Authors: Larry D. Thompson
Audrey Metcalf almost jumped from her chair and marched to the witness. Before she could get there, the judge interrupted. “Ms. Metcalf, you haven’t tried a case in my court before, but I require that the first time a lawyer approaches any witness he or she seek my permission.”
Metcalf stopped in her tracks. “Permission to approach the witness, Your Honor?”
“Granted, Ms. Metcalf.” Judge Nimitz beamed. “Goes back to my navy days when anyone had to ask permission to come aboard a ship.”
Several of the jurors smiled at the interchange, knowing the judge’s background.
Metcalf dropped a thick notebook on the bench in front of Dr. Challa. “You’ve seen this, haven’t you, Doctor? It’s the detailed policy and procedure manual for the Exxacia trial. And if you’ll go to the last page, you’ll find what, Dr. Challa?”
“That’s my signature, Ms. Metcalf.”
“You acknowledged that you had read this and agreed to
strictly
adhere to those protocols, didn’t you?”
Challa picked up the document and flipped through the pages.
“Didn’t you, Dr. Challa?”
“Yes, ma’am. I suppose I did. I read the important parts, anyway.”
Metcalf grabbed the document from the witness and turned to a page she had previously marked. Forsythe displayed it on the overhead. “Right here, Dr. Challa, it says that you are to report any irregularities to Ceventa’s regional supervisor, doesn’t it?”
Challa glanced at the document and then at Tom Lorance, seeking some help. Lorance ignored him. “Yes, Ms. Metcalf, it does say that. I might add that your supervisor told me to just get all of the charts completed. He told me not to worry about what was in the manual.”
“Objection, Your Honor! Nonresponsive. Move to instruct the jury to disregard.”
Luke smiled at the answer and the objection, knowing that telling the jury to disregard what they just heard from the witness stand was equivalent to telling a child to ignore a commercial for erectile dysfunction on television. Still, the judge sustained the objection and instructed the jury.
“And, Dr. Challa, you were also instructed that if any patient failed to show up for an appointment, that patient was to be dropped from the clinical trial and reported to Ceventa.”
“Yes, that’s true, but I’d already received the five hundred dollars for those subjects, and I didn’t want to have to give the money back.”
“That’s the problem, isn’t it, Dr. Challa,” Metcalf sneered. “You didn’t care about your patients. You were just in it for the money. You were paid over fifty thousand dollars, and you weren’t about to give any of it back, were you?”
Dr. Challa tried to sit up straight as he answered. “Certainly I took the money. I thought I was a part of something important.”
Metcalf returned to her seat and continued. “Right, Doctor. Let’s tell the jury a little more about your background. First of all, you tried three times to pass the family practice boards and failed all three times, correct?”
Dr. Challa lowered his head and mumbled something.
“We can’t hear you, Dr. Challa!” Metcalf challenged.
Challa raised his head and said a little more loudly, “That’s true.”
“Now, if we wanted to find your office we’d go to that little strip center across from the university. Your office is in the middle between a liquor store and a convenience store, isn’t it?”
“Yes, ma’am. My uncle makes me a good deal on the rent there, and it’s convenient to the students.”
“Speaking of your uncle, you work in his liquor store about half the time because you don’t have very many patients, correct, Dr. Challa?”
Challa squirmed in his seat. “I help him sometimes if I’m not busy and he has to run an errand.”
“And, Dr. Challa, there’s no hospital in this town that will give you privileges, is there?”
“I don’t have hospital privileges anywhere,” Challa said softly, his eyes flitting about the room as if looking for a way to escape.
“That’s all for this witness, Your Honor. I’ve heard all I need to from him.”
“Now, wait just a minute, Judge,” Tom Lorance said. “I resent and object to the sidebar comment.”
“Sustained, Mr. Lorance. Ms. Metcalf, you best keep those kinds of comments to yourself. Mr. Lorance, you have any questions of your client?”
“Just one, Judge. Dr. Challa, have you done your dead level best to tell the truth to this jury?”
