Silent Justice: A Ben Kincaid Novel of Suspense bk-9

by William Bernhardt

  “Time consuming, yes. Which is another drawback. But it still wouldn’t be nearly enough—”

  “I’ll pay you fifty thousand dollars.” Ben felt his heart stop even as he said it. But he was desperate. He needed this man in the witness chair.

  “You mean—as a flat fee?”

  “That’s right.” It would take every penny Ben had managed to wheedle out of The Brain. But he had no choice.

  “Regardless of what conclusions I reach?”

  “Correct.”

  “Regardless of what happens when I take the stand?”

  “I’m not looking for a mynah bird, Doctor. I just want someone with unimpeachable credentials and experience in the field to take the stand and tell the jury what happened.”

  Rimland touched a finger to his lips. For the first time, Ben had the impression he was considering it. “Give me twenty-four hours. I’ll get back to you.

  Ben felt his heart slowly restarting. “I’ll be waiting for your call.”

  Chapter 25

  BEN DECIDED TO FORGO the usual shaking of hands and pretending to be collegial as he entered the judge’s courtroom for the hearing on Colby’s many defense motions. What was the point? Everyone involved knew he had absolutely no feelings of collegiality toward Colby. And by not going through the usual greeting process, he left Colby wondering: Who was that distinguished-looking gentleman with the salt-and-pepper beard Ben brought to court with him? It was pleasant to think he might be introducing a tiny bit of uncertainty into Colby’s master plan. It might not be much, but even the tiniest chink in the defense armor could only work to Ben’s benefit.

  Colby sat at the defense table with his team, trying not to stare at the newcomer. He had brought his client, Myron Blaylock, along for the ride, too. Ben couldn’t imagine why. Perhaps the old man just wanted to be here to watch Ben’s case go down in flames. Colby also had brought no fewer than five other Raven lawyers—practically one per motion. Once again, it seemed Colby’s firm was sparing no expense in their effort to bury the plaintiffs" case—or to run up as big a bill as possible trying.

  They didn’t have to wait long this morning. Almost the instant the big hand touched twelve, Judge Perry emerged from chambers. He appeared as serious as ever. He smiled briefly at Colby—and did not smile at all at Ben. He took his seat, plopping a large stack of books and papers beside him. He was ready to go. Presumably the vast number of defense motions had inspired him to get the show rolling as soon as possible.

  “I have read the parties" briefs,” Judge Perry said, “so don’t feel obligated to regurgitate every word. I should say at the outset, however”—he cast an evil eye in Ben’s direction—”that I take these issues very seriously. Despite the enormous pretrial publicity, of which I do not approve”—another evil look Ben’s way—“I will not hesitate to dismiss this case if that course seems appropriate after the court has heard these motions. Why don’t we begin with—”

  “Your honor,” Ben said, rising to his feet, “before we begin, may I introduce the newest member of the plaintiffs" team?”

  Perry did not appear annoyed at having been interrupted. Apparently he was curious about who was sitting beside Ben, too. “Of course, counsel. Proceed.”

  Ben’s companion rose. “This is Professor Jack Matthews, author of several books and professor of tort law.”

  The judge cleared his throat. “Did you say, Jack Matthews?”

  “Yes, your honor.” Ben had to resist smiling. He knew the name rang a bell with the judge. He had seen the judge’s eyes dart downward to the stack of books he had brought in with him—including a gray-colored softback Ben knew was the issue of the TU law review that contained Matthews’s most recent article on causation issues in complex tort litigation.

  “And . .. Professor Matthews is assisting the plaintiffs?” the judge said, apparently trying to mask his incredulity.

  “That’s correct, your honor. He’s already filed his entry of appearance.” Ben proceeded to recite a brief but nonetheless impressive litany of Matthews’s credentials and academic achievements.

  The judge drank it all in, still amazed and surprised. He could be imagining it, but Ben had the distinct impression his credibility rating with the judge was rising like the mercury in a thermometer on an Oklahoma summer day. “Will you be … splitting witnesses with Professor Matthews at trial?”

