by Scott Turow
No chance he’d remember that. Things were a scramble.
“A thousand would be a very good price for such tests, Pinky.”
“Yeah,” she says, “it was more.”
No point in asking how much more. It is already done, and Stern’s native frugality has always ended with his grandchildren. Marta, who rarely allows Pinky’s missteps to pass, will show him the bill eventually, in any case.
“And have you given any thought to the next move, now that you have this information?” Stern asks her.
“I’m going to go back to the Greenwood cop and see if she can look through the DMV records and scope out how many white 2017 Chevy Malibus are registered around there.”
Stern nods. He would bet there are hundreds, if not thousands, of white 2017 Malibus in the vicinity, which would make further investigation impractical. But failure is such a frequent outcome for Pinky that he keeps his thoughts to himself.
“Well, I shall look forward to hearing what they say,” he answers.
Pinky smiles, clearly happy to have escaped any upbraiding for spending too much money on the paint analysis. He briefly grasps her hand, washes out his soup bowl, and goes off to his bedroom with his laptop to study for tomorrow before he is reclaimed by sleep.
9. Day Three: Experts
Dr. Bonita Rogers is called next by the government. Feld asks the questions necessary to qualify her as an expert on pathology, and she then testifies that she has examined the postmortem reports of all seven victims named in the indictment and their extensive medical histories. Based on that, Dr. Rogers has reached the opinion that all expired due to a severe allergic reaction to g-Livia.
Stern has done battle with Dr. Rogers before. She is in her early forties, shapely and with hair as orange as an orangutan’s, as well as large green eyes that stand out in a starkly pale complexion. Good-looking witnesses—like good-looking lawyers—often have an advantage because they hold the jurors’ attention. Yet over the years, Stern has found that pathologists, whose practice often concentrates on the dead, occasionally prove to be socially inept, and in Dr. Rogers’s case the good impression she makes does not last long.
“Dr. Rogers,” Stern says, rising cumbrously for cross. As an accommodation to Stern’s age, the judge has offered to allow him to question witnesses from his seat. Notwithstanding the round of laughter he got, Stern meant it when he told the judge that he did not think his brain would work as well with his backside pressed into a chair.
“Mr. Stern.” Rogers smiles, but the fact that she knows his name without an introduction is a good sign to the jury that this is another episode in a long-running contest.
“Now, Dr. Rogers, is there no medical treatment for an acute allergic reaction?”
“There are treatment options. But the physician needs to recognize what is occurring. Without proper warnings about the possibility of an allergic response to g-Livia, that was far more difficult.” That was the prosecutors’ point in calling the treating doctors yesterday, so they each could say they’d been utterly baffled.
With Dr. Rogers’s testimony, both sides are walking a very narrow bridge over dangerous seas. The prosecutors have charged only seven deaths in their indictment, even though by the time g-Livia was withdrawn from the market, there were more than one hundred fatalities for which anaphylaxis—meaning allergic shock—was the suspected cause. In the indictment, Moses named only the most unambiguous cases, where the deaths were precipitous, the patients had the clearest expectation of living longer, and the attending doctors and the family members would make the deepest impression on the jurors. (Kiril is not charged with homicide for the twelve sudden deaths during the clinical trial, because he had no warning at that point of potentially fatal problems.) Any testimony from Rogers referring directly to the other postapproval deaths will lead to a mistrial motion from the Sterns, claiming Kiril is being tried for uncharged crimes. The defense, therefore, must do nothing on cross-examination that would make it fair for the prosecutors to refer to the many other fatalities.
“Now, you are not trained as an allergist, Dr. Rogers, are you?”
“No.”
“Well, if any of the next questions are beyond your competence, Dr. Rogers, please say so.”
The word ‘competence’ provokes a glower.
“Did you, as an expert, conduct a search for other allergies these patients might have had in common?”
“I read their medical histories.”
“But to render your opinion, you did no investigation beyond that?”
“Right.”
