Authors: Victor Methos
Tags: #Fiction, #Mystery & Detective, #Amateur Sleuth, #Thrillers, #Legal, #Medical
OTHER TITLES BY VICTOR METHOS
Brigham Theodore Legal Thrillers
The Neon Lawyer
Jon Stanton Thrillers
White Angel Murder
Walk in Darkness
Sin City Homicide
The Porn Star Murders
Mickey Parsons Thrillers
The Murder of Janessa Hennley
Sarah King Mysteries
Plague Trilogy Medical Thrillers
Serial Murder and Other Neat Tricks
Diary of an Assassin
Science Fiction & Fantasy
Empire of War
Black Onyx Reloaded
This is a work of fiction. Names, characters, organizations, places, events, and incidents are either products of the author’s imagination or are used fictitiously.
Text copyright © 2016 by Victor Methos
All rights reserved.
No part of this book may be reproduced, or stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without express written permission of the publisher.
Published by Thomas & Mercer, Seattle
Amazon, the Amazon logo, and Thomas & Mercer are trademarks of
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Cover design by Ray Lundgren
To Noah. My hero.
Justice will not come until those who are not injured are as outraged as those who are.
Solon, 560 BC
Food manufacturers have a formula to determine whether we should live or die.
I sat at the plaintiff’s table inside a courtroom at the Utah County District Court in Spanish Fork, Utah. A vice president from Bethany Chicken was on the stand, testifying. I stared at him, wondering what he’d thought when he first heard the formula. Was he shocked? Did he try to fight it? Was he apathetic? At some point, he decided to succumb. He may have been a good man before that. A family man. A God-fearing Christian man. A charitable man. One decision changed that, and he became worse than any drug dealer or pimp my firm had ever defended.
The formula was simple. It was based on one that a judge named Learned Hand—his actual given name—had written in a legal opinion, probably unaware what the implications were. The food industry had run with it.
Defects in food—bacterial infections, rot, mold, cross-contamination with allergens, exposure to toxic substances, and everything else that could go wrong—were discovered by manufacturers long before the general public knew. The manufacturer then had a decision to make: do we recall the food or not?
Actuaries worked out death tables that predicted how many people would die or become ill because of the defect. They could determine how much money the average person who bought the product earned per year: that person’s earning capacity. Adding up the earning capacity of everyone who could potentially die or get sick because of the defect gave them an estimate of how much settlements would cost. Under the law, a consumer’s value equaled the amount of money that person could have earned in a lifetime, had he or she lived. If the calculation of damages in all the wrongful death lawsuits was greater than the cost of a recall, the manufacturer would recall the product. If the settlements would cost the company less than the recall, then they just ignored the defect.
Damages > Profit = Recall
Every bite of food we eat is like rolling a pair of dice. At some point, somewhere, someone was coming up snake eyes. And that’s when they would seek me out.
This time, the snake eyes came up for my client’s seventy-one-year-old husband.
The judge, an elderly man who had recently lost a hundred and ten pounds after having his stomach stapled, still wore his extra flesh like a deflated balloon, and the excess skin on his cheeks bunched up when he spoke. But he was about as gentlemanly a judge as one could find in Utah County.
“Your witness, Mr. Byron,” he drawled.
I rose slowly and buttoned my suit coat. At the defense table sat the corporate defense attorneys—a litigation firm hired by Bethany Chicken’s insurance company, in-house counsel for Bethany Chicken, and a defense litigator from the insurance company itself. Five attorneys at one table.
The only people at my table were me and a seventy-year-old widow in a yellow dress. I was one-third partner at a firm with twenty lawyers. I could have had people there, too, but I wanted to be the underdog. I wanted the jury rooting for me.
Normally, I wouldn’t have taken this case. The deceased’s earning capacity wasn’t high enough to make my fee worth the time commitment. But the widow was so sympathetic that I knew a jury would eat out of her hand when she testified. She couldn’t even mention her husband’s name without crying. The more tears she shed up there, the higher the dollar amount of the award in the verdict.
I stepped to the lectern. Barry Harper, a bald man wearing a Rolex watch, had worked at Bethany Chicken for ten years. His immaculate gray pinstriped suit was not unlike my own. But I wore a blue tie and a blue pocket square because our jury focus groups had said jurors responded best to blue.
“What’s the Black Test, Mr. Harper?” I asked. I never stood behind the lectern. I always stepped to the side. If possible, I stood right in front of the witness, but some judges didn’t allow that.
“I have no idea.”
“You don’t know what the Black Test is? That’s your testimony?”
He nodded. “I don’t know what that is, Mr. Byron.”
“No idea what the Black Test is, correct?”
“I’ve told you twice now, sir, that I don’t know what it is.”
I grinned. “And we can trust you on that, can’t we?”
He paused, as if wondering where the trap was. “I’m telling the truth, if that’s what you mean.”
“You’re telling the truth because if you did know what the Black Test was, and you got up there and said you didn’t know what it was, well, that would be perjury, wouldn’t it? Which is a felony.”
