A Civil Action (48 page)

Facher suggested that Pinder had formed his opinion before even seeing any data from the pump test. Pinder denied this.

“But you had a hypothesis as to the source of the contamination, right?” asked Facher.

Pinder, thinking that he might have said something like that at his deposition, replied, “I think that is not an unreasonable statement. I think I probably would be prepared to say that I may have said that.”

“You
may
be prepared to say that you
may
have said that?” repeated Facher in an incredulous voice.

“Well, I’m a cautious man,” said Pinder.

“Very cautious,” said Facher. “You use words carefully, right?”

“I try to be as precise and accurate as I can,” said Pinder.

Pinder’s attempt to be precise and accurate led to dense thickets of confusion and imprecision. Pinder was wary of Facher. He looked for a trap in every question Facher asked. To avoid being trapped, he refused to answer even the simplest questions in a simple way. When Facher asked him about Drobinski’s work on the fifteen acres, Pinder said, “I’m not really familiar with what he did in detail. I think in spirit he went back and found some additional things.”

“In
spirit
he went back?” said Facher in a mocking voice.

“In the spirit of your question, he went back,” replied Pinder. “I have no particular, precise knowledge of the whole matter.”

“You didn’t even know who Mr. Drobinski was back in December of 1985, did you?”

“Oh, yes, I knew who he was,” said Pinder with certitude. “We had talked together many times.”

Facher picked up Pinder’s deposition. He opened it and flipped through the pages until he found what he was looking for. “At your deposition on December tenth, I asked if you had worked directly with any Weston geologist, and you said yes. I asked, ‘Can you identify them by name?’ ” Facher, standing near the witness stand now, placed the deposition in front of Pinder. “What was your answer?” Facher asked, pointing to the line he wanted Pinder to read.

Pinder leaned over his deposition and adjusted his spectacles. Facher gazed at the ceiling. It took Pinder a long time to answer. He was reading, it seemed, the entire page. “ ‘No,’ ” Pinder read aloud at last.

“You wouldn’t have known Mr. Drobinski unless he stood in front of you with one of those little ‘Hello, I’m Mr. Drobinski’ tags on him?”

“At that time I didn’t know who he was,” said Pinder. “I’d spoken to him. There were several people, and I couldn’t distinguish one from the other. That is the spirit of my answer.”

“That’s the spirit and the fact of your answer?”

Pinder soon abandoned “the spirit” and adopted new phrases. Everything became “in the context of what you’re talking about,” or “in the sense of what you’re asking me.” Facher didn’t let these slip by. “I didn’t
put any sense in the question,” he told Pinder. “I just asked a simple question.”

The judge called the lawyers up to his bench. He said to Schlichtmann, “I’m beginning to get the impression that this fellow has either got a very loose grasp of the language, or he will say anything that comes into his head.”

“I don’t think that’s a fair characterization of his testimony,” said Schlichtmann, who knew perfectly well that it was going very badly.

After court that day, Conway saw Schlichtmann alone in his office, sprawled on the couch. Schlichtmann’s arm covered his face as if he were shielding his eyes from a bright light.

“Boy, you look like shit,” Conway said, standing in the doorway.

Schlichtmann lifted his arm from his eyes and glanced up at Conway. “This is going to be the worst fucking week of my life.”

Conway nodded. “What the judge said about Pinder was very disturbing.”

“That arthritic old bastard,” murmured Schlichtmann.

“There’s nothing worse than watching your witness being raped,” said Conway. “It’s awful to sit there and not be able to do anything.”

“Are we going to survive the week?” asked Schlichtmann. “Four more days of this?” He gave a weak, dispirited laugh.

“We’ll survive, Jan,” Conway said, playing his part once again. He hitched up his pants. “George is the guru, the world’s main expert. He knows more about that aquifer than anyone else in the world.” Conway paused, and then he added, “Besides, I don’t think anything could be worse than today.”

At this, Schlichtmann sat up. He looked soberly at Conway. “Do you think it was really that bad?” Schlichtmann laughed again, the same weak laugh. “George actually told me he felt good today. Can you believe it? Ah, it’s not George’s fault. He’s a brilliant guy, but he’s not the sort of person who can move others. It’s just not the way he is.”

