7

The Deposition

1995

THAT spring, Duxbury was promoted to regional key account specialist. He was no longer a mere rep toting a black bag, but an RKAS charged with spearheading companywide efforts to land long-term accounts that could propel Ortho’s growth, through either money or influence. Sometimes, he quarterbacked with another RKAS from one of the two hundred or so J&J divisions. For example, Duxbury and a specialist from Janssen began making joint sales calls in the Northwest to promote Procrit and a pain reliever called Duragesic, a potent opioid skin patch. He and a rep from Longstreet’s new division, JJHCS, bid on a contract for a large HMO in the Northwest—and landed it. In his new post, the salesman gained a broader perspective. The fortunes of publicly traded health-care companies were rising, subsidized in part by government payouts, under-the-table gifts from firms like J&J, and the misery of a growing, aging population. Doctors’ offices, religious institutions, and nonprofits struggled to hold their own in the rush to privatization, and small players merged to help each other “fight the savage war between us and for-profit health corporations,” as one doctor put it.

Duxbury jumped into that pool, too, soliciting group purchasing organizations (GPOs) that represented dozens of small health-care providers. They leveraged their collective buying power to obtain the same discounted volume deals that corporate chains received. HMOs, POSs, PPOs, and other acronymic bodies fell into Duxbury’s basket too. One was Group Health Cooperative of Puget Sound, which had grown to encompass customers in several states. The HMO purchased millions of dollars’ worth of pills, stents, and gauze every year, many from J&J units, and Duxbury began cultivating that account. Working with a rep from Longstreet’s unit, he offered it a $20,000 “dividend” during its first year of a long-term Procrit contract. He liked knowing he could extend discounts, rebates, and grants not just from Ortho, but from JJHCS too.

To help him land the big fish, Duxbury’s managers shrank the size of his territory to thirty golden miles from Tacoma up to downtown Seattle. Here lay premier medical facilities. Best of all, his forecast rose by a mere 20 percent, instead of the 100 percent pole vault from the two prior years. His target was $3.6 million and to get there, he’d need to land a few jumbo accounts.

Duxbury met regularly with Barton, usually at a twenty-four-hour diner that prided itself on fresh baked pies and sausage gravy. One day, he pulled into the lot of the green-and-yellow restaurant twenty minutes before their appointment. He asked for a booth and was led to one near a speaker that piped in the narcotic sounds of Muzak. He ordered a pot of coffee and reviewed his notes. By the time Barton came through the door, Duxbury had lined up his strategic points.

First, he reported on the progress of his bigger accounts, including Group Health. Next, he brought Barton up to speed on his physicians. Then he voiced his desires.

“I’d like to focus more on oncology,” he started. He’d heard stories of how anemic chemotherapy patients, after a month of Procrit injections, felt revived. Some would rise from their beds and walk outside or drive to the market. He wanted to help those patients, and after he put down his coffee cup, he looked Barton in the eye.

“I’d rather spend ninety percent of my day trying to grow our oncology business than trying to convert large hospitals.”

“But you’re bringing in sales for Ortho, which is a big part of your job,” Barton replied. After all, he, too, had a forecast; he needed his top rep to help pull in the dollars.

“I understand,” Duxbury argued, “but part of our function is to make sure we’re advocates for patients too. I thought the whole idea was to educate oncologists about how their chemotherapy patients could benefit from epo. And I’m not doing that.”

Instead he felt bogged down by converting accounts. His figures showed that the hospitals in his territory purchased $3 million worth of epo a year, “but most of that is for dialysis patients.” He pulled out a memo he’d written that broke out those numbers by account. This memo was similar to all the other ones he’d prepared for his managers over the past two years. He handed it to Barton and said, “It’s in our best interest to get this stuff removed from our forecast for ethical reasons.” Clearing dialysis sales from their forecasts would also free them to grow oncology sales. “That’s where the future is,” he urged, and Barton nodded. Plus, Duxbury added, more growth means increased market share. “And that translates into bigger bonuses for everybody.”