“Do certain foods trigger serious allergic responses that are known to come on suddenly later in life?”
“I guess that happens.”
“Are shellfish allergies, for instance, known to develop that way?”
“I’ve heard that, but as you say, Mr. Stern, I’m not an allergist.” She offers a little smart-ass grin.
“Do you know whether any of these seven people who you say died from g-Livia—do you know, for example, whether they had eaten shellfish within twenty-four hours of their deaths?”
Rogers smirks. “I doubt it.”
“You doubt whether you know or whether they ate shellfish?”
“Shellfish.”
“Based on what evidence?”
“It’s not in their medical histories.”
“Yet the entire basis for your testimony is that the treating physicians didn’t recognize that they were dealing with an allergic response. So they would have had no basis to ask about what the patient ate, correct?”
“I guess,” she says. “But it would be quite a coincidence if all seven of these people had eaten shellfish.”
“But there are many other agents known to cause sudden and fatal allergic responses, are there not? Tree nuts? Pesticides? It is a long list, is it not? And you do not know for certain whether these seven people might have developed late-life allergies to something other than g-Livia, correct?”
Rogers reluctantly agrees.
“Now, you told us that there were no proper warnings about the possibility of an allergic response to g-Livia. Do you recall saying that a moment ago?”
“I do.”
“What is the product insert, Dr. Rogers? Are you familiar with that term?”
“Of course,” she answers. A snide wince shrinks one side of her face. “A product insert, a PI, is all those pages of small print you receive in the prescription box.”
“May I show you the PI for g-Livia? Marked as Defense Exhibit-1?” After a few more preliminaries, Stern asks Dr. Rogers to read aloud a sentence that is highlighted from the PI on-screen.
“g-Livia is a monoclonal antibody. mAbs have been known to cause serious allergic reactions in some patients.”
It was Pinky, shockingly, who’d found this note. She can’t put papers back in the correct file, yet, a bit of a savant, she can digest pages of small print with remarkable speed.
“So there was in fact a proper warning about potential allergic reactions that accompanied g-Livia?”
“I’m not sure I’d say that.”
“Really? Is there something improper about that warning?”
“It’s standard, Mr. Stern. It’s like the side-effects warnings you hear on TV commercials that no one pays attention to.”
“Certainly, if you had a patient experiencing a reaction you could not understand, the PI would be a good place to look for a possible explanation?”
“If a patient is in crisis, I’m not sure that’s the time to try to read eight pages of mice type.”
“Yes or no, Dr. Rogers, would a good doctor look at the PI if the doctor had any thought that a medication might be causing the patient’s crisis?”
“A good doctor might do that. In my view, it doesn’t make you a bad doctor if you don’t.”
“Now, you told me before that there are treatment options, if a doctor recognizes a severe allergic reaction. Please describe them.”
She mentions massive doses of antihistamines and epinephrine.
“And if those treatments had been administered, could they have saved any of the seven patients named in the indictment?”
“There is no way to know, Mr. Stern.”
“I did not say ‘would,’ Dr. Rogers. I asked ‘could.’” The more uncooperative Dr. Rogers is—and she is inevitably combative—the better for the defense. “Are there cases in the medical literature where patients with these symptoms have been treated with antihistamines or epinephrine or stimulants and survived?” Stern is careful to ask about the literature and not other g-Livia cases. Alert doctors saved hundreds of g-Livia patients, but mentioning that would open the door to talking about other deaths as well.
Rogers answers that there are such cases.
“And in the event of those treatments, is it true that the probability of death by allergic response is reduced?”
“‘Probability.’” She clearly doesn’t know it is a loaded word. In order to convict Kiril of murder, the jury will need to find that he recognized a ‘strong probability’ of fatalities. “The probabilities are reduced, yes.”
Stern stops and angles his face to the side, so the jurors know this is an important answer, then takes his seat.
