A Civil Action (30 page)

Over a period of weeks, the Woburn families came to University Hospital to be tested by Feldman and his team of doctors. They sniffed vials of a dark liquid—it was coffee—and were asked to identify it, a test of olfaction, of the first cranial nerve. They stuck out their tongues on command and wagged them back and forth, a test of the twelfth cranial nerve. They listened to tuning forks. They had lights shined in their eyes. They had their skins pricked with a pin and then stroked with wool. They interpreted inkblots and tried to memorize long sequences of numbers. They took the Milner Facial Recognition test, the Wisconsin Card Sorting test, the Santa Anna Form Board test, the Albert Famous Faces test, the Benton Visual Retention test. In the electromyography lab, a darkened room where they reclined on a contoured chair, electrodes were attached to their faces, legs, ankles, and wrists. One of Feldman’s assistants administered mild electrical stimuli and measured the amplitude, latency, and speed of their reactions.

The results of this entire battery of tests were not as dramatic as Feldman had seen in cases of industrial exposure. But in his judgment, they were not normal. Most of the Woburn people had problems with
short-term memory and motor control. Many showed particular difficulty in tasks involving visual and spatial organization. And all but four ranked high on the scale for depression. Feldman deemed several of them to be “severely” depressed.

The most telling results came from the “blink reflex” tests, which measure in milliseconds how quickly a subject’s eyelids react to an electrical stimulus. This test measures the functioning of the trigeminal nerve, the nerve that TCE seems to affect most directly. Feldman found that the blink reflex of every family member, of both children and adults, was either slower than normal or fell barely within the normal range. Feldman was impressed not so much by the degree of individual impairment but by the uniformity of the group. He told Schlichtmann that the results were “highly significant,” that the odds of a group of twenty or more people all testing out at the slow end of normal were “a million to one.”

The doctor who had actually administered the blink reflex tests, an expert in electromyography, had known nothing about the history of the Woburn families. This doctor had been concerned about the number of slow blink reflexes she was seeing among this group. She had wondered about the accuracy of her TECA-4 machine. To test the machine, she’d rounded up seven technicians from the hospital corridors. Their blink reflexes had all been textbook-normal.

Schlichtmann heard this story for the first time during that doctor’s deposition. Feldman had not thought it important enough to mention, but it delighted Schlichtmann. He planned to use it during trial, to let a jury know that these tests had truly been impartial.

Almost every medical expert Schlichtmann talked to knew another expert that Schlichtmann might want to talk to. In this way, he heard of a biochemist named Beverly Paigen who had investigated the health problems of people living near Love Canal. Paigen worked out of a lab at Children’s Hospital in Oakland, California, and Schlichtmann flew out to see her on one of his medical reconnaissance trips. She told him the history of a case she’d investigated in the small town of Gray, Maine: twenty-three households, their tap water contaminated for five years by small amounts of TCE and perc—it sounded a lot like east Woburn. In the first year, said Paigen, the residents had complained of
rashes and burning eyes after showering. In the second year, rashes again and also headaches. By the third year, dizziness, fainting, nausea, and abdominal pains. Among the twenty-three households, five women had become pregnant during the years the wells were contaminated. Two of those women had miscarriages and two others had lost their babies within four months of birth. Only one child had survived.

“Any leukemias?” asked Schlichtmann.

“No,” said Paigen. “You can’t expect to find cancer in small populations. Leukemia is too rare a disease. You need large populations—thousands of people—to look for cancer.”

Like Schlichtmann’s Woburn experts, Paigen had initially thought the concentration of solvents in the Gray well water too small to cause dramatic health problems. But the problems were undeniably there. Paigen and another scientist, Robert Harris of Princeton University, developed a hypothesis. They proposed testing the air in a bathroom while the shower was running. They reasoned that TCE, which was highly volatile, would turn into a cloud of vapor in the hot, running water.

And indeed, the test showed that as water flowed out of the shower head at the rate of six gallons a minute, TCE did vaporize, accumulating in the confined space of a bathroom at concentrations two to three times higher than in the tap water.

This seemed to explain why Richard Toomey and several other Woburn people had complained of a burning sensation in their eyes while bathing. Schlichtmann had always assumed that the primary route of exposure had come from drinking the water. That would have meant that the families had consumed only the TCE contained in a quart or so of water each day. But every ten-minute shower they had taken would release to the air most of the TCE contained in sixty gallons of water, which would have found its way inside their bodies through inhalation.

