Stern nods. He would bet there are hundreds, if not thousands, of white 2017 Malibus in the vicinity, which would make further investigation impractical. But failure is such a frequent outcome for Pinky that he keeps his thoughts to himself.
“Well, I shall look forward to hearing what they say,” he answers.
Pinky smiles, clearly happy to have escaped any upbraiding for spending too much money on the paint analysis. He briefly grasps her hand, washes out his soup bowl, and goes off to his bedroom with his laptop to study for tomorrow before he is reclaimed by sleep.
9. Day Three: Experts
Dr. Bonita Rogers is called next by the government. Feld asks the questions necessary to qualify her as an expert on pathology, and she then testifies that she has examined the postmortem reports of all seven victims named in the indictment and their extensive medical histories. Based on that, Dr. Rogers has reached the opinion that all expired due to a severe allergic reaction to g-Livia.
Stern has done battle with Dr. Rogers before. She is in her early forties, shapely and with hair as orange as an orangutan’s, as well as large green eyes that stand out in a starkly pale complexion. Good-looking witnesses—like good-looking lawyers—often have an advantage because they hold the jurors’ attention. Yet over the years, Stern has found that pathologists, whose practice often concentrates on the dead, occasionally prove to be socially inept, and in Dr. Rogers’s case the good impression she makes does not last long.
“Dr. Rogers,” Stern says, rising cumbrously for cross. As an accommodation to Stern’s age, the judge has offered to allow him to question witnesses from his seat. Notwithstanding the round of laughter he got, Stern meant it when he told the judge that he did not think his brain would work as well with his backside pressed into a chair.
“Mr. Stern.” Rogers smiles, but the fact that she knows his name without an introduction is a good sign to the jury that this is another episode in a long-running contest.
“Now, Dr. Rogers, is there no medical treatment for an acute allergic reaction?”
“There are treatment options. But the physician needs to recognize what is occurring. Without proper warnings about the possibility of an allergic response to g-Livia, that was far more difficult.” That was the prosecutors’ point in calling the treating doctors yesterday, so they each could say they’d been utterly baffled.
With Dr. Rogers’s testimony, both sides are walking a very narrow bridge over dangerous seas. The prosecutors have charged only seven deaths in their indictment, even though by the time g-Livia was withdrawn from the market, there were more than one hundred fatalities for which anaphylaxis—meaning allergic shock—was the suspected cause. In the indictment, Moses named only the most unambiguous cases, where the deaths were precipitous, the patients had the clearest expectation of living longer, and the attending doctors and the family members would make the deepest impression on the jurors. (Kiril is not charged with homicide for the twelve sudden deaths during the clinical trial, because he had no warning at that point of potentially fatal problems.) Any testimony from Rogers referring directly to the other postapproval deaths will lead to a mistrial motion from the Sterns, claiming Kiril is being tried for uncharged crimes. The defense, therefore, must do nothing on cross-examination that would make it fair for the prosecutors to refer to the many other fatalities.
“Now, you are not trained as an allergist, Dr. Rogers, are you?”
“No.”
“Well, if any of the next questions are beyond your competence, Dr. Rogers, please say so.”
The word ‘competence’ provokes a glower.
“Did you, as an expert, conduct a search for other allergies these patients might have had in common?”
“I read their medical histories.”
“But to render your opinion, you did no investigation beyond that?”
“Right.”
“Do certain foods trigger serious allergic responses that are known to come on suddenly later in life?”
“I guess that happens.”
“Are shellfish allergies, for instance, known to develop that way?”
“I’ve heard that, but as you say, Mr. Stern, I’m not an allergist.” She offers a little smart-ass grin.
“Do you know whether any of these seven people who you say died from g-Livia—do you know, for example, whether they had eaten shellfish within twenty-four hours of their deaths?”
Rogers smirks. “I doubt it.”
“You doubt whether you know or whether they ate shellfish?”
“Shellfish.”
“Based on what evidence?”
“It’s not in their medical histories.”
“Yet the entire basis for your testimony is that the treating physicians didn’t recognize that they were dealing with an allergic response. So they would have had no basis to ask about what the patient ate, correct?”
“I guess,” she says. “But it would be quite a coincidence if all seven of these people had eaten shellfish.”
“But there are many other agents known to cause sudden and fatal allergic responses, are there not? Tree nuts? Pesticides? It is a long list, is it not? And you do not know for certain whether these seven people might have developed late-life allergies to something other than g-Livia, correct?”
Rogers reluctantly agrees.
“Now, you told us that there were no proper warnings about the possibility of an allergic response to g-Livia. Do you recall saying that a moment ago?”
“I do.”
“What is the product insert, Dr. Rogers? Are you familiar with that term?”
“Of course,” she answers. A snide wince shrinks one side of her face. “A product insert, a PI, is all those pages of small print you receive in the prescription box.”
“May I show you the PI for g-Livia? Marked as Defense Exhibit-1?” After a few more preliminaries, Stern asks Dr. Rogers to read aloud a sentence that is highlighted from the PI on-screen.
“g-Livia is a monoclonal antibody. mAbs have been known to cause serious allergic reactions in some patients.”
It was Pinky, shockingly, who’d found this note. She can’t put papers back in the correct file, yet, a bit of a savant, she can digest pages of small print with remarkable speed.
“So there was in fact a proper warning about potential allergic reactions that accompanied g-Livia?”
“I’m not sure I’d say that.”
“Really? Is there something improper about that warning?”
“It’s standard, Mr. Stern. It’s like the side-effects warnings you hear on TV commercials that no one pays attention to.”
“Certainly, if you had a patient experiencing a reaction you could not understand, the PI would be a good place to look for a possible explanation?”
“If a patient is in crisis, I’m not sure that’s the time to try to read eight pages of mice type.”
“Yes or no, Dr. Rogers, would a good doctor look at the PI if the doctor had any thought that a medication might be causing the patient’s crisis?”
“A good doctor might do that. In my view, it doesn’t make you a bad doctor if you don’t.”
“Now, you told me before that there are treatment options, if a doctor recognizes a severe allergic reaction. Please describe them.”