Wrongful Death: The AIDS Trial

by Stephen Davis

  Chapter Two

  “Good morning, ladies and gentlemen. My name is Benjamin Messick. I am the attorney for the plaintiffs. We are the ones who brought this class action suit against the defendants.”

  Benjamin Messick is at the lawyers’ lectern, situated between the plaintiffs’ and defendants’ tables in the center of the courtroom, addressing the jury seated in their box to his right. Well-groomed, with hair reminiscent of John Kennedy, he’s in his mid-thirties and obviously works out regularly. Although on the shorter side in height, his voice is strong and deep with an underlying tone of sincerity that begs to be believed, and it would be difficult for any juror not to like this man or, at a minimum, listen carefully to what he has to say.

  At least, that’s Sarah’s impression as she sits near the back of the courtroom. She takes a minute to look around at this very creative, circular structure used mostly for swearing in new American citizens, ceremonial proceedings, and an occasional appeals hearing. But it is also the perfect venue for large, high profile trials like this one, with its state-of-the-art audio, video and digital capabilities. A glass cylinder one-hundred feet in diameter and one-hundred feet high starting on the second floor of the Federal Courthouse and reaching all the way to the top of the building, this Special Proceedings Courtroom is paneled ten-feet high all around with Anigre wood from Africa and capped with a million dollar suspended glass ceiling that costs $4000 just to clean. Sarah heard that window washers have to crawl across the top of the laminated glass with towels and window spray.

  The biggest problem is the lack of adequate space for spectators, especially for a case that is drawing as much attention as this one. Every media in the world wants a seat, and therefore all six district courtrooms on the fifth floor of the Federal Courthouse were converted to closed-circuit coverage that will be different from the live TV feed to commercial stations. This allows a reporter to be there in the courthouse, see everything that goes on, and still be able to participate in the typical press conferences that will undoubtedly occur on the steps leading down from the Special Proceedings Courtroom into the huge atrium on the ground floor of the building.

  Fortunately, it’s October, and the temperature is not that hot, because the heating and cooling system in the atrium hasn’t worked right from the very beginning. Inspired by the misting system at a Hooter’s Restaurant in Phoenix, the architect decided to use the same concept to keep summer temperatures down in the new courthouse. As one reporter put it, “What we got for our money was a giant atrium that is hot in the summer and cold in the winter. It would have been cheaper, more comfortable, and a lot more interesting to hold court at Hooters!”

  Sarah’s attention returns quickly to Messick, who is laying the foundation for his case.

  “First, this is a class action suit. That means that we are suing on behalf of a lot of people, not just one. In fact, we intend to prove to you that at least 300,000 Americans, mostly young men, died as a result of what the defendants did in a ten year period from 1987 to 1997.” He looks up from his notes, and slowly and with emphasis, punches his next line. “300,000 young men and women died in that decade. That's five times the number that was killed in the entire Vietnam War.”

  There’s no doubt the jury is getting his point, even though some of them are too young to remember that tragic conflict. He makes a good presentation, Sarah thinks. She also knows he has the attention of the millions of people around the country watching the trial on TV, for Judge Watts could not have kept this trial off the tube even if she wanted to. From New York to San Francisco, from Miami to Maine, estimates were that as many people in the U.S. were watching the opening day of this trial as watched the Super Bowl last year, despite the fact that it was being aired live during mid-day work hours, East Coast time. Pre-trial hype had done its job, but Messick seems to be unperturbed by it all.

  “The hardest thing we had to do next was determine what a human life is worth. Imagine trying to do that yourself. What would your life be worth to you, and to your loved ones left behind? A million dollars? Ten million dollars? One hundred million? Whatever number we came up with would be somewhat arbitrary. But from previous lawsuits and insurance actuarial tables in the United States, we settled on the amount of ten million dollars for one human life, lost forever. Does ten million dollars seem like a lot? Well, it won't, I don't think, when I show you exactly how these defendants,” pointing to the men seated at the table to his right, between him and the jury, “took forty, often fifty years of life from these victims and their families. Most of the young men who died were in their twenties or thirties – the prime of life, as we like to call it. Yes, I firmly believe you will decide that that is worth at least ten million dollars.”

  Messick looks around the jury box to see what kind of response he’s getting so far. When he decides they’re with him, he continues.

  “From there it was pretty simple math, although the numbers were large. Ten million dollars times 300,000 deaths. ­That's 3 trillion dollars. Not million, not billion, but trillion. And that's one reason this is the biggest trial in history.” Messick pauses for effect.

  “But there's another reason: the defendants themselves,” and he again points to the defendants’ table, packed with suits. “You see at that table a former employee of the National Institutes of Health, Dr. Robert Gallo, the man who once claimed he discovered the cause of AIDS. Alongside him is a lawyer representing the Department of Health and Human Services of the United States government. And then there is another lawyer representing the Food and Drug Administration, the FDA. And beside him is a lawyer representing a private drug company called GlaxoSmithKline, which used to be known as Burroughs Wellcome. But this is not just any drug company; this is one of the richest drug companies in the world. What do all of these defendants have in common? They were the main figures in the medical disaster that resulted in the deaths of 300,000 young Americans, who died, according to their diagnosis, from AIDS.”

  It didn’t take long for Messick to get to the point, Sarah thought. And why not? Everyone knows the issues in this trial, and there’s no reason to avoid going straight for the jugular. Messick once again focuses on the jury.

  “We will prove to you that these 300,000 men and women were misdiagnosed based on the incompetence and negligence of, primarily, Dr. Robert Gallo and the Department of Health and Human Services, which then led to the improper approval of a drug called AZT by the Food and Drug Administration; which then led to the manufacture and distribution of the drug AZT by the drug company at that time called Burroughs Wellcome. We will then prove that AZT was inappropriately but intentionally given to these 300,000 young men and women, and that it was the AZT and nothing else that caused these victims to develop AIDS and die.”

