No Legal Grounds (2 page)

Sam took a root beer from the refrigerator, turned to face his wife. “But a little complaining every now and again never hurt, right?”

“Is that what you think I do?”
“Not in so many words, but lately . . .”
“Lately what?” She put her hands on her hips.
Uh-oh. Sam called that the Gesture, but not to Linda’s face. The

Gesture always raised his macho hackles. His wife was smart and insightful, and she could usually see through him. Drove him crazy sometimes. And when she was angry, and her hazel eyes caught the light, they sparked like flint on stone.

“Hints,” he said. “You drop hints.”
“What, would you rather I hit you right between the eyes?” “Maybe a little more directness
would
be a good thing.” “Maybe I don’t want to add to your stress, okay? Did you ever

think of it that way?”
“Of course.” He stepped over to her to kiss her. She gave him her
cheek. “Don’t pout,” he said.
“When you deserve these lips again, you’ll get them.” “How about I bribe you with my stunning culinary skill?” “I’m listening.”
“I’ll cook up some steaks.”
“You get one lip for that,” Linda said. “Both if the steaks come
out right.”
“You drive a hard bargain.”
“Take it or leave it.”
“Take it. Now pay me on account.”
She kissed him. A short one.
“You have inspired me with visions of things to come,” Sam said.
“I shall cook masterpieces.”
“For you, me, and Max.”
“Where’s Heather?”
Linda paused. “She’s out.”
“With who?”
“Let’s not.”
Dead giveaway. “Not that Roz girl.”
“Sam, I know — ”
“I thought we told her — ”
“Sam, please. We’ve been through it with her and it just leads
to more anger.”
Indeed, his circuits were charged. They sizzled with a high
current whenever the subject of Heather’s associations came up.
“Who’s in control around here? I don’t want her seeing that girl.” “Heather is seventeen and pigheaded, like someone else I
know.”
She said it in a lighthearted way, but Sam wasn’t into being
light at the moment. “What if she wanted to go out with a serial
killer?”
“Sam, Roz is hardly a serial killer.”
“She’s trouble, is what she is.”
“That’s a little harsh.”
“Is it? I saw her at Starbucks one day, hanging out with a bunch
of lowlifes.”
“How did you know they were lowlifes?”
“Come on.”
“What happened to the presumption of innocence?” He ignored the dig. “Where do they go, these two? They go to
concerts — who knows what kind of music these bands are playing.
The lyrics. Have you heard some of the lyrics out there?” “Is this from the man who used to be a poet?”
“Hey, we didn’t write anything like they’re doing today.” “You know who you sound like?”
“Who?”
“Our parents.”
“That’s depressing.” Sam went to the living room and plopped
on the sofa.
“Don’t pick up the remote,” Linda said.
He picked up the remote. “I’m just going to check the news.” Linda snatched the remote from his hand, sat next to him. “I’m
just as concerned about our daughter as you are. So we need to talk
about how to handle this. We need to be together when Heather
gets home.”
“We have to rehearse? Is this a play or something?” “It’s called parenting.”
Sam shook his head. “I think I’ve got it figured out.” “What?”
“Parenting.”
“Oh, do you? Pray tell, what’s the secret?”
“Lowering your standards,” he said.
Linda hit him with a pillow.
Sam put his head back on the sofa. “You’re right.”
“Hm?”
“It is complicated, isn’t it? I mean, I’m in the delivery room one
day and out comes this innocent little package.”
“Yes, I was there too.”
“Innocent and pure and it’s the greatest experience of my life.
And I say to myself, I’m going to protect her and love her and be
there for her, and when she’s little she can’t get enough of me. Then
one day she turns thirteen and it’s like some mad scientist flips a
switch in her brain.”
Linda stroked his arm. “It’s called growing up.”
“It’s called the pits on a platter, is what it’s called. I feel like an
innocent bystander. I was standing there, trying to love her like
always, and now I’m being shut out of her life.”
“As my mom used to say, this too shall pass.”
Sam felt the mild pressure of tears behind his eyes. “I just want
her to be happy. I want her to make the right choices. I want — ” “Sam?”
“What?”
“What you want is to make it all happen yourself.”
“No — ”
Linda sat up. “I know you. It’s good what you want for her, but
you can’t make it happen. You have to let God in on this.” “Like I don’t know that?”
“But do you?”
“Sure I do.”
She gave him the
come on now
look, but not the remote.

In the study, Sam tried to get thoughts of Heather out of his head by preparing for tomorrow’s deposition. It would be the crucial moment in the Harper case. His questioning of the expert who would testify that the emergency-room doctor had not made a terribly wrong diagnosis would set the stage for everything to come.

