Beyond Suspicion

3

The courtroom was silent. It was the pivotal moment in the trial, Jack’s cross-examination of the plaintiff’s star witness. The jury looked on attentively-whites, blacks, Hispanics, a cross section of Miami. Jack often thought that anyone who wondered if an ethnically diverse community could possibly work together should serve on a jury. The case of Viatical Solutions, Inc. v. Jessie Merrill was like dozens of other trials underway in Miami at that very moment-no media, no protestors, no circus ringmaster. Not once in the course of the trial had he been forced to drop a book to the floor or cough his lungs out to wake the jurors. It was quietly reassuring to know that the administration of justice in Florida wasn’t always the joke people saw on television.

Reassuring for Jack, anyway. Staring out from the witness stand, Dr. Felix Herna looked anything but calm. Jack’s opposing counsel seemed to sense the doctor’s anxiety. Parker Aimes was a savvy enough plaintiffs’ attorney to sprint to his feet and do something about it.

“Judge, could we have a five-minute break, please?”

“We just got back from lunch,” he said, snarling.

“I know, but-”

“But nothing,” the judge said, peering out over the top of his wire-rimmed reading glasses. “Counselor, I just checked my horoscope, and it says there’s loads of leisure time in my near future. So, Mr. Swyteck, if you please.”

With the judge talking astrology, Jack was beginning to rethink his reavowed faith in the justice system. “Thank you, Your Honor.”

All eyes of the jurors followed him as he approached the witness. He planted himself firmly, using his height and body language to convey a trial lawyer’s greatest tool: control.

“Dr. Herna, you’ll agree with me that ALS is a serious disease, won’t you?”

The witness shifted in his seat, as if distrustful of even the most innocuous question. “Of course.”

“It attacks the nervous system, breaks down the tissues, kills the motor neurons?”

“That’s correct.”

“Victims eventually lose the ability to control their legs?”

“Yes.”

“Their hands and arms as well?”

“Yes.”

“Their abdominal muscles?”

“That’s correct, yes. It destroys the neurons that control the body’s voluntary muscles. Muscles controlled by conscious thought.”

“Speech becomes unclear? Eating and swallowing becomes difficult?”

“Yes.”

“Breathing may become impossible?”

“It does affect the tongue and pharyngeal muscles. Eventually, all victims must choose between prolonging their life on a ventilator or asphyxiation.”

“Suffocation,” said Jack. “Not a very pleasant way to die.”

“Death is rarely pleasant, Mr. Swyteck.”

“Unless you’re a viatical investor.”

“Objection.”

“Sustained.”

A juror nodded with agreement. Jack moved on, knowing he’d tweaked the opposition. “Is it fair to say that once ALS starts, there’s no way to stop it?”

“Miracles may happen, but the basic assumption in the medical community is that the disease is fatal, its progression relentless. Fifty percent of people die within two years. Eighty percent within five.”

“Sounds like an ideal scenario for a viatical settlement.”

“Objection.”

“I’ll rephrase it. True or false, Doctor: The basic assumption of viatical investors is that the patient will die soon.”

He looked at Jack as if the question were ridiculous. “Of course that’s true. That’s how they make their money.”

“You’d agree, then, that a proper diagnosis is a key component of the investment decision?”

“True again.”

“That’s why the investors hired you, isn’t it? They relied on you to confirm that Ms. Merrill had ALS.”

“They hired me to review her doctor’s diagnosis.”

“How many times did you physically examine her?”

“None.”

“How many times did you meet with her?

“None.”

“How many times did you speak with her?

“None,” he said, his tone defensive. “You’re making this sound worse than it really was. The reviewing physician in a viatical settlement rarely if ever reexamines the patient. It was my job to review Ms. Merrill’s medical history as presented to me by her treating physician. I then made a determination as to whether the diagnosis was based on sound medical judgment.”

“So, you were fully aware that Dr. Marsh’s diagnosis was ‘clinically possible ALS.’”

“Yes.”

“Possible ALS,” Jack repeated, making sure the judge and jury caught it. “Which means that it could possibly have been something else.”

“Her symptoms, though minor, were entirely consistent with the early stages of the disease.”

“But the very diagnosis-possible ALS-made it clear that it could’ve been something other than ALS. And you knew that.”

“You have to understand that there’s no magic bullet, no single test to determine whether a patient has ALS. The diagnosis is in many ways a process of elimination. A series of tests are run over a period of months to rule out other possible illnesses. In the early stages, a seemingly healthy woman like Jessie Merrill could have ALS and have no idea that anything’s seriously wrong with her body, apart from the fact that maybe her foot falls asleep, or she fumbles with her car keys, or is having difficulty swallowing.”

“You’re not suggesting that your investors plunked down a million and a half dollars based solely on the fact that Ms. Merrill was dropping her car keys.”

“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.”

“Would you share with the court Dr. Marsh’s exact words, please?”

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 Jack. He lowered his eyes 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.”

Jack moved closer, tightening his 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,” Jack 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.”

Dr. Herna fell stone silent, as if suddenly he realized the grief he’d caused her-as if finally he understood Jack’s animosity.

Jack 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.”

The witness didn’t answer.

“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.”

Jack didn’t push it, but his sarcasm had telegraphed to the jury the question he most wanted answered: Don’t you think this woman’s been through enough without you suing her, asshole?

“Are you finished, Mr. Swyteck?” asked Judge Garcia.

“Yes, Your Honor. I think that wraps things up.” He turned away from the witness and headed back to his chair. He could see the gratitude in Jessie’s eyes, but far more palpable was the dagger in his back that was Dr. Herna’s angry glare.

Jessie leaned toward her lawyer and whispered, “Nice work.”

“Yeah,” Jack said, fixing on the word she’d chosen. “I was entirely too nice.”