The Ditto List (51 page)

Preston shrugged. “How should I know?”

Jerome stood up. “Objection. Calls for a legal conclusion.”

“You're a little late, Mr. Fitzgerald,” Judge McCall pointed out. “As I understand the law of evidence, the objection is supposed to precede the answer. Overruled.”

“Thank you, Your Honor,” D.T. said. “Come now, Dr. Preston. You understood that the six thousand was to represent a portion of the marital assets, didn't you?”

“I did. Yes.”

“And by this time there
were
some marital assets, were there not? You were in the second year of your practice, after all.”

“I suppose there were some.”

“And your income the first two years of practice was, what? Do you remember?”

“Not without my notes.”

“Please consult them.”

The briefcase came and went. “I earned thirty-one thousand the first year. And fifty-two the next.”

“Calendar year?”

“Yes.”

“Net of business expenses?”

“Yes.”

“And exactly which assets were divided to give Mrs. Preston that six thousand dollars? Do you have any idea?”

Preston smiled savagely. “I certainly do. I gave my lawyer a list of everything I owned. He divided it up. The house plus the six thousand was exactly half. Which was everything she was legally entitled to.”

“Do you have that list with you?”

“Yes. I just found it recently, in some papers I had in storage.”

Preston brought the briefcase back to his lap, fished around in it, brought out a sheet of paper, and proffered it. D.T. stepped forward and took it from him. One glance showed him the East Jersey Instruments stock was listed, along with various savings accounts and other minor assets. Alongside the items were value amounts, and half the total was six thousand and change. The interest in the house was in lieu of further alimony. A common practice in those days. D.T. swore under his breath, knew if he raised his eyes they would be slapped by Preston's grin.

He looked at the list again. There was no date, no signature, nothing. It could have been written yesterday, forged, manufactured solely for purposes of this hearing. But evidence of such chicanery would be scientific, not produceable at this stage of the litigation. Besides, D.T. sensed no forgery, sensed that the list was genuine, sensed that he was screwed.

He flipped the paper to the table and glanced over at his client. She seemed to sense it, too, the sinking of their most promising claim, their status now reduced to litigious nuisances—beggars, cheaters, frauds. D.T. sagged inwardly at what he'd done to her. He turned back to the witness.

“An interesting document, Mr. Preston. Totally self-serving, of course, and totally inadmissible, since it was not produced for my inspection in response to my request for all such documents in your possession or control.” D.T. turned toward the judge. “Your Honor, Mr. Preston seems to have a great many papers in that briefcase of his, and many of them seem to relate directly to the issues in this case, to contain material evidence of the facts at issue. He has referred to those papers repeatedly, and the one document he produced from it is something withheld from plaintiff though clearly called for in our discovery.”

McCall shook his head to clear it. “What's your point, Mr. Jones?”

“I request permission to examine the entire contents of the briefcase, Your Honor.”

Jerome Fitzgerald leaped and screamed. “I object, Your Honor. A totally inappropriate invasion of privacy. An outrageous request.”

“Nonsense,” D.T. said calmly. “That briefcase clearly has nothing to do with Mr. Preston's medical practice; it has to do with this lawsuit. I request leave to examine the papers he has collected and brought to court to aid him in his testimony, and to arrange for copying those that are relevant, which I suspect is all of them.”

“A fishing expedition, Your Honor. Totally beyond the proper scope of discovery.” Jerome's face was as white as his shirt.

D.T. laughed. “Mr. Fitzgerald apparently learned the law of evidence watching Perry Mason, Your Honor. There is nothing inappropriate in fishing inside a briefcase from which relevant documents have been extracted in order to determine whether other of its contents may lead to the discovery of admissible evidence. If nothing else about his testimony is true, it is certainly true that Mr. Preston has demonstrated that the contents of that briefcase are very likely to lead to just such materials.”

“Let me see it.” Judge McCall gestured toward the case. Preston frowned and gripped it tighter and silently demanded that his counsel intervene.

