It was twenty minutes after Judge Farnsworth's regular starting time, and Palmieri's witness, Yelena Chaikovsky, was not in the courtroom. At regular intervals the Stanford economist telephoned Palmieri to say that she was caught in a traffic jam; that she had been stopped by the highway patrol for speeding; and that she was again stuck in traffic.
Palmieri said, “She'll be here in less than half an hour, Your Honor.” He and Seeley were in front of the bench with Thorpe and Fischler. The jury box was still empty.
“This is why lawyers put their witnesses up in a local hotel.” The judge's eyes were tired and her makeup looked as if it had been applied hurriedly.
Seeley had instructed Tina to make hotel reservations for all the witnesses, but Chaikovsky apparently told Palmieri that she slept better in her own bed.
“Do you have another witness you can put on, Mr. Seeley?”
“He's in the city, Judge, but he won't be here until one.”
“This comes out of your twenty-four hours, Counselor.” When Farnsworth nodded for the lawyers to leave, Fischler pivoted sharply, preening. Thorpe followed, stepping briskly, as he regularly did when he was out of the jury's sight.
At counsel's table, Barnum was livid, his thick hands clenched and white at the knuckles. Seeley steered Palmieri away. “Call Chaikovsky and tell her you'll be waiting at the bottom of the plaza. I'll send Ed out to park her car.”
Barnum's voice, when Seeley took his seat next to him, was a hoarse whisper, the kind that carries. “I want you to do the direct.”
“Lower the volume, Ed. She's Palmieri's witness. He defended her deposition. He's a good lawyer. They won't be able to touch her on cross.”
“We wouldn't have this mess if you'd put Steinhardt first.”
“We're building a foundation. When Steinhardt goes on the stand tomorrow, he'll look like a hero.” The jurors were filing into the jury box. “If you want to keep the trial moving, go wait with Palmieri in front of the courthouse.”
Barnum's eyes filled with misery.
Seeley said, “I don't want them wasting their time looking for a place to park.”
Yelena Chaikovsky arrived twenty minutes later, without apologies and radiating the professional aura that too many lawyers look for in their expert witnesses. Her plump cheeks shone with well-being and the eyes behind her tortoiseshell glasses were keen. The salt-and-pepper hair and the dark flannel jacket and skirt communicated an encompassing competence. But there was a smugness about her that concerned Seeley.
Palmieri was taking Chaikovsky through her resume-the endowed chair in the Stanford economics department, her joint appointments in the university's medical and business schools-when Fischler rose. “The defense stipulates to the witness's expertise in health economics, Your Honor. There's no need to consume the court's time with her entire resume.”
Palmieri glanced at Seeley. He was taking time with the witness's credentials not so much to qualify her as an expert for purposes of the rules of evidence as to let the jury know the depth of her expertise. That was why Fischler was trying to stop him. Seeley answered by shaking his head. Let the jury see that the witness had justification for being so self-satisfied.
“Your Honor,” Palmieri said, “if the jurors are to be able to accurately weigh Professor Chaikovsky's testimony, they need to know the background and experience on which it is based.”
Farnsworth, an experienced trial lawyer, knew what the skirmish was about. “As I reminded you earlier, Counselor, the clock is running. If this is how you want to spend your time, the court will not interfere.”
Palmieri took the next five minutes to review the witness's academic degrees, her years at the U. S. Public Health Service, and an extended tour of duty working with epidemiologists at the World Health Organization's regional office in Copenhagen. A glance at the jury confirmed for Seeley that the time was well spent.
Palmieri led the Stanford professor quickly through the history of efforts to discover an AIDS vaccine, beginning in 1984. “And, yet, after twenty-three years, and all this money, and all these scientists hard at work, is it true that no one has come as close to an effective vaccine for AIDS as Dr. Steinhardt has with AV/AS?”
“That is correct.”
There was a movement behind Seeley, and Barnum took his chair at the table. It had taken him all this time to park Chaikovsky's car, and he muttered something that Seeley didn't make out as he took his seat.
“But is it true that, given enough time-and enough dollars and effort-a vaccine for any disease will ultimately be discovered?”
“Unfortunately, the answer is no. For example, there is still no fully effective vaccine for tuberculosis.”
