A Civil Action (47 page)

“How much?” asked Schlichtmann again.

Phillips cradled the phone on his shoulder and looked at the ceiling. He took a deep drag on the cigarette.

“Jesus Christ, am I invisible?” muttered Schlichtmann. At the top of his lungs, he screamed, “How
much
?”

This time Phillips glanced at him, a sour look on his face. “One seventy-five.”

Schlichtmann turned on his heel and went back into his office. Conway heaved a sigh and thrust his hands deep into the pockets of his pants.

In the conference room later that evening, Phillips explained that the insurance agents had admitted liability. “They didn’t even want to talk about that,” said Phillips. But the agents also believed the surgeon’s claim that all of Helen O’Connell’s problems had cleared up. “I think it was a jive offer,” continued Phillips. “They’re testing us. They know we’re wrapped up in Woburn, they know we need the money.”

Gordon groaned.

They would have to send Helen O’Connell to a second urologist, continued Phillips, and perhaps even another neurologist, for a new round of complete workups. “If that doesn’t convince them,” Phillips told Schlichtmann, “we’ll have to put the case on the trial calendar for next fall and hope you’re finished with Woburn by then. We can’t sell out. We’ve got to settle for fair value or we won’t settle.”

Gordon groaned again.

After eight weeks of trial, the days in the courtroom had begun to blur into one another, like the countryside seen from a train window. A shaft of spring sunlight would find its way into the court and strike the brass lamp on the judge’s bench, a flash of brilliant yellow in the cavernous, gray, dismal room. The fluorescent lights overhead made everyone appear pale and sickly. Thick volumes of legal papers had grown on the counsel tables and more thick volumes lay underfoot in cardboard boxes on the floor. The lawyers’ overcoats, damp from a morning rain and smelling of wool, hung over the gallery railing. The radiators hissed gently. Distant, muted sounds of city traffic, a siren, an unmufflered truck, would float up into the courtroom from the streets fifteen stories below. The atmosphere felt heavy and dense. One of the alternate jurors regularly fell asleep. On particularly dull days, such as the one when Schlichtmann read Grace’s answers to interrogatories into evidence, Judge Skinner himself seemed to doze at the bench, the flesh of his cheeks slack and his mouth slightly parted, his head rolling back onto his chair.

Facher always used to warn his students at Harvard that if they fell asleep at the counsel table, upon awakening they should come to their feet objecting. “In the time it takes to reach your full height, think of a reason for your objection.”

Facher was being facetious, of course. He never really expected any of his students to fall asleep at the counsel table. But one day, eight weeks into the trial, Facher himself fell into a doze during Sandra Lynch’s slow and methodical examination of a Grace executive. He awoke when the microphone on the witness stand emitted a harsh squeal.

“Perhaps we can fix the microphone,” suggested Lynch.

“Mr. Nesson seems to have the touch,” said the judge.

Facher came to his feet at the mention of Nesson’s name. “I object,” Facher said in a thick, cottony voice. Then he looked around, blinking his eyes, and sat back down.

*
A pseudonym.

5

On a morning in early May, Kathy Boyer opened the windows in the conference room for the first time since last fall, and there was fresh air in the offices of Schlichtmann, Conway & Crowley. Across from the courthouse, in Post Office Square, the tulips had burst into flower and the swollen buds on the linden trees had split open into a lacy green filigree of new leaves. Schlichtmann noticed that it was spring, but that didn’t cheer him. This part of the trial should have ended long before tulips.

On the other hand, he was making progress. He had one final witness to call in this phase of the trial. This was his expert in hydrology and groundwater movement, one George F. Pinder, Ph.D. Pinder would testify against both Grace and Beatrice. He would, if all went well, make manifest the claim that TCE and other solvents on the properties of both defendants had indeed migrated to the city wells, and that the chemicals had gotten there before the leukemias and other illnesses began occurring.

Schlichtmann felt fortunate to have Pinder. Every geologist who knew anything about groundwater had heard of Pinder. He was preeminent in his field, chairman of the civil engineering department at Princeton University and the person who, fifteen years ago, had developed the first computer model of groundwater flow. Schlichtmann put him up at the Ritz-Carlton, in a suite of rooms.