The prosecution has made a better choice with their next witness, Dr. Bruno Kapech. Kapech is an oncologist and epidemiologist called to testify about cancer survival rates and the prospects that each of the seven patients named in the indictment would have lived longer had they not been treated with g-Livia. In an unfortunate coincidence for the defense, Kapech is, like Kiril, a chaired professor at Easton Medical College. His testimony comes with the implication that those who know Kiril best have turned against him. Pafko has told the Sterns that, as you would expect, there is no love lost between Kapech and him, although the grudge has nothing to do with medical judgments, but rather a factional dispute about the choice of the current dean of the med school.
Nevertheless, Kapech smiles briefly at Kiril as he assumes the stand. Kapech is in his midfifties, gray and overweight with a black goatee. In his thick Israeli accent, that turns short vowels into long ones and all r’s into a faint growl, Kapech explains his extensive educational background and his board certification in three different areas. Next, Feld elicits a concise description of how cancer survival rates are calculated. Among stage 2 patients with non–small-cell lung cancer, the rates vary depending on age, race, and gender, the size of the tumor first discovered, where it is within the lung, the number of lymph nodes affected, and even the date of diagnosis, since survival rates, blessedly, are on the rise. Following that, Feld has Kapech explain the accepted treatment before g-Livia: surgery then chemo with one of several agents, the regimen Stern first underwent himself.
That done, Kapech moves on to the prospects for survival of the seven ‘victims’ named in the indictment. The most recent data from the National Institutes of Health indicates that 52 percent of stage 2 patients would live twenty months or longer, he says; 36 percent would make it to the five-year mark. Going through the variables he’s already listed, Kapech predicts that the median survival time for each of these patients would be even longer than indicated by the general data.
Marta is usually better with technical witnesses, but the Sterns agreed that Sandy may have an edge with Kapech, whom Stern has met at a number of Easton events. Always a supporter of the university whose education changed his life, Stern, since receiving g-Livia, has made several large donations to the medical college. He has chatted with Kapech, a vice dean, at a few fund-raisers, conversations that inevitably turned to Stern’s own condition. When Stern rises for cross, Kapech offers a warm smile.
“Sandy,” he says. “They tell me I should call you ‘Mr. Stern’ today.”
“And I shall call you Dr. Kapech.”
Kapech nods, even offers a brief, jovial laugh.
“So let me ask you about the first of these deaths we heard about. Mr. Herbert Colquitt, this gentleman from Mississippi. How long exactly would Mr. Colquitt have lived, if he had not been treated with g-Livia, but rather one of the standard therapies you have described?”
Kapech, who does not mind hearing himself speak, repeats his answers about his calculation of Mr. Colquitt’s median survival time—thirty-seven months.
“Meaning,” says Stern, “that according to the studies, and taking account of all the variables you identified, if we had, say, a thousand people just like Mr. Colquitt, half would live longer than thirty-seven months and half less.”
“Yes.”
“But let us talk, please, about Mr. Colquitt. How long would he have lived?”
Kapech responds with a patient smile. “I can’t tell you how long I will live,”—‘leef’ Kapech pronounces the word—“or you, Mr. Stern. I can only tell you what the studies show.”
“Are you saying you don’t know how long Mr. Colquitt would have lived?”
“I gave you my answer.”
“Which is that you don’t know, Doctor, correct?”
Feld objects that Stern’s question was asked and answered. In order to keep trials from going on forever, a lawyer may ask the same question just once.
The judge intervenes: “Do you know exactly how long Mr. Colquitt would have lived, if he hadn’t been treated with g-Livia?”
“Of course not,” says Dr. Kapech. He then turns back to Stern.
“Now, Dr. Kapech, how many stage two patients who get one of the other standard therapies—how many live less than the fourteen months that Mr. Colquitt survived?”
“I don’t really know. I can look, if you like.”
“Please do.”
