The Litigators (41 page)

A
s he approached the intersection of the Tri-State Tollway, a dashboard warning light flashed red. He was almost out of gas. For the past three days, he had never once checked his fuel gauge.

The truck stop was crowded, grungy, in need of a renovation. There was a diner on one side and a convenience store on the other. David filled his tank, paid by credit card, and went inside to buy a soft drink. There was only one cashier and a line of waiting customers, so he took his time, found a Diet Coke and a bag of peanuts, and was headed to the front of the store when he stopped dead cold.

The rack was crammed with cheap Halloween toys, gadgets, and trinkets. In the middle, at eye level, was a clear plastic container with brightly colored … Nasty Teeth. He grabbed it and went straight for
the fine print on the label. Made in China. Imported by Gunderson Toys, Louisville, Kentucky. He collected all four packets, evidence of course, but he also wanted to yank the crap off the market before another kid got sick. The cashier gave him a weird look as she rang up his purchases. He paid in cash and hustled back to his SUV. He pulled away from the pumps and parked under a bright overhanging light near the 18-wheelers.

Using his iPhone, he Googled Gunderson Toys. The company was forty years old and had once been privately owned. Four years earlier, it had been purchased by Sonesta Games Inc., the third-largest toy company in America.

He had a file on Sonesta.

R
euben Massey arrived after dark on a Varrick Gulfstream G650. He landed at Midway Airport and was immediately scooped up by an entourage that sped away in black Cadillac Escalades. Thirty minutes later he entered the Trust Tower and was whisked high into the sky to the 101st floor, where Rogan Rothberg kept an elegant private dining room that was used by only the most senior partners and their most important clients. Nicholas Walker and Judy Beck were waiting, along with Nadine Karros and Marvin Macklow, the managing partner of the law firm. A waiter wearing a white tux brought cocktails as everyone was properly introduced and became comfortable with each other. Reuben had been wanting to meet, and examine, Nadine Karros for many months. He was not disappointed. She turned on the charm, and after the first cocktail Reuben was thoroughly smitten. He ran the ladies hard and was always on the prowl, and, well, you never know what might happen with a new acquaintance. However, according to the scouting report, she was happily married, and her only diversion was working. In the ten months Nick Walker had known Nadine, he had seen nothing less than a complete devotion to professionalism. “It’s not going to work,” he said to his boss back at the home office.

Per Reuben’s preference, dinner was a lobster salad with pasta shells. He sat next to Nadine and hung on her every word. He went heavy on the praise for her handling of the case and the trial. He, along with everyone around the table, was anxiously awaiting a momentous verdict.

“We’re here to have a conversation,” Nick said after the dessert plates were removed and the door closed. “But first, I would like Nadine to tell us what’s up next in the courtroom.”

Without hesitation, she began her summary. “We are presuming the plaintiff has no more witnesses. If the pharmacologist were to appear in the morning, he would be allowed to testify, but according to our sources Dr. Threadgill is still hiding at home in Cincinnati. So, the plaintiff should rest its case at 9:00 a.m. At that point, we have a choice. First, and obvious, is to move for summary judgment. Judge Seawright allows this to be done both orally and in writing. We’ll do both at the same time, if we choose to go that route. In my opinion, which is shared by my trial team, there is an excellent chance Judge Seawright will grant our motion immediately. The plaintiff has failed to establish even the most basic elements of a case, and everyone, including the plaintiff’s lawyer, knows this. Judge Seawright has never liked this case, and, frankly, I get the impression he can’t wait to toss it.”

“What’s his history with summary judgment motions made after the plaintiff rests?” Reuben asked.

“In the past twenty years, he’s granted more than any other federal judge in Chicago and the State of Illinois. He has zero patience with cases that cannot reach even the lowest standard of proof.”

“But I want a verdict,” Reuben said.

“Then we will forget summary judgment and start putting on witnesses. We have a lot, you’ve paid for them, and they will be unimpeachable. But I have a strong feeling that this jury is fed up.”

“Absolutely,” said Nick Walker, who had been in the courtroom for every word. “I suspect they’ve already started their deliberations, in spite of Judge Seawright’s admonitions.”

Judy Beck added, “Our consultants feel strongly that we should finish the case as soon as possible, definitely before the weekend. The verdict is all but in.”

