by John Foxjohn
Pickens went on to claim that she’d also received an anonymous package containing a 10cc syringe loaded with a mysterious clear liquid and a letter that said something to the effect of “Bang. Get your high on.” Pickens said that instinct dictated she hold on to the syringe, but after a couple of months, she threw it away.
This brought on a debate between opposing attorneys on whether the testimony should be allowed in court. Deaton opened by calling Sharon Smith “aggressive and violent” and saying, “If there is anybody here that is a killer, I would have to say that is her.”
Herrington quickly shot back that Pickens’s story was “nothing more than a love triangle with no bearing on this case. Nothing but anonymous innuendos connected with a boyfriend/girlfriend situation. It’s irrelevant and prejudicial.”
Why Deaton thought he’d be able to use Pickens’s testimony is unclear. First, witnesses can’t testify about things that aren’t in evidence. The alleged letter and the syringe with that mysterious clear liquid weren’t in evidence, and never would be because Pickens said she’d thrown them away. Therefore, she couldn’t testify to the items’ existence.
The other issue with Pickens’s testimony that Deaton evidently hadn’t considered was raised by Judge Bryan when he asked, “Are you accepting the fact that people at DaVita were killed by syringes filled with bleach?”
That was definitely a slippery slope. If the judge let that testimony in, which he wasn’t about to do, Deaton was virtually admitting that the patients had died from injections of bleach. However, no one had ever come forward and said Sharon Smith was injecting patients with bleach. That was reserved only for Deaton’s client.
Obviously the judge’s question had merit. Just as obvious, the jury never heard this testimony. What it turned out to be was a waste of time. In any event, Smith later disputed some of Pickens’s story.
While the jury was gone, Deaton had one more witness he wanted to put on the stand—for the record in case there was an appeal, but not for the jury to hear. It was Kevin Saenz.
In his opening statement, Deaton had promised the jury that Kevin Saenz would testify to disprove the theory that it was his wife Kimberly who’d done those computer searches. But Deaton could not put Kevin Saenz in the witness box in front of a jury. That alone would have been enough to prove ineffective counsel, and it would have doomed Kimberly Saenz. Tortorice was licking his chops waiting on this one.
After all, it was Kevin Saenz who had led the police to that computer in the first place. It was he who had given the police the key words the forensic computer specialist used to find the information searched for on the computer.
At the time he was cooperating with police, Saenz had filed for divorce, had a restraining order in place against his wife, and had every intention of retaining custody of their daughter. However, if anyone was going to defend Kimberly Saenz, that divorce had to disappear. After all, the Constitution clearly states that a spouse cannot be compelled to testify against the other spouse. As Saenz’s husband, he could not be made to testify by the prosecution. Obviously, Deaton didn’t think his testimony would help her. With Saenz testifying for the record but out of the presence of the jury, the defense could control what the prosecution could ask him.
As the ex-husband, Kevin Saenz could and would have been subpoenaed by Herrington to testify. There would be no way that he could get out of his sworn testimony for the protective order that declared Kimberly Saenz to be addicted to drugs and violent at times. He’d also sworn in that affidavit that he thought she was a danger to their daughter.
The prosecution could force him to testify to the reason he told others that he thought Kimberly Saenz had injured the patients. The only way any attorney had to prevent this testimony would be to stop the divorce.
Also, forensic computer expert Mario Mares had given the prosecution a detailed report on what he’d done to examine the computer and everything he’d found. With Judge Bryan’s approval, the prosecution had given Deaton a summary of that report. Had Deaton elected to put Kevin Saenz on the stand in front of the jury, the prosecution knew, based on search histories, that they could prove it was actually Kimberly Saenz doing those searches and not Kevin, her parents, or her children.
The prosecution even had Robert Flournoy listed as a witness. Flournoy was Kevin Saenz’s attorney and the one who’d called the police on Kevin Saenz’s behalf. He had also been present when Kevin Saenz had first talked with Corporal Mike Shurley.
