The Litigators (44 page)

David hung his head for a moment, then took a load of paperwork to his table and swapped it for another stack of papers. He had no idea how far he could go at this point, but he was not quitting until instructed to do so. He returned to the podium, arranged things, and said, “Now, Doctor, let’s talk about some of Varrick’s other drugs that did make it into the marketplace.”

Ms. Karros stood and said, “Same objection, Your Honor.”

“Same ruling, Ms. Karros.”

“In that case, Your Honor, could we please have a brief recess?”

It was almost 11:00 a.m., past Judge Seawright’s usual break time of 10:30. He looked at David and said, “How much longer, Mr. Zinc?”

David held up his legal pad and said, “Gosh, Judge, I don’t know. I have a long list of bad drugs.”

“Let’s meet in chambers and talk about it. Fifteen-minute recess.”

W
ith three blacks on the jury, David made the tactical decision to spend more time in Africa with Dr. Ulander. During the recess, Judge Seawright decided to allow David to explore the backgrounds of only three additional drugs. “I want the jury to get this case this afternoon,” he said. Ms. Karros was still objecting, hotly at times, and the judge was still overruling her objections.

The jurors were brought in and took their seats. Dr. Ulander returned to the witness stand. David addressed him, “Now, Dr. Ulander, do you remember a drug called Klervex?”

“I do.”

“Was it made and marketed by your company?”

“It was.”

“When was it approved by the FDA?”

“Let’s see. Early in 2005, I believe.”

“Is it now on the market?”

“It is not.”

“When was it taken off the market?”

“Two years later, 2007, in June, I believe.”

“Did your company voluntarily recall the drug, or was its removal mandated by the FDA?”

“FDA.”

“And at the time of its recall, your company was facing several thousand lawsuits because of Klervex, correct?”

“Correct.”

“In layman’s terms, what kind of drug was this?”

“It was for hypertension, for patients who suffered from elevated blood pressure.”

“Were there any unpleasant side effects?”

“According to the mass tort lawyers, there were.”

“Well, what about the FDA? It didn’t yank the drug because the mass tort lawyers were upset, did it?” David was holding another report, and he waved it slightly as he spoke.

“I guess not.”

“I didn’t ask you to guess, Doctor. You’ve seen this FDA report. Klervex caused severe, even blinding migraine headaches in thousands of patients, did it not?”

“According to the FDA, yes.”

“Do you dispute the FDA’s findings?”

“I do.”

“And you supervised the clinical trials of Klervex?”

“My staff and I supervise the testing of all pharmaceuticals made by our company. I thought we had already established that.”

“My deepest apologies. How many separate clinical trials were conducted during the testing of Klervex?”

“At least six.”

“And where did these take place?”

The beating would not end until the cross-examination was over, so Ulander plunged ahead. “Four in Africa, one in Romania, one in Paraguay.”

“In Africa, how many subjects were treated with Klervex?”

“There were roughly one thousand patients in each trial.”

“Do you remember what country or countries?”

“Not precisely. Cameroon, Kenya, and perhaps Nigeria. I can’t recall the fourth.”

“Were these four trials conducted simultaneously?”

“Generally speaking, yes. Over a twelve-month period in 2002 and 2003.”

“Isn’t it true, Doctor, that you, and I mean you personally, knew almost immediately that there were significant problems with the drug?”

“What do you mean by ‘almost immediately’?”

David walked to his pile, picked up a document, and addressed the court: “Your Honor, I would like to admit into evidence this internal memo sent to Dr. Mark Ulander from a certain Varrick technician by the name of Darlene Ainsworth, dated May 4, 2002.”

“Let me see it,” the judge said.

Nadine stood and said, “Your Honor, we object on the grounds of relevance and lack of a proper predicate being laid.”

Judge Seawright scanned the two-page memo. He looked at Dr. Ulander and said, “Did you receive this, Doctor?”

“I did.”

David jumped in to help. “Your Honor, this memo was leaked by a Varrick whistle-blower to the plaintiffs’ lawyers in the Klervex litigation two years ago. Its authenticity was established at that time. Dr. Ulander knows it well.”

“That’s enough, Mr. Zinc. It will be admitted.”

Mr. Zinc plowed on: “The memo is dated May 4, 2002, correct, Dr. Ulander?”

“Correct.”

