Impact (54 page)

“He was furious. He threatened to beat me up, and he threatened to kill my … friend.”

“Did he actually try to do either of those things?”

She paused as though she expected him to answer his own question. “No,” she murmured finally.

“Exactly when did your husband first confront you with his knowledge of your affair?”

“Early March of last year.”

“Shortly before the crash.”

“Yes.”

Tollison nodded curtly. “Two final points. I show you an item marked Plaintiff's Exhibit Twenty. Can you tell me what it is?”

He handed her the object. Without chancing his gaze, she examined it and nodded. “It's a puzzle. A child's toy, actually. You slide these pieces around inside the square until they make a picture of a cow.”

“Since the crash, has your husband ever worked this puzzle?”

She nodded. “It's one of the devices they use to measure the effects of the crash on Jack's … on Jack.”

“How many times would you say your husband has worked this? Successfully, I mean.”

“Twenty. Thirty. Maybe more.”

“Thank you. Now, I'd like you to look around and tell me which persons in this room have had occasion to visit your husband since he regained consciousness.”

“I don't see what—”

Tollison held up his hand. Laura Donahue did as she was told.

“There's Mr. Chambers, over there. And the assistant beside him—the woman. They came to take Jack's deposition a few weeks ago. And you, of course. And Brenda Farnsworth. She lives in Altoona; she's back there in the corner. The only other one is that man in the front row—he's been spying on us. I pointed him out to Jack one night.”

“Your Honor,” Hawley Chambers pleaded righteously. “Object to the term
spying
. There's no evidence that anything untoward has occurred with respect to—”

The judge interrupted. “The jury will disregard the charge of espionage. Mr. Tollison?”

“No more questions, Your Honor.”

“Cross-examine.”

Hawley Chambers slid to his feet, his smile a lascivious implication. “Mrs. Donahue, would you be so kind as to tell us the
names
of the men with whom you had these love affairs you've mentioned? So we can verify your testimony if it becomes necessary?”

Tollison's objection was offhand. “Irrelevant.”

“Surely we are allowed to test the credibility of the witness.”

“May we approach the bench?” Tollison interjected.

Hawthorne watched as Tollison waylaid Chambers beyond the hearing of the judge. Moments after their whispered colloquy began, Chambers's mouth opened in a vacant exclamation. The judge's eyes narrowed. Unruffled, Tollison whispered a further comment and presented Chambers with a written document. Chambers was as nonplussed as Hawthorne had ever seen him.

After a long moment, Chambers shrugged and turned away. “Withdraw the question, Your Honor,” he muttered on the way to his table.

After a second scowl at Tollison, Chambers resumed the fight. “Mrs. Donahue, you've stated that because of your marital problems you engaged in an extramarital affair. Was one of the problems during this period the fact that your husband had
also
engaged in an extramarital affair?”

The crowd rumbled. The effort to match the charge of infidelity with the ghost who haunted the videotape produced collective astonishment.

Chambers's aspect made her speak with insolence. “I believe he had.”

Chambers nodded with satisfaction. “Thank you.”

The rest of the cross-examination was less sensational—Laura was neither castigated nor praised, her morals neither roasted nor admired. The questioning confirmed that her husband was not in pain, was not depressed or otherwise unhappy, that he was making marked improvement. To Hawthorne, the only unusual aspect was the failure of the witness and her lawyer to acknowledge each other's existence.

When Chambers had finished, Tollison rose. “Two points of rebuttal, Your Honor.”

Judge Powell nodded. Tollison regarded his witness.

“Please answer my question carefully, Mrs. Donahue. At any time prior to the crash, did your husband ever
admit
to you that he had engaged in an extramarital affair?”

“I … no. Not specifically. But—” She marshalled her credibility. “I was
certain
he'd been unfaithful. A woman
knows
those things. If I hadn't been confident that Jack had strayed, I wouldn't have done what I did.”

“You never
saw
your husband with another woman, did you? In a compromising situation, I mean?”

