The Trial (23 page)

80

Luke showered and dressed the next morning, then went downstairs and knocked on Samantha’s door. Samantha was just waking up when he entered. He sat on the side of her bed as he spoke. “Sam, something happened last night.”

Samantha stared at him sleepily.

“Josh is gone. We think he’s been kidnapped.”

Samantha was suddenly awake and pushed herself up to a sitting position. “Who did it, Dad? Why?”

“We don’t know, Sam. The district attorney, the sheriff, and the FBI are all looking for him.”

Samantha looked out the window at the sheriff’s car down the street. “It’s about the trial, isn’t it, Dad?”

Luke hesitated and then told her about Sue Ellen’s phone call.

“Drop it, Dad.”

“Do what?”

“Drop the lawsuit. Look, I’m probably going to die anyway. They tried to kill you, and now Josh may be next. It’s not worth it. Josh didn’t do anything to anybody.”

Luke took his daughter by her narrow shoulders. “Listen to me, Sam. Sue Ellen and I talked this through last night. I’m going to keep going with the lawsuit. I don’t have time to explain now, but I think it’s the right decision. I promise you we’ll take it day by day. I want you to trust me on this.”

This time Samantha looked her dad in the eye. “Are you sure this is the right thing to do? Positive, I mean?”

Luke sighed. “Samantha, I can’t be positive about anything anymore. I can tell you I believe this is the right decision. We can talk about it some more tonight.”

Samantha nodded and lay down with her back to her dad as he left her room.

81

Luke and Sue Ellen walked to the courthouse, this time with deputies on either side of them. They ignored reporters who asked about their escorts. Two other deputies stood guard at the courtroom door, permitting only the lawyers to enter. When Audrey Metcalf arrived, John McClain met her and asked her to come talk with him in his office. After thirty minutes they returned to the courtroom. Metcalf was visibly shaken as she took her seat. Before she could tell her team what was going on, Judge Nimitz stepped from his chambers. When he took the bench, he motioned to his court reporter to record every word. His face was solemn as he spoke.

“Let the record reflect that the doors to the courtroom are locked. The only people present are counsel for the parties, District Attorney John McClain, Sheriff Sal Jenkins, my bailiff, and my court reporter. We have a very serious situation on our hands. Ms. Metcalf, I understand that Mr. McClain has briefed you.”

“He has, Your Honor.”

“So the record is clear, someone made an attempt on Mr. Vaughan’s life just two days ago. Last night, Josh Taggert, Sue Ellen’s son, was apparently kidnapped and has yet to be found. Understand, Ms. Metcalf, I’m not suggesting anything. The criminal investigation will be handled by Mr. McClain and Sheriff Jenkins. However”—the judge paused to choose his words carefully—“the only connection between the attempt on Mr. Vaughan’s life and Josh’s kidnapping appears to be this lawsuit.”

“Your Honor!” Metcalf said.

“Please be seated, Ms. Metcalf. I’m not through yet. There are two parties who would like to see this lawsuit over before it even begins, Dr. Challa and Ceventa.”

“Your Honor,” Tom Lorance interrupted. “I’ll be glad to bring Dr. Challa in from the hall and let you or Mr. McClain examine him right now.”

“I appreciate that, Mr. Lorance. Now’s not the time or place. However, I do want you defense lawyers to quiz your clients, particularly you, Ms. Metcalf. Although I doubt if Ceventa is involved, they’re going to tell you.”

Metcalf rose again. “Now may I be heard, Judge?”

Judge Nimitz nodded.

“Judge, you can rest assured that I’ll get to the bottom of this with my client. I can further assure you that Ceventa tries cases all over the country. Ceventa is a good corporate citizen that believes in our judicial system. It’s always been willing to present facts to a jury and abide by their decision.”

“Understood, Ms. Metcalf. Now, what do we do about this trial? Luke, you and Sue Ellen can make the call. If you want it continued, we’ll do so.”

