An Invisible Client (18 page)

40

The next six witnesses were our experts. Expert witness cross-examination was the same for both sides: we tried to poke holes in their motivations. The first question any good lawyer asked was “How much were you paid by opposing counsel to be here?” It instantly threw their entire testimony into question. Bob did it masterfully on each witness, everyone except Dr. Pier.

Pier had quit Pharma-K and had nothing to gain by being at the trial, so Bob tried to make him seem like a jaded former employee. At one point, Bob said, “And you’re ticked off, aren’t you? You’re upset that you quit this start-up company and that they are a success now and you missed your lottery ticket?”

Pier shook his head. “Absolutely not. I left because I didn’t feel they were following best practices for the industry.”

“I have here an email from you, sent in August of the year you quit, to another employee of Pharma-K. Would you please read it for the jury?”

Pier looked at it, and his jaw muscles clenched. He then read it. “It says, ‘I’m sick of this bullshit pay. I’m easily worth three times what they’re paying. I’ll be jumping ship.’”

“‘Jumping ship’? Those were your exact words, weren’t they?”

“Yes.”

“Again, this was about money, wasn’t it? It had nothing to do with best practices.”

“The money was a factor, but it wasn’t the only factor.”

“But just a second ago, you said that it was because of best practices. You didn’t mention anything about money to this jury. And now when confronted with the truth, you’re changing your testimony?”

Pier flushed a rosy color but didn’t say anything else.

“That’s what I thought,” Bob said, moving away from the witness stand.

I leaned over to Olivia and whispered, “How’d we miss that email?”

“Someone must’ve read it and didn’t think it was important.”

Our experts’ testimonies lasted fourteen entire days. One day, Bob did nothing but object to every question. I would ask someone their name, and Bob would object. He looked like a jerk in front of the jury, but he also threw me off my game because I kept having to ask the same question over again. I lost my rhythm, and sometimes, I had to cut my examination short.

One night, Olivia and I lay on beach chairs on my balcony and sipped virgin margaritas. We were so exhausted, we fell asleep out there and only woke up when my neighbor Jim got into a fight with his girlfriend and the cops were called. I went over there and spoke to the police. They decided to let Jim off with a citation for disorderly conduct, and I told him I would take care of it. The next morning, I had to ask Olivia if I’d dreamed it or if it had really happened.

After the experts, we had Debbie Ochoa flown out, and she was staying in the best hotel we could get. She arrived in the courtroom dressed in a red dress with heels, and I noticed some of the male jurors following her with their eyes. She took the stand and was sworn in.

“What’s your name, ma’am?”

“Debra Lucy Ochoa.”

“And what is your connection to this case?” I asked.

“I was a secretary at Pharma-K Pharmaceuticals.”

“How long did you work there?”

“From 2010 to 2014.”

“Do you recall a conversation with Rebecca Whiting, my client, after the news broke about the children who had gotten sick from Herba-Cough Max?”

“Yes. She would call every day. She wanted to know what had happened to her son. We’d been told not to speak to anyone about the cases, but she started crying on the phone one day, and I felt bad. So I told her about what happened.”

“And what did you say?”

“I had heard Mr. Rucker talking about the poisonings with Pirate Bo—with the lawyer there.”

Bob’s face flushed a light pink and he looked behind him at Rucker, who shrugged innocently.

“It was late, and they didn’t think I was still there,” Debbie continued. “They kept saying that they needed to contain this. That the liability would be huge, and they needed to find a way to get blame off Pharma-K. That’s how they came up with the serial killer.”

“They came up with it?”

“Yes. I think it was the lawyer. He said that they should issue a press release now, before it became big news. That they should set up a task force and do everything they could to find the person who did this. But there was no person. They made it all up.”

I observed with satisfaction as one of the female jurors gave Bob a nasty glare.

“And you heard this yourself?”

“Yes. When they were done speaking, they came out of the office and were surprised that I was there. They didn’t think anybody was. I had to work late that night. A week later, they asked for me to resign.”

