A Civil Action (50 page)

“Did you see anything that looked like contaminated chemicals, or chemical residues?” asked Facher.

“No, I didn’t see anything like that. There was nothing out of the ordinary to me.”

Under Facher’s questioning, Mernin told the jury that he had even recommended installing a third well, to be named Well I, between Wells G and H. “That was the obvious location,” explained Mernin. The state approved Well I in 1978 and Mernin advised the mayor to
begin construction immediately so the well could be put on line the following year. This never happened, of course, because of the discovery of TCE and other contaminants in Wells G and H.

Facher’s intent in calling Mernin was clear to Schlichtmann. If a professional engineer like Mernin had seen no threat to the city wells or danger to the public when he’d walked on Beatrice’s land, how then could Riley, a simple tanner, have possibly known or foreseen any danger?

But it came off all wrong for Facher, even before Schlichtmann began his cross-examination. It came off looking as if Mernin had betrayed the public trust by his sheer incompetence. And Mernin seemed dazed and disoriented on the witness stand. He mixed up dates, asserting that Well G had not been installed until 1974, when by now the jury and everyone else who’d paid any attention at all knew perfectly well that it had been installed ten years earlier. Facher assumed Mernin had simply misspoke, but when he circumspectly tried to have Mernin correct the error, the city engineer insisted that he was right. In a conference with the lawyers, the judge himself later said, “The jury might well have considered Mr. Mernin a total idiot. He was not an impressive witness.”

Watching Facher’s examination of the city engineer, Schlichtmann wondered if Mernin was ill. The man looked tired and thin. He had a naturally swarthy complexion, but a ghostly pallor seemed to lurk beneath. Schlichtmann spent only ten minutes cross-examining him. The engineer’s confused testimony spoke for itself, and Schlichtmann figured he would gain nothing by attacking him. Mernin looked relieved when he finally stepped down from the witness stand.

A month later Schlichtmann learned from the Woburn families that Mernin had just been diagnosed with chronic myelogenous leukemia, the same disease that had killed Roland Gamache two months ago. Schlichtmann would have liked to find a way to tell the jury about Mernin’s illness, but he could not, at least not in this phase of the trial. He thought perhaps he could manage to slip in the news about Mernin when he called Richard Toomey to the stand in the trial’s second phase. Or perhaps he could even call Mernin himself, if Mernin was still alive by then.

Mernin’s illness, of course, proved nothing about the cause of the Woburn leukemias. All the same, speculation naturally arose in
Woburn—the irony was too striking—that he had gotten the disease from the water he himself had failed to shut off. Mernin entered the hospital for an aggressive round of chemotherapy. That summer, after Mernin’s first hospitalization, Reverend Bruce Young encountered him one morning at the Woburn post office. Reverend Young knew Mernin quite well, having served with him on several city committees. “It’s touched me, too,” Mernin told the preacher. “There were an awful lot of sick kids.”

Schlichtmann heard that Mernin’s decline was swift. The city engineer died several months after his diagnosis, at age forty-nine.

In a trial, as in most every endeavor, it’s harder to build than it is to tear down. Like most trial lawyers, Schlichtmann enjoyed the destructive pleasures of cross-examination more than the plodding labor of direct examination. He thought he demolished Facher’s second witness, a hydrogeologist, who said that contaminated groundwater from Beatrice had never reached the wells. And he did, in fact, expose several contradictions in this expert’s opinion, but it wasn’t at all clear that a rational juror would dismiss the testimony outright.

Schlichtmann had greater success with Facher’s second expert witness, a soil chemist named Olin Braids. Under direct examination by Facher, Braids told the court that he had been able to determine by scientific tests the earliest possible moment at which TCE could have been dumped on the Beatrice land. He had done this by examining the microorganisms in the soil—“It might be easier just to call them soil bugs,” Braids said. Some of these soil bugs had a taste for chlorine atoms. They attached themselves to molecules of TCE and broke the TCE down to dichloroethylene, and then to vinyl chloride, a compound so stable that the bugs no longer had any use for it. This process of “biodegradation,” said Braids, could take from three to six years, but no longer than six years. Of that, Braids was absolutely certain.

