CHapter 001
Division 48of Los Angeles Superior Court was a wood-paneled room dominated by the great seal of the state of California. The room was small and had a tawdry feeling. The reddish carpet was frayed and streaked with dirt. The wood veneer on the witness stand was chipped, and one of the fluorescent lights was out, leaving the jury box darker than the rest of the room. The jurors themselves were dressed casually, in jeans and short-sleeve shirts. The judge's chair squeaked whenever the Honorable Davis Pike turned away to glance at his laptop, which he did often throughout the day. Alex Burnet suspected he was checking his e-mail or his stocks.
All in all, this courtroom seemed an odd place to litigate complex issues of biotechnology, but that was what they had been doing for the past two weeks inFrank M. Burnet v. Regents of the University of California .
Alex was thirty-two, a successful litigator, a junior partner in her law firm. She sat at the plaintiff's table with the other members of her father's legal team, and watched as her father took the witness stand. Although she smiled reassuringly, she was, in fact, worried about how he would fare.
Frank Burnet was a barrel-chested man who looked younger than his fifty-one years. He appeared healthy and confident as he was sworn in. Alex knew that her father's vigorous appearance could undermine his case. And, of course, the pretrial publicity had been savagely negative. Rick Diehl's PR team had worked hard to portray her dad as an ungrateful, greedy, unscrupulous man. A man who interfered with medical research. A man who wouldn't keep his word, who just wanted money.
None of that was true - in reality, it was the opposite of the truth. But not a single reporter had called her father to ask his side of the story. Not one. Behind Rick Diehl stood Jack Watson, the famous philanthropist. The media assumed that Watson was the good guy, and therefore her father was the bad guy. Once that version of the morality play appeared in theNew York Times (written by the local entertainment reporter), everybody else fell into line. There was a huge "me, too" piece in theL.A. Times, trying to outdo the New York version in vilifying her father. And the local news shows kept up a daily drumbeat about the man who wanted to halt medical progress, the man who dared criticize UCLA, that renowned center of learning, the great hometown university. A half-dozen cameras followed her and her father whenever they walked up the courthouse steps.
Their own efforts to get the story out had been singularly unsuccessful. Her father's hired media advisor was competent enough, but no match for Jack Watson's well-oiled, well-financed machine.
Of course, members of the jury would have seen some of the coverage. And the impact of the coverage was to put added pressure on her father not merely to tell his story, but also to redeem himself, to contradict the damage already done to him by the press, before he ever got to the witness stand.
Her father's attorneystood and began his questions. "Mr. Burnet, let me take you back to the month of June, some eight years ago. What were you doing at that time?"
"I was working construction," her father said, in a firm voice. "Supervising all the welding on the Calgary natural gas pipeline."
"And when did you first suspect you were ill?"
"I started waking up in the night. Soaking wet, drenched."
"You had a fever?"
"I thought so."
"You consulted a doctor?"
"Not for a while," he said. "I thought I had the flu or something. But the sweats never stopped. After a month, I started to feel very weak. Then I went to the doctor."
"And what did the doctor tell you?"
"He said I had a growth in my abdomen. And he referred me to the most eminent specialist on the West Coast. A professor at UCLA Medical Center, in Los Angeles."
"Who was that specialist?"
"Dr. Michael Gross. Over there." Her father pointed to the defendant, sitting at the next table. Alex did not look over. She kept her gaze on her father.
"And were you subsequently examined by Dr. Gross?"
"Yes, I was."
"He conducted a physical exam?"
"Yes."
"Did he do any tests at that time?"
"Yes. He took blood and he did X-rays and a CAT scan of my entire body. And he took a biopsy of my bone marrow."
"How was that done, Mr. Burnet?"
"He stuck a needle in my hipbone, right here. The needle punches through the bone and into the marrow. They suck out the marrow and analyze it."
"And after these tests were concluded, did he tell you his diagnosis?"
"Yes. He said I had acute T-cell lymphoblastic leukemia."
"What did you understand that disease to be?"
"Cancer of the bone marrow."
"Did he propose treatment?"
"Yes. Surgery and then chemotherapy."
"And did he tell you your prognosis? What the outcome of this disease was likely to be?"
"He said that it wasn't good."
"Was he more specific?"
"He said, probably less than a year."