“Who asked?”

“My direct boss, James Olsen. He said that I was a good employee but that Rucker wanted another secretary, so he said he was going to give me twenty-five thousand dollars as a severance package, and if I wanted, the company had a condo in California that I could live in for free.”

“For free?”

“Yes. No rent. So I didn’t go to HR or anything. Free rent and twenty-five grand is a lot for me.”

“Were you aware, Ms. Ochoa, of any complaints to the company about Herba-Cough Max?”

She nodded. “Yes. Hundreds of them. I was the secretary for the consumer affairs division. Parents would call me all the time about it. They said it made their children sick. I would tell Mr. Olsen and Mr. Rucker, but they said that it was a quality-control issue. They wouldn’t do anything.”

“In the four years you worked there, how many complaints would you say you got?”

“I don’t know. Maybe six or seven hundred total calls. A few hundred emails.”

I had subpoenaed call logs and recordings, and the company had responded that such records were kept for only thirty days and then destroyed. No company anywhere kept them for only thirty days. I had no doubt they had been destroyed to avoid my getting them. Luckily, emails were more difficult to get rid of, as they relied on external ISPs and servers.

“All the complaints were about Herba-Cough Max?”

“Yes. It’s that specific product. I don’t know why, but it makes people sick, and management knew about it.”

“Thank you, Ms. Ochoa. Nothing further.”

Bob rose. He stared at Debbie until she looked away.

“Ms. Ochoa, how many complaints were filed against you personally by customers?”

“I don’t see why that—”

“How many, ma’am?”

“Objection,” I said. “I never received copies of any complaints against Ms. Ochoa.”

“I’m not introducing them, Your Honor. I just want to know how many Ms. Ochoa remembers there being.”

“I’ll allow it.”

“Your Honor,” I said. “They purposely did not give me those complaints. I think it’s highly—”

“Let’s talk about it in chambers later,” Bob interjected. “Not here.”

“I agree,” Hoss said. “Ms. Ochoa, you may answer.”

“I don’t know,” she said.

“Eighty-nine. You had eighty-nine complaints filed against you by customers in a four-year period. Does that sound right?”

“I guess so.”

“If you had an employee who got almost a hundred complaints in four years, would you keep that employee, Ms. Ochoa?”

“It wasn’t my fault. The company wouldn’t talk to any of the parents, so the parents would get mad at me and—”

“That wasn’t what I asked. I asked you if you would keep an employee who had racked up a hundred complaints in four years.”

“No, I guess not.”

“And so when Mr. Olsen let you go, what did he tell you was the reason for your termination?”

“He said it was performance, but that’s not true. I was a good employee.”

“A good employee with a hundred complaints against her?”

“I told you, that wasn’t my fault.”

“Where did you work before Pharma-K?”

She hesitated. “An accounting firm.”

“Stoole, Bobbins, and Whitman, correct?”

“Yes.”

“You were terminated from that job, too. Is that not true?”

“Yes, but that was because my boss hated me. She was jealous of any women in the office.”

“Before the accounting firm, you worked at a graphic design company, Hiero Graphics, correct?”

Debbie was turning red. “Yes.”

“And you were fired from there, too?”

She didn’t try to give an excuse this time. “Yes.”

“Now, this conversation you supposedly heard, it was routine for me to come into Mr. Rucker’s office and discuss issues pertaining to the company, wasn’t it?”

“Yes.”

“And we discussed everything about the company.”

“I guess.”

“So is it possible, Ms. Ochoa, that we were talking about something else? Before you got on that stand and decided to hurt a good man’s reputation and the company that so generously gave you a bundle of money to make sure you were okay after they let you go, did you bother to check with me or Mr. Rucker about it?”

“No.”

“And it is possible that we were talking about something else, isn’t it?”

She shrugged. “Anything’s possible.”

“Anything’s possible,” he said again for emphasis. “It certainly is.”

41

We ended the day with Debbie Ochoa’s testimony. I asked the judge for a meeting in chambers. Bob and Olivia followed me back there.