Another expert, a toxicologist at the University of California at Berkeley, confirmed this finding. The toxicologist also told Schlichtmann about another important route of exposure—absorption through the skin. A new study in the
American Journal of Public Health
, explained the toxicologist, demonstrated that the amount of TCE absorbed during bathing, when warm water dilated the pores of the skin, equaled or surpassed the dose one would get from drinking contaminated
water. Absorption occurred most readily where the skin was sensitive—the inner thighs, the underarms—and was further increased if one had a sunburn, a cut, or a rash. And rashes had been common among the children of east Woburn.

The families would have gotten dosed with TCE in all three ways—by drinking the water, by breathing the vapor, and by absorbing the molecules. All this, it seemed, might account for the apparent discrepancy between the severity of their symptoms and the low levels of exposure. Those levels of exposure, it turned out, were not so low after all.

Schlichtmann learned around this time that the problem of TCE in drinking water was not limited to Woburn and Gray, Maine. In a document published by the U.S. Public Health Service, he read that “between 9 and 34 percent of the water supply sources in the United States may be contaminated with trichloroethylene.” Even more astounding, the same document estimated that if a population of ten million people were to breathe air containing one part per million of TCE over a lifetime, as many as 93,000 would be “at risk of developing cancer.” Schlichtmann vowed never again to take a drink of regular tap water.

He had come a long way. The case, he told himself, did not depend on the leukemia claim alone. He now had compelling evidence of chronic solvent poisoning. And even if the scientific evidence that TCE caused leukemia was weak, there could be no doubt now that exposure to the contaminated water had exacerbated the leukemias. The disease would not have run the same course. He could argue that more of the children would have survived if Grace and Beatrice had not contaminated the wells.

2

Schlichtmann’s medical experts now numbered twelve, enough doctors to staff a small but elite hospital. But most of these men and women did not know each other or the work each had done on the Woburn case. Schlichtmann decided to bring them all together for a conference, a round-table discussion. He rented the Grand Ballroom at the Ritz-Carlton and paid the plane fare for the experts from California, Chicago, and Washington, D.C. He paid for their hotel rooms at the
Ritz, their meals and, of course, their time. Most of them billed around two hundred dollars an hour. The conference began with dinner and drinks on a Friday evening and continued throughout Saturday. It went so well that Schlichtmann arranged for a second one, out in Chicago.

Not long after that meeting, Conway discovered that Saul Cohen, the cardiologist, had charged a hundred dollars an hour for the night he’d spent sleeping at the Chicago Hilton. This was only half of Cohen’s regular hourly rate, his sleeping rate, as it were. It infuriated Conway, but Schlichtmann said calmly, “No, he’s worth it.”

The steadily mounting bills alarmed Conway, but they didn’t surprise him. He had known that Schlichtmann would spend every cent the firm had on Woburn, and then borrow more. Three years ago, Conway had predicted that the case would become a “black hole.” Now, eight months into discovery, that prediction seemed on the verge of coming true. The nerve-conduction studies, the cardiology tests, physical exams, lab reports, and toxicology data jammed the filing cabinets. The large copying machine outside the war room ran from dawn until dusk, churning out copies of the experts’ reports and the families’ medical records. Deposition transcripts and files and reports seemed to multiply overnight and spread like a living organism, like a fungus, covering the conference-room table and spilling onto the floor and into the reception area.

From Woburn, where Schlichtmann had a team of engineers, geologists, and hydrogeologists digging holes and taking soil samples, came more reports. This fieldwork was crucial to the case—Schlichtmann had to prove that the chemicals from Grace and Beatrice had actually gotten to the wells—and it was very expensive. The engineers had drilled thirty new monitoring wells around the Aberjona marsh to plot the underground flow of contaminants. They had set off small explosives—seismic refraction devices—to map the bedrock contours of the area. They were combing every square foot of the Grace and Beatrice properties, followed by a video crew and a photographer whom Schlichtmann had hired to record every detail of their search. The videos alone would cost $19,021, a pittance compared with the estimated cost—more than a quarter of a million dollars—of the geological investigation.

