A Civil Action (53 page)

Guswa considered Schlichtmann’s question for a long moment, perhaps thinking about the EPA report. At last he said slowly, “That’s possible.”

Schlichtmann seemed satisfied with this admission, but Judge Skinner was not. “Well,” said the judge, “that type of question has to be followed up. Is it probable, yes or no?”

“Probable?” said Guswa, looking up at the judge. “I think it’s a probable possibility—”

“No, no,” said the judge. “I’m asking you flat out: Is the explanation Mr. Schlichtmann presented to you a probable explanation?”

“Flat out?” repeated Guswa.

“Yes,” nodded the judge.

“Yes, that’s a probable source.”

Schlichtmann had broken Guswa, in large part thanks to Nesson’s ingenuity and dormant gift for mathematics. It could not have happened at a more telling moment—during the cross-examination of the last witness at the end of a long trial.

That evening, everyone in the office, secretaries, paralegals, and receptionists included, went downstairs to celebrate at Patten’s Bar & Grill, where nine months ago Rikki Klieman had first mentioned Nesson’s name. Schlichtmann had a long-standing tab at the bar, and the owner, who knew all about the Woburn case, didn’t press for payment.

Schlichtmann drank martinis and toasted Nesson. Spirits were high all around. Schlichtmann was too happy with his victory to be gracious. “Guswa gave up his soul today,” he said. “What little was left of it.”

10

On the first day of July, a sunny, cloudless morning, the lawyers, the judge, and the jurors boarded a yellow school bus in Post Office Square and set out for Woburn. The jurors had asked the judge some months ago, near the start of trial, if they would be allowed to see the Woburn city wells and the Aberjona River. Now, all the witnesses having come and gone, the judge decided that they should see the places they’d heard so much about. The six jurors and six alternates sat together in the first several rows of the bus. The lawyers and the judge sat toward the back, separated from the jurors by four empty rows. The judge had told the jurors to wear casual clothes and old, sturdy shoes. “I’ll wear something like a bush outfit, myself,” he’d said. So Schlichtmann had
gone shopping for an outfit suitable for a safari. Phillips had accompanied Schlichtmann on the shopping trip and treated him to a pair of new pleated khakis, a green twill shirt, a belt, and hiking shoes. Schlichtmann had wanted a safari jacket and a wide-brimmed desert hat, too, but Phillips had refused him those.

Only Facher came wearing his regular courtroom apparel. “You’re ready to sacrifice a suit,” the judge said to Facher.

“It’s like walking through your own backyard,” said Facher. “I’ll take my tie off. I’ll make that concession.”

The expedition visited most of the pertinent spots. At the W. R. Grace plant, two flagpoles, one flying an American flag and the other a Grace flag, flanked the glass entryway. The plain red-brick façade of the plant was clean and neatly landscaped. On this clear blue day, with the Grace logo gleaming silver in the sun and the flags fluttering in the summer breeze, the scene could have served as a photograph in W. R. Grace’s annual report.

The jurors and the lawyers began a tour of the plant, Cheeseman leading the way. They walked through the production and assembly areas, which were clean-swept and immaculate, the machinery shining as if it had just been polished. No one seemed to be working that day. The employees stood apart from the group of visitors, eyeing them warily. The entourage was about to go out the back door, past the paint shop where Barbas had worked, when a juror, Jean Coulsey, the forklift lady, halted abruptly and said, “No, no. Mr. Schlichtmann, I want to see the paint booth.” Schlichtmann had felt uncertain about Coulsey, but suddenly he thought better of her.

Schlichtmann had heard from the families that the Grace plant had been recently landscaped, with new picnic tables and newly planted vegetable gardens, in preparation for the jury’s visit. He asked the judge to let him inform the jury of this, but the judge denied his request. As the group went out the back door of the plant, where Barbas and Joe Meola and the other Grace workers had gone out daily to dump solvents, they came upon several large, meticulously cultivated vegetable gardens. The tomato plants were neatly staked and already tall and leafy. “Joe Meola’s own homegrown toxic tomatoes,” said Patti D’Addieco softly to Schlichtmann.

