A Civil Action (38 page)

This was a tricky question to answer. If Coffin answered yes, the rational, sane reply, then Schlichtmann would turn this admission to his benefit. He would, in effect, turn Coffin into his own witness. And if Coffin answered no, he would make the doctor look biased and untrustworthy.

Coffin considered the question for a moment. Then he said, “I am not an expert in domestic water supplies, so I don’t think I can answer that question.”

This was the rehearsed answer that Schlichtmann had expected. “Well,” continued Schlichtmann, “based on your study of the toxicological effects of trichloroethylene, do you consider that it poses a potential health hazard and should not be allowed in a community’s domestic water supply?”

“The question is very broad. I’m not an expert on water supplies.”

“Are you an expert on trichloroethylene?”

“I’ve reviewed the literature on trichloroethylene relative to its carcinogenesis.”

“Based on your review, does trichloroethylene pose a potential health hazard? And for that reason, should it be not allowed in a community water supply?”

Coffin finally relented. “I don’t believe any foreign material of that sort should be allowed in a community’s water supply.”

Schlichtmann had him now. “Why?” he asked.

Prolonged silence. Schlichtmann looked intently at Coffin. At last Coffin said, “You are now getting into an area which is my personal opinion rather than my expert opinion. My personal opinion is that foreign compounds do not belong in the domestic water.”

“Why?” asked Schlichtmann again.

“Where does one draw the line?” said Coffin. “If one allows one foreign compound into a public water supply, they would be allowing others. But this is getting very far afield from areas of my expertise. I don’t feel comfortable talking along these lines.”

Schlichtmann believed that most of the experts hired by the defense were able, even distinguished, doctors who simply happened to disagree with his own able, distinguished doctors. “Most of their experts concede that TCE can cause cardiac, neurological, and immunological problems,” said Schlichtmann late one evening, after taking five depositions in one day. “The only difference between their experts and my experts is that theirs don’t think there was enough TCE in the water to cause problems.”

Schlichtmann also found among the defense experts some whom he regarded as charlatans, much in the way that Cheeseman regarded Levin. One doctor told of a study he’d done with workers exposed to TCE. “There was, in fact, less deaths from cancer than one would have expected,” this doctor explained at his deposition. “There were fewer deaths from heart disease. I would begin to entertain a serious hypothesis that trichloroethylene in these quantities, rather than being harmful, is quite beneficial with respect to heart disease.”

Conway had deposed this witness while Schlichtmann was busy at another deposition. The study, the doctor admitted under questioning from Conway, had been financed by the very same company that had exposed its workers to the solvent.

That evening, Schlichtmann asked Conway how the deposition had gone.

“He says TCE is good for you,” said Conway.

7

Out in Woburn, the Environmental Protection Agency began its long-delayed test of the Aberjona aquifer. Wells G and H were cleaned and oiled, and then started up for the first time in almost seven years. The test was designed to re-create groundwater conditions during the 1960s and 1970s, when the wells had pumped water into the city mains. Although it was widely believed that W. R. Grace and Beatrice Foods were responsible for contaminating the aquifer, this belief was based largely on circumstantial evidence and unproven theory. The EPA felt it necessary to test that theory in the field before filing its own lawsuit demanding that Grace and Beatrice pay the cleanup costs.

Schlichtmann had eagerly awaited the EPA test. He needed the results for his own case. He had no doubt that it would prove the two companies were responsible for contaminating the wells. On a frigid morning in early December, the day the wells were activated, he was out on the Aberjona marsh along with an army of a hundred geologists, engineers, hydrologists, well diggers, and lawyers from the EPA, the U.S. Geological Survey, and the environmental consulting firms hired by each of the three parties to the lawsuit.

The test was scheduled to last an entire month, until January. The workers had to keep track of the fluctuations of the groundwater in more than a hundred small monitoring wells that had been drilled into the aquifer. They set up shanties to shelter themselves from the snow and freezing rain during the cold winter days. Gordon organized a coffee brigade for these people, and extended his magnanimity even to the Grace and Beatrice consultants. He drove out to the Aberjona in the gray winter dawns, carrying a hundred cartons of coffee and two hundred doughnuts in the trunk of his Mercedes. From their stations at the test wells on the marsh, men and women bundled in parkas, looking like refugees from an Arctic expedition, would tramp across the wooden planks that spanned the ice-covered grassy tussocks and assemble at the trunk of the Mercedes for Gordon’s coffee and doughnuts. Gordon would return in the afternoon, the trunk filled this time with sandwiches and more coffee.

When an electrical cable connecting a trailer full of computer equipment was severed two days into the pumping test, it was Gordon who, suspecting sabotage, arranged for security. He hired the entire Woburn police force to patrol the area in shifts, during their off-duty hours. When a critical device, a capacitator, broke down on a Saturday and the EPA said it would take at least a week to replace it, Gordon had the part flown in from Denver on Sunday, on a specially leased jet. In his spare moments he stood on an outcropping of bedrock near the Beatrice property, surveying the icy scene with binoculars, keeping in touch with the EPA and Schlichtmann’s engineers by walkie-talkie.

The pump test was costly for everyone concerned. But for Schlichtmann, at least, the results were worth the money. His specialist in groundwater, a Princeton hydrogeologist of great renown in his field, studied the data and reported that the pump test had confirmed
Schlichtmann’s fondest suspicion—Wells G and H were contaminated by groundwater coming from the Beatrice and Grace properties.

One evening in late December, after a day on the marsh, Gordon sat in his office and calculated how much money the firm was spending on Woburn each day. Only three months ago, he’d estimated that it would cost a quarter of a million dollars for the pump test and the groundwater consultants. The actual costs were now more than twice that, and the work still was not done.

