Antecedentes Locales

By now, Benita Pledger had mostly given up trying to figure out what all the lawyers’ arguments with the judge were about. She only knew that they ate up long stretches of time before the start of each day’s proceedings and during the breaks when the jury had been excused.

As usual, on the morning of February 3, just before a doctor who had examined Austin was to testify as an expert for the family, there was a heated discussion among the lawyers and the judge that Benita did not fully grasp. When it ended, one of her lawyers came over and whispered, “How fast can you get Austin on a plane with Phillip [his father] to come up here? We need to have a new doctor examine him.”

Argument Over Substitution of Doctor Feb. 3, 2015 (p. 5, 8, 121) Diane Sullivan had just sprung an objectionon Kline and Judge Djerassi that belonged in the hardball litigators’ hall of fame.

More than a year before, Sheller and Kline had retained an endocrinologist, the type of doctor who diagnoses gynecomastia, as an expert witness. Sullivan’s team had taken his deposition in April 2014, more than nine months before the trial had started.

But on the eve of his scheduled testimony, the Johnson & Johnson lawyers had informed their opponents that Sullivan was going to move to disqualify the doctor. Her objection had nothing to do with his qualifications. Rather, it was because he lived and was licensed in California, not Alabama.

As the J&J lawyers explained to their stunned opponents, under an obscure Alabama statute— which, it later became clear, Sullivan and her team had known about for nearly a year—the doctor had arguably committed a felony, because examining Austin in Alabama in preparation for his testimony could be considered practicing medicine in Alabama without a state license.

When Kline had told the doctor (described by Kline as “a semi-retired practitioner”) that night that the opposing lawyers might report him for committing a felony, he had refused to testify. Kline was outraged, but there was little he could do except promise the judge that he would find another doctor who would examine Austin in a matter of days, so as not to delay the trial too much.

However, Sullivan now objected to what she called Kline’s “last minute” pulling of a witness and substitution of a new doctor in his place. She insisted that Kline should now have no expert witness, meaning he would have no way to establish that Austin had gynecomastia, let alone present evidence that Risperdal had caused it.

“The plaintiff sending an expert to Alabama when he was not licensed under applicable Alabama law is not extenuating circumstances,” Sullivan declared. And allowing a last-minute substitute would be “enormously prejudicial.” Sullivan also protested that the new doctor Kline was offering up—the only one he could find so quickly—was a plastic surgeon, not an

endocrinologist.

When the judge overruled her objections, she demanded a mistrial, which would mean she would get to start the trial over.

“It’s the first time I ever saw a lawyer try anything like that,” Judge Djerassi told me.

“My word,” Kline replied, using a phrase he would deploy often in the trial to express a mix of outrage and surprise. “We have been at this for years. And they knew about this issue, as the Court knows, a year ago and they are the ones who sat on it in ambush.”

The judge rejected Sullivan’s protests, making no secret of his disapproval of the surprise attack, especially one that had harassed a bystander-witness.

“It’s the first time I ever saw a lawyer try anything like that,” Judge Djerassi told me. When Sullivan later ridiculed the plastic surgeon’s credentials in her closing argument and pointed out to the jury that the plaintiffs had not been able to find an endocrinologist, Kline immediately objected.

This time, the judge lost his cool: “The conduct by the defense on that entire episode was very, very disturbing,” he told Sullivan. “I found there was … character assassination. I would not permit him to come and testify with you screaming he could go to jail for ten years,” he added, implying that he would explain the situation to the jury during his jury instructions. Which he did: At the beginning of his charge to the jury, he told them that “it was suggested to you again by Ms. Sullivan that the plaintiff could not produce an endocrinologist and suggested that they

could not because they could not. You are instructed to disregard that line of argument in its entirety as it is not accurate and it’s disingenuous based on matters of law that occurred outside of your presence.”

“In 37 years practicing law I never heard a judge say something like that to a jury about another lawyer’s closing argument,” Kline says. (Sullivan refused repeated requests to comment about the trial.)

Nonetheless, Austin Pledger had to be examined again, and quickly. “My husband drove to the airport, and they got on a plane that night,” Benita recalls. “It was really upsetting. … You know how Austin can’t deal with changes in his routine.”

What was still more upsetting to her was how Sullivan mocked the plastic surgeon as a “penile enlargement” specialist when he testified after examining Austin.

“She said penis so many times,” Benita Pledger recalls. “They were trying to make a joke out of this.”

It was true that Dr. Mark Solomon’s website bragged of his talents in using a “penile stretching device,” and “grafting procedures” that “widen the penis.” But Solomon also practiced across the spectrum of plastic surgery needs, including performing reconstructive surgery for free at

Philadelphia Shriners Hospitals for Children, and he boasted an array of academic credentials and hospital affiliations.

Once on the witness stand, despite Sullivan’s repeated cross-examination of his penile surgery skills, Solomon also proved to be a by-the-books diagnostician of breast tissue.

“She said penis so many times,” Benita Pledger recalls, “that it was almost funny. But I didn’t think it was funny. They were trying to make a joke of this.”

“The lawyer was too harsh with the penile doctor,” recalls the forewoman. “She badgered him, insulted him. It was too much. … He was a real doctor.”

CHAPTER 14

THE GOOD