair the damage her connection with Eddie had done to Louis’s opinion of her. To his trust. She needed to figure out how to recover both.
But before she could speak again, Dale trotted up, his face flushed. His too-big mouth grinned widely like a golden retriever in the heat of a game of catch.
“We’re almost ready to go,” Dale said. “Herb’s got the PowerPoint all set up.”
Dale gestured with his chin toward the audiovisual vendor, who sat hunched over a laptop at a small desk behind the plaintiffs’ counsel table.
“Plus, I wore my lucky tie.” Dale fondled the lime-green tie with aqua dots, tilting it forward for Louis and Caroline to see. “My wife got it for me for Christmas.”
Caroline kept her face neutral. What was Dale’s wife like? Did she know about her husband’s philandering? People were often blind to what they didn’t want to see.
“I haven’t lost a single case yet with this baby,” Dale said brightly. “This is the longest run I’ve ever had for a lucky tie.”
Caroline studied the talismanic piece of fabric. It didn’t seem to have any unearthly glow or other special properties she could divine.
“I retired my last lucky tie after that loss in the Wrangler rollover case,” Dale said, wincing. “But we’ve got a great presentation for the judge ready to go today. I just know he’s gonna love it.”
Caroline smiled gamely and made the noncommittal mmm sound people use to fill gaps in conversation.
The door to the judge’s chambers clicked open, and the bailiff emerged.
“The judge will take the bench in five minutes,” he announced.
In response, the attorneys scattered around the courtroom began to move toward the front, like goldfish rising to food. People began to take their seats. The show would begin soon.
“Hey, Dale,” called a broad-shouldered man from the front of the gallery.
Caroline identified the man as Anton Callisto. Deena’s boss. With his thick build and close-cropped silver hair, he was someone you’d want on your side if a fistfight broke out.
Anton waved Dale over to the counsel’s table.
“Come on,” Dale said to Louis and Caroline. “We need to decide who’s sitting where.”
Falling into step behind Dale and Louis, Caroline followed them to the front of the courtroom. She noted the strange layout. The podiums where the attorneys for each side would be arguing were positioned directly behind the long counsel tables, where another five lawyers for each side would sit. As a result, Dale would be looking over the heads of his seated colleagues when he stood up at the podium.
Other than the half-dozen lawyers who would sit up front at counsel’s table, the attorneys would be relegated to the seats in the gallery. There weren’t enough seats at the table for all of the attorneys on the Plaintiffs’ Steering Committee.
Dale regarded the seating situation and rubbed his hand across his chin. Then he looked at Louis. “I’d like you up here, Louis,” Dale said. “That leaves two seats for Anton and Paul.”
Caroline watched the proceedings with dismay. After failing to induce Dale to study on the plane, this effort to relegate her to the back of the courtroom seemed . . . unwise.
“Excuse me,” Caroline said. “Don’t you think I should sit at counsel’s table?”
Dale looked at her with a curious expression etched on his face.
“I wrote the section of our brief about the scientific literature,” Caroline said. “You might have questions for me during the argument.”
Dale shrugged. “Okay. Sure.”
He grabbed a passing paralegal and said something into her ear. She disappeared then returned a few seconds later with a folding chair, which Dale wedged between Louis’s seat and Anton’s seat.
Squeezing herself between two large men beside her, Caroline felt small and invisible.
She opened her laptop and pulled up the index of articles. Just in case Dale needed it.
“Wish me luck,” Dale said, sitting down on Louis’s other side.
“Good luck,” Caroline muttered.
The bailiff stood poised, waiting for the telltale click of the door and the soft shuffle and stir that would announce the arrival of the judge. The moment came with an electric jolt and a sigh. A door behind the curtain opened to reveal a man with copper hair and a dark goatee. His black robe swished as he walked over to the bench and sat down.
“Court for the Southern District of New York is now in session,” the bailiff announced. “The Honorable Todd R. Jacobsen presiding.”