Reuben smiled at Nadine and said, “So, Counselor, what’s your advice?”

“For me, a win is a win. Summary judgment is a slam dunk. If it
goes to the jury, there’s always the risk of a freak accident. I would take the easy way out, but then I understand there’s more in play here than a ruling by a judge.”

“How many cases do you try each year?”

“Six is the average. I can’t prepare for more than that, regardless of staff.”

“And you haven’t lost in how many years?”

“Eleven. Sixty-four wins in a row, but who’s counting?” This tired line drew laughs far louder than it deserved, but everyone needed the humor.

“Have you ever felt this confident about a trial and a jury?” Reuben asked.

She took a sip of wine and thought for a moment, then shook her head. “Not that I remember.”

“If we go all the way to the verdict, what are our chances of winning?”

Everyone watched her as she took another tiny sip. “A lawyer is not supposed to make these predictions, Mr. Massey.”

“But you’re not a typical lawyer, Ms. Karros.”

“Ninety-five percent.”

“Ninety-nine,” Nick Walker said with a laugh.

Reuben took a gulp of his third Scotch, smacked his lips, and said, “I want a verdict. I want the jury to deliberate briefly and walk back into that courtroom with a verdict for Varrick Laboratories. To me, a verdict is repudiation, it’s revenge, retribution, it’s a lot more than victory. I’ll take the verdict and splash it all over the world. Our PR people and ad agencies are ready and itching to go. Koane, our man in Washington, assures me that a verdict will break the logjam at the FDA and get a reversal. Our lawyers from coast to coast are convinced a verdict will even further frighten the tort boys and send them running for the hills. I want a verdict, Nadine. Can you deliver it?”

“As I said, Reuben, I’m 95 percent sure.”

“Then that settles it. No summary judgment. Let’s bury these bastards.”

A
t exactly 9:00 on Thursday morning, a bailiff called the court to order and all rose for the entrance of His Honor. When the jury was in place, he said abruptly, “Continue, Mr. Zinc.”

David rose and said, “Your Honor, the plaintiff rests.”

Judge Seawright was not at all surprised. “Lost some more witnesses, Mr. Zinc?”

“No sir. We’ve simply run out of them.”

“Very well. A motion, Ms. Karros?”

“No, Your Honor, we are ready to proceed.”

“I suspected that. Call your first witness.”

David suspected it too. He had allowed himself to believe that the trial would end abruptly that morning, but it was obvious Nadine and her client smelled blood. From there on, he would have little to do but listen and watch a real courtroom lawyer.

“The defense calls Dr. Jesse Kindorf.” David glanced at the jurors and saw several smiles. They were about to meet a celebrity.

Jesse Kindorf was a former surgeon general of the United States. He held the position for six years and was brilliantly controversial. He castigated tobacco companies on a daily basis. He held large press conferences in which he exposed the fat and caloric content of popular fast foods. He released scathing condemnations against some of the most trusted names in corporate America, consumer product companies that were flat-out guilty of producing and marketing mass quantities
of highly processed foods. At various times during his tenure, he was on the warpath fighting butter, cheese, eggs, red meat, sugar, soft drinks, and alcohol, but his most famous brouhaha occurred when he suggested a ban on coffee. He thoroughly enjoyed the spotlight, and with his good looks, athletic build, and quick wit he became the most famous surgeon general in history. The fact that he had crossed the street and was now testifying on behalf of a major corporation was a clear signal to the jurors that he believed in the drug.

And he was a cardiologist, from Chicago. He took the stand and flashed a smile at the jury, his jury. Nadine began the arduous process of going through his credentials in order to have him qualified as an expert. David quickly jumped to his feet and said, “Your Honor, we are happy to stipulate that Dr. Kindorf is an expert in the field of cardiology.”

Nadine turned, smiled, and said, “Thank you.”

Judge Seawright growled, “Thank you, Mr. Zinc.”

The gist of Dr. Kindorf’s testimony was that he had prescribed Krayoxx to thousands of his patients over the past few years, with no side effects whatsoever. The drug worked beautifully for about 90 percent of his patients. The drug dramatically lowered cholesterol. His ninety-one-year-old mother was on Krayoxx, or was until it was pulled by the FDA.

