“No.”
“In fact, your investors rejected the investment proposal at first, didn’t they?”
“An investment based on a diagnosis of clinically possible ALS was deemed too risky.”
“They decided to invest only after you spoke with Dr. Marsh, correct?”
“I did speak with him.”
I gestured toward the jury, as if inviting them into the conversation. “Would you share with the jury Dr. Marsh’s exact words, please?”
Even the judge looked up, his interest sufficiently piqued. Dr. Herna shifted his weight again, obviously reluctant.
“Let me say at the outset that Dr. Marsh is one of the most respected neurologists in Florida. I knew that his diagnosis of clinically possible ALS was based upon strict adherence to the diagnostic criteria established by the World Federation of Neurology. But I also knew that he was an experienced physician who had seen more cases of ALS than just about any other doctor in Miami. So I asked him to put the strict criteria aside. I asked him to talk to me straight but off the record: Did he think Jessie Merrill had ALS?”
“I’ll ask the question again: What did Dr. Marsh tell you?”
Herna looked at his lawyer, then at me, and said, “He told me that if he were a betting man, he’d bet on ALS.”
“As it turns out, Ms. Merrill didn’t have ALS, did she?”
“Obviously not. Dr. Marsh was dead wrong.”
“Excuse me, Doctor. He wasn’t wrong. Dr. Marsh’s diagnosis was clinically possible ALS. You knew that he was still monitoring the patient, still conducting tests.”
“I also know what he told me. He told me to bet on ALS.”
“Only after you pushed him to speculate prematurely.”
“As a colleague with the utmost respect for the man, I asked for his honest opinion.”
“You urged him to guess. You pushed for an answer because Ms. Merrill was a tempting investment opportunity.”
“That’s not true.”
“You were afraid that if you waited for a conclusive diagnosis, she’d be snatched up by another group of viatical investors.”
“All I know is that Dr. Marsh said he’d bet on ALS. That was good enough for me.”
I moved closer, tightening the figurative grip. “It wasn’t Ms. Merrill who made the wrong diagnosis, was it?”
“No.”
“As far as she knew, a horrible death was just two or three years away.”
“I don’t know what she was thinking.”
“Yes, you do,” I said sharply. “When you reviewed her medical file and coughed up a million and a half dollars to buy her life insurance policy, you became her second opinion. You convinced her that she was going to die.”
He fell stone silent, as if suddenly he realized the grief he’d caused her—as if finally he understood my animosity.
I continued: “Ms. Merrill never told you she had a confirmed case of ALS, did she?”
“No.”
“She never guaranteed you that she’d die in two years.”
“No.”
“All she did was give you her medical records.”
“That’s all I saw.”
“And you made a professional judgment as to whether she was going to live or die.”
“I did.”
“And you bet on death.”
“In a manner of speaking.”
“You bet on ALS.”
“Yes.”
“And you lost.”
He didn’t answer. I couldn’t let go.
“Doctor, you and your investors rolled the dice and lost. Isn’t that what really happened here?”
He hesitated, then answered: “It didn’t turn out the way we thought it would.”
“Great reason to file a lawsuit.”
“Objection.”
“Sustained.”
I didn’t push it, but a little sarcasm had telegraphed to the jury the question I most wanted answered: Don’t you think this woman has been through enough without you suing her, jerk?
“Are you finished, Mr. Swyteck?” asked Judge García.
“Yes. I think that wraps things up.”
I turned away from the witness and headed back to my chair. I could see the gratitude in Jessie’s eyes, but far more palpable was the dagger in my back that was Dr. Herna’s angry glare.
Jessie leaned closer and whispered, “Nice work.”
“Yeah,” I said, fixing on the word she’d chosen. “I was entirely too nice.”
____
JESSIE AND I were seated on the courthouse steps, casting cookie crumbs to pigeons as we awaited notification that the jury had reached a verdict.
“What do you think they’ll do?” she asked.
I paused. The tiers of granite outside the Miami-Dade courthouse were the judicial equivalent of the Oracle of Delphi, where lawyers were called upon daily to hazard a wild-ass guess about a process that was ultimately unpredictable. I would have liked to tell her there was nothing to worry about, that in twenty minutes we’d be cruising toward Miami Beach, the top down on my beloved Mustang convertible, the CD player totally cranked with an obnoxiously loud version of the old hit song from the rock band Queen “We Are the Champions.”
But my career had brought too many surprises to be that unequivocal.
“I have a good feeling,” I said. “But with a jury, you never know.”
I savored the last bit of cream from the better half of an Oreo, then tossed the rest of the cookie to the steps below. A chorus of gray wings fluttered as hungry pigeons scurried after the treat. In seconds it was in a hundred pieces. The victors flew off into the warm, crystal-blue skies that marked February in Miami.
Jessie said, “Either way, I guess this is it.”
“We might have an appeal if we lose.”
“I was speaking more on a personal level.” She laid her hand on my forearm and said, “You did a really great thing for me, stepping in and taking my case in midstream. But in a few minutes it will all be over. And then I guess I’ll never see you again.”
