An Invisible Client (16 page)

36

I had never met another attorney who was as good at document drafting as Raimi was. He drafted the new complaint in one day, and we withdrew the suit in state court. We sent the new complaint to Bob, who called me, swearing and screaming before the phone was even up to my ear. The call only ended when he threw his phone, and it must’ve broken.

Federal court was a different ball game than state court, though the rules were similar. Juries received better instructions; the judges were smarter and didn’t tolerate any nonsense. Any frivolous tactic would receive a verbal reprimand, and if it happened again, sanctions would follow.

At the first hearing, Bob handed me a revised 12(b)(6) motion. I gave it to Raimi, who had the reply ready in two days. This time, we attached Debbie Ochoa’s affidavit and the 254 complaints. The judge didn’t even hold a hearing. He denied the defense’s motion and set a trial date.

More depositions followed, along with more requests for documents and more interrogatories. These weren’t the blanket depositions I’d ordered earlier: we chose only those employees who would know about the Herba-Cough complaints and why they hadn’t been acted upon. Debbie helped us narrow down the list to twenty people.

The federal courts weren’t nearly as busy as the state courts were, so the case moved along swiftly.

This case was what was called a “battle of the experts.” On our side, we had two pharmacists, two chemists, and two toxicologists. They had all agreed on the theory that cyanide poisoning, which had damaged his kidneys and liver beyond repair, had caused Joel Whiting’s death, and that the poison was contained in Pharma-K’s product, which—after a court order to the police department and the Utah State Crime Lab—we had independently tested twice. Both tests confirmed the presence not of cyanide itself but of acetonitrile. If swallowed, acetonitrile metabolized to cyanide in the body.

I had sent KGB out to talk to every former employee we could find. We located a former Pharma-K chemist who’d worked in their labs. KGB found him in New Jersey, working for a different company. He was going to come testify that the company had manufactured nail polish remover that contained acetonitrile. Our expert affirmed that the Utah location was the only plant that had produced the polish remover. He suspected that the acetonitrile had gotten into the Herba-Cough Max in small doses.

“You’re sure about that?” I asked him on the phone.

“Not to a certainty, no. The rat poison brand that was used contained acetonitrile and could certainly cause death, but it’s highly doubtful. The complaints go back four years, so it seems unlikely that rat poison would be getting into the medicine for that long. I suspect it’s the nail polish remover.”

“They seemed pretty concerned about the rat poison.”

“They probably don’t know how the poison got into their medicine and were scared. If I were a betting man, though, it’s the nail polish remover.”

“Why would these three cases be worse than the ones four years ago? Why would Joel Whiting be the only death?”

“That I don’t know. Maybe whatever flaw in the procedure they have has gotten worse and more of the acetonitrile is getting into the product. It’s tough to say. What I can say is that the nail polish remover made in that plant definitely contains the same chemical that boy died of.”

We had our link.

But on the other side, the defense had two chemists, two toxicologists, and two pharmacists. They had matched us, expert for expert.

Olivia and I worked every angle. We conducted depositions together where she would ask questions I didn’t even think of. She focused on details in a way I never could. If a witness being deposed mentioned a date, she knew just from reading the file what day it was and what the weather was like. I never would’ve remembered that stuff in a million years. She caught one witness saying he was working on a February eleventh, a Sunday, the day the plant was closed, and he quickly had to take back everything he’d said. Throwing his entire testimony into doubt.

She took the Bar sometime between depositions, and received her letter informing her she passed a couple of months later. I knew only because I’d heard one of our other clerks talking about it. Olivia didn’t even bring it up.

“We need to celebrate,” I said.

I took her out that night to a restaurant on the top floor of a building overlooking downtown Salt Lake. We sat at a table by the windows; I ordered the most expensive bottle of wine they had, and I drank it while Olivia sipped at a diet cola. Before the meal came out, she held my hand.

I smiled and sipped at my wine. “How about we talk about how you just passed the Bar?”

“It’s nothing. Eighty percent of my class passed it.”

“It’s something. Marty failed it his first time.”

“Get out.”

“See? I can tell by the way you reacted that it does matter. Don’t be modest; this is a big deal. You’re going to be able to sue people and subpoena them. It’s a powerful gift the government’s giving you. I was hoping that since you know you have the choice now, you wouldn’t go into the nonprofit realm.”

