The Litigators (42 page)

Wally and Oscar had discussed having the body exhumed to get a clearer picture of what killed him, but Iris flew into a rage. Plus, the exhumation, autopsy, and reburial would have cost almost $10,000, and Oscar flatly refused to spend the money.

In Dr. Parkin’s opinion, Percy Klopeck had died young because he was genetically predisposed to an early death, one made even more probable because of his lifestyle. She also offered the opinion that it was impossible to predict the cumulative effect of the astonishing barrage of his medications.

Poor Percy, thought David. He lived a short, uneventful life and died peacefully in his sleep, with no clue whatsoever that his habits and ailments would one day be dissected so thoroughly by strangers in open court.

Her testimony was devastating, and there was not a single part of it that David wanted to revisit on cross-examination. At 12:30, Judge Seawright adjourned until 2:00 p.m. David and Helen hustled from the courthouse and enjoyed a nice, long lunch. David ordered a bottle of white wine, and Helen, who rarely drank, enjoyed a glass. They toasted Percy, may he rest in peace.

I
n David’s novice opinion, Nadine and the defense stumbled slightly with the afternoon’s first witness. He was Dr. Litchfield, a cardiologist and cardiovascular surgeon from the world-renowned Cleveland Clinic, where he saw patients, taught, and researched. He had the tedious task of walking the jurors through Percy’s last echocardiogram, the same video that had knocked them out in the hands of Igor Borzov. Sensing that another viewing of that footage would not be well received, Nadine stepped on the gas and opted for a scaled-down version of the testimony. Bottom line—there was no reduced regurgitation of blood from the mitral valve. The left ventricle was not enlarged. If the patient did indeed die of a heart attack, its cause could not be determined.

Bottom line—Borzov was a fool.

David had a quick vision of Wally, lying peacefully in a comfortable bed, wearing a gown or pajamas or whatever Harbor House distributed, sober now, tranquil due to a sedative, maybe reading or just
gazing at Lake Michigan, his thoughts a million miles away from the carnage in Courtroom 2314. Yet it was all his fault. In the months he’d spent racing around Chicago, visiting low-end funeral parlors, passing out brochures in gyms and fast-food joints, he had never, not once, paused to study the physiology and pharmacology of Krayoxx and its alleged damage to heart valves. He had simply and eagerly assumed the drug was bad and, egged on by smart guys like Jerry Alisandros and other tort stars, had joined the parade and begun counting his money. Resting now in rehab, was he even thinking about the trial, about the case getting dumped on David while he and Oscar were laid up licking their wounds? No, David decided, Wally was not worrying about the trial. Wally had bigger issues—sobriety, bankruptcy, a job, his firm.

The next witness was a professor and medical researcher from Harvard who had studied Krayoxx and written a definitive article in the
New England Journal of Medicine
. David managed to get a slight chuckle when he did not question the professor’s résumé. He said, “Your Honor, if he went to Harvard, I’m sure his credentials are outstanding. He must be brilliant.”

Fortunately, the jurors had not been informed that David was a graduate of the Harvard School of Law; otherwise, the wisecrack could have backfired. Harvard grads who talked about being Harvard grads were not generally well regarded in Chicago.

“Pretty stupid,” read the note from the paralegal.

David did not respond. It was almost 4:00 p.m., and he just wanted to leave. The professor droned on about his research methods. Not a single juror was paying attention. Most appeared brain-dead, thoroughly numbed by this futile exercise in civic responsibility. If this is what made a democracy strong, then God help us.

David wondered if they were already discussing the case. Each morning and each afternoon Judge Seawright gave the same lecture about improper contact, the prohibition against reading about the case in the newspapers or online, and the need to refrain from chatting about the case until all evidence had been presented. There were
plenty of studies on the behavior of juries, the dynamics of group decision making, and so on, and most found that jurors couldn’t wait to begin gossiping about the lawyers, the witnesses, even the judge. They tended to pair off, to buddy up, to separate into cliques and camps and begin their considerations prematurely. Seldom, though, did they do so as an entire group. More often, they hid their little private sessions from each other.

David tuned out his fellow Harvard alum and flipped a few pages of his legal pad. He resumed work on a rough draft of his letter:

“Cross-examination, Mr. Zinc?” Judge Seawright interrupted.

Again, David stood quickly and said, “No, Your Honor.”

“Very well, it is now 5:15. We will adjourn until nine in the morning with the same instructions to the jury.”

———

W
ally was in a wheelchair, dressed in a white cotton bathrobe with cheap canvas slippers barely covering his chubby feet. An orderly rolled him into the visiting room, where David was waiting, standing at a large window, staring into the darkness of Lake Michigan. The orderly left and they were alone.

“Why are you in a wheelchair?” David asked as he dropped onto a leather sofa.

“I’m sedated,” Wally replied slowly and softly. “They’ll give me some pills for a couple of days to, uh, sorta soothe things along. If I try to walk, I might fall, crack my skull, or something.”

Twenty-four hours off a three-day binge, and he still looked rough. His eyes were red and puffy, his face sad and defeated. He needed a haircut. “Are you curious about the trial, Wally?”

Hesitation as this was processed, then, “I’ve thought about it, yes.”

