“Can you explain the disease to the jury, Dr. Kord?” I ask.
“Of course. Acute myelocytic leukemia, or AML, is a disease that strikes two age groups, the first being young adults ranging in age from twenty to thirty, and the second being older people, usually above the age of seventy. Whites get AML more than nonwhites, and for some unknown reason, people of Jewish ancestry get the disease more than others. Men get it more than women. For the most part, the cause of the disease is unknown.
“The body manufactures its blood in the bone marrow, and this is where AML strikes. The white blood cells, which are the ones in charge of fighting infection, become malignant in acute leukemia and the white cell count often rises to one hundred times normal. When this happens, the red blood cells are suppressed, leaving the patient pale, weak and anemic. As the white cells grow uncontrollably, they also choke off the normal production of
platelets, the third type of cell found in bone marrow. This leads to easy bruising, bleeding and headaches. When Donny Ray first came to my office, he complained of dizziness, shortness of breath, fatigue, fever and flu-like symptoms.”
When Kord and I were practicing last week, I asked him to refer to him as Donny Ray, not as Mr. Black or patient this or that.
“And what did you do?” I ask. This is easy, I tell myself.
“I ran a routine diagnostic procedure known as a bone marrow aspiration.”
“Can you explain this to the jury?”
“Sure. With Donny Ray, the test was done in his hip bone. I placed him on his stomach, deadened a small area of skin, made a tiny opening, then inserted a large needle. The needle actually has two parts, the outer part is a hollow tube, and inside it is a solid tube. After the needle was inserted into the bone marrow, the solid tube was removed and an empty suction tube was attached to the opening of the needle. This acts sort of like a syringe, and I extracted a small amount of liquid bone marrow. After the bone marrow was aspirated, or removed, we ran the usual tests by measuring the white and red blood cells. There was no doubt he had acute leukemia.”
“What does this test cost?” I ask.
“Around a thousand dollars.”
“And how did Donny Ray pay for it?”
“When he first came to the office, he filled out the normal forms and said he was covered under a medical policy issued by Great Benefit Life Insurance Company. My staff checked with Great Benefit, and verified that such a policy did in fact exist. I proceeded with the treatment.”
I hand him copies of the documents relevant to this, and he identifies them.
“Did you get paid by Great Benefit?”
“No. We were notified by the company that the claim was being denied for several reasons. Six months later the bill was written off. Mrs. Black has been paying fifty dollars a month.”
“How did you treat Donny Ray?”
“By what we call induction therapy. He entered the hospital and I placed a catheter into a large vein under his collarbone. The first induction of chemotherapy was with a drug called ara-C, which goes into the body for twenty-four hours a day, seven straight days. A second drug called idarubicin was also given during the first three days. It’s called ‘red death’ because of its red color and its extreme effect of wiping out the cells in the bone marrow. He was given Allopurinol, an anti-gout agent, because gout is common when large numbers of blood cells are killed. He received intensive intravenous fluids to flush the by-products out of his kidneys. He was given antibiotics and anti-fungus treatments because he was susceptible to infection. He was given a drug called amphotericin B, which is a treatment for funguses. This is a very toxic drug, and it ran his temperature to 104. It also caused uncontrolled shaking, and that’s why amphotericin B is known as ‘shake and bake.’ In spite of this, he handled it well, with a very positive attitude for a very sick young man.
“The theory behind intensive induction therapy is to kill every cell in the bone marrow and hopefully create an environment where normal cells can grow back faster than leukemic cells.”
“Does this happen?”
“For a short period of time. But we treat every patient with the knowledge that the leukemia will reappear, unless of course the patient undergoes bone marrow transplantation.”
“Can you explain to the jury, Dr. Kord, how you perform a bone marrow transplant?”
“Certainly. It’s not a terribly complicated procedure. After the patient goes through the chemotherapy I just described, and if he or she is lucky enough to find a donor whose match is close enough genetically, then we extract the marrow from the donor and infuse through an intravenous tube to the recipient. The idea is to transfer from one patient to another an entire population of bone marrow cells.”
