Dead Man's Rule

by Rick Acker

  “Mr. Corbin doesn’t have a case to put on, Your Honor,” retorted Simeon. “That’s the point of our motion, and that’s why we ask you to rule on it today. There are two crucial points that he does not and cannot dispute. First”—he held up a finger—“the Dead Man’s Rule prevents Dr. Ivanovsky from testifying. Second”—another finger—“without Dr. Ivanovsky’s testimony, the plaintiff has no case. Mr. Corbin understandably would like the Court not to rule on this motion today, but the only ground he cites for delay is his hope that additional discovery will somehow uncover a new keystone to his case to replace his client’s inadmissible testimony. It will not, and even Mr. Corbin cannot articulate why he thinks it would. Further delay will only waste the time and resources of the Court and the parties. We ask that the Court enter summary judgment.”

  “Anything further, Mr. Corbin?” asked the judge.

  Ben had already run through all of his points twice during the half-hour oral argument. Doing it again would irritate the judge. “No, Your Honor. We believe the Court should deny the motion or at least put it over until trial.”

  “Okay, here’s my ruling. I’m going to grant the motion and enter summary judgment in favor of the defendant and against the plaintiff. I am not a fan of the Dead Man’s Rule, but I am bound by it. It’s clear that the rule bars Dr. Ivanovsky’s testimony. It’s also clear to me that the remaining admissible evidence is not sufficient to allow the plaintiff to prevail at trial. Normally, I wouldn’t enter judgment without a full briefing, but frankly I don’t see what more briefing would contribute, given the clarity of the law and the facts in this case. Summary judgment is therefore appropriate.”

  Ben had expected to lose, but it still stung. The judge looked at him as he continued to rule from the bench. “However, Mr. Corbin, I realize that this motion only got dropped on you yesterday and that you haven’t had a chance to adequately respond. Mr. Simeon was right to bring this issue to my attention promptly, but you still got sandbagged. I’m not unsympathetic to that fact, so I’m going to hold the effect of my ruling in abeyance for seven days. That will give you a chance to file a motion for reconsideration if you can find valid grounds for one. I don’t think they exist here, but I’m willing to let you try.

  “Thank you both. Draw up an order and bring it back to my chambers for me to sign.”

  The judge got up and left Ben and Simeon to haggle over the exact wording of the order. As the two lawyers sat down to write the judge’s ruling on one of the blank forms from the clerk’s table, Ben glanced over at his client. Dr. Ivanovsky’s face was slack and deathly pale. He was shaking.

  CHAPTER SIX

  A PRAYER FOR THOSE WHO HAVE NOT DIED

  By the time they returned to Ben’s office, Dr. Ivanovsky had started to recover from the shock of losing and was peppering Ben with questions again. Ben told him that they had two options. First, they could file the motion to reconsider suggested by the judge, though Ben didn’t think that would work. He hadn’t had time to research the Dead Man’s Rule exhaustively, but he doubted that there were any major arguments that he hadn’t already uncovered. A motion that merely rehashed and expanded on the points he had made that morning would likely lose.

  The second option was worse. They could file an appeal in the First District Court of Appeals, but to succeed they would have to convince the appellate court to keep the TRO in place until the appeal could be fully briefed and heard, which the court was unlikely to do. Then they would have to also convince the appellate court that the highly respected Judge Harris had made a mistake, which was even less likely.

  “So no matter what we do, we probably lose?” asked Dr. Ivanovsky after listening to his choices.

  “I’m afraid so.”

  Ivanovsky pulled off his cap and started wringing it with white-knuckled hands. “Can we win if we give this Judge Harris some money?”

  “What? No, no. First we would lose, then we would go to jail. Besides, I don’t practice law like that.”

  “But I have read about Chicago judges,” persisted Dr. Ivanovsky. “The papers say that—”

  “Don’t believe everything you read,” Ben said, cutting him off. He was having renewed doubts about representing this man. “There are some dirty judges in the system, but I’ve never seen or heard of any judge I know taking a bribe. And even if I thought a bribe would work—which I don’t—I wouldn’t do it. In fact, you could probably go to jail just for asking me to bribe a judge.”

