by John Foxjohn
One DaVita employee after another heard the same thing from him. “You still work for DaVita, don’t you?”
His question to the employees was laced with as much disdain for the witness as could possibly be put into seven words. No one doubted the disrespect he heaped on them and the implication that because they wouldn’t say what he wanted them to say, therefore they were liars and a part of the conspiracy against his client.
Deaton also seemed to take issue with the DaVita attorneys and almost came to blows with one of them, Joel Sprott. As a big, rich, Fortune 500 company, DaVita had attorneys there to represent their employees, and during the trial, Sprott had lodged a complaint that Deaton constantly tried to talk to his clients when he wasn’t present—even after he’d told him not to do it several times.
After the trial, when asked what was the biggest obstacle the defense had to overcome, Steve Taylor replied, “Deaton’s arrogance. You can only beat up on someone so much and then you start losing points. Defense attorneys should try to negate testimony that has already come in or give a different light on it to help soften it, but when you get up there and call him a lying sucker to his own face in front of twelve people . . . Jurors use their eyes, their ears, and their noses. They know when something stinks. If a skunk walked through the room, they’d remember it and would ask themselves later if the skunk was still around.”
Juror David Bradford was tall, solid, had white hair, and stood out in a crowd. He was also a juror that Deaton had wanted. During voir dire, Taylor had questioned most of the potential jurors and Deaton questioned one every now and then. Bradford was one that Deaton took—maybe because he thought they could relate. Bradford had not starred on the Lufkin football team as Deaton had, but his son, the starting quarterback, and later punter for the University of Texas, did. But if Deaton thought he had an ally on the jury, he was sorely mistaken.
David Bradford said after the trial, “About the third day of the trial, I was so tired of Deaton beating us over the heads like dumbasses. I said to myself, lay it out and let it go but don’t beat us to death with it.”
Bradford was referring to that dead horse—the alleged conspiracy and that question dripping with sarcasm, scorn, and loathing for each of the DaVita employees.
* * *
Wanda Hillyer, another DaVita employee, followed Sharon Smith, and her testimony repeated what all the others, including the ex-employees, had said. But Herrington took her into another area, the cleaning of the dialysis machines.
In 2008, the routine was that on every Thursday, after all the patients were out of the clinic, the staff cleaned all the dialysis machines. This included running bleach through them. When they were finished, the machines were supposed to be thoroughly rinsed so no bleach remained. They were tested to make sure.
Since, as previously stated, the water in DaVita was on one continual loop, it meant that every machine got the same water and bleach when cleaned and rinsed.
Hillyer took the jury through the cleaning process. It was abundantly clear that if DaVita was responsible for bleach being in the bloodlines and harming patients, this was the best opportunity for it to get there. However, Herrington took her through every one of the incidents where patients were harmed and died, and not one incident occurred on a Friday after a Thursday night cleaning, as would have been expected. And again, one fact kept popping up with every witness: if the water was bad, every patient being dialysized that day would’ve been affected, not only one or two.
Deaton asked Hillyer the same question he’d asked the other DaVita employees. He asked if she’d ever seen or heard of other DaVita employees using another’s password to get into the computers. None of the others had.
When Deaton asked Hillyer the question, the attorneys met at the bench for a few moments, then the judge sent the jury out of the courtroom, and they voir dired Wanda Hillyer on this question. In answer, she said that she’d heard of it once. When Herrington asked her what happened to the person who used another’s password, she responded that DaVita had fired the employee.
Herrington told the judge that he was okay with the jury hearing this testimony.
Deaton, however, must not have been because when the jury returned, he didn’t continue to pursue that line of questioning.
The next-to-last witness Herrington called on day three was a young black man named Werlan Guillory, who projected an aura of intelligence and honesty. He was dressed nicely, but not flashily. He also appeared totally credible.
In April 2008, Guillory was a PCT at DaVita and a friend of Kimberly Saenz’s. He was also aquatinted with Ryan Deaton, having played basketball with him.
Prior to the trial, Guillory said, he’d spoken to Deaton once for about ten minutes when he ran into him at the grocery store. Although on the stand Deaton attempted to insinuate that Guillory’s friendship with Saenz was more than it was, Guillory did admit to caring for Saenz as a friend. But there were things about her that really disturbed him.
He related the story on the stand about how he’d called Saenz after she’d been sent home on April 28, and asked her if she was going to be at the meeting the next day. He said that she told him that she wasn’t, she was going to her daughter’s field day at the Expo Center in Lufkin instead.
When Saenz really didn’t show up for the meeting, Guillory drove to the Expo Center to check on her. To him it was nothing that a friend wouldn’t do for another. Saenz’s appearance shocked him—she was crying, her eyes were swollen, and her hair was disheveled. Not only that, although they’d worked together for eight months and he considered her a friend, she acted at first like she didn’t even know him. While they were talking, Saenz, an emotional wreck, told him that her husband had accused her of harming the patients.
This in itself was damning, but Guillory was about to stick a dagger into the heart of Saenz’s defense.
