Blind-sided

by Monette Michaels

  Laughter scattered throughout the courtroom.

  Evan paused to let the courtroom quiet.

  “What did the billing records tell you?”

  “They told me who’d been operated on.”

  “How did that help you with the patient records?”

  “It told me that I should, at the very least, have patient files on all those people billed.”

  “And did you?”

  “No.”

  Murmurs of shock rumbled through the room.

  “How many files were missing after your examination of the billing records?”

  “Over sixty percent.”

  The chatter in the courtroom rose.

  The judge rapped his gavel several times. “Order in the courtroom. Any more noise and you’re all out of here.”

  When all was quiet once more, the judge turned to Evan. “Continue, please.”

  “Let me rephrase what you just said. Is it your testimony that of the patients who were billed for the living lens surgical procedure, you only found forty percent of those patient folders in the project’s file room?”

  “Yes.”

  Evan turned and walked over to Monique, who handed him several large folders. He took the folders, left a set with Dubois, and brought the others to her.

  “Ms. LaFleur, would you please look at what have been marked as Plaintiff’s Exhibits 15 A and 15B and identify them, please?”

  Jeanette opened up the folders. “Exhibit 15A is a spreadsheet of the billing records for the Epi Study from its inception. Exhibit 15B has the databases and spreadsheets I created, cross-checking the billing records with the patient files as they existed when I took over the position of Clinical Coordinator.”

  “Are these the records you used to draw the conclusion that sixty percent of the patient files were missing?”

  “Yes.”

  “Your Honor, I would like to submit what have been marked as Plaintiff’s Exhibits 15A and 15B into the record.”

  The judge looked at Dubois who said nothing, then said, “So entered.”

  Evan handed the exhibits to the court reporter, then walked back to Jeanette.

  “Let’s explore another area, Ms. LaFleur. Where did the study get the data for the statistics on its success/failure rate?”

  “From patient follow-up after the surgery. The Clinical Coordinator would examine the files and following the protocol, would list certain medical indicators for each patient at predetermined intervals post-op.”

  “From which patient files would the statistics come?”

  “The only ones the project had.”

  “The same files that don’t account for sixty percent of the patients receiving the surgery?”

  “Yes.”

  Murmurs of unease threatened to erupt into something more, but the judge gaveled sharply and cast a stern glance at the courtroom observers. The noise died an instant death.

  “Is it your testimony that the Epi Study data, as published in official reports to both the Review Board and the University and mentioned in the patient interview process and on the surgical consent forms, did not account for all the patients receiving the procedure?”

  “Yes. But the data was never in the consent forms. I had to assume it was mentioned to the patients prior to surgery, because I have no specific knowledge of what happened prior to my coming on board.”

  “Thank you. I stand corrected. Suffice it to say, if the data was mentioned to the patients, then it was incorrect in that it did not take into consideration all the patients operated upon, is that correct?”

  “Yes.”

  “Was Lynn Barrios in the forty percent of the patient files you found in the clinic?”

  “No.”

  Evan stopped and looked around the courtroom, pausing only when he reached the jury. After the short hesitation, he turned back to Jeanette.

  “Let’s go back to something you said just a bit ago. You said something about the consents for surgery not mentioning the statistics. What did the consents contain?”

  “Objection.” Dubois popped up like an over-dressed Jack-in-the-Box. “She just testified that she hadn’t seen Lynn Barrios’s file so she has no way of knowing what the consent Ms. Barrios signed said or did not say. Mr. Devereaux has already in this trial entered the consent into evidence, and…”

  “Sit down, Mr. Dubois. Overruled.”

  “Thank you, your Honor.” Evan walked over to the court reporter and picked up a piece of paper from a pile on her desk. “Since Mr. Dubois was so kind as to remind me the consent signed by Ms. Barrios is already in evidence, I’ll ask you Ms. LaFleur to look this consent over and see if it is in any way familiar to you.”

