Beyond Suspicion

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