“You’ve thought about it? That’s awfully nice of you. We should finish tomorrow, we being me on our side of the room with no one but my lovely wife, who’s pretending to be a paralegal and is already tired of watching her husband get his ass kicked, and what seems like an ever-growing mob of dark suits on the other side, all hovering around the lovely Nadine Karros, who, believe me, Wally, is even better than advertised.”

“The judge wouldn’t continue the case?”

“Why should he, Wally? Continue to when, and why? What, exactly, would we have done with another, say, thirty or sixty days? Go out and hire a real trial lawyer to try the case? Let’s hear that conversation: ‘That’s it, sir, we’ll promise you $100,000 and half of our cut to walk into that courtroom with a lousy set of facts, an unsympathetic client, a judge who’s even more unsympathetic, against an extremely talented defense team with unlimited cash and talent, representing a large and powerful corporate defendant.’ Who would you pitch that to, Wally?”

“You seem angry, David.”

“No, Wally, it’s not anger; it’s just the need to rant, to bitch, to blow off some steam.”

“Then go right ahead.”

“I asked for a continuance, and I think Seawright would have considered it, but why? No one could say when you might be able to come back. Oscar, probably never. We agreed to go forward and get it over with.”

“I’m sorry, David.”

“So am I. I feel like such a fool sitting there with no case, no clue, no weapons, nothing to fight with. It’s so frustrating.”

Wally lowered his chin to his chest as if he might start sobbing. Instead, he began mumbling, “I’m sorry, so sorry.”

“Okay, look, Wally, I’m sorry too. I didn’t come here to beat you up, okay? I came to check on you. I’m worried about you, so are Rochelle and Oscar. You’re sick and we want to help.”

When Wally looked up, his eyes were wet, and as he spoke, his lip quivered. “I can’t keep doing this, David. I thought I had it whipped, I swear I did. One year, two weeks, two days, then something happened. We were in court Monday morning, I was nervous as hell, terrified really, and I was overcome with this vicious desire for a drink. I remember thinking, you know, a couple of drinks will do the trick. Two quick beers and I’ll settle down. Alcohol is such a liar, such a monster. As soon as we broke for lunch, I scooted out of the building and found a little café with a beer sign in the window. I got a table, ordered a sandwich, drank three beers, and, wow, it tasted so good. And felt even better. Back in the courtroom, I remember thinking, you know, I can do this. I can drink and it’s no problem. I got it whipped, you know? No problem. Now look at me. Back in rehab and scared shitless.”

“Where’s your car, Wally?”

He thought about it for a long time and finally gave up. “I have no idea. I blacked out so many times.”

“Don’t worry about it. I’ll find the car.”

Wally wiped his cheeks with the back of his hand, then wiped his nose with a sleeve. “I’m sorry, David. I thought we had a chance.”

“We never had a chance, Wally. There’s nothing wrong with the drug. We joined a stampede that was going nowhere, and we didn’t realize it until it was too late.”

“But the trial’s not over, is it?”

“The trial’s over but the lawyers are still at it. The jury gets the final word tomorrow.”

Nothing was said for several minutes. Wally’s eyes cleared, but he had trouble looking at David. Finally, he said softly, “Thanks for coming, David. Thanks for taking care of me, and Oscar and Rochelle. I hope you won’t be leaving us.”

“Let’s not talk about that now. You get good and detoxed. I’ll check you out next week, then we’ll have another firm meeting and make some decisions.”

“I’d like that. Another firm meeting.”

E
mma had a rough night, and both parents walked the floor in alternating one-hour shifts. When Helen handed her off at 5:30 and headed back to bed, she announced her career as a paralegal was mercifully over. She had enjoyed the lunches, but little else, and besides, she had a sick baby to deal with. David managed to quiet Emma with a bottle and, as he fed her, went online. Varrick’s stock had closed at $40 a share Thursday afternoon. Its steady rise throughout the week was even more evidence that the Klopeck trial was going badly for the plaintiff, though no additional evidence was really needed. Out of his usual morbid curiosity, David checked in with the Hung Juror, who wrote:

David flinched so hard he squeezed Emma, who momentarily stopped working the bottle. He closed his laptop and cursed himself for looking at the blog. Never again, he vowed, not for the first time.

W
ith the verdict solidly in hand, Nadine Karros decided to push a bit harder. Her first witness Friday morning was Dr. Mark Ulander, Varrick’s senior vice president and director of research. Working from a script, they quickly laid the groundwork. Ulander had three graduate degrees and had spent the past twenty-two years supervising Varrick’s vast development of myriad drugs. Krayoxx was his proudest achievement. The company had spent over $4 billion bringing it to market. His team of thirty scientists had labored for eight years to perfect the drug, to make certain it worked to lower cholesterol, to take no chances with its safety, and to gain FDA approval. He detailed the rigid testing procedures used, and not just for Krayoxx but for all Varrick’s fine products. The company’s reputation was on the line with every drug it developed, and the Varrick reputation for excellence pervaded every
aspect of his research. With Nadine’s skillful direction, Dr. Ulander painted an impressive picture of a diligent effort to produce the perfect drug, Krayoxx.