Even the small items, such as the aerial photographs of east Woburn, along with an expert to interpret them, added up to almost fifteen
thousand dollars. And as the piles of deposition transcripts mounted, so, of course, did the costs. The stenographers charged $3.50 a page for “expedited” overnight delivery, which meant that Schlichtmann had to pay, for instance, $1,256 just for his daylong interrogation of Tom Barbas. And there were many lengthy depositions of expert witnesses yet to come.

By the fall of 1985 Schlichtmann, Conway & Crowley had spent almost a million dollars on the Woburn case. The costs could only increase as the trial date, now scheduled for February, five months away, drew closer. The firm needed more money. Schlichtmann would have to visit their banker. He never went to see the banker alone. He always took Conway and James Gordon, their financial adviser, along with him.

Gordon was a wizard with figures. The fingers of his right hand would fly over the keys of his calculator like a maestro playing a piano, ending in a delicate looping flourish as he tapped the “Total” key. Gordon had a special talent for calculating the future value of a sum of money, as if he’d been born with compound-interest tables in his head.

Schlichtmann had met Gordon soon after he had moved down to Boston from Newburyport. He had just won the Eaton case and he was about to settle the Piper Arrow case for almost a million dollars. But his financial affairs were in terrible disarray. Gordon and his partner, Mark Phillips, had recently started their own business, called the Economic Planning Group. They had opened an office on Newbury Street, next to the Ritz-Carlton, in the fashionable Back Bay section of Boston. They had sat in their new office, waiting for wealthy Bostonians in need of estate planning to arrive. They found that they had a lot of time on their hands. Then Schlichtmann showed up, asking them to straighten out his finances. He’d just bought his first Porsche. He took Gordon to the window and pointed down to Newbury Street at his new car. Gordon saw that it was double-parked. A meter maid stood next to it, writing out a ticket.

Two months later, Schlichtmann called on Gordon and Phillips again. An insurance company had offered him a complicated settlement, to be paid out over forty years, which they said was worth $1.5 million. It sounded like a lot, but Schlichtmann was wary. He didn’t have a good head for figures. He showed the offer to Gordon, who told
him that the insurance company was actually putting up only $330,000; the rest was interest earned on an annuity.

“He
understands
money,” Schlichtmann often said of Gordon. “It’s just something he was born with.”

From that moment on, Gordon and Phillips, who was himself a lawyer but no longer practiced, were involved in every one of Schlichtmann’s cases. They soon gave up the idea of estate planning and began specializing in settlement negotiations and case management. They helped Schlichtmann and Conway settle the Copley Hotel fire case. In the Carney case, Gordon arranged the financing and Phillips organized the two mock trials. They saw Schlichtmann and Conway almost every day and dined out with them three or four times a week. Conway rarely accepted a new case until he’d discussed it with Gordon and Phillips, and Schlichtmann never negotiated another settlement without them. The four men worked well together. They became a team, and they also became the best of friends. Gordon and Phillips kept their small office on Newbury Street, but they installed a direct telephone line to Schlichtmann’s office. And so, for all practical purposes, the Economic Planning Group now functioned as a part of Schlichtmann’s firm.

Phillips, who came from an old and wealthy line of Boston Brahmins, called Gordon and Schlichtmann “the two Russian Jews, the
machers,”
the ones who got things done. Gordon was three years younger than Schlichtmann, just as tall but soft and plump, without Schlichtmann’s lean face and lanky build. As a short, fat boy, he’d worked bagging groceries and carrying them out to customers’ cars at the Purity Supreme market in Brookline. He used to put his jacket over the sign that discouraged tipping, and then he’d spray his T-shirt with water to make it look as if he were sweating from his labors. He found that his ruse worked best on old ladies. He’d grown tall in adolescence, but his face was still round and boyish and he had a head of dark, unruly hair. He greatly admired Schlichtmann, and he often seemed to adopt Schlichtmann’s mannerisms, especially the cadences and rhythms of Schlichtmann’s speech. He tried to emulate what he saw as Schlichtmann’s charm, but to Gordon, all interactions in life required devious manipulation of one sort or another. He liked to think of himself as subtle, but most people readily saw through his blandishments. When he wanted something from Kathy Boyer, he’d start by saying,
“Gee, that’s a beautiful dress. You really look great this morning.” At first Kathy had felt complimented, but she quickly learned to be wary. All of Gordon’s compliments came at a cost. With the secretaries Gordon would use terms of endearment—“Honey” and “Sweetheart” and “Be a darling …”—that raised their hackles. Behind his back they’d roll their eyes.