Authors: Jonathan Harr
Copyright © 1995 by Jonathan HarrMaps copyright © 1995 by Anita Karl and Jim KempAll rights reserved under International and Pan-American CopyrightConventions. Published in the United States by RandomHouse, Inc., New York, and simultaneously in Canada byRandom House of Canada Limited, Toronto.
Library of Congress Cataloging-in-Publication DataHarr, Jonathan.A civil action / by Jonathan Harr.—1st ed.p. cm.eISBN: 978-0-307-80478-51. Anderson, Anne, 1936?– —Trials, litigation, etc.2. W.R. Grace & Co.—Trials, litigation, etc.3. Trials (Toxic torts)—Massachusetts—Boston.4. Groundwater—Pollution—Law and legislation—Massachusetts—Woburn.5. Drinking water—Contamination—Massachusetts—Woburn.6. Liability for water pollution damages—Massachusetts—Woburn.7. Schlichtmann, Jan. I. Title.KF228.A7H37 1995346.7303’8—dc20[347.30638] 95-2088
v3.1For Diane Apollon Harr
To the Reader
This is a work of nonfiction. All the characters and events depicted in this book are real. Much of the material comes from my own observations over a period of eight years, beginning in the winter of 1986, and from repeated interviews with those persons directly involved. The voluminous official record, particularly some fifty thousand pages of deposition and trial transcripts, provided another vital source. The reader can find further information inA Note on SourcesandAcknowledgmentsat the end of the narrative.
DedicationBoston: July 1986Woburn: Summer 1966The LawyerRule 11Orphans & DogsDiscoveryThe WoodshedBillion-Dollar CharlieFacher’s PleaThe TrialThe VigilThe NegotiationBlindman’s Buff
Afterword to the Vintage Edition
A Note on Sources
About the Author
The lawyer Jan Schlichtmann was awakened by the telephone at eight-thirty on a Saturday morning in mid-July. He had slept only a few hours, and fitfully at that. When the phone rang, he was dreaming about a young woman who worked in the accounting department of a Boston insurance firm. The woman had somber brown eyes, a clear complexion, and dark shoulder-length hair. Every working day for the past five months the woman had sat across from Schlichtmann in the courtroom, no more than ten feet away. In five months Schlichtmann had not uttered a single word directly to her, nor she to him. He had heard her voice once, the first time he’d seen her, but he could no longer remember what it sounded like. When their eyes had happened to meet, each had been careful to convey nothing of import, to make the gaze neutral, and to shift it away as quickly as possible without causing insult.
The woman was a juror. Schlichtmann hoped that she liked and trusted him. He wanted desperately to know what she was thinking. In his dream, he stood with her in a dense forest, overgrown with branches and roots and vines. Behind the woman were several peoplewhose faces Schlichtmann recognized, the other jurors. The woman was trying to decide which path in the forest to take and Schlichtmann was attempting to point the direction. He beseeched her. She remained undecided. A dream of obvious significance, and unresolved when the phone rang and Schlichtmann awoke, enveloped by a sense of dread.
The man on the phone identified himself as an officer at Baybank South Shore, where Schlichtmann had an automobile loan that was several months in arrears. Unless Schlichtmann was prepared to pay the amount due—it came to $9,203—the bank intended to repossess the car, a black Porsche 928.
Schlichtmann had no idea whether or not Baybank South Shore had been paid in the last several months, but on reflection he felt pretty certain it had not. He told the banker to speak with a man named James Gordon. “He handles my financial affairs,” said Schlichtmann, who gave the banker Gordon’s telephone number and then hung up the phone.
Schlichtmann was still in bed twenty minutes later when the phone rang again. This time the voice on the other end identified himself as a Suffolk County sheriff. The sheriff said he was at a pay phone on Charles Street, two blocks from Schlichtmann’s building. He had come to repossess the Porsche. “I want you to show me where the car is,” said the sheriff.
Schlichtmann asked the sheriff to wait for ten minutes. Then he tried to call Gordon. There was no answer. He lay in bed and stared at the ceiling. Again the phone rang. “Are you going to show me where the car is?” asked the sheriff.