“I still want to. In some capacity at least. Why are you against it?”

“I don’t like the fake righteousness of it. Like they’re somehow doing something pure. They’re seeking profit, just like every other cutthroat business out there. But it’s worse because they’re not honest about it.”

“Maybe. Or maybe I’ll help make the one I work at better. Have it be an example to other nonprofits.”

We ate and talked for over two hours. The night sky sparkled through the glass, and Salt Lake lit up in a display of yellows, reds, and blues. The Walker Center, a skyscraper with a tower on top that changed color according to the weather, had turned a light red, indicating more heat tomorrow.

At the car, after coming down from the restaurant, we held each other and kissed.

In the morning, she came over and made us breakfast. I sat at the table and read the newspaper on my iPad. Having someone else there, treating my home like her own, was something I had missed but had never admitted to myself that I had.

We ate together before heading out to the Hyatt. I had rented their best conference room and ordered expensive pastries. Marty had set up another settlement negotiation.

This time, we came in force. Raimi and Marty sat at the ends of the table, Olivia sat next to me, and every associate at our firm was there. Bob came with the intent to intimidate, as well. He brought Rucker and at least twenty lawyers, and the hotel had to bring in more chairs. No one touched the food. No one talked. The defense attorneys weren’t sneering at me or whispering to themselves. This time, they were scared of losing a big client and maybe hurting their reputation in the process. Not just that, but they understood that I knew someone had advised Pharma-K to break the law and lie about a serial killer poisoning their medicine. The Bar and the FBI would both be watching the outcome of this case.

“Hello again, Bob.”

His upper lip curled, and he pushed a tablet to me. Figures were filled in on a spreadsheet. The bottom total was $4,150,658.98. The ninety-eight cents was my favorite part.

“Four point one,” Bob said. “She’ll be a rich woman.”

“Not enough.”

“How is that not enough? It’s one child.”

“I saw the emails, Bob. It’s not just one child—it’s hundreds. See, I think what you’re really scared of is that I’m going to contact all of them and put them together for a class action against Pharma-K. Then I’m not asking for a hundred fifty million. I’m asking for a billion. Does Pharma-K have a billion dollars on hand to pay those suits, Bob?”

“You’re in over your head. I will bury you. I’ll drag this out so long your firm will go under before you can fucking say one word to a jury.”

Rucker put a hand on Bob’s arm. “Bob, that’s enough.” He looked at me. “Six million dollars. And another two million each for the other two kids who got sick, if their lawyers will take it. That’s ten million spread to three kids. Ten million is what you wanted at some point. It was pie in the sky, a negotiating starting point that you knew would get cut down over time. But I’m willing to give it to you.”

I hesitated, seeing that Marty was practically licking his lips. “Not good enough,” I said.

“Then what the hell is good enough?” Rucker said, anger in his voice.

“I want this plant closed. I want everybody responsible for this fired. I want full disclosure to the public and the FDA. I want the FDA to inspect everything, full access, and figure out how this happened. Then I want four million for Rebecca Whiting, and I want another four million to set up a nonprofit in Joel Whiting’s name. Its mission will be consumer protection. And I want all of the people that complained about the medicine reimbursed for any expenses.”

The lawyers on the other side laughed.

“You’re talking about a loss of easily fifty million from closing the plant,” Bob said. “If we litigate this and lose, no matter what you ask for, the jury might—
might
—award Rebecca Whiting a million, maybe less. There is no way we’re agreeing to those terms.”

“Then we’re done here.” I stood up. “Enjoy the pastries. They’re delicious.”

37

Over the next several months, Bob, true to his word, made my life miserable. He filed motion after motion after motion. I had to draft a response to each one he filed. And then there would be a hearing and oral arguments on the motion. Sometimes, the judge would want additional briefing after that and then additional arguments. Some of the motions were good. Bob filed a motion in limine—a motion filed before trial that dealt with something improper that hadn’t been brought up before—asking to exclude Rebecca Whiting’s testimony based on Rule 403 in the Federal Rules of Evidence, the rule governing when evidence was relevant but too prejudicial to be presented to a jury.

He made an eloquent argument as to why the jury would be so swayed by her testimony that they would disregard any facts contrary to whatever Rebecca Whiting said. Even Judge Dustin Hoss, an older man with red hair, was impressed and said so on the record. The motion was denied, of course, but it showed what kind of work Walcott could produce if he wanted to.

