Authors: William Bernhardt
“But it’s a lot of other people’s opinion. Right?”
“I … suppose.”
“Your opinions haven’t exactly been embraced by the medical community, have they?”
Daimler’s face flushed. Colby had hit a delicate spot. “As I already indicated, some agree, some disagree. That’s in the nature of developing research.”
“Didn’t the
Journal of Cancer Epidemiology
say”—Colby glanced down at his pad—”and I quote, "Daimler has taken inevitable statistical anomalies and converted them into proof of a contagion no one can detect."“
Daimler’s lips pursed. “That was the opinion expressed by the author of that particular article, yes. One man.”
“But he’s hardly alone in that opinion, is he?” Colby glanced at a stack of medical journals perched on his desk, as if ready and willing to pull out one embarrassing example after another, if necessary.
“No,” Daimler said, acquiescing. “He is not.”
“Tell us the truth, Doctor. It could all be just a horrible coincidence, couldn’t it?”
“In my opinion—”
“That’s not what I asked for,” Colby said, cutting him off. “You heard the question. You’ve been looking for years without success for a causal agent for these clusters. You haven’t found one. So long as that’s true—isn’t it possible that these outbreaks are simply coincidental?”
“I don’t think—”
“Answer the question, Doctor! Isn’t it possible?”
Daimler drew in his breath. “I suppose, until a causal agent is verified, that is possible. But—”
“Thank you, Doctor. That’s what I wanted to know. That’s what we all … wanted to know.” Colby started back to his table, then stopped. “Oh, yes. One more thing.”
Ben sat upright. When Colby went into his Columbo act, it was time to beware.
“You don’t have a very high opinion of the plaintiffs" leukemia expert, do you?”
Damn. Ben clenched his fists under the table. How did Colby find out?
“I’m talking about Dr. Abbott Rimland,” Colby continued. “You don’t think much of his work, do you?”
Daimler glanced at Ben. “I respect Dr. Rimland as I would any other colleague.”
“You wrote in the
Stanford Journal of Medicine
that—”
“I have disagreed with his conclusions on occasion.”
“You called him a quack!”
Daimler’s ire was no longer masked. “I did nothing of the sort.”
“You said the controls in his studies were flawed. You said he rushed to judgment.”
“That’s quite another thing. Peer review is an important part of the research process.”
“And speaking as his peer,” Colby said, drowning him out, “you totally disagree with everything he’s about to tell the jury.”
“I can’t predict what he might say. I have disagreed with him on occasion.”
“Well then,” Colby said, spreading his arms, “if such a distinguished personage as Dr. Daimler can disagree”—he turned toward the jury—”I’m sure we can all feel free to do the same.”
Ben was furious with himself. He knew about Daimler’s article in the
Stanford
journal. But he wanted Daimler on the stand, and he had no choice but to use Rimland. He had gambled that Colby wouldn’t find that short article in an obscure academic journal.
He had gambled, and lost.
Nonetheless, despite having the worst possible introduction, he had to call Rimland to the stand next. His case depended on it.
Rimland looked well-groomed and tanned, no doubt from several days out on the golf course, or the driving range at the very least. He’d let his beard grow since Ben saw him last. Normally, Ben preferred that his witnesses not have facial hair; Oklahoma juries sometimes distrusted facial hair. But he made an exception for expert witnesses; the more professorial, the better.
After Rimland was sworn in, Ben took painstaking care to walk Rimland through a litany of all his achievements, awards, accolades, degrees, memberships and other such resume lines. The man was a pioneer in his field; he wanted the jury to know he wasn’t just some crank he’d paid to testify—since that was undoubtedly how Colby would attempt to portray him.
After the expert credentials were established, Ben drew him to the subject of cancer agents. “How did you become involved in this line of research?”
“I first started while I was still a teaching assistant at Stanford. In part, I was inspired by your previous witness, Dr. Daimler. I read one of his early articles hypothesizing the existence of cancer clusters. It seemed to me that if such clusters occur, something must be causing them. Something external.”
“Was that the common view of cancer at the time?”
