A Civil Action (15 page)

Back at his office, Cheeseman began making inquiries. None of his colleagues at Foley, Hoag & Eliot had heard of Schlichtmann. In itself, that was not surprising since Cheeseman’s firm rarely descended to the level of personal injury law. In Martindale-Hubble, the national law
directory, Cheeseman found that Schlichtmann was thirty-one years old, had gone to Cornell Law School, and had passed the bar exam barely four years ago. “He’s as green as he looks,” Cheeseman told one of his partners.

Cheeseman hoped to teach this young lawyer a painful lesson about dealing with companies like W. R. Grace. He decided first to remove the case from the state Superior Court to the federal court. W. R. Grace, with headquarters in New York and operations across the entire country, was entitled to federal jurisdiction. And the federal courts, Cheeseman believed, had a generally higher caliber of judges whose tolerance for personal injury cases of questionable merit was correspondingly lower.

Then Cheeseman wrote a letter advising Schlichtmann and Roisman to withdraw the lawsuit. “If you do not withdraw this action,” Cheeseman warned, “please be informed that we will take appropriate steps to seek a prompt dismissal of the action, and we will seek an award of attorneys’ fees and expenses against you and your associates.”

Cheeseman never got a response to his letter. Throughout the summer and into the fall, he heard nothing more about the Woburn case. He was feeling circumspectly pleased. He began to think maybe Schlichtmann had abandoned the case. Cheeseman had known that to happen before—a plaintiff’s lawyer hastily files a complaint in order to make the statute of limitations and only later begins to think better of his chances. Or perhaps the letter had scared Schlichtmann off.

It wasn’t until one morning in October that Cheeseman learned the case hadn’t gone away after all. He received from Schlichtmann a lengthy set of interrogatories, fifty-two pages of written questions to be answered under oath, concerning every aspect of the history and operations of the Woburn plant. Cheeseman was required, as all lawyers are, to answer the interrogatories within thirty days. But Cheeseman had no intention of doing that. Instead, he began preparing his next move, one he’d been thinking about since last spring.

It was a bold and creative stroke, exactly the sort of thing that had given Cheeseman his reputation for getting rid of difficult lawsuits. Among the many dozen rules of Civil Procedure was a little-known and rarely used provision—Rule 11—that had been conceived half a
century ago, in 1938. The rule had been intended to curb frivolous and irresponsible lawsuits, but it was so weakly worded and easy to circumvent that few lawyers ever wasted their time invoking it. Cheeseman had heard, however, that the Senate Judicial Conference was revising the rule to make it much stronger. Among other things, the proposed revisions would lay out harsh punishments—large fines, public reprimands, and even suspension—for lawyers who filed “sham and false” claims. The new Rule 11 had not been enacted yet, but that didn’t trouble Cheeseman. It had given him the idea, and as far as he was concerned, even the weak standard of the old Rule 11 applied to this case.

“It is certainly true that Rule 11 proceedings are, and should be, rare and serious matters,” wrote Cheeseman in his motion to dismiss the case. And then he proceeded to enumerate his reasons for invoking the rule. Most compelling of all was an article he’d found in the
Providence Journal
two weeks after the case had been filed. The article quoted Roisman’s research assistant as saying that there was “no firm proof of a connection between the families, the chemicals found in their wells, and the two companies. ‘It’s kind of a common-sense link,’ ” the assistant reportedly said. “ ‘It’s a fairly safe assumption that there is some kind of link.’ ”

Cheeseman planned to use this statement—it was an admission, pure and simple, that the lawyers for the Woburn families had no grounds for the allegations—as the centerpiece of his Rule 11 motion. He would buttress it by showing that there was nothing in the medical or scientific literature to suggest that TCE or perc could cause leukemia. Furthermore, both the Environmental Protection Agency and the Centers for Disease Control had clearly stated in their reports that “the contaminants found in Wells G and H are not known to cause leukemia.”

And finally, the EPA had never identified the Grace plant as a source of contamination. The agency had said that more research was necessary to find those responsible. If the EPA could not implicate Grace, then how could Schlichtmann and Roisman? To Cheeseman, it seemed obvious that his client had been selected because it was a six-billion-dollar corporation whose name was associated with the chemical industry.