Okay, okay, said Barton in surrender. He’d take Duxbury’s case to Raritan.

But Amick had seen these figures before, and Duxbury’s annual exhortations to lower his forecast were growing tiresome. As the new executive director of sales, Amick didn’t need a squeaky wheel hounding him about dialysis sales when he already had Amgen riding him about the same damn subject. As it was, Amgen’s attorneys were trying to turn the spillover arbitration into a more serious claim, and had just presented their latest pet peeve to the judge: Has Ortho deliberately and systematically stolen our dialysis patients? If so, it was time for a corporate-style divorce. After deliberating in the spring of 1995, the judge ordered Ortho to turn over all documents related to the topic. Amick complied by commanding Ortho’s staff to collect all of their memos, e-mails, weekly activity reports, and papers related to Charise Charles, its successor IV One, their owner Marty Nassif, and others.

As for Duxbury and his persistently obnoxious memos, they were ignored. Headquarters felt no need to wash renal sales from an individual forecast. That left Barton and Duxbury no choice but to continue converting accounts and selling to mixed-use customers. Barton delivered the message to Duxbury in a matter-of-fact fashion, but the rep could practically feel the lash of Amick’s reprimands. He agreed to drop the matter but couldn’t resist a parting shot: “It’s a constant source of frustration that I can’t do more with oncology.

“I think it’s a huge mistake.”

In May, Duxbury responded to Amick’s all-points bulletin for dialysis-related papers. He spent most of the day pawing through his files as the cat rubbed against his legs, meowing. He gathered whatever he could find, including his infamous memos, and express-mailed them to J&J’s attorneys in New York.

Then, in June, the inconceivable happened: Duxbury was subpoenaed. He was so distressed that he assumed he was being dragged into the Ortho-Amgen litigation. But had he read his summons carefully, he would have learned that a circuit court in Seminole County, Florida, was ordering him to testify in a case filed by Charise Charles against Amgen. Recalling the memos he had sent, he feared the worst. “This is too much,” he thought, and J&J attorneys agreed. They tried to quash the subpoena, claiming that the demand was “unduly burdensome and oppressive,” accusing Amgen of mounting “an impermissible fishing expedition into the affairs of a nonparty to this action” and of squeezing Duxbury for information to use against his employer in its long-running arbitration. The tug-of-war slopped into summer. Duxbury held out hope that maybe, just maybe, he’d escape testifying. Yet his summons had been clear—Fail not, at your peril—and Duxbury discussed the worst-case scenario with Barton.

He had sent the attorneys his messages to management that proved they had scouted the Northwest for Amgen’s dialysis sales. The anxious rep confessed that those papers might jeopardize Ortho and its product license.

“What happens if they depose me about all that?” he asked Barton.

“Don’t worry,” his boss replied. “You’re very valuable to the company and have the full support of management.”

AT lunch hour on a stifling August day, Duxbury stood on the sidewalk of a busy thoroughfare in Manhattan, facing a polished granite tower. The nearsighted salesman searched for the name of the law firm on the sharp-edged wall but missed it in the glare of the noonday sun. He figured he was at the right place, and the pale northwestern man walked into the lobby of Patterson Belknap Webb & Tyler. Known for its litigation muscle, this midsize firm had once been the stomping grounds for Rudy Giuliani, mayor of New York City; Edward Cox, son-in-law of President Richard M. Nixon; and Robert Morgenthau, longtime district attorney for New York County and the inspiration for Adam Schiff, the fictitious DA on TV’s Law & Order and, therefore, the image of the quintessential American DA. Patterson Belknap represented some of the world’s biggest blue-chip firms, including Coca-Cola, General Electric, and Johnson & Johnson. Although Duxbury had a right to enlist his own attorney, separate from Ortho’s counsel at Patterson Belknap, his employer had neglected to tell him that, he’d later claim. The rep waited anxiously in the lobby, until a young man in a conservative suit holding a walkie-talkie led him to the inner chambers, which turned out to be no short walk away. In his ten years of selling pharmaceuticals, Duxbury had toured factories that manufactured opiatelike narcotics and warehouses that stocked millions of dollars’ worth of choice drugs. But he had never witnessed the level of security that he found inside this high-toned office. Duxbury was led through a maze of doors, up elevators, and down hallways, each of which required a pass card and a secret code to enter. He tried to make small talk with his escort, but the man was as friendly as Plexiglas.