  Jeanette took the form. “Yes. This is the general surgical consent that was being used when I first hired on and was included in most of the patients’ charts. Although they weren’t always signed according to protocol.”

  “We’ll come back to the signing protocol in a bit. Does this consent address the living lens procedure in particular and mention any statistics on success/failure rates?”

  “No and no.”

  “You said most of the patient records you saw. Does this have something to do with the signing protocol you mentioned?”

  “Yes. Not long after I began working at the clinic I observed first-hand that the doctors would not always obtain a consent prior to surgery. One time in particular, one of the doctors obtained the signature of a patient under the influence of twilight anesthesia after I pointed out his oversight.”

  “Can a person physically sign his name while under this twilight anesthesia?”

  “Yes.”

  Jeanette sensed the unease in the courtroom. People were wondering what they’d done under the influence of anesthesia.

  “Is that doctor in the courtroom today?” Evan looked directly at Rutherford.

  “No. Dr. Randolph’s dead.”

  Evan nodded. He walked over to the plaintiff’s table. Monique pulled something out and showed it to him.

  To Jeanette, it seemed that the people in the courtroom were holding their breath. All eyes were on Evan. They were waiting to see what he would pull out of the hat next. He had them in the palm of his hand.

  “Ms. LaFleur, did you go to Dr. Rutherford with your concerns?”

  “I went to him about the consents. He was most upset and told me he would speak to Dr. Randolph. Later, a new consent was created, and I saw to it that all patients signed it at the acceptance of the patient into the study.”

  “I’m handing you what is marked as Plaintiff’s Exhibit 30. Is this the new consent?”

  “Yes.”

  “Does it contain statistics about the success/failure rate of the Living Lens procedure?”

  “No. It does explain in detail the risks of the procedure, but classifies them as minimal.”

  Evan proffered the exhibit to be entered into the record. After making another trip to the court reporter’s table, he returned to the witness stand and leaned on the wood barrier.

  “Didn’t it bother you that the new and improved consent failed to list specific statistics about the procedure’s success rate and merely classified them as minimal?”

  “No. Because at that time I hadn’t yet finished the database. I assumed the stats I’d seen were accurate and that the risks were minimal.”

  “You trusted Dr. Rutherford’s say-so on the risks?”

  “Yes. At that time, I did. Everyone did.”

  “Aha.” Evan’s deep baritone whisper carried far beyond the front of the courtroom.

  “Your Honor!”

  “Take your seat, Mr. Dubois.” The judge ordered, then turned to Evan. “Counsel, I suggest you keep your editorial noises to yourself, please.”

  “Yes, your Honor. I apologize.”

  The jury was eating this up, Jeanette realized. Evan was playing to them — and to the press.

  “When you found the discrepancy between the billing records and the patient reco
rds,” Evan continued, “did you take that to Rutherford?”

  “Yes. He told me the people who’d held the job prior to me were inept. He thanked me for getting on top of things. Told me I was doing a good job.”

  “What did you do then?”

  “I tried to reconstruct the missing patient files.”

  “How could you do that?”

  “Well, I remembered Dr. Payton had made some comments that she and Dr. Warren were seeing some of the living lens patients in their clinic at the university. So I asked her about them.”

  “And is that when you found out about the failures?”

  “Yes.”

  “Was Lynn Barrios one of those failures?”

  “Yes.”

  “Were there others?”

  “Yes. Dr. Payton offered to spread the word to other eye physicians seeing living lens failures. They would approach their patients to see if they would be willing to come forward with their stories.”

  “And did they?”

  “Yes.”

  “You have those stories?”

  “Yes. I felt I needed to document the actual results of the procedure.”

  “Why did you feel the need to document the actual results?”

  “To get the project shut down. I didn’t want anymore patients endangered. Plus, there was more going on than just further harm to patients.”

  “What else was going on that you felt the need to go on a one-woman campaign to get the project shut down?”