“I think I will,” said Schlichtmann.
The sheriff, a large, heavyset man in a blue blazer, was waiting for Schlichtmann at the front door. It was a clear and brilliantly sunny morning in the summer of 1986. From the doorstep, Schlichtmann could see the sun glinting off the Charles River, where the white sails of small boats caught a brisk morning breeze. The sheriff handed him some documents dealing with the repossession. Schlichtmann glanced at the papers and told the sheriff he would get the car, which was parked in a garage three blocks away. Leaving the sheriff at his doorstep, he walked up Pinckney Street and then along the brick sidewalks of Charles Street, the main thoroughfare of Beacon Hill. He walked past several cafés, the aroma of coffee and freshly baked pastriescoming from their doorways, past young mothers wheeling their children in strollers, past joggers heading for the Esplanade along the Charles River. He felt as if his future, perhaps even his life, hung in the balance while all around him the world followed a serene course.
In the garage bay the Porsche had acquired a fine patina of city grime. Schlichtmann had owned the car for almost two years, yet he’d driven it less than five thousand miles. Throughout the winter it had sat unused in the garage. When Schlichtmann’s girlfriend had tried to start the car one weekend this spring, she’d discovered the battery was dead. She had the battery charged and took the Porsche out for a drive, but then James Gordon told her the insurance had lapsed and she shouldn’t drive it anymore.
Schlichtmann drove the car back to Pinckney Street and handed the keys to the sheriff, who took out a screwdriver and began to remove the license plate. Schlichtmann stood on the sidewalk and watched, his arms folded. The sheriff shook open a green plastic garbage bag and collected audio cassettes and papers from the dashboard. In the cramped backseat of the Porsche, he found some law books and several transcripts of depositions in the civil action ofAnne Anderson, et al., v.W. R. Grace & Co., et al. The sheriff dumped these into the garbage bag, too. He worked methodically and did not say much—he’d long since learned that most people did not react warmly to his presence. But the transcripts made him curious. “You’re a lawyer?” the sheriff asked.
“You involved in that case?”
Schlichtmann said he was. The jury had been out for a week, he added. He felt certain they would reach a verdict on Monday.
The sheriff said he’d seen the woman, Anne Anderson, on the television program60 Minutes. He handed Schlichtmann the garbage bag and asked him to sign a receipt. Then he squeezed his bulk into the driver’s seat and turned on the ignition. “Nice car,” he said. He looked up at Schlichtmann and shook his head. “It must be a tough case.”
Schlichtmann laughed at this. The sheriff laughed, too, and said, “Well, good luck.”
Schlichtmann stood on the curb and watched as the sheriff turned the Porsche onto Brimmer Street and disappeared. He thought to himself: Easy come, easy go.• • •
Two days later, on Monday morning, Schlichtmann dressed in one of his favorite suits (hand-tailored by Dmitri of New York), his best pair of Bally shoes, and a burgundy Hermès tie that he considered lucky. Usually he took a taxi to the federal courthouse in downtown Boston, but since he had no money on this morning, he had to walk. On his way across the Boston Common a man in a grimy coat, his belongings gathered into a green plastic trash bag, approached Schlichtmann and asked for money. Schlichtmann told the man he had none.
Schlichtmann walked on, struck suddenly by the precariousness of one’s position in life. In a technical sense he was close to being homeless himself. His condominium association had just filed a lawsuit against him for failing to make a single maintenance payment in the last six months. He was also in arrears on his first, second, and third mortgages. By the time the jury had started deliberating, after seventy-eight days of trial, all the money was gone. “You’re living on vapor,” James Gordon had told Schlichtmann and his partners. The few dollars that came into the firm of Schlichtmann, Conway & Crowley each week were the result of old business, fees on cases long since settled. It amounted to no more than fifteen hundred a week. Salaries for the secretaries and paralegals alone were four thousand. American Express had filed suit against the firm. There had been no payment for more than four months on twenty-five thousand dollars of credit-card debt. Heller Financial, a leasing company, had threatened to repossess the law firm’s computer terminals by August 1. If he lost this case, Schlichtmann would be sunk so deeply into debt that it would take five years, Gordon estimated, for him to climb back to even.
