The Trial (21 page)

71

Whizmo came through the back door, computer in hand, and found the others in the conference room. “Okay, what have we got?”

Luke looked up from his computer. “Mainly more damn good stuff for us.”

“All of these sites that they held back have more problems with fraud and forgery than any of the sites they first gave us,” Sue Ellen added.

“Yeah, it’s clear why they tried to deep-six this information. We’ve now accounted for right at twenty-five thousand patient-subjects,” Luke said. “There’s one major problem, though.”

“What’s that?” Whizmo asked as he plugged in his computer.

“They now have turned over Ceverta’s copy of the consent form that Sam signed.”

“It’s my signature,” Samantha said quietly. “Even the initials at the bottom of each page look like mine, but I don’t remember initialing them. I didn’t read any of the stuff. Dr. Challa said I didn’t need to, that it was just a formality. He kept telling me that the drug was safe.”

“Can’t we keep that out of evidence?” Sue Ellen asked. “It was misrepresented by Dr. Challa.”

Luke shook his head. “We’ll give it a try, but it’s a long shot. Buried on page four of six, in the fine print, is some language that describes the risk of liver failure as a side effect of the drug. They don’t say there’s a chance of death, but they’ll argue that any adult would know that if your liver fails, you can die. Bottom line is that it will probably come into evidence and we’ll just have to deal with it.”

72

Metcalf tapped her pen on the conference table as her team gathered coffee and found seats. They had moved to the San Marcos Holiday Inn. Jeans, Nikes, and T-shirts met the dress code for this endeavor. “Let me remind you of the words of the late Vince Lombardi. If you’re early, you’re on time. If you’re on time, you’re late. If you’re late, don’t bother to show up. Just pack your bags. When I walk into this conference room, I expect to be the last to arrive. Clear?”

Heads nodded around the table, although Michael Forsythe had to hide his anger at being treated like a file clerk. After all, he was a junior partner.

“Okay, let’s get started. We lost some ground at that last hearing.”

“Yeah,” Forsythe replied. “It never occurred to me that a small-town lawyer would have the time or resources to go through all those documents and figure out what we held back.”

“There may be a message in there,” St. James interjected. “This guy may be a little sharper than we figured. By the way, who’s this Professor Whizmo?”

“I’ve had him checked out,” Metcalf said. “He’s a history professor over at TSU, something of a legend around the university. He also does double duty as a graduate-level computer prof. Seems to be a little odd; lives in a garage apartment behind Vaughan and rides a Harley around town. Still, the word is that no one outdoes him either in history or on computers. Now, what do we do to neutralize all the crap that is in this clinical trial?”

“I have an idea, Audrey,” a soft voice said from the other end of the table. It was Charlotte Bronson. The appellate lawyer was the brains of the outfit. Short and plump, with mousy brown hair and horn-rim glasses, she wouldn’t stand out in a crowd. She spoke quietly, but when she did, everyone listened.

“Go ahead, Char,” Metcalf said. “What’s your idea?”

“I think we can keep the study out of evidence.”

That got the attention of everyone around the table.

“The clinical trial was to get approval of the drug for marketing. Samantha Vaughan was a part of the trial. Her doctor didn’t prescribe Exxacia to her based on the results of the trial, FDA approval, what was on the label, or even advertising. What’s relevant here is that she signed a consent form, which I understand we just produced. That’s where we should draw the battle lines and argue that the rest of the clinical trial is not relevant to her case.”

Audrey Metcalf again tapped her pen on the table as she thought through the argument. Everyone else waited for her to say something. They dared not speak until she expressed her thoughts about the plan. Once they perceived which way the train was going, they would vocally climb on board.

“I like it,” Metcalf finally said. “Anyone disagree?”

Murmurs of assent came from around the table.

“Charlotte, you’ve got a week to get that motion and brief drafted. We’ll file it as soon as I’ve given it the okay. Now, we have our mock jury in Austin tomorrow at the Four Seasons on the Lake. I want everyone except the file clerks there at eight in the morning. Back to work, everybody! By the way, if anyone wants to join me, I’ll be doing a five-mile run at six this evening.”

73

Bruce Outland, a tall African American in his midthirties, still had an athletic build. He’d played wide receiver for the Longhorns and tried out for a couple of NFL teams. When he couldn’t make the cut, he returned to The University of Texas and got a doctorate in psychology. After working for a jury consulting firm in Dallas for several years, he returned to Austin to start Capital Consultants. Now he had a staff of ten and went to cities and towns across Texas and several neighboring states to consult with lawyers.

On the day that Metcalf’s team drove to Austin, Outland was going to do a mock trial to determine what prospective jurors would be good for Ceventa and which ones might be more favorable to Samantha Vaughan. He and his team had already spent weeks evaluating the demographics of Hays County. They knew the percentage of males and females, the numbers of young people versus older citizens, and, most importantly, the county’s racial and ethnic makeup—a hodgepodge of Anglos, Latinos, Germans, Poles, Czechs, African Americans, and a scattering of Asians. Once Outland knew what he wanted, he put his staff to work. They ran ads in the
Austin American-Statesman
and on the Internet, offering one hundred and fifty dollars for a day’s work. In tough economic times, it was relatively easy to have hundreds of takers. Next they pored through the application forms until they came up with sixty people who would match a prospective jury in Hays County. The mock jurors were asked to arrive at the hotel at eight and were directed to a large conference room, arranged like a classroom. Five other smaller conference rooms were arranged for jury deliberations, each with a large conference table and twelve chairs.