As he worked on the Rule 11 motion, Cheeseman decided to call Neil Jacobs at Hale and Dorr to inform him of his plans. It made sense
to Cheeseman that Grace and Beatrice, co-defendants in the case, should work together whenever possible. Last summer, Cheeseman had spoken with Jacobs about removing the lawsuit to federal court. Jacobs had readily agreed to that, and now Cheeseman hoped that Jacobs and Facher would also join the Rule 11 motion. Facher’s name and stature, thought Cheeseman, would lend the motion even greater weight.

Over the phone, Jacobs sounded intrigued by Rule 11. He told Cheeseman he would discuss the idea with Facher and call him back.

3

Not all of the leukemia victims in Woburn were children. There was, for instance, Roland Gamache. He lived with his wife, Kathryn, and their two young children in the Pine Street neighborhood, one house away from the Zonas, a few blocks from Anne Anderson. In the summer of 1980, in his thirty-fifth year, Roland had gotten a small cut on his ankle while water-skiing at his summer home in New Hampshire. The wound bled for several hours. It was an annoyance, but it did not seem serious. A week later, back home in Woburn, he went to the dentist to have his teeth cleaned. The next morning he awoke and found blood in his mouth and on his pillow. After many tests at the New England Medical Center, doctors confirmed a diagnosis of chronic myelogenous leukemia.

The Gamaches, of course, had read in the newspapers about the east Woburn leukemia cluster. They knew that one of the Zona boys had died of leukemia. They also knew Patrick Toomey—he was an altar boy at their church. And their daughter, Amy, was in the same class at school as Kevin Kane. After Roland’s diagnosis, Kathryn asked his doctor if he could have gotten leukemia from the Woburn water. The doctor said she didn’t know. No one knew what caused leukemia.

In the two years since his diagnosis, Roland had felt fine. He was not on chemotherapy, and at times it was hard for him to believe that he had a fatal illness. His disease, however, was grave. In reply to Roland’s blunt question, his doctor told him he could probably expect to live only five to eight more years. Roland buried himself in work at the family-owned business, Severance Trucking, which was prospering.
The firm now had fifty vehicles and eighty employees. He hoped to live long enough to see his two children graduate from high school and go on to college.

The early meetings at Trinity Episcopal Church had occurred before Roland’s diagnosis. He knew nothing about the plans for a lawsuit until his neighbor, Joan Zona, knocked on his door one evening in April 1982, a month before Schlichtmann would file the complaint. She asked Roland if he would join the other families in the case. The lawyers, she told him, wanted to enlist as many Woburn leukemia victims as they could find. Roland said he would think about it. He and Kathryn talked it over, and they decided that if the lawsuit would stop big companies from polluting the environment, they should support it. Moreover, they had learned that TCE can cause skin rashes, and both their children had experienced chronic rashes during the years the wells had been opened. Roland didn’t want his children exposed to any more toxic chemicals, and that seemed like the best reason to join the lawsuit.

Roland and Kathryn went in to Boston to meet with Schlichtmann. They spent an entire day answering questions about themselves, signed all the necessary papers, and after that they gave the lawsuit little thought.

Some months later, in the fall of 1982, Roland was making plans to take his eight-year-old son and two other boys to a Bruins hockey game. He had two season tickets to the Bruins, and he needed two additional tickets for the outing. As it happened, the Riley tannery had a pair of season tickets adjacent to his own. Roland decided to call on Jack Riley and propose a trade—two Celtics basketball tickets for the hockey tickets. He had never met Riley before, and he did not realize that he and Riley were now antagonists at law.

When Roland phoned the tannery that afternoon, a secretary told him that Riley was out but she expected him back shortly, and she offered to take a message.

Riley saw the message from Roland Gamache on his desk when he returned from lunch. He recognized the name immediately—Gamache was one of the plaintiffs in the lawsuit. He found it incredible that Gamache would call him about hockey tickets when he was suing him. “Tell him to come over,” Riley said to his secretary. “I want to talk with him.”

Gamache arrived at the tannery late that afternoon. He extended his hand to Riley and smiled pleasantly at him. He explained the trade he wanted to make.

“I’m not a basketball fan,” said Riley coldly.

Gamache, taken aback by Riley’s demeanor, began to rise from his chair. “Well,” he began, “in that case …”

“I’m not a fan,” continued Riley, “but I’m sure somebody here is. Tell me this: Why are you asking me to trade tickets when you’re suing me?”

