Chapter One: E.G.
"I trust you."
E.G. Sawyer didn't speak these words. Instead, he typed them out on a plastic spelling board that had become his only means of communication since the day his life had changed six years before. It was a December evening in 1984, and my client and I sat on the ninth floor of the Buncombe County courthouse in an otherwise empty courtroom that overlooked the art deco cityscape of downtown Asheville, North Carolina. Only an hour before, I had completed my closing argument in an intense two-week trial where we had sought to prove that E.G. had been permanently disabled as a result of the medical malpractice of an Asheville doctor and the local hospital.
The next morning, the jury would begin deliberations. But for the moment as I sat beside my client, I wondered if I had done everything possible to make those twelve men and women understand the damage E.G. had suffered. Could they see the man he had once been -- the real E.G. lost somewhere in the hunched and colorless figure that now slouched in a wheelchair? Back then this man hadn't needed a chair to get around or a spelling board to speak. This man had once been the freest of movers, the easiest of talkers; the kind of guy whose good looks and easy smile would always shield him -- or so it seemed -- from misfortune.
• • •
Howard E.G. Sawyer -- those middle initials were an Appalachian quirk and stood for nothing -- had long been accustomed to the power of his striking black-Irish good looks. He had known his charm pretty well, and he loved to talk and knew people loved to talk to him. He was a natural salesman, and a good one. When he drove his Chevrolet pickup around western North Carolina selling chemicals, slapping backs, and handing out gifts, he did more than distribute the usual fifths of Crown Royal or Jack Daniel's. He stocked up on baseball cards, penknives, and the like -- for clients' kids and even for friends of their kid's.
E.G. Sawyer lived for the human exchange, and he loved the freedom his job gave him. No office, no time card -- just a monthly quota he easily met but seldom exceeded. As soon as E.G.'s professional obligations were fulfilled, he hit the golf course. When he expanded his sales territory to the golfer's paradise of Florida, his boss, Charles Tate, could hardly complain. E.G.'s sales charm knew no state boundaries, and besides, E.G. took Tate's son along as his caddy.
The Tates had more or less adopted E.G., who lived in
a neatly kept double-wide trailer just north of the Asheville city limits. He was a frequent dinner guest and a reliable presence during holidays. The Tates affectionately referred to him as "our bachelor."
Of course the ladies liked him too, for why shouldn't they -- even if he was a hard man to hold down, with all that moving and all that charm -- and all that golf -- which may have been his greatest passion of all. His first wife, Betty, continued to be fond of him even after she had left him, although she had long accepted that his real loves would always be the road and the links. And although he faithfully picked up their young children, Chad and Kim, each Saturday morning for swim-
ming or baseball games, he loved his role as the Tates' bachelor at least as much as he enjoyed his role as Saturday dad.
But as E.G. entered his forties, as his sales chums and golfing partners abandoned him each evening for the tediums and glories of married life, bachelorhood lost its luster. In 1976, E.G. married again, a woman who was young, beautiful, and spirited -- too spirited, it turned out, for the life E.G. envisioned. The marriage did not last a year.
His friends had never known him to drink -- at all. While the others passed a whiskey bottle, an Orange Crush always sufficed for E.G., but when loneliness was accompanied by bitterness and humiliation, the once carefree man began a descent. In the privacy of his trailer, he began to drink whole fifths of vodka. For a full year, he kept his new addiction to himself, embarrassed by this latest failing. Then his sales performance began to slip. One day Charles Tate found E.G. in his trailer surrounded by empty bottles. He checked his employee and friend into St. Joseph's Hospital on Saturday, September 9, 1978.
• • •
I had just told E.G. that the defense attorneys had approached me with a settlement offer that he would need to accept -- or refuse -- before the jury returned for deliberations the next morning. It was an offer of $750,000. E.G.'s fingers immediately stumbled onto the rickety plastic slab that sat just above his lap. That spelling board was supposed to prompt a synthesized voice for each word typed, but it constantly malfunctioned, so to understand what he was trying to say I generally had to watch E.G.'s once powerful fingers fumble against the letters. It was agonizing for him, and wrenching for anyone who watched him.
"Take it," he wrote, and although nothing had changed on his deadened face, I could feel his excitement.
For a moment I didn't respond. "Take it," his fingers wrote again -- as if I hadn't understood.
I could hardly blame him. It was a lot of money -- not just to my client, but to me, for E.G.'s working-class world was the world I knew. E.G.'s father drove a bus in Weaverville, just north of Asheville; my own dad had spent much of his life in the textile mills of North and South Carolina, where I was raised. In Raleigh, my wife Elizabeth still wore the $11 wedding ring I had bought for her seven years before. So when he said "Take it," I understood. I understood completely.
I had already talked with my partners and they were impressed with the offer and at first they seemed happy with it, but we all soon realized that in the long run it wouldn't be nearly enough to give E.G. any kind of life. The figure may have represented the sum of his lost potential wages, but that hardly meant anything for someone who could no longer walk or talk or drive, or cook for himself or dress himself, or even keep himself clean, or buy anything in a store or turn the pages of a newspaper or make any kind of plan for a different tomorrow. The settlement would merely house and clothe him, but E.G. -- who deeply loved the freedom of his life on the road -- could no longer function at all on his own. And the offer didn't come close to approaching the mountain of expenses for the medical and physical challenges that lay ahead as he grew older, feebler, and surely, more and more alone. They were hardships that we, and even E.G. himself, could hardly begin to imagine.
I had seen photographs of a tall, broad-shouldered man with big, muscular arms and a ready grin for the camera, but now he was the kind of embarrassing figure who one might turn away from on the street, eager to forget that kind of misery. He bore almost no resemblance to the winning fellow who once could have talked his way onto a golf course or into a woman's arms. It wasn't just that he was now fifty-one years old. It was that the armor he had worn into the world -- the handsome face, the deft instinct for slapping a friend on the back or bending down and slipping a pocketknife to someone's shy son -- had been stripped away. His black hair was now thinning and streaked with gray. His wide shoulders sagged inside the sports jacket I had wrestled him into that morning. His chin was damp; and his once lively eyes were vacant. And yet, he had this: the ability to make you believe in him and want to fight for him because, without any reservation, he believed in you in a way you did not yet believe in yourself.
He typed it out a third time: "Take it."
I told him it was not what he deserved, and it was not what he needed. "And let me tell you something," I added. "The jury knows it too."
E.G. sat there, his otherwise expressionless eyes welling up under the fluorescent lights. Then in a slow and halting manner, he began to move his hands.
"I trust you."
I trust you. I'll never forget how I felt at that moment, for E.G. Sawyer's message was the single most terrifying thing anyone had ever communicated to me. With those three words, he was putting his entire life in my hands. Trust me? I was thirty-one years old. Good grief, what did I really know?
I was telling this ruined man to turn his back on what must have seemed to him, what was to him, a fortune. And I was claiming to know what was in the jury's head. If I was wrong, E.G. would suffer even more miserably for the rest of his life -- and I'd go home to my house and wife and children in Raleigh. And then on to my next case. I was all he had, and God help him, he trusted me. I felt scared.
But I had grown up knowing the world of E.G. and the strength of people in that world. They worked, and took hits, and they rarely complained. In bad times, sometimes the best they could think to do was turn inward -- as E.G. did when he went back to his room -- and sometimes that was in fact all they could do. My world is different now, and of course people close to me still suffer in real ways, but now many of them are powerful, and they have the privilege of knowing what to do and how to do it when son, daughter, mother, father, friend finds the whole world coming down. They pick up the phone and make a call, and it is often the right call. And then other calls are made that night, while they sleep or at least try to sleep. And sometimes -- perhaps often -- it does much good. Yes, this is my world now -- I know that -- and I can't deny that in many ways I am happy that it is. But all my life I have known people like E.G. or people like neighbors of E.G. I haven't forgetten what they are up against -- in part because when I was young, I really saw what they were up against. And it is impossible to forget. When E.G. said he trusted me, I was genuinely afraid, but I knew that what we were trying to do was right. I genuinely believed that what we were trying to do could make a suffering man's life into some kind of better life.