Even Kiril grants Bruno’s expertise, but Kapech does not commonly testify as an expert and he is unfamiliar with the stagecraft of trials. Rather than consult the armload of books and papers he brought with him into the courtroom, he reaches into the inner pocket of his suit coat for his phone and pokes at it for quite some time. In the interval, Stern sees a couple of the jurors, who seem to have bonded, exchange a look. The two, a middle-aged African-American man and the younger guy with the ponytail, share smirks, apparently amused that a supposed expert goes no deeper than what shows up on his phone.
As Kapech continues swiping and scrolling, it suddenly strikes Stern how truly odd it is to be talking about stage 2 non–small-cell lung cancer as something that happens to other people. He, in fact, is one of these statistics. When the word ‘cancer’ came out of Al Clemente’s mouth, it was as if a comic book monster had exhaled a dark poisonous fog. His heart pinched in his chest, and Stern’s breath left him. Truly, here was what the wordsmiths had in mind when they referred to ‘a dread disease.’ Cancer, Stern learned, was anxiety as much as physical symptoms. What seemed worst, as the diagnosis settled into him over the next days, was not merely that he was dying, but that he would not die well. Treatment for malignancies had become only a little better than the tortures of a CIA black site. Chemotherapy, unbearable nausea, surgery, disfigurement. His heart went out to Helen, who, being brave and loyal, would have to put up with all of this. He wanted to encourage her to treat him like a Spartan elder and drop him on a mountainside. Yet perhaps the worst part of all was facing the fact that he was not courageous enough to do that willingly. Like most humans, he would struggle to go on, beg for his life as it were.
“The National Cancer Institute says that for all lung and bronchus cancers, forty-seven percent of patients live one year.”
“Fifty-three percent do not?”
“Yes, but survival rates are higher for non–small-cell than small-cell cancer. And eight of nine lung cancers are NSC. Then about thirty percent are diagnosed at stage two. Based on the available data, I’d say ballpark that fewer than thirty percent of stage two patients expire before fourteen months.”
“So going back to Mr. Colquitt, the gentleman from Mississippi, there’s a thirty percent chance that he wouldn’t have survived the fourteen months that he did on g
-Livia. In that range?”
“In that range. But let’s be fair to everyone and say twenty-five to thirty percent.”
Kapech means to be evenhanded, but his willingness to bargain with the truth is one more thing that might inspire the jurors to doubt him.
Across the courtroom, Stern stops to scrutinize Kapech. He clearly enjoys being known as the great authority, but whatever his gripes with Kiril, Bruno certainly doesn’t appear to be slanting the data. Stern’s sense is that if he solicits opinions from Kapech, rather than challenging the ones he’s offered, Kapech will remain friendly. Lawyers are always taught not to ask a question on cross-examination to which they don’t know the answer, but Stern’s instinct is that there is an opportunity for the defense here.
“So you would say as an epidemiologist, Dr. Kapech, that there is a strong probability that Mr. Colquitt or anyone else diagnosed with stage two non–small-cell lung cancer would live longer than fourteen months?”
Kapech pulls a mouth. “I can’t say a ‘strong probability.’ A good chance, yes. A strong probability, no. It’s all semantics, of course, but to me a strong probability is closer to eighty-five to ninety percent.”
The jury doesn’t get it yet, because they have not been instructed on the law. Right now, this back and forth between Stern and Kapech probably sounds like nitpicking. But if there was not a strong probability that the victims named in the indictment would have lived longer than they did, Kiril could not have committed murder. You can’t kill a ghost. Bottom line, the government’s main epidemiological expert has just testified in effect that Kiril is not guilty. When Stern turns briefly, he sees that Marta has lifted a hand to her mouth to conceal a smile.
Having scored like this, Stern knows that he should sit down. But he has that feeling of momentum he has often experienced during a successful cross-examination.
“Now, to be clear, Dr. Kapech, patients diagnosed with stage two non–small-cell lung cancer have a very serious disease, which unfortunately is likely to end their lives eventually, no matter what the treatment.”
“I can’t disagree,” says Bruno Kapech.
