KING COUNTY SUPERIOR COURT
SEATTLE, WASHINGTON
The following morning, Sloane rushed into the courtroom three minutes late. John Kannin had his back to the door, addressing Judge Rudolph, who was already seated on the bench as Sloane entered out of breath.
“I haven’t been able to—” Kannin was saying.
“I’m sorry I’m late, Your Honor.” Sloane stepped up to counsel’s table.
“We were about to get started without you, Mr. Sloane,” Rudolph said.
“I apologize for keeping the court waiting.”
Sloane nodded to the Gallegoses and McFarlands and gave them an “everything’s okay” smile as he pulled materials out of his trial bag and arranged them on the table. Kannin leaned close. “Where were you? I couldn’t reach you on your cell.”
“I was running around this morning. I worked late last night.”
Kannin’s eyebrows arched. “On what?”
Sloane smiled. “That hope you talked about found me.”
Kannin pulled back and looked at Sloane as if he’d gone crazy, but before he could ask another question Rudolph spoke. “Are you prepared to give your summation, Mr. Sloane?”
“Your Honor, I would request the court’s indulgence in allowing us to call Malcolm Fitzgerald back to the witness stand.”
Reid shot from her chair. “We object, Your Honor. Mr. Fitzgerald was on the stand yesterday and dismissed.”
“Mr. Sloane?”
“We desire to call him in rebuttal, Your Honor.”
“On what subject?” Rudolph asked.
“Mr. Fitzgerald’s personal knowledge concerning the dangerous propensities of Metamorphis.”
Reid was having none of it. “There’s no evidence to justify any further inquiry into that subject, Your Honor.”
“I would be brief,” Sloane said. “And there is new evidence. A letter.”
“We object to the introduction of any document not previously produced in discovery as the parties stipulated, or identified as an exhibit for this hearing,” Reid said.
“So would I, Your Honor,” Sloane replied, “but the letter was not in my clients’ possession.”
“Who possessed it?” Rudolph asked.
“Kendall.”
Reid sounded indignant. “If such a memorandum existed I would have produced it as an officer of the court.”
“I don’t question Ms. Reid’s integrity,” Sloane said, “but I don’t believe she ever had the memorandum.”
“Where did you obtain it, Mr. Sloane?” Rudolph asked.
“From the individual who designed the Metamorphis toy.”
Reid looked to Fitzgerald, who shrugged to indicate he had no idea who Sloane was talking about.
“Can you authenticate it?”
“It’s addressed to Kendall. I’m hoping Mr. Fitzgerald can.”
Reid shook her head. “Your Honor, it seems a bit suspicious that a letter would suddenly materialize.”
“The admissibility and weight of any piece of evidence is for the court to decide,” Sloane countered.
“Why didn’t you ask Mr. Fitzgerald about it yesterday?” Rudolph asked.
“I didn’t have a copy yesterday. I just obtained it late last night.”
Sloane handed a copy to Reid, who immediately showed it to Fitzgerald as Sloane provided Rudolph his own copy.
Rudolph tapped his finger on the desk as he considered the document, then raised his eyes and seemed to ponder the back wall. After several moments he said, “All right, I’ll allow you to question Mr. Fitzgerald, but the document will not be admitted into evidence until it is authenticated. Mr. Fitzgerald, please retake the witness stand.”
Fitzgerald’s chair scraped the linoleum and he strode back to the stand. If he was perturbed, he hid it well. He unbuttoned his navy blue suit jacket and sat.
“You understand you’re still under oath?” Judge Rudolph asked.
“I do.” Fitzgerald nodded. He crossed his legs, his head slightly tilted, as if challenging Sloane to bring it on.
“Mr. Fitzgerald, you testified yesterday on direct examination that you had no knowledge that the Metamorphis toy was potentially defective or that such a defect could result in the release of magnets contained within its component parts. Is that a correct summary of your testimony?”
“It is. I had no such knowledge.”
“So we can assume from your answer that no one in the design phase raised such a concern?”
“Not to me.”
“Or anyone else to your knowledge.”
“Or anyone else to my knowledge.”
“No one in the manufacturing phase has raised such a concern.”
“They have not.”
“And no one during the testing phase, be it in-house at Kendall or by an independent testing lab like the PSA, advised you of such a potential concern.”
“No one,” Fitzgerald said, emphasizing the words, “raised any concerns of any kind.”
“Verbally or in writing?” Sloane persisted.
“Verbally, or in writing.”
“Given your position as CEO of Kendall Toys you would have expected any such concern to have been brought to your attention, correct?”