My father, Wallace Edwards, worked for Milliken, the textile company, and since he was frequently reassigned to different mill towns throughout the South, we moved often when I was growing up. We'd pack up what we could from a mill house, and what we could not afford to move we'd leave to the church or to the next tenant. We'd drive off in our packed Ford sedan, and though she thought we didn't notice, my mother Bobbie would always turn to catch a last look at the house. We left half a lifetime's memories in sandy-lotted homes across the South.
I was surprised to find that mama had held on to an essay I'd written when I was eleven: "Why I Want To Be A Lawyer." Rereading it today, I'm struck first by the revelation that at one time in my life, my handwriting was actually somewhat legi-ble. Once I get past the essay's half-decent script -- like many in my office and home, I often can't come close to reading my penmanship today -- I soon arrive at what I am sure was my key sentence: "Probably the most important reason I want to be a defense attorney is that I would like to protect innocent people from blind justice the best I can." Of course at that tender age I had no command of legal terminology. To an eleven-year-old, the concept of justice being "blind" sounded ominous, not one bit virtuous. Be that as it may, from early boyhood, what drew me to the law was the chance to "protect innocent people," to "give advice" -- and even, I wrote rather grandiosely, to "save lives."
There were no lawyers in my extended family. There were millworkers, grocery clerks, ministers, Marines, boxers -- but not lawyers. And though I barely knew Doc Smith, who was the only attorney in town, television brought all kinds of dramatic justice, and injustice too, into my small world.
As a boy I was moved, and I was shaken, by The Fugitive, that series where the wrongfully accused Dr. Richard Kimble escapes prison and roams the land in search of his wife's true killer. The show's depiction of "an innocent victim of blind justice" made a powerful impression on me, as it did on my whole family, and I remember my building fury when -- week after week -- no one ever bothered to take Dr. Kimble's side and make things right for him, or even try. Instead there was that constant grim detective whose only job, bankrolled by some remarkably lush federal budget, I later realized, was to find this one, single man.
And I was at least as fanatical about Perry Mason, but there I found real comfort in the show's last four and a half minutes when -- week after week -- that truly fine lawyer yanked yet another explosive confession from yet another cold, evil, and wily villain.
An optimist by nature, I always waited, in needless suspense, of course, for that final moment when wrongs would be righted, and righted in a flash. Now I don't even remember what happened in the last episode of The Fugitive, and although I suspect things turned out well for Dr. Richard Kimble, in my mind's eye he is still roaming the land and still searching for justice.
Of course it would be a few years before I made any connection between the people I grew up with and the glamorous victims I saw on Perry Mason -- people whose hardship and suffering never lasted, of course, more than the sixty minutes allotted to each episode, minus the commercials. As an eleven-year-old I had no sense of how a man injured in a factory, or even just a regular salesman like E.G., might have the scales tipped against him as much as Dr. Kimble or the parade of clients lucky enough to have the services of Raymond Burr. In such cases those scales might remain tipped for life -- especially if there was no one from their ranks who would stand up for them and provide them with a voice.
My dreams of righting wrongs yielded to dreams of buying a car. Then I found myself, as a high school student, working beside grown men building mobile homes. I thought I was earning the down payment on a red Duster, but I was in fact doing something else I did not realize until years later. I was imprinting the lives of those men on my sense of who I was and where I came from. I did the same at the mill when I swept the floors around the looms or when I painted markings on rural highways while I listened to a fellow named Brady tell me the woes of his life. By the time I left my parents' home to go to college, I had taken with me more than funny stories about the different colors Brady had dyed his hair ("Orange? You dyed your hair orange, Brady?" or "Dyed your hair black now, Brady?" "Naw, it's shoe polish"); I had also taken a sense of the dignity of hard work and the struggle of good men and women.
In 1977, ten years after the last episode of The Fugitive, I passed the state bar exam and on that same weekend married my law school sweetheart, Elizabeth Anania. We loaded up our small car and drove to Virginia Beach (where Elizabeth was to serve a one-year clerkship with Judge J. Calvitt Clarke, Jr.). And then I returned to Raleigh to begin my own one-year clerkship with U.S. District Judge Franklin T. Dupree, Jr. I regarded it as a small miracle that I'd gotten that far. It had taken hard work and, on the part of my parents, plenty of sacrifice. But I also had to believe it had taken some special grace to get me from the backyards of Robbins to a paneled federal courtroom in Raleigh.
A native of tiny Angier, North Carolina, Judge Dupree had already built a reputation as an excellent defense lawyer when President Nixon appointed him to the federal bench in 1970. He was the epitome of the old-school Southern establishment lawyer. He called his elegant and white-gloved wife "Miss Rosie" and pretended not to dote on her, though even to me, it was clear that he was both completely devoted to her and sure that he had married above himself. Many of his law clerks, particularly on his gruff days, agreed. He was at turns coldhearted and grandfatherly. And one of his joys was his annual birthday party, supposedly a gift from his former law clerks, who -- now as lawyers who often practiced before him -- knew to attend and pay their share of the Judge's and Miss Rosie's dinner. It was a command performance but few people minded.
Obtaining my clerkship with Judge Dupree was difficult not only because competition for the positions was always fierce, but also because of an additional hurdle: the Judge instructed me to show up for my job interview with my tennis racquet. It turned out that the sixty-four-year-old jurist was an avid tennis player who sometimes needed a partner when he was trying cases away from Raleigh. So we concluded the interview with a brisk set. I don't remember who won, but since I hadn't gotten the job yet, I'm going to guess that the Judge was the better player that day.
As I sat in Judge Dupree's courtroom, I came to understand how a presiding judge's philosophical leanings -- the Judge was himself an ardent conservative -- could shape the outcome of a trial in countless ways. A judge's influence is subtle but powerful. The parties and particularly the jury look to the judge as a rigorous protector of the law and take everything the judge says as serious, important, and impartial, whether it is the last of these or not.
In my year of watching trials at Judge Dupree's side, I also came to recognize those lawyers who did an exceptionally fine job and those who were less competent. I learned that knowledge is indeed power, but, most important, I learned that trials are about credibility -- that if a jury is to believe in your case, the jury must believe you. You have to earn their trust, and after you have earned it, you have to earn it again, every day.
The twelve souls who spend full days, full weeks, or sometimes long months sitting only a few feet from you get to know you almost as well as you know yourself. They rarely miss a trick, and probably never when it really is a trick. They take in every movement, fact, word, hesitation, and glance. My faith in the wisdom of ordinary people took root in the mill towns of my youth. But the juries of my adulthood deepened that faith.
Juries seek the truth, and even as a clerk I learned that neither silver-tongued cunning nor hapless bungling will find it for them. They do not want to be manipulated, and they deeply distrust anything that makes them feel bullied -- or hypnotized -- into rendering a verdict. So the best lawyer must be honest and in a way plain in answering any doubts or confusions, and you must know the facts -- all of them -- for otherwise the jury will lose faith in you. As it should.
?• • •
In September 1978, the same month in which E.G. Sawyer's boss drove him to St. Joseph's Hospital, I entered the law offices of Dearborn & Ewing in Nashville, Tennessee -- my first job as a licensed attorney. Less than a month into that job, I began to learn some basic lessons I would need to learn if I was to be E.G.'s voice, and those lessons were not always easy.
The firm had just become engaged in litigation concerning a train derailment in Waverly, Tennessee. The derailed train was loaded with explosives, but it had lain seemingly harmless for days until, without warning, it exploded into flames. Nearly one hundred unlucky bystanders were killed or injured. The finger-pointing among the potentially responsible parties started right away, and one of the fingers was pointed at the manufacturer of the train's brake shoes. The manufacturer hired a firm out of Chicago to lead the company's defense and hired Dearborn & Ewing to help with the local depositions and with the byways of local Tennessee legal procedure.