“Your Honor,” Jerome sputtered. “There is no foundation for—”

“An
in camera
inspection is called for,” McCall retorted. “Hand it here, Mr. Preston. I mean Doctor.”

Preston hesitated, the judge gestured, Preston did as he was told. His eyes burned holes, first in D.T. and then in Jerome. The only sound in the room was the ripple of paper beneath Judge McCall's bleary eyes.

It took him only seconds. He pushed the briefcase toward the edge of the bench. “Here you are, Mr. Jones. For what they're worth.” D.T. stepped forward and retrieved what he hoped would be a prize.

“
No
.”

Nathaniel Preston surged out of the witness chair and swiped his hand at the case in D.T.'s hands. “You can't do that.”

Jerome hurried to his client's side. “Yes, Your Honor. There is no basis for this. I insist on a stay so your decision can be appealed.”

“Restrain yourselves, gentlemen,” Judge McCall said. “As far as I can see, those papers all bear upon this case, at least conceivably. Discovery should have been completed by now, but maybe if we do it right here we can get this thing settled and off the calendar. I don't see anything of much importance, frankly, but you can look them over for a few minutes, Mr. Jones, and make whatever points you want to make. Then we can wrap it up before lunch. I'll take the matter under submission and Dr. Preston can go see some patients. I see nothing appealable about any of this, Mr. Fitzgerald.”

“But …”

D.T. returned to his table and extracted the contents of the case. In front of him, the argument between Jerome and the judge continued. He sighed. His victory was indubitably small, proof merely that because of the break-in at his office, Preston was concerned about the loss of important bits of evidence and that Jerome had failed to give his client a basic bit of advice—that anything on Doctor Preston's person not only wasn't secure, it was liable to be ordered produced for inspection in open court. D.T. thumbed through the pile of papers.

They were what he expected—tax returns, income statements, handwritten notes, legal documents, all supporting what he now was certain was the truth—that Nathaniel Preston had not defrauded his wife seventeen years previously by concealing a portion of his holdings. Enervated, D.T. pawed his way to the bottom of the pile, going through the motions in order to justify his request to see them, certain there was nothing helpful in the lot.

The very last item was a file folder with Esther Preston's name on it. He opened it. The file contained a medical record, evidently of Esther Preston's routine checkups, administered by her husband during their marriage, maintained by him or by his nurse with an objectivity that seemed similar to the treatment of other patients. Lacking any other task, D.T. looked more closely at the scrawled notations.

Esther Preston had evidently been to see her husband professionally on two occasions in 1964, once to get a Pap smear, the other for a throat culture. The next year, the year of the divorce, there had been three visits: the first in January, the second in March, the third in April. The diagnosis was apparently inconclusive, the symptoms vague: headache, fever, nausea, weakness, fatigue. On the final sheet in the file were some handwritten notes, dated April 12, all but one in a scrawling hand. D.T. read over the page three times, then leaned toward Esther Preston.

“Is Dr. Haskell's first name Wayne?” he whispered.

She nodded, frowning.

“Then he's the one who greased your bars, moved your ramp, all the rest of it.” And broke into Dr. Preston's office last night, he thought but didn't say.

“But—”

D.T. held up a hand to silence her, then stood up. “May Mr. Preston return to the stand, Your Honor?”

Judge McCall nodded. Nathaniel Preston left his lawyer's side and returned to the witness chair, looking warily at D.T. “You examined your wife from time to time in your capacity as a physician, did you not, Doctor?” D.T. asked.

Jerome objected, the judge overruled, D.T. repeated his question.

“Yes,” Dr. Preston said.

“This was during your first two years of practice?”

“Yes. Until we divorced.”

“So you had a professional as well as a personal relationship with her in those years?”

“I suppose so.”

“Exactly when did you file for divorce, by the way? What month?”

“April, I believe. Of sixty-five.”

“Yes. I see a copy of the petition right here. April 24. That's correct, is it not?”

“It sounds right.”

“So of course you never examined your wife after that date. In your capacity as a physician?”

“No.”

“Did she see any other doctors while you were married?”

“No. I don't believe so. Not to my knowledge.”