The school bus drove through the woods up a narrow, pitted blacktop road to the edge of the Aberjona marsh, to the remnants of Wells
G and H. The mayor of Woburn had ordered the well houses bulldozed last March, on the third day of trial, and all that remained of them were a few scattered pieces of building debris and two large, square concrete foundations. Weeds had taken root in the cracks of the concrete.

Everyone stood in the clearing for a moment, a solemn tableau of people in the July sun, gazing at these remnants as if they might somehow reveal secrets. But there was not really much to see, and after a minute the solemnity that seemed to have come on the group suddenly lifted and was carried away, as if on a summer breeze.

Talking gaily and laughing among themselves, like schoolchildren on a field trip, the jurors filed out to the eastern bank of the Aberjona River. They walked on a boardwalk of thick planks laid atop the grassy tussocks of the marsh. It had been a dry spring and the Aberjona was now only a sluggish stream a few feet wide. The judge surveyed the watershed, looking across the river to the Beatrice property three hundred feet away, his hand up to his brow to shield his eyes from the sun. The metal and plastic casings from the monitoring wells, more than a hundred and fifty of them in this area, protruded like pegs three feet above the marsh surface, glinting in the sunlight. “I wonder who’ll be liable if the whole crust of the earth caves in because it’s been pierced so many times,” mused the judge.

Facher overheard this. “I’ll tell you who the defendant will be—whatever large company that owns the land.”

The jurors and the lawyers walked up the dirt road to Beatrice’s fifteen acres, past the Whitney Barrel Company, now out of business, and through the gate of the chain-link fence that the EPA had ordered Beatrice to erect. The land was heavily wooded, lush and green in the early New England summer. Tall thistles grew alongside the road. Facher bent down and picked a daisy, which he presented to Patti D’Addieco. She smiled and thanked him. He said he’d buy her an ice cream cone after lunch, but he never did.

The EPA had warned the judge that no one should stray off the dirt road because of dangerously high levels of contaminants. The shoulders of the road, cluttered with barrels and building debris not so long ago, had been recently cleared. Nesson spied some newly sown grass seed and pointed it out to Schlichtmann. Someone had obviously been out to spruce up the area for the jury’s view.

Schlichtmann watched as one of the jurors, Robert Fox, stood near the edge of the marsh and gazed over at the remains of the city wells, a few hundred feet away. “My God,” he heard Fox say, “I didn’t realize it was so close.”

As the group walked up the road, Patti sidled up to Schlichtmann. She did not trust Fox. “I don’t think he’s with you, Jan,” she told Schlichtmann.

“You’re wrong,” insisted Schlichtmann. “He’s an environmentalist. He said at the
voir dire
he gave to the Public Interest Research Group.”

11

Gordon’s precariously balanced pyramid of debt was crumbling around him. Helpless to do anything about it, he began consulting horoscopes to see what the future would bring. He purchased a copy of
Town & Country
, which he believed had the most reliable horoscopes, but it only made his mood worse. The planetary alignment in Pisces, Schlichtmann’s sign, was ominous. “Very bad time for you,” Gordon told Schlichtmann the morning after the Woburn trip. “Something comes in that’s not supposed to be there and fucks everything up. The only good thing is, it goes away.”

“Why do you have to tell me these things?” Schlichtmann said irritably. “Let’s hope it is goes away before the jury starts deliberating.”

The jurors wouldn’t start deliberating for several days yet. The judge had given them the rest of the week off, with the familiar admonition not to read about or discuss the case with anyone. In the courtroom, the judge and the lawyers had important business to attend to before the final arguments.

A month ago, when Pinder stepped off the witness stand for the last time and Schlichtmann finished his case in chief against Beatrice and Grace, the judge had made a ruling. Both Facher and Keating had asked the judge to end the trial then and there, to direct a verdict in their clients’ favor on the grounds that the evidence presented by Schlichtmann was not legally sufficient to support a jury’s verdict.

Motions for directed verdicts are customary at the close of the plaintiff’s case, although judges rarely grant them. The Rules of Civil Procedure require a judge to consider the evidence in a light most favorable
to the plaintiff, and even a mere “scintilla” of evidence usually suffices to send a case to the jury. Judge Skinner had made it clear he wouldn’t direct a verdict for Grace (“There’s no question you funneled it out there and splat! into a ditch,” he’d told Keating), but Schlichtmann’s evidence against Beatrice had clearly troubled him. The judge had invited Facher to make “a serious pitch” for a directed verdict.