"Did you subsequently get a second opinion from another doctor?"
"Yes, I did."
"With what result?"
"My diagnosis was...he, uh...he confirmed the diagnosis." Her father paused, bit his lip, fighting emotion. Alex was surprised. He was usually tough and unemotional. She felt a twinge of concern for him, even though she knew this moment would help his case. "I was scared, really scared," her father said. "They all told me...I didn't have long to live." He lowered his head.
The courtroom was silent.
"Mr. Burnet, would you like some water?"
"No. I'm fine." He raised his head, passed his hand across his forehead.
"Please continue when you're ready."
"I got a third opinion, too. And everybody said to me that Dr. Gross was the best doctor for this disease."
"So you initiated your therapy with Dr. Gross."
"Yes. I did."
Her father seemed to have recovered. Alex sat back in her chair, took a breath. The testimony unrolled smoothly now, a story her father had told dozens of times before. How he, a scared and frightened man, fearing for his life, had put his faith in Dr. Gross; how he had undergone surgery and chemotherapy under the direction of Dr. Gross; how the symptoms of the disease had slowly faded over the course of the following year; how Dr. Gross had seemed at first to believe that her father was well, his treatment successfully completed.
"You had follow-up examinations with Dr. Gross?"
"Yes. Every three months."
"With what result?"
"Everything was normal. I gained weight, my strength came back, my hair grew back. I felt good."
"And then what happened?"
"About a year later, after one of my checkups, Dr. Gross called to say he needed to do more tests."
"Did he say why?"
"He said some of my blood work didn't look right."
"Did he say which tests, specifically?"
"No."
"Did he say you still had cancer?"
"No, but that's what I was afraid of. He had never repeated any tests before." Her father shifted in his chair. "I asked him if the cancer had come back, and he said, 'Not at this point, but we need to monitor you very closely.' He insisted I needed constant testing."
"How did you react?"
"I was terrified. In a way, it was worse the second time. When I was sick the first time, I made my will, made all the preparations. Then I got well and I got a new lease on life - a chance to start over. Then his phone call came, and I was terrified again."
"You believed you were sick."
"Of course. Why else would he be repeating tests?"
"You were frightened?"
"Terrified."
Watching the questioning, Alex thought,It's too bad we don't have pictures. Her father appeared vigorous and hearty. She remembered when he had been frail, gray, and weak. His clothes had hung on his frame; he looked like a dying man. Now he looked strong, like the construction worker he had been all his life. He didn't look like a man who became frightened easily. Alex knew these questions were essential to establish a basis for fraud, and a basis for mental distress. But it had to be done carefully. And their lead lawyer, she knew, had a bad habit of ignoring his own notes once the testimony was rolling.
The lawyer said, "What happened next, Mr. Burnet?"
"I went in for tests. Dr. Gross repeated everything. He even did another liver biopsy."
"With what result?"
"He told me to come back in six months."
"Why?"
"He just said, 'Come back in six months.'"
"How did you feel at this time?"
"I felt healthy. But I figured I'd had a relapse."
"Dr. Gross told you that?"
"No. He never told me anything. Nobody at the hospital ever told me anything. They just said, 'Come back in six months.'"
Naturally enough,her father believed he was still sick. He met a woman he might have married, but didn't because he thought he did not have long to live. He sold his house and moved into a small apartment, so he wouldn't have a mortgage.
"It sounds like you were waiting to die," the attorney said.
"Objection!"
"I'll withdraw the question. But let's move on. Mr. Burnet, how long did you continue going to UCLA for testing?"
"Four years."
"Four years. And when did you first suspect you were not being told the truth about your condition?"
"Well, four years later, I still felt healthy. Nothing had happened. Every day, I was waiting for lightning to strike, but it never did. But Dr. Gross kept saying I had to come back for more tests, more tests. By then I had moved to San Diego, and I wanted to have my tests done there, and sent up to him. But he said no, I had to do the tests at UCLA."
"Why?"
"He said he preferred his own lab. But it didn't make sense. And he was giving me more and more forms to sign."
"What forms?"
"At first, they were just consent forms to acknowledge that I was undertaking a procedure with risk. Those first forms were one or two pages long. Pretty soon there were other forms that said I agreed to be involved in a research project. Each time I went back, there were still more forms. Eventually the forms were ten pages long, a whole document in dense legal language."
