A Patent Lie (15 page)

“If your life, or the life of someone you truly loved, depended on it, whose judgment would you follow: that of a lone, underpaid and overworked bureaucrat in the U. S. Patent Office, or the judgment concurred in by the world's leading researchers in the relevant field—the scientific experts that physicians themselves consult when they need answers to the hardest life-and-death questions—a judgment reached in each case independently and dispassionately.”

Seeley smiled to himself. As dispassionate as you can be when you are being paid handsomely for that judgment. On his legal pad, Seeley wrote a note to hit this fact hard when his time came to cross-examine St. Gall's expert witnesses.

Thorpe jammed his hands into the pockets of his suit jacket, silently studying the jurors one by one. Then he let his voice drop into the quietest whisper yet and concluded his opening statement.

“He's lost it,” Barnum said, his breath damp against Seeley's ear. “How can he expect a jury to believe in his case if he doesn't believe in it himself?”

“Puzzling,” was all that Palmieri said, snapping his laptop shut.

But Seeley knew that Thorpe's fecklessness was a ruse. This was the same man who last week dashed across the courthouse plaza to proclaim to the television cameras the certainty of his client's victory. But, if he was acting, what was the point? Was the purpose of the charade to get a jury that would not sympathize with a multinational drug company to identify with him instead? Pity me; pity my client. Had Thorpe, with decades of practice in San Francisco, misjudged the jury, or had Seeley?

TWELVE

On the witness stand, Dr. Nicolas Cordier was a portrait of rectitude: thin, almost cadaverous, he sat erect against the back of the leather chair, one long leg crossed elegantly over the other, hands loosely clasped on a knee. He could have been waiting for his introduction as the keynote speaker at a medical society meeting and not for his first appearance as an expert witness in a patent infringement trial. The plain navy suit, white button-down shirt, and old-fashioned plaid tie went with the gray hair cut short at the sides, longer on top. As Seeley walked to the lectern to begin his direct examination, Cordier brushed a recalcitrant lock back from his forehead.

Sunday's preparation had been trying. “What do you want me to say?” Cordier asked as Seeley put practice questions to him. “The truth.” Seeley had seen this before. A witness, rigorously honest in all aspects of his life, is suddenly daunted by the novel prospect of testifying in court. The physician shrugged. “Of course, the truth, but how do you wish me to”—he grappled for the word—“phrase this truth?” Seeley asked whether he had told the truth in his deposition. “Yes, of course.” Seeley had pushed the black binder containing Cordier's deposition across the table. “Then review this and make sure you stick to what you said.”

Now, at the courtroom lectern, taking Cordier through his qualifications as an expert witness—medical training in Toulouse, a pediatrics residency in Algiers, research at the Institut Pasteur in Paris, and seven years working in Africa for the United Nations AIDS agency—Seeley again worried about how the physician would tell the story of AIDS in Africa. Slow down, he wanted to say, think about your answers, or Thorpe will crush you.

At the edge of Seeley's vision, Fischler was conferring with Thorpe. Fischler rose. “May I approach sidebar, Your Honor?”

This was unexpected. Ordinarily Thorpe, as first chair, would be responsible for the leadoff witness. Thorpe remained at counsel's table, as gray and motionless as a gargoyle staring out at the proceedings.

The judge rolled her chair to the corner of the bench away from the jury. “So soon, Ms. Fischler?” There was amusement in her voice. “We haven't even heard a word of testimony.”

“Defendant is prepared to stipulate to Dr. Cordier's expertise in pediatric AIDS, Your Honor, but not in the demographics of AIDS. We're concerned that's where Mr. Seeley is going to take him.”

Farnsworth turned to Seeley.

“Defendant has Dr. Cordier's report and they've deposed him at length,” Seeley said. “They knew months ago what his testimony would be.”

“Until this morning,” Fischler said, “we didn't know he was going to be their lead witness.” She had wrestled her hair into a prim schoolteacher's bun for the trial, but still seemed discomposed. “This changes everything. His testimony's going to have a greater impact.”

That was why Fischler was in charge of Cordier. It was she who had deposed the physician. She had prepared herself for him, just as Thorpe had prepared for Steinhardt. Seeley was pleased at the unexpected windfall of his decision to put Cordier on first.

Judge Farnsworth said, “Mr. Seeley is right. You should have raised this before opening statements this morning. Now you're wasting the jury's time.” Any humor was gone from her voice. The judge was also telling the two lawyers that she didn't like being away from her jury for sidebar conferences. “On the other hand, Mr. Seeley, Ms. Fischler is entitled to know what you're trying to prove with Dr. Cordier's testimony.”

