She mentions massive doses of antihistamines and epinephrine.
“And if those treatments had been administered, could they have saved any of the seven patients named in the indictment?”
“There is no way to know, Mr. Stern.”
“I did not say ‘would,’ Dr. Rogers. I asked ‘could.’” The more uncooperative Dr. Rogers is—and she is inevitably combative—the better for the defense. “Are there cases in the medical literature where patients with these symptoms have been treated with antihistamines or epinephrine or stimulants and survived?” Stern is careful to ask about the literature and not other g-Livia cases. Alert doctors saved hundreds of g-Livia patients, but mentioning that would open the door to talking about other deaths as well.
Rogers answers that there are such cases.
“And in the event of those treatments, is it true that the probability of death by allergic response is reduced?”
“‘Probability.’” She clearly doesn’t know it is a loaded word. In order to convict Kiril of murder, the jury will need to find that he recognized a ‘strong probability’ of fatalities. “The probabilities are reduced, yes.”
Stern stops and angles his face to the side, so the jurors know this is an important answer, then takes his seat.
The prosecution has made a better choice with their next witness, Dr. Bruno Kapech. Kapech is an oncologist and epidemiologist called to testify about cancer survival rates and the prospects that each of the seven patients named in the indictment would have lived longer had they not been treated with g-Livia. In an unfortunate coincidence for the defense, Kapech is, like Kiril, a chaired professor at Easton Medical College. His testimony comes with the implication that those who know Kiril best have turned against him. Pafko has told the Sterns that, as you would expect, there is no love lost between Kapech and him, although the grudge has nothing to do with medical judgments, but rather a factional dispute about the choice of the current dean of the med school.
Nevertheless, Kapech smiles briefly at Kiril as he assumes the stand. Kapech is in his midfifties, gray and overweight with a black goatee. In his thick Israeli accent, that turns short vowels into long ones and all r’s into a faint growl, Kapech explains his extensive educational background and his board certification in three different areas. Next, Feld elicits a concise description of how cancer survival rates are calculated. Among stage 2 patients with non–small-cell lung cancer, the rates vary depending on age, race, and gender, the size of the tumor first discovered, where it is within the lung, the number of lymph nodes affected, and even the date of diagnosis, since survival rates, blessedly, are on the rise. Following that, Feld has Kapech explain the accepted treatment before g-Livia: surgery then chemo with one of several agents, the regimen Stern first underwent himself.
That done, Kapech moves on to the prospects for survival of the seven ‘victims’ named in the indictment. The most recent data from the National Institutes of Health indicates that 52 percent of stage 2 patients would live twenty months or longer, he says; 36 percent would make it to the five-year mark. Going through the variables he’s already listed, Kapech predicts that the median survival time for each of these patients would be even longer than indicated by the general data.
Marta is usually better with technical witnesses, but the Sterns agreed that Sandy may have an edge with Kapech, whom Stern has met at a number of Easton events. Always a supporter of the university whose education changed his life, Stern, since receiving g-Livia, has made several large donations to the medical college. He has chatted with Kapech, a vice dean, at a few fund-raisers, conversations that inevitably turned to Stern’s own condition. When Stern rises for cross, Kapech offers a warm smile.
“Sandy,” he says. “They tell me I should call you ‘Mr. Stern’ today.”
“And I shall call you Dr. Kapech.”
Kapech nods, even offers a brief, jovial laugh.
“So let me ask you about the first of these deaths we heard about. Mr. Herbert Colquitt, this gentleman from Mississippi. How long exactly would Mr. Colquitt have lived, if he had not been treated with g-Livia, but rather one of the standard therapies you have described?”
Kapech, who does not mind hearing himself speak, repeats his answers about his calculation of Mr. Colquitt’s median survival time—thirty-seven months.
“Meaning,” says Stern, “that according to the studies, and taking account of all the variables you identified, if we had, say, a thousand people just like Mr. Colquitt, half would live longer than thirty-seven months and half less.”
“Yes.”
“But let us talk, please, about Mr. Colquitt. How long would he have lived?”
Kapech responds with a patient smile. “I can’t tell you how long I will live,”—‘leef’ Kapech pronounces the word—“or you, Mr. Stern. I can only tell you what the studies show.”
“Are you saying you don’t know how long Mr. Colquitt would have lived?”
“I gave you my answer.”
“Which is that you don’t know, Doctor, correct?”
Feld objects that Stern’s question was asked and answered. In order to keep trials from going on forever, a lawyer may ask the same question just once.
The judge intervenes: “Do you know exactly how long Mr. Colquitt would have lived, if he hadn’t been treated with g-Livia?”
“Of course not,” says Dr. Kapech. He then turns back to Stern.
“Now, Dr. Kapech, how many stage two patients who get one of the other standard therapies—how many live less than the fourteen months that Mr. Colquitt survived?”
“I don’t really know. I can look, if you like.”
“Please do.”
Even Kiril grants Bruno’s expertise, but Kapech does not commonly testify as an expert and he is unfamiliar with the stagecraft of trials. Rather than consult the armload of books and papers he brought with him into the courtroom, he reaches into the inner pocket of his suit coat for his phone and pokes at it for quite some time. In the interval, Stern sees a couple of the jurors, who seem to have bonded, exchange a look. The two, a middle-aged African-American man and the younger guy with the ponytail, share smirks, apparently amused that a supposed expert goes no deeper than what shows up on his phone.
As Kapech continues swiping and scrolling, it suddenly strikes Stern how truly odd it is to be talking about stage 2 non–small-cell lung cancer as something that happens to other people. He, in fact, is one of these statistics. When the word ‘cancer’ came out of Al Clemente’s mouth, it was as if a comic book monster had exhaled a dark poisonous fog. His heart pinched in his chest, and Stern’s breath left him. Truly, here was what the wordsmiths had in mind when they referred to ‘a dread disease.’ Cancer, Stern learned, was anxiety as much as physical symptoms. What seemed worst, as the diagnosis settled into him over the next days, was not merely that he was dying, but that he would not die well. Treatment for malignancies had become only a little better than the tortures of a CIA black site. Chemotherapy, unbearable nausea, surgery, disfigurement. His heart went out to Helen, who, being brave and loyal, would have to put up with all of this. He wanted to encourage her to treat him like a Spartan elder and drop him on a mountainside. Yet perhaps the worst part of all was facing the fact that he was not courageous enough to do that willingly. Like most humans, he would struggle to go on, beg for his life as it were.