The point of Palmieri's questions was to set up the economist's testimony on AV/AS's prospects for commercial success. Like Cordier's testimony yesterday on the long-felt need for AV/AS, so Chaikovsky's testimony that the treatment would be a great commercial success would help persuade the jury that Steinhardt's discovery had not been obvious to other workers in the field-for, if it had been obvious, and there was money to be made, why hadn't they discovered it first?
Palmieri turned from the witness to the judge. “At this point, may I ask the court to have the lights in the courtroom dimmed, and the projector and screens brought in.”
Pearsall's and Thorpe's teams had argued for weeks over the admissibility of Chaikovsky's charts showing the potential for AV/AS's commercial success and Pearsall had prevailed.
At a nod from Farnsworth, the blue-blazered bailiff switched off half the lights in the already dim courtroom and angled a screen several feet from Seeley's table so that it included the jurors and the judge in its field of view. The second screen he adjusted so that Chaikovsky and defense counsel could see it.
While the bailiff positioned the screens, Seeley thought of Palmieri's mistakes so far-the faulty pro hac motion, typing at his keyboard during Seeley's opening statement, letting his witness spend the night at home-but when the young partner came to the table for his laptop, Seeley said, “You're doing fine.”
Palmieri placed the laptop on the lectern and, after he tapped a few keys, both screens lit up. Few mishaps disconcert juries more than an exhibit that fails to work, and Seeley released the breath that he had been holding.
Chaikovsky's first chart showed Vaxtek's research costs-$320 million-in bringing AV/AS to its current point of development, completion of phase-two clinical trials. The second chart showed the estimated cost to complete the clinical trials and bring the product to market. Total research and development costs were $450 million.
“How much time does Vaxtek have to earn back this investment?”
“Eight years,” Chaikovsky said.
“Why did you pick eight years as the relevant period?”
“Well, a patent lasts for twenty years from the date it's applied for, and Vaxtek applied for this patent in 1997. But it has been ten years, and they're only now starting phase-three trials. I conservatively estimate that it will be another two years before they can actually sell AV/AS in the marketplace-twelve years in all since they applied for their patent-and that leaves them eight years to recoup their investment and make a profit.”
In the shadows, there was talk and movement in the jury box. As Seeley hoped, the brief period over which Vaxtek would be able to recover its costs was a surprise to the jurors.
Palmieri put the next chart on the screen. “On the basis of these numbers, Professor Chaikovsky, what rate of return will Vaxtek earn on its $450 million investment?”
“As you can see from the chart, the company's return over the eight-year period will average out to between twenty-two and twenty-six percent a year.”
“In your experience, studying pharmaceutical companies and their revenues, is that rate of return one that a company would consider commercially successful?”
“In this business, making any positive rate of return on research and development is considered commercial success. Remember, only three out of ten prescription drugs in this country even pay back their research and development costs. So a twenty-two to twenty-six percent return is a great success.”
Palmieri tapped a key and a pie chart came up, each slice of a different size and color. Numbers and dollar signs were inside each segment. Seeley had found the chart buried in an appendix to Chaikovsky's expert's report, and instructed Palmieri to include it in his slide show. If Seeley was right, the chart would be as important to the jury as any of the others; probably more important.
“Can you tell the jury what this chart represents?”
“This is the same estimate of revenues that Vaxtek will earn from sales of AV/AS over the life of its patent, but each segment represents a different country or region of the world.”
“Why did you slice up the world this way?”
“Because the revenues from each region will differ.”
“Because of different population size?”
“In part. But the big difference is the amount Vaxtek will be able to charge for AV/AS in each region. If you look at the red segment at the top, that's the United States, where they will be able to charge around two hundred and fifty dollars for each inoculation. But if you look at the big yellow segment at the bottom, that's sub-Saharan Africa, and the average price there is forty-five dollars, less than one-fifth of what they can charge in the States-and that's only with subsidies from governments and foundations.”
From the first day of the trial, Seeley was concerned about the impact on the jury of the protesters outside, and he instructed Palmieri to include the slide to let the jurors know that, in voting to uphold the patent, they would not be pricing Cordier's patients in Lesotho out of the market. Still, when he first saw Chaikovsky's chart, he was surprised that the African price was $45 and not $15 as Leonard had told him it would be.