“Dr. Cordier's testimony will bear directly on the novelty of AV/AS.”

Farnsworth studied him for a moment. “I'm not sure I know how you plan to do that, but I'm confident Ms. Fischler will have an objection at the appropriate time if it turns out to be a problem.” She nodded for him to continue.

Seeley returned to the lectern and a quick back-and-forth with the witness established that Cordier practiced pediatrics at a clinic in Maseru, the capital of Lesotho, and that his practice consisted exclusively of treating HIV-positive children.

“And do these children respond well to treatment?”

“If we are able to get them antiretroviral therapy—yes, then their chances of survival are excellent.”

“And if you are not able to get them this therapy?”

“They will die of AIDS.”

“How many will die, say in Lesotho?”

“Today in Lesotho, we estimate that there are 22,000 children—infants, teenagers—who are HIV positive. Less than one in twenty of them will receive treatment.”

Seeley glanced over at the jury box. No one seemed to be having difficulty following Cordier's accented English.

“So you're saying, of these 22,000 children, roughly 21,000 will die?”

“That is correct.”

All of this was hearsay, and ungrounded in the witness's expertise, but Seeley was confident that Thorpe, with countless jury trials behind him, would not let Fischler object and risk the jury's ill will. “And, in your experience, are these numbers unique to Lesotho?” Fischler started to rise, but Thorpe's hand moved over hers.

“Unique? Yes, but only in how small the numbers are. There are approximately 230,000 HIV-positive children in South Africa, about 300,000 in Nigeria. In all of Africa, we estimate close to three million children are HIV positive.”

“And the survival rate without treatment is the same?”

“If we can treat them, perhaps 150,000 can be saved. But this is such a small number, no? The others, almost all of the three million, will die.”

Fischler was on her feet. “Objection, Your Honor. Relevance.”

Instinct told Seeley that he was at the edge of the judge's patience. “I can assure the court that Dr. Cordier's testimony will connect up.”

Farnsworth motioned the two lawyers to sidebar. “I still don't see how this relates to the novelty of AV/AS, Mr. Seeley.”

“Long-felt need, Judge.”

When a pressing problem, particularly of public health, has persisted for years, and finally one company comes up with a solution, that fact counts as evidence that the solution wasn't particularly obvious.

Fischler said, “I don't see how talking about numbers of victims makes that point.”

“I'm sure,” Judge Farnsworth said, watching Seeley over her half-frames, “that if Mr. Seeley doesn't very quickly connect up Dr. Cordier's testimony to his theory, you will renew your objection.”

When Seeley returned to him, Cordier seemed confused by the conversation between the judge and lawyers outside his hearing and the jury's. Television in Maseru, if the physician had the time to watch, probably had few courtroom dramas.

“In your clinic in Maseru, Dr. Cordier, why are you only able to get treatment to less than one in twenty of the children who need it?”

“There are three reasons—”

Anticipating that this was going to sound rehearsed to the jury, Seeley broke in. “Let's take them one at a time.”

“Expense, of course. We have succeeded in getting the price for antiretroviral treatments down to two hundred dollars a year, but many patients develop a resistance to these first-line cocktails, and we need second-line treatments like Atanazavir that can cost three to six thousand dollars a year. Remember, these are people who may earn less than a dollar a day. Foundations like the Gates Foundation help out. Also, many drug companies are lowering their prices, or licensing generics free—”

“So expense may soon disappear as a problem?” He and Cordier had spent time on this part of the testimony. It was important to Seeley that the jury not think that patents or high prices were the source of the problem. “If expense is not the major obstacle, what is?”

“Delivery. We don't have the facilities or the people or the equipment to make treatment available to every child who needs it. In climates like Lesotho, the most widely used booster drug, ritonavir, needs to be refrigerated. But who has a refrigerator?”

“You testified that there are three obstacles.”

Cordier closed his eyes and slumped into the wooden chair. For a moment, Seeley thought that, fatigued from his trip and Sunday's long preparation, the physician had fallen asleep. When, at last he opened his eyes, Seeley saw that the cause was not sleeplessness or overwork, but the exhausting futility of the conditions that he observed every day.

“It is the people themselves,” Cordier said. “They are distracted from their medical needs by poverty, by lack of education, but, most of all, by a struggle for daily survival that is so desperate, so consuming, that HIV treatment seems a luxury to them. I had a young patient, a fourteen-year-old girl, both of whose parents died of AIDS . . .”

Seeley could picture Thorpe, at counsel's table behind him, restraining his second chair. Other than Cordier's voice, with its soft inflections, the courtroom was entirely still.