The judge spread his binders and tablet on the table in front of him, neatly arranging his materials for the hearing. Caroline studied his face. He didn’t look as young as she’d expected. She knew he’d been appointed to the bench only five years ago, but he already looked like a seasoned veteran.
Judge Jacobsen looked up with bright-blue eyes that held a twinkle of amusement.
“Welcome to the Keep-Every-Lawyer-in-the-Country-Employed case. What do you think the taxi meter is on all of your billable hours here today?” he asked.
The attorneys laughed as one. A bonding moment, scripted by the judge to relieve the tension in the room. Caroline appreciated the effort. From the taut expression on Ian Kennedy’s face to Jasper’s anguished squint, the courtroom was a soup of intense emotion.
“Thank you all for coming,” the judge continued. “I know we’re all going to learn something today. Lawyers are here to educate the judges, and we judges hope to be good students for you.” Judge Jacobsen looked around as he spoke, making eye contact with each of the lawyers at each of the respective counsels’ tables. “By way of full disclosure, I was a molecular cell biology graduate student before I went into the law. So I’d like to think I’m a slightly more sophisticated student. That said, I’m still here to learn. Let’s get to it.”
The judge turned toward the counsel table on the plaintiffs’ side.
“Any time you’re ready, Counsel.”
“Thank you,” Dale said, stepping up to the podium. “Your Honor, we’ve put together a presentation to help the court sort its way through these complex issues.” He nodded to Herb, the audiovisual guy, and the first page of the PowerPoint presentation flashed onto the screen.
The word DIAGNOSIS arched across the top with a list of bullet points underneath that read clinical diagnosis, medical diagnosis, and differential diagnosis.
“I’d like to begin today by talking about bedrock science: diagnosing illness,” Dale began. “For as long as there have been doctors, we’ve made diagnoses based on signs, symptoms, and laboratory findings. When a patient shows up at a doctor’s office, that doctor has to determine which one of several diseases may be producing the symptoms—”
Judge Jacobsen leaned forward toward the microphone on the bench. “I’m sorry to interrupt, but I understand what differential diagnosis is. We have limited time today, so I’d like to stay focused on the science.”
“With all due respect, Your Honor, differential diagnosis is science. It’s the most basic, well-accepted science in the world, I’d venture.” Dale smiled in a way that encouraged agreement with his words. “And it fully supports a link between SuperSoy and kidney injury.”
“Be that as it may, I’d like to hear what else you’ve got,” the judge said, smiling back, just as affably.
Caroline shifted in her seat. Judge Jacobsen hadn’t mentioned the Scziewizcs decision, but he apparently subscribed to that decision’s conclusion that something more than proximity-in-time evidence was necessary to pro
ve a correlation between a substance and an injury. She hoped Dale could provide the judge with that something more.
“Well, all righty then,” Dale acquiesced, prompting his PowerPoint until he reached the slide he sought.
“Here we have a diagram of a cell,” Dale narrated. “Up there in the upper right corner, you’ll see the mitochondria. The studies we’ll discuss today suggest that SuperSoy causes some damage to different parts of the cell, especially the mitochondria.”
“Excuse me again, Counsel,” Judge Jacobsen interrupted. “I’ve read your papers. I understand your basic arguments. What I’d like to do today is drill down a bit. I’d like to know your thoughts on whether the Ambrose study’s findings on mitochondrial degradation in rats can be extrapolated to humans. Yes, I know we’ll get to the Heller study. But just as a starting point, I’d like to hear your views on Ambrose.”
Dale blinked at the judge.
“The Ambrose study,” Judge Jacobsen prompted. “It was performed on rats, right?”
Caroline turned around to face Dale and mouthed the word yes.
“Yes, Your Honor. It was done on rats,” Dale said confidently.
“And the assay he used for his results was an end-point assay, correct?” the judge asked.
