you to do the direct.”
“Lower the volume, Ed. She's Palmieri's witness. He defended her deposition. He's a good lawyer. They won't be able to touch her on cross.”
“We wouldn't have this mess if you'd put Steinhardt first.”
“We're building a foundation. When Steinhardt goes on the stand tomorrow, he'll look like a hero.” The jurors were filing into the jury box. “If you want to keep the trial moving, go wait with Palmieri in front of the courthouse.”
Barnum's eyes filled with misery.
Seeley said, “I don't want them wasting their time looking for a place to park.”
Yelena Chaikovsky arrived twenty minutes later, without apologies and radiating the professional aura that too many lawyers look for in their expert witnesses. Her plump cheeks shone with well-being and the eyes behind her tortoiseshell glasses were keen. The salt-and-pepper hair and the dark flannel jacket and skirt communicated an encompassing competence. But there was a smugness about her that concerned Seeley.
Palmieri was taking Chaikovsky through her resume-the endowed chair in the Stanford economics department, her joint appointments in the university's medical and business schools-when Fischler rose. “The defense stipulates to the witness's expertise in health economics, Your Honor. There's no need to consume the court's time with her entire resume.”
Palmieri glanced at Seeley. He was taking time with the witness's credentials not so much to qualify her as an expert for purposes of the rules of evidence as to let the jury know the depth of her expertise. That was why Fischler was trying to stop him. Seeley answered by shaking his head. Let the jury see that the witness had justification for being so self-satisfied.
“Your Honor,” Palmieri said, “if the jurors are to be able to accurately weigh Professor Chaikovsky's testimony, they need to know the background and experience on which it is based.”
Farnsworth, an experienced trial lawyer, knew what the skirmish was about. “As I reminded you earlier, Counselor, the clock is running. If this is how you want to spend your time, the court will not interfere.”
Palmieri took the next five minutes to review the witness's academic degrees, her years at the U. S. Public Health Service, and an extended tour of duty working with epidemiologists at the World Health Organization's regional office in Copenhagen. A glance at the jury confirmed for Seeley that the time was well spent.
Palmieri led the Stanford professor quickly through the history of efforts to discover an AIDS vaccine, beginning in 1984. “And, yet, after twenty-three years, and all this money, and all these scientists hard at work, is it true that no one has come as close to an effective vaccine for AIDS as Dr. Steinhardt has with AV/AS?”
“That is correct.”
There was a movement behind Seeley, and Barnum took his chair at the table. It had taken him all this time to park Chaikovsky's car, and he muttered something that Seeley didn't make out as he took his seat.
“But is it true that, given enough time-and enough dollars and effort-a vaccine for any disease will ultimately be discovered?”
“Unfortunately, the answer is no. For example, there is still no fully effective vaccine for tuberculosis.”
The point of Palmieri's questions was to set up the economist's testimony on AV/AS's prospects for commercial success. Like Cordier's testimony yesterday on the long-felt need for AV/AS, so Chaikovsky's testimony that the treatment would be a great commercial success would help persuade the jury that Steinhardt's discovery had not been obvious to other workers in the field-for, if it had been obvious, and there was money to be made, why hadn't they discovered it first?
Palmieri turned from the witness to the judge. “At this point, may I ask the court to have the lights in the courtroom dimmed, and the projector and screens brought in.”
Pearsall's and Thorpe's teams had argued for weeks over the admissibility of Chaikovsky's charts showing the potential for AV/AS's commercial success and Pearsall had prevailed.
At a nod from Farnsworth, the blue-blazered bailiff switched off half the lights in the already dim courtroom and angled a screen several feet from Seeley's table so that it included the jurors and the judge in its field of view. The second screen he adjusted so that Chaikovsky and defense counsel could see it.
While the bailiff positioned the screens, Seeley thought of Palmieri's mistakes so far-the faulty pro hac motion, typing at his keyboard during Seeley's opening statement, letting his witness spend the night at home-but when the young partner came to the table for his laptop, Seeley said, “You're doing fine.”
Palmieri placed the laptop on the lectern and, after he tapped a few keys, both screens lit up. Few mishaps disconcert juries more than an exhibit that fails to work, and Seeley released the breath that he had been holding.
Chaikovsky's first chart showed Vaxtek's research costs-$320 million-in bringing AV/AS to its current point of development, completion of phase-two clinical trials. The second chart showed the estimated cost to complete the clinical trials and bring the product to market. Total research and development costs were $450 million.
“How much time does Vaxtek have to earn back this investment?”
“Eight years,” Chaikovsky said.
“Why did you pick eight years as the relevant period?”
“Well, a patent lasts for twenty years from the date it's applied for, and Vaxtek applied for this patent in 1997. But it has been ten years, and they're only now starting phase-three trials. I conservatively estimate that it will be another two years before they can actually sell AV/AS in the marketplace-twelve years in all since they applied for their patent-and that leaves them eight years to recoup their investment and make a profit.”
In the shadows, there was talk and movement in the jury box. As Seeley hoped, the brief period over which Vaxtek would be able to recover its costs was a surprise to the jurors.
Palmieri put the next chart on the screen. “On the basis of these numbers, Professor Chaikovsky, what rate of return will Vaxtek earn on its $450 million investment?”
“As you can see from the chart, the company's return over the eight-year period will average out to between twenty-two and twenty-six percent a year.”
“In your experience, studying pharmaceutical companies and their revenues, is that rate of return one that a company would consider commercially successful?”
“In this business, making any positive rate of return on research and development is considered commercial success. Remember, only three out of ten prescription drugs in this country even pay back their research and development costs. So a twenty-two to twenty-six percent return is a great success.”
Palmieri tapped a key and a pie chart came up, each slice of a different size and color. Numbers and dollar signs were inside each segment. Seeley had found the chart buried in an appendix to Chaikovsky's expert's report, and instructed Palmieri to include it in his slide show. If Seeley was right, the chart would be as important to the jury as any of the others; probably more important.
“Can you tell the jury what this chart represents?”
“This is the same estimate of revenues that Vaxtek will earn from sales of AV/AS over the life of its patent, but each segment represents a different country or region of the world.”
“Why did you slice up the world this way?”
“Because the revenues from each region will differ.”
“Because of different population size?”
“In part. But the big difference is the amount Vaxtek will be able to charge for AV/AS in each region. If you look at the red segment at the top, that's the United States, where they will be able to charge around two hundred and fifty dollars for each inoculation. But if you look at the big yellow segment at the bottom, that's sub-Saharan Africa, and the average price there is forty-five dollars, less than one-fifth of what they can charge in the States-and that's only with subsidies from governments and foundations.”
From the first day of the trial, Seeley was concerned about the impact on the jury of the protesters outside, and he instructed Palmieri to include the slide to let the jurors know that, in voting to uphold the patent, they would not be pricing Cordier's patients in Lesotho out of the market. Still, when he first saw Chaikovsky's chart, he was surprised that the African price was $45 and not $15 as Leonard had told him it would be.
“Does this mean Vaxtek will lose money on its sales in Africa?”
“No, they won't be losing money on individual sales. But…”
“But?”
“If forty-five dollars per inoculation is all they could charge around the world, they'd never make back what