“Does this mean Vaxtek will lose money on its sales in Africa?”
“No, they won't be losing money on individual sales. But…”
“But?”
“If forty-five dollars per inoculation is all they could charge around the world, they'd never make back what they invested in discovering and developing AV/AS.”
Palmieri cocked his head at the screen, as if something there puzzled him. “What would happen to prices in the United States if distributors in South Africa, say, who are buying AV/AS for forty-five dollars a dose, start exporting it to the States. How could Vaxtek maintain the two hundred and fifty dollar U. S. price, if it has to compete in this country with vaccine one-fifth the price?”
Chaikovsky's smug smile widened into a grin. “That's what the U. S. patent is for, isn't it? To keep out lower-priced drugs from other countries.”
Palmieri grinned, too. “In the courtroom, Professor, I get to ask the questions, and you get to answer them.”
The give and take was perfect, but it didn't calm Seeley's concerns about the young partner. He could write off Palmieri's coolness in their early encounters to the jitters of dealing with a new first chair. But the negligence with the motion papers and his witness's lodging was harder to dismiss. So was his continued resistance to Seeley's direction, like insisting that they keep Steinhardt as the lead witness, even though Pearsall himself had wanted to place him lower in the order. If Palmieri wasn't exactly working to undermine Seeley's case, he didn't seem to be enthusiastically supporting it, either.
Chaikovsky said, “I was assuming when I made these charts that Vaxtek's patent would be upheld and that it would be able to exclude low-price competitors.”
“And if the jury voted to strike down the patent? If Vaxtek couldn't keep the cheap drugs out?”
“Vaxtek would lose all of the almost half-billion dollars it invested in AV/AS.”
Palmieri snapped the laptop closed. “Your witness.”
Fischler fired off three brisk questions before she even reached the lectern. The man-tailored suit was intentionally aggressive, Seeley thought, but the oxford button-down and patterned silk tie were what a law student might wear to her first moot court argument.
“These charts you fabricated, Professor Chaikovsky, are they based on assumptions?”
The witness winced. “It's pronounced Chi-kof-ski. Like the composer.”
The break in rhythm momentarily ruffled Fischler. She had loosened her severe librarian's bun today and the ponytail bobbed. “Are your charts based on assumptions, Professor?”
“The charts are based mainly on data, but, yes, like any diagram, they depend on certain hypotheses.”
“And these hypotheses of yours, are they the same as assumptions?”
“You could say so, yes.”
“It doesn't matter what I say, Professor, the jury wants to know what you say.”
“Yes, for these purposes, a hypothesis is the same as an assumption.”
Fischler addressed the witness, but faced the jury. “Is it correct that one assumption behind your charts is that Vaxtek will face no competition in its sales of AV/AS?”
An alarm went off in Seeley's mind. He looked over at Palmieri, whose fingers floated over his keyboard.
“Yes, they make that assumption.”
Fischler's eyes were still on the jury, not the witness. “And why did you make that assumption, Professor?”
“Because the effect of a patent is to exclude competition-”
“Professor, are you aware of any patented drugs that face competition from other patented drugs?”
The bailiff had not raised the lights, and in the pale shadows, the smugness drained out of the witness's expression.
Seeley couldn't believe that Palmieri had failed to prepare his witness for the question.
A detectable tremor in her voice, Chaikovsky said, “Yes, of course.”
“Can you give me an example?”
“Well, there are several patented cholesterol-lowering drugs, called statins, on the market.” She glanced at Palmieri, who nodded gently, and after a moment she, too, understood that Fischler's sole aim was to rattle her. “The difference is that there is no pharmaceutical comparable to AV/AS that doesn't infringe Vaxtek's patent, and that means AV/AS will not have any competition.”
Fischler's line of questioning had been a bluff. Other companies were working on AIDS vaccines but, without industrial espionage, there was no way St. Gall and its lawyers could know what they were working on, or how far they had progressed. Palmieri would need to time his objection carefully.
“Do you know how many other pharmaceutical companies are investigating an AIDS vaccine? Two? A dozen?”
“I can't give you an exact number,” the economist said.
“So in your charts, and in your testimony, you just assumed that there were none.”