“No.” Rimland turned his head toward the jury, making occasional eye contact, but not overdoing it. “Typically, scientists have assumed that cancer, and in particular leukemia, is genetic—that is, it just happens. But throughout the twentieth century, it has become abundantly clear that some cancers are caused by external factors. No one doubts anymore that smoking causes lung cancer—well, except maybe the executives in certain tobacco companies. Many other substances are now generally considered carcinogens. Artificial sweeteners, for example. If so, I reasoned, why couldn’t something be causing these outbreaks of childhood leukemia?”
“So what did you do?”
“Well, I had a theory. Now I needed a way to prove it. At the end of the year, I applied for a small research grant. I figured the best place to search for a causal agent was at the site of one of those clusters, so I traveled to the New Jersey neighborhood Dr. Daimler mentioned—the one where six children died in a square mile radius in one year. The families were most cooperative. After interviewing them, I began to suspect that there must be something common to the neighborhood causing the problem. But even after extensive investigation, I could find only two things all of the families in question shared—their air supply, and their water supply.”
Rimland then described his extensive testing procedure. He tried to isolate hundreds of possible factors. He used blinds and double-blinds. He used children who had been diagnosed with cancer and children who were perfectly healthy. He spent more than two years at it, applying for additional grants whenever the money ran out.
“But I still didn’t find what I was looking for,” Rimland said. “Until a friend told me that the EPA was in the neighborhood testing the water supply. They didn’t know about the leukemia cases; they were just responding to complaints about the taste and texture of the water. But I talked with them and managed to secure a copy of their preliminary results. Needless to say, the results just about blew the top of my head off.”
“What were those results?” Ben asked. Like any good trial lawyer, he checked the jury out the corner of his eye. They seemed to be interested, following what was said.
“Objection,” Colby said, rising to his feet. “Dr. Rimland did not conduct the study in question. If we are to hear about this EPA study, we should hear about it from the people who did it.”
Which began a twenty-minute argument at the bench, while the jurors sat quietly in their chairs, bored and annoyed. Ultimately, Ben won, but he suspected that Colby had never expected to win. His goal, once again, was to interrupt the flow of testimony, break it up, make the jury forget what they were hearing, undermine its dramatic impact. By the time Ben was able to resume questioning, he wasn’t sure anyone still remembered the topic.
“The results of the study,” Rimland answered at last, “were that the water had abnormally high concentrations of chemical contaminants, particularly TCE and perc.”
“TCE and perc,” Ben repeated quietly. “The same contaminants found in the Blackwood well. What a coincidence.”
“Objection,” Colby barked. “Move to strike.”
“So stricken,” Perry replied instantly. “Counsel, watch yourself.”
“Yes, your honor,” Ben said. “Sorry.” His face was something less than the picture of contrition. “Dr. Rimland, what did you do next?”
“Well, nothing immediately. My money had run out, and it took me two years to get financing to continue my studies. I can’t tell you how frustrating that was. Here I was, on the verge of something that could conceivably save thousands of young lives, and I couldn’t go forward because I didn’t have the money.”
“But you did eventually obtain financing?”
“Yes, and I began a series of tests with both TCE and perc, using laboratory animals. Principally rats.” Again, Rimland described his methodology in painstaking detail. He outlined how he established sufficient controls to isolate a result, how he compared rats with the same genetic backgrounds, how he gave half of them tainted water and half not, how he measured the responses. “I followed the procedures I established for over three years. My results were published in the
New England Journal of Medicine.”
“I have the article here,” Ben said, holding it high. “Could you perhaps summarize the results for the jury?”
“Sure.” He scooted forward a bit, inching closer to the jury. “My conclusion was this: The tainted water caused cancer. Leukemia, to be specific. Not every time, but often. The rats that drank the infected water developed cancer almost forty times more frequently than those who did not. In effect, I created my own cancer cluster. And the only distinguishing factor between the two groups of animals was the tainted water.”
Ben paused to let the jury soak in what he had said. “Dr. Rimland, based upon your experiences, do you have an opinion as to the possible effect of TCE and perc in a water supply?”
