A Patent Lie (17 page)

Fischler's line of questioning had been a bluff. Other companies were working on AIDS vaccines but, without industrial espionage, there was no way St. Gall and its lawyers could know what they were working on, or how far they had progressed. Palmieri would need to time his objection carefully.

“Do you know how many other pharmaceutical companies are investigating an AIDS vaccine? Two? A dozen?”

“I can't give you an exact number,” the economist said.

“So in your charts, and in your testimony, you just assumed that there were none.”

“Keep her honest,” Seeley said to Palmieri. To himself, he acknowledged that, at the moment, the best they could do was to disrupt Fischler's pace.

Palmieri rose. “Objection, Your Honor. Outside the scope of direct.”

“This is an expert who's on the stand, Your Honor. We have latitude to examine the basis of her testimony.”

“Overruled.” Then, more gently, to Fischler: “I'm sure you will find a way, Counselor, to phrase your question so that it stays within bounds.”

“So, Professor, for all you know, a dozen other companies might have done the same research as Vaxtek and were just a little late getting to the Patent Office.”

“Objection.” Palmieri was on his feet again. “This violates the parties' stipulation on priority.”

“Counselor?” Judge Farnsworth seemed amused by the sparring.

Fischler said, “The stipulation is as to priority of invention, Your Honor, not the race to the Patent Office.”

“If you have another objection, Mr. Palmieri, I'll be glad to entertain it.” This time her voice was almost musical.

“The question is outside the scope of the direct examination.”

“That's right, Counselor, it is. Ms. Fischler, this may be the time to turn to another line of questioning.”

“I have just one last question of the witness, Your Honor.” She looked hard at Chaikovsky. “Would you please tell the court, Professor, how much you are being paid for your testimony here today?”

Palmieri started up. The question was as cheap as the old yes-or-no chestnut about whether the witness had stopped beating his wife. Barnum hunched forward. Seeley looked over at Thorpe who was watching him. Thorpe smiled and shrugged. Seeley placed a hand over Palmieri's. “Let her handle this one herself.” Amateurish as the question was, Seeley was sure that Chaikovsky had been asked it before.

“You've asked two questions, Ms. Fischler, so let's see if I can disentangle them.” She was the professor lecturing a not very bright student. “First, I am not being paid for my testimony but for my time. Second, I am being paid at the same rate, $650 an hour, that I am paid whether the work involves courtroom testimony or corporate consulting.”

Barnum sat back in his chair. Palmieri's taut posture relaxed.

“I have no more questions, Your Honor.”

“Redirect, Counselor?”

Seeley whispered to him.

Palmieri said, “None, Your Honor.”

Their case had taken a hit from Fischler's bluff, and redirect would only magnify it. Seeley would have to repair the damage with his witness this afternoon.

There is an unwritten rule among lawyers never to discuss a client's business in public places—on the sidewalk, in an elevator—even in a taxi with a driver who by all appearances understood few words of English, but whose eyes darted in the rearview mirror between Seeley and Palmieri. More often than not in these situations, Seeley found himself asking about family.

“Did you grow up out here?”

Palmieri shook his head. “Spencer, Iowa. One of the one hundred best places to live in America. My mom's still there.”

“Any other family?”

“Two older sisters. One's in St. Louis, the other's still in Spencer.”

Seeley nodded. “What about your father?” This was always where his curiosity ultimately came to rest. What about your father?

“He died in Vietnam. All I know about him is from my mother's stories, some pictures in an album, and a Distinguished Service Cross.”

“A hero.”

“A victim.” Palmieri checked the rearview mirror where the driver's eyes were still watching them. “But don't get the wrong idea. I had a great time as a kid. There were uncles and aunts on both sides, lots of support. Just no father.”

“But you left Spencer.”

“We're still close,” Palmieri said as the taxi pulled to the curb on Battery Street. “We talk every week. I go back for the family blowout at the lake every summer. But Spencer doesn't have many opportunities for big cases.” Getting out of the taxi, the glow was still on him from the morning's success with his witness. “Or for gay men. San Francisco's got both.”

Tina had left sandwiches and coffee for them in the conference room. Palmieri removed his suit jacket and draped it over the back of a chair. Even after four hours of direct examination and of sitting on Fischler's shoulder for every minute of her cross, his pink-and-white striped shirt was crisp, the burgundy tie neatly knotted.