“Absolutely, Mr. Lorance,” Dr. Challa said as he turned and looked at the jury to reaffirm his answer.
“If Ceventa had bothered to ask you about your background, the kinds of questions Ms. Metcalf just asked you, would you have told the truth then, too?”
“Of course, Mr. Lorance.”
On the morning break, Luke pulled Sue Ellen over to a corner of the courtroom. “What do you think?”
“Luke, you did the best you could, but he didn’t help us much. The jury did get a little peek at a part of the clinical trial, but overall Metcalf proved him to be nothing more than a hack, looking to make a few easy bucks.”
“You holding up okay?” Luke asked.
Sue Ellen looked down and slowly shook her head as she turned to go back to the defense table.
Luke watched her walk away and wondered if he was doing the right thing. Then his thoughts returned to the trial and he gazed out the window, his mind searching for a way to get all of the clinical trial data in evidence or somehow pull a rabbit out of a hat. Unfortunately, he had neither a rabbit nor a hat.
Luke walked Clyde Hartman through his background—college degree, medical school, residency in internal medicine—and his decision to choose to practice in a small town rather than accept an academic appointment. Certainly he was a far different physician from Dr. Challa. When Dr. Hartman glanced at the jury, he nodded at three who were his patients. If they trusted the care of their families to Dr. Hartman, they would believe what he had to say.
“Dr. Hartman, what’s Samantha’s current condition?”
Dr. Hartman faced the jury. “Her liver is failing. She spends most of her time in a hospital bed at home. She needs to be in the hospital, but she doesn’t want to leave her dad. Instead, Mr. Vaughan arranged for a home health nurse to move in with them. She can get out of bed for a couple of hours at a time, only she’s too weak to walk. She has to use a wheelchair. I stopped by to see her this morning. Now her abdomen is distended, full of fluid. It’s called ascites. The ascites is a sign that her liver failure is reaching end stage. I’m going to have to stick a needle in her abdomen this evening to drain that fluid.”
A number of the jurors grimaced at the description of the procedure. Luke was caught off guard as shock replaced the poker face he normally maintained as a trial lawyer.
“I’m sorry, Luke. I didn’t have a chance to tell you before I took the stand. You and I can handle it this evening.”
Luke took a moment to regain his composure and continued. “Doctor, I’m putting a photo of Samantha on the overhead. What can you tell the jury about it?”
The photo had been taken before Samantha got sick. It showed a beautiful redhead with a couple of freckles on the end of her nose, wearing a Texas State University T-shirt, jeans, and a smile that would have warmed the heart of any young man. Cocoa was at her feet, her face turned up to her mistress.
“That’s Sam before she took Exxacia. She was a vibrant, beautiful young lady who was making straight A’s at Texas State. I’m—”
Metcalf got to her feet. “Objection, Judge. He’s trying to tie her illness to Exxacia, and he hasn’t been shown to have the qualifications to express that opinion.”
Judge Nimitz thought for a minute and even stared up to the ceiling as if looking for divine guidance. “Sustained, Mr. Vaughan, unless you can establish his credentials as a liver specialist.”
Luke nodded his understanding. “No problem, Your Honor. Our hepatologist is the next witness. Dr. Hartman, is that how Sam looked before she came to you with hepatitis?”
“Yes. She was a beautiful girl.”
Sue Ellen removed the photo and replaced it with a recent one, showing Sam in a wheelchair, much thinner, with washed-out hair and an obvious yellow tinge to her complexion.
“That’s Sam as she looks now. She’s lost about thirty pounds. Her skin is yellow; it’s a little hard to see in this photo, but the whites of her eyes are also yellow.”
Luke took a deep breath before he asked the next question. “How much longer does she have to live?”
Silence filled the courtroom. The jurors and everyone in the audience awaited Dr. Hartman’s answer.
Clyde shook his head. “I wish I could be more optimistic, but at the very best a matter of months without a liver transplant, maybe only weeks. Dr. Stevens can be more precise.”
Luke took a Kleenex from the box on the table and wiped his eyes as he said softly, “No more questions, Your Honor.”
