KING COUNTY COURTHOUSE
SEATTLE, WASHINGTON
At the hearing for a permanent injunction, Barclay Reid used much of the morning to introduce documents showing that the Metamorphis prototype passed inspection by the PSA. Sloane had refused to stipulate to their admissibility, forcing Reid to call a witness from the PSA to authenticate them. It gave Sloane the chance to cross-examine the woman and establish that the test by the PSA was extremely limited and performed in an outdated and understaffed lab.
“In fact it’s just one man, isn’t it?”
“Yes.” An administrative type, conservative in appearance, the woman spoke in a monotone, without any inflection in her voice.
“And the lab tests some fifteen-thousand products a year?”
“Yes.”
The stitches that had closed the cut over Sloane’s eye had been removed, the scar nearly invisible beneath his eyebrow. The swelling and bruises to his face had also faded, only noticeable upon close inspection. “You testified that you checked the agency’s records and did not find any complaints concerning Kendall or the toy Metamorphis, is that correct?”
“Our records do not reflect any, correct.”
“But the agency does not record every consumer complaint, does it?”
“No, we don’t.”
“In fact, isn’t it true that the new acting director ordered that records of complaints be disposed of?”
“Yes, she did.” The woman seemed almost happy to answer.
“So there could have been a complaint that was expunged.”
Reid objected. “It calls for speculation.”
“I’ll let her answer,” Judge Rudolph said. “I take it you’re not asking if there was such a record, only that such records did at one time exist?”
“Exactly, Your Honor,” Sloane said.
“It is possible,” the woman agreed.
“And you testified that you are not aware of any reports by your agency on the dangerous propensities of magnets?”
“I’m not, no.”
“And you checked the agency’s database thoroughly to determine if there existed such a report?”
“I did, and I did not find any.”
“If there had been such a report, it would have been in the databases you searched.”
“It would have been, yes.”
These were small gains, but Sloane felt he needed every inch he could get.
Following the testimony Rudolph recessed for a short break, and Sloane took the opportunity to step into the hall and call Alex.
“How’s the patient?”
Sloane had spent much of the prior week preparing for the hearing while helping Alex care for Jenkins at the Camano Island farm. When the surgeon appeared in the waiting room, it had been to tell Sloane that though they had removed the bullet, Jenkins had lost a lot of blood.
“But he’ll be okay, right?” Sloane had asked.
“He’s stable, but he’s not out of the woods. The next twenty-four hours will be critical. I’ll keep you posted.”
After the doctor had departed, Sloane remained standing, staring out the door.
Molia put a hand on his shoulder. “He’ll be okay. He’s like a buffalo. He’s too damn big to kill with one bullet.”
The detective had been right: one bullet would not kill Jenkins, though it was several very long days before Jenkins’s vital signs stabilized and several more before the doctors would allow him to fly home. Sloane had hired a nurse and rented a private jet. Their roles reversed, he had never left Jenkins’s side until they reached Camano and Alex stepped in.
Kannin stepped out from the courtroom to the hall. “Judge is back.”
Sloane rejoined him at counsel table along with the McFarlands and the Gallegoses.
Reid called a product expert to testify that the toy met or exceeded the Toy Manufacturer’s Association safety mandates, but on cross Sloane got the expert to admit that the TMA safety requirements were voluntary, that the TMA strongly opposed regulation of the toy industry by the government, and that it had no enforcement powers should a company choose not to abide by the voluntary regulations. Again it was a minimal gain, but it was the safest course of attack.
The only surprise that morning was when Reid rested her case without calling Malcolm Fitzgerald. Sloane wasn’t sure whether she would put him on the stand, since all she really needed to do to get an injunction preventing Sloane from disclosing the design of Metamorphis was show that Kendall had designed the toy and kept that design confidential. It was Sloane’s burden to prove extraordinary circumstances existed to justify an order that the Metamorphis action figure be independently inspected. Reid was like a boxer ahead on points in the late rounds of a fight; she just needed to avoid being knocked out. A skilled lawyer, she had yet to make a mistake and apparently decided not to risk one with Fitzgerald.