The jury didn’t hear the testimony of Catherine Denese Pickens or Kevin Saenz, and if they had, more than likely the testimony of these two would have helped the prosecution more than hurt it. However, the jury did hear from an expert witness for the defense—one that they would not forget. He was a nephrologist from Boston, Massachusetts, by the name of Dr. Michael Germain.
Sixty-year-old Dr. Germain was short and stocky with brown hair styled professionally, as were his clothes. But his appearance and professionalism had more to do with his bearing and speech, than his clothes.
On the stand he seemed to understand the gravity of the situation and presented himself as a consummate professional in every way. Which his credentials backed up. After graduating from the University of Calgary Faculty of Medicine in 1976, Dr. Germain became board certified in internal medicine as well as nephrology. At the time of his testimony, he had thirty-six years experience as a kidney doctor and had authored over twelve articles in professional medical journals. He’d also been named as one of America’s leading experts on kidney disease.
Besides his affiliation with a dozen hospitals, he was also the medical administrator of a dialysis clinic, and the perfect person to speak about dialysis. He was critical of how Dr. Nazeer, the medical administrator, and DaVita handled the situation on April 28, 2008. That was the morning that Ms. Hall and Ms. Hamilton had allegedly witnessed Kimberly Saenz inject two patients with bleach.
His criticism came about the handling of the two injected patients—one that was controversial. Both Ms. Rhone and Ms. Risinger, the two patients allegedly injected by Saenz, had adverse medical occurrences while at DaVita. Both were at the end of their treatment and both got over their problems quickly. At the time of the incident, Dr. Nazeer had not been present at DaVita. He returned when the staff called him and told him that Ms. Risinger was having a problem.
When Dr. Nazeer returned, Amy Clinton informed him of the allegation against Saenz and the fact that she’d sent the nurse home for the day. At that moment, all they had was the allegation of the two witnesses. Amy Clinton had not opened the sharps containers then or tested the syringes.
Dr. Nazeer advised both patients, Ms. Risinger and Ms. Rhone, that they needed to go to the hospital, get checked out, and get blood work done. At that time he didn’t tell them about the allegation that Saenz had injected them with bleach. Maybe because he didn’t tell them, no one will ever know, both patients refused to go to the hospital. They were feeling better.
This was the morning of April 28, and it wasn’t until around four that afternoon that DaVita called the two patients and informed them that they might have been injected with bleach and needed to go to the hospital for blood work—which both patients did.
On the stand, Dr. Nazeer had testified that when he was informed of the alleged incident, he was shocked and had never heard of anything like that before. He went on to say that although he was shocked, he also felt a sense of relief. It gave them an explanation of the problems and the reason they couldn’t find out what was causing the patients’ deaths and injuries.
In regard to why he didn’t initially tell the two patients that they might have been injected by bleach, he said that he had urged them both to go to the emergency room, but at the time, he didn’t think he had enough facts. All he had was an allegation against an employee.
Dr. Germain had another take on this controversy. Unequivocally, he stated that he didn
’t agree with the way the facility handled the situation. When asked about Dr. Nazeer’s decision not to tell the patients on the morning of the twenty-eighth that they might have been injected with bleach, he said, “I never believe in keeping anything from patients. I always tell them what I know. The truth is the best policy.”
Like the Texas Department of Health and Human Services, who investigated DaVita and issued a scathing report on them in May 2008, after DaVita had shut down, Dr. Germain had a lot of uncomplimentary things to say about how the DaVita Lufkin clinic operated. Like the Texas DHHS, he also faulted DaVita for patient care, and said that this could have ultimately caused the five deaths. He said he wasn’t surprised that six of the patients went into cardiac arrest when their blood was returned to them. He attributed this to DaVita’s poor supervision and the alleged victims’ frail health.