Audrey Metcalf knew she had to go easy on a local doctor. “Doctor, you’re not qualified to say what caused the hepatitis, are you?”
“No, Ms. Metcalf, I’m not. However, I can say that it’s a drug-induced hepatitis, and the only drug she had taken in at least two years before she got sick was Exxacia.”
Metcalf started to object and then thought better of it. No reason to emphasize the point. She shifted to a different subject. “Doctor, you know that Samantha was a heavy drinker, don’t you?”
“I know that as a teenager she did like a lot of teenagers. I suspect she had a little too much to drink a few times, but I understand she quit drinking when she returned from a semester at A&M.”
“Now, Doctor,” Metcalf said as she placed a document on the overhead, “you know that she was—”
Luke jumped to his feet, jerking the document from the overhead as he did. “Your Honor, we need to approach the bench.”
Nimitz had a chance to glance at the document before it was pulled from the overhead and was already prepared to jump down Metcalf’s throat.
“Judge,” Luke whispered at the bench, “she just put up a copy of Sam’s DUI conviction. She knew not to put it on her exhibit list because she knew you wouldn’t allow it in evidence. You’re the one who accepted her guilty plea and put her on probation. It’s about to be expunged from her record. That conviction isn’t admissible for any purpose. I demand sanctions!”
Nimitz tried to control his anger. “You lawyers come over to the side of the bench away from the jury.” Judge Nimitz turned his chair away from the jury and waited for them to reach him. “Ms. Metcalf, I’m appalled at your conduct. If it wouldn’t delay this trial, I’d hold you in contempt and have my bailiff throw you under the jail.”
Metcalf tried to put a spin on her conduct. “Judge, it was just to emphasize her drinking problem, and we all know that heavy drinking can cause cirrhosis of the liver and many of the same symptoms Samantha has. I fully intended to advise the jury that it was a probated sentence that was removed from her record.”
Judge Nimitz drummed his fingers on his bench as he thought. “Okay, here’s what I’m going to do. At the next break, we’re going to mark that conviction for the record, not to go to the jury, but for an appellate court to know what you’ve done. And, Ms. Metcalf, that’s twice you and your client have conducted yourselves in a way that should be sanctioned. Two black marks and we’re just barely into the trial. Don’t you believe for a minute that I’m not keeping a running tally. This will be dealt with at the conclusion of the trial. Are you through with this witness?”
“No, Judge,” Metcalf replied, not the least bit chagrined. “I have a couple more questions.”
The lawyers returned to their seats as Judge Nimitz spoke to the jury. “Ladies and gentlemen, Ms. Metcalf put a document on the overhead that was not admitted into evidence. She and her client directly violated our rules of evidence. It was only up there briefly, but if any of you had a chance to see it, I command you to disregard it.”
The jurors nodded their heads. Two studied Metcalf with looks of disdain.
“Dr. Hartman,” Metcalf asked, “isn’t it true that you ordered Tylenol for Samantha’s headaches?”
Luke and Sue Ellen looked at each other, wondering what the relevance of the question was.
“Ms. Metcalf, I don’t know if I ordered Tylenol, but I did note in my chart that she periodically had to take Tylenol for headaches. Tylenol seemed to give her the most relief.”
“Thank you, Doctor.” Metcalf smiled. “No more questions.”
The last witness for the day was Shepherd Stevens, MD, the San Antonio hepatologist. His testimony was blunt. Samantha had only two or three months to live. It was imperative that she get a liver transplant, but that would cost half a million dollars. Her problem was further compounded by her rare blood type, severely limiting prospective donors. Over Audrey Metcalf’s strenuous objections, Judge Nimitz permitted his opinion that the hepatitis and liver failure were directly caused by Exxacia.
Luke told Sue Ellen he would call her later in the evening, pushed past the reporters, telling them that he had to get ready for the next day, and hurried the three blocks to his house, pulling a large briefcase and dreading every step of the way. He wrestled with how to tell Sam that Clyde was going to have to put a needle in her abdomen and finally settled on a straightforward description of what was to be done and why. As he turned the corner, he saw Clyde’s Chevrolet pickup parked in front of his house. Clyde rose from a rocker on the porch and met him at the steps with a look of concern on his face and a black bag in his left hand.