Pinder was in his late forties, a dapper, diminutive man, nearly a foot shorter than Schlichtmann. His thin brown hair, as soft and silky as a baby’s, had receded high on the dome of his head. He wore gold-rimmed spectacles that made his round face look owlish and cerebral. He had a precise, methodical manner, but he was not in the least aloof or self-important. On the morning of his first day in court, he arrived at Schlichtmann’s office early and cordially greeted all the secretaries. Schlichtmann saw that Pinder was wearing a blue blazer, a woolly brown tie, brown pants and argyle socks. Schlichtmann always asked his experts to dress conservatively, in dark suits. To his eyes, Pinder was
a sartorial nightmare, but he took it calmly. “George is the world’s leading expert on groundwater,” he told Conway privately before they left for court. “He can get away with dressing like that.”

Pinder performed ably on his first day, under direct examination by Schlichtmann. He came to the courtroom equipped with charts and diagrams to educate the jury in the science of hydrogeology. He set up a fish tank filled with kitchen sponges and placed drops of ink on the sponges. “Just think of each drop as being some event of contamination on the ground, entering our aquifer,” Pinder told the jury. He talked about saturated and unsaturated zones, capillary fringes, cones of depression. He held forth for the entire morning, confident, jaunty, and full of good humor, as if he were lecturing to a freshman class at Princeton.

Both Facher and Cheeseman knew Pinder’s reputation. Two years ago, Cheeseman himself had tried to recruit Pinder as an expert witness for Grace, but he found that Schlichtmann had gotten to Princeton, and to Pinder, first. Facher wasn’t worried, though. “They tell me Pinder’s the leading expert on this subject,” remarked Facher out in the corridor, during the morning break. “They say he’s a home-run hitter in any ballpark. But he’s in
my
ballpark now.”

Indeed, things did not go quite so smoothly after the recess, although that was no fault of Pinder’s. The closer Schlichtmann brought Pinder to implicating Beatrice and Grace, the more Facher and Keating began to object. Nevertheless, by the end of the day, Schlichtmann had gotten into evidence the first part of Pinder’s opinion—that both Beatrice and Grace were responsible for the contamination of Wells G and H. The second part, the arrival times of TCE and the other solvents, would have to wait until tomorrow.

In the office that afternoon, Schlichtmann clapped his hands and danced on his toes in glee. “You got the opinion in, George!” he shouted. “They tried to stop you, but it didn’t happen. It was a great day, today, George! It could not have gone better!”

Pinder smiled indulgently. “This jury looks like a pretty attentive group,” he said.

Pinder made his first mistake the next morning. It was a small mistake, but Schlichtmann caught it in an instant. It happened when he asked Pinder how long it would take, in his opinion, for TCE and the three
other solvents to migrate from the Beatrice and Grace sites to the wells. Schlichtmann had gone over these calculations with Pinder the night before, but that morning, Pinder gave different times for the solvents, different by a matter of days for one, a few weeks for another, and a year for the third.

Schlichtmann wondered for a moment if he himself was wrong, if he had remembered the times incorrectly. He felt confused, but he had no chance to find out at that moment why Pinder had changed the times. And when the recess finally came, Schlichtmann decided not to broach the subject. He did not want to shake Pinder’s confidence in the middle of the day.

That evening, in Pinder’s room at the Ritz-Carlton, Schlichtmann found out what had gone wrong. Pinder, feeling overly confident, redid the calculations in his head and forgot to factor in the porosity of the soil. The mistake made no difference to the substance of Pinder’s opinion. The solvents had still reached Wells G and H long before the leukemias began occurring. But Schlichtmann knew that Facher and Keating would not miss this mistake, and that they would use it on cross-examination to attack Pinder’s credibility.

Schlichtmann decided to wait until the closing minutes of the next day, a Friday, to have Pinder correct the mistake. He’d make it appear as almost an afterthought, of small consequence but requiring mention nonetheless. That would give the jurors the entire weekend to digest the substance of Pinder’s opinion before cross-examination could begin on Monday morning.