When Dale didn’t respond, Caroline began to squirm. The answer was yes. Ambrose had used an end-point assay. The information was basic. But she’d already turned around once. If she fed Dale another answer, she’d begin to look like his ventriloquist. With great effort, she kept herself facing forward, her face an impassive mask.
“Ambrose is an important study,” Dale began slowly, “because it teaches us that if enough cells die, a kidney will fail.”
“Yes. Agreed,” said the judge, “but I’d like to talk about the details of that study.”
Dale shifted from foot to foot.
“Let’s try this a different way, Counsel,” the judge said, exhaling. “Let’s talk about Heller. Perhaps we can explore the parameters of that study, then work our way back to the other science and evaluate whether that other science is consistent with Heller or whether Heller is an outlier.”
“Sounds good, Your Honor,” Dale said. Caroline could almost hear his relief.
“The Heller article is, of course, the centerpiece of the scientific literature,” Dale said. “Although it wasn’t published, it conclusively establishes a link between SuperSoy and kidney damage.”
“I know that’s your conclusion,” the judge said, “but especially since the Heller article wasn’t peer reviewed or published, I’d like to kick the tires on Heller’s methodology. Let’s begin with the basics. How large was Heller’s sample size?”
“Sample size? I think I’ve got that right here,” Dale said, prompting his PowerPoint again.
Images of cells and highlighted passages from articles flashed by on the screen.
Finally, a slide appeared that read in large red letters:
HELLER/WONG SHOWS DIRECT LINK.
HUMAN KIDNEY FAILURE CAUSED BY SUPERSOY!
There was no other information about the Heller article on the slide.
Caroline knew Dale was in trouble. She had to do something. Even if it looked bad, she had to try to help him.
Pivoting around in her chair, she handed Dale her laptop, opened to the relevant page of the Heller article describing the study’s sample size. Now all he had to do was read it.
“Sample size. Sample size,” Dale muttered.
Caroline resisted the urge to shout at Dale. She’d given him the correct page. He just needed to read what was on the screen.
“Please bear with me another moment,” Dale said.
“Take your time, Counsel,” Judge Jacobsen said, his voice flat.
“You’ll have to excuse me, Your Honor. I just didn’t realize we’d be gettin’ into all these details today.” Dale chuckled to himself.
The judge eyed Dale unblinkingly, unaffected by the Texas lawyer’s avuncular charm.
As the silence stretched out, Caroline imagined Jasper at the back of the courtroom, scowling so deeply that the lines in his face looked like the Grand Canyon.
“I’m sorry, Judge, but I’m just not seeing it here,” Dale said.
Caroline heard a murmur of whispers as the Plaintiffs’ Steering Committee began to panic. They were going to lose. Not because they didn’t have the science to beat Med-Gen’s motion, but because Dale couldn’t answer the judge’s questions.
“I’ll tell you what,” Dale said finally. “What I’d like to do is start my presentation over. I think you’ll find that the sample size in the Heller study won’t matter when you see our whole presentation.”
Cringing in her chair, Caroline suddenly understood the problem: Dale’s superpower was telling a story. He knew how to charm a room, a luncheon table, or even the entire Steering Committee. But he had little patience for the intense schoolwork necessary to master complex science—complex science that this rare judge with a molecular cell biology degree wanted to discuss.
Desperate to express her distress, Caroline grabbed her legal pad.
“He’s messing up,” she wrote in a jagged scrawl.
She pushed the note in front of Louis, who tipped his white head down to read it.
The senior partner lifted his pen.
“Can you do better?” he wrote, tilting the legal pad toward Caroline.
“Yes,” she wrote back.
Louis’s response was only two words long: “Stand up.”
Caroline rose to her feet so she stood in front of Dale.