“Suing you?” said Gamache.

“Yeah.” Riley looked intently at Gamache. “Don’t you have leukemia?”

“Yes,” said Gamache, surprised that Riley would know.

“Well, what are you suing me for?”

“I don’t know what you’re talking about.”

“You’re one of the plaintiffs who is suing the John J. Riley Company, division of Beatrice Foods.”

Gamache was shocked. For a moment, he could think of nothing to say. He shifted uncomfortably in the chair. “Look,” he said to Riley, “I’m sorry, but maybe I should leave. I didn’t realize your tannery was part of the lawsuit. The lawyers were looking for people to join the case. All we want to do is stop the big chemical companies from dumping.”

“Look, Roland, I was born and brought up in this town,” said Riley. “I’ve been chairman of the school committee, on the planning board, on the board of a local bank. That goddamn land is my life, my blood, because that’s where I get my water. If you think I’m dumping toxic chemicals there, you’re crazy. You dump more when you change the oil in your car than I’ve dumped in a whole lifetime. I never dumped anything, and neither did Beatrice Foods. To accuse me and my company of giving people leukemia—I don’t like it one goddamn bit.”

Gamache was shaken by this outburst. Once again, he got up to leave, but Riley had not stopped talking. He was telling Gamache, his tone calmer now, that he had a case of leukemia in his own family, his sister’s boy who lived in Rhode Island. “And I’m not being fresh, but he never drank a drop of Woburn water. I’m well aware of the emotional problems caused by this sort of thing.”

“My biggest fear,” replied Gamache, “is that the city is going to reopen those wells. I never want my children exposed to that water again. That’s the reason I joined the lawsuit.”

“Those goddamn wells should never have been used in the first place,” said Riley. “That’s what Denny Maher, the guy who drilled them for the city, told me. The water’s only good for industrial purposes. I run a good clean operation, which is the reason I’m the only tannery left in the city.”

Then Riley handed the hockey tickets to Gamache. “You take these tickets. Someday I’ll call you for the Celtics tickets.”

After Gamache departed, Riley called Neil Jacobs to tell him about the incident. “The guy didn’t even know who he’s suing,” said Riley. “He said he did it because the lawyer got him into it.”

To Jacobs, this sounded like evidence that Schlichtmann had actively solicited people to join the lawsuit. Jacobs wondered if a charge of barratry—“the groundless stirring up of lawsuits”—could be made against Schlichtmann. The crime of barratry had an archaic ring and it was rarely invoked nowadays, although early in the century it had been used frequently against personal injury lawyers, then a new breed widely despised by the established bar. All the same, Jacobs thought that Gamache’s own words, as reported by Riley, seemed like an apt description of barratry.

Jacobs mentioned this to Facher, but Facher dismissed it with a wave of his hand. Jacobs also told Facher about Cheeseman’s plan to file a Rule 11 motion. Facher dismissed that gambit, too. It had little chance of success, he told Jacobs. “I’m a great believer in doing things once,” Facher liked to say. “If you’re going to knock a guy down, do it so he can’t get up again.”

Jacobs called Cheeseman to tell him that Facher had decided not to participate in the Rule 11 motion. But there was another matter, continued Jacobs, that Cheeseman might find worth pursuing. Jacobs described the meeting between Riley and Roland Gamache. As long as Cheeseman was thinking about Rule 11, said Jacobs, he might also consider a charge of barratry.

Cheeseman liked the idea. He was disappointed that Facher would not join the Rule 11 motion, but he himself intended to use every weapon he could find against Schlichtmann. And barratry seemed to fit in perfectly with the Rule 11 charge of filing a groundless lawsuit.

Cheeseman added a new paragraph, under the heading “Barratry,” to his Rule 11 motion. “We have highly specific and direct evidence to support this charge,” he wrote, “but at this time, it is based on a privileged communication from counsel for W. R. Grace’s co-defendant.” Since the information was, in theory, protected by the attorney-client privilege between Jacobs and Riley, Cheeseman could not reveal it to Schlichtmann. To make the charge stick, however, he would have to reveal it to the District Court judge. “If the Court will entertain an
in camera
affidavit regarding the communication,” wrote Cheeseman, “W. R. Grace will submit it for examination by the Court.”