Palmieri glanced at Seeley, waiting for him to start, and, when he didn't, said, “I think Chaikovsky's examination went well.”

“I'm sure the jury thought it was worth the wait.”

Palmieri caught the point at once. “I didn't know she was going to get caught in traffic.”

Seeley waited.

Palmieri ran a finger between his neck and shirt as if the collar had suddenly grown too tight. “You think I'm trying to wreck the case just because I didn't get to run it.”

“No, I don't,” Seeley said. “But I think you're letting yourself get”—he paused to pick the word carefully—“distracted.”

“How so?” The question came out pinched, as if Palmieri were biting back on his anger.

“The man you were talking to outside the courthouse last Friday, after we picked the jury.” Seeley didn't know whether Palmieri had been talking to the protester or just watching Thorpe's waltz with the press, but he was going to find out. “Tall, curly blond hair.”

“Phil Driscoll. He's a friend of my partner's. They dated once. What does that have to do with anything?”

“Do you talk to other people in the group?”

“Of course I do. These are my friends.”

“And you talk about the case?”

“Do you talk about cases with your wife? Your friends?”

“I'm not married.” Seeley was less puzzled by Palmieri's growing rage than he was by the obvious effort to contain it. If he let himself explode, what might he say that he would regret?

“They think I sold out when I agreed to work for Vaxtek.”

“And what do you tell them?”

Palmieri said, “What anyone who knows the facts would tell them—AV/AS is the best we're going to have for a long time and, if there hadn't been a patent waiting at the end of the rainbow, Vaxtek wouldn't have spent half a billion dollars on it.”

“I told your friend Driscoll pretty much the same when he stopped me outside the courtroom.”

“Young gay men today think they're immortal. They don't know what it was like ten, fifteen years ago, when the entire gay population in the city was under a death sentence. They don't know what it's like when the therapy you're taking just to survive blows out your kidneys or your liver. Pop a pill, they think. Have sex and pop a pill.”

Palmieri's words were coming easier now, but Seeley noticed a small circle of perspiration when he lifted an arm to gesture. It wasn't rage he was feeling, Seeley thought. Palmieri was under pressure. This wasn't the time to catalogue his mishaps for him or to question his attitude unless Seeley wanted to lose his second chair in the middle of trial.

Seeley said, “What about you?”

“Do you mean, am I HIV positive?”

Seeley nodded. For no good reason it felt as if the entire case was going to turn on the young lawyer's answer.

“No, I'm not. My partner, either.” Palmieri's forehead glistened with perspiration.

“I'm glad for you. Both of you.” Palmieri's struggle was tiring Seeley. “But in the future, I'd be careful about letting Barnum see you hanging out with the protesters. Barnum's a jerk, and it's none of my business where he sends his cases but, I promise you, your partners won't be happy if he stops sending Vaxtek work to your firm.” Of all Seeley's offenses at his New York firm—taking on unpopular causes and too many pro bono clients—none hurt him more with his partners than losing the firm's paying clients.

“Bob Pearsall always protected me from the partners.”

Seeley let the implicit rebuke pass. These were Pearsall's partners, not his. There was nothing he could do to protect Palmieri.

“If you want to know, Bob was the reason I signed on to this case. His word was all I needed that it was the right thing to do.” Palmieri took a sandwich from the plate on the conference table. “Are we finished?”

“No. I'd still like to know why you let Professor Chaikovsky sleep in her own bed.”

Palmieri started to push back from the table, but Seeley winked at him and the shoulders that had snapped to attention when Seeley first asked the question finally relaxed.

Dr. Lionel Kaplan had never testified before, but he was the one witness Seeley knew he would keep when he pared his witness list to fit Judge Farnsworth's shortened schedule. The Harvard scientist's heavy-lidded eyes and broad expressive mouth, ready at a moment to break into a gleeful smile or pondering frown, made it easy to imagine him, many years ago, as the smartest, funniest, most passionate kid in class. Asked at his deposition what his hourly rate was for testifying, Kaplan must have stunned Thorpe when he answered that he had requested only that Vaxtek reimburse his travel expenses. Depositions are where lawyers try out their mistakes, and Thorpe was not going to ask that question again in front of a jury.

As Seeley approached the lectern, Kaplan pushed his utilitarian horn-rims up the bridge of his nose.