He told the jury that dialysis patients were the most vulnerable at the end of the dialysis process because of excess fluids being pulled from their bodies causing a drop in blood pressure—sometimes too much of a drop. This normally isn’t a problem unless they aren’t monitored properly, which he didn’t believe the DaVita patients were.
He went on to tell the jury that the hardest thing he could ever do was decide how a patient had died—especially considering that he’d never seen the patient in person and all he had to go on was their patient charts. However, after he reviewed the records here, he said that the patients were frail and near death. Among the patients that he highlighted was Ms. Metcalf, one of two patients who died on April 1, 2008, leading to the mass investigation by DaVita. “This was not an atypical death. It’s what you see in a sick elderly dialysis patient,” he said of Ms. Metcalf. “Her blood pressure was stable until the end of her treatment, then she became unresponsive. I would have to say it was the dialysis treatment that led to her cardiac arrest. It was just too much for her body to handle.”
In addition to Ms. Metcalf, Dr. Germain weighed in on the death of Mr. Kelley, saying he also believed the dialysis process had been too much for Kelley’s body to handle.
As the doctor went through each of the victims’ charts, he indicated that the patients were frail and close to death, and that it was the dialysis process, as well as the poorly supervised treatments they received, that had caused their deaths.
If Dr. Germain knew about, saw, or even heard the rumblings, mumblings, and shaking of heads, or the outright glares from the side of the courtroom behind the prosecution table, he didn’t let on. For the most part, the loved ones of the victims had sat and listened to testimony stoically, but Dr. Germain testimony was one of the few times that rattled them.
Among the spectators behind the prosecutor’s table was Wanda Hollingsworth, the daughter of Ms. Metcalf, along with her brother and sister-in-law. Dr. Germain didn’t know that Ms. Hollingsworth had testified earlier to how spunky and energetic—not frail—her mother had been.
Also listening were friends and family members of Mr. Kelley, whom no one had ever described as frail, sick, or near death. Nor did Dr. Germain know about all the past and present DaVita employees who had testified about the favorable condition Mr. Kelley was in at the time he coded at DaVita.
In truth, Dr. Germain had never seen or treated any of the patients, and all he had to go on was records he was given to view by the defense.
He was definitely a witness the jury would remember—mainly because of his professionalism, but also because they felt he was honest—especially when Herrington cross-examined him. Herrington’s last question to him would stick in the jury’s mind.
Dr. Germain had been critical of DaVita and Dr. Nazeer, but also attributed the patients’ deaths to natural causes. But when the defense passed the witness, Herrington asked him, “Can you say that all these things could not have been caused by the bleach injections?”
Dr. Germain may have been an ideal witness for the defense, but even so, he still had to answer “no” to Herrington’s question.
The jury would eventually get to hear another witness after she was voir dired out of their presence. Connie Baker, the witness, seemed to pop out of nowhere. She’d very recently contacted Deaton and told him her story. After hearing it, Deaton was all too glad to let her testify. She was an ex-DaVita employee who had worked in Lufkin in April 2008, but had resigned.
Deaton led her through her testimony, and Baker backed up Kimberly Saenz’s version of events, agreeing that she and other employees had all used syringes to measure bleach, and so forth. In fact, Baker testified to every single thing Deaton needed her to. She even recalled a meeting in early April in which Amy Clinton had told all the employees that she knew there was something going on. Baker claimed that Clinton had pointed her finger at them, saying, “I will not go down for this. I will take someone with me.”
Baker told the jury that she’d felt threatened by Clinton and so scared that she decided at that moment to quit. She handed in her two-week notice the next day, and stated that she left DaVita because she believed someone was going to be blamed for the problems that happened in April 2008.
The Lufkin News led off with the headlines in bold black print, WITNESS SAYS CLINIC SEEKING SCAPEGOAT. Along with that headline, they had a picture of Saenz with a smug smile on her face—one that she had displayed throughout the trial. The article described Baker’s testimony, what Baker claimed Clinton had said and how she’d felt threatened. However, despite the headline, Baker never used the term “scapegoat.”