Gordon and Phillips walked into Schlichtmann’s office. Gordon settled his heavy frame in the chair behind Schlichtmann’s desk, put his feet up and lit a cigarette. Phillips sat in the armchair next to the couch and tried his hand at cheering up Schlichtmann. “Facher’s little clinic today was great for lawyers, but it doesn’t mean shit with the jury.”
Phillips hummed nervously. “Just remember, Jan, the biggest victories are won by the slimmest margins.”

There was a moment of silence. Everyone seemed to ponder this bit of wisdom. Finally Gordon said, “What exactly does that mean, Mark?”

Schlichtmann departed for the Ritz-Carlton and an evening of work with Pinder. He consoled himself by reasoning that although Facher might have tarnished Pinder’s credibility, Facher had not succeeded in damaging the substance of Pinder’s opinion. Schlichtmann felt he could make Pinder shine again on redirect.

Meanwhile, Schlichtmann had other concerns. He knew that Facher would try to use the Aberjona River, which flowed between the Beatrice property and the city wells, as a defense. According to Facher’s theory, the pumping action of the wells would draw water directly out of the river, satisfying the wells’ demand while at the same time blocking the flow of contaminated groundwater from Beatrice.

This theory had some merit. A year ago last spring, Pinder himself had warned Schlichtmann that the river might be “a very profound barrier,” although Pinder personally doubted this would prove true. His computer model of the east Woburn aquifer predicted that the city wells would, in point of fact, draw contaminated groundwater from under Beatrice, along a highly permeable stratum of sand and coarse rock that lay under the riverbed. Nonetheless, Pinder told Schlichtmann, he wouldn’t know for certain until he saw the field data from the EPA pump test. Then, on December 4, when the EPA activated the city wells and started the pump test, Pinder stationed himself at a monitoring well on the Beatrice property. He saw the water level at this monitoring well decline more than a foot in four hours, exactly the amount his computer model had predicted.

As far as Pinder was concerned, this and similar measurements from other monitoring wells proved beyond a doubt that groundwater from Beatrice was drawn under the river and into the city wells. It also proved that the Aberjona River played almost no role in satisfying the demand of the wells for water. Pinder reasoned that the thick layer of peat that formed the riverbed—twenty or more feet of decomposed leaves, roots, and branches—acted as a nearly impermeable lining. The river, in other words, was not a barrier. It wasn’t even relevant.

This all seemed reasonable to Schlichtmann. But one detail troubled him. He and Pinder had both seen the ice on the river’s surface that December. After the wells began pumping, the river’s surface grew steadily lower, leaving shards of ice along the bank. Obviously the river had lost water. If it wasn’t going to the wells, then where was it going?

At the Ritz-Carlton, Schlichtmann tried to get an answer to this question. Pinder had several explanations. Some water had been lost to evaporation. And some of it was being slowly drawn out of the river by the pumping action of the wells. But Pinder felt certain, based on the thickness of the peat layer, that it would take ten to twenty years for any river water to reach the wells.

It still didn’t make sense to Schlichtmann. The river, he pointed out, had declined by six inches. That seemed like a lot of water. Pinder’s explanations would not account for that much water.

Pinder, himself troubled now, agreed that this was true.

So where had the water gone? Schlichtmann asked.

Pinder didn’t know.

They worked until after midnight, but Pinder could not come up with an explanation for the missing river water. He was tired and it was late. He insisted on going to bed. He wanted to have his wits about him tomorrow. He didn’t want to face Facher without getting a good night’s sleep.

Schlichtmann wouldn’t leave. “We’ve got to figure this out, George. Let’s go over it one more time.”

“No,” said Pinder stubbornly. “I’m going to sleep right now.”

Schlichtmann, just as stubborn, refused to go.

“If you don’t leave me alone,” said Pinder angrily, “I’m going back to Princeton tomorrow morning.”

Schlichtmann departed, feeling very worried.

Schlichtmann was waiting apprehensively when Pinder walked into the office early the next morning. He saw at once that their spat of last night had been forgotten. Pinder looked confident and happy. “In a moment of brilliance this morning, Jan, I figured out the river,” Pinder said. “I don’t know why it didn’t occur to me before. It’s really very obvious.”