Sloane, however, wasted no time calling Fitzgerald as a hostile witness, though he realized that at this point there was little to be gained. Predictably, Fitzgerald denied knowing Kyle Horgan and testified that Metamorphis had been designed by the Kendall design team. Without Horgan, or his file, Sloane had nothing to rebut that testimony, or to show that Fitzgerald had knowledge of the dangerous propensities of magnets in general, or the toy in particular.
Sloane decided not to call Albert Payne as a witness. Payne could not testify as to what Kendall knew or did not know, and while Anne LeRoy’s report discussed the dangerous propensities of magnets, the information in it did not directly relate to Metamorphis or Kendall. Reid would have rightly objected that it was irrelevant, and Sloane would do nothing except educate those involved in burying the report. The opportunity to disclose that report would be better served in a more public forum to be held that same week.
Instead, Sloane called Dr. Leonard Desmond and waited at the lectern while the forensic pathologist settled into the witness chair, opened a file, and placed it on his lap while slipping on half-lens reading glasses. With bushy silver hair, eyebrows as thick as an untended lawn, and a beige suit, Desmond looked like a cross between Albert Einstein and Mark Twain.
As Sloane adjusted the lectern to a spot where the linoleum floor had not been worn, Judge Rudolph directed his gaze over the top of his bifocals to Barclay Reid. “I think we can dispense with Dr. Desmond’s qualifications,” he said.
Reid smartly agreed so as not to irritate Rudolph; Desmond had performed more than five hundred autopsies, including the only two that mattered that afternoon, the autopsies of Mateo Gallegos and Austin McFarland.
“Dr. Desmond, let’s get right to it,” Sloane said. “You performed the autopsy on Mateo Gallegos as part of your duties as the Lewis County coroner, correct?”
“I did. With the child under the age of five, an autopsy is mandatory.”
“And you also performed the autopsy on Austin McFarland?”
“At your request, yes.”
“What is a forensic pathologist?”
“Simply stated, a forensic pathologist determines the cause of death by examining the cadaver.”
“Dr. Desmond, let’s start with the autopsy you performed on Austin McFarland.” Sloane took Desmond through the series of questions concluding with Desmond advising that he had located five magnets within the body cavity.
“And are you able to opine, based upon the physical evidence, what impact those magnets had on Austin McFarland in particular?”
“I’m afraid not. By the time the autopsy was performed, the intestines had deteriorated to the point that they offered no real independent source of information.”
Eva McFarland moaned.
“The best I can do is state that the child had five magnets in the area where his intestines would have been and provide an educated hypothesis based upon my findings with respect to Mateo Gallegos.”
Reid stood to object but Sloane headed her off. “We’ll get there, doctor. Let’s go ahead and discuss your findings with respect to Mateo Gallegos.”
Reid sat.
After walking Desmond through the preliminary questions Sloane considered another multipage document. “Let me hand you what has previously been marked as Exhibit Twenty-seven and ask that you review it.”
Desmond did as instructed, though there was little need, given that he had written the report. He flipped to the last page. “Yes, this is my report.”
“You signed it?”
“Yes, that’s my signature.”
“Would you tell the court your findings?”
“I found that the decedent had also ingested multiple magnets.”
“Can you explain to the court how it would be physically possible for a child to swallow six magnets?”
Desmond displayed the magnets inside of a jar, which Rudolph inspected. “The magnets are very small. A child would have no physical problem ingesting them.”
“So you would not expect a child to display any signs of choking after swallowing one of these magnets?”
“No, I would not. The size of the magnets makes it unlikely the child’s airway would be obstructed, so I would not expect that the child’s complexion or physical response would give a parent any reason to suspect the child had swallowed anything hazardous.”
“So other than actually witnessing a child swallow the magnets, a parent would not have any immediate indication that their child had done so?”
“Unless the child told them, no, they would not. The child would be able to breathe, talk, cry.”
“What happens when these magnets remain in a child’s system?”
Reid stood. “I’m going to object, Your Honor. Dr. Desmond is here to provide a report of his findings with respect to Mateo Gallegos. He has not been disclosed or introduced as an expert witness on the effect of magnets on the body in general.”
