Doubt (Caroline Auden Book 1) (20 page)

“Sample size? I think I’ve got that right here,” Dale said, prompting his PowerPoint again.

Images of cells and highlighted passages from articles flashed by on the screen.

Finally, a slide appeared that read in large red letters:

H
ELLER
/W
ONG SHOWS DIRECT LINK
.

H
UMAN KIDNEY FAILURE CAUSED BY
S
UPER
S
OY
!

There was no other information about the Heller article on the slide.

Caroline knew Dale was in trouble. She had to do something. Even if it looked bad, she had to try to help him.

Pivoting around in her chair, she handed Dale her laptop, opened to the relevant page of the Heller article describing the study’s sample size. Now all he had to do was read it.

“Sample size. Sample size,” Dale muttered.

Caroline resisted the urge to shout at Dale. She’d given him the correct page. He just needed to read what was on the screen.

“Please bear with me another moment,” Dale said.

“Take your time, Counsel,” Judge Jacobsen said, his voice flat.

“You’ll have to excuse me, Your Honor. I just didn’t realize we’d be gettin’ into all these details today.” Dale chuckled to himself.

The judge eyed Dale unblinkingly, unaffected by the Texas lawyer’s avuncular charm.

As the silence stretched out, Caroline imagined Jasper at the back of the courtroom, scowling so deeply that the lines in his face looked like the Grand Canyon.

“I’m sorry, Judge, but I’m just not seeing it here,” Dale said.

Caroline heard a murmur of whispers as the Plaintiffs’ Steering Committee began to panic. They were going to lose. Not because they didn’t have the science to beat Med-Gen’s motion, but because Dale couldn’t answer the judge’s questions.

“I’ll tell you what,” Dale said finally. “What I’d like to do is start my presentation over. I think you’ll find that the sample size in the Heller study won’t matter when you see our whole presentation.”

Cringing in her chair, Caroline suddenly understood the problem: Dale’s superpower was telling a story. He knew how to charm a room, a luncheon table, or even the entire Steering Committee. But he had little patience for the intense schoolwork necessary to master complex science—complex science that this rare judge with a molecular cell biology degree wanted to discuss.

Desperate to express her distress, Caroline grabbed her legal pad.

“He’s messing up,” she wrote in a jagged scrawl.

She pushed the note in front of Louis, who tipped his white head down to read it.

The senior partner lifted his pen.

“Can you do better?” he wrote, tilting the legal pad toward Caroline.

“Yes,” she wrote back.

Louis’s response was only two words long: “Stand up.”

Caroline rose to her feet so she stood in front of Dale.

She met the judge’s eyes squarely. “I think what my colleague is trying to say is that the sample size was quite large. Dr. Heller conducted three separate longitudinal studies based on the records of over fifteen thousand SuperSoy patients across the country. His sample size is unimpeachable. As for the Ambrose study, while it was indeed an end-point assay instead of a kinetic assay, it still shows convincing evidence that SuperSoy thins cell walls because—”

“Excuse me, Counsel, but are you pro hac in this court?” Judge Jacobsen asked, his blue eyes narrowing.

“Yes, Your Honor,” Caroline said. “I applied to appear pro hac vice when I submitted the Heller article yesterday. In accepting the article for filing, the court granted my application.”

Judge Jacobsen turned to his clerk, who consulted her computer then whispered something to the judge. The judge nodded to his clerk then looked back at Caroline.

“You’re correct. Please continue, Counsel.”

Caroline stepped around the podium as Dale took her seat at counsel’s table.

“As I was saying, the results of the Ambrose study are remarkable because that study mimicked conditions in human kidneys much better than any of the other rat studies. In addition to the Ambrose line of studies, the Wilson study and its progeny establish that degradation of mitochondrial DNA can be a precursor to apoptosis—that’s spontaneous cell death. And as the Tercero study shows, that cell death is a harbinger of kidney death . . .”

Judge Jacobsen sat forward, his intelligent eyes taking in everything Caroline had to say, and when she stopped, he asked her a barrage of questions about each of the studies. Answering those questions, Caroline felt her words flowing out like a stream of clear water. The pieces of the argument fit together in her mind, one after the next, easy and logical. All of her restless energy laser focused down to a fine point. Article by article, point by point, she stated the plaintiffs’ arguments. The sensation was like flight. Like a land-bound animal that suddenly realized it had wings.

When Caroline had answered the last of the judge’s questions, she stepped back from the podium, yielding the floor to her opponent. She knew she’d done her best. Whatever happened, she’d explained the science as well as she was able.

Judge Jacobsen turned to the defense to invite refutations on behalf of Med-Gen, which Ian Kennedy provided in concise, well-spoken detail. As Kennedy spoke, his audiovisual vendor displayed demonstrative exhibits that underscored the key points in the scientific articles. Unlike Dale’s superficial PowerPoint presentation, Kennedy’s detailed slides acted as a wrecking ball, exploiting the weaknesses in the science supporting a link between SuperSoy and kidney damage.

Finally, Kennedy presented a giant table summarizing all of the science that had been presented in the course of the
Daubert
proceedings. In one column, the demonstrative exhibit listed the two dozen articles that plaintiffs’ counsel had submitted that failed to draw any direct link between SuperSoy and kidney injury.

“After all of these hours of argument. All of these reams of articles. And what do we have?” Kennedy asked, using a laser pointer to trace a circle around the body of science in the first column.

“Nothing,” Kennedy said. “We have absolutely nothing. Feinberg, Ambrose, Tercero, Wilson, et cetera, et cetera—not one of these studies ties SuperSoy to the degradation of kidney cells in humans. Not a single one.”

Kennedy paused to allow his words to sink in.