This time Sue Ellen rose. “Judge, under the circumstances, I will be the one to speak for our side. Luke and I talked far into the night about this. There’s no clear-cut answer. Both of our kids are in danger. Samantha is near death. Any postponement could mean she will never have a trial or a chance at a new liver. I understand we’ve got multiple law enforcement agencies combing the area. For now I’m willing to defer to Mr. Vaughan’s decision to go forward with our trial. If things change, we’ll advise the court.”

Judge Nimitz pondered the situation before speaking. “Sue Ellen, are you sure?”

“Yes, sir. I am.”

“Very well, we’ll start picking a jury in half an hour. No one is to breathe a word of this to anyone outside of this courtroom and your clients. If the media gets wind of it, I’ll have to sequester the jury.”

82

“Good morning, ladies and gentlemen. My name is Lucas Vaughan. I’m a lawyer here in San Marcos, and I’m sorry to say that I have to represent my daughter, Samantha, who is dying because of a drug manufactured by Ceventa Pharmaceutical, one of the defendants in this case.”

“Objection! Objection, Your Honor,” Metcalf yelled as she leaped to her feet. “He’s already arguing his case. There’s no evidence that Exxacia has caused any of Samantha Vaughan’s health conditions.”

“Ms. Metcalf, he’s entitled to say what the case is about and what he’s claiming,” Judge Nimitz said sternly. “Objection overruled. And I’m not hard of hearing, Counsel, so please keep your voice down. Proceed, Mr. Vaughan.”

Pleased to have won a small victory without having to say a word, Luke turned his attention to the jury. “How many of you have heard of this case in the media or elsewhere?”

Over half the audience raised the numbered cards that Simon had given to each of them. All the lawyers hurriedly wrote down their jury numbers.
Uh-oh,
Luke thought,
I’ve got to be careful or we’ll bust this whole panel.
“Let me see if I can ask all of you who raised your jury cards this one question. Having read about this case in the newspaper or seen something about it on television, is there anyone among you who cannot set aside whatever you’ve learned before today and decide this case on the evidence that is presented in this courtroom?”

All the numbers went down except for two. Luke glanced at the information they had assembled on the jurors and determined both were students at Texas State. “Miss Frederick and Mr. Morales, you’ve still got your cards up.”

Lacey Frederick stood. “Yes, sir. I had some classes with Samantha. I know she was a healthy straight-A student until she took some drug.”

“Same with me, Mr. Vaughan,” Franscisco Morales joined in.

Luke was disappointed that he had lost two good prospective jurors, but he liked what Lacey Frederick said in front of the entire panel.

Luke knew that there were at least twenty on the panel with Slavic ancestry. He wanted them gone. So he asked a series of questions about frivolous lawsuits, the rising costs of medical care caused by suits against doctors and drug companies, advocates of tort reform, and the need for tort reform in the state. It took an hour, but when he finished, eighteen of the twenty were gone.

Next he focused on damages. No one objected to awarding damages for medical costs, but ten other prospects were adamant that they could not justify damages for mental anguish or physical pain. Judge Nimitz agreed with all ten of Luke’s challenges. As the lunch hour approached and Luke came to the end of his voir dire, he conferred with Sue Ellen, who sized up the remaining jurors and told him that by the time they used their peremptory strikes, she would be satisfied with the remainder.

It was twelve thirty when Luke finished. The judge asked the panel to be back at two o’clock, allowing a little extra time for the locals to run home for lunch if they saw fit.

83

Audrey Metcalf knew what she had to do. The sympathy factor in the case would be overwhelming. She attacked it from the start. “Ladies and gentlemen, the judge will instruct you that you should not let sympathy play any part in your deliberations. I’m sorry to say that Samantha Vaughan is dying, not because of a Ceventa drug but for other reasons that you’ll hear as the trial progresses.”

Luke gave Sue Ellen a quizzical look when Metcalf made that statement.

“I have sympathy for a young lady like Samantha, but to do my job, I’ve got to set aside my human feelings for her.”

“The hell she does,” Sue Ellen whispered to Luke. “The bitch and her client don’t care who lives or dies as long as they win.”

