A Civil Action (66 page)

“How did he steal it from us?” asked Donna. “Where did it come from?”

Ron Zona said, “It came out of expenses we never should have paid for.”

“Jan never asked us for any money,” replied Donna. “None of us ever put up anything. I don’t feel you’re right.”

Schlichtmann told the families that he would not dispute the accountant’s findings. He agreed to remit whatever sum the accountant deemed appropriate. The accountant submitted a list that came to eighty thousand dollars. Schlichtmann was prepared to divide this sum equally among the families, but none except Anne and the Zonas would accept any of the money.

Schlichtmann had indeed been lavish with the expenses. That had always been his way. He’d never spared any cost in preparing a case, and in Woburn there had always been another well that could be drilled, another medical test that could be performed. Yet he had not come close to matching the seven million dollars in legal fees and costs that Grace had paid for its defense, not to mention the additional millions paid by Beatrice.

As it turned out, the expenses as billed didn’t begin to cover the true costs of the case to Schlichtmann’s firm—the salaries and benefits paid
to the secretaries, associates, and paralegals, the overhead and day-today costs of running an office. In normal times these would have been paid for out of the proceeds of half a dozen major cases every year. But Woburn had occupied everyone in the firm virtually full-time for the past two years. Among the lawyers, the largest single beneficiary was Joe Mulligan, the one who had first gone out to Woburn and signed up the families. For the price of a drink at the Littlest Bar and some blandishments five years earlier, Mulligan had gotten Schlichtmann to take over the case. Now he demanded a referral fee. Schlichtmann balked. Mulligan, after all, had put in less than a week of effort on the case. Mulligan filed a lawsuit in Superior Court. To settle the lawsuit, Schlichtmann agreed to pay Mulligan three hundred and fifty thousand dollars.

Meanwhile, Trial Lawyers for Public Justice was seeking $648,000 in fees for Anthony Roisman’s early assistance. Schlichtmann met with Roisman and his board of directors at a hotel airport outside Chicago. Gordon and Phillips came along. The meeting lasted all day. The board told Schlichtmann that he had mismanaged the case, that he had spent too much and settled for too little. Phillips walked out of the meeting in disgust. Gordon broke down and wept angry tears. The woman sitting next to Gordon, a personal injury lawyer from California, turned to him and said coldly, “It’s nothing personal, you know.”

Schlichtmann refused to say much in his own defense. But he could not pay Trial Lawyers for Public Justice the full fee he owed them by contract. In the end, they agreed to accept three hundred thousand dollars.

Over dinner one night Phillips asked Schlichtmann if he regretted taking on the Woburn case.

“Do I
regret
it?” exclaimed Schlichtmann with a harsh laugh. “Does a paraplegic regret the moment he stepped off the curb and the bus ran him down? The case has ruined my life.”

Creditors lurked everywhere. Gordon began settling the debts, including the million-dollar-loan from Uncle Pete. Once everyone else—Nesson, Kiley and Tom Neville, Gordon and Phillips—had gotten paid, and a hundred thousand dollars in bonuses had been distributed among the office staff, Schlichtmann ended up with only thirty thousand dollars. He was debt-free, but there was no money left
over for him to reclaim his Porsche. Nor could Gordon get him any new credit cards—Schlichtmann had destroyed his creditworthiness. Conway and Crowley, with less debt than Schlichtmann, came out of the case with a hundred thousand dollars apiece. They got the deeds to their houses back. Conway tried to make amends to his wife by buying her a fur coat for Christmas and a camcorder to film their children.

Conway would not learn the full scope of the disaster that was about to befall them until the new year. Gordon had not paid all the debts. Gordon had not set aside any money to pay taxes.

2

Schlichtmann departed in December for a monthlong vacation in Hawaii. While he was gone, the EPA issued a report on the pump test of Wells G and H that it had conducted one year ago, before the start of trial. The agency’s experts concluded that both Grace and Beatrice were responsible for contaminating the Aberjona aquifer and the city wells. At a public hearing in Woburn, the EPA administrator in charge of the project stated that the Beatrice land was the most grossly contaminated area in the aquifer, and by far the largest contributor to the pollution of the wells.