I sat down across from the judge and could barely hold my anger in check.

“Your Honor, I sent a subpoena for any complaints against Ms. Ochoa, to which Mr. Walcott replied that such complaints were destroyed after termination of the employee. Everyone in this room knows that’s not true. They destroyed those complaints so I couldn’t contact those parents.”

“Outrageous!” Bob said. “Do you know how many crazy people complain to a company like Pharma-K on a daily basis? They can’t keep every single complaint against every single employee.”

“They’re required to keep complaints for the unemployment benefits process in Utah,” Olivia said. “There’s no way they didn’t know that.”

Bob chuckled. “Your Honor, these accusations are baseless. What my client does or does not do with complaints received against employees has no relevance to—”

Judge Hoss held up his hand. “Mr. Walcott, do you have these complaints in your possession at this time?”

“I do not.”

“Does your client?”

“No.”

“Is there any way to get them?”

“There is not. The recordings were recycled after thirty days.”

The judge rubbed his forehead. “Mr. Byron is right. It doesn’t seem likely that would be company policy. You either destroyed those recordings or are keeping them from him.”

Bob’s jaw muscles flexed. “If you have any proof, Judge, make your move.”

“If I had any proof, I would be putting you in handcuffs. I’m going to give a curative instruction to the jury to disregard Ms. Ochoa’s testimony regarding the number of complaints received against her. Mr. Byron, it’s not much, the jury’s not going to forget it, but it’s all I can do unless you have a better plan.”

“Tell them why,” I said. “Tell them the company claims they destroy the recordings within thirty days, even though Workforce Services requires them to keep the records.”

Bob shrugged. “Do what you want.”

We began on the workers at Pharma-K the next morning. A few of them had mentioned the poisonings and were told to ignore them because it wasn’t their concern, and I wanted to get those statements to the jury.

The trial had already gone on for weeks, and we weren’t even to the defense witnesses yet. I had lost eighteen pounds because I wasn’t sleeping or eating. Olivia had tried to force-feed me, but I wasn’t hungry. The wear and tear was clear on me. Dark circles smothered my eyes, and I looked weak and pale.

On a Wednesday, we had presented every witness we had. The judge asked if I had any other witnesses. I stood up and said, “Just one, Your Honor. We would call Joel Whiting to the stand.”

During the first few days of a trial, you have enough insight and energy to tell how it’s going. By the second week, it’s tough to tell. By the third and fourth week, you have no idea if you’re winning or losing. You’re just trying to get through without making too many mistakes. That’s how trials are won and lost past the third week: whoever makes the least mistakes wins.

We’d made some mistakes, but overall I thought the case had gone as well as it could. The jury seemed sympathetic to Rebecca, and I don’t think they believed for a second that she was just doing this for money. Still, liability was an issue. It was clear something had happened, but it was difficult to prove exactly what. If the jury thought too long about that, they would find for the defense.

Bob stood up, too. “Your Honor, again, I would renew my objection to this video. It is highly inflammatory and offers little in the way of probative value.”

“I’ve ruled on this twice before, Mr. Walcott. I viewed the video in-camera, and you had a chance to cross-examine Mr. Whiting on video. I will allow it.”

I walked to the jury and pressed Play on the television that was set up in front of them. “Joel Whiting recorded this a couple of weeks before he died.”

I sat back down. The video began.

“My name . . . is Joel Whiting. I’m twelve years old, and I’m dying. People keep telling me that I can make it out of this, but I know I won’t. I can tell from the way people talk to me. My friend Noah said that I should record this video if this case ever goes to trial so that you can hear what I have to say. I don’t really know what to say. I just don’t want any other kids to go through what I’m going through. I’m gonna miss a lot of things, and I don’t want other kids to miss them, too. I don’t know why I’m sick or why they can’t help me, but I don’t want anyone else to go through this. I want to live . . . more than anything. But if I can’t, then at least I can help some other kids to.”

