Suzy's Case: A Novel (13 page)

I step off the train, then negotiate an underground maze with the other rat racers and come up the stairs into a large, open square. In front of me is another building from the 1800s with columns supporting a triangular pediment. I can’t get away from these structures. Borough Hall was built as Brooklyn’s city hall containing the offices of the mayor, the city council, and it had a courtroom and a jail—an all-in-one building of city government. Now it houses the borough president, but I’ve never seen anyone go into that place. What I often
see is exactly what I saw on Dr. Laura’s desk—newly married couples photographing their special moment on the impressive entry steps, memorializing the day that will forever change their lives.

To my right is my destination, Brooklyn’s Supreme Court, the building I drove by the other day on my way to meet my soon-to-be ex-expert. I’m in the middle of a trial and the defendants are putting on their expert radiologist this morning. This witness will make or break my case.

I arrive at court early and go up to the fourth floor to wait for things to heat up. With any luck, I’ll settle this case today after cross-examining the radiologist, who also is the last witness in the case. I sit on one of the hard wooden benches that line the corridor just outside Judge Dixon’s courtroom.

I open my bag and take out what I’ve prepared, my outline for my cross-examination. It’s headed “CROSS-ASSASSINATION: RADIOLOGIST FOR THE BAD GUYS.”

As a rule, there’s no way to effectively cross-examine radiologists on what they say they see on X-rays. They come to court and say, “This film is a picture, and this is what I see.” End of story. The more you try to get a radiologist to change his interpretation, the worse the testimony gets for you. It gives them the opportunity to repeatedly pound their findings into the jury’s head. Thus, you have to embrace what they say they see, lulling them into a false sense of security, then proceed with the execution you have planned.

The case on trial is the Connie Cortez matter, another HIC case. It’s the first Henry Benson referral I’ve actually had to take to trial. It’s a hit-in-the-rear automobile accident that took place four years ago, where Connie sustained a brain injury resulting in the loss of her senses of smell and taste. In Supreme Court, Kings County, such a case is litigated in two separate phases. In the first half of a bifurcated trial, the jury decides who’s at fault for causing the accident. If the defendant is found responsible in whole or in part, then a second trial is held with the same jury to determine the extent of monetary damages for the injuries claimed.

In the first part of the trial, the defendant, who’s the spoiled-brat
daughter of a federal court judge, contended that at the time of the accident, my client, Connie Cortez, was not a passenger in the car being driven by her husband but rather a “jump-in” extortionist attempting to perpetrate a fraud upon the court. The term has its roots in the realm of bus accidents, where a person claiming injuries was not on the bus at the time of the accident but rather “jumped in” after the accident occurred.

This defense was based on the fact that Connie Cortez was not at the scene when the police arrived. Her name did not appear on the police report, no ambulance was called or came to the scene, and she did not seek emergency room treatment.

I was not happy about being involved in a case against the daughter of a prestigious federal court judge where the only issue for the jury to determine was whether or not my client was committing insurance fraud. But such is life when you get involved with an HIC.

My key witness to rebut these allegations was one Maddy Hernandez, the Cortez family babysitter. Maddy testified that on the date of the accident, Connie Cortez showed up at her home as she usually did to drop off her nine-year-old daughter, Melissa. On this day, however, Connie had a large bump and bloody cut in the hairline of her forehead and told Maddy she’d just been in a car accident a half block away.

The jury obviously believed Connie Cortez and Maddy, which is why I’m here today on the damages part of the trial.

Last week I put on my neurologist to prove the claim that Connie struck her head as a result of the impact, sustaining a subdural hematoma and brain contusion in the area of her frontal lobe, which resulted in a complete loss of her senses of smell and taste. My neurologist interpreted the brain MRI and circled an area of blackness on the film representing the contusion.

My ass is getting numb from the pressure of the hard bench so I get up and begin my precross, pacing down the long courthouse hall. I see Maddy walking toward me, carrying a brown paper lunch bag. “
Hola,
Maddy,” I say. “
¿Qué tal?
I don’t need you here anymore. The jury believed us, and we won that part of the case last week.”