The Chicago lawyer had been conducting a lengthy deposition of a key witness. When the other lawyers in the case started questioning the witness, the Chicago lawyer, who had to be in court elsewhere, called Dearborn & Ewing to get a local attorney to sit in on the remainder of the deposition. Although I knew little about the case, and even less about this witness, I was the only lawyer Dearborn & Ewing could spare at the moment, so off I went to my first solo deposition, and unwittingly to my first important lesson as a lawyer. In a deposition, a witness -- who could be a party to the lawsuit, or someone who knows the facts, or an expert of some kind -- takes an oath to tell the truth and then answers questions by the lawyers in the case. Depositions can last an hour or days. The Chicago lawyer's questioning of this witness had already taken a couple of days.
Because the case was so complicated and because there were so many plaintiffs and so many defendants, the deposition was held in a hotel ballroom, with white-linen-covered banquet tables. It seemed as if at least forty attorneys were working on the deposition, and they all appeared competent, confident, and unfazed by the surroundings. I was to listen to the other lawyers' questioning and to report what the witness said in case -- well, I didn't really understand what I was supposed to do, so I just tried to listen and look as if I belonged. Fearing that I looked instead like a new and inexperienced lawyer, which I certainly was, I took a seat, scribbled down the brief conclusion of the deponent's testimony, and ducked out. I may have given my name to the court reporter, but other than that I did not say a word. When the Chicago attorney later asked me what the witness had said in his testimony, I gave what I thought was a reasonably accurate summary.
What I didn't know at the time was that the deponent's testimony that last day differed from what he'd said when the Chicago lawyer had asked him questions. I had not learned this from studying the transcripts or from reviewing the file or from listening closely to every turn in the witness's testimony.
I learned this, unfortunately, from the Chicago lawyer, who ripped into me: "He testified to something different when I was questioning him than he did when you were there! And you didn't think to tell me that? What the hell were you doing in there? You're nothing more than a warm body!"
By the time he had finished with me, I was certain I had picked the wrong profession. But the man was right: in a deposition, as in trial testimony, a lawyer's got to listen to every word. A lawyer's got to be prepared, because a lawyer is the client's only eyes and ears, and voice. It was not easy to take that flaying, but I learned a lesson that made me a better lawyer in every other case I tried.
• • •
Nashville was good to us during our three years there. We bought a Southern colonial home with a lawn that spread under magnificent old oaks -- and it all seemed like a palace to me. There in 1979, Elizabeth gave birth to our first child, Wade, and there we spent many late afternoons under those oaks watching him walk and run and grow. We would spend Saturday mornings roaming the Nashville flea market and Saturday nights at the antique auction in nearby Lebanon looking for furniture that we could refinish for our new home. And we made wonderful, lifelong friends.
Not long after we moved in, my parents took the ten-hour drive from Robbins to get a glimpse of our new life. I made a point of taking them to the City Club restaurant that topped the First American Bank Building and hovered over the glitter of downtown, the Cumberland River, and beyond. To be able to splurge like that for my folks, both of whom had worked long hours to put me through college, was tremendously
gratifying. As we sat there and they remarked about how they'd never been up so high and never seen so far, I knew they were pleased with my life. I had no trouble imagining my dad at church the next weekend telling anyone who'd listen about the fancy place Johnny had taken them to in Nashville.
Still and all, the city never quite felt like home to Elizabeth and me. In the spring of 1981, we sent out resumes to various law firms in North Carolina, and by Memorial Day weekend, we were back in Raleigh.
It occurs to me, looking back now, that returning to Raleigh and taking that new job changed the course of my life -- and not in small part because the job I took brought me to E.G.'s side. Tharrington, Smith & Hargrove in Raleigh was a small but dynamic law firm with a personality defined by two brothers, Wade and Roger Smith. The firm mostly handled criminal, family, and education law but was looking to expand its reach into civil litigation -- a division that Wade Smith promised I could spearhead. I would be working on behalf of people, not big companies. The work sounded perfect -- and I confess that I was taken by the Smith brothers. Who wouldn't be? Both had been captains of the football team at UNC and now both were outstanding trial lawyers. Roger was a poet, Wade played the banjo, and they understood how to practice law because they understood how to live a good life.
During my first three years there, the plaintiffs' cases that came our way weren't exactly monumental or even newsworthy. One involved a widow whose husband's will had bequeathed to her a life estate in his house along with a small sum of money. I saw the widow as a leaner Aunt Bea, who reminded me of my own grandmother, and I immediately liked her. And in fact, before the trial I discovered that she was a grandmother, the grandmother of our son's day-care teacher -- and Wade saw the same sweetness in the young
"Miz Dav'port" that I saw in her grandmother.
But the widow's stepdaughters, one of whom was executrix of the will, did not see it at all. They refused to honor the will and evicted her from her home. Not only did my client make me feel somewhat like Perry Mason, her stepdaughters played the roles of villains particularly well. We won the case. Fifteen years later, when I became a candidate in the 1998 U.S. Senate race, one of the sisters indicated her fond memories of me by proclaiming, "I would vote for O. J. Simpson before I would vote for John Edwards."
Other legal grievances came my way: a libel case for a small businessman who had been mocked by a competitor whose ads had turned my client's face into a monkey's face, a lawsuit over defective cable television boxes, even a case in which my client, a trucking company, successfully sued an insurance carrier that had denied coverage for an accident caused by a company trucker. It was good work, but I pined for a case that could swallow me up. I was restless when, in the summer of 1984, Wade Smith strolled into my office and plopped a thick file on my desk.
In his whiskey-smooth Carolina drawl, Wade said, "Senator Swain sent us this case from Asheville. He's about to settle it, but he wanted someone to look at it first."
I opened the file. Inside, I met E.G., and though I did not know it that day, I had found my calling.
• • •
The first time I saw E.G. Sawyer, on August 23, 1984, he was sitting in his wheelchair in a seedy one-room apartment on the east side of Asheville. The E.G. I had read about in the file, the sociable, good-looking charmer, was not one bit in evidence, and even the beaten E.G. who had turned his nights over to a bottle was not in the room. Slightly hunchbacked, with swollen legs and an unshaven face, E.G. Sawyer appeared to have been left there to rot. The room was his life: no family photos, no adornments of any kind, only creeping filth. The floor was blanketed with fast-food wrappers and cigarette ashes. A number of blue plastic cartons brimming with E.G.'s bodily fluids sat off in a corner, and the room smelled of urine. His fingernails were long and yellow. He wore a towel around his neck that he used to wipe off the saliva that constantly collected at his mouth, but because the saliva moved faster than his hands did, the front of his shirt was soaked. Mercifully, there was no mirror in sight.
E.G. had several good friends who brought him his hamburgers, paid his bills, and trimmed his hair -- though the bleak spectacle of him was hard on them, and they'd begun to visit less and less. Each week a social worker dropped by to administer a sponge bath, empty the collection of urine containers, and pick up the garbage. E.G. could do almost nothing for himself -- and was only the barest echo of the intrepid salesman who had always taken pains to keep his trailer neat and dress nice for the ladies. I shook his twisted hand, and he fought to say a few words, which did not quite make it out of his throat.
I don't remember exactly what I said to my client that first day. But I know what I was thinking. It's what I thought for the rest of that day, and in the weeks and months to come: I'm going to get E.G. Sawyer out of this hellhole.
• • •
How he arrived there was a tale that began with an act of kindness. On September 9, 1978, his boss, Charles Tate, insisted on driving E.G. to St. Joseph's Hospital. Neither Tate nor any of E.G.'s friends knew that E.G. had already visited the hospital six times that year for various ailments relating to alcohol abuse -- after his second wife had left him, E.G. had slowly succumbed to his demons. In those earlier outpatient visits, his doctor, a skilled general practitioner in his forties, recognized the severity of his patient's condition. E.G. was wasting away.
Five days after Charles Tate checked E.G. into St. Joseph's, the doctor recommended aversion therapy -- which would mean that E.G. would be given disulfiram, a drug better known by its brand name, Antabuse. If E.G. drank any alcohol, the Antabuse would make him nauseated and perhaps even profoundly ill, and ultimately, it would keep E.G. from drinking and allow the eventual repair of his liver function. E.G. acknowledged that the approach sounded like a good idea, and his boss and several other friends pledged that they would be there to keep up his spirits. So, on September 14, 1978, the doctor initiated the aversion therapy by prescribing the maximum daily dosage, 500 milligrams of Antabuse.