  “No, your honor,” Ben answered. “I’ll still be handling the trial. Professor Matthews will be consulting with me on legal issues. Particularly those causation difficulties the court earlier expressed concerns about.”

  “I see.” Judge Perry fingered the rim of his glasses, obviously still not quite sure what to think of all this. “Well then, let’s proceed.”

  “Your honor. If I may,” Colby said, with his usual calm, direct, supremely confident manner. Ben had seen out the corner of his eye that he’d been whispering with Myron Blaylock. “I believe we may have a bit of a problem here.”

  Ben didn’t need any problems, not just when it appeared there was some chance of surviving this hearing. What did they have up their sleeves now?

  “It appears we may have a client conflict issue,” Colby continued. “I am reliably informed that Professor Matthews has worked for the defendant H. P. Blaylock in the past. That being the case, it would be inappropriate for him to now act against their interests. Although we mean no disrespect to the distinguished professor, I’m afraid he must be disqualified.”

  The judge peered intently through his black-rimmed half-glasses. “Is this true, Mr. Kincaid?”

  “If I may address that issue,” Professor Matthews said, rising. “I’m probably the best equipped to respond to this charge. It is true that I worked for the Blaylock company in the past. It was several years ago. I worked in-house, and was responsible principally for the drafting of corporate documents. I never did any work on the present case and I have not worked for them since.”

  The judge coughed. “Still, if there’s any question—”

  “With respect, I believe there is no question of disqualification in this instance. The Rules of Professional Conduct, at Rule 4.2, combined with comments one through ten, make clear that disqualification only occurs when there is ongoing representation or a substantial connection between the former matter and the present one.”

  “Your honor,” Colby interjected, “I must insist that the present case touches or may touch upon literally every aspect of the Blaylock company’s business. It seems to me that any corporate work may have exposed the professor to trade secrets or insider knowledge that he could use, even unwittingly, to his former client’s disadvantage in the present litigation.”

  Professor Matthews didn’t miss a beat. “That may be Mr. Colby’s viewpoint, your honor, but it is not the viewpoint of the Rules of Professional Conduct or the considerable case law that has developed pursuant to these rules. I could cite numerous cases, copies of which I have with me today, in which former connections far more prominent than mine were found to not preclude representation. Furthermore, I have prepared an affidavit, filed with the court this morning, in which I state that I learned nothing during my brief prior relationship with the company that could possibly be of use in this suit. That is the only evidence on this subject on record at this time. Since it is unrebutted, I believe the rules of this court require that it be accepted as fact.”

  Ben drew in his breath. Wowzah! Hiring this dude was the best move he’d ever made.

  Colby didn’t even bother responding. There was nothing he could say. He’d lost, and he was smart enough to know it.

  Judge Perry leaned back in his chair. “Mr. Colby, if you come up with additional evidence at some time in the future, I’ll allow you to introduce it. But for now, I see no problem with Professor Matthews proceeding in this case. His insight on these complex tort issues may be of benefit to us all.”

  Ben had to restrain himself from jumping up out of his chair. He knew he could never overcome the fa
ct that Perry had history with Colby and considered him a friend. But if he could establish Matthews as the brains of the case, Colby’s motions and tactical maneuvering would be futile.

  “Well then,” the judge said, “now that that’s out of the way, shall we get started on the motions? I suggest we begin with the defendant’s motion for summary judgment. After all, if that one is granted, the rest of the motions will become moot.” He nodded toward the defense table. “Mr. Colby, it’s your motion. Why don’t you begin?”

  “Thank you, your honor.” Colby took his position behind the podium. “It’s really a very simple motion, based upon the express language of Daubert versus Merrill Dow Pharmaceuticals. In that case, the distinguished nine justices of the Supreme Court, the highest court in the land, held that scientific testimony cannot be accepted unless—”

  “Excuse me. Your honor?”

  It was Professor Matthews again. Rising to his feet. “If I could make a clarification.”