“Absolutely.”
“And how long have you been CEO of Kendall Toys?”
“A little more than four months.”
“Kyle Horgan designed the Metamorphis action figure, did he not?”
Fitzgerald smiled, smug. “No, he did not. The Kendall design team produced the design.” His hands remained folded in his lap. “And has patented that design, as Ms. Reid demonstrated yesterday.”
“You have never met Mr. Horgan?”
“Never.”
“So you never would have paid him any money for the design of a toy, such as Metamorphis.”
“I did not.”
“If someone outside of the Kendall design team had designed Metamorphis, he or she would stand to benefit financially from its success, would they not?”
Reid stood. “It’s speculative and irrelevant, Your Honor.”
“I’ll allow it.”
Sloane repeated the question.
“They may. Typically an independent designer receives an advance and a percentage of the sales of each toy.”
“And that can be quite lucrative, can it not?”
“It can be, yes.”
“And for that to occur Kendall would have to sell a lot of toys, and if so would stand to make a lot of money, correct?”
Fitzgerald smiled. “One can only hope.”
“And, conversely, Kendall would suffer financially if a product in which it heavily invested failed.”
“Depending on the amount of money invested, it is a possibility.”
Sloane retrieved the document from his table and asked the clerk to mark his copy, which he then handed to Fitzgerald.
“For the record, Mr. Fitzgerald, I’m handing you what’s been marked as Exhibit Thirty-two to this hearing. Do you recognize this document?”
Fitzgerald considered the document front to back and placed it in his lap. “No, I don’t.”
“It is addressed to Kendall, is it not?”
Reid objected. “Your Honor, I’m going to renew my objection that this document was not produced during discovery. Moreover, since Mr. Fitzgerald has testified that he has never seen the document, and since it is not even addressed to him, its contents are irrelevant. He cannot authenticate it. It is inadmissible. Until it is moved into evidence it would be improper for Mr. Sloane, Mr. Fitzgerald, or anyone else to read from it. I would therefore move that the document be stricken.”
“Can you authenticate the document, Mr. Sloane?” Rudolph asked.
“Apparently not with this witness,” Sloane said, maintaining eye contact with Fitzgerald.
Rudolph put the document facedown on his desk, looking and sounding perturbed. “Then we’re not going to consider it. Do you have any further questions of Mr. Fitzgerald?”
Sloane bowed his head. “No.”
His cheeks turning red, Rudolph addressed Fitzgerald. “Mr. Fitzgerald, you may step down.”
“I assume we’re finished, Mr. Sloane?” Rudolph asked.
“Actually, Your Honor, we would beg the court’s indulgence to call one additional witness.”
Reid sounded exasperated. “Your Honor!”
“Since Mr. Fitzgerald could not authenticate the document, Your Honor, we need to call someone who can.”
“And who is that?” Rudolph asked.
“Kyle Horgan.”
WHEN SLOANE ANSWERED the phone in his office the prior evening he did not immediately recognize the voice, but the name made his heart race.
“Mr. Sloane? This is Kyle Horgan.”
No words came.
After the pause Horgan said, “We met in the lobby of your building. I—”
“Where are you?” Sloane asked.
“I’m staying with a friend. She says you’re looking for me.”
“Who? Who are you staying with?”
“Dee Stroud. She owns a—”
“Dee’s House of Toys,” Sloane said, recalling the attractive brunette who had explained to him much about the toy business.
“Dee said there is some kind of trial going on; she read about it in the paper.”
It took Sloane twenty minutes to get to Stroud’s house in Kirkland. Horgan sat in Stroud’s modest living room drinking a Coke, a blue tin of butter cookies open on the table. He scarcely resembled the young man who had accosted Sloane in the lobby of his building. His hair, which had been wild and unkempt, had been cut business short and parted on the side, and he had lost weight, his facial features more angular and pronounced.
“He walked into my shop last night as I was closing,” Stroud explained.
“The landlord evicted me and put everything in storage. I didn’t have anyplace else to go. Dee told me about your case, about the two young boys. So you believed me?”
“Not initially,” Sloane said, sitting on the edge of a chair across the table from Horgan. “And I’m sorry for that. But yes, I believe you, Kyle.” Sloane shook his head, dismayed. With all of his skills and contacts, Charles Jenkins had been unable to find the young man. There had not been any activity on Horgan’s bank account. Jenkins found no relatives. It was as if Horgan had vanished.
“Where did you go? We couldn’t find you.”
“California,” he said. “I needed to get some help.”
“He checked himself into a rehab center,” Stroud said, coming back into the room and putting a cup of tea on the table in front of Sloane.