The next day, the fifteenth, the doctor prescribed double the maximum daily dosage of Antabuse for E.G., and on the sixteenth he tripled the dosage to 1500 milligrams. The doctor had attended a seminar in Atlanta in which this kind of aggressive therapy was discussed. The hospital's pharmacists dutifully filled the prescriptions, and the nurses dutifully administered them to E.G. Each day for the next two weeks he received three times the maximum daily dosage. Although at first he seemed cheerful and resolute about defeating his alcoholism, soon there were alarming signs that something had gone wrong. He complained of headaches and became increasingly drowsy and confused, and his blood pressure went up. On the evening of October 1, a nurse found him unconscious and lying crosswise on his bed. When Libby Tate, Charles Tate's wife, phoned the hospital the next day to see how the salesman was coming along, she was informed that E.G. Sawyer had been transferred to the intensive care unit. He was in a coma.
In December, E.G. emerged from his coma with extensive brain damage, unable to walk or talk without great difficulty. His friends transferred him to Duke University Hospital for continued treatment and therapy, then took him back to a rehabilitation center in Asheville. By that time, his transformation from robust and attractive man to a severely handicapped shadow of his former self was complete. On E.G.'s behalf, Charles Tate consulted four or five local attorneys, but none of them would take the case. Medical malpractice lawsuits had rarely been filed in conservative Buncombe County, and when they were filed, the results were usually the same: verdicts for doctors. Furthermore, no local jury was going to side against the beloved local hospital in favor of an alcoholic. When E.G. Sawyer was wheeled into the law office of state senator Robert Swain in the summer of 1981, the three-year statute of limitations -- the period in which a lawsuit for negligence could be filed -- had almost run out.
The veteran attorney couldn't believe it when he heard the name. Surely this was not the same E.G. Sawyer he used to see on the golf course. Swain's young associate, Joel Stevenson, listed the various reasons why the case was a sure loser. But Swain said, "If we don't help him, nobody will."
Still, Swain and Stevenson had never tried a malpractice case. After filing the complaint against the hospital and the doctor, they had little idea how to begin. So basically they did not begin. They took a few depositions, and then the case languished for the better part of another three years. As luck would have it, Senator Swain had recently helped kill a bill on the regulation of broadcast radio towers, and one day Wade Smith, who was also a lobbyist for the North Carolina Association for Broadcasters, stopped by the legislator's office in Raleigh to thank him for his effort. "If there's anything I can do to help you, just let me know," said Wade.
The senator replied, "As a matter of fact..."
A few days later, Wade Smith plopped E.G. Sawyer's file down on my desk.
• • •
The judge looked at me like I was crazy. Then he told me I was crazy.
"One and one-half million dollars? That's ridiculous. Why, you're just trying to get a notch in your belt, aren't you?"
The judge, the opposing counsel, Senator Swain's associate Joel Stevenson, and I were all seated in the law library of the Buncombe County courthouse. By all appearances the pretrial conference was going to be short. When asked by the judge what I thought it would take to settle E.G.'s case, I gave an honest reply. Considering that the overdose of Antabuse had rendered my client incapable of working, transporting himself, communicating effectively, or otherwise enjoying a normal life, compensation for the economic and emotional losses he had suffered should be at least $1.5 million. I hadn't pulled the number out of a hat: we had consulted with specialists about both E.G.'s projected lost wages and his ongoing medical and therapeutic needs. This was about fairness and justice, I told the judge, not about getting some notch in my belt. In fact, the idea of getting a notch in my belt with a medical malpractice case in the North Carolina mountains was on its face ridiculous. Of course I didn't say that. But even so the judge wasn't having any of it.
"Mister Edwards," he said. The words rolled out, as slow as molasses. "You may be able to get that kind of money back in Raleigh. But juries down here don't award more than a hundred thousand dollars. In fact, Mister Edwards..." He paused. "You introduce alcohol into a case in Buncombe County, and you lose. Now, whatever these gentlemen are offering here" -- another pause -- "you'd best take it."
"Your Honor," I said, "I think what I've proposed is the minimum of what's fair for my client."
Indicating the opposing counsel, the judge replied coldly, "Then if that's the settlement offer you have in mind, these gentlemen needn't even respond."
I left the courthouse scared to death. From close observation as Judge Dupree's clerk, I understood the enormous discretion a judge wielded during trial. How could I best represent E.G. when this judge was obviously hostile to me? He could effectively and subtly undermine E.G.'s case. In targeting me, the judge could hang E.G. Sawyer out to dry. My only hope was that when the trial was scheduled, this particular judge was nowhere near the Buncombe County courthouse.
I have mentioned that Senator Swain and Joel Stevenson had never handled a medical malpractice case before. Neither had I. Nor for that matter had any attorney at our Raleigh firm. Part of the reason for this inexperience was that such cases required a firm grasp of esoteric medical procedures and terminology, but the other reason was that, back in 1984, juries in a conservative region could scarcely fathom ruling against any doctor or any hospital in a civil proceeding. A car manufacturer, a restaurant, or even a police force might be held responsible for damages if its negligence had caused injury to someone. But the notion that a doctor could be liable for causing a patient lasting harm was difficult to square with the public's view of a physician as a benevolent and all-knowing lifesaver.
Of course, I could appreciate this sentiment. Doctors had delivered my children and had performed open-heart surgery on my father. All my life, I'd benefited from the fine work that physicians do. But physicians err like the rest of us, and when, through neglect or reckless behavior, they cause damage, they must be held accountable for the consequences of their action or inaction. The E.G. Sawyer tragedy was, to my mind, a classic case in point, for as a direct result of the doctor's administration of an outrageously high level of medication, E.G.'s life, although imperfect like all lives, had been ruined. The evidence couldn't have been clearer. My challenge would be to shatter the jurors' prejudice in favor of a good but mistaken doctor and against an alcoholic E.G. and to allow them see the facts for what they were.
First, I had to understand the facts. My client suffered from two disorders, encephalopathy and peripheral neuropathy -- terms I didn't know how to pronounce, much less explain to a jury. (The first is a brain disease; the second involves damage to the nerves connecting the brain to other parts of the body.) I had to learn the nature of alcohol abuse and the pharmacological properties of Antabuse. I also had to develop an understanding of hospital protocol and how it had been flouted in E.G.'s case. In order to charge that the doctor and the hospital had violated the standards of care, I had to know just what the standards were. Through the discovery process, in which the defendants are compelled to furnish information relating to the plaintiff's case (and the plaintiff is compelled to reveal his evidence to the defense), I now had hundreds of pages of medical records to review. It was a detailed diary of E.G.'s deterioration, if I could only comprehend it.
• • •
I had to learn an entirely new language. But just as every mountain has toeholds, every language -- legal, medical, political -- has an accessible logic. The thing to do is to start. And when I started, I had the benefit of terrific help from two of Tharrington Smith's associates, Liz Kuniholm, who helped put the case together, and Andy Penry, who found an outstanding -- and vital -- expert witness willing to testify. Dr. John A. Ewing had recently retired as director of the Center for Alcohol Studies at the University of North Carolina at Chapel Hill. The sixty-one-year-old native Scotsman studied E.G.'s medical record and read the deposition testimony of the Atlanta "addictionologist" who had instructed the Asheville doctor that Antabuse could be administered in above-maximum dosages.
Dr. Ewing laid out for us, and subsequently destroyed, the doctor's likely defense. He felt confident that the doctor would argue that E.G.'s condition was caused by his drinking either before he was hospitalized or during the aversion therapy in the hospital. Since the hospital records showed E.G.'s consistent improvement, including improvement in his liver func-tion, Dr. Ewing concluded the coma couldn't have been brought on by his prior alcohol abuse. Nor did he see signs that, as the defense had claimed, E.G. might have consumed
alcohol during his hospitalization or that this alleged drinking had caused a violent reaction to Antabuse. This point had been especially worrisome to us since E.G.'s doctor had noted in his discharge summary that E.G.'s sudden deterioration suggested "the possibility of a drug inaction [sic] between disulfiram [Antabuse] and alcohol. The patient denied the surreptitious taking of alcohol....Subsequently, it was learned by this examiner from the Intensive Care nursing staff that the patient admitted to surreptitiously obtaining alcohol during the time he was being treated with Antabuse." If this notation by the doctor was true, then of course E.G.'s case was sunk.