“Keep her honest,” Seeley said to Palmieri. To himself, he acknowledged that, at the moment, the best they could do was to disrupt Fischler's pace.
Palmieri rose. “Objection, Your Honor. Outside the scope of direct.”
“This is an expert who's on the stand, Your Honor. We have latitude to examine the basis of her testimony.”
“Overruled.” Then, more gently, to Fischler: “I'm sure you will find a way, Counselor, to phrase your question so that it stays within bounds.”
“So, Professor, for all you know, a dozen other companies might have done the same research as Vaxtek and were just a little late getting to the Patent Office.”
“Objection.” Palmieri was on his feet again. “This violates the parties' stipulation on priority.”
“Counselor?” Judge Farnsworth seemed amused by the sparring.
Fischler said, “The stipulation is as to priority of invention, Your Honor, not the race to the Patent Office.”
“If you have another objection, Mr. Palmieri, I'll be glad to entertain it.” This time her voice was almost musical.
“The question is outside the scope of the direct examination.”
“That's right, Counselor, it is. Ms. Fischler, this may be the time to turn to another line of questioning.”
“I have just one last question of the witness, Your Honor.” She looked hard at Chaikovsky. “Would you please tell the court, Professor, how much you are being paid for your testimony here today?”
Palmieri started up. The question was as cheap as the old yes-or-no chestnut about whether the witness had stopped beating his wife. Barnum hunched forward. Seeley looked over at Thorpe who was watching him. Thorpe smiled and shrugged. Seeley placed a hand over Palmieri's. “Let her handle this one herself.” Amateurish as the question was, Seeley was sure that Chaikovsky had been asked it before.
“You've asked two questions, Ms. Fischler, so let's see if I can disentangle them.” She was the professor lecturing a not very bright student. “First, I am not being paid for my testimony but for my time. Second, I am being paid at the same rate, $650 an hour, that I am paid whether the work involves courtroom testimony or corporate consulting.”
Barnum sat back in his chair. Palmieri's taut posture relaxed.
“I have no more questions, Your Honor.”
“Redirect, Counselor?”
Seeley whispered to him.
Palmieri said, “None, Your Honor.”
Their case had taken a hit from Fischler's bluff, and redirect would only magnify it. Seeley would have to repair the damage with his witness this afternoon.
There is an unwritten rule among lawyers never to discuss a client's business in public places-on the sidewalk, in an elevator-even in a taxi with a driver who by all appearances understood few words of English, but whose eyes darted in the rearview mirror between Seeley and Palmieri. More often than not in these situations, Seeley found himself asking about family.
“Did you grow up out here?”
Palmieri shook his head. “Spencer, Iowa. One of the one hundred best places to live in America. My mom's still there.”
“Any other family?”
“Two older sisters. One's in St. Louis, the other's still in Spencer.”
Seeley nodded. “What about your father?” This was always where his curiosity ultimately came to rest. What about your father?
“He died in Vietnam. All I know about him is from my mother's stories, some pictures in an album, and a Distinguished Service Cross.”
“A hero.”
“A victim.” Palmieri checked the rearview mirror where the driver's eyes were still watching them. “But don't get the wrong idea. I had a great time as a kid. There were uncles and aunts on both sides, lots of support. Just no father.”
“But you left Spencer.”
“We're still close,” Palmieri said as the taxi pulled to the curb on Battery Street. “We talk every week. I go back for the family blowout at the lake every summer. But Spencer doesn't have many opportunities for big cases.” Getting out of the taxi, the glow was still on him from the morning's success with his witness. “Or for gay men. San Francisco's got both.”
Tina had left sandwiches and coffee for them in the conference room. Palmieri removed his suit jacket and draped it over the back of a chair. Even after four hours of direct examination and of sitting on Fischler's shoulder for every minute of her cross, his pink-and-white striped shirt was crisp, the burgundy tie neatly knotted.
Palmieri glanced at Seeley, waiting for him to start, and, when he didn't, said, “I think Chaikovsky's examination went well.”
“I'm sure the jury thought it was worth the wait.”
Palmieri caught the point at once. “I didn't know she was going to get caught in traffic.”
Seeley waited.
