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
“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
“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:
“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
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.
“Jack, there’s something I want to tell you.”
The conversation seemed to be drifting beyond the attorney-client relationship, and he didn’t want to go there. He was her lawyer, nothing more, never mind the past. “Before you say anything, there’s something I should tell you.”
“Really?”
He sat on the step beside her. “I noticed that Dr. Marsh was back in the courtroom today. He’s obviously concerned.”
His abrupt return to law-talk seemed to confuse her. “Concerned about me, you mean?”
“I’d say his exact concern is whether you plan to sue him. We haven’t talked much about this, but you probably do have a case against him.”
“Sue him? For what?”