“So, some two months after Varrick began its clinical trials in Africa, this memo comes across your desk. Look at the second page, last paragraph. Would you please read that to the jury, Dr. Ulander?”

The witness obviously didn’t want to read anything, but he adjusted his glasses and began: “Patients have been taking Klervex for six weeks, forty milligrams, twice daily. Seventy-two percent show decreased blood pressure, systolic and diastolic. Side effects are worrisome. Patients complain of dizziness, nausea, vomiting, and many, approximately 20 percent, suffer severe headaches so debilitating it is necessary to stop the drug. After comparing notes with other med techs here in Nairobi, I strongly suggest that all trials be suspended for Klervex.”

“Now, Dr. Ulander, were the trials suspended?”

“No, they were not.”

“Were there similar reports from the field?”

Ulander sighed and looked at the defense table, helpless.

“I have copies of the other reports, Dr. Ulander, if they might refresh your memory,” David offered helpfully.

“Yes, there were other reports,” Ulander said.

“And this technician, Darlene Ainsworth, is she still employed by Varrick?”

“I don’t think so.”

“Is that a yes or a no, Doctor?”

“No, she is not employed.”

“Isn’t it true, Dr. Ulander, that she was terminated one month after sending you this memo about the horrors of Klervex?”

“She wasn’t terminated by me.”

“But she was terminated by Varrick, wasn’t she?”

“Well, I’m not sure how she left the company. She may have resigned.”

David again walked to his table and picked up a thick document. He looked at Judge Seawright and said, “Judge, this is Dr. Ulander’s deposition from the Klervex litigation two years ago. May I use it to refresh his memory?”

“Just answer the question,” the judge snapped angrily at the witness. “Was this employee terminated by Varrick one month after she sent you that memo?”

Startled by the rebuke from His Honor, Dr. Ulander’s memory was instantly refreshed, and he said, “Yes, she was.”

“Thank you,” the judge said.

David looked at the jury as he spoke. “So, in spite of these warnings from the field, Varrick pushed on and gained FDA approval in 2005, right, Dr. Ulander?”

“The drug was approved in 2005.”

“And once it was approved, Varrick aggressively marketed the drug in this country, right, Dr. Ulander?”

“I have nothing to do with marketing.”

“But you are on the board, right?”

“Right.”

“Then all hell broke loose. Complaining of severe migraines and other side effects, at least eight thousand Varrick consumers filed lawsuits in 2005, right, Doctor?”

“I don’t have access to those numbers.”

“Well, let’s not nitpick here, Doctor. I’ll try to wrap this up a bit quicker. Has your company gone to trial anywhere in this country to defend its drug Klervex?”

“Once.”

“And Varrick has settled over twenty-five thousand lawsuits for the drug as of last week, right, Doctor?”

Nadine was back. “Objection, Your Honor. Settlements in other cases are not relevant to this one. I think Mr. Zinc has stepped over the line.”

“I’ll decide that, Ms. Karros. But your objection is sustained. Mr. Zinc, no talk of other settlements.”

“Thank you, Your Honor. Now, Dr. Ulander, do you recall a Varrick drug called Ruval?”

Ulander sighed again and began to study his feet. David walked to his table to reshuffle his files and fetch another stack of memos extracted from Varrick’s dirty laundry. In short order, he established that (1) Ruval was supposed to alleviate migraine headaches but it also dramatically increased blood pressure; (2) it had been tested on migraine sufferers in Africa and India; (3) Varrick knew of its side effects but tried to bury this information; (4) damaging internal company memos were discovered by trial lawyers in the ensuing litigation; (5) the FDA had eventually recalled the drug; (6) Varrick was still defending various class actions and not a single case had gone to trial.

At 1:00 p.m., David made the decision to quit. He had grilled Dr. Ulander unmercifully for almost three hours, with no counterpunch from Ms. Karros, and he had scored enough points. The jury, at first
amused by the dirt on Varrick, now seemed ready to eat lunch, deliberate, and go home.

“A quick lunch,” the judge said. “Back here at 2:00 p.m.”

D
avid found an empty corner of the café on the second floor of the building and was eating a sandwich and looking over his notes when he felt someone approach from behind. It was Taylor Barkley, a Rogan associate, one of the few David had met and occasionally nodded to across the courtroom. “Got a second?” he said as he slid into a chair.

“Sure.”

“Nice cross. Nadine makes few mistakes, but that was a big one.”

“Thanks,” David said, chewing.