“Who believes that you just could not set aside your natural sympathy and judge the evidence objectively?”

Metcalf got what she wanted. It took her nearly two hours of poking and prodding, but she eventually disqualified sixteen jurors, mostly women and college students. Three more disqualified themselves because Luke had been their lawyer for one thing or another. Two were disqualified because a family member had been sent to the pen in Huntsville by Sue Ellen. The clock was approaching four when Metcalf conferred with her team and reported they had completed their voir dire. Judge Nimitz was about to announce that voir dire examination was complete when Tom Lorance stood.

“Judge, I think you forgot about me.”

The judge shook his head at his own error. “Sorry, Mr. Lorance. Please proceed.”

“Ladies and gentlemen, all I want to do is introduce myself. I’m Tom Lorance. I’m pleased to represent Dr. Challa.” Dr. Challa got to his feet at Tom’s urging and managed a nod to the jury. “You’ll be hearing from him later in the trial. That’s all, Judge.”

“All right, you jurors are excused to stretch your legs. Don’t anybody go home. You lawyers can make your strikes. Luke, I suppose you and Sue Ellen can use her old office. I think it’s still vacant, awaiting her return. The Ceventa lawyers can use the jury room. Plaintiff gets six strikes. Ceventa gets four strikes, and Tom, you get two.”

“Judge!” Metcalf yelped. “That’s outrageous! Mr. Lorance’s client is barely in this case. We should get six strikes.”

“Ms. Metcalf, I suggest you find your indoor voice. Dr. Challa was the original defendant in this case. Unless your client is willing to indemnify him, he’s still a defendant, and I’m giving the defense a total of six strikes. If you raise your voice again, I’ll split them three and three.”

Luke smiled, knowing that he and Tom had already agreed that while they could not work together to strike, Luke would strike potential defense jurors starting with the first juror, and Tom would do the same but starting with the last juror. Was it unethical? Probably. In his mind there was no doubt that the gloves had come off. He’d do whatever it took to win.

After the lawyers made their strikes, the judge called the names of thirteen members of the panel, twelve primary jurors and one alternate in the event illness or family emergency pulled one of the original twelve away. As they took their seats in the jury box, Luke sized them up: six women and six men. Three of the women were Anglo, two Hispanic, and one African American; among the men, four were Anglo, one Hispanic, and one African American. The alternate was a heavyset black man who said he was retired, but their research showed he was only forty-eight and had been on welfare for ten years. Luke liked the fact that he had two young people who would surely empathize with Samantha. It bothered him that two jurors were of German descent. Almost certainly they would be stingy with damages. On the other hand, they would probably insist on perfection or something close to it for Ceventa.

Now those thirteen strangers would take two or three weeks away from their jobs and families for the grand sum of forty dollars a day. They would have to listen to all of the evidence, some of it no doubt boring, and try to resolve the dispute between Samantha and Ceventa. All would go home that evening and grouse about having been chosen. Still, once it was all over, if they were like most jurors, they would find the experience challenging, fascinating, and fulfilling. For most of them, it would be their one chance to serve as an official in their judicial system. None of them would recall it, Luke thought, but our Pledge of Allegiance ended with four very important words: “and justice for all.” He could only hope that justice for Samantha would be swift and would include some way for her to get a new liver—and that they would find Josh alive before the trial was over.

84

The next morning Luke opened the door of Sue Ellen’s office and quickly shut it behind him to fend off questions from the reporters in the hallway. Sue Ellen looked up. Luke took one look at the dark circles under her eyes and knew that there was no good news about Josh. He walked around her desk and put his arms around her shoulders. “Nothing, huh?”

“John was just in here. Josh has disappeared from the face of the earth. Look at this.”

Sue Ellen handed Luke a small box.

“You can open it. They’ve already dusted it for prints. It’s potential evidence, but John’s letting me keep it locked in my office.”

Luke opened the box to find a Texas Longhorns baseball cap.

“It’s Josh’s. I found it on my front porch this morning. Somehow someone got past the deputy and left it.”

“I’m sorry, Sue Ellen. I know they’re doing everything they can.”