If only Duxbury’s career were as bulletproof as this place, he’d come out okay.

Finally, he was deposited in a large, elegant conference room. That’s when Duxbury received another surprise: Charise Charles had sent its attorney, Jerry Linscott, from the Orlando office of Baker Hostetler, to examine him. The balding, white-bearded man seemed pleasant enough, but his presence puzzled the rep. “I thought this was a termination suit between Amgen and J and J,” Duxbury said. No one present was inclined to tell the rep about the details of this case or its relation to Ortho, not even Duxbury’s (and Ortho’s) attorney, Thomas DeRosa. But the mail-order wholesaler Charise Charles was suing Amgen for halting its Epogen supply—which Amgen had done after it had caught Charise helping Ortho violate the PLA. To defend itself, Amgen had pulled in some Ortho reps who had sold Procrit to dialysis centers, such as Duxbury. But Ortho wasn’t named in this suit.

The man who would conduct most of the deposing was Paul Pizzo, a litigator from one of Florida’s oldest firms, Fowler, White, Gillen, Boggs, Villareal & Banker. With his ruddy face and bushy black eyebrows, the Tampa native looked as if he’d rather be anywhere but here on this sticky Friday afternoon. As Amgen’s attorney, he was responsible for steering the Ortho rep into muddy waters, and he began by asking a few innocuous questions. Like a good soldier, Duxbury gave the man his name, title, and address along with the names of his hospital accounts. The two discussed DDD figures and various other methods for measuring sales. Then Pizzo pounced.

“Is it among your goals to convert hospitals to [use] Procrit?”

“It depends,” Duxbury said warily.

Ortho’s attorney objected. Pizzo struggled to rephrase the question when the witness rescued him. “Are you asking me, ‘Are there times when I’ve converted accounts . . . that I know [had] dialysis business?’”

“Yes,” said his prosecutor.

Having asked the question correctly, Duxbury then answered it: “Yes.”

The interplay continued for the first hour. When asked if he’d ever converted an institution, the rep named two large hospitals as examples. He looked into the videotape camera and added that he hadn’t set out to steal customers from Amgen but had little choice. “My concern is that I get business that belongs to me.” If I absorb dialysis sales, so be it. “If I weren’t doing this, Amgen would be taking my business.”

The cardinal rule for any witness on the stand is to answer prosecutors with a simple yes or no. Never volunteer information. Yet, oddly enough, J&J’s high-priced attorneys did not reveal these rules to their witness, nor had they bothered to prepare him. As a result, Duxbury behaved like a chameleon, changing at whim. When pressed about Ortho’s policy on conversions, he grew restrained and self-deprecating: “I’m just a lonely grunt in the whole system. I couldn’t speak for [Ortho] in any legitimate way.” When treated kindly, he turned garrulous and found it hard to turn off his switch. In the presence of a professional clawing for incriminating evidence, Duxbury volunteered information he wasn’t even asked for. At one point, he disarmed the room by confessing a venial sin: “I’m not known for being great with paperwork.” When Pizzo started fishing for tidbits about Ortho’s alleged breach, the salesman gallantly defended management. Then, a minute later, he pulled out a noose. “If you read the documents that I provided, there is at least one letter complaining explicitly about how much dialysis business was included in my forecast.”

Pizzo quickly took a break to review the pernicious letter. When he returned, he lobbed his missile at Duxbury’s sale to Dr. John Boykin. “In the course of your meeting, you discussed the fact that Mid-Columbia Kidney Center—”

Duxbury brusquely cut him off: “I didn’t discuss that.”