"And did you sign them?"
"Toward the end, no."
"Why not?"
"Because some of the forms were releases to permit the commercial use of my tissues."
"That bothered you?"
"Sure. Because I didn't think he was telling me the truth about what he was doing. The reason for all the tests. On one visit, I asked Dr. Gross straight out if he was using my tissues for commercial purposes. He said absolutely not, his interests were purely research. So I said okay, and I signed everything except the forms allowing my tissues to be used for commercial purposes."
"And what happened?"
"He got very angry. He said he would not be able to treat me further unless I signed all the forms, and I was risking my health and my future. He said I was making a big mistake."
"Objection! Hearsay."
"All right. Mr. Burnet, when you refused to sign the consent forms, did Dr. Gross stop treating you?"
"Yes."
"And did you then consult a lawyer?"
"Yes."
"And what did you subsequently discover?"
"That Dr. Gross had sold my cells - the cells he took from my body during all these tests - to a drug company called BioGen."
"And how did you feel when you heard that?"
"I was shocked," her father said. "I had gone to Dr. Gross when I was sick, and scared, and vulnerable. I had trusted my doctor. I had put my life in his hands. Itrusted him. And then it turned out that he had been lying to me, and scaring me needlesslyfor years , just so he could steal parts of my own body from me and sell them to make a profit. For himself. He never cared about me at all. He just wanted to take my cells."
"Do you know what those cells were worth?"
"The drug company said three billion dollars."
The jury gasped.
CHapter 002
Alex had beenwatching the jury all during the latest testimony. Their faces were impassive, but nobody moved, nobody shifted. The gasps were involuntary, evidence of how deeply engaged they were with what they were hearing. And the jury remained transfixed as the questions continued:
"Mr. Burnet, did Dr. Gross ever apologize to you for misleading you?"
"No."
"Did he ever offer to share his profit with you?"
"No."
"Did you ask him to?"
"Eventually I did, yes. When I realized what he had already done. They were my cells, from my body. I thought I should have something to say about what was done with them."
"But he refused?"
"Yes. He said it was none of my business what he did with my cells."
The jury reacted to that. Several turned and looked at Dr. Gross. That was a good sign, too, Alex thought.
"One final question, Mr. Burnet. Did you ever sign an authorization for Dr. Gross to use your cells for any commercial purposes?"
"No."
"You never authorized their sale?"
"Never. But he did it anyway."
"No further questions."
The judge called a fifteen-minute recess, and when the court reconvened, the UCLA attorneys began the cross-examination. For this trial, UCLA had hired Raeper and Cross, a downtown firm that specialized in high-stakes corporate litigation. Raeper represented oil companies and major defense contractors. Clearly, UCLA did not regard this trial as a defense of medical research. Three billion dollars were at stake; it was big business, and they hired a big-business firm.
The lead attorney for UCLA was Albert Rodriguez. He had a youthful, easy appearance, a friendly smile, and a disarming sense of seeming new at the job. Actually, Rodriguez was forty-five and had been a successful litigator for twenty years, but he somehow managed to give the impression that this was his first trial, and he subtly appealed to the jury to cut him some slack.
"Now, Mr. Burnet, I imagine it has been taxing for you to go over the emotionally draining experiences of the last few years. I appreciate your telling the jury your experiences, and I won't keep you long. I believe you told the jury that you were very frightened, as anyone would naturally be. By the way, how much weight had you lost, when you first came to Dr. Gross?"
Alex thought,Uh-oh . She knew where this was going. They were going to emphasize the dramatic nature of the cure. She glanced at the attorney sitting beside her, who was clearly trying to think of a strategy. She leaned over and whispered,"Stop it."
The attorney shook his head, confused.
Her father was saying, "I don't know how much I lost. About forty or fifty pounds."
"So your clothes didn't fit well?"
"Not at all."
"And what was your energy like at that time? Could you climb a flight of stairs?"
"No. I'd go two or three steps, and I'd have to stop."
"From exhaustion?"
Alex nudged the attorney at her side, whispered,"Asked and answered." The attorney immediately stood up.
"Objection. Your Honor, Mr. Burnet has already stated he was diagnosed with a terminal condition."
"Yes," Rodriguez said, "and he has said he was frightened. But I think the jury should know just how desperate his condition really was."
