With three blacks on the jury, David made the tactical decision to spend more time in Africa with Dr. Ulander. During the recess, Judge Seawright decided to allow David to explore the backgrounds of only three additional drugs. “I want the jury to get this case this afternoon,” he said. Ms. Karros was still objecting, hotly at times, and the judge was still overruling her objections.
The jurors were brought in and took their seats. Dr. Ulander returned to the witness stand. David addressed him, “Now, Dr. Ulander, do you remember a drug called Klervex?”
“I do.”
“Was it made and marketed by your company?”
“It was.”
“When was it approved by the FDA?”
“Let’s see. Early in 2005, I believe.”
“Is it now on the market?”
“It is not.”
“When was it taken off the market?”
“Two years later, 2007, in June, I believe.”
“Did your company voluntarily recall the drug, or was its removal mandated by the FDA?”
“FDA.”
“And at the time of its recall, your company was facing several thousand lawsuits because of Klervex, correct?”
“Correct.”
“In layman’s terms, what kind of drug was this?”
“It was for hypertension, for patients who suffered from elevated blood pressure.”
“Were there any unpleasant side effects?”
“According to the mass tort lawyers, there were.”
“Well, what about the FDA? It didn’t yank the drug because the mass tort lawyers were upset, did it?” David was holding another report, and he waved it slightly as he spoke.
“I guess not.”
“I didn’t ask you to guess, Doctor. You’ve seen this FDA report. Klervex caused severe, even blinding migraine headaches in thousands of patients, did it not?”
“According to the FDA, yes.”
“Do you dispute the FDA’s findings?”
“I do.”
“And you supervised the clinical trials of Klervex?”
“My staff and I supervise the testing of all pharmaceuticals made by our company. I thought we had already established that.”
“My deepest apologies. How many separate clinical trials were conducted during the testing of Klervex?”
“At least six.”
“And where did these take place?”
The beating would not end until the cross-examination was over, so Ulander plunged ahead. “Four in Africa, one in Romania, one in Paraguay.”
“In Africa, how many subjects were treated with Klervex?”
“There were roughly one thousand patients in each trial.”
“Do you remember what country or countries?”
“Not precisely. Cameroon, Kenya, and perhaps Nigeria. I can’t recall the fourth.”
“Were these four trials conducted simultaneously?”
“Generally speaking, yes. Over a twelve-month period in 2002 and 2003.”
“Isn’t it true, Doctor, that you, and I mean you personally, knew almost immediately that there were significant problems with the drug?”
“What do you mean by ‘almost immediately’?”
David walked to his pile, picked up a document, and addressed the court: “Your Honor, I would like to admit into evidence this internal memo sent to Dr. Mark Ulander from a certain Varrick technician by the name of Darlene Ainsworth, dated May 4, 2002.”
“Let me see it,” the judge said.
Nadine stood and said, “Your Honor, we object on the grounds of relevance and lack of a proper predicate being laid.”
Judge Seawright scanned the two-page memo. He looked at Dr. Ulander and said, “Did you receive this, Doctor?”
“I did.”
David jumped in to help. “Your Honor, this memo was leaked by a Varrick whistle-blower to the plaintiffs’ lawyers in the Klervex litigation two years ago. Its authenticity was established at that time. Dr. Ulander knows it well.”
“That’s enough, Mr. Zinc. It will be admitted.”
Mr. Zinc plowed on: “The memo is dated May 4, 2002, correct, Dr. Ulander?”
“Correct.”
“So, some two months after Varrick began its clinical trials in Africa, this memo comes across your desk. Look at the second page, last paragraph. Would you please read that to the jury, Dr. Ulander?”
The witness obviously didn’t want to read anything, but he adjusted his glasses and began: “Patients have been taking Klervex for six weeks, forty milligrams, twice daily. Seventy-two percent show decreased blood pressure, systolic and diastolic. Side effects are worrisome. Patients complain of dizziness, nausea, vomiting, and many, approximately 20 percent, suffer severe headaches so debilitating it is necessary to stop the drug. After comparing notes with other med techs here in Nairobi, I strongly suggest that all trials be suspended for Klervex.”
“Now, Dr. Ulander, were the trials suspended?”
“No, they were not.”
“Were there similar reports from the field?”
Ulander sighed and looked at the defense table, helpless.
“I have copies of the other reports, Dr. Ulander, if they might refresh your memory,” David offered helpfully.
“Yes, there were other reports,” Ulander said.
“And this technician, Darlene Ainsworth, is she still employed by Varrick?”
“I don’t think so.”
“Is that a yes or a no, Doctor?”
“No, she is not employed.”
“Isn’t it true, Dr. Ulander, that she was terminated one month after sending you this memo about the horrors of Klervex?”
“She wasn’t terminated by me.”
“But she was terminated by Varrick, wasn’t she?”
“Well, I’m not sure how she left the company. She may have resigned.”
David again walked to his table and picked up a thick document. He looked at Judge Seawright and said, “Judge, this is Dr. Ulander’s deposition from the Klervex litigation two years ago. May I use it to refresh his memory?”
“Just answer the question,” the judge snapped angrily at the witness. “Was this employee terminated by Varrick one month after she sent you that memo?”
Startled by the rebuke from His Honor, Dr. Ulander’s memory was instantly refreshed, and he said, “Yes, she was.”
“Thank you,” the judge said.
David looked at the jury as he spoke. “So, in spite of these warnings from the field, Varrick pushed on and gained FDA approval in 2005, right, Dr. Ulander?”
“The drug was approved in 2005.”
“And once it was approved, Varrick aggressively marketed the drug in this country, right, Dr. Ulander?”
“I have nothing to do with marketing.”
“But you are on the board, right?”
“Right.”
“Then all hell broke loose. Complaining of severe migraines and other side effects, at least eight thousand Varrick consumers filed lawsuits in 2005, right, Doctor?”
“I don’t have access to those numbers.”
“Well, let’s not nitpick here, Doctor. I’ll try to wrap this up a bit quicker. Has your company gone to trial anywhere in this country to defend its drug Klervex?”
“Once.”
“And Varrick has settled over twenty-five thousand lawsuits for the drug as of last week, right, Doctor?”