Malone became increasingly agitated, sensing he was about to expose an entirely new area of interest in the expert’s opinion, yet he maintained his composure.
“Let me interrupt for a moment, Doctor. I understand the medication given the patient is scarce and very costly. It would seem a horrible waste of such a precious commodity to pour it into the toilet, if someone were deliberately withholding it from a patient, wouldn’t you agree?”
“Oh, certainly. IVIG comes at a considerable cost to the patient and in most cases involves expense exceeding several thousand dollars per treatment. While the final amount accepted by hospitals and clinics comes as a result of payments from insurance sources, Medicare, Medicaid, which is called MediCal in this state, and possibly some other programs available, this material should not be wasted in any case. Not meaning to sound facetious, but even a calculating but informed murderess would likely spread the material in a rose garden before dumping it into the sewer.”
A barely perceptible smile followed as a needed shot of attempted levity brightened the countenance of this otherwise dour but very convincing academician. The lawyers, on the other hand, each tried to control their rapidly rising pulse rates, prompted by their emotional investment in the case but on opposite ends of the spectrum of hopefulness about the witness’ testimony.
“Shall I continue?” she asked.
“Certainly,” Malone encouraged, trying to control his surging excitement.
“In my estimation, to establish a theorem that Ms. Barnes played a role in the death of her patient, there would need to be evidence of her involvement in some activity related to causation. For example, if the theory were that the IgG was diverted, it would still be necessary to eliminate noncriminal reasons for such a travesty. Delivery of IgG to the patient is a very technical process but I doubt that anyone is prepared to say that human error at any stage has been totally eliminated from the treatment program. This point has not been explored to my knowledge, so the mere possibility of such problems being involved clouds the picture on the causation issue somewhat.”
“Then, Doctor,” said Malone, pausing momentarily to relish and savor his next question, “am I to understand that you cannot attribute criminal means, action, or agency to my client, Marti Barnes, based upon your review of the materials available to you in this matter?” delivering a fastball right down the middle.
Wham! The ball cleared the center-field fence with ease and was still rising when seen last.
“That is a fair statement,” she replied totally devoid of emotion.
“No further questions at this time,” Malone announced, trying to conceal his dizziness from the high he was experiencing over the monumental success of his cross-examination of the court’s expert.
“Mr. Corrigan may have something in follow up,” he noted offhandedly, feigning a lackadaisical manner and redirecting his gaze toward the court reporter and then to Corrigan’s side of the table.
“Yes, I surely do, Doctor,” Corrigan announced briskly. “Doctor, I believe you stated earlier in your deposition that you had no substantial disagreement with the views expressed by the doctors whose declarations you reviewed before coming here today. Have you now changed your mind in this regard?” Corrigan said, earnestly staring his most stern hard look into the eyes of Dr. Borodin.
She returned the steely look, fixed her focus on his unyielding countenance and responded, “No, Mr. Corrigan, I have not changed my opinion.”
Perspiration was visible on his brow, and before he could pose another question, Dr. Borodin continued: “At least I do not believe there is any disagreement. The other forensic witnesses stated their views that Ms. Barnes had opportunity and motive. Scientific experts are called upon to analyze data and assist the judge and jury understand technical information that must be presented in such cases. For my purposes, I make no comment on any so-called motive of the caregiver because resolution of that issue is not within my expertise and professional responsibility. It’s an issue for others, obviously the jury in this case if the case goes to trial sometime in the future. Insofar as the opportunity issue is concerned, I doubt there is much disagreement on the point: Barnes, as the caregiver, certainly did have opportunity. Even so, I have no opinion that she abused her position of trust and intentionally did any harm to her patient.
“I studied the declarations of the other two experts and never reached the conclusion that either one of them believed she was responsible for Mr. Martorano’s death. In my view, neither expert made a direct statement in his declaration to that effect.
“For my purposes, I reached the conclusion that it is most likely Ms. Barnes did not divert the IVIG from her patient since the trough levels were within normal limits on his most recent test and reaching back long before he died. Furthermore, there is another feature of this case that was present but not known, or at least mentioned, by the other experts apparently,” the witness offered while changing positions in her chair.
“Oh, and what would that be, Doctor Borodin, if you don’t mind explaining yourself?” Corrigan challenged indignantly.
“Not at all, thank you,” and the witness took command, eager to explain her opinion.
“After I received this assignment, I made an effort to gather as much of the medical histories of the participants as I possibly could. For Mr. Martorano, naturally, and also for his immediate family. I interviewed as many of his children as I could. One of the kin refused to talk to me until she had your approval, if I understood correctly. Apparently you did approve, as she called me back and spoke candidly about the case and answered all my questions. I detected no suggestion of evasiveness. It was this individual in fact from whom I learned something very important, in my view at least, about the case.