The next day all went as planned for a while. When only twenty minutes remained before court adjourned for the weekend, Schlichtmann brought up the travel times, and Pinder explained that yesterday, on the witness stand, he had done the calculations in his head. “I was just contemplating my testimony,” continued Pinder in a pleasant, untroubled voice, “and it suddenly occurred to me that I’d made a mistake. I’d be very pleased to try and correct that mistake.”

“What was the mistake you made?” asked Schlichtmann.

“I left off the constant for the porosity of the soil when I was doing the multiplication in my head.”

“Does that affect the travel times in some way?”

“It affects the travel times,” said Pinder, nodding. “Not catastrophically but, I think, significantly.”

Schlichtmann asked Pinder to tell the jury the new figures. When Pinder finished doing so, Schlichtmann glanced at the clock on the back wall of the courtroom, above the gallery. He still had twelve minutes to occupy until court recessed for the weekend. He planned to end the day by bringing out the fact that the research done in east Woburn—twelve thousand pages of data, 157 monitoring wells, and dozens of volumes from technical consultants—made the Aberjona aquifer one of the most thoroughly studied aquifers in history. He asked Pinder to compare the east Woburn research with other projects that Pinder had worked on, but both Facher and Keating objected. “Sustained,” said the judge. Schlichtmann rephrased his question, but again the judge sustained the objections.

“May I have a moment, Your Honor?” Schlichtmann asked.

The judge nodded. Schlichtmann took a deep breath. He studied his notes. He needed another question but he couldn’t think of one. He went to the counsel table and bent down to consult with Nesson, who hurriedly scribbled out a question. Schlichtmann turned and asked the question, but Facher objected, the judge sustained the objection, and Schlichtmann gave up. There were only seven minutes remaining. He said, “No more questions, Your Honor.”

The judge peered at the clock. “This is probably a good place to stop, since we will begin cross-examination on Monday morning.”

The little skirmishes of lawyers are sometimes consequential. Schlichtmann’s strategy was obvious enough, and Facher had no intention of letting him get away with it. Facher stood and said to the judge, “Would you give me the seven minutes?”

“You want to start your cross-examination now?” said the judge, looking surprised and not particularly happy.

“Yes,” said Facher, his eyes on Pinder as he walked across the well of the courtroom.

Pinder flew home to Princeton that Friday evening. After his seven minutes with Facher, he didn’t relish the prospect of returning to Boston on Monday. Facher had treated him in a most contemptible manner, addressing him in an insulting and scornful tone that Pinder, for one, had never before experienced in his adult life. “Are you telling this jury that you came in here yesterday, as a Ph.D. and the chairman
of a department, and made a
little
mistake in an opinion you’ve been preparing for the last year and a half?” Facher had said. “You’re telling us, as a professor of geology, that you
forgot
to take into account
porosity?
Didn’t you lecture in front of this jury for an hour about making these calculations? Today is true and yesterday was not? That is what you want this jury to believe?”

Pinder felt he’d kept his wits and replied calmly, but the brief ordeal had shaken him. He had testified before, in the Love Canal and Velsicol cases, but on those occasions he’d been on the witness stand for only a short time and his opinions had gone virtually unchallenged. Pinder’s wife, Phyllis, took an interest in her husband’s work. She knew about Facher from reading the trial transcripts of Drobinski’s testimony, which Schlichtmann had sent down for Pinder to peruse. “Watch out for Facher,” she warned her husband before he returned to Boston. “You should read your deposition so you won’t contradict yourself.”

Pinder didn’t take his wife’s advice. His deposition had gone on for five days and amounted to almost a thousand pages. He didn’t bother to read it, but Facher did. Facher read every page.

On Monday morning Facher asked Pinder if he recalled saying at his deposition that the contaminants from Beatrice would have reached the wells within eighteen months. Pinder replied that he didn’t remember exactly what he’d said. “But I think that is reasonable, and what I was likely to have said.”

“When you testified here in court last week, you said the contaminants had reached the well field within a year. Do you remember that?”

“I don’t remember the details,” said Pinder. “But if you say that’s what I said, I’ll accept that.”

“You don’t consider that a change from eighteen months?”

Pinder replied slowly, choosing his words with care. “It depends on what context I was thinking of the word ‘contaminants’ when you were using it. That is why it’s a little difficult for me to try to be more precise.”