But Dr. Ewing seriously doubted this was so, and he used the medical records to prove his point. He told us that when an Antabuse patient takes alcohol, his blood pressure plunges. But according to the records, E.G.'s blood pressure had done the opposite and gone up -- a sign of an overdose of Antabuse.
Still, the other side was undoubtedly going to cast our client as a hopeless drunk who had brought his miserable condition on himself. E.G. had denied to us that he had snuck a drink during his stay in the hospital, and the friends who visited him were just as adamant that they had not smuggled in any liquor. Although the doctor had ordered a blood alcohol test during E.G.'s decline, the result was never recorded, nor was there any record of the search, ordered by the doctor, for alcohol in E.G.'s room. But the doctor remained insistent that he had been told of E.G.'s drinking during hospitalization.
Two years before we were brought into the case, the doctor had submitted to a brief deposition in which he named his source of information for E.G.'s surreptitious drinking: a "redheaded" intensive care nurse named Miss Bonner. She was, unfortunately, no longer working at the hospital, and no one seemed to know where she was. The defendants were happy
to have a swearing contest between a local doctor and an alcoholic.
• • •
Asheville, a wonderful town lodged in the hip of the Pisgah National Forest, is magnificent in the autumn, but I confess I don't remember the fall foliage in 1984. With Joel Stevenson's help, we located dozens of witnesses, among them old friends of E.G.'s who could help us paint a picture of what the salesman had been like before his hospitalization. We found experts who supported Dr. Ewing's opinion that the doctor's excessive administration of Antabuse had caused E.G.'s condition, hospital staff nurses and pharmacists who would testify that hospital personnel did not question the doctor's orders, and other experts who would reduce our client's needs and losses to monetary terms. And finally there was Dr. Margaret Burns, a psychiatrist who had treated E.G. in the early days of his hospitalization before the aversion therapy was initiated. She was the doctor who, when she discovered what the Antabuse treatment was doing to E.G., had ordered that it be halted.
After essentially gathering dust for nearly three years, the Sawyer case file was suddenly bulging. The defense attorneys were taken aback, for they'd been certain that Senator Swain would be an easy mark for a low settlement offer. Now they began to stall. We had forwarded interrogatories to the doctor's lawyers -- written questions about the facts of the case to which the doctor was to provide written and sworn answers -- but the doctor ignored the deadline for answering. Then the lawyers objected to our deposition scheduling and said they couldn't believe we had lined up so many medical experts to testify against another doctor. The list we submitted included experts they themselves had interviewed long before Senator Swain had brought Tharrington Smith into the case. When those experts told the defense that, no, they couldn't possibly side with the doctor, the attorneys committed the tactical blunder of not retaining them as "advisers." Instead they'd cut them loose, and now they were our witnesses. Since we were from out of town, to the defense lawyers we were an unknown quantity, but the fact was we were pretty much an unknown quantity even to ourselves.
In truth, I simply didn't know enough to be cowed. The more cases you try -- and lose -- the better sense you have of what can go wrong. No jury in Buncombe County had ever returned a verdict anywhere approaching the size we sought. Perhaps a more seasoned attorney would have agreed with the judge who told me I should settle for whatever the other side was offering. We may not have understood what all the risks were, and we may have been slim on experience, but we were young believers, and I felt we were just what E.G. needed.
Every chance I got, I visited E.G. Sawyer -- partly to keep his spirits up, but at least as much to keep focused on what this case was truly about -- and this happens in the legislative process as well -- for it's easy to get caught up in the abstract fight. But these battles are never really abstract. Real people win and real people lose. Real lives change...or don't. So I would sit with a despondent fifty-one-year-old client whose world no longer knew golf courses, racetracks, or any open road. And we talked about his case.
Communicating in short bursts through his spelling board, wagging an index finger after the completion of each word, E.G. wanted to know everything. Was his old high school basketball coach willing to testify? He was. Had we located the redheaded Nurse Bonner? Not yet. Did I think E.G.'s doctor would take the stand in his own defense? Probably, and if not, I'd bring him on as an adverse witness. And where was that ice cream?
E.G.'s one remaining physical pleasure was chocolate ice cream. We would bring it to him by the half gallon, and he would push aside the spelling board and set the tub on his lap. While we emptied out his ashtrays and dumped out his urine bottles, he had a few moments of indulgence, and for that moment, he was transported from the grim apartment. Catching the hints of something alive in his eyes, I too would forget the room for a moment, but only a moment, and then I was back. This man hoped for a way out of his personal hell, and he thought I knew the way. I prayed I could find it.
In the days right before trial, after long hours of studying depositions, scribbling notes, after brainstorming with co-counsel, after organizing exhibits with the closest thing I had to a paralegal, my secretary Betty Tucker, I would finally retire to my bed at the Inn on the Plaza across from the courthouse. Lying in the dark among the scattered depositions
and medical charts, I'd stare at the ceiling and see the shell of E.G. Sawyer, a ghost of a man in a wheelchair. Two, three hours of sleep at most, and then he would call me back to work.
• • •
From the windows behind the jury box of the courtroom on the ninth floor of the Buncombe County courthouse, you can see the museum dedicated to legendary Asheville author Thomas Wolfe, and, off in the distance, the southernmost spine of the Appalachian Mountains. Between these two points, St. Joseph's Hospital juts out of the cityscape. The hospital had evolved from a small sanitarium established in 1900 by the Sisters of Mercy, but now massive and stuck there on the side of the mountain, it appeared ready to throw its shadow, physically and psychologically, on the twelve men and women who would decide E.G.'s fate.
When E.G.'s case was scheduled for trial, I was relieved that it had not been assigned to the judge who had ridiculed the case in the pretrial conference. But the alternative was not reassuring. Superior Court Judge C. Walter Allen had never presided over a medical malpractice case, and worse still, his wife was an outpatient nurse at St. Joseph's. But Judge Allen, a tightly built man who ran a tight courtroom, was reputed to be fair. A stickler for efficiency, he was a strong believer in not burdening the court with lengthy trials and so he tended to push for settlements whenever possible. Above all, the judge saw opening arguments as a colossal waste of time, and he would interrupt any transgressor with a curt "Finish up. Let's get to the evidence. Bring up your witness." But before opening arguments came jury selection.
Jury selection for E.G.'s case began on Monday morning, December 3, 1984. In my view, no stage of a trial is more important than this one. Juries are just regular people. They are shop clerks, factory workers, secretaries, and teachers. They are the people I had grown up with in Robbins and in other mill towns. And they each come to the courtroom with their own lifetime of victories and heartbreaks and their own accumulation of biases. The point of jury selection is not to find twelve men and women who will definitely decide in favor of your client, for in my experience, such jurors don't exist. The point is to find jurors who will listen fairly to your case and will be open to your client's story and to you as the teller of that story.
When I was a lawyer, I had a view about jury selection different from some of my colleagues'. Some lawyers use jury selection to make arguments to prospective jurors about the merits of the case before the evidence begins. A lawyer does in fact need to present to them a general sense of what the case is about, and a lawyer certainly needs to identify those facts that could become problems in the case. But I never thought it was a good idea to make a speech during jury selection; for me, the closer jury selection was to a conversation around a kitchen table, the more effective it was. When I was young, I used to hear the saying "You can't learn anything when your mouth is open." Well, the same thing is true in front of a jury. If I was the one talking, I was not learning anything about the potential jurors, and so I wanted to get them talking; and better yet, I wanted to get them talking among themselves. When the closing argument was completed and the judge read them the law, I would not have a chance to speak to them again, but then they would be talking to one another in the jury room. The more I had a sense of what happened when they talked among themselves, the better able I would be to decide who among them would be fair to my client and who would emerge as their leaders.