Gordon spent the entire weekend in his office, adding up the bills. By the time he finished on Monday morning, he had a precise total of the cost to date: $1,803,195.84. Interest alone on the debt to the Bank of Boston and other creditors amounted to several hundred dollars a day. They were now half a million dollars over the budget he and Schlichtmann had given Uncle Pete three months ago. And the trial was still several weeks away.

Gordon figured they could make it until the trial. Once they began selecting a jury, anything could happen. They might settle with Beatrice, perhaps even Grace. And if that didn’t happen, he’d find a way to get through the trial, even though the creditors might be banging on the courtroom doors.

The only thing they could not afford, Gordon figured, was a postponement of the trial. He could not imagine any way of financing Schlichtmann through a long delay.

Facher’s Plea

1

Late at night Facher would sit in his war room, in the cavernous space on the twenty-first floor that Hale and Dorr used for storage. From his chair at the wooden table in the center of the room, in a pool of lamplight, he could look out the windows and into the darkened offices of the skyscraper across the street. He had just turned sixty. One of his cats, his only and beloved companions at home, was dying of diabetes. “Life is so short,” he said not long after his birthday. “It seems foolish to devote it to motions to dismiss, but that’s what I’ve done.”

Sometimes he’d leave the war room and wander the dimly lit corridors of the firm, going from floor to floor past the dark, deserted offices. He’d stop in one of the kitchenettes and peer in the refrigerator, looking for something to eat. If he saw a pile of dirty dishes and coffee cups, he might roll up his sleeves, fill the sink with soapy water, and begin washing. “That’s a good day’s work,” he’d say when he finished.

One of Cheeseman’s partners had called Facher last fall and explained a plan to hire Litigation Sciences, a firm that specialized in jury research. Was Facher interested in sharing the costs? Against his
better judgment, Facher had reluctantly agreed to contribute twenty-five thousand dollars for a telephone poll of five hundred potential jurors in the Boston area. Facher personally regarded “scientific” jury research with skepticism, although the field had become quite fashionable among many trial lawyers and his own partners at Hale and Dorr. A month later, Facher went to a meeting at Cheeseman’s firm, where he received several pie charts based on the telephone interviews. The pie charts told him that he could not hope to win the Woburn case. Eighty-two percent—409 of the 500 people interviewed—felt that large corporations should, as a general rule, be held responsible for damages in toxic waste cases. Among those people who knew of the Woburn case from newspaper articles or the television news, 77 percent had already decided that both Grace and Beatrice were responsible for the leukemia deaths. Given responses like these, the jury research expert told the lawyers, the best the two defendants could hope for was simply to “contain” the damages.

“I didn’t need to pay twenty-five thousand dollars to be told that,” Facher grumbled.

A few weeks later, Cheeseman’s partner had called again, this time to inform Facher that they planned to stage a mock trial and watch several panels of “jurors”—people selected at random off the street—deliberate from behind one-way mirrors. Facher had refused to contribute. “I wouldn’t pay another nickel after those pie charts,” he said. “I think it’s pissing money away.” Facher later estimated that the jury research had cost Cheeseman’s client at least a hundred thousand dollars. “The gold-plated defense,” Facher called it in disgust. “Some clients think the more money you spend, the harder you’re working.”

Facher heard that one of the mock jury panels had awarded the Woburn families enormous sums of money, as much as two hundred million, according to one account. Facher shrugged. He didn’t believe in mock jurors anyway.

In three weeks they would begin selecting a real jury. Facher had never expected Schlichtmann to get this far. He opened a cabinet drawer and saw thick files containing the results of Colvin’s blood tests. He took out a file, looked at page after page of numbers, columns of numbers each labeled at the top with words like “blastogenesis” and “Dim 8’s” and “helper-suppressor cells.” He realized that he did not understand what he was looking at. He put the file back and opened
another drawer, this one filled with hydrogeological studies, thousands of pages of well logs and more numbers—water levels, pumping rates, traces of chemicals measured in parts per billion. He went at random from one drawer to another. He opened a drawer that contained the medical records of two of the children, both dead before age twelve—six thousand pages of nursing notes, lab reports, chemotherapy treatments, bone-marrow aspirations, and notes from consulting doctors. Other drawers held the medical histories of the twenty-eight living plaintiffs, their cardiological tests, psychomotor tests, electromyography tests, psychiatric profiles. Facher began counting the number of file drawers. He had an associate count the deposition transcripts. There were 159 bound volumes totaling 23,337 pages. There were forty-three expert witnesses in the case. Facher didn’t even know some of their names, never mind the substance of their opinions. He had not had time to sit down and read those depositions, and there were thirty-six more that had not even been transcribed yet.

He was, he realized, not ready to try this case. He felt he needed at least another six months to prepare. He had already asked Judge Skinner for a continuance once, two months ago, but the judge hadn’t taken his request seriously. Facher thought perhaps he hadn’t been forceful enough. He’d made only an oral argument—“lawyer’s words,” as he put it, “and they come cheap.”

He decided to ask again. This time he would put his request in the form of a personal affidavit to the judge, one in which he could invoke the weight of his reputation and career. Facher did not, as a rule, like lawyers’ affidavits. “The New York style of personal affidavits that flood the courts,” he once called them. “I think they’re undignified and unprofessional.” But on this one occasion, he felt justified.

“I am Jerome Facher, a senior partner in Hale and Dorr,” his affidavit began. “I am chairman of the Litigation Department at Hale and Dorr and have held that position since 1976. I have had extensive trial experience in complex litigation of all types, including securities regulation, trade regulation, anti-trust, product liability, trade secrets, high technology, patents, banking.…”