  Messick pauses to give that time to sink in. He sees a couple of the jurors look at each other with raised eyebrows. This is obviously the first time any of them has been exposed to this idea, and he decides that he needs to repeat that just to make sure they got it. “Yes, you heard me correctly. We are going to show you that the vast majority of deaths from AIDS in this country from 1987 to 1997 were caused by taking the very drug that was supposed to treat AIDS and not from the virus called HIV.”

  There’s a strange, almost sickening feeling in Sarah’s stomach, as if she were about to vomit. Must have been the day-old scone she ate driving downtown. I should take as good care of me as I do Bill and the kids, she reminds herself. She knows, of course, that Messick is wrong. Dead wrong. Like 99% of the rest of the world, she understands that HIV causes AIDS, and that’s all there is to that. End of story. So why, in addition to the nausea, is she beginning to feel afraid, as if some unknown monster is lurking just around the corner?

  Messick, meanwhile, is still talking.

  “…going to try to keep everything as simple as possible and stay away from complicated medical terms and discussions. But there will have to be some of that. For example, we're going to start off talking a bi
t about the human body, and the immune system, and what AIDS actually is. Then we...”

  I know what AIDS is, Sarah says silently to herself, but wishing she could say the same thing to Messick out loud. In fact, she is all too familiar with this fatal disease, both on a professional and a personal level. She had even done a lot of volunteer work in AIDS clinics, especially after losing her brother. As memories begin to come flooding back, Sarah forces her attention back to Messick, who is still explaining to the jury what to expect from him in this trial.

  “...show you actual video tape from 1984 of Dr. Gallo announcing to the American people in a press conference that he had discovered the cause of AIDS, a retrovirus later to be called HIV. We'll prove to you that this retrovirus Dr. Gallo took credit for discovering, first of all, was not his discovery at all, but something he stole from a French scientist named Dr. Louis Moreau, and that this retrovirus could not possibly have anything to do with causing the disease of AIDS, either then or now, as even Dr. Moreau later agreed. The facts we will present will be shocking in terms of the pride, the greed, the arrogance, the incompetence, and the gross negligence that led to this completely self-serving behavior on Dr. Gallo's part. Then we will...”

  Sarah didn’t expect that. Why would Messick think he could get away with attacking a brilliant and award-winning scientist like Dr. Gallo? What’s his point? Sarah already knew that Dr. Moreau was eventually recognized and given a major share of the credit with Dr. Gallo for the discovery of HIV, so that wasn’t new. But what did Messick call HIV? A retro-virus, or something like that? She had never heard that term before. She wrote it down to look it up later.

  “...internal memos and other documents proving that the FDA short-cut its usual drug approval procedures to allow AZT to be given to patients who were HIV-positive, even though this same drug AZT had been rejected as far too toxic for human consumption just twenty years earlier, when it was developed as a treatment for cancer. We will ask the FDA how it could possibly approve a drug designed to attack cancer cells which were multiplying uncontrollably, to now treat a disease – AIDS – whose cells were dying uncontrollably. I really look forward to hearing someone try to explain that logic.”

  Messick stops again to check the faces of each juror. Has he gone too far? Too fast? Are they listening? Are they following? These were such critical points, such important questions, that virtually no one had asked in the past thirty years. No, that’s wrong. There were indeed some people who had asked, like Dr. Peter Duesberg; so it is more correct to say that these are critical and important questions that no one in authority has properly answered in the past thirty years. Hopefully this jury would be different.

  Sarah can’t answer Messick’s last question either, and it bothers her. As a health reporter, she should know the answer. Better make sure she finds out tonight, and she underlines the word tonight on her yellow pad. After all, that’s her job.

  “...literally paid the homosexual community to take AZT, through the placement of expensive ads and other benefits. We will show you that this drug company, Burroughs Wellcome, knew all along that AZT would destroy a human's immune system, and yet continued to push for young men and women to take AZT even if they had no symptoms of AIDS, simply because they were HIV-positive, to the tune of four billion dollars in sales.”

  “Objection.”

  As the lawyers argue, Sarah’s mind wanders again, back almost fifteen years. It’s a time and place she’d rather not go, and she’s relieved when the Judge finally rules in Messick’s favor. She forces her thoughts back into present time and realizes Messick sounds like he’s winding down.

  “...never forget that line in the movie, Jerry McGuire, ‘Show me the money!’ Well, I intend to show you where the money was in the case of AIDS, and how it resulted in the wrongful death of 300,000 young men and women. And when I'm finished, I'm going to ask you to take that money back from this pharmaceutical company, GlaxoSmithKline, and Dr. Gallo and the FDA and the Department of Health and Human Services, and give it to the families of those who died such a horrible, needless, and wrongful death.”

  But now Sarah’s not sure whether Messick is finished or not. He’s still leaning on the jury rail, appearing to be searching for his next words. Finally he turns, walks to the plaintiffs' table and stands behind the only chair there. Sarah makes some notes: “one chair for the plaintiffs…compare that to the more than half-dozen at the defendants’ table and half-dozen more in the row directly behind. Looks almost like a David and Goliath thing….”

  When Messick doesn’t move or begin talking again, the Judge quietly asks, “Counselor? Mr. Messick?”

  Messick comes out of his daze. Whether real or created for effect, Sarah will never know. He looks at the Judge and finally takes his seat.

  Judge Watts begins to explain, but only gets as far as, “That's all we're going to do this morning…” before pandemonium erupts and the press is on their feet storming the courtroom door trying to be the first out to file the story.

  “…back after lunch at two p.m. for the opening statement by the defense. Court is in recess.” Neither the Judge nor the gavel can be heard over the noise.