Sloane didn’t tell the young man, but Horgan’s decision to get help had also probably saved his life.
“Everything is anonymous,” Horgan explained. “I knew I had a problem, and it was getting worse.”
Sloane knew treatment centers were not cheap. “How did you afford it?”
“I used the money Kendall paid me. That’s why I sold them the design.”
Sloane tried not to let his emotions rush his questions, to remain analytical.
“The design of Metamorphis?”
Horgan spoke matter-of-factly. “Yes.”
“How did they pay you, was it a check?”
Horgan shook his head. “No. He gave me cash. He called it a retainer so that I wouldn’t take the design to anyone else.”
“An option.”
Horgan shrugged and nibbled on a butter cookie. “Something like that.”
For the next forty-five minutes Sloane advised Horgan of what had transpired and continued to ask him questions.
“Can you stop them from releasing Metamorphis?” Horgan asked.
“I didn’t think so,” Sloane said, “but I do now.”
KYLE HORGAN STEPPED through the back door into the courtroom as if on cue, Dee Stroud and Tom Pendergrass walking in with him. Horgan wore pressed tan slacks, a collared shirt, and a charcoal gray cardigan sweater. Pendergrass had bought him the clothes.
“We object,” Reid said, finding her voice. “Mr. Horgan was not identified on the list of intended witnesses. He has not been deposed and . . . and this is highly prejudicial.”
“Mr. Horgan is a rebuttal witness. He is being called to authenticate the document now marked as Exhibit Thirty-two. Furthermore, Mr. Horgan will explain that he was not previously available and could not have been previously disclosed.”
“Your Honor, there are three people here,” Reid said. “These proceedings are closed to protect the confidentiality of the Metamorphis design.”
“The gentleman in the suit is my associate, Tom Pendergrass. The woman is Dee Stroud, the owner of Dee’s House of Toys. She will also be a witness, if necessary.”
“For what purpose?” Rudolph asked.
“To establish that Mr. Horgan designed the toy in question.”
It had struck Sloane as he sat in Stroud’s living room that Stroud could independently verify that Horgan had walked into her toy store and showed her the design of Metamorphis long before Kendall ever put the toy into production. That being the case, he could establish that Kendall must have stolen the design. Sloane had orchestrated her entrance with Horgan.
“If she is going to be a witness, she’ll need to wait outside until called,” Rudolph said. Sloane nodded to Pendergrass, who escorted Stroud back outside. After she departed, Rudolph looked to Sloane. “Mr. Sloane, why wasn’t this witness disclosed previously?”
“Your Honor, I will establish that Mr. Horgan has been out of the state for the past six weeks and that he only called my office late last night to advise me that he had returned. My investigator could not locate him, and I daresay that neither could Ms. Reid’s.”
Sloane looked to Reid. When they had met to discuss the settlement he had deliberately given Reid Kyle Horgan’s name, knowing that she would seek to have him found.
“Ms. Reid?” Rudolph asked.
“Mr. Sloane is correct,” she said. “We were not able to locate Mr. Horgan.”
“So he was disclosed.”
“Not on the witness list, Judge, but Mr. Sloane did tell me his name and the allegation that Mr. Horgan had designed the toy.”
“Then I see no prejudice.” Rudolph looked to Horgan, who stood in the gallery with Pendergrass. “Mr. Horgan, please take the stand.”
After Horgan settled into the witness chair, Sloane established where Horgan had been and why Sloane could not have disclosed him as a witness. Satisfied, Rudolph instructed Sloane to continue.
Sloane gestured to Fitzgerald, who sat forward in his chair, one hand covering his mouth and contemplating Horgan as if he were a rare artifact. “Have you ever met Mr. Fitzgerald?”
Horgan shook his head. “No.”
“Have you ever sent him any correspondence?”
“No.”
Reid stood. “Your Honor, this is really perplexing. Didn’t we just go through this exercise with Mr. Fitzgerald on the witness stand? Mr. Sloane said this man would impeach Mr. Fitzgerald and authenticate the letter. Instead he’s corroborated the testimony. This isn’t rebuttal. Mr. Horgan says he’s never met or corresponded with my client.”
“Mr. Sloane?” Rudolph asked.
“If I could ask just one more question, Your Honor?”
“It better be a good one,” Rudolph said.
But before Sloane could ask the question, the hand that had been covering Malcolm Fitzgerald’s mouth lowered.
“Oh my God,” Fitzgerald said, his voice a hushed whisper, though loud enough for everyone in the courtroom to hear.