Most of the motions weren’t like that. Most of them were garbage meant to drain us. Bob knew my firm had devoted most of our resources to this case and that we’d had to start turning away other cases. He just had to conduct a war of attrition and drag it out as long as he possibly could. Our firm would eventually run out of money, and we would have to settle or dismiss the case.

Our only saving grace was that we were in federal court. When I informed the judge that I had received three hundred thousand documents, he forced Walcott to catalogue every document and create a searchable index for me. By that point, we’d already done that, but it was still nice to see Bob ordered to do something he didn’t want to do.

After the eleventh motion filed, Judge Hoss had finally had enough. He demanded that Walcott write one motion containing the various claims, defenses, counterclaims, and motions in limine the defense wanted to present. Bob objected, but the judge was fed up and wanted this case before a jury.

Olivia worked eighteen hours a day for a week straight, leaving only to check on her mother and make sure she ate and took her medications, in order to get a jump on a reply motion to the final motion Bob was supposed to file. Raimi was supervising her work and told me one day, out of the blue, “We need to keep her at all costs. Her motions are amazing.”

Bob never filed his motion. My guess was that, though Walcott had resources, Pharma-K didn’t want to be their treasure chest indefinitely. At some point, the company had gotten a fat bill from Walcott, and someone had been yelled at. The trial was set, and Bob informed the judge at the pretrial conference that he was prepared to go forward.

Olivia had her swearing-in ceremony. I was the only one there for her. I held her for a long time afterward, as tears streamed down her cheeks.

We ate lunch at a seafood restaurant and talked about the ACLU. Now that she was officially a member of the Utah Bar, she had been offered a position there through a high school friend. She’d informed them that she would come work for them as soon as the Joel Whiting case was over.

Olivia spent some nights at my house, but only after checking on her mom and making sure she took her medication. Some nights, I slept at her house on the couch. It was uncomfortable as all hell, but I knew Olivia didn’t like sleeping away from her mother without someone there to watch after her.

Sex was frequently on my mind. Olivia had a beauty to her that was so natural, I’m not even sure she understood how appealing she was to men. She wasn’t the type to be on the cover of a magazine; she was the type you wanted to wake up next to every morning.

Sex, though, to her, was strictly something that occurred during a marriage. Six months ago, that would’ve been the death knell in our relationship. Now, it seemed like a minor thing. I enjoyed being around her more than anyone else in my life. In many ways, she was smarter than I was and challenged everything I thought about the world and myself. It seemed like, every day, she took time to make sure I understood how lucky I was and felt gratitude about the position I was in. Slowly, I noticed that my mood began to improve. Most mornings I woke up late and only grudgingly, but I was starting to get up earlier and with purpose. She was making me a better person.

One night, we sat on my balcony and watched the full moon. A gorgeous white bulb in an ink-black sky.

“Raimi said you write the best motions he’s ever seen,” I told her. “He said we need to offer you whatever salary you need to stay.”

“You once told me not to become a lawyer. Now you want to make me rich to be one?”

I shrugged. “Maybe it just took some time for me to realize it’s not all bad.”

That was partly true. The other part was that I liked seeing her every day. I liked walking into the office and seeing her in a conference room. The way she would smile at me. Her hair falling onto her shoulders, her slender fingers busy working on a MacBook, her eyes that lit up when she saw me. I didn’t want to share her with anyone else. I wanted her completely and utterly to myself.

The trial was approaching, and I hadn’t been out to visit Rebecca in a few months. It was a couple of days after the first day of winter, and snow coated the city. Snow had a way of silencing everything, and the city just seemed quiet. I stood outside her home a few moments and enjoyed the silence before knocking.

She answered. She looked much skinnier. Her hair was different, and she was wearing glasses.

“Sorry to just pop in.”

“No, you can come over anytime.”

We sat on the couch, and she offered me tea. She seemed more with it, though I could tell she was still on some sort of medication that slowed her movements, her speech, and her train of thought.

“The trial’s next week, and I think we’re as prepared as we can be. It’s going to start with jury selection, but you’ll have to be there for that since you’re the plaintiff.”

“We only went through my testimony a couple of times. Do you want to do it more?”

I shook my head. “No. I want it from the heart, not from memory.”