“Was Ron Black a suitable donor for Donny Ray?”
“Absolutely. He’s an identical twin, and they’re the easiest. We ran tests on both men, and the transplant would’ve been easy. It would’ve worked.”
Drummond jumps to his feet. “Objection. Speculation. The doctor can’t testify as to whether or not the transplant would’ve worked.”
“Overruled. Save it for cross-examination.”
I ask a few more questions about the procedure, and while Kord answers I pay attention to the jurors. They’re listening and following closely, but it’s time to wrap this up.
“Do you recall approximately when you were ready to perform the transplant?”
He looks at his notes, but he knows the answers. “August of ’91. About eighteen months ago.”
“Would such a transplant increase the likelihood of surviving acute leukemia?”
“Certainly.”
“By how much?”
“Eighty to ninety percent.”
“And the chances of surviving without a transplant?”
“Zero.”
“I tender the witness.”
It’s after twelve, and time for lunch. Kipler adjourns us
until one-thirty. Deck volunteers to fetch deli sandwiches, and Kord and I prep for the next round. He’s savoring the idea of sparring with Drummond.
I’LL NEVER KNOW how many medical consultants Drummond employed to prepare for trial. He’s not obligated to disclose this. He has only one expert listed as a potential witness. Dr. Kord has repeatedly assured me that bone marrow transplantation is now so widely accepted as the preferred means of treatment that no one but a quack would claim otherwise. He’s given me dozens of articles and papers, even books, to support our position that this is simply the best way to treat acute leukemia.
Evidently, Drummond discovered pretty much the same thing. He’s not a doctor, and he’s asserting a weak position, so he doesn’t quarrel too much with Kord. The skirmish is brief. His main point is that very few acute leukemia patients receive bone marrow transplants compared with those who don’t. Less than five percent, Kord says, but only because it’s hard to find a donor. Nationwide, about seven thousand transplants occur each year.
Those lucky enough to find a donor have a much greater chance of living. Donny Ray was a lucky one. He had a donor.
Kord looks almost disappointed when Drummond surrenders after a few quick questions. I have no redirect, and Kord is excused.
The next moment is very tense because I’m about to announce which corporate executive I want to testify. Drummond asked me this morning, and I said I hadn’t made up my mind. He complained to Kipler, who said I didn’t have to reveal it until I was ready. They’re sequestered in a witness room down the hall, just waiting, and fuming.
“Mr. Everett Lufkin,” I announce. As the bailiff disappears
to fetch him, there’s a burst of activity at the defense table, most of it, as far as I can tell, worth nothing. Just papers being pushed around, notes being passed, files being located.
Lufkin enters the courtroom, looks around wildly as if he’s just been roused from hibernation, straightens his tie and follows the bailiff down the aisle. He glances nervously at his support group to his left, and makes his way to the witness stand.
Drummond is known to train his witnesses by subjecting them to brutal cross-examinations, sometimes using four or five of his lawyers to pepper the witness with questions, all of it recorded on video. He’ll then spend hours with the witness watching the tape and working on technique, prepping for this moment.
I know these corporate people will be immaculately prepared.
Lufkin looks at me, looks at the jury and tries to appear calm, but he knows he can’t answer all the questions that are coming. He’s about fifty-five, gray hair that starts not far above his eyebrows, nice features, quiet voice. He could be trusted with the local Boy Scout troop. Jackie Lemancyzk told me he wanted to tie her up.
They have no idea she’ll testify tomorrow.
We talk about the claims department and its role in the scheme of things at Great Benefit. He’s been there eight years, VP of Claims for the past six, has the department firmly in control, a real hands-on type of manager. He wants to sound important for the jury, and within minutes we’ve established that it’s his job to oversee every aspect of claims. He doesn’t oversee every single claim, but he has the responsibility of running the division. I’m able to lull him into a boring discussion about nothing but corporate bureaucracy, when suddenly I ask him, “Who is Jackie Lemancyzk?”
His shoulders actually jerk a bit. “A former claims handler.”
“Did she work in your department?”
“Yes.”