By these lights, the Woburn jury had made a mistake. Groundwater from Beatrice’s fifteen acres had gotten under the river and had contaminated the wells, as Schlichtmann’s expert had claimed. Given the proximity of the fifteen acres to the wells—a mere three hundred feet—this should have been obvious even without the EPA report. On the face of it, the verdict appeared to stand as an example of how the adversary process and the rules and rituals of the courtroom can obscure reality. But in Schlichtmann’s view, it was the judge who had led the jury astray.

From the beginning, Skinner never seemed to regard the case against Beatrice in the same light as the one against Grace. After the trial the judge had made some additional findings. He had decreed that, based on the evidence, groundwater from the fifteen acres had never reached the Woburn wells. Because of the compound nature of the questions the judge had posed to the jury, this specific question had never been answered. Skinner took it upon himself to answer it, and in doing so he made any appeal on the Beatrice verdict much more difficult. In effect,
he was telling Schlichtmann that even if the jury had found against Beatrice, he would have overturned the verdict and entered judgment for Beatrice.

Polluted though the fifteen acres were, Schlichtmann had turned up very little hard evidence that Riley himself was responsible for its contamination. Perhaps that was the problem. Schlichtmann had never managed to find the witness who could break open the case, the way he’d found Al Love to expose Grace’s secrets.

Before leaving for Hawaii, Schlichtmann had promised the Woburn families that he would appeal the Beatrice verdict. Nesson had wanted to write the brief and make the oral argument before the U.S. Court of Appeals, and Schlichtmann had readily agreed. He was happy to go on to other things.

Returning to Boston, he began work on a difficult medical malpractice case involving a woman who had suffered a ruptured brain aneurysm. The firm needed some income, and quickly. The failure to set aside money for taxes had that most relentless of creditors the Internal Revenue Service dunning them.

The malpractice case failed to settle. In April, Schlichtmann and Conway went to trial. They’d spent thirty thousand dollars preparing the case, money newly borrowed from Uncle Pete. After a two-week trial the jurors began their deliberations. Schlichtmann paced outside the courtroom door. When the jury returned its verdict, four days later, Schlichtmann had lost. He wondered if he would ever win again. Bad karma from Woburn seemed to infect everything around him.

Schlichtmann and Teresa broke up around this time. They had been together for five years. If Schlichtmann felt sorry about the parting, he did not show it. “They can smell when the money’s gone,” he said, referring to women in general and the long-suffering Teresa in particular. It seemed then that he might let Woburn strip him even of his self-respect.

With no income to pay the bills, the firm’s debts once again began to mount. The deed to Conway’s house went back into Uncle Pete’s file drawer at the Bank of Boston. That spring the telephone at Schlichtmann’s condominium was cut off. To make calls, he had to go down to Charles Street, to the pay phone in front of the fire station. He shared
the pay phone with a bookie, who was not happy with the new arrangement. They argued over how long each other’s calls lasted.

All of Schlichtmann’s furniture, except for one overstuffed chair, was repossessed. At night he would take the cushions off the chair and lay them on the floor to make his bed. When he needed a table, he would stack the cushions and sit on the floor before them, Japanese style. He dined in this position. He ate a lot of canned tuna. Kiley would sometimes take him out to dinner and slip him a hundred-dollar bill afterward.

Nesson had been working on the Beatrice appeal for several months now. He had outlined the procedural history of the case and crafted all the legal arguments against Judge Skinner’s directed verdict rulings, but he did not possess Schlichtmann’s command of the factual minutiae. He gave the brief to Schlichtmann and asked for his help filling in the pertinent facts.

Schlichtmann thought that Nesson had done a superb job. The brief was tightly reasoned and cited cases that perfectly supported its arguments. Best of all, Nesson had used the judge’s own words to show how Skinner himself had realized that he’d made a mistake on landowner liability and duty to warn.

Schlichtmann figured it would take him about three days to fill in the missing details. At first, poring over the trial transcripts was like opening a fresh wound. The more he read, the angrier he got at Judge Skinner, and the angrier he got, the more he became convinced that the families should win a new trial on appeal. The three days stretched to a week, and the week became a month. Conway would arrive at the office in the morning and find that Schlichtmann had already been there for hours.