Schlichtmann listened carefully as his star expert explained the obvious. Under normal conditions, said Pinder, groundwater in an aquifer discharges into a river, thereby increasing the river’s volume. Nearly all rivers, except those in deserts and on mountains, function in this way. Indeed, groundwater discharge is what creates most rivers, and this was the case with the Aberjona in east Woburn. But when Wells G and H began pumping, the aquifer was forced to satisfy the demand created by the wells and could no longer discharge into the river. “You see, Jan?” exclaimed Pinder. “The river’s not
losing
water to the wells. It’s just not
gaining
what it normally would from the aquifer.”

“Are you sure about this, George?” Schlichtmann asked.

Pinder beamed. “I figured it out when I was taking a shower this morning.”

“George, don’t say that on the witness stand.”

“Well, that’s what happened.”

Peggy Vecchione poked her head around the conference room door. “Jan, it’s five minutes of nine. You’ve got to hurry.”

Schlichtmann hovered over Pinder, indulging in a last moment of frenetic activity, the sort of nervous energy that he expended every morning before trial. Pinder’s explanation seemed logical enough, but Schlichtmann had no time now to explore it for flaws. “You’ve got the well logs, George?” he asked. “The ones that are highlighted in yellow marker? You’ve got those, right?”

Pinder compressed his lips and drew his shoulders up. He hated these chaotic moments just before court. They threw him off balance just when he wanted most to compose himself.

Schlichtmann brushed lint from the shoulders of Pinder’s blue blazer, and then he stood back and looked appraisingly at the geologist, at the tie with a faint pink hue and the argyle socks. “You look great, George,” Schlichtmann lied. “Are you feeling okay?”

“I was feeling fine until I started talking with you,” muttered Pinder.

“You’ll do just fine today,” said Schlichtmann in a soothing voice.

Together they walked briskly up Milk Street to the courthouse, Pinder taking two quick steps for each of Schlichtmann’s long strides. The day was sunny and warm and fresh, sweetened by an easterly breeze off the ocean, but Schlichtmann was oblivious to the beauty of the morning. He thought Pinder was showing some pluck, and he admired him for this. But he feared what Facher might do to him today.

•     •     •

Pinder did not do fine that day. But he did not do badly, either. “In the spirit” escaped his lips twice early that morning. Facher turned to stare at him. “Why do we have to keep talking about the spirit? I’m just asking you for a date.” And when Pinder embarked on a convoluted response to one of Facher’s questions, the judge abruptly cut him off. “Listen, Professor, the question is very easy,” the judge said. “It does not require any more dissection. Let’s try talking in plain English.”

At the counsel table, Schlichtmann tried to make himself look calm.

It wasn’t until late morning when Facher finally got around to the river and the subject of the missing water. How much water, Facher asked, had been pumped out of the Aberjona River during the test of Wells G and H?

Pinder had eagerly awaited this question. “I think very little, if any at all.”

“Didn’t the river lose approximately six hundred gallons a minute, according to measurements taken by U.S. Geological Survey?” Facher asked.

“No, sir,” said Pinder. “You’re wrong about that. And I was puzzled by it until I started thinking carefully about it and I realized—”

Facher interrupted. “Before you answer a question I haven’t asked,” he said.

“I’m just so anxious to try and inform you,” said Pinder.

“You’re anxious to help me?” said Facher, amused.

“I am, very much, sir,” smiled Pinder.

“And I’m anxious to help you,” said Facher. “Now, you apparently saw some phenomenon which the untrained eye might interpret as six hundred gallons a minute being pumped out of the river?”

“That’s right,” said Pinder.

“But the trained eye who had been hired to give an opinion in this case had a ready explanation, right?”

“Not then,” said Pinder. “But I do now. I wasn’t actually working on the problem when I came up with a solution. It was more like the sort of thing you think about in the shower.”

“Shower thoughts?” said Facher with a raised eye. “Before we get to your shower thoughts …” Facher calculated that six hundred gallons a minute amounted to 864,000 gallons a day. “Eight hundred and sixty-four
thousand gallons a day, water that’s going somewhere, that’s leaving the aquifer—”

“No, sir, that’s where you’re wrong,” said Pinder.

“Well, where did it go?” asked the judge impatiently.

“That’s the question!” said Pinder happily.