Palmieri ran a finger between his neck and shirt as if the collar had suddenly grown too tight. “You think I'm trying to wreck the case just because I didn't get to run it.”
“No, I don't,” Seeley said. “But I think you're letting yourself get”-he paused to pick the word carefully-“distracted.”
“How so?” The question came out pinched, as if Palmieri were biting back on his anger.
“The man you were talking to outside the courthouse last Friday, after we picked the jury.” Seeley didn't know whether Palmieri had been talking to the protester or just watching Thorpe's waltz with the press, but he was going to find out. “Tall, curly blond hair.”
“Phil Driscoll. He's a friend of my partner's. They dated once. What does that have to do with anything?”
“Do you talk to other people in the group?”
“Of course I do. These are my friends.”
“And you talk about the case?”
“Do you talk about cases with your wife? Your friends?”
“I'm not married.” Seeley was less puzzled by Palmieri's growing rage than he was by the obvious effort to contain it. If he let himself explode, what might he say that he would regret?
“They think I sold out when I agreed to work for Vaxtek.”
“And what do you tell them?”
Palmieri said, “What anyone who knows the facts would tell them-AV/AS is the best we're going to have for a long time and, if there hadn't been a patent waiting at the end of the rainbow, Vaxtek wouldn't have spent half a billion dollars on it.”
“I told your friend Driscoll pretty much the same when he stopped me outside the courtroom.”
“Young gay men today think they're immortal. They don't know what it was like ten, fifteen years ago, when the entire gay population in the city was under a death sentence. They don't know what it's like when the therapy you're taking just to survive blows out your kidneys or your liver. Pop a pill, they think. Have sex and pop a pill.”
Palmieri's words were coming easier now, but Seeley noticed a small circle of perspiration when he lifted an arm to gesture. It wasn't rage he was feeling, Seeley thought. Palmieri was under pressure. This wasn't the time to catalogue his mishaps for him or to question his attitude unless Seeley wanted to lose his second chair in the middle of trial.
Seeley said, “What about you?”
“Do you mean, am I HIV positive?”
Seeley nodded. For no good reason it felt as if the entire case was going to turn on the young lawyer's answer.
“No, I'm not. My partner, either.” Palmieri's forehead glistened with perspiration.
“I'm glad for you. Both of you.” Palmieri's struggle was tiring Seeley. “But in the future, I'd be careful about letting Barnum see you hanging out with the protesters. Barnum's a jerk, and it's none of my business where he sends his cases but, I promise you, your partners won't be happy if he stops sending Vaxtek work to your firm.” Of all Seeley's offenses at his New York firm-taking on unpopular causes and too many pro bono clients-none hurt him more with his partners than losing the firm's paying clients.
“Bob Pearsall always protected me from the partners.”
Seeley let the implicit rebuke pass. These were Pearsall's partners, not his. There was nothing he could do to protect Palmieri.
“If you want to know, Bob was the reason I signed on to this case. His word was all I needed that it was the right thing to do.” Palmieri took a sandwich from the plate on the conference table. “Are we finished?”
“No. I'd still like to know why you let Professor Chaikovsky sleep in her own bed.”
Palmieri started to push back from the table, but Seeley winked at him and the shoulders that had snapped to attention when Seeley first asked the question finally relaxed.
Dr. Lionel Kaplan had never testified before, but he was the one witness Seeley knew he would keep when he pared his witness list to fit Judge Farnsworth's shortened schedule. The Harvard scientist's heavy-lidded eyes and broad expressive mouth, ready at a moment to break into a gleeful smile or pondering frown, made it easy to imagine him, many years ago, as the smartest, funniest, most passionate kid in class. Asked at his deposition what his hourly rate was for testifying, Kaplan must have stunned Thorpe when he answered that he had requested only that Vaxtek reimburse his travel expenses. Depositions are where lawyers try out their mistakes, and Thorpe was not going to ask that question again in front of a jury.
As Seeley approached the lectern, Kaplan pushed his utilitarian horn-rims up the bridge of his nose.
“Dr. Kaplan, before you describe to the jury the several obstacles that stood in the way of discovering AV/AS, could you describe to us how vaccines work generally-a vaccine we might be more familiar with, like the polio vaccine or the vaccine for measles?”
