by David Staats
The doctor looked embarrassed. He twisted his head upwards, stretching his neck as if his shirt collar were too tight. “You’re speculating,” he said.
“Doctor, we’ve agreed that Mr. Hargrave could have died ten seconds after he entered the sauna, right?”
“Alright.”
“And it’s really just a matter of simple mathematics that if the Health Club had checked the sauna ten minutes after he entered it, his death in that case could not have been prevented?” Mr. Dure’s tone gave the impression that he was toying with the witness. “Can’t we agree on this? Hmm?”
The doctor answered in a flat, resentful tone. “Alright.”
“Doctor, you’ve never run a health club, right?”
“No.”
“And you do not have an academic degree in health club management, right?”
“No.”
Mr. Dure turned to address the bench. “Your Honor, I move to strike this witness’s entire testimony as irrelevant. His opinion is obviously not a medical opinion, but an opinion about how a health club should be run. He has just admitted he has no expertise in that area, so his testimony should be stricken.”
This got Mr. Wakefield to his feet. He requested a sidebar conference. We all convened at the end of the bench again, and after a lot of argument, the judge denied Mr. Dure’s motion.
Mr. Wakefield concluded his case, and Mr. Easey began his case, attempting to prove that Mr. Hargrave had committed suicide. His case was already badly hurt by the ruling that he could not put on his psychiatric witness, Dr. Sadsbury. Mr. Easey first introduced documents by stipulated agreement to show that only three days had elapsed between the issuance of the policy and Hargrave’s death.
Then he called Dr. Amalfitano to the stand. (The doctor had called Mr. Dure and said he couldn’t be Mr. Dure’s expert because he had to serve as expert for the insurance company.) In contrast to Mr. Wakefield’s expert, Dr. Amalfitano looked more like a college professor than a business executive. He wore neat slacks and a sports jacket. He had the same lively, friendly expression that I remembered from our visit to his office.
The doctor testified that he had performed a physical examination of Hargrave three days before his death and that he had been in excellent health.
“What was the condition of his heart?” asked Mr. Easey.
“It was in excellent condition. His EKG was excellent and his blood pressure almost perfect. At his age, you couldn’t ask for better,” testified the doctor.
“Do you agree, doctor, with the cause of death as entered on the death certificate, ‘Myocardial infarction’?”
“I am in no position to agree or disagree, not having performed an autopsy. I can only say that in light of my examination a few days earlier, it is a most surprising result.”
Mr. Wakefield cross-examined. “You do a number of physical examinations for the Fidelicity Insurance Company, don’t you?” demanded Wakefield.
“I do.”
“And you wouldn’t want to jeopardize that lucrative stream of income by testifying in a way that would be inconsistent with what the insurance company wants?” snarled Wakefield.
“It’s not enough income for me to tell lies.”
“How much do you earn per year from doing examinations for Fidelicity?”
“Most years it’s probably not more than three thousand dollars.”
“So over ten years it’s about thirty thousand dollars?”
“Possibly.”
“And you contend that wouldn’t influence your testimony?”
“Over ten years, it’s not that much money.”
Mr. Wakefield took up a new line of question. “Doctor,” he asked, “during your examination of Mr. Hargrave, just three days before he died, did he make any complaints of pain?”
Before the doctor could answer, Mr. Easey objected, and this led to a long sidebar conference about hearsay and doctor-patient privilege. Ultimately, the judge ruled that the doctor could testify about what Mr. Hargrave had said.
“No complaints of pain,” said the doctor.
“He also did not complain of depression, did he?” asked Mr. Wakefield.
“No, nothing of that sort.”
“And, he told you of plans for the future, right? Travel plans? He was excited about his upcoming trip to Europe?”
“He did say that he was looking forward to visiting his daughter in Europe, yes.”
“To summarize,” said Mr. Wakefield, “Mr. Hargrave was in excellent health; he had no complaints of pain or depression; he was eagerly looking forward to a vacation and a trip to Europe: all of that makes Mr. Hargrave an unlikely candidate to commit suicide, right?”