Once assembled, they were told that they were to be a part of the judicial system: Rather than go to the time and expense of a trial, the parties to this litigation had decided to put on a summary of their case to those assembled in the room. They never knew that the entire production was funded by Ceventa. As they heard from each lawyer, the jurors each held a device with a keypad and buttons from one to ten. They were to hit ten when they were impressed with something a lawyer said and go as low as one if they had strong negative feelings about a statement. Or, of course, they could hit any number in between.

After the opening statements, they would be divided into five juries of twelve to deliberate on the questions in the case. In the spirit of full disclosure, they were advised that they would be videoed at all times, but only the lawyers would watch the videos. As consent forms were passed around, no one refused the opportunity to make an easy buck and a half.

74

Bruce Outland met Audrey Metcalf and her team in the lobby of the hotel.

“Audrey, nice to see you again. “What is this, the sixth time we’ve worked together?” Bruce asked.

“I think it’s seven, but who’s counting as long as you keep helping me win,” Metcalf replied.

Outland shook hands with the rest of the team and led them to yet another conference room. This one was outfitted with half a dozen television monitors. Five showed the empty jury rooms. The sixth showed the large room where the jurors were milling around, drinking coffee, and reading the paper; in the center of the serving table was a large jar filled with pink jelly beans, and several people were eating them and reading pamphlets about the Race for the Cure.

Metcalf was surprised to find Alfred Kingsbury standing at the coffee table, talking on his cell phone. As they entered, he ended his call.

“Alfred, I didn’t expect to see you here.” Metcalf smiled as she hugged her client.

Kingsbury poured coffee for Metcalf and a cup for himself. He let the others fend for themselves. “Audrey, I pay a ton of money for these around the country every year. This one is setting us back a hundred and fifty thousand. I’ve never seen one before. I just figured it was about time. Besides, Exxacia is critical to Ceventa and, I might add, to me. The board wants a firsthand account of this case every step of the way.” A twinkle appeared in his eyes as he continued. “Also, I thought that when we got through today, you and I might have drinks and dinner like we did when you handled that case for us in San Francisco. You know the old saying, ‘all work and no play…’”

“I think we might be able to work something out.” Audrey smiled again. “How’s Suzanne?”

“Uh, she’s just fine. Taking an extended vacation in South America.”

“How about the grandkids?”

“Couldn’t be better. Here, let me show you my granddaughter in her latest play.”

Kingsbury reached for his wallet, and Metcalf dutifully admired the photos. Before she could say anything more, they were interrupted.

“Dr. Kingsbury, we’re about ready to start. You can see my associate asking our jurors to take their seats,” Outland said. “He’ll explain what we’re doing, and we’ll get started. Mr. Forsythe is going to play the role of Lucas Vaughan. He’ll have an hour to summarize the plaintiff’s case. Audrey will play herself. We’ll watch each of them on this large monitor. The jurors do not know that Mr. Forsythe is really a member of your team. His job is to lay out the plaintiff’s case as forcefully and dramatically as he can.” Outland turned to Michael Forsythe. “Mr. Forsythe, I think they’re ready for you.”

“Bruce, nice touch with the jelly beans and pamphlets,” Metcalf said. “I appreciate it.”

“It’s not just for this one, Audrey. You got me started, but now I do it at every mock trial. I’ve even got those pink jelly beans in my reception area downtown.”

Michael left the room, and they soon saw him on the television screen, approaching a podium in front of the audience. “Good morning, ladies and gentlemen. My client, Samantha Vaughan, is dying because she took a drug manufactured by Ceventa Pharmaceutical, the defendant in this case.”

In the adjoining room, the Ceventa team watched a red line superimposed over Forsythe’s image climb to ten on a graph and remain there. Kingsbury looked troubled.

“I’ve taught him well, Alfred,” Metcalf said. “He knows how to grab the jury’s attention with his first sentence.”

Over the next hour, the red line never hit ten again but fluctuated between two and eight, more often in the range of five. When Forsythe finished, the jurors took a break, then reassembled as Metcalf entered the room.

“Ladies and gentlemen, right now, throughout the world, Exxacia has saved three hundred and seventy-five thousand lives.”

The red line shot to ten.

When Metcalf finished, the jurors were invited to take sandwiches from a buffet table and go to their jury rooms to deliberate. They would have three hours. As they did so, the Ceventa team could watch each of the juries and turn up the volume to a room when they saw something interesting. At the conclusion of the deliberations, three juries found in favor of Ceventa and two were split in favor of Samantha. Once the jurors had filed out of their rooms and received their checks for jury service, Outland spoke to the Ceventa team.