“Oh, I know.
Qué bueno.
But I want to watch. It’s very exciting.”

As I’m about to respond I see Connie Cortez coming toward me with her daughter in tow. I wait until she pulls up. “Look who we have here as a spectator today, Connie, Maddy.”

“I know. She insisted on coming,” Connie replies. “She’ll sit in the back with my daughter and won’t interfere. I hope that’s okay.”

“Let me mull it over for a second.”

I hear the courtroom door unlock from the inside and the heavy wooden structure opens with a distinctive high-pitched metal-on-metal squeak. The court officer assigned to Judge Dixon’s room sticks his head out. “Hey, youse guys, we’re open for business,” he says with a Brooklyn brogue. “Mr. Wyler, someone called here for you this morning.”

“Who?” I ask.

“She wouldn’t say.” Then he disappears back behind the squeaky door.

I turn to my Latin trio. “Maddy, I don’t think it’s a good idea if you come inside since you told the jurors you were only Connie’s babysitter and not really her friend. If the jury sees you here today, when there’s no legal reason for you to be here, they might infer the testimony you gave last week was really motivated by friendship. If they make that inference they may second-guess their verdict on liability and compromise their verdict on damages, giving Connie less money than they otherwise would have given her, and I don’t want that to happen. I know it may sound strange to you, but you never know what a jury is thinking. So it’s better if you stay out here with Connie’s daughter.”

“Oh, I get chu,” Maddy responds. “I stay outside.”

Inside the courtroom, I sit at the end of the trial table closest to the jury box and Connie sits in the first row of seats closest to the jury. Ten minutes later, the defense counsel arrives with his people. He takes his place at the far side of the trial table, away from the jury box, his expert radiologist takes a seat right behind him in the first row of seats, and the moneyman from the insurance company who’s been monitoring the trial sits in the back row, far side.

“What’s up?” I say to defense counsel in a calm, cheery voice.

“Nothing, Wyler,” defense counsel snorts. “This doctor’s going to sink your case.”

“Okay,” I respond, unimpressed. “You got a couple of poppy seeds stuck in your teeth and a gob of cream cheese on your tie. You mind if I ask your expert a question?”

Defense counsel takes his finger out of his mouth. “Is it about this case in any way, shape, or form, Wyler?”

“Not at all. And please, call me Tug.”

“Go ahead then, but I’ll be listening.”

“Thanks, and there’s still a big seed caught between your two front teeth.” He gives me a smirk. He has no idea what’s coming.

I turn back to the radiologist. “Good morning, Doctor. I hope your trip here was a pleasant one.”

“Good morning,” the doctor replies. “My trip here was pleasant. Thank you for asking.”

“Not at all. Being in court can be stressful in and of itself, and the last thing you want to have to start your day is a messy commute.”

“I couldn’t agree with you more.”

“Doctor, on my way here this morning I was reading some medical literature on an unrelated matter and I came across a term I’m unfamiliar with. Do you think you could give me a medical definition for the word if I told it to you?”

“Maybe. What’s the word?”

“The word is orchiectomy.”

The doctor smiles knowingly. “Yes, that word pertains to an operation where the surgeon takes off one or both of a man’s testicles.”

“Thanks, Doc.” I turn back around seemingly satisfied with his superior store of knowledge.

Defense counsel spends two hours on his direct examination of the radiologist. In sum and substance, the radiologist testifies that the MRI does show evidence of a brain lesion in the frontal lobe, but that the cause, or etiology, of it is remote in time. That, in his expert opinion, Connie Cortez must have sustained some form of head trauma when she was a little girl by falling off the bed or some other traumatic event of the sort that happens to infants and young children. He stated
with a reasonable degree of medical certainty that this lesion is in no way from the accident that gave rise to this lawsuit.

Defense counsel sits down and Judge Dixon looks at me wearily. “Counselor, do you need a break before your cross-examination?” That’s the question judges ask when they think you need time to recover after a witness kills your case. Dixon has just heard testimony that, in the absence of my cross-examination, seems destined to send me and Connie Cortez packing
sin dinero
.

