An Invisible Client (17 page)

38

Voir dire, jury selection, came and went at about the pace I anticipated. During voir dire, we could exclude jurors we thought were prejudicial to our case. Marty had excluded fifty percent of the pool, and Bob—or more accurately, Bob’s jury-consulting firm—had excluded another twenty-five percent. That left us with the six men and women and two alternates who would hear the trial. The entire process took two weeks.

Bob had used the standard tricks: trying to question the potential jurors in a way that would taint the case. Instead of saying, “Can you be fair in a case involving an injured child?” he would ask, “If you found an injured child’s mother was forcing the child to fake injuries, could you still be impartial?” It was all obvious and devious, and I hoped the jury saw through it.

During those two weeks, I practiced cross-examination and brushed up on the Rules of Evidence, hoping to impress the jury by not having to look anything up. Lawyers on television knew every relevant rule by heart, but the law was about the gray area in between the rule and what the drafters of the rule meant. There was too much information to memorize, but I hoped I could minimize the number of times the trial paused while the lawyers and the judge had to research and argue something.

The first day of trial came without fanfare.

I got out of bed, showered, and shaved like I would on any other day. I chose a suit, but not one of my more expensive ones. I clipped a San Francisco Giants pin to my lapel.

Olivia and I would be trying the case together. Raimi had severe social anxiety around strangers and couldn’t say a word in courtrooms, and Marty was nearly the same. He had lost forty divorce cases in a row when I had found him. But he knew how to make people feel good when they signed up with him. That was a skill no one talked about in law school, but that was invaluable to a lawyer.

On the day of opening statements, I sat down and flipped through the jury instructions. I hadn’t even read them; Raimi had prepared them. Then they’d been perfected through a long process of passing them back and forth between the plaintiff and defense counsel, making corrections until there were no more corrections to be made.

Bob had five lawyers there with him and, most disturbingly, wasn’t wearing his eye patch. He had taken it off before voir dire and his eye was completely fine. Seeing both of them exposed was somehow disconcerting.

Rebecca Whiting sat next to me. This was her lawsuit now, for the loss of her son. Olivia sat on my other side. I’d discovered throughout the depositions that she was a pit bull at cross-examination. When a lawyer was too aggressive with a witness, the jury had a tendency to turn against them. To view them as a bully. But some witnesses required it. I would use her for that, so that the jury still got the information but associated the aggression with her instead of me. She was thrilled at the idea that she would get up in court and yell at people who’d hurt children and covered it up, and they wouldn’t be able to do anything in turn.

We sat up straight as the jury was called out.

Judge Hoss reviewed the preliminary instructions. He had a dry, boring manner of speaking, as though he were reading a cereal box. But it was good because it contrasted so well with how I spoke that I hoped it would make the jury pay more attention to what I was saying.

“Counsel, the time is now yours for opening statement.”

I looked at the jury. I didn’t know their names or what they liked and didn’t like. I trusted that Raimi and Marty knew me and had picked a jury that would respond to what I had to say. I took out my phone and looked at a photo underneath the table so the jury couldn’t see. It was the one taken of Joel at the hospital when he was making a silly face. I stared at it for a few seconds, then placed my phone on the chair before rising and standing in front of them.

“My father . . . was an alcoholic. My earliest memory of him is him standing on the table of a restaurant, drunk and cursing out the waitress that was trying to get him down. My mother sat at the end of the table and didn’t say anything. She was a strong woman, but there was only so much she could take. She left us when I was young. I didn’t understand either of my parents. What that thing was inside my father that made him drink and grow brutally violent, or what that thing was inside my mother that caused her to leave her only son in his hands. My entire life I’ve tried to understand it, and sometimes I still feel like that boy huddled underneath his bed, hoping the footsteps would keep going past his room.

“My father was a monster, but he was an honest monster. He never hid what he was. But there are worse monsters in the world. There are monsters that hide themselves in broad daylight. Monsters that put on smiles, that might even shake your hand and call you their friend. There are monsters in this world that care nothing about goodness, or people, or the future. We used to search under our beds for monsters when we were young, but that’s not where they were. They were out in the open, pretending to be there to help us.” I pointed to the table with Bob and his lawyers. “Pharma-K is one of these monsters.”