Mr. Easey objected. The judge sustained the objection because Dr. Amalfitano was not a psychiatrist. But I took notice of how Mr. Wakefield got the idea across to the jury, regardless whether the doctor answered the question.
Mr. Dure’s cross-examination was brief. “Doctor, can you distinguish between a heart attack caused by, say, excessive strain on the heart due to alcohol and heat, on the one hand, and a heart attack caused by, say, asphyxiation, or lack of oxygen?”
“Not by physiological signs. In both cases you will likely find plethora, that’s congestion, and cyanosis, that’s a blue color, in the face. You may be able to tell by environmental factors.”
“What do you mean by environmental factors?”
“Oh, for example. If you have a corpse with the indicia of having suffered a heart attack, but the corpse was found with a plastic bag over its head, then you can say with some degree of medical probability that the heart attack was caused by asphyxiation or lack of oxygen. So the plastic bag is an environmental factor that assists in assigning a cause of death.”
“I take it then, that if in a case like you suggested, that if the plastic bag were removed after the death, it would appear to be just a heart attack?”
“It could appear that way.”
After Dr. Amalfitano left the stand Mr. Easey said, “I call plaintiff, Vanessa Hargrave.” This seemed to surprise both her and Mr. Wakefield. She however, reacted with poise. She scooted her chair back and rose and walked serenely to the stand. She wore a wool skirt, in a gray color appropriate for the season; it came to just above the knee, and she work black pumps with two-inch heels, showing off legs that made me a little envious. A crimson cardigan sweater was just the right color to accent her darkish blonde hair, and under the cardigan she wore a white silk blouse.
Mr. Easey spent a lot of time just establishing basic information about her working at the health club, how she got hired, what work she did and things like that. If she was making a good impression on me, she must have been making a good impression on the jury. I passed a note to Mr. Dure. “Isn’t he leading the witness?” Mr. Dure scribbled on the note and passed it back to me. “He’s not hurting us.”
“You got to know Blake Culler quite well during this time, did you not?” asked Mr. Easey.
“I don’t know what you mean by ‘quite well,’” she said. I had read the transcript of her deposition and recognized where she had learned this type of response.
“Objection, leading,” said Mr. Wakefield.
“Sustained.”
Mr. Easey tried again. “What was your relationship with Blake Culler?”
“I wouldn’t say we had a ‘relationship,’” she said. “He was just a co-worker.”
“So his relationship with you was that of a co-worker?”
“If you want to put it that way.”
“Did Blake ever act inappropriately towards you?”
A little color came to her face. “Again, I don’t know what you mean by ‘inappropriate.’”
“Are you saying you don’t know what kind of behavior is inappropriate?”
“You’re trying to twist my answer. I don’t know what you have in mind by that word. Obviously you’re trying to suggest something by innuendo.”
“Well, Mrs. Hargrave, let me be more precise
. Didn’t you and Blake kiss on at least one occasion?”
“No! You have no right to suggest such a thing.”
“We shall see,” said Mr. Easey. “Your witness,” he said to Mr. Wakefield.
“No questions.” Mr. Wakefield glared daggers at Mr. Easey.
Mr. Dure stood up to cross-examine. “Mrs. Hargrave, you are the second Mrs. Hargrave, isn’t that right?”
“Ours was his second marriage. That’s right.”
“And the defendant in this case, Elizabeth MacCreedy, was the first Mrs. Hargrave?”
“Yes.”
“Hasn’t there been some tension between you and the defendant?”
“Not really. I wouldn’t say so.”
“In fact, on the day in question, July 3, wasn’t there a dispute between Ms. MacCreedy and you and your husband over money gifts to her children?”
“There was some discussion of the matter. Not a dispute.”
“Hasn’t Ms. MacCreedy accused you of stealing her husband?”
“Not to my face, anyway. I don't know.”
“You were an employee of the Health Club during the time when you are alleging that the Health Club was negligent, isn’t that right?”
