“Got it,” he says finally.
“Good. Now read it, please.”
He reads, squinting and frowning as if it’s truly tedious. When he’s finished, he forces a smile. “Okay.”
“What’s the purpose of that clause?”
“It excludes certain surgical procedures from the coverage.”
“Specifically?”
“Specifically all transplants.”
“Is bone marrow listed as an exclusion?”
“Yes. Bone marrow is listed.”
I approach the witness and hand him a copy of the Black policy. I ask him to read a certain section. The minuscule print strains his eyes again, but he valiantly plows through it.
“What does this policy exclude in the way of transplants?”
“All major organs; kidney, liver, heart, lungs, eyes, they’re all listed here.”
“What about bone marrow?”
“It’s not listed.”
“So it’s not specifically excluded?”
“That’s correct.”
“When was this lawsuit filed, Mr. Keeley? Do you remember?”
He glances at Drummond, who of course cannot be of any assistance at this moment. “During the middle of last summer, as I recall. Could it be June?”
“Yes sir,” I say. “It was June. Do you know when the language of the policy was changed to include the exclusion of bone marrow transplants?”
“No. I do not. I’m not involved in the writing of the policies.”
“Who writes your policies? Who creates all this fine print?”
“It’s done in the legal department.”
“I see. Would it be safe to say that the policy was changed sometime after this lawsuit was filed?”
He analyzes me for a moment, then says, “No. It might have been changed before the suit was filed.”
“Was it changed after the claim was filed, in August of 1991?”
“I don’t know.”
His answer sounds suspicious. Either he’s not paying attention to his company, or he’s lying. It really makes no difference to me. I have what I want. I can argue to the jury that this new language is clear evidence that there was no intent to exclude bone marrow from the Blacks’ policy. They excluded everything else, and they exclude everything now, so they got nailed by their own language.
I have only one quick matter left for Keeley. “Do you have a copy of the agreement Jackie Lemancyzk signed on the day she was fired?”
“No.”
“Have you ever seen this agreement?”
“No.”
“Did you authorize the payment of ten thousand dollars in cash to Jackie Lemancyzk?”
“No. She’s lying about that.”
“Lying?”
“That’s what I said.”
“What about Everett Lufkin? Did he lie to the jury about the claims manual?”
Keeley starts to say something, then catches himself. No answer will benefit him at this point. The jurors know full well that Lufkin lied to them, so he can’t tell the jurors they really didn’t hear what they really heard. And he certainly can’t admit that one of his vice presidents lied to the jury.
I didn’t plan this question, it just happened. “I asked you a question, Mr. Keeley. Did Everett Lufkin lie to this jury about the claims manual?”
“I don’t think I have to answer that question.”
“Answer the question,” Kipler says sternly.
There’s a painful pause as Keeley glares at me. The courtroom is silent. Every single juror is watching him and waiting. The truth is obvious to all, and so I decide to be the nice guy.
“Can’t answer it, can you, because you can’t admit a vice president of your company lied to this jury?”
“Objection.”
“Sustained.”
“No further questions.”
“No direct at this time, Your Honor,” Drummond says. Evidently, he wants the dust to settle before he brings these guys back during the defense. Right now, Drummond wants time and distance between Jackie Lemancyzk and our jury.
Kermit Aldy, the Vice President for Underwriting, is my next to last witness. At this point, I really don’t need his testimony, but I need to fill some time. It’s two-thirty on the second day of the trial, and I’ll easily finish this afternoon. I want the jury to go home thinking about two people, Jackie Lemancyzk and Donny Ray Black.
Aldy is scared and short with his words, afraid to say much more than is absolutely necessary. I don’t know if he slept with Jackie, but right now everybody from Great Benefit is a suspect. I sense the jury feels this way too.
We zip through enough background to suffice. Underwriting is so horribly boring I’m determined to provide only the barest of details for the jury. Aldy is also boring and thus up to the task. I don’t want to lose the jury, so I go fast.
Then, it’s time for the fun stuff. I hand him the underwriting manual that was given to me during discovery. It’s in a green binder, and looks very much like the claims manual. Neither Aldy nor Drummond nor anyone else knows if I also have in my possession another copy of the underwriting manual, this one fully equipped with a Section U.
He looks at it as if he’s never seen it before, but identifies it when I ask him to. Everybody knows the next question.
“Is this a complete manual?”
He flips through it slowly, takes his time. He obviously has had the benefit of Lufkin’s experience yesterday. If he says it’s complete, and if I whip out the copy I borrowed from Cooper Jackson, then he’s dead. If he admits some thing’s missing, then he’ll pay a price. I’m betting that Drummond has opted for the latter.
“Well, let’s see. It looks complete, but, no, wait a minute. There’s a section missing in the back.”
“Might that be Section U?” I ask, incredulous.
“I think so, yes.”
I pretend to be amazed. “Why in the world would anyone want to remove Section U from this manual?”
“I don’t know.”
“Do you know who removed it?”
“No.”
“Of course not. Who selected this particular copy to be delivered to me?”
“I really don’t remember.”
“But it’s obvious Section U was removed before it was given to me?”
“It’s not here, if that’s what you’re after.”
“I’m after the truth, Mr. Aldy. Please help me. Was Section U removed before this manual was given to me?”
“Apparently so.”
“Does that mean yes?”
“Yes. The section was removed.”
“Would you agree that the underwriting manual is very important to the operations of your department?”
“Of course.”
“So you’re obviously very familiar with it?”
“Yes.”
“So it would be easy for you to summarize the basics of Section U for the jury, wouldn’t it?”
“Oh, I don’t know. It’s been a while since I looked at it.”
He still doesn’t know if I have a copy of Section U from the underwriting manual. “Why don’t you try? Just give the jury a brief rundown on what’s in Section U.”
He thinks for a moment, then explains that the section deals with a system of checks and balances between claims and underwriting. Both departments are supposed to monitor certain claims. It requires a good deal of paperwork to ensure a claim is handled properly. He rambles, picks up a little confidence, and since I have yet to produce a copy of Section U, I think he starts to believe I don’t have one.
“So the purpose of Section U is to guarantee that each claim is handled in a proper manner.”
“Yes.”
I reach under the table, pull out the manual and walk to the witness stand. “Then let’s explain it to the jury,” I say, handing him the complete manual. He sinks a bit. Drummond tries to maintain a confident bearing, but it’s impossible.