He told the jury that when Ms. Strange coded on April 1, Kim had acted like she didn’t care. Then on April 26, when Ms. Few coded, he ran outside to get Kim, who was smoking a cigarette, but she didn’t respond or come in.
This little tidbit got a reaction out of the jury and Deaton. The red spot on his head was flashing like a neon sign.
Who would want their health care provider to choose to continue to smoke a cigarette instead of attempting to save his or her life? It was something the jury never forgot, nor did they forget Guillory’s answer when Deaton asked him why he ran outside to get Kim.
He said, “I just felt that I needed to get Kim off break to save a life.”
Herrington’s last witness was also devastating. It was Kimberly Saenz herself.
Herrington played the tape of her police interview, and all twelve members of the jury sat forward on the edge of their seats, as did the spectators.
Meanwhile, Saenz turned in her seat and was laughing, smiling, and mouthing words to her family. Most people in the court, including the jury, couldn’t understand what was so amusing about what was being shown.
Everyone in the courtroom heard Saenz tell the police that she thought the problems with the patients in April had to do with blood pressure, and she said she’d never researched bleach on the Internet. This raised some eyebrows from the jury because from Herrington’s opening they knew that Internet searches on bleach had been found on Saenz’s computer, and from Deaton’s opening, they knew her husband was going to discount this evidence. Whatever was coming with those computer searches, they knew it would be important.
In the interview, Saenz couldn’t remember when her last day at work for DaVita was or who her patients were, even though the interview took place on April 29, the day after she was sent home. This left everyone wondering about her mental state.
From Herrington’s point of view, it was the absolute best time to play Saenz’s interview. The jury had sat and listened to a long line of DaVita employees who testified that Saenz not only hate
d her job, but hated a bunch of the patients. Whether coincidental or not, the patients they named that she hated just happened to be the ones she was accused of harming or killing.
Now on the tape Saenz was telling police how much she loved her job.
But that wouldn’t be all she said in that interview as she rambled on. Saenz told them that she was supposed to use a measuring cup to measure bleach, but used a syringe when she didn’t have a cup. She said that when she used a syringe, she’d pour the bleach into a measuring cup—the one she supposedly didn’t have—and then draw the bleach into a syringe from that.
One other thing she said also didn’t make any sense: Saenz said all she’d injected into Ms. Rhone’s line was saline. Now the jurors looked at the dialysis machine that stayed in the courtroom as a prop. Both sides had used it numerous times. The jurors could easily see the saline bag hanging over the machine with a line leading down from it. Attached to that line was a clamp. Loosening that clamp allowed the saline to be released into the patient’s lines.
In other words, why inject saline into a bag full of saline?
* * *
Other witnesses came and went, and then RN and DaVita monitor Amy Clinton took the stand. When the jury was asked after the trial which witness was the most impressive, most said Amy Clinton right off.
The jury had watched Arlene Gamble and Sharon Smith lose their cool on the stand, and might have expected the same from Clinton. If Deaton did, he would be sorely disappointed. Clinton’s temperament never changed. It was obvious that Amy Clinton was the regional director of DaVita for a reason, and it had nothing to do with her good looks. She ended up testifying four times, but each time the court saw the exact same thing from her: intelligence, professionalism, and deportment. She could not be shaken. Her voice didn’t change from the questions Herrington asked to the grilling she got from Deaton—nor did her body language.
Deaton wasn’t able to break the next witness either, arguably the most important person in the entire case—Sergeant Stephen Abbott.
Sergeant Abbott took the jury through the entire case from day one. He never showed emotion. It was the facts, just the facts, and like Clinton, he couldn’t be intimidated or swayed. In fact, Deaton lost a point with the jury whenever he said Sergeant Abbott’s name—or rather, mis-said it, since he insisted on verbally demoting.
He never referred to him as Sergeant Abbott, and it became a point of total disrespect. He called him Officer Abbott. The way Deaton said it, the jury could hear and almost see the disdain dripping off the word.
In any case, Abbott could add his name to the long list of witnesses Deaton had harassed on the stand. He’d badgered Ms. Hall and Ms. Bradley while they testified and had had objections sustained on both of them. When people talk about Judge Bryan, they invariably mention how patient he is, but Deaton was trying that patience already. So far Deaton had just irked him, but that was soon to change. Deaton soon stepped in it with both feet.
CHAPTER 18
THE STORM
In the courtroom, no one saw the explosion about to happen with the judge. Prosecutor Chris Tortorice had called to the stand Dr. Imran Nazeer, a man with impeccable credentials, but he was also the medical administrator for DaVita in April 2008, and therefore in defense attorney Ryan Deaton’s crosshairs.
After Tortorice passed the witness to Deaton, the trouble began.
It began with Deaton asking Dr. Nazeer a question. “Okay. And back in April of 2008, administration had told you and your facility that y’all would have an order that all adverse occurrences—”
Tortorice objected on the grounds that the question was hearsay and assuming facts not in evidence.
Although Deaton said he would rephrase the question, the judge called them to the bench anyway. This wasn’t anything unusual. This trial had to set a record for bench conferences. Unfortunately, this one was off the record, and exact words in that conference are not known.