“Sustained. Rephrase the question.”
Sloane did.
“In this case, because the child swallowed more than one magnet, the magnets attracted one another while inside the intestines.”
“They just bunched together?”
“No. Because they were likely swallowed at different times, they were in different areas of the intestine and attracted one another through the intestinal walls.”
Sloane had the doctor use a diagram of the intestines to identify where he had located the magnets. Desmond then clenched his hands into fists and pressed the knuckles together. “The magnets are so powerful they attach through the intestine and strangle blood flow to the affected portion. Once the blood supply is cut off, the clock is ticking.”
“What do you mean ‘the clock is ticking’?”
“Without blood supply that particular area of the bowel begins to die. The magnets erode through the intestinal wall, or make the bowel more susceptible to perforating in general.”
“What happens if the intestinal wall is perforated?”
“If the intestinal wall is perforated, bacteria will spill into the abdominal cavity.”
“Deadly bacteria?”
“It can be. It’s essentially like a gunshot or stab wound in that it can result in septic poisoning of the child’s blood supply and carry that poison to other organs.”
“And in this particular instance did you reach a specific conclusion about what occurred with respect to Mateo Gallegos?”
“I concluded that the child died as a result of septic poisoning to his system caused by the factors I just described.”
“And did you find anything further to indicate that the ingestion of these magnets might not have been the cause of death in this instance?”
“No, I’m quite certain they were the cause.”
“Doctor, I noted in your report that you also indicate a puncture wound to the abdomen, is that right?”
“Yes it is.”
“And did you reach any conclusions as to what might have caused that wound?”
“I concluded it was a nail. I’d estimate a sixteen-penny nail, though it isn’t really possible to say so with certainty.”
“For the record, that’s the size of the nail?” Rudolph interjected.
“It is,” Desmond said. “But again, I can’t be certain.”
Sloane would have preferred not to bring up the subject, but he knew if he didn’t, Barclay Reid would. In legal parlance, Sloane was stealing the wind from Reid’s sail, bringing up an unfavorable piece of evidence and allowing his witness to explain it before she could make a bigger deal of it on cross-examination.
“Is there any indication the nail was rusted?”
“There is some indication in the subcutaneous tissue of an infection that could be consistent with the type of infection one might experience from a rusted nail, yes.”
“And in your opinion, is it likely that this perforation could have caused the septic poisoning you believe led to Mateo Gallegos’s illness and ultimately his death?”
“In my opinion it is not likely. Given the presence of the magnets, they represented a far more acute cause of the symptoms leading to death.”
“Now, as a result of your findings with respect to Mateo Gallegos, Dr. Desmond, did you draw any conclusions with respect to your autopsy of Austin McFarland that you could not have previously drawn based on the available physical evidence?”
“I did. Having reviewed the doctor’s notations in the medical file identifying the symptoms that the McFarland child suffered, and given their remarkable similarity to the symptoms that the Gallegos child presented, as well as, of course, the undeniable presence of the magnets within the McFarland child’s body, it is my educated opinion that the McFarland child died as a result of the ingestion of magnets that resulted in a similar septic reaction caused by perforations to his intestines.”
Sloane checked his notes. Satisfied, he addressed Judge Rudolph. “I have nothing further on direct.”
Reid strode to the podium. “But you don’t know that for certain, do you, doctor. As you’ve just said, that’s a guess.”
“It’s an educated deduction from the evidence.”
“But not the physical evidence as you’ve described with respect to the condition of the McFarland child’s body, correct?”
“Correct.”
“You cannot state with certainty that the magnets caused perforations to the child’s intestines.”
“I cannot.”
“And you could not conclude that the magnets caused any transient bacterial infection that occurred just before death.”
“I could not. The body was too badly decomposed.”
“Doctor, in giving you your assignment, did Mr. Sloane advise you that he obtained a medical malpractice judgment against the doctor who treated Austin McFarland?”
Sloane stood. “Objection, Your Honor, it’s irrelevant.”
“Sustained.”
“Dr. Desmond, did you inspect these magnets that you removed from Austin’s body closely?”
“I did.”
“And did they have any markings on them of any kind?”