But money was the least of Schlichtmann’s worries. Oddly, for a man of lavish tastes, he didn’t care that much about money. He was much more frightened of having staked too much of himself on this one case. He was afraid that if he lost it—if he’d beenthatwrong—he would lose something of far greater value than money. That in some mysterious way, all the confidence he had in himself, his ambition and his talent, would drain away. He had a vision of himself sitting on a park bench, his hand-tailored suits stuffed into his own green plastic trash bags.
In the courtroom corridor at a quarter to eight, perspiring slightly from his walk, Schlichtmann began waiting. He knew this corridor intimately. Usually he stood near a heavy wooden bench, somewhatlike a church pew, which was located directly across from the closed door of Judge Walter J. Skinner’s office. At the end of the corridor, next to a pay phone, a pair of heavy swinging doors opened into Judge Skinner’s courtroom. Schlichtmann had spent hundreds of hours in there and he had no desire to go back in now. He preferred the corridor. The opposite end was a city block away, past a bank of elevators, past a dozen closed doors that led to jury rooms, conference rooms, and offices. There were no windows in the corridor. It looked the same at eight o’clock in the morning when Schlichtmann arrived as it did when he left at four in the afternoon. The lighting fixtures were old fluorescent models, recessed into the ceiling, and they cast a feeble light, like dusk on an overcast day. The corridor smelled of floor polish and disinfectant and stale cigarette smoke.
At around eight o’clock, the jurors began arriving for their day of work. They conducted their deliberations in a small room at the end of the corridor, up a narrow flight of stairs, a room that Schlichtmann had never seen. Some mornings two or three of the jurors arrived together, talking among themselves as they got off the elevator. They always fell silent as they neared Schlichtmann. They might smile, a tight, thin, constrained smile, or nod briskly to him. Schlichtmann looked studiously down at the floor as they walked past him, but from the corners of his eyes he watched every step they took. He studied their demeanor and their dress and tried to guess their moods.
The jurors’ footsteps receded. In a moment, Schlichtmann was alone again.
When the Reverend Mr. Bruce Young arrived at Woburn Trinity Episcopal Church in the summer of 1966, he was twenty-eight years old and ambitious. Trinity was his first church. It was a plain but sturdy-looking building, with a steeply peaked roof, a white clapboard exterior, and three small stained-glass windows along each side. The new minister could see that the church had fallen on hard times. Weeds had invaded the lawn, which was brown and scabrous in spots, with patches of bare earth showing through. The bushes needed trimming, the shingles on the roof had curled, and the Gothic-style front doors needed paint. Even in the best of times, the church, which was built in 1902, had never been prosperous.
By the time Bruce Young arrived, only about fifty parishioners, most of them nearly old enough to remember when the church was new, still attended the Sunday service. Young often remarked that Trinity was the only Episcopal church on the planet without a lawyer or a doctor in its congregation. Young and his wife, who had a degree in socialwork, agreed that Woburn was a good place to begin a career but not a place they intended to stay for long.
Woburn, a city of thirty-six thousand situated twelve miles north of Boston, needed paint, too. A few blocks south of Trinity Episcopal, past a Sunoco station, an Army-Navy recruiting center, and several pizzerias, lay the town square. It was a small island, surrounded by city traffic, dominated by a towering bronze statue of a Civil War veteran. On pleasant days a few workers from City Hall would eat lunch on the square’s park benches. Each spring the city’s public works department cultivated tulips, marigolds and petunias in the square, but the department could not afford a full-time gardener. The weeds competed for space, and each year by midsummer the weeds had gained a clear advantage.
The town square was surrounded by two- and three-story buildings, the heart of Woburn’s once bustling commercial district. The buildings dated to the turn of the century, but many of the original brick and stone façades had been covered by plastic tiles, orange and lime green, a style fashionable in the 1950s, Woburn’s last period of prosperity. Many of the storefronts were dusty, their windows streaked with dirt, the doorways filled with small piles of windblown debris. Marram’s Shoes & Tuxedos and the pet supply shop had recently gone out of business. In the grimy window of Perillo’s Sub Shop, a sign readCLOSED, under which someone (perhaps Perillo himself) had addedFOR GOOD. Several pizzerias survived, along with the Woburn Bowladrome, the Tanner’s Bank, and Mahoney’s Barber Shop, established in 1899.
