The Trial (30 page)
Authors: Larry D. Thompson
The limo driver was snoozing in the car when his cell rang. “Yes, sir. I’ll be in front when you get there.”
He started the engine and drove around to the front of the building. Then he got out of the Lincoln, looked at his watch, and figured that he had time for a couple of puffs on a cigarette before Kingsbury arrived. He pulled a Winston from its package and found his Zippo lighter. While he was lighting the cigarette, he walked to the back of the car and inhaled deeply. As he did he glanced up at a cloudless night with nothing but stars and a sliver of the moon off on the horizon. Then he heard a sound. He turned to see a black man wearing a hooded sweatshirt step from the shadow of the building. He was carrying a squeegee in one hand and a bucket in the other.
The man walked up to the limo, dipped the squeegee in the bucket, and began to wash the windshield.
The driver crushed his cigarette under his shoe and yelled, “Hey, man, get away from there.”
“Service of the hotel, sir,” Whizmo replied as he cleaned the driver’s side of the windshield. “Of course, if you have any spare change, I’d accept a tip.”
The driver started toward Whizmo, who moved around the front of the car and continued what he was doing on the passenger side.
Not sure what to do, the driver said, “Well, make it quick. My client is on his way down here right now.”
“Figured as much,” Whiz said. “Saw you leave the parking lot and drive around here to the front.”
That caught the driver’s attention. “Hey, just who the hell are you, anyway? On second thought, get the hell away from my car.”
It was too late. The tall figure of Alfred Kingsbury pushed through the door and hurried to the limo. The driver opened the rear door, but Whizmo stepped between Kingsbury and the car.
“Alfred Kingsbury?” Whizmo asked.
“Yes, please get out of my way.”
“I’m Professor Wilson Moore. Just wanted to confirm you’re Dr. Kingsbury. This is for you.” Whizmo handed him a subpoena. “See you in court in a few hours. Have a nice night.”
Kingsbury stared at the paper in his hand and then looked up in time to see the hooded figure disappear around the corner of the building. For some reason he was singing.
Plenty of sunshine heading my way
Zip-a-dee-doo-dah, zip-a-dee-ay
At a quarter till nine Luke was standing at the top of the courthouse steps, talking to another lawyer, when Audrey Metcalf walked by.
“You son of a bitch,” she hissed at Luke as she hurried past them. The other lawyer asked what that was all about, and Luke just smiled.
Luke barely got through the courtroom door before Judge Nimitz stepped from his chambers. With no jurors due until one o’clock, he was dressed in a white shirt and tie and matching suspenders. “Have a seat, everyone. I’ll pull a chair up to one of the tables. Now, what’s this about?”
“It’s an outrage, Judge. That’s what it’s about,” Audrey Metcalf erupted. “Mr. Vaughan had someone assault Dr. Alfred Kingsbury, CEO of Ceventa, in front of the Holiday Inn in the middle of the night.”
The judge frowned at Luke. “Have criminal charges been filed, Ms. Metcalf?”
“Not yet, Your Honor. We wanted to bring this up with you first.”
“This sounds very serious. Mr. Vaughan, what do you have to say for yourself?”
Luke met the judge’s eyes with his own. “Judge, I’m afraid that Ms. Metcalf is, shall we say, overstating what occurred. I learned that Dr. Kingsbury snuck into town about eleven last night.”
“Judge, he didn’t sneak anywhere,” Metcalf interrupted.
Now the judge was getting upset with Metcalf. “Ms. Metcalf, please let Mr. Vaughan speak. I’ll tell you when it’s your turn again. Go on, Luke.”
“He arrived at about eleven last night in a chauffeured limo and was leaving at around two in the morning. When we heard he was in subpoena range, I asked Professor Moore to serve him with a subpoena. As you probably know, Whizmo has been helping us with some computer research.”
Luke told the entire story of the service, including Whizmo’s singing as he walked away.
“Was he really singing ‘Zip-a-dee-doo-dah’? I haven’t thought about that song in a hundred years.” Judge Nimitz tried to suppress a grin.
“Yes, sir, he was. And you know Whizmo. All he did was hand Kingsbury a subpoena. No way did he assault the guy.”
“Well, I’ll deal with Whizmo if Kingsbury files charges. That’s for another day. Now I understand why we’re here. Ms. Metcalf, I presume you’re trying to quash the subpoena he served on your Dr. Kingsbury last night.”