“How bad is it, Clyde?” Luke asked.
“She’s got quite a bit of fluid in her abdomen. I’ve been monitoring it and trying to control it with a low-salt diet and diuretics. In addition to not eating, she’s having some difficulty breathing. Draining the fluid will give her a lot of relief.”
Luke knocked quietly on Samantha’s door and then entered. Sam was curled into a ball under a single sheet, her breathing noticeably labored. Luke mentally kicked himself for not noticing the problem before, but he had been too wrapped up in trial preparation. Cocoa got up from her place at the foot of the narrow bed, stretched, and walked over to be petted. Luke hated to wake Samantha but knew he had no choice.
“Sam, Sam,” he said quietly as he placed his hand on her shoulder. “Wake up, Sam.”
Samantha stirred and then opened her eyes. The yellow in them seemed even more prominent. “Oh, hi, Dad. You already through for the day? Dr. Hartman, why are you here again?”
Luke sucked in a breath and sat on the edge of the bed. “Sam, Dr. Hartman says that the reason you’re not eating is because there’s fluid in your abdomen. He’s going to get it out. Then you’ll feel better and will be able to eat.”
The pupils in Sam’s eyes grew big. “How’s he going to do that?” she asked, knowing that she wouldn’t like what she was about to hear.
“Sam,” Dr. Hartman said, “I’m going to put a needle into your abdomen. The only time you’ll feel any pain is when I inject some local anesthetic.”
“Dad, I don’t want to do this. I hate needles,” Samantha said as tears streamed down her cheeks.
Luke stroked Samantha’s hand as he took a Kleenex and wiped her eyes, then his own. “I know, baby. We have to do it.”
Samantha squeezed her eyes shut and said, “Okay. Get it over with. I don’t want to look.”
Clyde opened his bag and pulled out a bottle of Betadine, a small needle and syringe, a larger needle and syringe, some tubing, and a sterile quart-sized container. He raised Samantha’s pajama top to expose her abdomen. “Okay, Sam, I’m going to clean the area. You’ll just feel a cool liquid.” Clyde gently rubbed the abdomen with Betadine and then picked up the smaller syringe and inserted the needle into a small bottle. “Sam, this is that little prick I told you about. It’ll sting for just a few seconds, and then the area will be numb.” As Clyde injected the anesthetic, Samantha winced in pain and squeezed her dad’s hand harder, then relaxed as the sensation dissipated.
“Okay, Sam, we’re going to wait about a minute to make sure the anesthetic is effective. Then I’m going to put in a bigger needle and get rid of that fluid.” Clyde picked up a large-bore needle and inserted it. Once he was satisfied it was in place, he removed the syringe and replaced it with a tube that was connected to the bottle he had placed on the floor. Dark yellow fluid filled the tube.
When the bottle was almost full, the flow from the tube went from a stream to a drip. It seemed like an eternity to Luke. Dr. Hartman gently removed the needle. “Okay, Sam, that’s it. I’m going to wipe the area with a topical antibiotic and put a big Band-Aid on it. You can open your eyes. You’re going to feel a lot better now.”
Samantha blinked open her eyes as Luke again wiped tears away. He felt tension he had not even noticed drift from his body. “Sam, I’m going to get Mary to make you a chocolate milkshake. Thanks, Clyde.”
Clyde nodded, told Samantha he would check on her the next day, and made his way to the front door.
“Sam, I’m going to be in my office. Call me if you need anything.” Luke turned to go across the hall.
“Wait, Dad,” Samantha said as she pushed the control button to raise her bed to a sitting position. “How’s the trial going?”
“We’re off to a good start.” Luke smiled.
“What about Josh?”
“No word on him yet. I suspect he’ll turn up in the next couple of days.”
“Dad, are you still sure we’re doing the right thing?”
“Yeah, baby, I am,” Luke lied.