“No, they did not.”
“And is the same true with respect to the magnets found in the Gallegos child?”
“That’s correct.”
“Nothing that would indicate to you a serial number or anything of that sort?”
“No, nothing like that.”
“And you are not here to render any conclusions as to the source of these magnets.”
“I don’t have any such knowledge.”
“You don’t really care?”
Sloane stood. “Objection, Your Honor. It’s irrelevant.”
“Sustained.”
“The source of the magnets is not significant to the conclusions you’ve shared here today,” Reid said.
“No, it is not.”
“So you don’t know if the magnets came from a toy, or an electric toothbrush, or any other of a number of household appliances that the child could potentially have gotten hold of. In fact, the magnets might not necessarily have even been in the child’s home. They could have come from school or any number of other locations.”
Sloane stood again. “Objection. Counsel’s testifying at this point, Your Honor. Dr. Desmond has already answered that he doesn’t have such knowledge.”
“Sustained.”
Reid’s strategy was simple. She would not dispute that which was indisputable—that Mateo Gallegos and Austin McFarland had ingested magnets. Instead she would emphasize that which Sloane could not prove, that the magnets had come from a Metamorphis action figure. Unless Sloane could do that, or otherwise offer a different knockout punch, Judge Rudolph would be hard-pressed to issue an injunction or order that the toy be independently tested.
“Doctor, I’m assuming that if you noted something in your report you considered it significant, is that a fair assessment?”
“Yes, I’d say it is.”
“And you testified that you noted in your report that the Gallegos child appeared to have a puncture wound to his abdomen. So we can assume that you considered that puncture wound to have been significant at the time you performed the autopsy, correct?”
Desmond smiled, recognizing the lawyer’s trap. “Well . . . it was significant in the sense that I noted it.”
“Noted it while attempting to determine the cause of the septic poisoning that you believe killed this child, correct?”
“Yes. I was—”
“And a potential cause of that poisoning was this rusted nail, correct?”
Desmond shook his head, eyes closed, looking almost amused. “It isn’t likely.”
“But it is possible, isn’t it?”
He sighed, resigned. “It’s possible, yes, but—”
“So although you indicated you were quite certain the child’s poisoning came from these magnets of unknown origin, you could not rule out conclusively this prior puncture wound, could you?”
“One hundred percent?”
“That would be conclusive, wouldn’t it?”
“I suppose I couldn’t, not one hundred percent.”
Like a magician, Reid produced a nail, holding the head between her thumb and index finger, so that it looked as long as a spear. Since she had deposed Desmond and had a copy of his report, she knew before the hearing his opinion regarding the size of the nail. “You identified the puncture wound as likely having been caused by a sixteen-penny nail, correct?”
“I said likely. I can’t be certain.”
“I don’t think I’ve pounded a nail in my life, Doctor, except to hang a picture frame, but I suspect you’re familiar enough with nails to correct me if I misrepresent that this is a sixteen-penny nail.” She handed Desmond the nail.
“It appears to be, yes.”
“How deep did the nail penetrate Mateo Gallegos’s body?”
“I don’t recall making that notation on my report.”
She handed him the report. “Please consider it.”
Desmond did. “No. I did not note it.”
“Would the depth of penetration be significant to a conclusion as to whether the nail could have caused a septic-type reaction?”
“In theory it could be, yes.”
“The deeper the penetration, the greater the potential for poisoning?”
“Yes, that’s right.”
“A sixteen-penny nail is three and a half inches.” Reid made it sound like three and a half feet. “And if the nail penetrated up to, say, the head, then it would have penetrated through the subcutaneous tissue to the lining of the stomach, correct?”
“Correct.”
“It could also have punctured the intestine, could it not?”
Desmond hesitated.
“Doctor?”
“I can’t rule it out, no. But again, it isn’t likely.”
“And if it punctured through the tissue to the stomach cavity I would assume that any infection would, remembering my very brief anatomy class, eventually find its way into the small intestine. Am I correct in that assumption?”
“You are.”
“And the stomach has a rich blood supply, which, if infected, could result in the circulation of that contaminated blood throughout the body.”
“Correct.”