And here lay the significance of Braids’s opinion. Since vinyl chloride had not been detected on the Beatrice property until November 1985, that meant, said Braids, that TCE could not possibly have been dumped there more than six years ago, or
before
November 1979. The import of this was obvious. The city wells had been shut down in May 1979, six months before the Beatrice land could have been contaminated.
The Woburn families may have been drinking well water laced with TCE but, according to Braids, that TCE could not have come from Beatrice.

This opinion caught Schlichtmann by surprise. He had deposed Braids four months earlier, and Braids had explicitly stated that he would not deal with the question of when the chemicals had been dumped on the Beatrice property.

Up at the bench, Schlichtmann demanded that the judge strike Braids’s opinion and instruct the jury to disregard it. “Fundamental fairness would dictate that they at least tell me he’s doing this sort of work. They never told me about it. They did it purposely to keep me in the dark.”

“It was not done purposely,” said Facher indignantly, keeping his voice to a low whisper so the jurors wouldn’t overhear.

“It was,” Schlichtmann whispered back heatedly.

“Stop it!” said the judge. “You have two problems, Mr. Schlichtmann—a tremendous sense of overentitlement and an underlying paranoia.” The judge refused to strike the opinion.

A surprise or not, Schlichtmann felt convinced that this opinion was, in his words, “a fraud.” His own chemists and geologists had told him that there was no scientific way to determine how long TCE had been in the soil. If there had been, he would have used it himself. And besides, the opinion seemed to fit Facher’s needs
too
perfectly. How lucky that Facher happened to find Dr. Olin Braids! How fortunate that Braids had determined with such precision that TCE could not have appeared on Beatrice’s property until six months after the city wells had closed!

Schlichtmann had no time to prepare a cross-examination of Braids. He would have to play it by ear. Standing in the well of the courtroom, before a gallery of only half a dozen spectators, he asked if Braids had looked at old aerial photographs, old maps, or collected any tannery records—any documentation at all—to determine the history of the Beatrice site. No, admitted Braids. Had Braids ever done this sort of work before, with microbiology and the degradation of chemicals? No, he had not, but he had read “a few articles in professional journals” about the subject. Did these articles say how long it would take for microorganisms to break down TCE? No, said Braids, they didn’t. Could Braids describe the exact mechanism by which these soil bugs broke down
TCE? Braids wasn’t sure of the mechanism. “It’s not in my field. I’m only acquainted with it to the extent that I’ve read papers about it.”

Well, then, said Schlichtmann, did Braids know of anyone who had ever used this method of dating contamination before? No, Braids wasn’t aware of anyone’s having done it. “In some ways,” said Braids, “I’m doing work at what is called ‘state of the art’ in science. It may be the first time, but I have confidence in what I’ve done.” Was this method accepted by other scientists in the field? “Since it’s newly developing and has not been widely published, I guess I’d have to say it isn’t widely accepted. I’m not sure a lot of people know about it.”

Schlichtmann halted his examination. Again the lawyers gathered at the judge’s bench. Again Schlichtmann asked the judge to strike Braids’s opinion, this time because it was without any scientific foundation and failed to meet the minimum standards for an expert opinion under the Rules of Evidence.

Judge Skinner considered this motion seriously. “I think you’re making a strong point in terms of his credibility,” he told Schlichtmann. “I don’t know whether I believe him.”

Facher grew agitated. Braids’s opinion was the heart of Beatrice’s defense. “He’s used scientific principles. It’s a lot more acceptable than Drobinski’s methodology,” insisted Facher.

Schlichtmann said, “Certainly Drobinski had a better foundation than this witness.”

“I don’t think so,” replied the judge slowly. “Braids has a much more scientific approach than Drobinski, who said, ‘I eyeballed this stuff and it looked pretty old to me.’ Maybe the jury will find it’s a toss-up between Drobinski and soil bugs. I’m not going to strike it.”

So Braids’s opinion survived on the record. Schlichtmann didn’t really mind. The jurors might decide that if this was the best defense Facher could muster, then the case for Beatrice must be weak indeed. Besides, now that he and Facher had reversed their roles, Schlichtmann was having fun.