So in jury selection, I might ask a particular juror what he thought about a certain issue in the case: Do you believe that a doctor shouldn't have to be accountable for his mistakes? Would you find it hard to have any sympathy for an alcoholic? Does the fact that you have friends working at St. Joseph's Hospital prejudice you? If we prove that the damages to our client exceed a million dollars, would you be unwilling to award him such a high amount? Would you hold it against my client that I'm a Raleigh attorney? Then I might turn to the juror next to him and ask what she thought about what he had said. I wanted to see their honest reactions and interactions, not just whether a juror was with us. But it's hard to turn a formal courtroom into a place where an almost intimate conversation can take place. The jury needs to forget the judge and the clerks and the other lawyers. When they do, a lawyer can really learn what he needs to know and can begin to build something essential in every case -- a real relationship with the jury.
And I wanted to handle jury selection in E.G.'s case. But I wasn't the only lawyer; Bob Swain had signed on first. On the eve of trial, he reminded me that he knew these people.
"You can do all the medical witnesses," he said. "But this is my county. I know the people in that jury pool. I want to do jury selection, and I want to examine E.G." The senator's gruff voice, massaged over the years by tobacco tar and whiskey, left little room for negotiation. And he had a point: he was a sitting state senator elected time and again by the same people who would be in that pool of potential jurors. So he took over jury selection. As the senator quizzed the potential jurors about their family backgrounds, Judge Allen intermittently barked out, "Move it along! Let's move it along!" By Tuesday morning, both sides had accepted the jury.
"How much time do you need for your opening?" the judge asked me just after the jury was impaneled. I requested forty-five minutes. "I'll give you five," he replied. I protested, and the judge grudgingly awarded me ten minutes. Then he brought in the jury.
The courtroom was small and largely unornamented, unless you counted the panorama of the mountains and the view of the hospital through the windows directly behind the witness stand. On that first day, only a handful of observers sat in the benches. Two of them were unmistakably partisan. They were nuns from St. Joseph's, in full habit, a not-so-subliminal suggestion of the defendants' piety.
I stood at the podium and my first words to the jurors amounted to a confession: "I feel like I have to tell you something before we begin: I'm nervous. I'm nervous because I'm a young lawyer. I'm nervous because this is an important case. And most of all, I'm nervous because of E.G. Sawyer, since the job I do for E.G. in this trial is going to count for his entire lifetime.
"And I'm concerned because I'm not sure I'm up to the task. My job is to speak for E.G. I'm worried that somehow I'll fail to make you understand, first, what kind of person E.G. was; second, what was done to him; and finally, what his life is like now. You see, this is a story of a man whose life was destroyed by a hospital."
Midway into my next sentence: "Objection!" And another sentence later: "Objection!"
The voice belonged to St. Joseph's defense attorney, Ed Harrell. I'd had my first encounters with this pugnacious bulldog of a man during depositions in October. While deposing Dr. Ewing, Harrell had became so enraged when I instructed our expert witness not to answer a particular question that he stood up and moved toward me. He sat back down, but I had gotten a taste of his disruptive tactics. In depositions I took, he would sneer, "Ornery, ain't I?" Or "You can ask, but you're not going to get an answer." Or, responding to an objection of mine, "Maybe this is acceptable down in Raleigh, but I just don't like it myself." He knew just how to control the tone of a proceeding.
Harrell was now trying to rattle me, and frankly, he was doing a good job of it. Approaching the bench -- and followed by the defense counsel -- I whispered to Judge Allen, "Your Honor, they're never gonna let me finish a sentence."
Convinced that conferences at the bench were always a waste of time, Judge Allen hated them. I was still making my quiet appeal when he leaned back in his chair and said, loud enough for the whole jury to hear, "What's the problem? Just get on with it."
And so Harrell continued to blitz my opening with objections. But I could tell from the jurors' uncomfortable expressions that his tactic was backfiring. Was this any way to treat a young out-of-town guest? I knew the decent people in my hometown wouldn't have liked it, and I guessed the people in Asheville weren't so different. After what seemed like the hundredth objection, I pointed at Ed Harrell and his team and declared, "They are not going to keep you from finding out the truth!"
Somehow I managed to get through the narrative of how
a well-liked, athletic salesman had fallen to drink, entered the care of St. Joseph's, and come out a permanently disabled soul. It was a shaky start. And as things developed, the day would only get worse.
Thanks to Judge Allen's penchant for timesaving, opening arguments were concluded by lunchtime. We hadn't anticipated that the evidence would start this quickly, and our first witness, Dr. Ewing, still at his residence in New Bern, some three hundred miles away, was expecting to testify the following day. So we hurriedly gathered some local friends of E.G.'s who would testify to his once normal life and overall good character. Senator Swain personally knew many of these first witnesses, so it seemed a good idea to have him handle the witnesses. And he did a capable job -- except for one thing. After each line of questioning, he would close by asking each witness, "And did you ever see E.G. Sawyer take a drink of liquor?"
The witness would invariably reply, "No, sir, I never did." And the senator would slap his hand on the table, turn in his chair, and with great flourish proclaim to the other side, "Examine him."
I couldn't believe what I was hearing. "Senator," I whispered to him, "our client is an alcoholic!" And sure enough, the defense attorneys would invariably begin their cross-examination with "Were you aware that Mr. Sawyer checked into St. Joseph's Hospital for alcohol abuse?" The effect was to suggest to the jurors that E.G.'s friends did not in fact know him at all -- that he had hidden his dark side from them, just
as he might well have hidden alcohol in his hospital room during the Antabuse treatment.
The even more troubling effect was to make it appear to the jury that we were trying to pull the wool over their eyes. Already we were losing the battle for credibility. But the senator would not be deterred. And so on and on and on: "Did you ever see E.G. Sawyer take a drink?...Examine him!"
Fortunately, Wednesday saw a slow shifting of momentum. Liz Kuniholm examined several of the hospital's nurses and thereby established E.G.'s condition at the time of admission. From them she got the doctor's order that they administer 500 milligrams, then 1000 milligrams, and finally 1500 milligrams of Antabuse. And then they testified to the dangerous side effects E.G. began to exhibit -- and how one evening he was found collapsed, unconscious, on his hospital bed. In the same manner, I elicited from the hospital's pharmacists that they
had filled the doctor's prescriptions, despite the fact that their pharmaceutical manuals declared any dosage in excess of 500 milligrams dangerous. Clearly the hospital personnel, in violation of hospital protocols, had dispensed and administered dosages of Antabuse that far exceeded the literature's clear guidelines.
The defense attorneys couldn't really challenge these facts, and so they were left with two counterarguments. First, the dosage was irrelevant because E.G. Sawyer's surreptitious drinking in the hospital was to blame for his condition. Second, and more significantly, Antabuse could indeed be administered at these elevated dosages despite the literature.
To attack these arguments, we began with E.G.'s psychiatrist, Margaret Burns. She was a compelling witness. Dr. Burns directly contradicted the doctor's 1982 deposition when she now insisted that the doctor had never consulted her about the massive dosages of Antabuse he prescribed to E.G. She testified that when she did in fact find out, she was "appalled and horrified," and on her own she suspended the Antabuse treatment -- too late, of course.
On Thursday, we unloaded our heavy artillery of experts. And the best was Dr. Ewing. His thirty years of experience with Antabuse easily withstood a full day of cross-examination by Ed Harrell and the other two defense attorneys, O. E. Starnes and John Mason. As experienced as they were, these lawyers were no match for the Edinburgh-reared pathologist who had founded one of the nation's leading research institutes on alcoholism -- and whose shock of white hair and keen Scottish voice clearly enthralled the jurors. Dr. Ewing was followed on the witness stand by three other doctors, each of whom backed up his opinion that only an Antabuse overdose could have induced E.G.'s coma.
When we finished presenting our broad range of medical witnesses, the defense had their chance to pull out their big guns. But the only expert they managed to call was the Atlanta addictionologist whose seminar had persuaded E.G.'s doctor that Antabuse could be administered in extremely high dosages. He was not a strong witness and was no match for Dr. Burns, Dr. Ewing, and the full cadre of other experts we had called. Ours would have impressed anyone.