“We discussed health issues in her immediate family over the last two years or so of her father’s life. It was at this time that I learned of a significant point of interest to me for my investigation. She mentioned how proud she was of her growing family and told of having three children who, along with their families, loved coming to the mountain retreat, as she called it. Regarding health issues, she was pleased to say that no one had any significant problems over the two-year period I was reviewing. Almost as an afterthought, she remarked that one of the infants had caught a terrible cold and was having so much difficulty with discharge and coughing that her family nearly cancelled their last trip to Three Rivers just before her father died. The youngster showed some improvement after seeing her pediatrician, so that branch of the family made the trip in spite of the child’s active symptoms. She was very happy she did so, because that trip turned out to be the last time everyone saw her father alive. Mr. Martorano died a short time after that weekend party ended.
“I asked this lady if she would try to get me copies of the medical records of her granddaughter’s visit to the doctor. She agreed, and they were forwarded to me by the physician’s staff. In reviewing these records, I learned that the youngster was diagnosed with ‘hand, foot and mouth’ disease, a picornavirus in the enterovirus family of viruses. It is widely understood by immunologists today that persons carrying such a virus should not be in close proximity to CVID patients, such as Mr. Martorano.
“The reason” she continued, “is that such viruses are very aggressive and potentially deadly to immune-system stressed patients. These viruses multiply in the gastrointestinal tract of humans. Such patients who are receiving replacement IVIG therapy do not have fully fortified immune systems even when they are current with their modes of treatment. Besides IgG, there are many parts of the immune defense system, immunoglobulins such as IgA, IgD, IgE and IgM, for example, which are not usually replaced in such patients, who remain at higher risk of infection though they get along with several other added risks not important to this case. In spite of IgG replacement therapy, CVID patients do not have an adequate supply of the more scarce immunoglobulins that are also recognized as necessary defensive agents in the digestive tract.
“The seemingly short duration of Mr. Martorano’s last illness could point to a cause of death by infection as I explained, yet to make this conclusion with any certainty requires more information than we have available at this moment.” Dr. Borodin finished the response and shifted weight in her chair yet again.
Corrigan pounced: “Doctor, explain please just what additional information would be helpful in forming a more certain opinion.”
“Very well. We have no toxicology studies available. At this point in time, I’m not enough of a pathologist to say whether such tests should be run even if there were sufficient will of the family to order them,” she continued with her measured explanation.
“I’m afraid I don’t follow your remarks, Doctor?” Corrigan offered honestly.
“Exhumation of the remains would be necessary,” she explained, “and as I say, the family would need to consider this situation very carefully. Furthermore, it would be appropriate to consult an expert in the field of pathology to determine whether such tests run at this time would be probative, that is to say, useful .”
Corrigan busied himself looking through his papers and notes as though trying to determine whether more questions should be put to the witness. He seemed deep in thought, and a very long silence stretched into a recess that concluded with no further testimony from Dr. Borodin. The deposition was completed with closing instructions for the court’s expert to review and sign the transcript when it was presented in the next several days, followed by procedures to make corrections in her testimony if any were deemed necessary. The reporter confirmed the number of transcripts ordered by the participants and offered her time estimate for completion of her work, guaranteeing delivery no later than ten days, barring unforeseen problems. Malone asked for one copy of the transcript, and Corrigan ordered three.
20
Further Mediation
April 2008
Less than two weeks passed, and the transcripts were delivered promptly to the parties who then reconvened in short order for further mediation discussions at the Marriott Hotel in Visalia. Judge Farrington picked up easily and seamlessly where he had left off only weeks earlier. His first contacts were Malone and Malone’s client, Marti Barnes.
“I’ll make this quick,” Farrington began without ceremony, “I think there is a chance of an agreement on your case with the estate if we are careful. As you must know, Bill Martorano is still trapped by his emotional reaction to your claim, but he really has nothing to say about you in a negative way,” looking directly at Barnes. “In other words, before his father passed away, he seemed to be very happy with your services. I think the psychological insult of his father’s death, followed by your claim, knocked him off balance, and his thinking is still a bit flawed. He is, however, a very successful rancher and businessman. I think if we can take an approach that makes financial sense, we might have room to discuss settlement. Here’s what I’m suggesting.
“The estate needs a caretaker, and you were doing that job very nicely from what I’m picking up in the discussions. You could use a place to live, and this one is ahead of most every other one you’ve experienced, it would seem. If we could pitch an offer to Mr. Martorano that you would drop your claim in exchange for a ten-year contract, cancelable only for good cause, to manage and care for the property as you did in the past at the prevailing rate of compensation, we may have something to talk about. In fairness to you, I have not made any suggestion of this kind to the other side, but I’m confident this approach is a good way to get started.”
A lengthy period of time passed without comment from anyone in the room. Finally, Malone, who had little sense of where the negotiations might ultimately lead and was suddenly disappointed to learn that there was still much to do before the case actually settled, commented: “I’ll have to speak with my client before we can commit, you understand, Judge?”
“Oh, certainly,” the mediator confirmed.
“Judge Farrington,” Barnes queried, “what is to happen to the criminal charges? I’m totally speechless and brain dead until I know where I am with the DA and the criminal case.”