Pizzo stopped. “You did not discuss that?”

“Are you implying that I brought it up?”

Pizzo had to start over: Did Boykin ask if he’d get a rebate for buying Procrit?

Duxbury confirmed that was true.

“So, it came up?”

“Yes, it came up.” But the doctor brought it up, not me.

Pizzo then asked the same question in a different way. But before Duxbury could answer, J&J’s attorney objected. And so it went in herky-jerky fashion for the rest of the afternoon: lunge, protest, retreat. The more precise Duxbury tried to be, the more Pizzo rephrased his query, adding a word or nuance. Duxbury began to sweat. The questions grew so tricky that J&J’s attorney, DeRosa, admonished Pizzo, saying, “It’d be better if you asked him a question instead of restating his testimony.” When Amgen’s lawyer asked the rep for the fifth time if he had told Boykin he’d get a rebate, Duxbury exploded.

“No, no, no, no, no,” he shouted. “You’re not listening to me!” He glared at the roomful of attorneys.

Pizzo stepped back.

Duxbury reined in his anger, but sarcasm dripped through. “Is there a part that’s not clear?” he asked. Neither Pizzo, nor Linscott, nor DeRosa responded to his question.

“I don’t like this game,” Duxbury thought.

Pizzo recovered enough to continue poking around the Boykin sale, so much so that Duxbury tried to downplay the event. Yet Pizzo would not let it go, and Duxbury grew frightened. “Why is he making such a big deal out of a ten-thousand-dollar sale?” he thought. At one point, the rep objected, “This is all out of proportion.” When the terrierlike lawyer bore down on the rep, Duxbury threw up his hands. “I don’t know what you want!”

Finally, around seven P.M., the interrogators allowed their prey to walk out of the claustrophobic conference room. Standing outside on the Avenue of the Americas, Duxbury breathed in the muggy air; it smelled faintly of steaming garbage and grilled hot dogs. He lit a cigarette. Then he tried to reconcile the day’s proceedings with his grumbling intuition.

Nearly half of the afternoon had been spent nitpicking the details of a penny-ante deal with a nephrologist in eastern Washington. No one had inquired about the much bigger conversions at Memorial Clinic, St. Joseph Hospital, or any of Duxbury’s other accounts. “If I was sitting in the Amgen chair, I would have asked about the other deals.” He couldn’t shake the feeling that most of his documents had escaped notice and considered why that would be. Perhaps the documents he’d handed over weren’t so incriminating after all; or maybe Amgen was looking for something bigger than what he could deliver. There was the remote possibility that Ortho’s attorneys had withheld some of his papers, but such prestigious lawyers wouldn’t dare risk a sanction.

Duxbury’s reverie was broken by the sound of laughter pouring out of the cafés and bars up the street. He imagined Wall Street brokers, who pump stocks, had just hoodwinked their banker friends, who paper over losses. Maybe the corporate attorneys had been setting him up too. After all, this was Manhattan, the heart of American capitalism, where shades of gray proliferate on their very own color wheel. His unease continued to gnaw at him like an animal sensing a steel trap. Then, he hit upon a Tigger-like idea. Perhaps the real reason no one had asked about his documents was because his career really was bulletproof. He chewed on that theory for a minute and decided to go with it. Stubbing out his cigarette, the salesman bounded up the street.

BACK in Seattle, Duxbury summarized the uncomfortable proceedings to Michael Barton. “I don’t think my testimony was damaging,” he said. “I answered the questions honestly while using as few words as possible, and while putting Ortho in the best light possible.” He didn’t complain about being placed in the insufferable position of having to tell the truth, protect his firm, and save his job—all at the same time.

He also told McClellan about the experience. But his friend had already heard the highlights. “You told Amgen’s attorneys exactly what’s been going on in your neck of the woods.” He warned Duxbury to be careful. “You’re a company liability now, Mark.”