The weight of the evidence was having its effect, and Ed Harrell had ceased his attempts at intimidation. Now he took to following me into the men's room, standing at the sinks, and muttering anxiously to me, "Can you let me out on a covenant?"
Let him out on a what? "Oh, I don't know, Ed, we'll have to see," I would reply.
"C'mon, John," he persisted. "Let me out on a covenant."
"We'll see, Ed." I had no idea what Ed was talking about. Only later did I learn that Ed Harrell was asking me to release his client, St. Joseph's Hospital, on a covenant not to sue. When I did find out, I had to laugh to myself. I might have been ignorant but I wasn't stupid.
Still, I spent the weekend worrying. By at least one significant measure, the opposition was noticeably unconcerned: the hospital's local insurance agent never once set foot in the courtroom. In cases in which the insurance company feared a verdict, I had heard, the local agent watched the trial and reported the progress to the company. I had not seen him in the courtroom even once. Did he know something we didn't? I had not forgotten the pretrial judge's admonition: Introduce alcohol into a case in Buncombe County, and you lose. I knew full well that medical data alone would not determine the outcome. Twelve computers weren't sitting in those seats beside the window. Whether I liked it or not, and regardless of the rules of evidence, it came down to this: the jurors weren't going to decide a thing until they heard from the doctor and from E.G. Sawyer himself.
Early on I'd decided to keep E.G. out of the courtroom. Rather than seat him beside me and let the jury grow accustomed to his presence, accustomed to his appearance, they should see him as I first had, as strangers would see him throughout his life. Monday afternoon, the time had come. After introducing into evidence several enlarged photographs of the once handsome salesman, and then allowing one of his closest friends to evoke the E.G. Sawyer of six years past, the present-day E.G. Sawyer was wheeled into the courtroom.
The jury's horror was palpable. Despite the nice blazer we'd squeezed him into, despite his recently trimmed hair, despite any and all efforts, our client could not be dandified. When he put his palsied hand on the Bible to take the oath, the oxygen seemed to be sucked out of the courtroom.
Senator Swain rose to his feet. "State your name," he said to E.G. Sawyer.
The senator let our client fight out those first syllables before asking, "Would it be easier to use your letter board?"
E.G. nodded, yes, it would be easier. Thereafter the senator gently guided him through his testimony. Even for those of us who knew the story, the poignancy of his testimony, literally spelled out for the jury, was hard to sit through. In his own gravel-throated manner, Bob Swain masterfully conducted a man-to-man and yet intimate dialogue with his old golfing buddy. And for once, when the senator concluded with his
familiar "Examine him!" the challenge sounded appropriate.
Still, I was not prepared for what we were about to receive. Ed Harrell, bless his feisty heart, could not resist browbeating the witness in the wheelchair. First he hammered away at E.G. for the sin of not paying his taxes on time during the period of his hospitalization. Then, after reminding E.G. that the two of them had once played golf together, Harrell boomed, "And isn't it true that you cheated on your golf score?"
E.G. Sawyer: cheating quadriplegic. The jury was as shocked as we were. By the time I wound up my legal career fourteen years later, I could still say that I had never seen a more disastrous cross-examination in all my life. And upon its conclusion, Judge Allen excused the jurors for the evening. They no doubt took with them the image of a poor crippled man being hollered at about some long-forgotten golf game.
• • •
I had thought much about E.G.'s doctor, and I had studied his career and pored over his writings and records. But since his deposition had been taken well before Wade Smith had agreed to help out Senator Swain with the case, I had never actually seen him until the trial. He sat at the defense table, a lean and prematurely white-haired gentleman who each day sported a different immaculately tailored suit. He projected an air of patrician indifference, as if these proceedings were somehow beneath him. When such a defendant takes the stand, as he finally did on Thursday, December 13, the worst thing an attorney can do is attack him, lest the jury be moved to sympathize with someone who has, by his own cold demeanor, already made himself unsympathetic. Instead, you simply take what the witness gives you, and he will often reward your patience.
The doctor took the stand late that morning. Examining him first was the hospital's attorney, O. E. Starnes, a veteran lawyer and member of the Asheville establishment: a street near downtown bore his family's name. The tale Starnes elicited was an altogether different one from that which we'd presented. The doctor had been treating E.G. Sawyer for one ailment or another since May 1976. As far back as then, said the doctor, the patient was a heavy smoker and a social drinker and was already experiencing an ominous tingling in his extremities. For well over an hour, the doctor enumerated E.G.'s visits, portraying him as either a hypochondriac or a self-destructive lout -- or perhaps both. By 1978, as stated by the doctor, E.G. Sawyer was an alcoholic and a wholly uncooperative patient. By summertime, testified the doctor, "I was feeling my own despair. We had now six months of heavy and repeated evidence of the destruction of this man by alcohol, and I was not able to influence the course in any way."
When E.G.'s condition had stabilized after his admittance to St. Joseph's in September 1978, the doctor had recommended aversion therapy. E.G. would be given Antabuse, and it would cause him to avoid alcohol. But the doctor concluded that the usual dosage would be unlikely to produce a sufficient reaction, and since E.G. might still want to drink, he would probably discontinue the therapy. And so his only recourse, he testified, was a more aggressive dosage of Antabuse, about which he had learned at an Atlanta seminar. The doctor testified that, alas, E.G. Sawyer had apparently sabotaged his own therapy. Midway through his treatment, he'd made ominous reference to a "blue pill" he'd been taking, presumably in addition to his prescribed medications -- and that pill might have interfered with the aversion therapy. And as the doctor later learned from the redheaded Nurse Bonner, E.G. had been drinking in his hospital room as well. In the end, it was suggested, E.G. Sawyer's long history of abuse had caught up with him.
I began my cross-examination with that history. "Would it be fair to say that you want the jury to believe that on September ninth, 1978, when Mr. Sawyer entered the hospital, that he was suffering from acute and chronic alcoholism?"
"But he walked into the hospital, didn't he, the best you know? He was walking while he was there, is that correct?"
"He could talk while he was there, couldn't he, in September?"
"Could he walk when he left?"
"Could he talk?"
"If he closed the trachea, he could talk."
"Very, very limited fashion, though; is that correct?"
"That would be correct."
"So something happened. Can't we at least agree that something happened between September ninth, 1978, and December first, 1978, to Mr. Sawyer?"
"You were here when Mr. Sawyer came into the courtroom, were you not?"
"You're certainly not asking the jury to believe that the man you saw here on Monday of this week in the condition he was in, that he was in that condition on September ninth, 1978?"
Having refocused the jury's attention on E.G.'s period of hospitalization, I then moved to the doctor's understanding of Antabuse. I asked him to read aloud the maximum daily dosage for the drug from the Physicians' Desk Reference, the physician's and pharmacist's bible on the uses, dosages, and counterindications of prescription medications. Of course the maximum dosage was 500 milligrams, not 1500 milligrams. Then I asked him to review the literature put out by Antabuse's manufacturer, Ayhearst Laboratories. It recited the same maximum dosage. "You're not asking this jury to believe that as of September 1978 that you knew more about the proper dosage for Antabuse than the people who manufactured this drug, are you?" I asked.
The doctor waffled for a bit, but finally said no, he was not making that claim.
"Thank you, sir," I said. "What I'd like for you to do now, if you would, is to point out for me all of the written authority that existed as of September 1978 that would support a dose of Antabuse in the amount of fifteen hundred milligrams daily. Every one that you're aware of. I want you to tell me about all of them."
He could cite none.
I moved on to the doctor's assertion that E.G. had been drinking alcohol during his stay at the hospital. He acknowledged E.G.'s liver function tests had been improving during his stay, which was inconsistent with continued drinking. Furthermore, he conceded, "Alcohol was not detected," when the doctor ordered a blood alcohol test of his patient. And when he ordered the nurses to search E.G.'s room for liquor, "That was not found."