Conway, however, remained skeptical of their chances. He urged Schlichtmann to work on other cases and not to place too much hope in the appeal. But Schlichtmann paid him no heed.

Schlichtmann filed the Beatrice appeal on Wednesday, June 7. The following Monday, he got a call from Neil Jacobs. Facher was in England, lecturing on American law at Oxford University, but Jacobs had just finished reading the appeal brief. He invited Schlichtmann over for a chat.

“It’s legal poetry,” Jacobs told Schlichtmann that evening. He offered to settle if Schlichtmann would withdraw the appeal. He suggested
a sum of around two hundred thousand dollars, the amount that Beatrice would pay in legal fees to fight the appeal.

Schlichtmann shook his head.

“You won’t win,” said Jacobs. “And even if you do, you won’t see a judge for three years.”

“Well, I’m a glutton for punishment,” Schlichtmann said.

Facher returned to Boston in midsummer. He and Jacobs filed Beatrice’s opposition brief in September. It, too, was a very good brief. After reading it, Nesson smiled wanly and said to Schlichtmann, “Maybe you should make the oral argument.”

If only, continued Nesson, they’d found some hard evidence linking Riley and the tannery to the TCE on the fifteen acres. “That would have turned the entire case around,” Nesson said. Riley had steadfastly maintained that the tannery had never used TCE and that all the tannery’s records of chemical use had been destroyed years before the lawsuit. Schlichtmann had never believed this, but all his efforts in discovery had yielded nothing to contradict Riley.

On a Sunday evening at the end of September, a year after the Grace settlement, Schlichtmann left his apartment and went down to the pay phone on Charles Street to call Gordon. Nesson’s comment had gotten him thinking. He asked Gordon to go over to the EPA regional office the next morning and check the files on Beatrice. The EPA had continued to collect information on Beatrice for its own purposes, and perhaps Gordon would turn up something new and interesting. The odds, Schlichtmann knew, were against it, but it still seemed worth a few hours of effort.

At the EPA regional office the next day, Gordon went through files he’d gone through many times before. He knew them so well that all he had to do was look at them and judge their size and heft to tell if they contained anything new. They were voluminous, and it took Gordon most of the morning to work his way through them. In the end, he found nothing new.

On his way out, he stopped for a moment at the office of the project director of the east Woburn cleanup. He thanked her for her help, and then he noticed on the shelf behind her a document, perhaps half an inch thick, with a light blue cover, a document he had not seen before.

•     •     •

Schlichtmann was at his desk when Gordon came in and dropped the document in front of him. “Shouldn’t we have gotten this during discovery?” Gordon asked.

It was a report, sixty pages in length, by a firm named Yankee Environmental Engineering. The first page bore the title “Hydrogeologic Investigation of the John J. Riley Tanning Company.” The study, which Riley himself had commissioned, had been completed in 1983, three years before the start of trial.

Schlichtmann was astounded. He had never seen this report before, and yet he had asked repeatedly, in interrogatories, in depositions, and by subpoena—on eleven separate occasions, he counted—for all such documents.

Reading the report with rising excitement, Schlichtmann discovered that the Yankee engineers had drilled six monitoring wells on the tannery property, wells that had remained secret throughout the entire EPA pump test and the trial. The report stated that groundwater from under the tannery flowed to the east, toward the city wells, through very porous soil, exactly as Schlichtmann’s expert, Pinder, had predicted. Tannery waste, described in the report as “a black sludge resembling peat,” had been dumped down the hillside leading to the fifteen acres. To Schlichtmann, this sounded a lot like Sample Z, the contaminated material that Drobinski had found on the fifteen acres. Schlichtmann had claimed at trial that this material was tannery waste. But the judge had not believed it and had told the jury they could not consider it as evidence.

If he’d had this report, thought Schlichtmann, the trial would have been a different event altogether. The report bolstered the testimony of all his own experts. And who knows what other discoveries the report might have led him to? Certainly Facher must have known about this report. Why had Facher hidden it? And what else had he hidden? Was it possible that there was more?