“No.”

“And he never told you he had been in such a position?”

“No.”

“So your assumption that he
was
seeing other women was just that, wasn't it? An assumption?”

“I suppose you could say that, but …”

Tollison nodded joylessly, having sacrificed the woman he loved upon the altar of her honesty, having blackened what they had been to each other without forcing her to tell a single lie.

A moment later, he inflicted a final wound. “I have one more question, Mrs. Donahue. Have you had sexual relations with your husband since he came out of his coma?”

Chambers hurried to object. “Outside the scope of the cross-examination.”

“Mr. Chambers went into the relationship, Your Honor.”

“I'll allow it.”

Tollison turned back to the witness, who appeared to be losing her hold on consciousness. “Have you and your husband had sex since the crash, Mrs. Donahue?”

Resistance beyond her powers, she lowered her head and nodded. “Twice. Dr. Ryan said it might help him recover some sensory … his senses. And Jack kept saying he wanted to, so I …” She stammered to silence.

“Did your husband proceed to orgasm?”

“Once. The second time.”

“Thank you.” Tollison turned. “I'm finished, Your Honor.”

Overcome with embarrassment, Laura Donahue left the stand only after Judge Powell repeatedly invited her to do so. Stumbling blindly toward the counsel table, as she reached its edge, a strangled cry burst forth and in the next instant she fled the room, gathering her purse to her bosom the way she would a fevered child. When the door closed mercifully behind her, Keith Tollison looked out into the astonished crowd, first at Alec Hawthorne and then at Art Ely. “Plaintiff rests, Your Honor.”

As Alec Hawthorne emitted a sound that caused the crowd to silently censure him, Hawley Chambers beamed a smirk born of the realization that his foe had just abandoned the foundation of his case. But Chambers's pleasure was only momentary. As he appreciated the stratagem just employed against him, his cocky grin gave way to the rigor of a grimace.

Hawthorne could only marvel. His pupil had taken a lengthy chance in shunning his expert's projection of lost earnings, leaving pain and suffering the only claim in the case other than punitive damages. But to make the gambit work, he had to play a final trump. Chambers could easily finesse him, but only if he could summon the nerve to rest his case without calling a single witness. Hawthorne smiled. Betting on the predictability of the defense bar and the hidebound conservatism of the insurance companies, Keith Tollison had played his cards the way Alec Hawthorne would have played them had the date been twoscore years before and the court been out in Indian country and the burden been his own.

As lawsuits often do, SurfAir has condensed to a nugget in the form of a choice that must be made. Because the choice is his and because he has only moments to respond to Tollison's challenge, Hawley Chambers polls his retinue to gauge the direction they wish to take. Tollison is pleased as he looks on. At least he has done this much. At least he has made them sweat.

To delay decision or, better yet, foreclose the need for it, Chambers moves for a directed verdict, the tactic Tollison has feared from the beginning. A solid link is still not made between the defects in the airplane and Jack Donahue's injuries. Tollison does not know whether Dr. Ryan's evidence is enough. All along he has hoped that Hawthorne would somehow rescue him, but the cavalry has not appeared.

Argument takes place in Judge Powell's spartan chambers, beneath a set of woodblock prints that are a primitive backdrop to the sophisticated acrimony. Chambers makes it appear that Tollison has produced no credible evidence at all, that there is nothing for the jury to decide, that the airline is blameless as a matter of law. In response, Tollison argues inferences and deductions suggesting the impossibility that Jack Donahue was injured other than by the grossest neglect, the most extreme misfeasance.

Though Tollison girds himself for failure, the motion is ultimately denied. He would like to take credit for the victory, but the ruling clearly issues because experience has taught Judge Powell to value a jury's acumen above that of the opposing counsel, or even above his own. Twenty minutes after they left it, the men return to a courtroom that has wondered what the hell is going on.