The video went on for another eight minutes. He described taking the medication and what it felt like. He described what the hospital was like, the staff, and what the medication he was taking then felt like. The day after I’d shot my portion, Bob had come to the hospital to cross-examine Joel on video. He asked fifty useless questions in an attempt to tire the boy and get him into a rhythm of saying yes.

“That’s enough, Bob,” I heard myself say on the video.

“I’m not finished.”

“You’re being an asshole. Cut it out.”

The jury chuckled.

“I am allowed to cross-examine this witness.”

“You’re allowed not to be an asshole, too, and I don’t see you taking advantage of that.”

That got another chuckle from the jury, and Bob’s jaw muscles tightened.

The video ended with Joel saying, “Mom, I love you. I know I’ll see you again, so I’ll be good until then.”

Tears streamed down Rebecca’s face. I stared at a spot on the wall, unable to move. Fatigue and emotion choked me. I finally rose and turned off the video.

“The plaintiff rests, Your Honor.”

The defense testimony on a “battle of the experts” case was the same as the plaintiff’s, just in reverse. Bob put on expert after expert, and I asked essentially the same questions he had asked my experts: How much are you being paid to be here? You’ve never testified for the plaintiff in a civil case, have you? Do you make mistakes in your work? What was your last mistake?

I tried to challenge the credibility and motivation of each expert. Some experts were too good, and the best I could hope for was to ask a few questions, score a few points, then sit down before actually bolstering their testimony.

Olivia helped me here. I was just too exhausted to keep going. She picked up the reins and did a fantastic job cross-examining a pharmacist who stated that acetonitrile in the doses found in Herba-Cough Max wouldn’t kill a boy like Joel.

“You being objective, Mr. Brail?” she asked.

“Dr. Brail, and yes.”

“
Mr
. Brail, you make mistakes in your work, don’t you?”

“No.”

“Really? You’ve never made a mistake in your work as a pharmacist or as an expert for the defense?”

“Little oversights, I guess. But I know what you’re asking. You’re asking if my analysis could be wrong, and no, I don’t believe it could.”

“Approach, Your Honor?”

“You may.”

Olivia flashed Bob a document that we’d downloaded from a scientific journal, and then marched to the stand. Because Olivia was using the document to impeach—to call into question the credibility of the witness—we weren’t obligated to send it to Bob prior to the trial. “What is this,
Mr
. Brail?”

He looked at the document. “It’s a paper I wrote ten years ago.”

“A paper on vaccination for HPV, human papillomavirus infection, is that right?”

“Yes.”

“Please turn to page thirty-two of that paper.”

Brail sighed and turned to the page. “Yes. I’m here.”

“Third paragraph, second sentence. Please read it.”

“Patient twenty-six showed signs of irritation in the upper right quadrant of the vulva.”

“What does that mean?”

“It means her vulva became irritated during the study.”

“On the last page, I’ve included a list of the patients. Please tell us the name of patient twenty-six.”

“Counselor, I don’t know what—”

“
Mr
. Brail, please read what I asked you to read.”

He rolled his eyes and flipped to the last page. His face changed. It went from the bored confidence he’d displayed during the rest of the cross, to confusion. He flipped back to another page, and then another.

“You seem concerned,” Olivia said.

“It’s . . . nothing big. Just a typographical error. Must be.”

“Please tell us what the error is.”

He glanced to Bob. “Patient twenty-six is a male.”

“Last I checked, males don’t have vulvas, do they?”

“No, Counselor, they don’t.”

“So that was a mistake, wasn’t it,
Mr
. Brail?”

“Yes.”

“You made a mistake.”

“It’s a minor oversight.”

“This study was published in the
Journal of Vaccination Studies
, wasn’t it? People are going to be relying on this when they make recommendations to parents about vaccinating their young girls. Yet you didn’t know you’d made a mistake until I pointed it out to you.” He remained quiet. “
Mr
. Brail, you wouldn’t know if you’ve made a mistake in your analysis in this case, would you?”

“It’s Dr. Brail, damn it!” he blurted out.