In a medical malpractice case, the testimony of experts was the key to the trial, because juries looked upon them as the high priests. Most jurors, in a medical emergency, would be willing to entrust their lives even to an unknown doctor. They entertained a willing suspension of belief that a doctor might be subject to the imperfections of mere mortals.

Lawyers who sued doctors, on the other hand, were often seen as bottom-feeders, responsible for everything from higher insurance premiums to acute acne.

Sam knew he would have a double burden if the case went to trial. In his opening statement, he planned to face the issue headon. He would be up front with the jurors about tort reform and frivolous lawsuits.

Last trial he had, in fact, he’d asked the jurors on
voir dire
if any of them disagreed with the proposition that most lawyers are greedy ambulance chasers
.
Only a seventy-year-old grandmother, whose son was the DA of Kern County, raised her hand. But Sam walked through that door to elicit pledges that the jurors would treat the case before them with an open mind.

And although he’d won that case, for a fifteen-year-old boy who broke his neck diving into a river at an unsafe resort, the experts from the other side almost swayed the jury the other way.

Which was why the deposition of the experts was so important. If they came off as credible and competent, the basis of liability could disappear like a dandelion in the wind.

So Sam went over his questions carefully, designing them to build in a solid, inexorable fashion. He’d have to be on every one of his toes, because Larry Cohen, the insurance company’s lawyer, would protect the doctor with every bit of legal firepower at his disposal.

Cohen was a near legend in the litigation community. At sixty-one, with a full head of silver hair and the frame of a football player — he’d been a standout linebacker at Colorado State — Cohen had not lost a case in twenty years.

It was Sam’s hope that by undermining Cohen’s expert in the depo, the Harper case could be settled for a fair amount. Then everyone would be happy — Lew, the Harpers, even Cohen himself, for it would be another file off his desk and wouldn’t count as a loss in court.

Two hours flew by like two minutes. The only interruption was Max, his twelve-year-old. Max still liked to give his old man hugs before going to bed, and Sam took every one. Who knew how long that would last? In a few months Max would turn thirteen, and then what? Would the same mad professor that got to Heather flip a switch in his son’s brain too?

How he prayed not.
Sam took a break at ten thirty and jumped online. He scanned the headlines at Google News, then made a quick stop at his email.
In the middle of the list he saw another message from Nicky Oberlin.

Hey man, just following up. Hope you got my email! We have GOT TO get together, my friend! Don’t let me down! Call me now!

A faint queasiness rolled through his stomach. A feeling, ever so slight, that he was being pushed. Sam never like being pushed.
He deleted the message, hoping this would be the last time he would hear from Nicky Oberlin.
Still, his eyes lingered on the screen for a long moment after the message vanished into the ether, as if another of its kind would suddenly appear, only this one not so friendly.

Sam took a sip of water, pausing to let the doctor sweat a little. It was hot in the conference room anyway. Sam wondered if this was entirely a coincidence. He knew Larry Cohen was an expert at making other people sweat. Maybe this was all on purpose.

It mattered not a bit to Sam. If Cohen wanted to play games, Sam himself would turn up the heat.
“Dr. Eisman,” Sam said, putting down the Styrofoam cup on the slick maple conference table. “You have a lot of opinions about this case, don’t you?”
The distinguished gray-haired doctor sitting on the other side of the table nodded. “I have some opinions, Mr. Trask, yes.”
Sam cast a quick glance at the senior partner of Cohen, Stone & Baerwitz, a man well known around town to bask in sartorial splendor. He wore a three-piece suit — which looked like it cost a thousand bucks a crease — silk handkerchief, gold watch fob, and pinky ring. Not the outfit he would wear in court, of course. Cohen always wore a rather drab suit and no jewelry in front of a jury, lest they mistake him for the insurance company’s rich mouthpiece.
“Yes, Doctor,” Sam said. “A lot of opinions. As an expert, is that correct?”
“As an expert, yes.”
“And as an expert, you are supposed to base your opinions on something, aren’t you?”
“Of course.”
“I see. I’d like to talk about that now.”
“Go right ahead.”
The doctor looked at Sam with professional defiance. It was a challenge: Find something to question me about, if you can. Put up or shut up.

Sam picked up the file folder that had been sitting on the desk in front of him. Slowly, with dramatic flair, he opened it. He wanted Cohen and Eisman to think it held a secret memo, some potential legal dynamite that would blow their case out of the water.