Duxbury brushed away his friend’s concerns. “It’s okay, Dean.” He reminded McClellan that Barton had assured him that Raritan backed him completely. Then the Seattle salesman went on to re-create for McClellan the focal points of his six-hour deposition. Somehow, with the passage of time and distance, Duxbury’s nail-biting ordeal had become an entertaining tour de force. He had sliced the prosecutor’s arguments, pummeled his assumptions, and lanced his case with a few well-executed verbal glissandos. “I told them Amgen was poaching our nondialysis business too.” You should have seen me.

Duxbury convinced himself that his deposition had been harmless and that his career truly was unassailable. Such wishful thinking was one way to keep his sales and spirits aloft. But it blinded him to the forces that were marshaling against him.

The first hint of attack appeared in New Jersey. As a member of Ortho’s Incentive Compensation Review Task Force, Duxbury flew to Raritan for a weeklong meeting that included Amick, Pearson, and others. The session quickly deteriorated into a strident discussion of bonuses. One faction wanted to keep the “pay-for-performance” structure while another argued that the pool be divided among more people. Duxbury didn’t like that idea. “It’s a twenty-eighty world,” he said. Twenty percent of the people do eighty percent of the work. “Why would I break my back to achieve a tough forecast if I’m not going to earn at least the same money I did last year?

“That makes no sense.”

One manager preferred rewarding more, albeit less successful, people.

Okay, said Duxbury. “But socialism doesn’t work. If you do this there’ll be an exodus of top sales performers.”

But Pearson defended the new concept. “This plan will incentivize more performers, while still giving top people a sizable bonus.” He urged Duxbury to adopt a “teamlike” approach. But the RKAS retorted that he feared for “the People’s Republic of Ortho Biotech.” At the end of the weeklong meeting, Amick announced a dilution of the bonus pool. It seemed to Duxbury as if the outcome of the task force had been preordained, and he returned to Seattle perturbed that he had wasted precious sales time.

Later, when Pearson was promoted to national field sales manager, the impolitic salesman called to congratulate his new supervisor. “No hard feelings, I hope,” he said.

“No,” Pearson replied. But the chill in his voice said otherwise.

Duxbury worried more about his list of two hundred doctors, fourteen institutions, and dozens of pharmacies. One day he called on a new client, the Western Washington Cancer Treatment Center, arriving with an oncology nurse educator named Patricia Buchsel. Her job was to help salespeople by speaking authoritatively about Procrit with other registered nurses. A new hire, she was obviously nervous, so Duxbury tried to put her at ease by giving her some background. The center was a privately held facility that had been built around a magnificent maple tree whose colors changed with the seasons. “Cancer patients can look at it while they’re getting their chemo,” he said. When they entered the space age–style lobby, he introduced himself to the receptionist. But once she heard the name Ortho, she ignored them. Duxbury asked to see a nurse, but one never arrived. He asked to speak with the administrator, and this time a burly man came out. Before Duxbury could offer his hand, the man rudely showed him the door.

Outside, Buchsel was flabbergasted. “They were openly hostile to us.”

“That’s never happened to me before,” he said. “I’m sorry.”

On their way to the next appointment, Duxbury played a bebop music tape, which she didn’t like, and asked about her knowledge of military history, which was zilch. They pulled into another premier facility and Duxbury talked with a snobbish doctor who liked participating in clinical trials funded by drugmakers. Duxbury was polite, but Buchsel thought he was too casual. After a few more visits, she grew uncomfortable with his quirky personality and “different” interests. She went home that night worried that she’d made a mistake joining Ortho.

On their next outing, they called on Tacoma General Hospital’s Cancer Center. There, Buchsel witnessed the warm connection Duxbury had with the staff. She marveled how quickly and successfully he enrolled some of its oncology patients in an Ortho-funded study about Procrit and cancer-related fatigue. From then on, she fell into a pleasant, productive work relationship with the rep and loosened up to the point where she considered Duxbury a “pal.”

Yet someone would soon twist their relationship into something more.