“The criminal case cannot be bargained away in this civil matter, for obvious reasons,” Farrington began to explain primarily to Barnes. “Mr. Malone surely has some ideas for you on that score. My guess is that if the civil case is all but wrapped up, and the DA has finished reviewing the testimony of the court’s expert, you may see a favorable disposition of the criminal case. But that issue remains totally within the discretion of the district attorney to make a motion to dismiss.”
Malone once again demonstrated his instinctive bluster, nearly yelling: “The DA has a terrible case. It must be dismissed outright, or my client will jam it down his throat!”
Farrington reacted coolly. “Mr. Malone, what’s a better outcome, a safe resolution with a little probation or taking a chance your client suffers conviction of capital homicide?” The question required no response.
“Judge,” Marti said, “you do what you think is right to get me out of this mess. I love what my attorney has done for me so far, but it sounds like you have a chance to get me away from the biggest disaster I’ve ever faced. Please use your skills to see if we can make a deal. I like what you said and besides, maybe if the family and I get reacquainted other possibilities may come up, I don’t know. I do know that if I avoid a criminal trial with a death penalty attached I will be one grateful woman,” and she released a very sober nod in Farrington’s direction.
“Please remember, Ms. Barnes, that only the district attorney has the power to make the motion to dismiss the charges and the judge in the criminal case must approve. At the moment, we do not know what he plans to do. No matter what we might think is a good way to resolve the case, the DA holds that critical card. Dismissal is never guaranteed, even when everybody else in the courtroom is in favor,” Farrington warned appropriately.
“Oh, while I’m thinking of it,” Barnes offered, sounding like an afterthought, “here’s a cancelled check that Mr. Martorano gave to me before he died. It has to do with a child he fathered years ago, and I think it must be the young lady in this case. Anyway, it’s for expenses her family incurred for the birth apparently. I tried to find out some details about the situation, but every time I brought the subject up he dissolved in tears. He was very fond of the mother, and he said she helped him over a rough time following the death of his wife. That’s all I know,” Barnes said.
Farrington gazed at the bombshell she just handed to him. “This piece of evidence would seem to settle the heirship issue for Mr. Fineman’s client,” he confirmed with understated irony. “Does anyone else know about this cancelled check?”
“That, I don’t know,” Barnes replied. “It has some personal comments on it. And, oh, I almost forgot. Here’s a picture he had of the girl’s mother who was killed in an accident on a foggy night, it seems.”
Farrington was suddenly humbled by his sense of the randomness of the litigation universe, not to mention that he should come to hold these linchpins for the claim of the fifth heir to the Martorano estate. He gazed at the photo, probably taken at the time of Maria’s graduation from her master’s degree program, and reflexively looked on the back side. There he found the following inscription: “Dear Mr. Martorano: Mrs. Figueroa and I are grateful to you for accepting our need to raise beautiful Guadalupe in our own custom. Your sacrifices for our sakes are greatly appreciated. FF”
Farrington heaved a big and lasting sigh. “This evidence will surely shorten the trial, I must say,” he mused mostly to himself, “although I’m not certain Bill Martorano can take still another emotional setback at this moment.”
Farrington knew he was holding these critical documents as an officer of the court, and it now became his responsibility to guarantee their integrity and lodge them with the court clerk as soon as possible. Farrington dismissed Barnes and Malone, and took the cancelled check and the photograph to the concierge who made copies for him, front and back, and then placed the originals in the hotel safe pending their delivery to courthouse personnel at a convenient moment. Within an hour, Judge Crouch’s bailiff transported the originals to the safety of the clerk’s office to keep in a secure location pending further order of the court.
The mediator then summoned Fineman and his client, Lupe Figueroa, to a meeting with him. They arrived within minutes, and Farrington barely had time to make a bladder-relief run before resuming the next segment of his afternoon. He did gain the impression that people were beginning to get into the groove, and his optimism for reaching settlement increased.
Following the usual cordialities, Farrington sought permission of Fineman to speak directly to his client. “Certainly, please do,” came the response.
“I’m curious,” the mediator continued, addressing Ms. Figueroa, “how did you come to find out about your real father?”
“My grandparents told me after I graduated from high school,” Guadalupe replied cordially. “At first I was very upset, but when I realized there was no one to really hold responsible for my ignorance, and I found that my love for my parents was no different once I learned they were biologically my grandparents, I settled down and tried to put the subject on the back burner, out of my mind,” she explained.
“My parents—oh, I know they’re really my grandparents, but I still love and know them as my real parents—saw to it that I received an excellent education. I went to a parochial high school in Bakersfield and then graduated from UCLA in English literature. I’m now studying at Loyola Law School in Los Angeles. When I learned of my father’s death, I wasn’t sure what I should do. I talked to Mr. Fineman who taught a seminar at law school, and he explained my options. I asked him to consider taking my case, and he agreed. He has been very helpful, and I appreciate that very much. I have no funds to pay him, since my budget is very tight. I have a dream to finish law school and follow a career path that lets me help people, just like Mr. Fineman,” and she beamed a gorgeous Figueroa smile at her attorney.
(2012) The Court's Expert Page 30