“That’s actually a good thing. In my experience, reuniting with an old client usually means they’ve been sued or indicted all over again.”
“I’ve had my fill of that, thank you.”
“I know you have.”
I glanced toward the hot dog vendor on the crowded sidewalk along Flagler Street, then back at Jessie. She hadn’t shifted her gaze away from me, and her hand was still resting on my forearm. A little too touchy-feely today. I rose and buried my hands in my pants pockets.
“Jack, there’s something I want to tell you.”
The conversation seemed to be drifting beyond the attorney-client relationship, and I didn’t want to go there. I was her lawyer, nothing more, never mind the past.
“Before you say anything,” I said, “there’s something I should tell you.”
“Really?” she said.
I sat on the step beside her. “I noticed that Dr. Marsh was back in the courtroom today. He’s obviously concerned.”
My abrupt return to law talk seemed to confuse her.
“Concerned about me, you mean?” she said.
“I’d say his exact concern is whether you plan to sue him. We haven’t talked much about this, but you probably do have a case against him.”
“Sue him? For what?”
“Malpractice, of course. He eventually got your diagnosis right, but not until you went through severe emotional distress. He should have targeted lead poisoning as the cause of your neurological problems much earlier than he did. Especially after you told him about the renovations to your condo. The dust that comes with sanding off old lead-based paint in houses built before 1978 is a pretty common source of lead poisoning.”
“But he’s the top expert in Miami.”
“He’s still capable of being wrong. He is human, after all.”
She looked off to the middle distance. “That’s the perfect word for him. He was so human. He took such s
pecial care of me.”
“How do you mean?”
“Some doctors are ice cold, no bedside manner at all. Dr. Marsh was very sympathetic, very compassionate. It’s not that common for someone under the age of forty to get ALS, and he took a genuine interest in me.”
“In what way?”
“Not in the way you’re thinking,” she said, giving me a playful kick in the shin.
“I’m not thinking anything,” I said, lying.
“I’ll give you a perfect example. One of the most important tests I had was the EMG. That’s the one where they hook you up to the electrodes to see if there’s any nerve damage.”
“I know. I saw the report.”
“Yeah, but all you saw was the report. The actual test can be pretty scary, especially when you’re worried that you might have something as awful as Lou Gehrig’s disease. Most neurologists have a technician do the test. But Dr. Marsh knew how freaked out I was about this. I didn’t want some technician to conduct the test, and then I’d have to wait another week for the doctor to interpret the results, and then wait another two weeks for a follow-up appointment where the results would finally be explained to me. So he ran the test himself, immediately. There aren’t a lot of doctors who would do that for their patients in this world of mismanaged care.”
“You’re right about that.”
“I could give you a dozen other examples. He’s a great doctor and a real gentleman. I don’t need to sue Dr. Marsh. The investors can have my three million dollars in life insurance when I die. As far as I’m concerned, a million and a half dollars is plenty for me.”
I couldn’t disagree. It was one more pleasant reminder that she was no longer the self-centered twenty-something-year-old of another decade. And neither was I.
“You’re making the right decision,” I said.
“I’ve made a few good ones in my lifetime,” she said, her smile fading. “And a few bad ones too.”
I was at a loss for the right response, and preferred to let it go. But she followed up.
“Have you ever wondered what would have happened if we hadn’t broken up?”
“No.”
“Liar.”
“Let’s not talk about that,” I said.
“Why not? Isn’t that just a teensy-weensy part of the reason you jumped into my case?”
“No.”
“Liar.”
“Stop calling me a liar,” I said.
“Stop lying.”
“What do you want me to say?”
She moved closer, invading my space again.
“Just answer one question for me,” she said. “I want you to be completely honest. And if you are, I’ll totally drop this, okay?”
“All right. One.”
“If I had hired you from the beginning of this case—if you and I had been lawyer and client for six months instead of just a couple days—do you think something would have happened between us?”
“No.”
“Why not?”
“That’s two questions,” I said.
“Why do you think nothing would have happened?”
“Because I’m married.”
She flashed a thin smile, nodding knowingly. “Interesting answer.”
“What’s so interesting about it? That’s the answer.”
“Yes, but you could have said something a little different, like: ‘Because I love my wife.’ Instead, you said, ‘Because I’m married.’”
“It comes down to the same thing.”
“No. One comes from the heart. The other is just a matter of playing by the rules.”
I didn’t answer. Jessie had always been a smart girl, but that was perhaps the most perceptive thing I’d ever heard her say.
The digital pager vibrated on my belt. I checked it eagerly, then looked at Jessie and said, “Jury’s back.”
She didn’t move, still waiting for me to respond in some way to her words. I just gathered myself up and said, “Can’t keep the judge and jury waiting.”
Without more, she rose and followed me up the courthouse steps.
____
IN MINUTES WE were back in Courtroom 9, and I could feel the butterflies swirling in my belly. This wasn’t the most legally complicated case I’d ever handled, but I wanted to win it for Jessie. It had nothing to do with the fact that my client was a woman who’d once rejected me and that this was my chance to prove what a great lawyer I was. Jessie deserved to win. Period. It was that simple.