In truth, all it held was a photograph of Sarah Harper. Sarah, at sixteen, had been a rising figure skating star. Local experts were taken with her precision and pixie charm. Olympic gold began to seem more than just a dream.
But after an intense practice one day Sarah suffered a severe headache that almost knocked her out. It came back the next day. And the next. She tried to ignore the pain, but when nausea and vomiting hit her for two straight days, her father took her to the emergency room. The doctor diagnosed her as having lupus cerebritis, an inflammatory condition. He put her on steroids and told her to take it easy for a while.
Sarah dutifully took the steroids, but the symptoms persisted. She went to see the same doctor two more times. He never attempted a fungal culture, kept her on the same regimen, then finally “signed her off” to an internal-medicine specialist who undertook an immediate antigen study. That’s when the truth came in. Sarah Harper was overwhelmingly infected with cryptococcal meningitis.
It was too late for treatment. A week after the test results, she lapsed into a coma. When she came out of it she was blind, and without the use of her left leg.
Sarah’s father was referred to Sam by one of Sam’s friends, Frank Porter, who told Pete Harper that Sam was one of the best trial lawyers in LA and a straight shooter besides. Sam knew he was good, but also that Larry Cohen had a definite idea who was the best — Larry Cohen.
It came down to this expert, Eisman, who was going to testify that the emergency-room doctor had made a correct diagnosis under the conditions and was in no way at fault for what happened to Sarah.
Sam continued to look at the photograph of Sarah, then slowly closed the file and put it down. “You are of the opinion that Sarah Harper had lupus cerebritis, is that right?”
The doctor sat up a little straighter. “That’s right.”
Sam looked the doctor in the eye and tried to read his expression. It was defiant, resolute. He looked exactly like what he was: a hired gun, an expert who made good money on the side testifying for insurance companies. But many such experts were generalists, not up on the specifics of a particular case. If you put tripwires in their blind spots, they could stumble.
Sam had a hunch and went for it. “Isn’t it true, Doctor, that you have never made a diagnosis of lupus cerebritis yourself?”
The doctor didn’t answer immediately. He took in a deep breath and looked at Larry Cohen. Cohen’s jaw twitched.
And Sam knew he’d played it perfectly. They thought the file contained Eisman’s complete medical background.
Sam said, “Your answer is?”
“I would agree to that,” said Eisman.
“You would agree that you have never in your lifetime made a diagnosis of lupus cerebritis, is that right?”
Eisman sighed. “Yes.”
Larry Cohen’s cheeks started to take on the hue of broiled salmon.
“In fact,” Sam said, “you have never studied anything about lupus cerebritis, have you, Doctor?”
“That’s incorrect.”
“Incorrect?”
“Yes, sir.”
“You want to add anything to your answer?”
Looking a bit bewildered, Eisman said, “No, I do not.”
Sam smiled, knowing his next hunch would play out as well. “Then allow me to clarify, Doctor. You never studied anything about lupus cerebritis
before
being hired to testify in this case, isn’t that correct?”
The defiance melted from the doctor’s eyes. “I suppose.”
“It’s not a supposing matter, Dr. Eisman. It’s a yes-or-no question.”
“He’s answered,” Larry Cohen interjected.
“No, he hasn’t,” Sam said, picturing the faces of future jurors as this part of the deposition was read in open court. “Isn’t it true, Doctor, that your study of lupus cerebritis began when Mr. Cohen retained you as an expert in this case?”
“That’s correct,” Eisman said.
“And so you must agree that you are not in any way an expert on lupus cerebritis.”
“I do not regard myself as being necessarily an expert on this condition.”
“Necessarily? Are you or are you not holding yourself out as an expert on lupus cerebritis, Doctor?”
Eisman’s Adam’s apple bobbed. “I am not.”
“And yet your opinion is still that this is what Sarah Harper was suffering from when she saw Dr. Natale in the emergency room on March 7, and not cryptococcal meningitis?”
“That is my opinion.”
Sam picked up the file folder again, looked at Sarah’s photo, then closed it once more. “Let’s explore another of your opinions, Doctor. You say Sarah Harper never had cryptococcal meningitis while she was under the care of Dr. Natale.”
“That’s my opinion, yes.”
“Well, what is the basis of that opinion?”
Larry Cohen interrupted. “There is no need to use that tone of voice, Mr. Trask.”
“Do you have an objection, Mr. Cohen?”
“It’s just a request, Counsel.”
“Noted,” said Sam, not altering his tone. “Now let’s look at the basis, Doctor. Number one: You have never diagnosed cryptococcal meningitis, have you?”
“I have not, sir.”
“Number two: You have never before treated cryptococcal meningitis, have you?”
“No, sir.”
“Number three: You have never studied cryptococcal meningitis before signing on to this case, have you?”
“Wait a minute!” Eisman perked up. “I probably studied something about it in medical school.”
“Medical school? How long ago was that?”
“I graduated in 1975.”
“Excuse me, Doctor. Are you saying you
might
have studied cryptococcal meningitis back in medical school, but you’re not sure?”
“It’s entirely probable.”
“
Probable
is the best you can do?”
“Well, possible.”
Sam Trask glanced at Larry Cohen, who looked liked he’d swallowed pickle juice. “Maybe now would be a good time to take our break.”