“Yes, I do. In my opinion, these chemicals in water, which is then brought into contact with young people, either by drinking or by immersion, say in the shower or bath, can cause leukemia. When young people are exposed to these chemicals, their chances of developing cancer increase dramatically.”
Ben cast a sober glance at the jury, making sure they understood the importance of those words. “Thank you, Doctor. I have no more questions.”
Ben tried to remain acutely attentive during Colby’s cross—even more so than usual. He remembered how much Rimland dreaded being crossed; it was the principal reason he had not wanted to testify in the first place. Ben had promised he would do his best to protect him; he meant to live up to that promise.
“For starters,
Doctor,”
—Colby overemphasized the word as if it was some kind of joke—”tell the jury how much you’re being paid to testify today.” Rimland stroked his beard. “Well, I’m not exactly being paid to testify—” Colby pounced. “Oh, you’re just up here out of the goodness of your heart?”
Ben jumped up. “Objection, your honor. Mr. Colby’s sarcasm is unnecessary.”
Judge Perry shrugged. “This is cross-examination, counsel.”
“I personally have not accepted any money in connection with this case,”
Rimland explained. “A fee has been paid to an organization I direct for the purpose of financing my continued research.”
“Oh, well then.” Colby winked toward the jury box. “That’s completely different, isn’t it?”
“Well, yes, actually. It is.”
“Either way, the money goes into your pocket.”
“No, it funds my research.”
“Including your salary?”
Rimland slowed. “I can assure you my salary is about the least significant item in the research budget.”
“But you do take a salary?”
“I have to eat, just like everyone else.”
“And that salary comes out of the research funds?”
“I charge an hourly rate. Just as I imagine you do.”
“So in fact, you are being paid to testify today.”
Rimland exhaled heavily, resigned. “I guess you could say that.”
“Thank you, Doctor. I knew we’d get to the truth eventually.” Colby dramatically flipped a page in his notebook. “So how much did the defense pay you and your corporation?”
“Fifty thousand dollars.”
The jurors registered shock. Colby did a nice job of appearing shocked also, although he already knew from the depositions exactly what amount had been paid. “Fifty thousand dollars?” Colby leaned toward the jury. “I’m going to have to have a talk with Mr. Kincaid about the way he spends money. I know some bums down at the bus station who’ll tell him anything he wants to hear for five bucks.”
“Your honor!” Ben rose to his feet amid tittering from the jury box.
Judge Perry nodded. “The jury will disregard the last remark.”
But no admonishment. It seemed those were just for the plaintiffs.
Colby continued. “By the way,
Doctor
—you aren’t actually a medical doctor, are you?”
Ben rolled his eyes. Now Colby would play on the common person’s feeling that the only “real” doctors were physicians—since those were the only doctors most people saw.
“No. Nor did I ever claim to be.”
“You’re … some kind of Ph.D.?”
“I got my degree in hematology, yes.”
“You’re not even qualified to diagnose a case of leukemia, are you?”
Rimland glared at Ben. This was exactly the sort of thing he had wanted to avoid. “I’m not a medical doctor, as I said.”
“You can’t see patients.”
“No.”
“Your work is more … theoretical, right?” Again Colby’s face took on a sarcastic cast.
“I don’t know what that means. I’m a scientist.”
“But you can’t actually treat diseases. You’re not that kind of doctor. It means—”
“It means I spend my day slaving over test tubes and rats, trying to find cures, instead of hanging out at the country club or putting a swimming pool in my backyard. A medical doctor is not going to find a cure for leukemia.”
“But you can?”
“I’m trying, yes.”
“Are you trying to find a cure, or trying to find someone to blame?”
“First things come first. I have to discover the causal agent before I can formulate a means to prevent it.”
“And you haven’t been able to do that, have you?”
“I think I—”
“Dr. Rimland, can you look this jury in the eye and tell them you have absolute proof that those two chemicals cause cancer?”
“I’ve already told them my conclusions. I told them how I reached them—”
“Ah, now you’re being defensive, Doctor.” Was he? Ben wondered. He didn’t detect it. But he supposed that was beside the point. By saying it, Colby suggested to the jury that Rimland was being defensive—and had something to be defensive about. “You have no absolute proof.”