Right. Was anything ever that simple?
My client and I stood impassively at our place behind the mahogany table for the defense. Plaintiff’s counsel stood alone on the other side of the courtroom, at the table closest to the jury box. His client, a corporation, hadn’t bothered to send a representative for the rendering of the verdict. Perhaps they’d expected the worst, a prospect that seemed to have stimulated some public interest. A reporter from the local paper was seated in the first row, and behind her in the public gallery were other folks I didn’t recognize. One face, however, was entirely familiar: Dr. Joseph Marsh, Jessie’s neurologist, was standing in the rear of the courtroom.
A paddle fan wobbled overhead as the decision makers returned to the jury box in single file. Each of them looked straight ahead, sharing not a glance with either the plaintiff or the defendant. Professional jury consultants could have argued for days as to the significance of their body language—whether it was good or bad if they made eye contact with the plaintiff, the defendant, the lawyers, the judge, or no one at all. To me, it was all pop psychology, unreliable even when the foreman winked at your client and mouthed the words, It’s in the bag, baby.
“Has the jury reached a verdict?” asked the judge.
“We have,” announced the forewoman. The all-important slip of paper went from the jury box, to the bailiff, and finally to the judge. He inspected it for less than half a second, showing no reaction. “Please announce the verdict.”
I felt my client’s manicured fingernails digging into my biceps.
“In the case of Viatical Solutions, Inc. v. Jessie Merrill, we the jury find in favor of the defendant.”
I suddenly found myself locked in what felt like a full-body embrace, Jessie trembling in my arms. Had I not been there to hold her, she would have fallen to the floor. A tear trickled down her cheek as she looked me in the eye and whispered, “Thank you.”
“You’re so welcome.”
I released her, but she held me a moment longer—a little too long and too publicly, perhaps, to suit a married man. Then again, plenty of overjoyed clients had hugged me in the past, even big burly men who were homophobic to the core. Like them, Jessie had simply gotten carried away with the moment.
Right?
“Your Honor, we have a motion,” said the lawyer for Viatical Solutions, Inc., as he approached the lectern. He seemed on the verge of an explosion, which was understandable. One and a half million dollars had just slipped through his fingers. Six months ago he’d written an arrogant letter to Jessie telling her that her viatical settlement wasn’t worth the paper it was written on. Now Jessie was cool, and he was the fool.
God, I loved winning.
“What’s your motion?” the judge asked.
Parker Aimes cleared his throat. “We ask that the court enter judgment for the plaintiff notwithstanding the verdict. The evidence does not support—”
“Save it,” said the judge.
“Excuse me?”
“You heard me, Mr. Aimes.” With that, Judge García unleashed a veritable tongue-lashing. He truly seemed taken with Jessie. At least a half-dozen times in the span of two minutes he derided the suit against her as “frivolous and mean-spirited.” He not only denied the plaintiff’s post-trial motion but he so completely clobbered them that I was beginning to wish I had invited Cindy downtown to watch.
On second thought, it was just as well that she’d missed that big hug Jessie had given me in her excitement over the verdict.
With a bang of the judge’s gavel, it was all over.
Jessie was a millionaire.
“Time to celebrate,” she said.
“You go right ahead. You’ve earned it.”
“You’re coming too, buster. Drinks are on me.”
I checked my watch. “All right. It’s early for me, but maybe a beer.”
“One beer? Wimp.”
“Lush.”
“Lawyer.”
“Now you’re hitting way below the belt.”
We shared a smile, then headed for the exit. The courtroom had already cleared, but a small crowd was gathering at the elevator. Most had emerged from another courtroom, but I recognized a few spectators from Jessie’s trial.
Among them was Dr. Marsh.
The elevator doors opened, but I tugged at Jessie’s elbow. “Let’s wait for the next one,” I told her.
“There’s room,” said Jessie.
A dozen people packed into the crowded car. In all the jostling for position, a janitor and his bucket came between me and Jessie. The doors closed, and as if it were an immutable precept of universal elevator etiquette, all conversation ceased. The lighted numbers overhead marked our silent descent. The doors opened two floors down. Three passengers got out, four more got in. I kept my eyes forward but noticed that, in the shuffle, Dr. Marsh had wended his way from the back of the car to a spot directly beside Jessie.
The elevator stopped again. Another exchange of passengers, two exiting, two more getting in. I kept my place in front, near the control panel. As the doors closed, Jessie moved all the way to the far corner. Dr. Marsh managed to find an opening right beside her.
Was he actually pursuing her?
It was too crowded for me to turn around completely, but I could see Jessie and her former physician in the convex mirror in the opposite corner of the elevator. Discreetly, I kept an eye on both of them. Marsh had blown the diagnosis of ALS, but he was a smart guy. Surely he’d anticipated that Jessie would speak to her lawyer about suing him for malpractice. If it was his intention to corner Jessie in the elevator and breathe a few threatening words into her ear, I would be all over him.
Mystery Writers of America Presents the Prosecution Rests Page 15