“When did she stop working for Great Benefit?” He shrugs, just can’t remember the date. “How about October 3 of last year?”
“Sounds close.”
“And wasn’t that two days before she was scheduled to give a deposition in this case?”
“I really don’t remember.”
I refresh his memory by showing him two documents; the first is her letter of resignation, dated October 3, the second is my notice to take her deposition on October 5. Now he remembers. He reluctantly admits that she left Great Benefit two days before she was scheduled to give testimony in this trial.
“And she was the person responsible for handling this claim for your company?”
“That’s correct.”
“And you fired her?”
“Of course not.”
“How’d you get rid of her?”
“She resigned. It’s right here in her letter.”
“Why’d she resign?”
He pulls the letter close like a real smartass, and reads for the jury: “I hereby resign for personal reasons.”
“So it was her idea to leave her job?”
“That’s what it says.”
“How long did she work under you?”
“I have lots of people under me. I can’t remember all these details.”
“So you don’t know?”
“I’m not sure. Several years.”
“Did you know her well?”
“Not really. She was just a claims handler, one of many.”
Tomorrow, she’ll testify that their dirty little affair lasted for three years.
“And you’re married, Mr. Lufkin?”
“Yes, happily.”
“With children?”
“Yes. Two adult children.”
I let him hang here for a minute as I walk to my table and retrieve a stack of documents. It’s the Blacks’ claim file, and I hand it to Lufkin. He takes his time, looks through it, then says it appears to be complete. I make sure he promises that this is the entire claim file, nothing is missing.
For the benefit of the jury, I take him through a series of dry questions with equally dry answers, all designed to provide a basic explanation of how a claim is supposed to be handled. Of course, in our hypothetical, Great Benefit does everything properly.
Then we get to the dirt. I make him read, into the microphone and into the record, each of the first seven denial letters. I ask him to explain each letter: Who wrote it? Why was it written? Did it follow the guidelines set forth in the claims manual? What section of the claims manual? Did he personally see the letter?
I make him read to the jury each of Dot’s letters. They cry out for help. Her son is dying. Is anybody up there listening? And I grill him on each letter: Who received this one? What was done with it? What does the manual require? Did he personally see it?
The jury seems anxious to get to the Stupid Letter, but of course Lufkin has been prepped. He reads it to the jury, then explains, in a rather dry monotone and without the slightest flair for compassion, that the letter was written by a man who later left the company. The man was
wrong, the company was wrong, and now, at this moment, in open court, the company apologizes for the letter.
I allow him to prattle on. Give him enough rope, he’ll hang himself.
“Don’t you think it’s a bit late for an apology?” I finally ask, cutting him off.
“Maybe.”
“The boy’s dead, isn’t he?”
“Yes.”
“And for the record, Mr. Lufkin, there’s been no written apology for the letter, correct?”
“Not to my knowledge.”
“No apology whatsoever until now, correct?”
“That’s correct.”
“To your limited knowledge, has Great Benefit ever apologized for anything?”
“Objection,” Drummond says.
“Sustained. Move along, Mr. Baylor.”
Lufkin has been on the stand for almost two hours. Maybe the jury’s tired of him. I certainly am. It’s time to be cruel.
I’ve purposefully made a big deal out of the claims manual, referring to it as if it’s the inviolable pronouncement of corporate policy. I hand Lufkin my copy of the manual that I received in discovery. I ask him a series of questions, all of which he answers perfectly and establishes that, yes, this is the holy word on claims procedures. It’s been tested, tried and true. Periodically reviewed, modified, updated, amended with the changing times, all in an effort to provide the best service for their customers.
After reaching the point of near tedium about the damned manual, I ask: “Now, Mr. Lufkin, is this the entire claims manual?”
He flips through it quickly as if he knows every section, every word. “Yes.”
“Are you certain?”
“Yes.”
“And you were required to give me this copy during discovery?”
“That’s correct.”
“I requested a copy from your attorneys, and this is what they gave me?”
“Yes.”
“Did you personally select this particular copy of the manual to be sent to me?”