  Colby’s cheeks puffed up. “Sir, here in court, unlike the classroom, it is traditional to allow the first speaker to finish what he has to say before beginning the rebuttal by the opposition.”

  “Oh, I know, I know,” Matthews said, the picture of harmless gentility. “But I hate to allow a misstatement to stand uncorrected.”

  Colby arched an eyebrow. “A misstatement?”

  The judge leaned forward. “What would that be, Professor?”

  Matthews didn’t hesitate. “The Daubert case was not decided by the full Supreme Court. Two of the justices recused themselves. Therefore, only seven members actually voted, and the final decision was a four-three split—a slim plurality.”

  Even from where he was sitting, Ben could feel the heat rising off Colby’s collar. “I don’t see that the exact count is of much importance, your honor. Whatever the count, the case is now law.”

  “But there are many matters the case does not address,” Matthews replied. “And given the slimness of the plurality, it suggests that on some issues even that slight consensus could not be reached.”

  Colby drew himself up. “Be that as it may, the Daubert case, which is now the supreme law of the land, held that courts may not accept expert scientific testimony unless it first determines that it will aid the trier of fact—the jury. That means the court must rule on its relevance and the scientific validity of the reasoning, methodology, and principles underlying the testimony.”

  “Agreed,” Matthews said quietly.

  “In the present case, the plaintiffs intend to admit scientific testimony that is speculative in the extreme, and that has not been generally accepted by the majority of the medical community.”

  “Mr. Colby is now, of course, referencing the language of the Frey test,” Matthews interjected. “Totally rejected by Rule 702 of the Federal Rules of Evidence and the Daubert decision.”

  “Be that as it may,” Colby continued. His voice was acquiring a bit of a tremor. “The plaintiffs" proposed testimony is not supported by any credible scientific evidence. It is quackery of the worst sort—the sort that is bought and sold by unscrupulous persons willing to do or say anything to make a buck.”

  Ben started out of his chair, but Matthews waved him back. “Your honor, I must protest. While I recognize that Mr. Colby has an ethical duty to provide zealous representation, the statements he has just made are simply incorrect.”

  The judge appeared interested. “How so?”

  “The medical expert we propose to put on the stand, Dr. Abbott Rimland, is perhaps the world’s leading expert on the subject of leukemogenesis.”

  “He’s practically the only man on earth who believes these chemicals can cause cancer!” Colby bellowed.

  “An open mind is often the doorway to great discoveries,” Matthews replied. “Galileo said that, your honor. And he was right. In this case, Dr. Rimland’s pioneering work has allowed him to reach trailblazing conclusions relating to the causes of urban cancer.”

  “He has a theory,” Colby responded. “No credible proof.”

  “Again, that is not true. He has performed extensive controlled studies involving laboratory animals—”

  “Which is not the same thing as performing tests on human beings,” Colby said firmly. His expression suggested that he felt they had finally arrived at a point he could win. “This very issue has already been visited by the federal courts, in the case of”—he paused momentarily as an associate handed him a photocopied case—“Vernon versus Maplewood Medical Arts. This court concluded that tests on lab animals were insufficient to justify testimony as to probable effects on human beings.” He paused, smiling, and held the case out. “If the learned professor would care to peruse the case …”

  Matthews didn’t even glance at it. “The Vernon case was decided by unconvincing reasoning based upon a state statute which does not exist here in Oklahoma. Most commentators have agreed that the dissents are the best reasoned portions of the entire case. And, as Mr. Colby failed to mention, the case comes from the Third Circuit, so it is not mandatory authority over this court. Since the Vernon decision, three other cases have visited the same issue”—Matthews rattled three more case names off the top of his head—“and every one of them permitted the scientific testimony, holding that while testing on lab animals might not be conclusive as to effects on humans, it was certainly sufficient to support a reasoned expert opinion.” He paused, allowing himself—and everyone else—to catch their breath. “The latter of these cases, your honor, the Buchner case, is from the Tenth Circuit, and therefore is mandatory authority as to this court.”

  Judge Perry leaned back in his chair. “Well then,” he said with a slight chuckle, obviously impressed, “that would seem to decide the matter. Anything further to say, Mr. Colby?”

