“What report are you using there, Mr. Zinc?” the judge asked.
“It’s an investigation done by the World Health Organization in 2002. Their scientists tracked the world’s largest pharmaceutical companies and the way they use human guinea pigs in poor countries to test drugs they hope to market in rich countries.”
The judge held up both hands and said, “That’s enough. You can’t use the report if it’s not in evidence.”
“I’m not offering it as evidence, Your Honor. I’m using it to impeach this witness and question the fine reputation of this wonderful company.” By now, David felt no restraint in choosing his words. What was there to lose?
Judge Seawright frowned and scratched his chin some more, obviously uncertain. “Ms. Karros,” he said.
“He’s picking facts from a report that’s not in evidence, a report the jury will not see, unless he can somehow get it admitted into evidence,” she said, still composed but clearly agitated.
“Here’s what we are going to do, Mr. Zinc. You can use the report for impeachment purposes only, but the information must be conveyed in a manner that is exact, straightforward, and not the least bit slanted to suit your purposes. Understand?”
“Sure, Judge. Would you like a copy of the report?”
“That would be helpful.”
David walked to his table, picked up two more binders, and as he sort of strutted around the courtroom, he said, “I have an extra copy for Varrick, though I’m sure they’ve already seen it. Probably buried in a vault.”
“That’s enough of the extraneous comments, Mr. Zinc,” His Honor barked.
David said, “Sorry.” He handed a copy to the judge and then tossed one on the table in front of Nadine Karros. Back at the podium, he looked at his notes, then glared at Dr. Ulander. “Now, Doctor, back to Amoxitrol. When Varrick was testing the drug, was your company concerned with the ages of these young pregnant African women?”
For a few seconds, Ulander was unable to speak. He finally mumbled, “I’m sure we were.”
“Great. So how young was too young, Dr. Ulander? What were Varrick’s guidelines on age?”
“The subjects were required to be at least eighteen years old.”
“Have you ever seen this report, Doctor?”
Ulander again looked desperately at Nadine Karros, who, along with the rest of her squad, was cowering and making eye contact with no one. Finally, he uttered an unconvincing “No.”
Juror Number 37, a fifty-one-year-old black male, made a hissing sound that was meant to be heard and vaguely sounded like the word “shit.”
“Isn’t it true, Doctor, that pregnant girls as young as fourteen were given Amoxitrol to abort their fetuses? Page 22, Judge, last paragraph, second column.”
Ulander did not respond.
R euben Massey was sitting next to Judy Beck in the first row, defense side. As a seasoned veteran of the tort wars, he knew it was crucial to maintain a veneer of complete calm and confidence. But his heart pounded with anger, and he wanted to leap forward and grab Nadine Karros by the neck. How was this happening? How had this door been not only cracked but kicked wide open?
Varrick could have easily won on summary judgment, and he would be back at his desk, safely ensconced at corporate HQ relishing the victory and pulling strings to get Krayoxx back on the market. Instead, he was watching his cherished company get thrashed by an absolute novice.
T he novice pressed on. “Now, Dr. Ulander, did Amoxitrol ever make it to the market?”
“No.”
“Had some problems with it, didn’t you?”
“Yes.”
“What were some of the side effects?”
“Nausea, dizziness, headaches, fainting, but this is common with most emergency contraceptives.”
“You failed to mention abdominal bleeding, didn’t you, Dr. Ulander? Just an oversight, I’m sure.”
“There was abdominal bleeding. That’s why we stopped the testing.”
“You stopped it rather quickly, didn’t you, Doctor? In fact, the trials were terminated about ninety days after they began, right, Doctor?”
“Yes.”
David paused for drama; the next question was the most brutal. The courtroom was silent. “Now, Dr. Ulander, from Varrick’s sample of four hundred pregnant women, how many died from abdominal bleeding?”
The witness slowly removed his glasses and placed them in his lap. He rubbed his eyes, glanced at Reuben Massey, then gritted his teeth, looked at the jurors, and said, “We were made aware of eleven deaths.”
David hung his head for a moment, then took a load of paperwork to his table and swapped it for another stack of papers. He had no idea how far he could go at this point, but he was not quitting until instructed to do so. He returned to the podium, arranged things, and said, “Now, Doctor, let’s talk about some of Varrick’s other drugs that did make it into the marketplace.”
Ms. Karros stood and said, “Same objection, Your Honor.”
“Same ruling, Ms. Karros.”
“In that case, Your Honor, could we please have a brief recess?”
It was almost 11:00 a.m., past Judge Seawright’s usual break time of 10:30. He looked at David and said, “How much longer, Mr. Zinc?”
David held up his legal pad and said, “Gosh, Judge, I don’t know. I have a long list of bad drugs.”
“Let’s meet in chambers and talk about it. Fifteen-minute recess.”
CHAPTER 46
With three blacks on the jury, David made the tactical decision to spend more time in Africa with Dr. Ulander. During the recess, Judge Seawright decided to allow David to explore the backgrounds of only three additional drugs. “I want the jury to get this case this afternoon,” he said. Ms. Karros was still objecting, hotly at times, and the judge was still overruling her objections.
The jurors were brought in and took their seats. Dr. Ulander returned to the witness stand. David addressed him, “Now, Dr. Ulander, do you remember a drug called Klervex?”
“I do.”
“Was it made and marketed by your company?”
“It was.”
“When was it approved by the FDA?”
“Let’s see. Early in 2005, I believe.”
“Is it now on the market?”
“It is not.”
“When was it taken off the market?”
“Two years later, 2007, in June, I believe.”
“Did your company voluntarily recall the drug, or was its removal mandated by the FDA?”
“FDA.”
“And at the time of its recall, your company was facing several thousand lawsuits because of Klervex, correct?”
“Correct.”
“In layman’s terms, what kind of drug was this?”
“It was for hypertension, for patients who suffered from elevated blood pressure.”
“Were there any unpleasant side effects?”
“According to the mass tort lawyers, there were.”
“Well, what about the FDA? It didn’t yank the drug because the mass tort lawyers were upset, did it?” David