  Dr. Ivanovsky looked down. “I am sorry. I am talking crazy because I am afraid to lose.”

  “Don’t worry about it,” Ben replied. “I don’t like losing either, but I’m afraid that’s what’s going to happen. Nicki Zinoviev’s death probably also means the death of your case.”

  Dr. Ivanovsky’s head remained bowed, and he folded his hands on the conference-room table. He sat silently like that for some time, then his shoulders began to shake again and his breath came unevenly. Ben suddenly realized that his client was praying and weeping. After an unnerving minute and a half of silence, Dr. Ivanovsky said in a ragged voice, “Why did Nicki have to die?”

  “I . . . uh, I’m sure he would be touched by your concern and . . . and your prayers.”

  “I do not pray for the dead,” Dr. Ivanovsky said hoarsely. “I pray for those who have not died. We have failed—I have failed. And now many will die. Nicki was only first.”

  The muscles in Ben’s stomach and shoulders clenched. “What do you mean?”

  Dr. Ivanovsky took a deep breath and looked up. His face was wet and blotchy, and his eyes were streaked with red. “I have lied to you. There are no jewelries in the box. There is death.”

  “What do you mean?” Ben repeated.

  “Very deadly microorganisms, I think,” Dr. Ivanovsky said, looking down again. “Or maybe a receipt for the freezer where these are stored. There probably is also notes saying how to make more.”

  Ben was instinctively certain his client was telling the truth. I should have known, he realized with cold despair. Dr. Ivanovsky’s odd monomania about the case, his unusual background, the vague but strong sense that both sides were lying—all the uncomfortable aspects of the case that Ben had been pushing out of his mind for the past few weeks. It all now made perfect and terrifying sense. “How do you know all this?” he asked.

  “Before I came to this country, I was first deputy commander of the decontamination unit at Biopreparat, the Soviet program for making germ weapons. When sometimes accidents and contaminations happened, the facility director would call me. I was very busy, but I remember especially one time.”

  His voice steadied. Talking about it seemed to calm him, though it had the opposite effect on Ben. “The director of this small research facility on an island in the Aral Sea called to me. He said, ‘I am in the quarantine section of the hospital here. Everyone from the facility is here too. A viral organism came into the air system. We do not know how.’ I asked him, ‘What is this organism?’ and he told me, ‘It is a smallpox variant with Ebola genes introduced. Based on our symptoms, it is much like blackpox, except the infection rate is very high and symptom progression is much faster. We will take notes as long as we can so you have records.’”

  “So you could have the records?” asked Ben. Then he realized what the statement must have meant, and a chill ran through him. “Oh.”

  Dr. Ivanovsky nodded. “They knew they were dying. They had made this disease to be very, very fatal and to have no cure. So they knew.”

  “Why would they make a disease with no cure?” asked Ben.

  “If we can cure diseases, so can our enemies and the disease is not so good a weapon. So we made diseases with no cures.”

  “But what about your own people? Weren’t you worried that the diseases would get back to them?”

  Dr. Ivanovsky shrugged. “This is always a risk, but we took steps. Such diseases only
go on long-range missiles and bombs, so the sickness is very far away from us. Also, disease can only come back if people carry it. If the germ is strong enough and fast enough, no one can carry it back to us. And even if it comes back, we have very good decontamination units,” he added with a touch of pride. “Such units cannot cure diseases, but they can make buildings and vehicles clean after”—he paused—“after the disease is over.”

  “Were they all dead by the time you reached them?” Ben asked.

  “Yes,” he said in a strained voice. “They were in rows in the hospital refrigeration room, except the last two. They were on beds. I have seen many deaths, but . . .” His voice trailed off and he stared blankly at the wall. “Ebola, it . . . it degrades the tissues and there is much bleeding through the eyes and the skin and . . .” Again his voice trailed away. He shook his head and took a deep breath. “The disease they made is fast, which was good. Twelve hours after symptoms begin, victims are in coma. Next day, they are dead.”