Reid let Judge Rudolph ponder that information for a moment as she flipped through her notes. Then, as if stumbling on her next line of questioning, she asked, “And would whether or not the child had a recent tetanus shot also be significant as to whether the rusted nail could cause an infection?”
“Yes, but—”
“Thank you, doctor. I have nothing further.”
Sloane was on his feet before Judge Rudolph asked if he had any redirect.
“Doctor, it appeared to me that you wanted to explain your last answer before you were cut off. Would you like to do so?”
“Yes, I would. Tetanus shots protect against clostridium Tetani, which is a cause of tetanus. It is not usually a cause of sepsis. What I was attempting to explain was that all of the factors counsel mentioned—the nail, the rust, the depth of penetration of the nail, and the date of the deceased’s last tetanus shot—could be of import in theory, but not with respect to the evidence that was before me.”
“And what specific evidence are you referring to?”
Desmond’s voice grew more adamant. “There were six magnets in the child’s intestines,” he said. Sloane thought he might add, “Good God, are you people stupid?” but the doctor refrained. “There is no doubt those magnets had perforated the child’s intestines. It was very clear to me where the septic poisoning had originated.”
Reid declined to recross. There was no need. She had scored what points she could and was abiding by the lawyer’s well-known adage: if you’ve scored a few points on cross-examination be grateful, sit down, and shut up.
The court took its afternoon recess following Dr. Desmond’s testimony. Before leaving the courthouse for lunch Sloane and John Kannin slipped into the men’s room. After making sure they were alone, Kannin said, “She didn’t get any mileage out of the rusted nail with Rudolph. Maybe with a jury, but Rudolph isn’t going to buy it.”
Sloane wasn’t so sure. “We’re asking him for extraordinary relief. Any doubt Reid can introduce isn’t going to help. Besides, without some better evidence that the magnets came from the prototype, we can’t win. We both know that.”
ALTHOUGH SLOANE HAD gone over Rosa-Maria Gallegos’s testimony the day before, she still looked apprehensive as she took the witness stand that afternoon, opening and closing the clip in her hair. They had rehearsed the questions and answers, but it was more difficult to simulate the anxiety a courtroom produced for the average person.
Sloane eased Gallegos into the examination by having her talk about her family and Mateo. When he felt she had settled in and relaxed a bit, he began in earnest.
“Are you a legal resident of the United States, Rosa-Maria?”
She shook her head. “No.”
“Then how is it that your husband works for a company like Kendall Toys?”
“He uses a different Social Security number, from his cousin.”
“His real name is not Manuel Gallegos?”
“Here he is Manny Gallegos.”
“How long has your husband been employed at the Kendall Toy manufacturing plant?”
“Four years.”
“And during that time his employer never questioned him about his residency or Social Security number?”
Reid objected. “The question is irrelevant.”
Rudolph nodded his head. “Sustained. Mr. Sloane, move on.”
Sloane knew that Manny Gallegos’s illegal status and use of a false identity was largely irrelevant to the hearing for an injunction, but getting Reid to object that the information was irrelevant would prevent her from bringing it up on cross-examination to imply that the Gallegoses were dishonest.
“At some point, Mrs. Gallegos, did your son Ricky come into possession of a Metamorphis action figure?”
“Yes. My husband’s boss gives it to him for being a good employee and asked to have Ricky play with it. They paid us fifty dollars.”
“And for how long did your son Ricky play with the toy?”
“It was about one week.”
“And where did he play with it?”
“In our home.”
“How big is your home, Mrs. Gallegos?”
Reid looked about to stand but caught herself.
“It is not very big.”
“How many bedrooms?”
“Ricky and Mateo share a room,” she said, still speaking as if her youngest were alive. “My husband and I sleep in the other room.”
“Your two sons shared a room. Is there another room to keep things like toys?”
She smiled. “No. There is no room.”
“During that period of time when the toy was in your home, did your son Mateo play with it, or was he with his brother when Ricky played with it?”
Gallegos lowered her head to compose herself, wringing her hands in her lap. Tears rolled down her cheeks. “We try to tell Ricky not to let Mateo play with it because the box warns about choking, but Mateo, he wanted to. He was always, you know, ‘Me, me. I want to play.’”