  “Your honor, I object. Plaintiff’s counsel seems to be heading away from the medical issues in this case and looking to propose some sort of conspiracy theory involving my client.”

  Evan turned and pointed a finger at Dubois. “I didn’t propose any such thing. You just did.”

  The judge sighed loudly. He pushed his glasses back up on the bridge of his nose.

  “Mr. Devereaux, it does seem that you are tripping off the path here of medical malpractice and reckless endangerment of one Lynn Barrios. Please keep your questions on the applicable issues in this case. If there is a conspiracy theory, it is not for this court to rule on it. Objection sustained.”

  “Yes, your Honor.” Evan turned to Jeanette and smiled. “I have no further questions for this witness.”

  The judge checked his watch. “Mr. Dubois, your witness.”

  “I would like to reserve the right to cross-examine this witness later, your Honor, after my case-in-chief.”

  “Highly irregular, Mr. Dubois. You have any objections, Mr. Devereaux?”

  “No, your Honor, just so long as I may reserve my right for rebuttal.”

  “Granted. You may step down, Ms. LaFleur. Please keep yourself available. And please do not discuss your testimony with anyone until after Mr. Dubois cross-examines you.”

  Jeanette nodded and stepped out of the witness box. The eyes of the entire courtroom followed her back to her seat.

  “Since the hour is quite close to the lunchtime, we’ll recess now and resume at one o’clock. Court dismissed.”

  The judge rose and with him the court.

  Back at the plaintiff’s table, Evan turned to Lynn and patted her shoulder. Then he turned to Jeanette. “You did a wonderful job up there. The jury was impressed.”

  “The press were writing like crazy about the missing sixty percent of files,” Tony said.

  Evan grinned. “Well, I figure we are at least assured of a full house at our post-trial press conference. Especially after Dubois slipped up and classified my attempt to wander off the path as proposing a conspiracy. I expected him to object. Then I would have given the hint. He saved me the effort.”

  “But it wasn’t allowed in.”

  Jeanette was confused — or maybe she wasn’t processing because she was bone-tired.

  “No, and it shouldn’t have been. It isn’t relevant to the case at hand. But I wanted the press to hear whatever I could get in after Dubois objected. As I said, he played right into my hands. There is a conspiracy, and we’ll lay out the facts for that in the press conference.”

  “What facts?” Tony asked.

  “Evan is going to give them the documentation from the Eye Bank about the donor tissue and SRP tissue,” Jeanette said. “With the copies of the billing records, the press will have a starting place to investigate the money angle. We’re also hoping DEA and Customs will be ready to share some of the information that Scott found in Brazil about One World and its connections to Rutherford.”

  Jeanette choked back the tears that welled in her eyes at the thought of Scott and his sacrifice. She’d made it this far. She refused to be weak now.

  “Great, just great,” Tony said. “Now I know why you’re being threatened in the courthouse. Do you have a death wish?”

  Evan yelled, “What threat?”

  “Jeanette was threatened out in the lobby. A disembodied voice. In the courtroom, I saw Rutherford gesture a shooting gun at her. Hell, I felt chills, and it wasn’t even aimed at me.”

  “Somehow, they must have found out about the press conference,” Evan said. “What are we doing about security in the courthouse?”

  “I’ve told the security officers, but I’ll call the feds. Maybe they’ll go out on a limb long enough to confirm they have Rutherford under investigation for federal crimes and send some U.S. Marshals over here.”

  “Do they? Have Rutherford under investigation for federal crimes?” Jeanette asked.

  “You didn’t tell her?” Tony looked accusingly at Evan.

  “I thought you did.”

  “No.”

  “Suffice it to say, neither one of you bothered to tell me.”

  Jeanette pushed her hair out of her eyes. She was furious.

  “It’s obvious to me that Rutherford knows someone or has contacts in the local federal prosecutors’ office. Wouldn’t you say?” Tony said.