  Ben shivered. “How did the virus escape?”

  “Now you come to the question I asked many, many times. For one person to have an accident in a sealed room—this happens. For two or three persons to maybe die from leaks or contaminated equipments, this happens once or twice. For viruses to come into the air system and the whole facility to die, this never happens. My team and I, we read the notes and other documents from the facility, trying to understand this. We tested all virus-holding equipments for leaks, but we found no leaks. We examined every centimeter of the air system for malfunction or leak, but there was nothing.

  “But we found another thing: one container and lab notes were supposed to be there, but they were not there. This is not unusual. Scientists lose things or give them to other scientists very often, especially in the end of the Soviet Union when there were not enough supplies. So maybe this happened here, but there was no one I can ask if this is true. I began to think that maybe there is a connection between these facts. Maybe everyone is dead to hide what happened.”

  Ben saw where this was going. “Was it Nicki Zinoviev’s brother?”

  “I think yes, now,” replied Dr. Ivanovsky. “But in that time I did not have theories about who did this thing. We developed films from the security cameras. There was no picture of a person breaking in, but the pictures showed every day a man bringing supplies to the island. It was the same man in all pictures, except on the day the contamination happened.

  “I knew we must find this man very, very fast. Maybe he was guilty and killed these persons and stole this Ebolapox and notes. Maybe he was not guilty, but was infected and dead and infected more persons. It was very necessary to find him.

  “I went to the supply base making deliveries to the island and talked to the commander. He was very scared, but I believe he said the truth. The man making deliveries every day was sick on the day when the contamination happened, so the commander sent another man who was new. The commander showed me his picture and his documents. He has all necessary papers, but the picture does not look like the one from the security films. Not very different, but different. ‘Where is this man?’ I asked. ‘He is dead. A terrible death,’ the commander said. ‘How did he die?’ I asked. The commander said, ‘His truck crashed and there was a fire.’ I examined this body. It was very burned, but there was no Ebolapox on the pieces of unburned skin. We did a full autopsy and found no Ebolapox in the blood. Also, we found this man did not die from burning. His lungs had no burns, so he was dead before the fire.”

  “What killed him?” asked Ben.

  “Broken skull, but it was broken in back, not in front where the head hits the car. So we now called to Biopreparat security, and very fast they come with KGB. They talked to us for three days while we decontaminated the island and did more autopsies on the persons from the facility and took samples from them for production.”

  “What do you mean ‘samples for production’?” Ben asked, not entirely sure he wanted to know the answer.

  “This was always done in Biopreparat,” explained Dr. Ivanovsky. “If a disease kills a person—and especially if it kills all persons who are infected—we know it works. Otherwise, we only know it works on monkeys and rats, which is very different. So we took samples from the dead persons to produce in a factory laboratory the exact organism that killed them. Sometimes we named it for the person who died. For example, there is a virus named Variant U for a Dr. Ustinov that it killed. But this one is called Variant D for Dracula, because it makes blood come through the skin.” Ben winced. “This name was from the persons in the facility that wrote it in their notes. They made this joke when they were dying because they were brave and scared, I think.”

  “Wow,” Ben said. He was only beginning to absorb the magnitude of what his client was telling him. “So you think Variant D is in that safe-deposit box?”

  “Yes. Well, not Variant D—it would die if not frozen. But I think there is in the box a receipt for a commercial cold-storage facility where it is. And also notes on how to make this organism.”

  “But how did it get to Chicago? And why did it stay here all these years without being found?” asked Ben.

  Dr. Ivanovsky shrugged. “This I am not sure of. After we finished the decontamination, we left the island, but the KGB stayed. They never spoke to me of this thing again. One time I called to a KGB agent I met on the island and asked him what happened. He said, ‘This is a state security matter that you must not speak of.’ So I never did until now.”