With a slight tilt of his head, Seeley reminded the scientist to look at the jurors as he spoke.
Kaplan smiled broadly and ran his fingers through coarse, barely combed hair. “The beauty of a vaccine is that it uses the body's own defenses to fight off infection. It makes a weak person strong.”
“And how do you get a vaccine to do that?”
“The starting point for the great majority of vaccines is to take a laboratory sample of the virus, like polio, that you want to create immunity against, and then you weaken or even kill the virus so it can no longer cause the disease. Then”-Kaplan jammed his index finger into the palm of the other hand-“you inject this weakened version into a healthy patient. It's too weak to make him sick, but it's strong enough to stimulate his body to produce antibodies. Once these antibodies are in the bloodstream, they attach themselves to the weakened virus we injected and neutralize it. Effectively, the injected virus triggers its own executioner.”
“What happens after the antibodies neutralize the virus in the vaccine?”
“That's the genius of vaccines: the antibodies stay in the bloodstream so that if our patient later encounters the real, live polio virus, the antibodies are already there to bind with the virus and neutralize it.”
“Is HIV a virus?”
“That's what the letters stand for. Human immunodeficiency virus.”
“Does immunization work the same way with HIV as it does with the polio virus?”
Kaplan threw up his hands. “If only it were that simple! In the early days we all assumed this was how an AIDS vaccine was going to work. What we didn't know-and what sadly we know now-is that HIV is a chronically replicating antivirus, uncontrollable by the host's immune response.”
To this point, heads had nodded in the jury box as the jurors followed along. But now, as Seeley expected, he saw some anxious side glances. This was the point at which Gabriela Vega, helping Kaplan prepare his testimony, cautioned the witness to avoid technical terms. Seeley's first instinct, sitting with them in the Heilbrun, Hardy conference room, was to agree. But then he decided that it wouldn't hurt to remind the jury, and particularly Sansone, that it took more than high-school biology to create AV/AS.
Kaplan said, “The problem is that the HIV envelope glycoprotein displays emphatic antigenic variations, is heavily glycosylated, and is poorly immunogenic.”
The mood in the jury box instantly turned from confusion to frustration. For all of Kaplan's undeniable charm, Seeley was going to have to be more careful.
Seeley forced a laugh into his voice. “Could you translate that into a language the jury and I can understand?”
Kaplan's eyebrows shot upward. He laughed and clapped his thighs. “Of course. I apologize.” He rested his hands on the rail, and spoke directly to the jury. “Four unique hurdles stand in the way of developing an AIDS vaccine.”
In her cross-examination of Chaikovsky that morning, Fischler left the jury with the thought that science had progressed to a point at which Steinhardt's achievement was obvious, even trivial, to anyone working in the field. Now, Kaplan was going to dispel that thought.
“Before you describe these obstacles to the jury, Dr. Kaplan, could you tell us how you came to know about them?”
The smile that played tentatively on the scientist's lips became a self-deprecating grin. “I've been working on the problem of an AIDS vaccine for eighteen years. Our experience is that we overcome one or two of these obstacles, but when we try to attack the next one, we find that the first one's come back.”
“You said ‘we’?”
“My research team.”
“How large is this team?”
“Over the course of our work, it's been as small as six researchers, all of them PhD graduate students or postdocs, and as large as fifteen.”
“And where has this research taken place?”
“At Harvard Medical School, and at the Dana-Farber Cancer Institute's Center for AIDS Research.”
“Why at two institutions?”
Again, Kaplan shrugged. “This is a big job.”
When they were preparing Kaplan for his testimony last night, Seeley asked him how a researcher like Steinhardt, working alone at a small drug company, could get to the finish line ahead of teams of scientists at major, federally funded laboratories. “You have to remember,” Kaplan had told him, “Steinhardt was already publishing papers on this approach when he was at UC.” There wasn't a hint of envy or regret in Kaplan's voice. “And,” Kaplan had said, “some researchers work better alone than others.” “Or,” Seeley had said, “they're less inclined to share the credit.” Kaplan had lifted his eyebrows and tilted his head but said nothing.
“So, Dr. Kaplan, could you tell the jury what these four obstacles are.”