“I … I don’t know if I can take this much longer. I want Josh back.” Sue Ellen grabbed a Kleenex from her desk and wiped her eyes. “I was up most of the night. Are we jousting at windmills with this trial? Without that clinical trial in evidence, our case is hanging by a thread. Every day we keep going, Josh’s life is at risk. Is it going to be worth it?”

Luke walked back around Sue Ellen’s desk and sat down. “Believe me, I didn’t sleep much better. I think Dr. Stevens will get us past Ceventa’s motion for a directed verdict, but it’ll be close. Hopefully, your friend Chuck will let it go to the jury. If we can get it to the jury, we should get a favorable verdict. Then maybe we can convince Ceventa to settle.”

Luke realized that he had just convinced his daughter to keep going forward the day before, and now he was having to convince Sue Ellen. Maybe it was wrong to jeopardize Josh, but he couldn’t let his daughter die without giving it everything he had. “Stay beside me, Sue Ellen. It’s going to be okay,” Luke said with a modicum of conviction. As he rose to leave, he saw Sue Ellen bury her face in her hands.

The courtroom was packed when Luke entered. Sue Ellen trailed only a few minutes behind. It appeared that she had dried her eyes and reapplied her makeup. The audience was full of reporters. Luke spotted a group of Samantha’s friends squeezed into the first row. He waved a greeting at them. Their shout of “Go, Sam!” brought a prompt rebuke from Simon.

When Simon was satisfied that everything was ready, he called for order and instructed everyone to rise as Judge Nimitz entered from his chambers. Everyone, Judge Nimitz included, then remained standing while Simon brought the jurors from the jury room. Once everyone was seated, Judge Nimitz looked at Luke. “Mr. Vaughan, call your first witness.”

“Your Honor, plaintiff calls Dr. Vijay Challa.”

Dr. Challa stood when his name was called. His eyes darted nervously from the audience to the judge, then to the jury and Audrey Metcalf before returning to the judge. As instructed by Simon, he stopped in front of the bench and raised his right hand.

“Do you swear to tell the truth, the whole truth, and nothing but the truth, so help you God?” Judge Nimitz demanded.

“Yes, yes sir, I do,” the doctor replied in a voice that cracked with nervousness. Whatever Ceventa had paid him to be a clinical investigator, it was not enough to go through this.

Luke took a sip of water and began. “You’re Vijay Challa, a medical doctor?”

Dr. Challa sat awkwardly in the witness chair. He couldn’t figure out what to do with his hands. At first he let his arms drop to his sides; then he tried folding his arms in front of him. Finally he rested his hands on his knees. “Yes, sir.”

“You went to medical school in India and then had to pass a test to be allowed to practice in the United States?”

“Correct, Mr. Vaughan.”

“Tell the jury how long you’ve practiced in San Marcos and what kind of patients you see.”

Dr. Challa turned to look at the jury. “I’ve been here for ten years. I’m a family doctor. I take care of patients from the cradle to old age. A lot of my patients are college students since my office is close to the campus.”

“Were you one of the physician investigators in a clinical trial for a drug called Exxacia, manufactured by Ceventa Pharmaceutical?”

“I was.”

“How did that come about, Doctor?”

“I got an invitation from Ceventa to assist them in confirming the safety and efficacy of what they considered a revolutionary new antibiotic. The study had been ongoing for several months, and they said they needed a few more physicians and, I think, a few thousand more subjects.”

“Subjects, Dr. Challa!” Luke said, loudly enough that Simon started to rise to insist on order in the court. Judge Nimitz motioned him to sit down.

“Is that what Ceventa called your patients, subjects? Bunch of laboratory mice? Is that what they thought?”

Metcalf leaped to her feet. “Objection! That’s argumentative and completely out of line.”

“Sustained. Mr. Vaughan, please temper your questions.”

Luke nodded and asked, “Ceventa did refer to your patients as subjects?”

Dr. Challa looked at the judge, who nodded he could answer. “Yes, Mr. Vaughan. All of the paperwork used that term.”