She met the judge’s eyes squarely. “I think what my colleague is trying to say is that the sample size was quite large. Dr. Heller conducted three separate longitudinal studies based on the records of over fifteen thousand SuperSoy patients across the country. His sample size is unimpeachable. As for the Ambrose study, while it was indeed an end-point assay instead of a kinetic assay, it still shows convincing evidence that SuperSoy thins cell walls because—”
“Excuse me, Counsel, but are you pro hac in this court?” Judge Jacobsen asked, his blue eyes narrowing.
“Yes, Your Honor,” Caroline said. “I applied to appear pro hac vice when I submitted the Heller article yesterday. In accepting the article for filing, the court granted my application.”
Judge Jacobsen turned to his clerk, who consulted her computer then whispered something to the judge. The judge nodded to his clerk then looked back at Caroline.
“You’re correct. Please continue, Counsel.”
Caroline stepped around the podium as Dale took her seat at counsel’s table.
“As I was saying, the results of the Ambrose study are remarkable because that study mimicked conditions in human kidneys much better than any of the other rat studies. In addition to the Ambrose line of studies, the Wilson study and its progeny establish that degradation of mitochondrial DNA can be a precursor to apoptosis—that’s spontaneous cell death. And as the Tercero study shows, that cell death is a harbinger of kidney death . . .”
Judge Jacobsen sat forward, his intelligent eyes taking in everything Caroline had to say, and when she stopped, he asked her a barrage of questions about each of the studies. Answering those questions, Caroline felt her words flowing out like a stream of clear water. The pieces of the argument fit together in her mind, one after the next, easy and logical. All of her restless energy laser focused down to a fine point. Article by article, point by point, she stated the plaintiffs’ arguments. The sensation was like flight. Like a land-bound animal that suddenly realized it had wings.
When Caroline had answered the last of the judge’s questions, she stepped back from the podium, yielding the floor to her opponent. She knew she’d done her best. Whatever happened, she’d explained the science as well as she was able.
Judge Jacobsen turned to the defense to invite refutations on behalf of Med-Gen, which Ian Kennedy provided in concise, well-spoken detail. As Kennedy spoke, his audiovisual vendor displayed demons
trative exhibits that underscored the key points in the scientific articles. Unlike Dale’s superficial PowerPoint presentation, Kennedy’s detailed slides acted as a wrecking ball, exploiting the weaknesses in the science supporting a link between SuperSoy and kidney damage.
Finally, Kennedy presented a giant table summarizing all of the science that had been presented in the course of the Daubert proceedings. In one column, the demonstrative exhibit listed the two dozen articles that plaintiffs’ counsel had submitted that failed to draw any direct link between SuperSoy and kidney injury.
“After all of these hours of argument. All of these reams of articles. And what do we have?” Kennedy asked, using a laser pointer to trace a circle around the body of science in the first column.
“Nothing,” Kennedy said. “We have absolutely nothing. Feinberg, Ambrose, Tercero, Wilson, et cetera, et cetera—not one of these studies ties SuperSoy to the degradation of kidney cells in humans. Not a single one.”
Kennedy paused to allow his words to sink in.
“So then, what about the late-produced Heller article?” Kennedy asked, nodding toward his audiovisual vendor. On his cue, the Heller article appeared on the screen in the other, otherwise empty, column. The name of the article floated by itself in a field of white. Stacked against the dozens of articles in the other column, it looked immaterial and small.
Kennedy held up his right hand.
“Never published,” he said, ticking off the article’s deficits with his long fingers. “Never peer reviewed. Never subject to the same scrutiny that the rest of the scientific evidence underlying this case has withstood. No scientist has ever reviewed it. No studies have ever supported its results.”
Kennedy paused again, giving everyone a chance to study the screen.
Watching Kennedy, Caroline had to concede that her adversary was more than worthy. He was good. Damn good. Everyone in the courtroom hung on his words. Even Caroline, who knew that the Heller article was a game changer, found herself carried along by the force of Kennedy’s dismissal of Heller’s careful, comprehensive masterpiece as a trivial piece of fluff.
Doubt (Caroline Auden Book 1) Page 18