I walked over and stood in between the defense and plaintiff tables. “This is Rebecca Whiting. She is the plaintiff. She is flesh and bone. Her son was killed by medicine manufactured by Pharma-K. But look at the defense table. This woman and all these men are lawyers. Where is Pharma-K? Where is the person to hold responsible for the death of Joel Whiting? He doesn’t exist. He’s only on paper. He is a monster that hides behind money and laws.”

I put my hands in my pockets and came back in front of the jurors.

“Most people think our system allows the little guy to rise. Like Oscar Wilde said, the poor in America don’t think of themselves as a repressed lower class, but as temporarily embarrassed millionaires. We’re told that every person in the world has magic in them—the ability to pursue what they love and make something of themselves. That’s the freedom that’s been promised to us since the day we were born . . . but something’s not right.

“I’ve seen it firsthand. I’ve been watching something happen since I was a kid. It’s so subtle that most people don’t even see it. They don’t realize it’s happening . . . we’re not free anymore.

“The most powerful corporations and banks hire the most expensive lobbyists, who buy the votes of the most powerful politicians. Capitalism is a free exchange between two entities without the use of force. That’s not what we have anymore. The word for what we have is
oligarchy
. It means that we are ruled by a few powerful people. Our system is rigged, and the people who benefit are the richest corporations. The White House and Congress are our symbols of freedom and leadership, but that’s all they are: symbols. The richest corporations lead us.

“Pharma-K is also one of these corporations. They hurt people over and over again, and they cover it up. Why? Because they can. They know that our system isn’t set up to go after them. Our system, our entire system, is set up to protect them.”

I paused.

“Joel Whiting was twelve years old when his mother gave him an ordinary dose of Herba-Cough Max cough suppressant. Within an hour, he was at the hospital with cyanide poisoning. Along with two other boys from Salt Lake County. He fought—he fought damn hard—but the cyanide had damaged his kidneys and liver to the point that there wasn’t any hope left for him. He passed away two and a half months after taking that dose of Herba-Cough Max. A drug that I will show you had racked up two hundred fifty-four complaints and was still not removed from the market. A drug that this company knew was dangerous.

“We will have Dr. Cornelius Pier testify that he used to work for Pharma-K as their lead chemist. They tried to get into the cosmetics market, and they produced a nail polish remover that they advertised as ‘the most powerful nail polish remover in history.’ The nail polish remover contained a chemical called acetonitrile. The doctor will testify to you that acetonitrile turns into cyanide in the body if it’s swallowed. For four years, that nail polish remover somehow got into their children’s medicine, and they did everything in their power to cover it up, including fabricating a story about a serial killer poisoning children’s medicine.”

I looked at Rebecca, who held my gaze.

“Everything Joel ever was and everything he could’ve been was wiped away by this company. He will never graduate high school, he will never know what it feels like to kiss a girl, he will never hit a home run on his baseball team, never get married, never know the feeling of seeing his child born, and never grow old and watch the world change. Everything he had was taken from him”—I pointed to the defense table—“because that company thought they could save a few bucks by not recalling the medicine.”

I stepped close to the jury.

“We’re told by this system that you are the car you drive or the size of your house or the number in your bank account. We’re taught from an early age by advertising agencies that we’re only as good as the wealth we have. It isn’t true. We’re not their slaves. We’re people. We’re not numbers on a spreadsheet. We aren’t disposable if we don’t make enough. This is our country, not theirs.

“If you want a description of what they are, they’re murderers. They murdered that boy as surely as if they’d put a bullet in him. This isn’t about money. This isn’t about winning. This is about a little boy who was an inconvenient cell on a spreadsheet, and they didn’t care what happened to him.

“Joel Whiting”—I glanced at Olivia, then looked back at the jury—“was my friend. Don’t let him die in vain.”

I sat down. Bob stood up and buttoned the top button of his suit coat. He walked in front of the jury and put his hands behind his back, like a professor about to lecture. “The story of the pharmaceutical industry in this country is a story of saving lives. Companies like Pharma-K are responsible for preventing the deaths and improving the lives of countless people throughout the world. And they dare call us murderers?
Murderers
?
Pharma-K did everything they could when they found out someone had poisoned their medicine. And that is what happened, contrary to anything the plaintiff’s lawyers will tell you. Someone tampered with the medicine and killed that boy. I won’t begin to tell you I understand it. I don’t think anyone can understand it. The FBI constructed a psychological profile on the man who did this, and we’ll introduce that to you so you can get a better sense of the type of evil responsible for this, but don’t let the plaintiff’s lawyers fool you. This
is
about money. It is always about money with them.