“Did she have any major illnesses in those years?”

“No. She was in good health while we were married, other than minor colds and things.” Preston looked at his wife for the first time. “Her severe problems only came later.”

D.T. picked up the medical file and took it to the doctor. “This is the file you kept on your wife, isn't it?”

Preston flipped through it. “Yes.”

“Is it complete?”

“I believe so.”

“Has it been in your possession since you performed the examinations?”

“Yes. I guess so.”

“Are the notations in the file your own?”

“Yes.”

“Turn to the back page, please, Doctor.”

“I have it.”

“Read it. The final paragraph only.”

“Objection, Your Honor,” Jerome insisted. “Irrelevant and immaterial. A ridiculous waste of time.”

“These are my final questions, Your Honor,” D.T. responded. “I'll be finished in two minutes. The relevance of the evidence will be obvious.”

“Very well,” McCall said. “Go ahead, Dr. Preston.”

Preston wiped his brow. “No. It's not … it's been changed. Something, I …
do
something, Fitzgerald, you stupid bastard. For God's sake
stop this!
”

“
Read it
” D.T. thundered.

“Objection, Your Honor,” Jerome called out once again, from somewhere behind D.T. “This is privileged information. And irrelevant. And—”

“The privilege is the patient's, not the doctor's, Your Honor,” D.T. said. “The patient is right here. She waives it, don't you, Mrs. Preston?”

D.T. turned around. Esther Preston smiled and nodded. “Read it, Doctor,” he repeated.

“No. I won't. You can't make me.”

“Read it, you son of a bitch.”

Preston shook his head. “Your Honor,” Jerome's voice squeaked. “I insist counsel be cited for contempt. He has no right to speak to the witness in that manner.”

“Yes, Mr. Jones,” but Judge McCall's lips were curled into what D.T. thought might be a smile. D.T. turned back to the witness and plunged ahead.

“What was it, Doctor, when the symptoms first came on? Headache, fever, fatigue, nerves? The old housewife's syndrome, is that what you thought? Neurotic complaining, an excuse to quit the job, to hire a maid, to eat out? A lot of women get that way, don't they, Doctor? Psychosomatic basket cases, felled by their humdrum lives. Incurable by medicine, sometimes curable by divorce. Is that what you thought it was at first? I see those women all the time, too, Doctor. They're obnoxious, many of them. Nuisances.”

“Yes, I—”

“But this was something different, wasn't it?” D.T. spoke while his teeth ground against each other.

“No. Esther was just—”

“Esther had MS, didn't she?
And you knew it on April 12
. You suspected that's what caused her health problems, and you referred her to your partner, Dr. Haskell, a neurologist. He confirmed your suspicions, and you divorced her a week after you learned for certain what she had. You bailed out of the marriage without telling her she had contracted MS because you knew it would cost you a bundle in the divorce settlement. You would have had to pay her medical expenses, and a huge alimony judgment because she soon would lose the ability to earn her own living. You didn't want that burden hanging over your head, so you just kept quiet and divorced her. Your partner, Haskell, insisted that you tell your wife, but you wouldn't so he pulled out of the medical partnership. And has felt guilty and frightened all these years because he didn't tell Mrs. Preston himself and he was afraid she'd find out what he'd done. Isn't that what happened, Dr. Preston?
Isn't that exactly it?
”

“No. Not at all. I had no idea.”

D.T. stepped forward and pulled the file out of the doctor's rigid fingers. “It's right here, Doctor. If you'd left it home I'd never have found it. Your Honor, I request leave to read from the medical record the witness has already identified.”

“I don't understand this, but go ahead.”

“It's right here in black and white. At the bottom of the sheet headed ‘Physician's Comments.' Quote, ‘Nat. Poss. MS. See me about this soonest. Wayne.'
Look
at it, Doctor. Isn't that what Dr. Haskell wrote?”

He shoved the record under Preston's nose. Preston didn't look. “No,” he said. “No, I swear.…” Preston grabbed for the paper and tugged it out of D.T.'s hands and ripped it down the middle.