“And do you know if your son Ricky ever let Mateo play with the toy?”
“We did not think so, but he told us later that he did.”
Reid stood. “Objection, Your Honor, hearsay.”
“I can bring Ricky here and put him on the stand, Your Honor, but I question whether that is really necessary.”
“I’ll allow it,” Rudolph said.
“Did Ricky ever tell you that any pieces of the Metamorphis broke?”
“He said that some did.”
“And did Ricky ever mention seeing any magnets from the toy?”
She shook her head. “No.”
“So he did not tell you that he thought Mateo swallowed any magnets?”
“He did not say that, no.”
“And did you ever find any magnets in your house?”
She shrugged. “I don’t remember seeing them, no.”
Again, Sloane had no choice but to bring up the unfavorable testimony. He would have preferred something else, like Ricky having seen Mateo putting the magnets in his mouth, but that had not been the case. Sloane changed gears.
“Could you talk a bit about when you first realized Mateo was sick?”
Reid again objected. “We’re not contesting that the boy became ill,” she said. “We’ll stipulate to the medical records, which document his symptoms. To go through it is irrelevant.”
It was a good objection and Rudolph sustained it. Reid did not want Rosa-Maria discussing the emotional trauma of watching her son grow more and more ill. Not wanting to end on a sustained objection, Sloane asked a few additional questions before sitting. To his surprise, Reid pushed back her chair. Cross-examining a mother who had lost a child was risky on a number of levels, but by the time she reached the lectern, Reid seemed to have undergone a transformation. The attack dog was gone.
“Mrs. Gallegos, you testified that you never saw a magnet in your house, did you?”
She shook her head, wiping at her tears. “No.”
“Aside from your son telling you that pieces of the plastic cracked, you have no information that the toy was defective or broken in any way, do you?”
“I saw the pieces.”
“And boys being boys, you don’t know if the plastic cracked because your son might have played too roughly with the toy, for instance.”
“No, I do not know.”
“And it is true, is it not, that three weeks before he became ill, Mateo fell while playing outside and landed on a rusted nail.”
“Yes,” she said.
“And you never had your son treated for that wound, did you?”
“No,” she said.
“And your son Mateo had never had a tetanus shot, had he?”
“No. Ricky got one at school, but Mateo is too young.”
“Nothing further, Your Honor.”
Rudolph excused Rosa-Maria Gallegos.
Sloane stood and called Eva McFarland to the stand.
As with Rosa-Maria Gallegos, Eva fidgeted when she sat and her voice cracked when she answered Sloane’s initial questions. Sloane again took his time, hoping to calm her. When she seemed to relax, he led her through the same series of questions to establish that Mathew McFarland had been part of a Kendall focus group, and had received the Metamorphis toy and played with it in the McFarland home. He also established that Austin had been in contact with the toy and had played with it with his brother and by himself, and that pieces of the plastic had cracked.
“Did you ever find any of the magnets within those pieces?” Sloane asked.
She nodded. “I did. I found one stuck to the small piece of metal at the bottom of a leg of one of the kitchen chairs. The chair was wobbling like it was uneven and when I looked, there it was. It was very strong. I had to pull it off.”
“Did you look for others?”
She nodded. “I did, but I didn’t find any but that one.”
After several additional question, Sloane switched gears. “Eva, I’d like to ask you about the symptoms that Austin suffered when he became ill,” he said, but Reid was on her feet, objecting.
“Kendall will stipulate to the contents of the autopsy report and to the medical records, which document Austin McFarland’s symptoms.” Reid would again take her chances with the autopsy report, particularly since Dr. Desmond could not definitively conclude the magnets were the cause of the septic reaction; she did not want another grieving mother on the stand talking about her dying child.
Sloane argued to the contrary, but nearing the end of the day, Rudolph agreed with Reid.
“While I am certainly sympathetic, I am well aware of the McFarlands’ prior testimony on the subject and I agree with counsel. I don’t think that Mrs. McFarland could add to the evidence already before the court,” he said, an ominous comment that did not bode well for Sloane or his clients.