“I don’t know the law.”
“But you know that to lie under oath in a court of law is a crime, don’t you?”
He thought that over. “Yes, I believe it is a crime to lie under oath. I don’t know the degree of that crime. But I’m telling the truth.”
One of the defense attorneys, a pasty-complexioned man named Rosenberg, stood and said, “Objection, Your Honor. We’ve established that Mr. Harper is telling the truth. What exactly is the purpose of this line of questioning?”
“Getting there, Judge,” I said.
“Get there a little quicker, Mr. Byron.”
I put my hands behind my back and took a few steps toward Harper. I stopped and looked at him. I looked him right in the pupils for a long time, long enough that he began to fidget. I walked back to the plaintiff’s table and picked up a sheet of paper I had set out. Turning back to Harper, I pretended to read it silently.
“So if I had an email written to you on June fourteen of this year at 2:07 in the afternoon, by a member of your staff, that said a recall of unit 4379 didn’t pass the Black Test, and you replied with ‘OK,’ there would only be one conclusion we could draw, wouldn’t there? That you have just lied.”
“Objection!” Rosenberg screamed. “Plaintiff’s counsel has not provided any such email to the defense. I would vehemently object to its introduction and ask that this be argued in chambers.”
I smiled at the judge. “I haven’t moved to introduce it yet, Your Honor. We can have that argument when I do.”
I took another step closer to Harper. His cheeks were flushing red now, and I had to suppress a grin. I could almost hear his internal dialogue:
Who the hell wrote that email and didn’t delete it? Would I be so dumb as to respond to that?
“A felony, Mr. Harper,” I said loudly, waving the paper around as though it were the Bible. I stepped right up to him, standing close enough to smell his cologne. “A felony.”
“Objection, Your Honor. This is—”
“It’s not worth it, Mr. Harper. It’s only money. Don’t go to jail over it. What is the Black Test?”
“Judge!” Rosenberg was yelling now. “He is attacking my witness as though—”
I enunciated each word: “What. Is. The. Black. Test?” I waved the paper in front of him.
Harper swallowed, looked down to the floor, and said, “It’s an actuarial exercise.”
I could’ve heard a pin drop in that courtroom. Or in the case of Bethany Chicken and its insurance company, I could have heard six million dollars, which was the amount of damages we were asking for. I looked back at Rosenberg, who collapsed in his chair and groaned loudly enough for everyone to hear.
“An actuarial exercise,” I said, taking a step back and looking at the jury. I went up to the whiteboard I had asked the bailiffs to bring out. I uncapped a marker and wrote
Damages > Profits = Recall
“That’s the Black Test, correct?”
“Yes,” he mumbled. He couldn’t even look at the defense table.
“It means that if the settlement of lawsuits and the damages you have to pay out on defective food is greater than the profits you make from that food, then you issue a recall. Right?”
“Please answer me audibly, Mr. Harper.”
“So let’s just say your actuaries tell you ten people will die from bad eggs, and it would cost you a thousand bucks per lawsuit to quiet that, but you’re only making five thousand in profits total. Then you would issue a recall. Correct? To save that additional five-thousand-dollar difference.”
Harper poured water out of the jug at the witness stand into a paper cup. He took a sip and looked to Rosenberg, who was leaning back in the chair. Rosenberg tossed his pen onto the defense table as though it were a towel in a boxing ring.
“Yes,” Harper said.
“But there’s a flip side to this equation, isn’t there?” I wrote on the whiteboard the formula:
Damages < Profits = No Recall
“That’s an accurate statement of your business practices, isn’t it, Mr. Harper?”
He was playing with his lapels and looking at the defense table. He couldn’t look at the jury. “I don’t know.”
“Well, look at it. If the damages are higher, you recall. That means when the damages are lower, you don’t recall. Simple logic, isn’t it?”
“I . . . I suppose.”
He was a blubbering mess. Cheeks so red that he suddenly looked sunburnt. He knew the enormity of what he’d done. The consequences for him would be swift and severe. Whoever Bethany was, I guessed she didn’t put up with people who couldn’t handle five minutes of questioning.
“It’s already been shown to this jury that you learned about the salmonella in unit 4379 on February second of this year, two weeks before the death of Jason Hardaway. This wasn’t negligence, was it?”
“I don’t understand the question.”
“I said, this wasn’t negligence, was it? You knew what would happen, but it was cheaper for you not to recall and just pay a few pennies to people like my client. People whose husbands and sons and mothers and sisters died because you wanted to save a few bucks. Money over mercy, right?” I did love my soapbox.
Rosenberg finally stood up, and I was surprised he hadn’t done it sooner.
The judge cut him off. “I know, I know.”
“Your Honor,” I said. “I believe Mr. Rosenberg would like to take a ten-minute break to speak with me.”
The judge shrugged. “Let’s make it fifteen.”
I walked past the defense table and laid down the sheet of paper face up. It was an email confirmation from a Las Vegas hotel stating I had booked a room last month. Rosenberg sighed and crumpled the sheet.