  “Then why in the hell is he still here? Didn’t we think he would run if he knew his little games were being looked into by the feds?” Monique asked.

  “Maybe he isn’t afraid of the feds,” Tony said.

  He merely voiced the grim reality of what everyone was thinking.

  CHAPTER FORTY-THREE

  Jeanette couldn’t eat her lunch. Her mind was too busy digesting dark and depressing thoughts.

  It was giving her indigestion.

  “Stop fretting and eat,” Lynn urged.

  “I can’t. I keep wondering about the man who threatened me and my child. Then I worry about Dubois asking me questions like he did at the deposition. I know he has nothing, but it’s the way he looks at me and the tone in his voice.”

  “The judge and Evan will protect you from the looks and tone,” Monique said. “This judge doesn’t like counsel intimidating witnesses. You’ll be fine.”

  Jeanette cast the woman a grateful glance. “I’m sure I will. I just don’t want to lose the case for Lynn.”

  Lynn felt for, then patted her shoulder. “You can’t lose the case. In fact, your testimony made the jury sit up and take notice. I predict several more of the people harmed by Rutherford will be knocking on your door to testify for them after this is all over.”

  “Oh, no. I couldn’t go through this again.”

  Monique laughed. “You won’t have to. Lynn’s right about your testimony, but since it is now a public record, all those other plaintiffs’ counsel will be asking for a transcript in order to enter your testimony into the record. So, don’t worry. You won’t have to become a professional expert on Rutherford and the living lens project.”

  Evan and Tony finally arrived from wherever they’d rushed off to after court.

  Tony frowned when he noticed her plate. She gritted her teeth, daring him with her eyes to say something about the untouched food. He just shook his head and sighed.

  Evan didn’t catch the byplay, because the first words out of his mouth after he sat down were, “Jeanette, you need to eat. It will be a long afternoon.”

  Monique tugged on Ev
an’s jacket, then whispered to him, saving Jeanette the need to explain once more. It was nice they were concerned, but she had to cope with all this in her own way. And eating was not on her list of coping mechanisms at the moment. Maybe later, when this was all over.

  She took a sip of her cola. The sugar and caffeine would keep her going.

  “Jeanette? Jeanette?”

  How long had Evan been trying to get her attention?

  “Yes?” She looked over at the lawyer.

  “The courthouse security has brought in more men. Tony has three more of his men coming to sit at the back of the courtroom. We’ll use them to get you to the press conference.”

  Evan’s serious face expressed his deep concern. “We won’t let anyone get to you.”

  “What’s going to happen next?”

  “Dubois will put on his experts and try to countermand our experts. Then he’ll probably finish up with Rutherford.”

  “Then he’ll call me to the stand. Why did he do it that way?”

  Evan scrunched his forehead. “I think he hopes Rutherford will charm the jury. And they count on you falling flat on your face in cross, casting doubt on your…”

  “My what?” Jeanette hadn’t meant that to come out as shrill as it had.

  Monique sent a disgusted look at Evan, then answered for the red-faced man. “On your morals, your brains, your memory — whatever Dubois can think of to discredit you in the eyes of the jury.”

  Well, it was what she’d feared all along, but now that it was voiced and out in the open, she wasn’t as scared as she thought.

  “Since I have nothing to hide,” she said, “what can he do to me? Plus, it isn’t about me. It’s about Lynn. Right?”

  “Right.” Monique and Evan said together.

  ———

  The first few witnesses called by Dubois didn’t make a dent in Evan’s carefully constructed case. Two of the expert physicians wouldn’t stake their reputations to validate that Rutherford’s studies were as successful as had been claimed. Obviously, they were in the courtroom during her testimony and had processed the large holes in the patient data. They did testify that in appropriate cases the living lens procedure was the only hope some patients had. Heck, Dr. Van Hoven had said much the same thing. But Lynn Barrios wasn’t one of those appropriate cases.