Finally, I referred the doctor to the discharge summary in which he wrote that "the patient's blood pressure was noted to rise, findings that suggest the possibility of a drug inaction [sic] between disulfiram and alcohol." Then I referred him to the entry for Antabuse in the Physicians' Desk Reference.
Would a drug interaction between disulfiram and alcohol cause hypertension, the rise in blood pressure that E.G. had experienced during his deterioration?
What would such an interaction produce?
Hypotension -- a drop, not an increase, in blood pressure.
In fact, the Atlanta "addictionologist" -- the defense's one and only expert -- had himself testified that he saw no evidence of an Antabuse-alcohol interaction in E.G. I felt that the jury had heard enough on this topic. Now I switched over to the doctor's secondary assertion -- namely that E.G.'s current condition might have been caused by the patient's prior abuse of alcohol.
"Before this lawsuit was filed," I asked the doctor, "how many times did you ever indicate, either in your discharge summary or in any records you made throughout the course of your treatment of this man after September of 1978, how many times did you ever say that you suspected that his prior alcohol abuse may be the cause of his peripheral neuropathy and encephalopathy? How many times did you say that before this lawsuit was filed?"
"I never wrote it down," he admitted.
I handed the doctor an evaluation done by the neurologist to whom he had referred E.G. after E.G. had come out of the coma suffering from encephalopathy and peripheral neuropathy. "Does Dr. Martin ever identify Mr. Sawyer's alcohol abuse prior to September ninth, 1978, as a cause of his encephalopathy and peripheral neuropathy?"
"He does not say that."
I questioned the doctor on his earlier testimony that at the time of his admission E.G. was suffering from "acute and chronic alcoholism." I referred him to his admission summary, which actually described E.G. as having a less severe condition -- "episodic alcoholism."
"In fact," I said, "the first time in any of your records that you say that this man was a 'chronic alcoholic' is when you do your discharge summary on December thirty-first, 1978, three months after he goes into a coma; is that correct?"
"What is correct," he countered, "is that I did not appreciate or know that Mr. Sawyer's alcoholism, whether it began in December of 1977 in a significant way or January of 1978 where it was becoming clear-cut, was of the magnitude, the persistence, and the degree to which I subsequently learned." He carried on for a minute more.
But I believed we had him. As with many of the juries I would face, few if any among E.G.'s jury had graduated from college, and sometimes a witness would try to overwhelm such a jury with technical language or overblown explanations. But the jurors all had good common sense, and I was sure they could tell that the doctor was not answering the question.
I turned to E.G.'s condition when he had been transferred from St. Joseph's to Duke University Hospital.
"Looking at the discharge summary," I said, "you have listed as number one, 'alcoholism, acute and chronic.' But his principal problem during the period of October through November 1978 was not alcoholism. It was encephalopathy and peripheral neuropathy, wasn't it? He almost died, didn't he?"
"Yes, and respiratory difficulties of major proportions."
"And you have listed in your final diagnosis as the second item, 'encephalopathy and peripheral neuropathy,' haven't you?"
"All right. Doctor, you were in the courtroom on Monday when Mr. Sawyer came in, weren't you?"
"You saw the condition he's in?"
"You don't want to feel like you're responsible for that man's condition, do you?"
Ed Harrell shouted out his objection. Judge Allen sustained it. A party's motives in his testimony are relevant, but I did not complain. My point was made.
With an Antabuse-alcohol interaction and E.G.'s prior
alcoholism pretty much dispensed with, I finished with the doctor's far-fetched third possibility: that mysterious "blue pill" E.G. had requested. I asked the doctor what he made of it.
He replied, "The significance was that there was a medication or there was some pill which Mr. Sawyer knew or stated that he knew he was receiving, and I did not know what it was. He could not give me a name of it, and a search of everything that I knew that he was receiving didn't fit with that description."
I approached the doctor and handed him a list of the drugs he had prescribed for E.G. beginning with E.G.'s admission on September 9. One of them was Limbitrol. I handed him a photograph of the pill. What was its color?
"That is blue," he said, but added, "That drug was
discontinued on, I believe, the second day" -- meaning, the tenth of September. The doctor had testified that E.G. was asking for the pill after the aversion therapy was started on September 14.
I asked him to reread the order sheet. No, he now acknowledged, it was discontinued on September 16. And when, according to the progress notes, did E.G. say that he wanted the blue pill?
The doctor again referred to the progress notes. The seventeenth, he said.
• • •
We had only one rebuttal witness, though she was enough: Kim Bonner.
An associate of Joel Stevenson's had located Nurse Bonner in Michigan. In the frenzy to bring her to Asheville in time for rebuttal, we had not thought to ask her what she knew about the lawsuit. And so we didn't know that the defense had in fact located Nurse Bonner months before. They had flown her down to Asheville, hoping to put her on as one of their witnesses. When they learned what she had to say, they promptly flew her back to Michigan and hoped that she would never turn up again. The expression on their faces when the tall, attractive, twenty-nine-year-old redhead strode down the ninth- floor hallway and into the courtroom was as stricken as her testimony was succinct.
I asked her: Had E.G. Sawyer told Nurse Bonner that he had consumed alcohol during his stay at St. Joseph's Hospital?
Had she told the doctor that E.G. Sawyer had said such a thing to her?
After Nurse Bonner's testimony, Judge Allen called both sides into his chambers. An otherwise fair and cool-headed man, he had reached his limit. "You guys had better do something about this," the judge said to the three defense attorneys. Pointing to me, he said, "He's made a liar out of your guy! Now, where the hell is your insurance carrier? If you don't come up with some kind of settlement, I'd say you're in deep trouble."
And the opposition finally did, just after our closing arguments. But I persuaded E.G. to let the jury decide. That was when he wrote "I trust you" on his letter board.
That night I prayed I was worthy of his trust.
• • •
Because you just can't know, finally. When the jury is in the courtroom, you can watch them. Although they generally try to sit sphinx-like, as if to convey their impartiality by their stillness, they are human beings. But you can tell when they are confused, and then you try to clarify. You can see when they just don't believe something, and you can elicit evidence to eliminate their doubts. Yet when the door to the jury room closes, you can no longer rescue your client's case from con-
fusion or doubt. As I have said, the jury is a microcosm of democracy. If a candidate has not made a case persuasively enough, once the curtain on the voting booth is pulled, it is too late to make it. Believe me, when that jury door closes, you tear yourself apart: Did I make it sufficiently clear that an Antabuse-alcohol interaction could not have induced E.G.'s coma? Was I too hard on the doctor? Did they accept the numbers relating to damages?
From the other side, John Mason had delivered what I thought was a brilliant closing argument for the defense, one that methodically built a composite of E.G. Sawyer as a secretive alcoholic bent on self-annihilation. I'd followed his argument with an impassioned declaration that "their main defense, and main goal in this case, is to throw mud on E.G. Sawyer -- which is infuriating to me." And it was. But had I gone overboard? For all our efforts, had we simply been unable to relieve the jury of prejudices against an alcoholic?
Those four hours of deliberations on Tuesday, December 18, felt longer to me than the preceding two weeks of testimony. I spent them in that little courtroom, consumed with self-doubt and staring out the window at the mountains and the hospital.
The four men and eight women returned to their seats late that afternoon. The verdict sheet was handed to Judge Allen. I saw his jaw go slack. Then, finding his voice, he instructed that the verdict be read.
Was Howard E.G. Sawyer injured by the negligence of the defendant, the doctor?
Was Howard E.G. Sawyer injured by the negligence of the defendant, St. Joseph's Hospital?
What amount, if any, is Howard E.G. Sawyer entitled to
"Three million, seven hundred thousand dollars."
• • •
On the steps of the courthouse, Senator Swain was holding a press conference. I waved to him and headed for my car, for E.G. did not yet know the verdict, and I wanted to be the one to tell him.
Within three months, E.G. Sawyer would be out of his shabby apartment and settled in a small farmhouse right near his daughter's home in Tennessee. For the first time since that week when his life changed completely, E.G. had the care he needed, a sense of dignity back in his life, and some genuine excitement for what the next day might bring.
Copyright © 2004 by Senator John Edwards