“Judge,” I state for all to hear, “if this witness or a member of the jury needs a break, then let’s break. Otherwise, I’m ready to cross-examine the doctor.”

Judge Dixon inquires, “Does anybody need a break?” All heads shake in the negative, and he looks back at me. “He’s your witness, Mr. Wyler.”

As I begin to stand up I hear that distinctive high-pitched squeak and jerk my head toward the source, as do the judge, the jury, the court officer, the court clerk, the insurance guy, and the defense counsel. The big wooden door slowly opens and in walks June Williams. Surprise, surprise. She takes care to close the door quietly behind her. We make brief look-away eye contact just before she sits down.

Judge Dixon addresses June. “Excuse me, miss, do you have any connection with this lawsuit?”

“No, sir,” June answers. “I’m just a student of the law and would like to observe this trial if that’s okay with Your Honor.” She looks the part in a dark blue pantsuit with a gray pinstripe.

“You’re more than welcome to stay, then. Civil trials are a matter of public record.”

“Thank you, Your Honor.”

“If you have any questions after this is over, I would be more than happy to answer them in my chambers.”

“Thank you, Your Honor. I’ll let you know.”

Judge Dixon addresses me. “He’s your witness, counselor.”

I get up. “Your Honor, would you mind if I questioned by standing in front of this table?”

“Stand wherever you want, Mr. Wyler.”

“Thank you, Your Honor.” I move around the trial table. I look at the radiologist, we lock eyes, I smirk, he nervously wipes his forehead. My cross begins appearing on my laptop’s screen in real time because it’s plugged into the court reporter’s steno machine. As I do my thing, my questions and his answers would read like this:

Q: Good morning, Doctor.

A: Good morning.

Q: We met a little earlier, did we not, before you took the witness stand?

A: Yes, we did. Right here in this courtroom.

Q: You were nice enough to answer a question I had regarding a certain medical definition unrelated to this case.

A: Yes, I was.

Q: I’d like to thank you for being kind enough to help me out, given that you are coming into this courtroom today against the interests of my client.

A: Not a problem at all.

Q: Now, I think you and I are going to agree on everything here. Would that be okay with you?

A: That would be fine with me.

Q: Then let’s start agreeing, shall we?

A: Fine.

Q: If I understand your testimony properly, it is your position that there is, in fact, a brain lesion on that MRI, correct?

A: Correct.

Q: No issue for these jurors, then—we all agree Connie has a brain lesion, correct?

A: Correct.

Q: The location of that brain lesion is in the inferior frontal lobe, correct?

A: Correct.

Q: Structures in that area of the frontal lobe translate taste and smell, correct?

A: Correct.

Q: A lesion like the one we see on the MRI can be responsible for the loss of the sense of smell, correct?

A: Yes it can, but sometimes there can be no problems.

Q: Be patient, Doctor, we’ll get to that.

A: Okay.

Q: When there’s a loss of sense of smell, everything tastes like cardboard, correct?

A: Correct.

Q: The joys of eating are gone, correct?

A: Correct.

Q: Now, it’s your position that this brain lesion is not from the accident of four years ago, but rather from some head trauma Connie must have sustained as an infant, correct?

A: Correct.

Q: Can we agree it would be improper for this jury to give Connie money for injuries that are unrelated to this accident?

A: Well, I’m not a lawyer, but it’s common sense that she should only get money for injuries that are causally related to this accident.

Q: I couldn’t agree with you more, Doctor. So far you and I have agreed on everything, correct?

A: Correct.

Q: Doctor, let’s assume you are right that this brain lesion occurred when Connie was a child, okay?

A: Okay.

Q: Doctor, you of course have heard the terms
asymptomatic
and
quiescent
as they relate to brain lesions just like the one you see on Connie’s brain MRI?

A: Yes, of course I have.

Q: Tell the jurors what this means, in your own words, Doctor.

A: Someone can have a head trauma, develop a brain lesion like the one we see in Connie’s films, but never have any signs, symptoms, or complaints related to its presence.

Q: In other words, Doctor, someone can have a brain lesion in the exact location we see in Connie’s films and never have even one single complaint or even know it’s there, correct?