Whispering to his clients, Chambers still can't decide his course. Had it been a criminal case and Chambers the defense counsel, he would certainly have rested, arguing that the state had not obliterated doubt, that its burden had not been met, that further testimony was unnecessary. But it is perilous to waive a defense, even in a criminal trial, and Chambers's dilemma is tougher still, because in civil matters doubt is legitimate; a jury can operate on what amounts to a hunch. The question is whether Tollison has done enough to spark one.

Minutes tick by. Chambers continues a vigorous debate with his assistants and the corporate types. If he is more courageous than Tollison has estimated, the trial will end before Tollison can complete his endgame. It is a pivotal moment. Paradoxically, from within his fatalistic shell, Tollison knows the only serenity he has experienced since he agreed to take the case.

A moment later Chambers makes his move. Beaten by the safe faces that surround him, he will defend his clients the way Tollison has bet he would. In the crowd, a hirsute whistle of relief is audible throughout the room.

The river of self-righteousness flows for three days. Suited, groomed, rehearsed, vice-presidents of Hastings and SurfAir march to the stand and stumble off, victims of their values and the facts and a system of justice that permits the expression of indignation. By the time Tollison has finished with them, they know this is not a case where the blame is circumscribed—no finger points conveniently at pilot or mechanic; if any are guilty, all are. It is a suggestion not many of the vice-presidents can abide, that they have killed a hundred people and maimed a dozen more. But Tollison makes it clear that this is what he believes and what he expects the jury to decide.

The defense is both pat and tedious. Witnesses throw numbers and regulations like rice at a wedding. Though they cast them in impressive jargon, their views are simple, if not simplistic. They have conformed to the custom and practice in the industry so cannot conceivably be at fault. They had no obligation to produce a “crash-proof” plane, a prohibitive task in terms of cost and weight. Accountants to the core, they offer cost-benefit ratios that quantify everything including the value of a life, reduce safety to dollars, cents, and the bottom line. They seem not to notice that their approach is unexceptionable only if their airplanes never crash.

The general is followed by the specific. Speeds and stresses were much higher than Ray Livingood had estimated, far beyond the capacities of the aircraft. In any event, only 70 percent of the seats in the aft cabin came loose, and there is no indication that Jack Donahue's was one of them. The temperatures had been relatively low in the rear of the plane, not hot enough to melt urethane or ignite fabric. Mistite was not workable, the new fabrics and foams were unproven, skin insulations and window improvements did not yield value for the money, evacuation tests done after those Polly Janklow described had been conducted with rigorous realism and proved four exits were adequate in the H-11.

Chambers offers his men as reasonable and prudent, cautious and even Christian in their efforts to safeguard their passengers. Millions of dollars spent on safety, thousands of hours of testing, hundreds of improvements over the years, dozens of instances where the airline and the FAA have anticipated trouble and moved to forestall it. By the time he has finished, it seems impossible that anyone has died or singed a single hair.

At various points Tollison gets angry. “You say it would have cost SurfAir approximately two hundred and seventy-five dollars per seat to have replaced the fabric in the H-11 with more fire-resistant material?”

“Those were the figures I had at the time.”

“So on the basis of expense, you decided not to install such fabric?”

“Yes.”

“Let's explore that decision a bit. I talked with my travel agent this morning, and she told me that if I wanted to fly to LA and back on your airline, I would have to pay one of
twenty-two
different fares. They ranged from two hundred thirty-eight dollars without restrictions to seventy-four dollars for a child under twelve. Does that sound like the current fare structure to you?”

“Seems okay.”

“You're saying that in a rate system as flexible as that, there isn't room to fit the cost of a fire-resistant seat someplace?”

“I'm not a marketing man, but I know the competition over our routes is fierce and—”

“But if you
all
did it—if you and your competitors
all
used fire-resistant fabric—you'd stay in the same competitive position you were in before you added the safer fabric, would you not? You wouldn't be hurt at all.”

“I … I'm not sure.”

“And if SurfAir advertised—or even bragged—that your seats were fire resistant and your competitors' weren't, then you might even
improve
your competitive position, isn't that possible?”