Mystery Writers of America Presents the Prosecution Rests (18 page)

“There is.”

“Please don’t be afraid to ask.”

“I’m being sued.”

“For what?”

“A million and a half dollars.”

I did a double take. “That’s a lot of money.”

“It’s all the money I have in the world.”

“Funny,” I said. “There was a time when you and I would have thought that
was
all the money in the world.”

Her smile was more sad than wistful. “Things change.”

“They sure do.”

A silence fell between us, an unscripted moment to reminisce.

“Anyway, here’s my problem. My
legal
problem. I tried to be responsible about my illness. The first thing I did was get my finances in order. Treatment’s expensive,
and I wanted to do something extravagant for myself in the time I had left. Maybe a trip to Europe, whatever. I didn’t have
a lot of money, but I did have a three-million-dollar life insurance policy.”

“Why so much?”

“When the stock market tanked a couple years ago, a financial planner talked me into believing that whole-life insurance was
a good retirement vehicle. Maybe it would have been worth something by the time I reached sixty-five. But at my age, the cash
surrender value is practically zilch. Obviously the death benefit wouldn’t kick in until I was dead, which didn’t do
me
any good. I wanted a pot of money while I was alive and well enough to enjoy myself.”

I nodded, seeing where this was headed. “You did a viatical settlement?”

“You’ve heard of them?”

“I had a friend with AIDS who did one before he died.”

“That’s how they got popular, back in the eighties. But the concept works with any terminal disease.”

“Is it a done deal?”

“Yes. It sounded like a win-win situation. I sell my three- million-dollar policy to a group of investors for a million and
a half dollars. I get a big check right now, when I can use it. They get the three-million-dollar death benefit when I die.
They’d basically double their money in two or three years.”

“It’s a little ghoulish, but I can see the good in it.”

“Absolutely. Everybody was satisfied.” The sorrow seemed to drain from her expression as she looked at me and said, “Until
my symptoms started to disappear.”

“Disappear?”

“Yeah. I started getting better.”

“But there’s no cure for ALS.”

“The doctor ran more tests.”

I saw a glimmer in her eye. My heart beat faster. “And?”

“They finally figured out I had lead poisoning. It can mimic the symptoms of ALS, but it wasn’t nearly enough to kill me.”

“You don’t have Lou Gehrig’s disease?” I said, hopeful.

“No.”

“You’re not going to die?”

“I’m completely recovered.”

A sense of joy washed over me, though I did feel a little manipulated. “Thank God. But why didn’t you tell me from the get-go?”

She smiled wryly, then turned serious. “I thought you should know how I felt, even if it was just for a few minutes. This
sense of being on the fast track to such an awful death.”

“It worked.”

“Good. Because I have quite a battle on my hands, legally speaking.”

“You want to sue the quack who got the diagnosis wrong?”

“Like I said, at the moment I’m the one being sued over this.”

“The viatical investors?” I said.

“You got it. They thought they were coming into three million in at most five years. Turns out they may have to wait another
forty or fifty years for their investment to ‘mature,’ so to speak. They want their million and a half bucks back.”

“Them’s the breaks.”

She smiled. “So you’ll take the case?”

I was suddenly thinking about Cindy. Wives and old girlfriends didn’t always mix. “I’ll need to think about that,” I said.

“Don’t think too long,” she said. “I fired my old lawyer yesterday.”

“When does the trial start?”

“Two days ago. Tomorrow’s the final day.”

“You fired your lawyer in the middle of trial?”

It seemed almost corny, but I could have sworn that she’d batted her eyes. “All’s well that ends well, right, Jack? Are you
on board or not?”

____

T
HE TRIAL WAS
in Courtroom 9 of the Miami-Dade courthouse, and for the life of me, I couldn’t understand why Jessie had been unhappy with
her first lawyer. The case was shaping up as a slam-bang winner, the judge had been spitting venom at opposing counsel the
entire trial, and the client was a gorgeous redhead who’d once ripped my heart right out of my chest and stomped that sucker
flat.

Well, two out of three wasn’t bad.

“All rise!”

The lunch break was over, and the lawyers and litigants rose as Judge Antonio García approached the bench. The judge glanced
in our direction, as if he couldn’t help gathering another eyeful of my client. No surprise there. Jessie wasn’t stunningly
beautiful, but she was damn close. She carried herself with a confidence that bespoke intelligence, tempered by intermittent
moments of apparent vulnerability that made her simply irresistible to the knuckle-dragging, testosterone-toting half of the
population. Judge García was as susceptible as the next guy. Beneath that flowing black robe was, after all, a mere mortal—a
man. That aside, Jessie was a victim in this case, and it was impossible not to feel sorry for her.

“Good afternoon,” said the judge.

“Good afternoon,” the lawyers replied, though the judge’s nose was buried in paperwork. Rather than immediately call in the
jury, it was Judge García’s custom to mount the bench and then take a few minutes to read his mail or finish the crossword
puzzle—his way of announcing to all who entered his courtroom that he alone had that rare and special power to silence attorneys
and make them sit and wait. Judicial power plays of all sorts seemed to be on the rise in Miami courtrooms, ever since hometown
hero Marilyn Melian gave up her day job to star on
The People’s Court
. Not every South Florida judge wanted to trace her steps to television stardom, but at least one wannabe in criminal court
had taken to encouraging plea bargains by asking, “Deal or no deal?”

I glanced to my left and noticed my client’s hand shaking. It stopped the moment she caught me looking. Typical Jessie, never
wanting anyone to know she was nervous.

“We’re almost home,” I whispered.

She gave me a tight smile. I knew that smile—before I was married. I fought the impulse to let my mind go there.

The crack of the gavel stirred me from my thoughts. The jury had returned. Judge García had finished perusing his mail, the
sports section, or whatever else had caught his attention. Court was back in session.

“Mr. Swyteck, any questions for Dr. Herna?”

I glanced toward the witness stand. Dr. Herna was the physician who’d reviewed Jessie’s medical history on behalf of the viatical
investors and confirmed the original diagnosis, giving them the green light to invest. 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 my job to prove it was
their
mistake, nothing mutual about it, too bad, so sad.

I could hardly wait.

“Yes, Your Honor,” I said, as I approached the witness with a thin, confident smile. “I promise this won’t take long.”

The courtroom was silent. It was the pivotal moment in the trial, my cross-examination of the plaintiff’s star witness. The
jury looked on attentively—whites, blacks, Hispanics, a cross-section of Miami. 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 under way in Miami at that very moment—no media, no protestors, no circus ringmaster. It
was reassuring to know that the administration of justice in Florida wasn’t always the joke people saw on television.

Reassuring for me, anyway. Staring out from the witness stand, Dr. Felix Herna looked anything but calm. My 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, I was beginning to rethink my restored faith in the justice system. “Thank you, Your Honor.”

All eyes of the jurors followed as I approached the witness. I planted myself firmly, using 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?”

He shifted nervously, 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 become 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,” I said. “Not a very pleasant way to die.”

“Death is rarely pleasant, Mr. Swyteck.”

“Unless you’re a viatical investor.”

A juror nodded with agreement.

“Objection.”

“Uh,” said the judge, “sustained.”

I moved on, knowing I’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,” I said.

“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 me 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 examines 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,” I repeated, making sure the judge and jury caught it. “Which means that it could possibly be 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 be something other than ALS. And you knew that.”

The doctor was wringing his hands. “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.”

I gestured toward the jury, as if inviting them into the conversation. “Would you share with the jury Dr. Marsh’s exact words,
please?”

Even 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 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 me, 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?”