“And one of those so-called subjects was my daughter, Samantha Vaughan, wasn’t she?”

“I’m afraid so,” the witness whispered. “I’m really sorry for what’s happened to her.”

“Approach the witness, Your Honor?”

“You may, Mr. Vaughan.”

Luke handed a document to the witness while Sue Ellen displayed the first page on the overhead.

“Plaintiff’s Exhibit One is a copy of the consent form used in the clinical trial, the one that was purportedly signed by Samantha Vaughan.”

Dr. Challa glanced at the document, looked up, and nodded. “It is.”

“Are you sure, Doctor? It’s six pages long, all in fine print, isn’t it?”

Dr. Challa stared at the form. “I, I presume it’s the one signed by Samantha. I haven’t looked at every page.”

“Let’s go page by page.” Luke slowly turned the pages as Sue Ellen did the same. “There’s a place to initial at the bottom of each page and a place to sign on the last page.”

The witness nodded his agreement.

“Did you tell Samantha she needed to read all those pages before she initialed and signed the form?”

“No sir, I didn’t. None of the subjects read the form. In fact, the regional supervisor from Ceventa said they were in a hurry to complete the clinical trial and for me just to get the form signed and give them the pills.”

“Objection!” Metcalf was on her feet again. “Hearsay.”

“Overruled, Ms. Metcalf.”

Luke looked at the jury and shook his head in disgust. “How long was Samantha in your office, Doctor?”

Challa thought a minute. “Honestly, I couldn’t say for sure about her. None of the subjects were there for longer than ten minutes.”

Luke whirled and returned to his seat. “According to the protocol you were supposed to see Samantha once a week for six weeks and again one last time at ten weeks for blood work, vital signs, and so forth. Did you comply with the protocol with her?”

The witness stared at the clock in the back of the courtroom, refusing to make eye contact with anyone as he answered. “Very few of the subjects made all of their visits. So I would just make up vital signs and change the date on the blood work that I did have. I did that with most of my subjects.”

Luke clenched his fists and tried to control his temper. “Well, let’s talk about your other subjects.”

“Objection, Your Honor,” Metcalf said. “May we approach the bench?”

The judge motioned them forward.

“Judge, Mr. Vaughan is violating the court’s direct ruling. He’s injecting the clinical trial into evidence.”

“Judge,” Luke replied, “I’m only going to go into what Dr. Challa did. He’s a defendant in this lawsuit.”

“I agree with Mr. Vaughan, Ms. Metcalf. He can discuss Dr. Challa’s conduct. Mr. Vaughan, please restrict your questions only to what Dr. Challa did. With that understanding, your objection is overruled.”

Metcalf returned to her table and whispered to Charlotte Bronson. “There’s one appeal point already. Start briefing it tonight.”

Luke waited for Metcalf to take her seat and then picked up a stack of papers from the table. “Dr. Challa, these are the charts on your other subjects, as you call them. I want to make this brief. Out of all the subjects in your part of the clinical trial, most had falsified vital signs?”

“Yes, sir.”

“Most had dates changed on lab work?”

“Yes, sir.”

“Most failed to keep all of their appointments?”

“Yes, sir, particularly that last one at ten weeks.”

“Once you had blood work from one patient that looked good, you used it on many other patients?”

Dr. Challa squirmed in his seat, stared out the window, and finally said, “I’m sorry to say I did.”

“And even before Samantha ever set foot in your office you had ten subjects who had elevated liver function tests, some of them at toxic levels?”

“Yes, sir. I’m afraid I did.”

“And did you report those findings to Ceventa?”

“Absolutely, sir. As we completed a patient, we sent the patient chart by e-mail to Ceventa’s managers, and when all of the patient charts were complete, we did it again. Ceventa certainly knew about the liver problems. I assumed they would report the adverse events to the FDA.”

Luke didn’t try to hide the anger in his voice. “Your Honor, we offer Dr. Challa’s patient charts—oh, I’m sorry, Dr. Challa,
subject
charts—as exhibits. Pass the witness, Your Honor.”