The paralegal scribbled a note on her legal pad and handed it to her boss: “Wonder how much they’re paying him?”

David scribbled back as if they were discussing a major flaw in the testimony. “A lot.”

Nadine Karros and Dr. Kindorf worked their way through a flawless round of batting practice. She served up the fat pitches, he knocked them out of the park. The jury wanted to cheer them on.

When Judge Seawright asked, “Any cross-examination, Mr. Zinc?” David rose and politely said, “No, Your Honor.”

To curry favor with the blacks on the jury, Nadine called a Dr. Thurston, a dapper, distinguished black gentleman with a gray beard and finely tailored suit. Dr. Thurston was also from Chicago and was the senior physician in a group of thirty-five cardiologists and cardiovascular
surgeons. In his spare time, he taught at the University of Chicago School of Medicine. To move things along, David did not question his credentials. Dr. Thurston and his group had prescribed Krayoxx to tens of thousands of their patients over the past six years, with spectacular results and no side effects. The drug, in his opinion, was perfectly safe; indeed, he and his colleagues viewed it as a miracle drug. Its presence was sorely missed, and, yes, he planned to immediately resume prescribing it when it reappeared on the market. Most dramatically, Dr. Thurston revealed to the jury that he had taken Krayoxx himself for four years.

To get the attention of the Hispanic lady on the jury, the defense called Dr. Roberta Seccero, cardiologist and researcher at Mayo Clinic in Rochester, Minnesota. David gave the green light on credentials, and Dr. Seccero, to no one’s surprise, sang like a bird on a spring morning. Her patients were mostly women, and the drug did everything but make them lose weight. There was no statistical evidence that those taking Krayoxx were likelier to suffer heart attacks or strokes than those who didn’t take it. She and her colleagues had researched this at length, and there was no doubt. In her twenty-five years as a cardiologist, she had never seen a safer and more effective medication.

The rainbow was completed when Ms. Karros called to the stand a young Korean doctor from San Francisco who, oddly enough, looked remarkably similar to juror Number 19. Dr. Pang enthusiastically endorsed the drug and expressed dismay at its removal from the market. He had given it to hundreds of patients with outstanding results.

David had no questions for Dr. Pang either. He was not about to bicker with any of these renowned doctors. What was he supposed to do—argue medicine with some of the best doctors in the business? No sir. He stayed in his chair and kept one eye on his watch, which was moving rather slowly.

There was no doubt that had there been a juror of Lithuanian descent, Nadine would have pulled another expert from her magic hat, one with a Lithuanian surname and immaculate credentials.

The fifth witness was the chief cardiologist at the Feinberg School
of Medicine, Northwestern University. Her name was Dr. Parkin, and her testimony was a little different. She had been hired to do a thorough analysis of Percy Klopeck’s medical history. She had reviewed his records from the age of twelve and those of his siblings and parents to the extent they were available, and she also had taken recorded statements from his friends and co-workers, those willing to cooperate. At the time of his death, Percy was taking Prinzide and Levatol for hypertension, insulin for adult-onset diabetes, Bexnin for arthritis, Plavix as a blood thinner, Colestid for atherosclerosis, and Krayoxx for high cholesterol. His happy pill of choice was Xanax, which he either bummed off friends, stole from Iris, or bought online, and he used it daily to battle the stress of life with “that woman,” according to one of his co-workers. He occasionally used Fedamin, an over-the-counter appetite suppressant that was supposed to make him eat less but seemed to backfire. He had smoked for twenty years but managed to stop at the age of forty-one with the aid of Nicotrex, a nicotine-laced chewing gum that was known to be highly addictive. He chewed it nonstop, going through at least three packages a day. According to blood work a year before he died, Percy’s liver was showing a decreasing level of function. He loved gin and, according to credit card records subpoenaed by Ms. Karros, purchased at least three fifths a week from Bilbo’s Spirits on Stanton Avenue, five blocks from his home. He often felt bad in the morning, complained of headaches, and kept at least two large bottles of ibuprofen close by on his cluttered work desk.

When Dr. Parkin finished her lengthy narrative about Percy’s habits and health, it seemed patently unfair to blame his death on just one drug. Since there had been no autopsy—Iris had been too upset to even think about it—there was no positive indication that he died of a heart attack. His death could have been caused by the all-encompassing “respiratory failure.”