“Dr. Kaplan, before you describe to the jury the several obstacles that stood in the way of discovering AV/AS, could you describe to us how vaccines work generally—a vaccine we might be more familiar with, like the polio vaccine or the vaccine for measles?”

With a slight tilt of his head, Seeley reminded the scientist to look at the jurors as he spoke.

Kaplan smiled broadly and ran his fingers through coarse, barely combed hair. “The beauty of a vaccine is that it uses the body's own defenses to fight off infection. It makes a weak person strong.”

“And how do you get a vaccine to do that?”

“The starting point for the great majority of vaccines is to take a laboratory sample of the virus, like polio, that you want to create immunity against, and then you weaken or even kill the virus so it can no longer cause the disease. Then”—Kaplan jammed his index finger into the palm of the other hand—“you inject this weakened version into a healthy patient. It's too weak to make him sick, but it's strong enough to stimulate his body to produce antibodies. Once these antibodies are in the bloodstream, they attach themselves to the weakened virus we injected and neutralize it. Effectively, the injected virus triggers its own executioner.”

“What happens after the antibodies neutralize the virus in the vaccine?”

“That's the genius of vaccines: the antibodies stay in the bloodstream so that if our patient later encounters the real, live polio virus, the antibodies are already there to bind with the virus and neutralize it.”

“Is HIV a virus?”

“That's what the letters stand for. Human immunodeficiency virus.”

“Does immunization work the same way with HIV as it does with the polio virus?”

Kaplan threw up his hands. “If only it were that simple! In the early days we all assumed this was how an AIDS vaccine was going to work. What we didn't know—and what sadly we know now—is that HIV is a chronically replicating antivirus, uncontrollable by the host's immune response.”

To this point, heads had nodded in the jury box as the jurors followed along. But now, as Seeley expected, he saw some anxious side glances. This was the point at which Gabriela Vega, helping Kaplan prepare his testimony, cautioned the witness to avoid technical terms. Seeley's first instinct, sitting with them in the Heilbrun, Hardy conference room, was to agree. But then he decided that it wouldn't hurt to remind the jury, and particularly Sansone, that it took more than high-school biology to create AV/AS.

Kaplan said, “The problem is that the HIV envelope glycoprotein displays emphatic antigenic variations, is heavily glycosylated, and is poorly immunogenic.”

The mood in the jury box instantly turned from confusion to frustration. For all of Kaplan's undeniable charm, Seeley was going to have to be more careful.

Seeley forced a laugh into his voice. “Could you translate that into a language the jury and I can understand?”

Kaplan's eyebrows shot upward. He laughed and clapped his thighs. “Of course. I apologize.” He rested his hands on the rail, and spoke directly to the jury. “Four unique hurdles stand in the way of developing an AIDS vaccine.”

In her cross-examination of Chaikovsky that morning, Fischler left the jury with the thought that science had progressed to a point at which Steinhardt's achievement was obvious, even trivial, to anyone working in the field. Now, Kaplan was going to dispel that thought.

“Before you describe these obstacles to the jury, Dr. Kaplan, could you tell us how you came to know about them?”

The smile that played tentatively on the scientist's lips became a self-deprecating grin. “I've been working on the problem of an AIDS vaccine for eighteen years. Our experience is that we overcome one or two of these obstacles, but when we try to attack the next one, we find that the first one's come back.”

“You said ‘we’?”

“My research team.”

“How large is this team?”

“Over the course of our work, it's been as small as six researchers, all of them PhD graduate students or postdocs, and as large as fifteen.”

“And where has this research taken place?”

“At Harvard Medical School, and at the Dana-Farber Cancer Institute's Center for AIDS Research.”

“Why at two institutions?”

Again, Kaplan shrugged. “This is a big job.”

When they were preparing Kaplan for his testimony last night, Seeley asked him how a researcher like Steinhardt, working alone at a small drug company, could get to the finish line ahead of teams of scientists at major, federally funded laboratories. “You have to remember,” Kaplan had told him, “Steinhardt was already publishing papers on this approach when he was at UC.” There wasn't a hint of envy or regret in Kaplan's voice. “And,” Kaplan had said, “some researchers work better alone than others.” “Or,” Seeley had said, “they're less inclined to share the credit.” Kaplan had lifted his eyebrows and tilted his head but said nothing.