Metcalf stood and walked around her chair and put her hands on the chair back. “Yes, sir. And I apologize for my outburst earlier. You’ve already quashed one attempt to have him testify. We argued the law on an apex subpoena, and you sustained our motion at that time. This is the same thing.”
Luke started to say something, but Judge Nimitz raised his hand to stop Luke.
“Not quite the same thing, Ms. Metcalf. He voluntarily came to San Marcos. Mr. Vaughan is well within his rights to subpoena anyone who comes within a hundred and fifty miles of this courthouse. I haven’t measured it, but I believe the Holiday Inn is only about three miles from here.”
“But, Your Honor, Dr. Kingsbury has a very important board meeting on the East Coast this afternoon.”
“Sorry, Ms. Metcalf. He should have thought about that before he set foot in Hays County.”
Metcalf tried one last time. “Judge, if you’re going to make him testify, I could call him myself, but I’ll lose credibility with our jury. I told them I’d be resting after we’re through with Dr. Salazar.”
“Ms. Metcalf,” the judge continued, “again, I didn’t create your problem. You figure out what you’re going to do, but I expect you to have Dr. Kingsbury out in the hall at one o’clock when we start up. Now, let’s talk about whether you’ve opened the door to that clinical trial data when you were questioning Dr. Salazar yesterday.”
“Judge,” Luke said, “there’s been another development. We were advised that there’s yet another version of the study that was never produced to us, along with some memos from Dr. Ryan Sinclair, an FDA infectious disease expert who oversaw the clinical trial for Exxacia. He was killed under very mysterious circumstances.”
Luke had the judge’s attention.
“I have many of the clinical trial documents that were e-mailed to me yesterday. Whizmo picked up a package containing the remainder of the study at the FedEx office about an hour ago. I think that I can establish the predicate to admit the entire study on the fly like we used to do in the old days. Ms. Metcalf can make her objections, and we’ll deal with them one at a time.”
Metcalf tried to control the anger that was boiling inside her. “No, Judge, that won’t work. He’s springing some documents on us that we’ve never seen.”
Judge Nimitz rose to his feet and placed his hands on the table and glared at Metcalf. “If what Mr. Vaughan says is true, your client has had this version all along! Now it may be that your client has been holding back relevant evidence that I ordered produced. If so, that may be another reason for sanctions. We’re going to do it Mr. Vaughan’s way. I’ll see you all at one o’clock.”
The judge pushed his chair back so hard that it tipped over and clattered to the floor. Then he stormed to the door of his chambers and slammed it so that it rattled the windows in the old courtroom.
Whizmo was tired after his nighttime escapade, but what else was new? Like most trial teams, by this time they were all living on nervous energy spiked with large doses of very strong coffee. Whiz smiled as Luke walked into the conference room.
“Got it. I showed up at seven this morning, an hour before they opened. One of my former students works there, and he let me in. Gave me another hour to work through this stuff.”
“Whiz,” Luke asked, “is there any place in town where you don’t have a student or former student somewhere on the premises?”
Whizmo smiled again. “Now, have a seat beside me. That program I designed has helped me pull up the documents you want. I’ve moved them to a separate file.”
“There’s one thing I want to see first, Whiz,” Luke said. “To get past a hearsay objection, show me something that authenticates this as an official government document.”
Whizmo clicked to an index he had created, then punched in two numbers, and there it was, an official-looking document with the seal of the FDA and an affidavit signed by Roger Boatwright, PhD, director of the Center for Drug Evaluation and Research, certifying the Exxacia clinical trial as complete and accurate.
“That’ll do it,” Luke said. “Now show me what else you’ve pulled.”
Whizmo spent the next two hours displaying documents as Luke noted the contents and index numbers on a yellow pad.
Finally Luke said, “I know you’ve got more, but that’s enough to destroy Kingsbury, and Exxacia along with him.”
“What’s your move now, Luke? Don’t you still have Dr. Salazar on the stand?”
Luke gazed out the window while he thought. “I think we have no more questions for him right now. I suspect that Metcalf will rest, and then we can call Dr. Kingsbury.”
“What happens if she calls Kingsbury first?”
“I don’t think she will. She knows she loses credibility with the jury if she calls her CEO now. He’s always been available, just a private jet away. The jury would figure that she thought her case was crumbling and she needed him to fly in like Mighty Mouse to save the day. We’ll take our chances. Now, let’s roll.”
When the jury and Dr. Salazar had settled into their seats and Judge Nimitz nodded at Luke, he stood and said, “Pass the witness, Your Honor.”