“They’re asking you for a total of one hundred fifty-one million dollars. For what? Because the product was tampered with? It had a seal. When the CEO of Pharma-K found out about the poisonings, he set up a task force that met twice a day to investigate what happened and pull the tainted medicine from the shelves. He is a father, too. He has children. He knows what it would feel like to lose a child, and he no more wanted this to happen than you did. But that’s life, isn’t it? We take our chances. Every time you get on the road, you’re taking a chance that some psychotic isn’t driving one of the two-ton steel machines barreling toward you and isn’t just going to swerve into your lane. You take your chances that a drunk driver isn’t going to come out of nowhere and slam into you. When you get on a plane, you take your chances that it won’t crash, that terrorists won’t hijack it, that there won’t be someone with a contagious illness sharing the same air as you. You take your chances.

“Sometimes, in this life, people lose. I wish, and I know everyone at Pharma-K wishes, that we could bring Joel Whiting back, but we can’t. Even if his mother got the millions of dollars she was asking for, it wouldn’t bring him back. He’s gone. An evil that few of us can understand took him from us. I wish I could bring him back, ladies and gentlemen, but I can’t. All I can do is stand here and tell you that this company, one started by a father and son, cares about its customers. It cares about the people who take its medicine. It is a company devoted to healing, not destroying. Their pride and joy right now is a pain medication that will not cause addiction. Can you imagine the benefits to those people who suffer every day with chronic pain? On the horizon is a drug that will treat patients living with AIDS for one-twentieth the cost of the current medications. Pharma-K is trying to change the world for the better. They are not murderers. There is no basis for this lawsuit other than the pain the plaintiff feels.”

He turned to Rebecca. “I’m sorry, Ms. Whiting. I truly am. But putting this company out of business, a company that tried to save your son, isn’t the answer.”

He sat back down.

The judge looked at me and said, “First witness, Mr. Byron.”

39

Rebecca was my first witness. She rose slowly and walked up to the witness stand. The clerk swore her in, and when she was settled, I stood before her. I asked the preliminary required questions to establish her identity. Then I said, “Tell us what happened on April seventh of this year.”

She swallowed. “Joel hadn’t been feeling well. He had a cough that just wouldn’t go away. I ran to the store and got him some cough medicine.” She paused. “I just chose the most expensive one. When it came to Joel’s health . . .” She didn’t say anything for a good half minute after that as she fought back tears. “I chose that medicine, and I took it home. Joel was outside, playing. He loved baseball. That was his favorite thing in the world. He came inside, so I gave him some medicine, just the dose it said on the bottle, and he went into the living room. I didn’t hear him, though. I thought it was strange. So I went out to check on him, and that’s when I found him. He was unconscious, and vomit was everywhere.”

“What did you do?”

“I called an ambulance. They came and took us to the hospital. At first, they told me it was a stroke. And then they thought it was a heart attack. And then they didn’t know what it was, not until a nurse said that she had seen on the news that another little boy got sick from taking some children’s medicine. So she asked me if I had given him any Herba-Cough Max.” Tears appeared in her eyes and rolled down her cheeks. “I felt like I was going to die when she asked me that. Just the look on her face, and I knew it was something awful.”

“What did the nurse do?”

“She was nice enough to run to my house and get the medicine. They brought it back and tested it, and it tested positive for that thing you said. Acetonitrile.”

“What happened to Joel?”

“He lived for almost three months. He fought hard. As hard as a little boy could fight. But too much damage had been done. They said they wouldn’t give him a kidney transplant because he was too sick. So he died on July second.” She wiped tears from her cheeks but wasn’t sobbing. “He fought until the last minute. You can’t imagine the pain he went through. Toward the end, some nights he’d be screaming, and the pain medication just couldn’t touch it. So I’d sit with him and hold him all night.”

I waited for a moment, pretending to stare at my notes. I felt the tears welling up, and I had to close my eyes for a few seconds before I could open them again. “Did you ever try to get in touch with Pharma-K?”

“Yes. I tried and tried. No one would talk to me. Not until Debbie Ochoa. She was one of their secretaries. She told me that—”

“Objection. Hearsay,” Bob said.

“Goes to state of mind, Judge,” I replied. “I’m not arguing as to its truth, just that it was stated to my client. And Ms. Ochoa will be testifying to verify any statements made.”