“This girl, barely a teenager, turned to prostitution to support her younger brothers and sisters. Of course, now she, too, is HIV positive, as her own child will be, when—and it is inevitable—she becomes pregnant. We have offered her treatment—one of our nurses was able to seek her out—but the poor girl forgets to come in to the clinic, or she is too busy with her . . . career.”

“Your Honor—” It was Fischler, exasperated.

“Mr. Seeley?”

“I'm about to tie this up.” He turned back to Cordier. “Is it generally recognized by the treatment community that there is a solution to this endless cycle you have described?”

“A treatment like AV/AS is a solution.”

“Why is that?”

“Well”—he seemed surprised by the question—“of course, like a vaccine, it only needs to be administered once, so we don't have to rely on patients coming to the clinic on schedule. For one time only, we can even go out into the rural areas to administer it. Of course, whoever manufactures the treatment must make it available at an acceptable price.”

Seeley was expecting the caution about prices. Throughout their preparation for his testimony, Cordier was adamant about having the opportunity to make the point.

Judge Farnsworth was nodding agreeably. If she hadn't earlier seen the direction of the testimony and how it would connect to the test of long-felt need, she saw it now.

“This perception in the AIDS treatment community of the need for a vaccine, how long, Dr. Cordier, has this perception existed?”

“The AIDS virus was identified early in 1984, and the search for a vaccine—as well as for effective therapies—began almost immediately.” “And, in all this time, have any vaccines or any treatments like AV/ AS been introduced?”

“Several of them have been offered in early drug trials, but only one has been successful.”

“One?”

“Yes. AV/AS. A trial for the efficacy and safety of AV/AS was conducted in part at my clinic.”

“And do you recall what company provided that treatment?”

“Why, of course, St. Gall.”

There was a gasp from the jury box, but Seeley didn't turn.

Cordier said, “They stole the treatment from Vaxtek, no?”

Before Fischler could object, Seeley said, “I have no further questions.”

Leonard said, “I thought the cross-examination would be longer.” They were in a taxi on their way from the courthouse to an early dinner. Palmieri was in charge of tomorrow morning's witness, but Gabriela Vega, the Heilbrun, Hardy associate who was preparing Seeley's afternoon witness, had less experience than Palmieri, and Seeley wanted to be there to help if needed. But Leonard insisted. This would be their last chance to talk before he went to Washington on Wednesday for meetings at the FDA, and he promised that the Tadich Grill, only a short walk from Heilbrun, Hardy's offices, wouldn't be busy at this hour.

Seeley said, “She kept the cross short because the jury liked Cordier. She wouldn't do her client any good trying to trip him up.”

Even so, Seeley thought Fischler had been more solicitous than she needed to be, and had scored only once, when she got the physician to concede that, unlike the vaccines for measles or polio, a single AV/AS inoculation might not be enough to prevent the onset of AIDS. But the setback was small. Cordier had established a strong legal foundation for their case and, even more important, a powerful emotional one.

“Why didn't the old guy question him?”

“Thorpe's controlling every move in this case.” Seeley explained to Leonard how the change in their order of witnesses had put the defense team off balance. “Fischler doesn't ask a question she hasn't reviewed with him.”

“You ought to think about moving your practice to San Francisco.” When Seeley didn't answer, Leonard cocked his head toward the side window. “You have to admit it beats Buffalo.”

“The weather is pleasant,” Seeley said. After that, they didn't talk until they reached the restaurant.

Tadich was quiet, as Leonard promised. The woodwork was studded with ancient brass fittings and darkened by a century's layers of varnish, but the high white ceilings looked freshly painted. A few customers were at the mahogany counter that ran down the center of the long room, and others were at tables. Quartered lemons in porcelain bowls and massive chunks of crusty sourdough were set within arm's reach. The sounds of silver and china being arranged on linen echoed gently through the dining room. Knives chopped and pans clattered in the open kitchen at the back, and a vague but agreeable fragrance of buttery sauces wafted through the place. Suffusing it all was the easy self-assurance of an old and popular restaurant in the hour before the dinner rush.

A white-coated waiter recognized Leonard and took them to a table in one of the private, wood-paneled booths.

“You made quite an impression on Renata.”

Seeley looked at the menu. For some reason, at the mention of Renata, he thought of Lily, surprised to discover how close below the surface of his thoughts she was. He found himself comparing Renata's catlike aggressiveness to Lily's laconic sensuality.

“She hasn't stopped talking about you since you got here.”

Leonard was going to try to sell him something.

“I was hoping you could stop down and see her, maybe take her to dinner while I'm away. I'm not coming back until late next week.”

Was it Renata's flirtatiousness or Leonard's misshapen hopes for the family circle that made Seeley hesitate at the prospect of dinner with his sister-in-law?