“Alright, yes.”
“Doesn’t it seem to you that if the Health Club were negligent, that you, as an employee, bear some responsibility for that?”
“No! Why should I? I wasn’t any part of management.”
“Did you check on your husband while he was in the sauna?”
“How could I? I couldn’t go into the men’s locker room!”
“You could have asked someone to check for you – Mr. Culler, for example. Did you do that?”
“No.”
“I’m just trying to understand the motives for bringing this suit,” said Mr. Dure.
“Is that a question?” said Mrs. Hargrave.
Mr. Dure turned his back on her and walked to our table. He paged through some papers, leisurely. Tension built up in the courtroom due to the long silence. Finally he looked up and said “I’m through with this witness.”
It was four thirty on Friday afternoon. The judge adjourned the trial until Monday morning.
* * *
The first thing Monday, Mr. Easey took up a yellow legal pad and turned back several curled and dog-eared pages. “I call Jimmy Ridger,” he said, looking up at the judge.
The bailiff disappeared through the courtroom doors. While he was out, Mr. Wakefield rose to object and there was a sidebar conference. I went up with Mr. Dure. Mr. Wakefield said the witness should be barred from testifying because his whole testimony would be irrelevant.
“As Mr. Wakefield knows,” said Mr. Easey, “this witness will testify that he saw the plaintiff romantically involved with another employee of the health club, and this is relevant to establishing one reason that poor Mr. Hargrave did away with himself, namely that he was depressed over his wife’s infidelity.”
The judge said, “You should have filed a motion in limine, Mr. Wakefield. I’m not going to exclude the entire testimony at this stage. You still have the right to object to individual questions.”
As Mr. Ridger came into the courtroom and made his way into the well of the court, Mr. Easey paced nervously and buttoned his suit jacket. It pulled tightly over his large stomach. I had to admit that his manner had the effect of giving an impression that something important was about to happen. I am starting to pick up on things that I might have missed before. So he was telling the jury by his body language that they were about to hear important testimony.
Mr. Ridger was a man with unkempt, dark hair and a pot belly. I recognized him. I had seen him walking around town for years, but had never known his name. He wasn’t dressed up for court; he wore the same type of clothes as he usually wore, dark colors, with a pair of dirty, white athletic shoes on his feet. Mr. Easey had him state his name, where he lived, what he did for a living – he was on disability.
“Do you recognize this woman, the plaintiff,” asked Mr. Easey
“Yeah, I seen her.”
“Where and when did you see her?”
“I seen that woman,” he leered at Vanessa Hargrave, and pointed at her, “kissing some guy in the alley.”
Mr. Easey had to ask him which alley. Then Mr. Easey showed him two photographs, which he had earlier showed to us and to Mr. Wakefield. One was of the deceased Mr. Hargrave and the other was of Blake Culler.
“Were either of these two men the one that you saw Mrs. Hargrave kissing?”
“Yeah, that’s the one. Swear to God.” He picked the photo of Blake Culler.
During this testimony most of the jury were watching Mrs. Hargrave closely. It was odd to see nine or ten heads facing in her direction, like iron filings oriented to a magnetic field, and only two or three faces looking the other way, at the witness. Mrs. Hargrave sat staring at the witness, her jaw tight, slowly shaking her head. I saw her left fist clenching spasmodically.
Mr. Wakefield did a good job cross-examining. He brought out how dark it had been, how far away Mr. Ridger had been, the fact that Mr. Ridger had not had an eye examination in a long time, he couldn’t remember when, and so he couldn’t say if his vision was 20-20. Mr. Wakefield noted the time of day, around twilight; the fact that the alleyway would not have had sunshine in it at that hour; that the distance must have been at least fifty yards; and that Mr. Ridger had a conviction for felony larceny. And he brought out that Mr. Ridger had discussed his testimony before trial with Mr. Benton Wright, an investigative agent of the Fidelicity Insurance Company.