8

By June Gordon had disbursed the last of the money from the O’Connell settlement. He had spread the money thin, giving small sums to
most of the creditors and paying off in full only those who had begun legal action. By Gordon’s reckoning, the cost of the Woburn case amounted to $2.4 million to date. Gordon saw no more income on the horizon. He had no choice now but to rely on a variety of stratagems he had used only sparingly before.

Gordon made it a point never to lie to Uncle Pete—or to any creditor, for that matter. When a creditor called him, he never said he had sent a check when he had not. But he was not above sending checks in envelopes with the wrong zip codes, or writing checks and attaching incorrect invoice numbers. When he received a bill from Citicorp Mastercard, he sent a check directly to Citicorp instead of the bank’s processing center in South Dakota. “I think this will take them about a month to straighten out,” he said hopefully. “Xerox, they’re such a huge corporation I can tie them up for months with paperwork. Wang Computer, we owe them thirty thousand dollars for service and maintenance. They’re a typical bureaucracy. I can tie them up, too.”

Gordon kept in his desk drawer a large collection of credit cards bound with a rubber band. These cards were all charged to the hilt and useless. He had used them to get cash advances to pay operating expenses and salaries. Woburn had turned him into a prodigious consumer of credit, and he often received invitations to apply for new credit cards. These came from banks he had never heard of—in Nevada, Arizona, North Dakota, and California. Gordon called them “shyster cards.” The banks would charge 22.9 percent interest, but Gordon didn’t mind that. He liked the cards because they required him to pay only 1 or 2 percent of the principal each month. He’d fill out the application forms and send them back by Federal Express. Within a month, each new credit card would be laden with several thousand dollars of debt.

Gordon imagined the Woburn debt as an immense pyramid. Each block of the pyramid represented a creditor, and there were hundreds of them. Keeping all the blocks in place, the pyramid intact, had become exhausting work. “The one day I don’t come in—if I get sick or I don’t have the energy—that’s the point it could all come down,” moaned Gordon. Some mornings it seemed he could do nothing but sit in his office on Newbury Street and add up the bills over and over again and take calls from angry creditors. At night he would go home to his Beacon Hill apartment and lie on the living room couch, watching television,
the screen flickering in the dark. He tried to find old movies with happy endings that would distract him from his worries. One night on the local Boston news he came upon a lottery announcement. Someone had just won millions of dollars. Gordon decided to buy some Megabucks tickets first thing the next morning. He didn’t expect to win, but it would give him something new and amusing to tell Uncle Pete and the creditors who called. He stopped his channel surfing at the Christian Broadcast Network, which was raising money for transponders to beam the word of the Lord behind the Iron Curtain. On the screen, the telephones rang and the pledges poured in, tens of thousands of dollars. The preacher said, “Give and you shall receive.” Gordon was impressed. He decided to give so that he might receive. He called in and pledged two memberships in the 700 Club, one for himself and one for Schlichtmann, the two Russian Jews. This is something I can tell Uncle Pete tomorrow morning, Gordon thought.

Pete Briggs was no longer in a mood to be amused by Gordon’s stories. The Bank of Boston had a million dollars in loans out to Schlichtmann and his partners. Pete had enough collateral to cover most of those loans—the deeds to Conway’s and Crowley’s houses, and liens on two large structured-settlement payments due Schlichtmann from previous cases. But Pete was worried all the same. Gordon had under his control half a dozen Bank of Boston accounts—among them an office expense account, a client expense account, a First Rate account, and Schlichtmann’s personal account. Pete knew that Gordon had been writing checks from one overdrawn account and depositing the money in another overdrawn account in order to cover overdrafts. At first, Pete had been willing to give Gordon the benefit of the doubt. Perhaps Gordon had made a genuine mistake. But by now Pete was convinced that Gordon had gotten too cute for his own good. Pete knew what was going on, and he didn’t like it one bit.

At the Bank of Boston, a list of overdrafts emerged every morning promptly at eleven o’clock from a computer on the third floor. Bankers with cause for concern would gather around to watch the printout, and in recent months Pete Briggs was usually among them. The column on the far right of the printout gave the number of times a given account had been overdrawn that year. According to Pete, four or five
overdrafts in a year didn’t raise any eyebrows at the bank. Ten or twelve overdrafts, however, was considered sloppy and frowned upon. More than fifteen overdrafts was, as Pete put it, “inappropriate” and would “set off alarm bells.”