Metcalf was caught off guard. She turned to look at Luke and conferred with Forsythe. “No more questions, Your Honor. May this witness be excused?”
Judge Nimitz looked at Luke for his agreement.
“Judge, we may find it necessary to call Dr. Salazar as a rebuttal witness,” Luke said. “So we request that he remain in the hall until further notice.”
Dr. Salazar turned to the judge. “Your Honor, I do have patients in San Antonio who need my attention. This is a serious imposition on my time.”
Judge Nimitz nodded his understanding. “I fully appreciate what you’re saying, Doctor. However, this is a very serious case. I suspect you have some other good doctors on your staff who can see your patients for the afternoon. If you like, you can wait in my office. I’ve got some fine history books about World War II and an excellent anthology of Longhorn football. You’re excused, sir. Ms. Metcalf?”
Audrey Metcalf surprised Luke. “Your Honor, Ceventa calls Dr. Alfred Kingsbury.”
Surprised, Luke turned to watch Kingsbury stride into the courtroom. There was one good men’s store in town, and it appeared that Ceventa must have commandeered it for the morning. While his suit wasn’t from Fifth Avenue, it was the best one could find in the small town. Dark blue with a thin pinstripe, it appeared to have been tailored for his lanky frame. The coat hung perfectly; the sleeves stopped just above the wrist, and the pants barely touched gleaming new black shoes. Quite a change from the man Whizmo briefly encountered early in the morning.
Kingsbury acted as if he were stepping into his own boardroom where he expected to be in complete command. He nodded at Luke as if to say,
I’ve gone up against the best lawyers in the world in courtrooms and Congress; you won’t lay a glove on me.
Next he smiled at the jury and walked to the front of the bench.
As he raised his right hand, he said, “Good morning, Judge Nimitz. I’m pleased to be in your court.”
When Judge Nimitz gave him the oath, he turned to the jury and responded, “So help me God.”
Quite a performance,
Luke thought.
Let’s see how he does when an old country lawyer cross-examines him.
Audrey Metcalf had also undergone a transformation with her client on the stand. Gone was the strident, demanding personality. In its place was a warm, soft-spoken one that she hoped would help to sell Kingsbury as a gentleman and a caring professional.
“Please introduce yourself to the jury, Dr. Kingsbury.”
Kingsbury turned slightly to look at the jurors. “I’m Alfred Kingsbury. I’m originally from England, but I came to the United States thirty years ago. As they say, I got here as soon as I could. Ten years after my arrival, one of my proudest moments occurred when I became a United States citizen.”
Several of the jurors were themselves only second- or third-generation Americans, and they nodded in agreement with Kingsbury’s comment.
“Dr. Kingsbury, tell the jury about your education and what you’ve done with your life.”
“I was born in the Cotswolds region of England. My parents were both schoolteachers, and I grew up in a small town. I played goalkeeper on our football team … well, we call it football there. I now know it as soccer. I really wanted to play forward and score goals, but I was always the tallest player on the team, and my coaches always said they needed me as goal. I was fortunate to get a partial scholarship to Oxford. From there I got a PhD in pharmacology, followed by medical school. After medical school, I was torn between returning to my hometown to be a family doctor and going into research. I finally chose Ceventa, where I just had my thirty-second anniversary as an employee.”
“Was there one particular thing that turned you toward Ceventa, Dr. Kingsbury?” Audrey asked, knowing, of course, the answer they had rehearsed as Kingsbury was being fitted for his clothes.
Kingsbury hesitated as if he hated to bring up the memory. “Yes, yes there was. My best friend when I was a lad and just starting to play soccer, a teammate, was struck down with polio and to this day has to walk with crutches and braces on his legs. That devastated our team, and me in particular. It wasn’t long after that Dr. Jonas Salk developed the polio vaccine. I always regretted that he hadn’t gotten it done a few years earlier. Anyway, when I was making my decision, I kept thinking back to my friend and finally decided that I could do more good in the world with Ceventa than in my hometown.”
Metcalf let silence fill the courtroom to allow the story to sink in. Luke stared at Kingsbury, recognizing that he might have a slightly more difficult job than he anticipated.
Continuing in a quiet voice, Metcalf asked, “How long were you a research scientist?”
Kingsbury stared at the ceiling as he thought. “Nearly ten years, and then I was asked to go into management.”
“That was probably an easy decision, wasn’t it?”