“Remember,” Kaplan said, talking to the jurors as if it were one of his Harvard seminars, “I told you that vaccines work by stimulating the body's immune system to fight off the virus infection? Well, HIV is unique among viruses in that its target is the victim's immune system. It's in the nature of HIV that it destroys the very mechanism that we need to fight off infection. How can you use the immune system to repel a virus if the virus attacks the system itself?”
Kaplan's little tutorial had the jury's close attention and the judge's, too. Thorpe wouldn't think to break the communion between the expert and his audience. Nor would Thorpe have more than two or three questions on cross, none of them harmful. For the first time that day, Seeley relaxed. The case was going well. Cordier's testimony had also been strong, Chaikovsky's only slightly less so, and Kaplan's comments last evening in the conference room had reassured him about Steinhardt's style of research.
“You testified that there are four hurdles, Dr. Kaplan. What are the other three?”
“Recall I said that for polio and the other vaccines, vaccinologists use a weakened form of the virus to stimulate the host's antibodies.”
“Go on.”
“We can't do that with HIV. We can't use a weakened virus, or even a dead one. Because of the virus's effect on the immune system, it would be too dangerous to the person being inoculated. It could be a death sentence.”
“So what can you use?”
“The best you can do is break down HIV into its individual proteins, and use one of them.”
“What are the other two obstacles?” It was a short, smooth ride from here.
“For an antibody-any antibody-to work, for it to neutralize the virus and prevent it from invading cells, it has to bind to the virus particle. The problem is that the surface of an HIV particle is so dense and complicated that it's virtually impossible for the antibody to reach the binding site.”
“Like a crumpled piece of paper?”
“No.” Kaplan shook his head impatiently. “Picture a tiny sphere. An HIV particle, or virion, is only one ten-thousandth of a millimeter wide-the width of a human hair is one-tenth of a millimeter-and it has a surface like a loose piece of cloth covered with dozens of mushrooms. The mushrooms are constantly in motion, always flopping around.” Kaplan waggled his fingers at the jury. “How can an antibody find a binding site if it's hidden under the mushroom caps? But it must bind to a specific site. Hit or miss isn't good enough for it to work.”
“And, the last obstacle?”
“Mutation. With polio, measles, mumps, the virus you're attacking stays the same from one day to the next, and from one host to another. But HIV is different. It's constantly mutating-and not only over time, and not only from one host to another. On a given day, HIV can take on countless different forms in just a single individual.”
“So you're saying that HIV is a moving target?”
“A moving target and a changing one. As many as a million totally unique virions can be created each day in a single infected host. This means that even if you could somehow manage to get an antibody to neutralize one virion, there are others it won't neutralize. You're pretty much back where you started.”
“These four hurdles-did Dr. Alan Steinhardt, who created AV/AS, manage to get over or around each of them?”
“Yes,” Kaplan said. “Yes, he did.”
“Thank you, Dr. Kaplan. I have no more questions.”
The abrupt halt had the effect Seeley wanted, and an uneasy silence hung in the courtroom. Judge and jurors were asking themselves Seeley's unspoken question: What did Steinhardt do to overcome these obstacles? Kaplan had dispelled any doubt about the scientific significance of Steinhardt's achievement and, tomorrow morning, the jurors would greet Steinhardt as a savior when he explained how he surmounted the hurdles in the way of AV/AS. The trick would be to have him on and off the stand before the jurors discovered how personally repellent he was.
Thorpe rose, but didn't move from the defense table. “Professor Kaplan, your colorful testimony has left all of us in suspense: What was it the discoverer of AV/AS did to break through these four obstacles?”
Seeley was on his feet. “Objection. The question is outside the scope of the direct examination.”
“Your Honor, the question goes to the validity of this patent. Surely the jury has a right to know the nature of this supposed advance.”
Seeley was not going to let Thorpe deflate his plans. “Judge, the jurors have not only the right but the duty to understand the nature of the invention. However, they deserve to learn this from the man who made the discovery, and this man will testify tomorrow morning.”
Farnsworth looked at the jury, as if asking what it was they wanted, knowing that however she ruled on Seeley's objection, it could not possibly constitute reversible error, requiring the appeals court to overturn the jury's verdict.
Still watching the jury, Farnsworth said, “The objection is sustained.”
Trial was over for the day.