  “Everything you tell me is confidential, of course,” said Ben. “But about the safe-deposit box—”

  “Yes, yes. So after some years, the Soviet Union ends and Biopreparat becomes much smaller. Many people I know are gone and I am now old, so I retire and come to this country. I was having tea with my friend after church on a Sunday, and we were remembering the old KGB. My friend said to me, ‘The KGB one time even killed a man in Chicago. This was before you came, Mikhail.’ I asked him, ‘You are sure this is true?’ He said, ‘Oh yes, it is true. The Americans think it was mafiya, but I know a mafiya man here and he says it was KGB, not them.’ Then he also said, ‘I even have some newspaper stories about this thing that you can read.’ He went into his basement and came back with some old pieces cut out of newspapers. One of them had a picture of the dead man, but with his eyes made to look like they were open. My friend said, ‘That is him,’ but I knew this face. It was the man I saw on the security films from the facility.”

  “You’re sure it was the same guy?” interrupted Ben, hoping Dr. Ivanovsky was wrong. “After all those years, you remembered exactly what he looked like?”

  “The contamination that happened on this island made a very big impression on me. So many dead and in such a way, and this Variant D Ebolapox maybe stolen. Yes, I remember exactly the man’s face and many other things.”

  “Okay. So what did you do then? How did you find the box?”

  “I asked my friend how this mafiya gangster knew KGB killed this man. He said, ‘This gangster I know, he knows the dead man’s brother, and the brother told him.’ So I asked, ‘Who is this brother?’ And he said, ‘Nicki Zinoviev.’ Zinoviev is not the name in the newspaper pieces, but they also say police found passports containing different names with the body, and maybe all of them have false names.

  “It is very, very probable this man was CIA and stole Variant D for America. I now think, ‘Did he give Variant D to America before he died?’ So on the next day, I talked with an American government microbiologist I know who is at Fort Detrick, which is where the Americans do such researches. Of course, he will not tell me if America has Variant D, so I do not ask him this. I ask him about treatment and decontamination procedures in case of terrorist biological attacks, and we talk for a long time about different organisms. When we are done, I know that America has no procedures for organisms like Variant D. If America had Variant D, it would also have decontaminati
on and treatment procedures for it.”

  “I thought you said there was no cure,” Ben broke in.

  “Even if there is no cure, there is always procedures,” explained Dr. Ivanovsky, “even if it is only for decontamination, containment of outbreaks, and handling of bodies.

  “So this container with Variant D and lab notes never came to the American government,” he continued. “So now I think, ‘Where are they?’ This is when I called to Nicki Zinoviev. I told him that his brother had carried a package belonging to me but that he died before he could give it to me. He asked, ‘Why do you come to me only now after so many years?’ and I said, ‘I did not know his true name until now.’ Then he said, ‘I know of no package.’ I said, ‘I will give you money for this package.’ He said, ‘This is good, but I still know of no package. If I find one, I will tell you.’ This gave me an idea. I said to him, ‘If I look for things belonging to your brother and I find some things, will you promise to sell them to me for reasonable prices?’ He said yes, and he told me the false names his brother used.

  “So I called to many storage facilities and banks to see if this Alexei Zinoviev had lockers or safe-deposit boxes there. First they would not tell me anything because I am not Alexei Zinoviev, even though he is dead. Then I got a paper from Nicki Zinoviev saying that they should answer these questions—”

  “You didn’t tell me about this,” Ben interrupted. “That’s an important document.”

  “It said nothing about jewelries, of course, so I did not want to show it to the judge,” replied Dr. Ivanovsky. “Maybe it would make him think it was not jewelries in the box.”

  “He probably thinks that already. That document helps to show that there was a contract between you and Nicki. If I’d known about it and we’d produced it in discovery, there’s at least a chance we would have won today.” That chance wasn’t particularly large, but Ben decided not to mention that. It was time Dr. Ivanovsky learned a lesson about the dangers of sharing information selectively with his lawyer.