“I’ll allow it.”

I turned to Rebecca. “What did Debbie Ochoa say?”

“She said that they had known about the medicine making children sick for years. That they covered it up. That they were the ones that announced this serial killer story so they wouldn’t have to pay claims. I was so relieved someone was talking to me from there. But then a couple of weeks after, she was fired, and I never heard from her again.”

“Did anyone else talk to you?”

“No. At one point, one of the managers told me to piss off. He said Joel was one customer and that they had bigger things to worry about. That’s when I started asking my friends if they knew a lawyer. And God sent us you, Mr. Byron.”

I looked down to the floor for a second, then went to the jury and leaned on the banister in front of them. “Why did you file this lawsuit, Rebecca?”

“I just want to make sure this doesn’t happen to anyone else’s child. That’s all. They wouldn’t even talk to me. They didn’t care that a little boy was dying from their product. I can’t just sit by and watch them hurt more people. It has nothing to do with the money.”

“You said it has nothing to do with the money, but we’re asking them for millions of dollars.”

“I would give it all up for one minute with Joel again. Just to hug him and tell him I love him. But they can’t do that. The law can’t give me back my boy and it won’t put these people in jail. It won’t do anything but say that I can ask for money. That’s the only justice Joel gets.”

I nodded. “Nothing further.”

Bob stood up and moved uncomfortably close to Rebecca. “You said you just want to make sure that this doesn’t happen again, but that’s not true, is it?”

“It is.”

“You had our attention months ago. If all you wanted was better safety procedures, the company would’ve listened.”

“I tried. I tried to talk to anyone over there, and no one would talk to me.”

“So you filed a lawsuit for a hundred and fifty-one million dollars? This is about money, Ms. Whiting.”

“I don’t want your blood money. I’m going to give it all away.”

Bob hadn’t expected her to say that, and he took a second before continuing. “Tell us about Joel’s illness.”

“What illness?”

“Ms. Whiting,” he said, “are you going to sit in front of this jury and pretend that you don’t know what I’m talking about?” He pulled out several sheets of paper and showed them to me before heading to the witness box. They contained Joel’s medical history. I’d known this was coming at some point in the trial, and just had to let it happen and hope I could repair the damage later. I’d prepared Rebecca as best I could, and she seemed confident on the stand. A reserved, justified anger emanated from her furious glances toward the defense table.

“Approach, Judge?” he said.

“Certainly.”

He went over to Rebecca. “What is this?”

“Medical records.”

“And what is the name on the top of these medical records?”

“Joel Whiting.”

“I would direct your attention to the entry for September of 2013. Please flip there and read what it says.”

She read the page silently first. “No, this was just a conjecture. He wasn’t diagnosed.”

“Please read it.”

“Patient displays abnormal white cell count.”

“Abnormal. And what exactly was abnormal about it?”

“They were too low.”

“Why did the doctor think it was too low?”

She glanced toward me. “They thought Joel might’ve had lupus. But he was never officially diagnosed.”

“Lupus is an immune disorder, isn’t it? Making him more susceptible to anything in the environment that his body would have to fight off.”

“He didn’t have it.”

“But you don’t know, do you? You don’t know because you never went back to the doctor.”

“He didn’t have it. They told me it could just be his normal count.”

“And then they scheduled a follow-up. One you never showed up for?” He stepped closer to her. “Don’t you think the doctors, after Joel’s poisoning, could’ve done more if they’d known he might’ve had lupus? If you had gone back and gotten him an official diagnosis, maybe they could’ve done more.”

She shook her head. Bob’s entire strategy was to blame her for her own son’s death, to make her feel responsible. Despite my preparation, it was working. Rebecca was now sobbing, the tears streaming down her cheeks.

Bob was right: lupus could explain why the other hundreds of children lived and Joel didn’t. But under the law, it didn’t matter if Joel had it or not, because of something called the “eggshell skull doctrine.” Someone who hurt someone else took them as they came: if they were diseased or injured, the defendant was responsible for all the injuries, even if they wouldn’t have happened if the plaintiff were well. Though legally we were on solid ground, a jury might be put off by the fact that Rebecca never followed up on a potentially fatal diagnosis.

“No. I don’t know. I didn’t want him to have that diagnosis. He was so young. I didn’t want him scared.”

Bob looked at the jury and then sat back down with a grin on his face.