When Mr. Wakefield asked this question, Mr. Wright abruptly lost the small smile that had been playing about his mouth. He sat up straighter, and although he kept his head oriented towards the witness, I saw his eyes shift over to look at the jury.
“Have you received any money, or anything of value for testifying here today?” asked Mr. Wakefield.
“Money? No, nothing. Swear to God.”
“No further questions.”
Mr. Easey called Mortimer Golden to the stand. It seemed like it took an awfully long time for him to come into the court. The rustling, whispering, and fidgeting seemed to get worse, until finally the judge banged his gavel. “Order,” he called out. “Mr. Easey, maybe you have another witness you can call while this Mr. Golden accommodates himself to actually appearing in the courtroom?”
“He was right here, Your Honor. I’ll go check on him.”
“You’ll do no such thing. You stay here, and if he does not show up in the next sixty seconds, you call another witness.” The judge made a show of looking at his wristwatch.
Mr. Easey remained standing, first, looking down at some papers on the counsel’s table; then, when the minute seemed about up, the doors in the back opened, and Mr. Golden came into the courtroom. He wore a dark tan suit. his shoes were scuffed. It was noticeable that his hair was thinning..
Mr. Easey had Mr. Golden testify about how long he had known Mr. Hargrave and how close they had been, and even that Mr. Hargrave had chosen him to be the executor under his will.
Mr. Wakefield began to object a lot, particularly about leading questions. The judge sustained a lot of the objections and it began to seem ridiculous even to me.
“Would you say that you were very good friends with Mr. Hargrave?” asked Mr. Easey.
Mr. Wakefield objected that the question was leading. Without even waiting for the judge to rule, Mr. Easey said, “I withdraw the question. How would you characterize your relationship with Mr. Hargrave?”
“We were very good friends,” Mr. Golden said.
I thought to myself, what was the point of making the objection? But finally the judge said, “Mr. Easey, I think we’ve had enough leading. If you continue with it, I may order this witness’s entire testimony stricken from the record.”
“Very good, Your Honor,” said Mr. Easey. “I apologize to the court, if it seemed that I was leading. I was just trying to save the time of
the court and the jury by streamlining the testimony. But certainly, I understand and appreciate Your Honor’s point. We’re just now getting into the important part of the testimony and there won’t be any problem. Thank you, Your Honor.”
Mr. Golden testified that in the months before his death Mr. Hargrave had been depressed and nervous about something, but that he had not been willing to talk about it.
Mr. Wakefield made a hearsay objection and the lawyers went up to the bench and argued for a long time. When they got done, the judge overruled the objection and as Mr. Dure came back to our table, I was dying to know what had been said, but he was focused on the testimony and paid no attention to me. But I noticed that Mr. Easey prefaced his next question by saying, “I don’t want you to tell us anything that Mr. Hargrave said, but just tell the jury how the man acted.” And so Mr. Golden testified that Mr. Hargrave had been “down at the mouth”; had “acted tired”; “had moped”; and similar things. Mr. Wakefield made lots of objections on all kinds of grounds: irrelevance, unqualified opinion testimony; incompetence; and hearsay again; but the judge overruled them all.
When his direct testimony was finished, the judge called a ten-minute recess. Mr. Dure and Ms. MacCreedy and I huddled at our table and talked in whispers. Mr. Dure said, “When we interviewed Mr. Golden, he was vague and noncommittal about whether Hargrave had been depressed. Now he’s four-square behind the idea. His testimony is not exactly inconsistent, but it is odd. I could waive cross-examination and we could hope that the jury returns a verdict of suicide. That would defeat the claim of negligence and Vanessa would lose her case. But, there is no guarantee that even if we go along with the suicide theory the jury will buy it.”
Ms. MacCreedy said, “I know that Richard did not commit suicide. Couldn’t we win on account of natural death by heart attack?”
“We might,” said Mr. Dure, “but it’s uncertain. As you know, the medical opinions are conflicting and in my view, the jury could go either way on that.” At this point, the judge came back into the court room and the bailiff cried, “All rise!”