“I remember your wedding,” she said. “You looked so handsome. I told Tia that you were the handsomest man I had ever seen. She blushed and told me she thought that, too. I wished you two could’ve made it.”

“It worked out for the best. I think we’re both happier now, and it wouldn’t have happened if we stuck it out.”

Rebecca seemed to zone out for a moment, her eyes glazing over as she scanned the room. As though she didn’t remember where she was.

“Rebecca, do you have any questions about court for me?”

She asked a few questions about where the court was and what time she should be there. Then she asked the same questions again. She would ask a single question several times in a row. It was clear the medication she was on was affecting her ability to think.

“Excuse me a second.” I walked outside to the front porch and called Olivia. Within twenty minutes, she was sitting on the couch next to Rebecca and holding her hand.

“Do you remember me?” she asked.

“Of course. You were very nice to me and my son. I appreciated that.”

“Rebecca, what medications are you on?”

“Why, dear?”

“Noah and I just want to make sure you’re okay.”

She looked toward the kitchen. “They’re all right there. You can see for yourself. I don’t know their names.”

I followed Olivia into the kitchen as she lifted each amber bottle and looked at the names. One of her legs crossed behind the other and for a moment, I felt bad about yanking her into this. She’d seen enough heartache with her own mother. I leaned against the kitchen counter, my arms folded.

“It’s the amcipetyline,” she said. “My mom’s on that. It saps energy levels. Almost like a sedative.”

“She can’t testify like this. Bob will tear her apart on the stand. We need to push the trial back.”

“Can we do that?”

“I don’t know. Federal trial set for eight weeks . . . I don’t know.”

“Let me talk to her doctor. There’s another medication that’s just as effective but doesn’t have the same side effects.”

I waited outside while Olivia and Rebecca made the calls. A ball of anxiety rolled around in my gut. I could see my frosty breath in the air and it was, somehow, exhilarating. Proof that I was alive and fighting. Not just some drone stuck in an office reading documents ten hours a day.

The door finally opened and Olivia stepped out. She shut it behind her.

“We’ve talked to the doctor and they’re going to switch her to Lexapro.”

“Is that, I mean, I don’t want to put her in harm’s way just for—”

“No, it’s perfectly safe. As safe as the medication she was on anyway. She wants to do it. She doesn’t want this to ever happen to anyone again. She’s a really tough lady, Noah. She’ll go on. It won’t be easy, and she won’t be the same, but she’ll go on.”

I exhaled loudly and watched Rebecca through the window in the front room. She sat on the couch and stared at the television, though it wasn’t on. I had seen my own father do that. A gaze that held no meaning and expected nothing from the world.

“Thank you for this,” I said to Olivia. “For all of it. For everything.”

“You don’t have to thank me. Just kick Bob’s ass.”

I had a few hours, so I went to the courthouse. I found it open and sat inside, staring up at the judge’s bench and the jury box close to the plaintiff’s table. Six jurors would be assigned to this case. Jury selection on a case worth this much could go fast, or it could take weeks. You never knew until you had the jury pool right in front of you. Jury consultants would be hired, the potential jurors’ social media posts analyzed, friends and neighbors interviewed. I wasn’t involved in any of it. We’d found a long time ago that Marty was masterful at analyzing a potential juror’s background information and personal history and predicting the likelihood that he or she would find for our plaintiff. He would spearhead the jury selection, but in the meantime, he’d be unable to work his cases or take any new ones. I’d learned from our accountant that we had one and a half million cash on hand. If we didn’t bring in any other payments, but stopped our advertising, that would last us nine months. After that, we would be bankrupt.

I rose and stood over the jury box, staring at the seats the men and women who would decide my fate and the fate of my firm would sit in. I ran my hand along the banister. I sat in one of the seats and tried to picture what the jurors were going to see, to hear what they were going to hear. I could do neither, so I got up and left.

That night, I lay with Olivia in her bed, and we watched television—something I never did at night because I knew the blue light interfered with sleep. Now I welcomed the background noise.

“Are you scared?” she asked.

“Yes.”

“Why?”

“Because if I fail, I’m not sure we can bounce back. We’ve spent so much money that we need a big win. All those people are relying on me, and I feel like I don’t really know what I’m doing.”

She took my face gently in her hands. “I’m proud of you.”

We turned off the television, and I fell asleep in her arms.