Beyond Suspicion, page 2
He could hear the anger in her voice. “I’d be mad, too.”
“I was furious. And scared. Especially when he told me what I had.”
Jack didn’t ask. He figured she’d tell him if she wanted him to know.
“He said I had ALS-amyotrophic lateral sclerosis.”
“I’m not familiar with that one.”
“You probably know it as Lou Gehrig’s disease.”
“Oh.” It was a more ominous-sounding “oh” than intended. She immediately picked up on it.
“So, you know what a horrible illness it is.”
“Just from what I heard happened to Lou Gehrig.”
“Imagine how it feels to hear that it’s going to happen to you. Your mind stays healthy, but your nervous system slowly dies, causing you to lose control of your own body. Eventually you can’t swallow anymore, your throat muscles fail, and you either suffocate or choke to death on your own tongue.”
She was looking straight at him, but he was the one to blink.
“It’s always fatal,” she added. “Usually in two to five years.”
He wasn’t sure what to say. The silence was getting uncomfortable. “I don’t know how I can help, but if there’s anything I can do, just name it.”
“There is.”
“Please, don’t be afraid to ask.”
“I’m being sued.”
“For what?”
“A million and a half dollars.”
He did a double take. “That’s a lot of money.”
“It’s all the money I have in the world.”
“Funny. There was a time when you and I would have thought that was all the money in the world.”
Her smile was more sad than wistful. “Things change.”
“They sure do.”
A silence fell between them, a moment to reminisce.
“Anyway, here’s my problem. My legal problem. I tried to be responsible about my illness. The first thing I did was get my finances in order. Treatment’s expensive, and I wanted to do something extravagant for myself in the time I had left. Maybe a trip to Europe, whatever. I didn’t have a lot of money, but I did have a three-million-dollar life insurance policy.”
“Why so much?”
“When the stock market tanked a couple years ago, a financial planner talked me into believing that whole-life insurance was a good retirement vehicle. Maybe it would have been worth something by the time I reached sixty-five. But at my age, the cash surrender value is practically zilch. Obviously, the death benefit wouldn’t kick in until I was dead, which wouldn’t do me any good. I wanted a pot of money while I was alive and well enough to enjoy myself.”
Jack nodded, seeing where this was headed. “You did a viatical settlement?”
“You’ve heard of them?”
“I had a friend with AIDS who did one before he died.”
“That’s how they got popular, back in the eighties. But the concept works with any terminal disease.”
“Is it a done deal?”
“Yes. It sounded like a win-win situation. I sell my three-million-dollar policy to a group of investors for a million and a half dollars. I get a big check right now, when I can use it. They get the three-million-dollar death benefit when I die. They’d basically double their money in two or three years.”
“It’s a little ghoulish, but I can see the good in it.”
“Absolutely. Everybody was satisfied.” The sorrow seemed to drain from her expression as she looked at him and said, “Until my symptoms started to disappear.”
“Disappear?”
“Yeah. I started getting better.”
“But there’s no cure for ALS.”
“The doctor ran more tests.”
Jack saw a glimmer in her eye. His heart beat faster. “And?”
“They finally figured out I had lead poisoning. It can mimic the symptoms of ALS, but it wasn’t nearly enough to kill me.”
“You don’t have Lou Gehrig’s disease?”
“No.”
“You’re not going to die?”
“I’m completely recovered.”
A sense of joy washed over him, though he did feel a little manipulated. “Thank God. But why didn’t you tell me from the get-go?”
She smiled wryly, then turned serious. “I thought you should know how I felt, even if it was just for a few minutes. This sense of being on the fast track to such an awful death.”
“It worked.”
“Good. Because I have quite a battle on my hands, legally speaking.”
“You want to sue the quack who got the diagnosis wrong?”
“Like I said, at the moment, I’m the one being sued over this.”
“The viatical investors?”
“You got it. They thought they were coming into three million in at most three years. Turns out they may have to wait another forty or fifty years for their investment to ‘mature,’ so to speak. They want their million and a half bucks back.”
“Them’s the breaks.”
She smiled. “So you’ll take the case?”
“You bet I will.”
The crack of the gavel stirred Jack from his thoughts. The jury had returned. Judge Garcia had finished perusing his mail, the sports section, or whatever else had caught his attention. Court was back in session.
“Mr. Swyteck, any questions for Dr. Herna?”
Jack glanced toward the witness stand. Dr. Herna was the physician who’d reviewed Jessie’s medical history on behalf of the viatical investors and essentially confirmed the misdiagnosis, giving them the green light to invest. He and the investors’ lawyer had spent the entire morning trying to convince the jury that, because Jessie didn’t actually have ALS, the viatical settlement should be invalidated on the basis of a “mutual mistake.” It was Jack’s job to prove it was their mistake, nothing mutual about it, too bad, so sad.
Jack could hardly wait.
“Yes, Your Honor,” he said as he approached the witness with a thin, confident smile. “I promise, this won’t take long.”
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.”
4
•
Jack and Jessie were seated side by side on the courthouse steps, casting cookie crumbs to pigeons as they awaited notification that the jury had reached a verdict.
“What do you think they’ll do?” she asked.
Jack 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. Jack would have liked to tell her there was nothing to worry about, that in twenty minutes they’d be cruising toward Miami Beach, the top down on his 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 his career had brought too many surprises to be that unequivocal.
“I have a good feeling,” he said. “But with a jury you never know.”
He 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 his forearm and said, “You did a really great thing for me, taking my case. 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.”
Jack glanced toward the hot-dog vendor on the crowded sidewalk along Flagler Street, then back at Jessie. She hadn’t taken her eyes off him, and her hand was still resting on his forearm. A little too touchy-feely today. He rose and buried his hands in his pockets.