Then it was Herrington’s turn to ask questions. He began by asking Baker who else at DaVita besides Saenz and herself had used a syringe to measure bleach, but Baker couldn’t recall any names. He also asked her who else besides Saenz and herself had heard Amy Clinton make that statement. Baker couldn’t name any individuals.
Finally, Herrington produced a piece of paper and, before asking to have it admitted to the record, showed it to Baker, who testified that it was her letter of resignation, and then handed it to Deaton. Deaton read it and in a small voice said he had no objection to having it admitted into evidence.
Herrington never told the courtroom what was in the letter, but he posted it to the jury so they could read it. Everyone in the courtroom knew that letter had to be important and was curious to know what was in it. According to jurors who spoke after the trial, the letter of resignation did not back up Baker’s story of a scared employee just wanting to get out so she wouldn’t be blamed for anything. In fact, in the letter she asked DaVita if she could be eligible for “PRN” duty, which means as needed. In other words, she wanted to work when they needed her to fill in for someone and not on a schedule. For one thing, PRN employees usually make more. Also, former coworkers said Connie Baker told them she was quitting because the amount she was paying for gas was eating her paychecks up—not to mention the hours. She was working ten-hour shifts on top of a two-hour commute each way to get to and from work.
After the defense rested, Herrington called several rebuttal witnesses—either DaVita employees or past employees. Some of the ones he called were defense witnesses, and all of them had been present at that meeting in which Clinton had supposedly threatened the staff. However, not a single one of them heard Clinton say anything remotely close to what Baker had reported. None of them even remembered Amy Clinton speaking at all during that meeting, which was supported by documentation. DaVita meetings had sign-in sheets and agendas of who spoke and on what topic. At that particular meeting, Clinton wasn’t scheduled to speak.
Most said that they would have remembered something that sounded so threatening.
Only one employee said she wouldn’t have considered them threatening. When asked why, she said, “I was doing my job correctly. Why would I feel threatened?”
* * *
Peter Cartwright was president at Cartwright Consulting Co. He possessed a bachelor’s degree in chemical engineering from the University of Minnesota and was a register
ed engineer in several states. He also specialized in marketing and technical consulting for water purification—especially in dialysis clinics.
Cartwright was in Lufkin as one of Deaton’s expert witnesses because when Deaton wasn’t blaming DaVita for the cause of the injuries and deaths, he was blaming the water.
As Deaton questioned Cartwright, the expert told the jury that Lufkin DaVita was the most poorly run and operated system in hemodialysis he’d ever seen. The truth was, DaVita had some problems in the way it was run. There was no doubt about that.
At the heart of the water argument was how the water was treated. Municipal water plants in the United States use either chlorine or chloramine (a combination of ammonia and chlorine) to treat water before it is sent to people to drink. However, the water used in dialysis centers has to be pure, free of everything, including either chlorine or chloramine, and chlorine is easier to remove than chloramine, and fortunately for DaVita Lufkin, they had to deal with chlorine.
In Cartwright’s testimony, he said that he didn’t believe that DaVita’s carbon tanks had been filtering the chlorine properly in April 2008. He criticized DaVita for not dating water logs, and several other things.
There was no question that DaVita had not handled this process well. The damage done by Cartwright fell to prosecutor Layne Thompson to clean up. During Deaton’s direct examination of Cartwright, Thompson had spent a good deal of the time objecting to Deaton’s questions—either on the basis that they were leading, or that Deaton was misrepresenting facts—most of which were sustained by Judge Bryan.
From Cartwright’s apprehensive expression, he expected Thompson to come out on the attack. Instead, Thompson surprised everyone. He asked Cartwright how much he was being paid. Some eyebrows rose when the expert said $300 an hour, and that included the time to testify. This was the first time in the trial the question had come up. All the other experts for the state were government employees, and not paid by the county.