“So then, what about the late-produced Heller article?” Kennedy asked, nodding toward his audiovisual vendor. On his cue, the Heller article appeared on the screen in the other, otherwise empty, column. The name of the article floated by itself in a field of white. Stacked against the dozens of articles in the other column, it looked immaterial and small.

Kennedy held up his right hand.

“Never published,” he said, ticking off the article’s deficits with his long fingers. “Never peer reviewed. Never subject to the same scrutiny that the rest of the scientific evidence underlying this case has withstood. No scientist has ever reviewed it. No studies have ever supported its results.”

Kennedy paused again, giving everyone a chance to study the screen.

Watching Kennedy, Caroline had to concede that her adversary was more than worthy. He was good. Damn good. Everyone in the courtroom hung on his words. Even Caroline, who knew that the Heller article was a game changer, found herself carried along by the force of Kennedy’s dismissal of Heller’s careful, comprehensive masterpiece as a trivial piece of fluff.

“Your Honor,” Kennedy began again, his voice affable, his tone matter-of-fact, “the whole purpose of a
Daubert
hearing is for our courts to protect juries from hearing cases that are premised on no evidence at all. We don’t want to waste people’s time.
Daubert
motions are powerful tools to allow judges like yourself to decide once and for all whether a given plaintiff’s theory of liability withstands the test of plausibility.”

Caroline resisted the urge to nod at his irrefutable logic.

“The reason we are here today for this particular
Daubert
hearing is so this court can discharge that solemn duty of ensuring that we don’t waste the time, resources, or patience of thousands of juries across the country. And here’s the bottom line: no published science links SuperSoy to kidney injury.” Again Kennedy paused.

“SuperSoy is a highly beneficial product used by thousands, if not millions across the country,” he finished. “It provides benefits to consumers, improving their quality of life. I urge the court to grant our
Daubert
motion and end this meritless case now, before it can further tax the system.”

When Kennedy finished, the room quieted.

Everyone’s eyes turned to the judge.

Judge Jacobsen sat back in his chair. He rested his elbows on the armrests and tapped his fingertips together. His eyebrows knit together in thought.

Caroline held her breath until her pulse throbbed in her ears.

“First, let me thank you for an excellent presentation today,” the judge began. “It was quite informative. I admit, I came here inclined to rule against the plaintiffs. As defense counsel has correctly and eloquently explained, the science described in the plaintiffs’
Daubert
brief does not draw a direct link between SuperSoy and kidney damage.”

Caroline resisted the urge to blurt, “What about Heller?” In a series of methodical studies, the Heller article illustrated the connection between SuperSoy and kidney failure. Surely, the judge had seen that.

Judge Jacobsen held up a ream of stapled pages. “I had actually prepared a tentative decision barring all claims on the grounds that the science didn’t establish a link to kidney injury. While plaintiffs have showed that an inferential link may exist, I did not find that inferential link sufficiently compelling for the
SuperSoy
cases to go forward. I recognize that the Heller article is persuasive authority that there may, in fact, be such a direct link. The problem I’m having, however, is that the article was late produced and was not peer reviewed.”

The judge paused. He gently placed his tentative decision down beside his tablet.

Caroline’s stomach twisted. Her temples throbbed with tension. This was it.

“The arguments today have persuaded me that I should not be hasty in dismissing the Heller article. As plaintiffs’ counsel has correctly noted, that article is remarkable in several respects, including its sample size and consistency of results.” Judge Jacobsen paused again, and Caroline worried her heart might stop beating before he reached his ruling.

Finally, the judge exhaled like a man who had thought he’d reached the peak of a mountain only to find there were miles left to climb.

“Before I can determine whether and how to weigh Heller in my consideration, I need an understanding of why it wasn’t submitted for peer review or published. I also need to understand where Heller fits into the other published science. I’m deferring ruling on the
Daubert
motion. I’d like to talk directly to all of the scientists of the articles you’ve cited. Subpoena them. Get them out here. I’ll see you in one week. You’ll have my ruling at that time.”

With a sharp crack, Judge Jacobsen hit his gavel, and the hearing ended.

“That was amazing,” Anton Callisto crowed. His usually taciturn face creased into a grin of underused smile lines. Behind him, the rest of the plaintiffs’ attorneys agreed in a chorus of approving sounds. They clustered around Caroline, seeing her with new eyes. Or maybe seeing her at all for the first time.

“Thanks,” Caroline said. In the wake of the argument, her teeth chattered, an electric humming coursing through her nervous system. It felt good. So did the attention of the Steering Committee. She felt like a lightning rod instead of a lawn gnome.

Even Dale looked relieved.

“We lived to fight another day, y’all,” he said to everyone and no one. Another murmur of agreement coursed through the pack of plaintiffs’ attorneys.

From the corner of her eye, Caroline spotted Jasper. He stood at the back of the courtroom, by the door. When he saw her notice him, he held up one thumb. Despite the approving gesture, his face still held the same pinched and worried expression it always seemed to hold. She knew the reason. He knew as well as she did that they hadn’t won this thing yet.

“Can you come back here in a week to examine the scientists?” Paul Tiller asked, his cherubic face cracking into a likable smile.

Behind him, the rest of the Steering Committee nodded emphatically in agreement. All was forgiven of Dale, but they wouldn’t soon let him argue again.

“Sure,” Caroline said, despite the fact that she’d only conducted a cross-examination within the safe confines of law school. After seeing Dale flub the argument, she no longer believed she was unqualified to step in. At least she knew she’d study. She wasn’t so sure about the next guy anymore. Especially if that next guy was Dale.

Louis wove his way toward Caroline until he stood beside her.

“If you don’t mind,” he said to the assembled lawyers, “I’m going to take my star associate here out for lunch.”