Barkley’s eyes darted around as if they were swapping crucial secrets. “Have you come across a blogger who calls himself the Hung Juror?” David nodded, and Barkley continued: “Our tech guys are very good, and they’ve tracked him down. He’s in the courtroom, three rows behind you, navy sweater, white shirt, thirty years old, balding, glasses, pretty nerdy looking. Name’s Aaron Deentz, used to work for a mid-range firm downtown but got whacked in the recession. Now he blogs and tries to be important, can’t seem to find a job.”

“Why are you telling me this?”

“He has the right to blog; the courtroom is open to the public. Most of his stuff is harmless, but he took a shot at your wife. Me, I’d deck him. Just thought you’d want to know. See you around.” And with that, Barkley eased away and was gone.

A
t 2:00 p.m., Nadine Karros stood and announced, “Your Honor, the defense rests.” This had been discussed in chambers and was no surprise. Judge Seawright wasted no time and said, “Mr. Zinc, you may address the jury in closing statement.”

David had no desire to address the jury and ask for compassion for his client, Iris Klopeck, but it would be extremely awkward for
a lawyer who had tried a case from beginning to end to waive final argument. He stood at the podium and began by thanking the jurors for their service. Then he confessed that this was his first trial, and, frankly, he had not planned on doing anything but research. However, events had conspired to thrust him into this arena, and he felt bad for not doing a better job. He held up a document and explained that it was the pretrial order, sort of an outline for the trial that both sides agree on long before the jury is selected. Of interest, on page 35, was a list of the experts for the defense. Twenty-seven! All with the word “Doctor” attached somewhere to their names. Thankfully, the defense did not call all twenty-seven, but they certainly hired and paid them. Why would any defendant need so many well-paid experts? Perhaps the defendant had something to hide. And why would the defendant need so many lawyers, David asked, waving an arm at the Rogan Rothberg team? His client, Iris Klopeck, could not afford such talent. The field was not level. The game was rigged. Only the jury could equalize things.

He spoke less than ten minutes and happily left the podium. As he walked back to the table, he glanced at the spectators and made eye contact with Aaron Deentz, the Hung Juror. David stared at him for a few seconds, then Deentz looked away.

Nadine Karros argued for thirty minutes and managed to shift the attention back to Krayoxx and away from those other unpleasant tests Mr. Zinc had talked about. She vigorously defended Varrick and reminded the jurors of the many well-known and trusted drugs the company had given to the world. Including Krayoxx, a drug that had survived the week nicely since the plaintiff had failed miserably to prove there was anything wrong with it. Yes, she and Varrick may have twenty-seven noted experts in their lineup, but that was beside the point. Much more important was the expert proof offered by the plaintiff, who filed the lawsuit and had the burden of building a case and had thoroughly failed to do so.

David watched her performance with great admiration. She was smooth and skilled, and her trial experience was obvious from the way
she moved around, spoke, chose her words effortlessly, looked at the jurors, smiled at them, and trusted them. From their faces, there was little doubt they trusted her too.

David waived his rebuttal argument. Judge Seawright went straight to the reading of the jury instructions, the most tedious segment of any trial. At 3:30, the jury was led from the courtroom to begin its deliberations. David wanted to get away, so he carried a large box of his documents to his SUV in the garage. As he was riding the elevator back up to the twenty-third floor, his cell phone vibrated. The text message said: “The jury is ready.” He smiled and whispered, “That didn’t take long.”

When the courtroom was quiet, a bailiff brought in the jury. The foreman handed the written verdict to the clerk, who gave it to Judge Seawright, who said, “The verdict appears to be in order.” It was returned to the foreman, who stood and read, “We, the jury, find for the defendant, Varrick Laboratories.”

There was no reaction from anyone in the courtroom. Judge Seawright went through his post-verdict rituals and released the jurors. David had no desire to hang around and suffer through the happy horseshit of “Nice job,” “Tough set of facts,” “Better luck next time.” As soon as the judge tapped his gavel and adjourned court, David lifted his heavy briefcase and dashed from the room. He beat the crowd and was hustling down the hall when he caught a glimpse of a familiar blue sweater entering a restroom. David followed, and once inside he scanned the room and saw no one but Aaron Deentz. David washed his hands, waited, and when Deentz finished at the urinal, he turned and saw David. “You’re the Hung Juror, right?” David said, and Deentz froze, unmasked.