With the jurors excused for the morning, the judge had heard oral arguments and told the lawyers he would notify them of his rulings that afternoon. For Schlichtmann, it had been a typical day. He’d returned to the office feeling confident. By midafternoon, that feeling had begun to wane. At four o’clock, he’d told Conway he had a “miserable, queasy feeling.” At five o’clock, he’d muttered a prayer under his breath. At six o’clock, standing at the window, looking down onto Milk Street, he’d said, “The judge is going to fuck me, I just know it.”

The judge finally did call at a quarter to seven. As expected, Schlichtmann’s case against Grace remained intact. But in the matter of Beatrice, the judge had seriously undermined Schlichtmann’s case. To begin with, the judge would not allow the jury to hold Beatrice liable for any acts or omissions before 1968, the year Riley had learned from his own well digger that the water table under the fifteen acres had declined because of pumping by the city wells. Prior to this notice, said the judge, Beatrice, in the person of Riley, could not have known that toxic wastes on its land would contaminate Wells G and H. Furthermore, the judge continued, Beatrice had no “special relationship” with the plaintiffs and other consumers of water, and thus owed no duty to warn the public or city officials about conditions on its land, even after receiving the 1968 notice.

Schlichtmann and his partners had debated the effect of these rulings until late in the night. The judge’s actions had seemed bizarre to all of them. Riley had known as early as the 1950s that tannery waste on the fifteen acres could pollute the Aberjona marsh. Trying to follow the judge’s logic, Schlichtmann had said, “It’s like someone slipping a cyanide capsule into a bottle of Tylenol and putting it on a drugstore shelf late one night. Nothing wrong with that! It only becomes a crime when the drugstore opens the next morning.” Nesson had been convinced that the judge had made a serious legal mistake. Skinner had overlooked the well-established principle that landownership per se creates a duty to warn any persons who could be injured by dangerous
conditions on that land. The next morning, Nesson had asked the judge to reconsider his ruling. The judge had replied testily. “I, very frankly, busted my butt the first time and I won’t do it again. Motion is denied.”

To Schlichtmann, it had seemed as if the judge had made up his mind first and then found reasons to support his view. He’d taken solace in the fact that Facher was still in the courtroom, still sitting at the counsel table. In the end, it had been Conway who best summed up what had happened. “It’s worse than we expected, but we’re still alive. The bottom line is, we’ve survived.”

And Judge Skinner himself had seemed to echo this assessment. He had greeted the jurors after their absence and told them he’d made some rulings. “But I needn’t plague you with all the details at this time. The basic aspects of the case are still before you.”

In a trial, the events of a month ago can seem like ancient history. The judge’s directed verdict rulings did not have an immediate impact, and for that reason they quickly faded into the background. Schlichtmann had been too busy to worry about them. But now, just before final arguments, as the lawyers met again with the judge, the rulings became important. The judge said he would instruct the jury not to consider any exhibits or evidence against Beatrice prior to 1968. The testimony of witnesses such as Walter Day, who had played on the Beatrice land as a boy and described it as Death Valley, was stricken from the case. “I don’t see how it’s relevant,” the judge said.

“Not relevant?” cried Schlichtmann in disbelief. “The most important part of his testimony is the drums.”

“You’ve got more drums in your testimony than you know what to do with,” replied the judge, who went on to exclude Schlichtmann’s “killer document”—the 1956 report by state agent A. C. Bolde, who had ordered Riley to remove five hundred feet of tannery sludge deposited along the edge of the marsh. The report, said the judge, was “remote in time and subject matter.”

Schlichtmann felt a rising sense of panic. That evidence, he argued, went to the heart of Riley’s state of knowledge and his awareness of the risks of pollution near the Aberjona River. But the judge was unmoved. And when Nesson tried once again to point out to the judge his error
of law, he succeeded only in angering him. “One of the ways you prompt me to think about correcting this is by directing a verdict for Beatrice,” the judge told Nesson.

“You really know how to hurt a guy,” said Nesson.

“I’m serious about this,” replied the judge. “The best case against Beatrice is a mighty thin case. It was really a very close call on the motion for a directed verdict.”