“We’ve learned a lot today. We’ll be giving you a detailed report along with videos of the proceedings. Preliminarily, it’s clear that we want older men and as many people of Slavic descent as we can get on the jury. We want to avoid younger women, who will sympathize with Samantha, as well as Latinos, who are nearly always too compassionate.”

“Audrey, what’s your assessment?” Kingsbury asked.

Metcalf paused to collect her thoughts before she spoke. “We’re going to be okay, provided we get the right jury. With the wrong jury we could have a problem. We damn sure want some of those Germans and Polacks, as many as we can get.”

Outland nodded his agreement. As the Ceventa team left the hotel, Metcalf joined Kingsbury in his limousine.

75

Luke trudged up the steps to the porch, where he took off his coat and tie and tossed them onto a rocker. Then he walked around to the garage, opened the door, checked over his motorcycle, got on, turned the key, and pushed the ignition. When he roared down the driveway, Samantha watched him leave and wondered why her dad would be riding his Harley in the middle of the morning and with no helmet.

He hit the edge of town and started up the road to an area called the Devil’s Backbone. Luke cussed to himself.
How the hell could this happen? How could Nimitz rule like he did?
Metcalf had filed a motion to quash the admissibility of the clinical trial. That trial was critical to their case. They had spent untold hours finding the fraud and forgery that ran rampant throughout the study. They would win if they could show the fraud and deceit perpetrated by Ceventa. Sue Ellen had written a brilliant response that he was convinced would carry the day, but now, on the eve of trial, they had lost. Not only did they lose the motion, but without the evidence of fraud, they almost surely would lose the trial. Sure, they might get a big verdict against Dr. Challa, but that would be a hollow victory. Ceventa would tout the verdict and claim that the American judicial system had found Exxacia to be safe and effective. And Samantha was going to die.

When he came over a hill and rode the crest of the Devil’s Backbone, Luke let his anger spill out as he gunned the engine and pushed the Harley to a tooth-rattling hundred miles an hour.
The judge ruled against us. He bought into the argument that the clinical trial was not relevant to Samantha’s case. How could he do that? Had Ceventa gotten to him? No, not Judge Nimitz. He’s as straight an arrow as ever took the bench. He’s just flat wrong, and there’s nothing we can do about it until we appeal. Only for Samantha, that’ll be too late.

Luke slowed as he came to the stream where he and Samantha had sat and talked. He got off his motorcycle and walked to the riverbank. His mind lost in thought, he idly skipped rocks across the water. Sue Ellen had been in the courtroom. She knew what happened. He would have to tell Whiz, though. As for Sam, he’d just say they lost a motion, and that was just part of trying lawsuits.

When Luke climbed back on the Harley, he blew out a big breath and forced himself to relax as he left the stream. Returning to San Marcos along the Devil’s Backbone, he mused that the ridge was appropriately named. The road twisted and turned for the whole distance, requiring a driver or rider to pay attention to avoid steep embankments and more than a few places where the side of the road dropped off a shear cliff.

From almost anyplace on the twenty-five-mile ridge, one could see the rolling hills for miles in either direction. On weekends the road was heavily traveled by sightseers. Not today. Luke rarely passed another car or motorcycle. As he rode, at least for the moment, he put his worries behind him and enjoyed the view and the wind in his face.

He was about ten miles from the edge of San Marcos when he glanced in his rearview mirror and saw a dark vehicle in the distance, closing rapidly.
Must be a crazy tourist,
he thought, one who didn’t realize the danger of overdriving the curves on the backbone. He returned his gaze to the road ahead and slowed to make a sharp curve. When he looked back, the vehicle was almost on top of him. Now he saw it was a black Lincoln and could make out two men in the front seat. Assuming they were in a bigger hurry than he was, Luke moved over to the right.

The car accelerated, and as it came even with Luke, he saw it swerving toward him. Faced with a two-ton vehicle to his left and a small shoulder adjacent to a steep cliff to his right, Luke had only one option. He cut to the shoulder and laid his bike down on its left side. He skidded and bounced along the shoulder as the cliff loomed. At the last possible moment, he came to a stop two feet from the edge.

Luke lay there for nearly a minute before he managed to lift the Harley just enough to pull his left leg from under it. He staggered to his feet and surveyed his body. His left leg was scratched and bloody, but nothing seemed to be broken. Thank God, he thought, that he had slowed for the curve. Next he looked down the highway. The car was long gone. He checked the Harley; it appeared to be like his leg, scratched but not broken. Now, if he could just get it upright.

As he surveyed the bike, another rider stopped behind him. “Hey, man. You okay?”

“I think so,” Luke replied.

“You hit gravel on that curve?”

Luke shook his head. “Some son of a bitch tried to force me off the road.”

“Yeah, man,” the other rider said. “I’ve had that happen. Some drivers just have it in for us. They’re usually just trying to play games.”

“This guy wasn’t playing games. He wanted me at the bottom of that ravine. Can you help me get my bike up?”

Luke and the other rider uprighted the Harley. Luke checked it over, climbed aboard, started the engine, and rode it fifty yards before returning. “She’s doing fine. Thanks, man,” Luke said. The other rider gave him a salute, and Luke turned to ride back into San Marcos, watching for the black Lincoln at every curve and crossroad.