I grinned as Olivia sat back down next to me. I fist-bumped her when the jury wasn’t looking.

The essence of the testimonies of Bob’s experts was that, yes, acetonitrile had been and still was manufactured at the plant in Utah, but foolproof procedures separated the nail polish remover from everything else. Acetonitrile could not have been mixed in with any other product. The quality-control manager of the plant was a good witness and explained, for four and a half hours, the process of the plant to ensure that substances used in one product don’t leak into another.

“If an employee came to you,” I said, “and told you they had tainted children’s medicine with acetonitrile, you would fire that employee, wouldn’t you?”

“Well, yes. We can’t have someone that careless working for us.”

“And if someone didn’t want to get fired, the best way to assure that would be to not tell you.”

He shrugged. “I couldn’t say what another person would or wouldn’t do.”

The back-and-forth on expert cross-examination was trench warfare: each side tried to get just one more point with the jury than the other, and each point had to be clawed and fought over.

Another two weeks went by in a flash. I had accepted that I wouldn’t sleep, so I drank a few tumblers of brandy before bed every night and tried to get as much rest as possible. In the morning, I had just enough energy to throw on a suit—most of the time, I wore the same one I’d worn the day before—and sluggishly make my way to court.

Olivia kept me going. When I forgot to eat, she would make a smoothie for me so I got some nutrition. When I pushed myself too far preparing for the next day, she would close my laptop and make me go outside for a walk with her. When I felt like I couldn’t go on anymore, she would hold me in her arms and tell me to keep fighting. Without her, I knew I wouldn’t have made it through to the second month.

Darren Rucker testified on a Friday. He was my star witness, even though I hadn’t called him. If I had, I could’ve only used direct examination and couldn’t ask leading questions, so instead, I’d let Bob call him. My plan was simple: I was going to hammer him with all 254 email customer complaints and introduce them as evidence—preferably, after he read each and every one to the jury.

“Tell us what happened when you found out about this tragedy, Mr. Rucker,” Bob said to him after about thirty questions.

“I was devastated. I mean, this was the company I’d devoted my life to, and now, here were three little children who were sick because some maniac decided to use us as a murder weapon. I can’t describe to you how awful I felt.”

“What actions did your company take?”

“We set up a task force to deal with this immediately. We hired investigators and worked with the FDA to get everything off the shelves as fast as we could. We were open to the media, we opened our labs to the FDA and law enforcement . . . I can tell you I got very little sleep during that time. Same for the CEO, Mr. Holloway.”

“You did everything you could?”

“We did everything. I don’t even know how much money we spent to stop this. It felt sometimes like Mr. Holloway was willing to go bankrupt if he could save more kids from getting poisoned. We did everything we could.”

Bob nodded. “Do you regret what happened?”

“What kind of question is that? Of course I regret it. If I could, I would gladly give my life to save that boy’s. But life doesn’t work that way. All I know is I went down to quality control after this happened and had them walk me through the process of handling acetonitrile. There is no way any of our acetonitrile got into Herba-Cough Max. It’s impossible.”

“Thank you,” Bob said.

I stood up. “You said the first thing you did was get a task force together, right?”

“Yes.”

I lifted an email off my desk and asked the judge if I could approach the witness. “What is this, Mr. Rucker?”

He looked it over. “It’s an email.”

“It’s an email from you to your head of distribution, correct?”

“Yes.”

“And it’s dated April eighth, correct?”

“Yes.”

“The date after this story became public.”

“I guess so.”

“Please read the email for the jury.”

He hesitated, then began to read. “Taylor, we need to assure everyone that only Herba-Cough Max is affected. I want personal calls to all the major pharmacies and grocery chains. Assure them everything else is fine and testing clear.” He handed the sheet of paper back.

“So the first thing you did was not setting up a task force, was it? It was making sure that your distributors didn’t pull all your products off the shelf.”

“I did a lot of things. It was a chaotic time. None of us were sleeping. We were working tirelessly to make sure everyone was safe. We even asked that all bottles of Herba-Cough Max be disposed of.”