"I'll allow it."
"Thank you. Now then, Mr. Burnet. You had lost a quarter of your body weight, you were so weak you couldn't climb more than a couple of stairs, and you had a deadly serious form of leukemia. Is that right?"
"Yes."
Alex gritted her teeth. She wanted desperately to stop this line of questioning, which was clearly prejudicial, and irrelevant to the question of whether her father's doctor had acted improperly after curing him. But the judge had decided to allow it to continue, and there was nothing she could do. And it wasn't egregious enough to provide grounds for appeal.
"And for help in your time of need," Rodriguez said, "you came to the best physician on the West Coast to treat this disease?"
"Yes."
"And he treated you."
"Yes."
"And he cured you. This expert and caring doctor cured you."
"Objection! Your Honor, Dr. Gross is a physician, not a saint."
"Sustained."
"All right," Rodriguez said. "Let me put it this way: Mr. Burnet, how long has it been since you were diagnosed with leukemia?"
"Six years."
"Is it not true that a five-year survival in cancer is considered a cure?"
"Objection, calls for expert conclusion."
"Sustained."
"Your Honor," Rodriguez said, turning to the judge, "I don't know why this is so difficult for Mr. Burnet's attorneys. I am merely trying to establish that Dr. Gross did, in fact, cure the plaintiff of a deadly cancer."
"And I," the judge replied, "don't know why it is so difficult for the defense to ask that question plainly, without objectionable phrasing."
"Yes, Your Honor. Thank you. Mr. Burnet, do you consider yourself cured of leukemia?"
"Yes."
"You are completely healthy at this time?"
"Yes."
"Who in your opinion cured you?"
"Dr. Gross."
"Thank you. Now, I believe you told the court that when Dr. Gross asked you to return for further testing, you thought that meant you were still ill."
"Yes."
"Did Dr. Gross ever tell you that you still had leukemia?"
"No."
"Did anyone in his office, or did any of his staff, ever tell you that?"
"No."
"Then," Rodriguez said, "if I understand your testimony, at no time did you have any specific information that you were still ill?"
"Correct."
"All right. Now let's turn to your treatment. You received surgery and chemotherapy. Do you know if you were given the standard treatment for T-cell leukemia?"
"No, my treatment was not standard."
"It was new?"
"Yes."
"Were you the first patient to receive this treatment protocol?"
"Yes. I was."
"Dr. Gross told you that?"
"Yes."
"And did he tell you how this new treatment protocol was developed?"
"He said it was part of a research program."
"And you agreed to participate in this research program?"
"Yes."
"Along with other patients with the disease?"
"I believe there were others, yes."
"And the research protocol worked in your case?"
"Yes."
"You were cured."
"Yes."
"Thank you. Now, Mr. Burnet, you are aware that in medical research, new drugs to help fight disease are often derived from, or tested on, patient tissues?"
"Yes."
"You knew your tissues would be used in that fashion?"
"Yes, but not for commercial - "
"I'm sorry, just answer yes or no. When you agreed to allow your tissues to be used for research, did you know they might be used to derive or test new drugs?"
"Yes."
"And if a new drug was found, did you expect the drug to be made available to other patients?"
"Yes."
"Did you sign an authorization for that to happen?"
A long pause. Then: "Yes."
"Thank you, Mr. Burnet. I have no further questions."
"How do you thinkit went?" her father asked as they left the courthouse. Closing arguments were the following day. They walked toward the parking lot in the hazy sunshine of downtown Los Angeles.
"Hard to say," Alex said. "They confused the facts very successfully. We know there's no new drug that emerged from this program, but I doubt the jury understands what really happened. We'll bring in more expert witnesses to explain that UCLA just made a cell line from your tissues and used it to manufacture a cytokine, the way it is manufactured naturally inside your body. There's no 'new drug' here, but that'll probably be lost on the jury. And there's also the fact that Rodriguez is explicitly shaping this case to look exactly like the Moore case, a couple of decades back. Moore was a case very much like yours. Tissues were taken under false pretenses and sold. UCLA won that one easily, though they shouldn't have."
"So, counselor, how does our case stand?"
She smiled at her father, threw her arm around his shoulder, and kissed him on the cheek.
"Truth? It's uphill," she said.