  Colby’s eyes were as dark as night. “No, your honor.”

  “Very well, then. The defendant’s motion for summary judgment is denied. Furthermore, based upon the argument I have heard, I will allow the plaintiffs" medical experts to testify at trial. I will warn counsel, however, that I will be listening to that testimony very carefully. Although the professor has convinced me that the jury should be permitted to hear the evidence, if the court determines that the evidence is not sufficient to support a finding in the plaintiffs" favor, I will not hesitate to intervene.”

  Matthews bowed his head slightly. “Understood, your honor.”

  “Very good. Let’s move on to the rest of these motions.” He glanced up at Matthews. “They shouldn’t take too long.”

  They didn’t. The court whipped through Colby’s remaining seven motions in less than half an hour. Matthews handled all the arguments, and it was clear that, from the judge’s viewpoint, Matthews could do no wrong. Colby might be his friend, but Matthews was the legal expert, and when he spoke, Judge Perry listened. Matthews was prepared for everything, anticipating Colby’s arguments and deflecting them with seeming ease. The results were never in doubt.

  With Matthews at the helm, the plaintiffs defeated six of the remaining seven motions, and took a partial victory on the seventh. All the motions in limine were defeated. The motion to censure Ben was defeated, almost without discussion. The judge ruled that the plaintiffs would have to produce medical records and submit to medical tests, although at Matthews’s suggestion, the tests were significantly scaled down from what the defendant had requested.

  All in all, it was a smashing victory for the plaintiffs, and a crushing defeat for the defendant. Ben could see Myron Blaylock’s dander rising with each ruling. Best of all, Ben felt that, for perhaps the first time since this case began, the court was treating him with deference and respect. Apparently the feeling was that, if the distinguished Professor Matthews was willing to work with Ben, he couldn’t be all bad.

  Ben caught Colby’s eye on the way out. “Looks like there’s going to be a trial, Colby. You must be crushed.”

  “Crushed?” Colby walked close to Ben, so no one else could hear. “Sure, I tried t
o stop the case from going to trial. I had an ethical obligation to do so. But now this case is going to be tried, and the trial will last, probably, what? A month? Two? Maybe longer. I’ll have to staff appropriately. My client has no choice but to defend to its utmost ability. So I figure my firm will make something like half a million dollars.” He paused. “Crushed? Yeah—I’m devastated.”

  Colby stepped even closer, close enough that a whisper was more than enough. “No, Kincaid, I’m not crushed. But by the end of this trial, you will be.”

  Chapter 26

  FOR ONCE, BEN CAME home from work in a relatively jubilant mood. True, he was staring down the throat of the worst, most complex, most expensive trial he had ever attempted in his entire career. But he had scored a major victory—two, actually. He’d gotten Arthur Turnbull’s new and improved testimony on the record, and he’d won the hearing on Colby’s motions, won with flying colors. There was still much to be done, but at least he was coming into the trial on a winning streak. So he was naturally in high spirits—

  Until he saw the note from Joni pinned to his door. It was only four words long, but those four words spoke with magnificent clarity: WE’re AT THE HOSPITAL.

  He found Joni in the fifth-floor corridor, hovering outside Mrs. Marmelstein’s room.

  “They won’t let me go in,” she explained. Her usually perfectly coiffed hair was a mess; her face was streaked and blotchy. “They’ve been in there for more than an hour.”

  “What happened?” Ben asked.

  “I don’t know. I just.…” She ran her fingers through her hair. “I was only gone a minute. Somehow—she must’ve fallen trying to get out of bed.”

  Ben winced. “How bad?”

  Joni’s eyes started to swell. “It’s bad, Ben. Real bad. I don’t know how—I didn’t know—I was only gone a minute …”

  Ben put his arm around her and lowered her to a chair. Joni was so dependable and so good at caretaking that he almost forgot how young she was—barely more than a teenager. She was shouldering enough responsibility to break people much older and more experienced than she. “It isn’t your fault,” he said.