When the trial resumed, Deaton asked the same question that Tortorice had just objected to. Tortorice objected again.
The judge, obviously irritated, said, “Come up. That’s what we just talked about.”
People described Judge Bryan as a duck in the trial. Cool, calm, and collected on the surface, but feet pedaling furiously underneath. The court had only seen the surface half of the judge—now they were about to see what lay beneath.
The conversation at the bench was again off the record, but it didn’t stay that way long. Judge Bryan’s face turned the color of a ripe tomato. Furious, he hustled the jury out of the courtroom. When the jury left the room, the rest was said in open court and for the record.
Tortorice told the court that the prosecution had an issue with a secret recording done by Deaton of Dr. Nazeer.
Deaton responded as Judge Bryan simmered. “First, the recording was not done by me. Secondly, whatever agreement I had with [DaVita lawyer] Mr. Sprott, he’s a civil lawyer. He’s not part of this case. Okay?”
When Judge Bryan said, “So . . .” through clenched teeth, Deaton continued.
“I had no agreement with the district attorney’s office. And I only intended to use [the recording] if the man lies. That’s it—or misstates what he told me.”
Judge Bryan then asked Deaton, “So how many other ones did you record?”
Deaton responded, “Just one. We’ve only been allowed to talk with one witness, that being Mr. Nazeer.”
The disrespect of not calling him doctor was nothing new for Deaton.
Judge Bryan then asked Deaton, “So did you know it was being recorded?”
It was hard to believe the judge’s face could turn even redder but it did when Deaton replied, “I did not. I didn’t.” Deaton went on to tell him that his investigator had recorded Dr. Nazeer, not him.
However, Judge Bryan wasn’t buying what Deaton was trying to sell. He asked, “The person under your control and direction was there at the meeting, was present, that you’re responsible for his actions?”
Tortorice started to join the conversation. “Your Honor, the information that—”
Deaton didn’t give him a chance to finish. “Your Honor, it’s not an issue if the man just tells the truth. It sounds like he wasn’t going to tell the truth.”
The judge’s words seemed to bounce off the walls in the deathly silent courtroom. “It’s an issue when all counsel are responsible to the Court for being honest in their dealings between each other,” Bryan said. “That makes it an issue.”
As the judge simmered, Tortorice, who’d waited in the wings for this moment, knowing it was coming, spoke up. He told the judge about the DaVita attorney having come to him and telling him that even though they’d asked Deaton not to record the conversation and Deaton had agreed not to, at the time the DaVita attorney believed he had recorded it.
Everyone understood that Deaton’s investigator, Vann Kelley, in the presence of Deaton, had secretly recorded a conversation with Dr. Nazeer, even though he had agreed not to.
Deaton had attempted to crawfish his way out of it before, but he was really scooting backward now. He said, “I’m not even sure it was intentional. In other words, we did go in with the idea of recording the statements. I don’t think there’s anything wrong with that. I don’t—I mean, those—how that happened, I’m not exactly for sure, but the bottom line is, is that it’s—I don’t care. I don’t want to bring it up. I have no desire to—”
Judge Bryan cut him off. “Then why are you bringing it up?”
Almost in a whine, Deaton told the judge, “I want to ask this man questions. That’s all I want to do, and I want him to be truthful.”
At that time, it was decided by all parties that Clyde Herrington and Chris Tortorice would get to hear the recording, and the court took a break. Of course, the jury had heard none of this. Groups of spectators gathered in the halls to whisper about wha
t was happening.
When the court resumed still without the jury present, spectators realized the fireworks were only starting.
As soon as everyone in the courtroom sat, Tortorice asked to approach the bench, and the judge motioned them forward. Deaton, Herrington, and Tortorice made the trek. Steve Taylor remained in his seat and leaned back, almost as if to say, “You told me to keep my mouth shut. Dig your own way out of the mess you created.” As Herrington commented after the trial, “Steve Taylor’s honest, and that was probably the reason Deaton left him out of the defense—he wouldn’t have put up with some of that stuff.”
Tortorice began by saying that Deaton hadn’t allowed them to listen to the beginning of the tape. He’d requested a copy of the tape but had been denied.
Deaton told the judge, “I let them listen to the part where we walk in the room. The discussion has not been had at any point prior to that whether or not there’s going to be a recording. We walk in the room, and Mr. Sprott says, ‘Let’s get some ground rules. Do you want—or no recording.’ I said okay. And that was it.”
Herrington then told Judge Bryan, “Judge, if you listen to the beginning of it, there’s a clear indication it was going to be recorded, I think. That’s the way I interpret it.”
Tortorice reiterated what Herrington had said. “They were joking, ‘we’re about to be on the record,’ then what appeared to be sounds like getting out of the car.”
Judge Bryan looked at Deaton and his words sliced to the bone. “What you asked me, ‘what does this have to do with anything?’ When an attorney consistently misdirects the Court and engages in dishonesty, then it makes the Court’s job doubly hard, because a judge does not know when to believe a lawyer or when not to. And that’s where I find myself at. So anything you tell me, I have to scrutinize twice because I can’t rely on what you tell me. That’s the real problem.”