Kingsbury folded his hands on the bench in front of him. “Actually, it was another difficult one. I enjoyed research and was part of a team that produced a couple of drugs that helped in the continuing battle against influenza. Again, I had to weigh where I could do the most good and decided that if I could help Ceventa grow, we could spend more on research. And that’s what we’ve done over the past twenty or so years. Our research budget goes up every year.”
“Now, you’re CEO of the company?”
“No, no. My boss would be upset if he heard me say that. I’m CEO of the North American subsidiary. The CEO is in our home office in Copenhagen. Still, I might add that my subsidiary is sixty-five percent of the company.”
Metcalf wanted to show the jury something besides the professional side of her suddenly key witness. “Are you married, Dr. Kingsbury?”
“Happily so.” Kingsbury smiled at the jury. “I have one daughter and three delightful grandchildren. They’re really quite charming. I could show the jury photos of my grandchildren if you like.”
“That won’t be necessary, Dr. Kingsbury. I’m sure the jury will take your word for it.”
Figuring she had put the right spin on Ceventa and Kingsbury, she asked, “Your company developed a drug now called Exxacia?”
“We certainly did,” Kingsbury said. “It took us ten years and nearly a billion dollars, but we produced a new kind of antibiotic that is revolutionizing how we treat respiratory illnesses.”
Luke decided he needed to break the flow of the examination. He stood and said, “Objection, Your Honor, nonresponsive. Request that the witness be instructed to answer the questions and not make speeches.”
“Sustained, Mr. Vaughan. Dr. Kingsbury, please merely answer the question. Your lawyer is quite capable of getting the information from you that she wants to present to the jury. Proceed, Ms. Metcalf.”
“Dr. Kingsbury, did you immediately introduce Exxacia into the United States?”
The witness shook his head. “No, ma’am. We started in South America, and after two years we introduced it to countries in Europe. So there will be no misunderstanding, we weren’t using those countries and their citizens as guinea pigs. Their equivalent of the FDA had restrictions on new drugs at least as tough as this country.”
“Tell the jury what results you had with Exxacia overseas.”
Before Kingsbury could answer, Luke rose from his chair and wandered over to the window, where he stood, back to the courtroom, and gazed out on the town square. Another ploy to distract the jury. It worked. As Kingsbury was answering the question, every juror was watching Luke and wondering what he was doing. Luke also hoped to convey the message that what Kingsbury was saying now was really not important.
At last Metcalf rose. “Your Honor, would you kindly instruct Mr. Vaughan to take his seat at counsel table?”
Luke turned with a questioning look. “Sorry, Your Honor. I had a cramp in my leg and was just stretching.”
“Dr. Kingsbury, when you introduce a drug into the United States, I’m sure that it has to have FDA approval. What’s your relationship with the Food and Drug Administration?”
“Very cordial, of course. After all, they make the final decision. Also quite professional, but they keep us at a distance. They have excellent scientists who study any new drug most carefully. They are charged with protecting the health of our citizens and making sure that drugs are both safe and effective. I believe it says something like that in their mission statement.”
Metcalf had conceded to herself that she had accidentally opened the door to the clinical trial with Salazar and decided she had no choice but to go into it. “Did they do that with Exxacia?”
“Certainly they did. We submitted data that would fill half this courtroom. Of course, it was on computer discs. Along with our research we had after-market data from half a dozen countries, but they still weren’t satisfied. Their Infectious Disease Advisory Committee wanted more. So we commissioned one of the largest clinical trials ever for a new drug, twenty-five thousand patients. The success rate was remarkable. We submitted the results of the study to the FDA, and within a matter of weeks the advisory committee approved it. The rest is history.”
“Can you elaborate, Dr. Kingsbury?”
Kingsbury took off his glasses and turned to the jury. “Exxacia has been on the market in the United States for less than a year, and by our estimates, just in this last flu season we probably saved at least a hundred thousand lives.”
Luke watched the jury and concluded from their expressions and body language that they were impressed with Kingsbury and what he had to say.
He’s quite a salesman,
Luke thought.
Metcalf could have done more, but she had also sized up the jury’s reaction and elected to ask Kingsbury no more questions. Their case was strong. “Pass the witness, Your Honor.”
“Thank you, Ms. Metcalf. We have to quit a little early today. I have a meeting with the other judges. We’ve made good progress.” He turned to the jury. “I think I can assure you that we’ll give the case to you by tomorrow afternoon.”