Woburn’s first commercial enterprise had been a tannery, built by the Wyman brothers in 1648. Back then the land was densely wooded, hilly in the west and north, flatter in the east where the Aberjona River flowed through marsh and bog. The Wyman brothers prospered until King Phillip’s War, when John Wyman’s eldest son was killed by Indians in a swamp fight. That season the Wyman leathers spoiled in the tanning fats. Another tanner named Gershom Flagg cleared an acre of forest near the Town Meeting House and built his dwelling and tannery. By the Civil War, Woburn had twenty tanneries, matching Philadelphia in the production of leather. The city acquired the nickname Tan City. The most prosperous bank in town was the Tanner’s Bank, and now the high school football team called itself the Tanners.
The leather trade supported other industries. In 1853 Robert Eaton founded a chemical factory in northern Woburn, along the banks of the Aberjona River, and supplied the tanneries with the chemicals—blue vitriol, Glauber’s salt, sulfuric acid—necessary to produce leather. At the turn of the century, Eaton’s factory was one of the largest chemical plants in the country. But the tanning industry began to wane after World War II. By the late 1960s it had been eclipsed by competition from abroad. A decade later, only the J. J. Riley Tannery in east Woburn, near the Aberjona River, still produced leather. That tannery’s immense red-brick smokestack, two hundred feet tall with the name J. J. Riley inscribed vertically on it, could be seen from the town square, almost a mile distant.
To attract new businesses the city cleared and developed many acres of land in northeastern Woburn for industrial parks. Scandal arose when several city officials were discovered to have an undisclosed financial interest in the land, but development proceeded nonetheless. Up on Commerce Way, near Interstate 93, several small manufacturing and trucking firms moved in. Robert Eaton’s old chemical factory on the banks of the Aberjona River was taken over by Monsanto. W. R. Grace, another chemical giant, built a small plant on land that had once been an orchard. Woburn didn’t lack for industry, but somehow there was never enough money to fix all the cracked sidewalks or the potholes in the street.
Bruce Young had planned to stay in Woburn for only about five years. There was plenty of ministering to do in Woburn, but a poor parish like Trinity Episcopal could sap a young man’s energy and ambition. After a few years Young had made some inquiries about moving on. But the sort of parish he was seeking didn’t open up every day, and when it did, he faced stiff competition.
His Woburn parishioners liked him, but even the fondest had to admit that he was not a stirring public speaker. He read rather than declaimed his Sunday sermons, and his voice tended to trail on in a monotone. To his credit, he recognized this shortcoming and kept his sermons brief. He was always available for counseling, and his advice was usually sound. He had a manner that made him seem truly interested in the problems people brought to him. He had a particular talent for ministering to the sick and infirm, and beginning in January 1972, his sixth year at Trinity Episcopal, the sick became the heart and soul of his ministry.
Jimmy Anderson’s parents thought he had a cold. It was January, a season for viruses, and his older brother and sister both had the classic symptoms, too—coughs, runny noses, slight temperatures. Even his mother, Anne, had not been feeling particularly well. By mid-week, however, everyone except Jimmy, who was three years old, seemed to be on the mend. He had a fever that waxed and waned, and his appetite had decreased considerably. He was pale, and Anne noticed several bruises on his limbs and torso, which struck her as odd because the child had been in bed most of the time. She and her husband, Charles, decided to take him to the family pediatrician the next morning.
The pediatrician, Dr. Donald McLean, was alarmed by Jimmy’s appearance. The fever suggested an infection, and indeed the child had some upper respiratory congestion. But this did not look like an ordinary infection to McLean. At the very least, the child was seriously anemic, with a profound pallor and lethargy. McLean thought the bruises might indicate a deficiency of platelets, the blood component that acts as a clotting mechanism. He performed a quick physical examination and found slightly enlarged lymph nodes but nothing else remarkable. Pallor, bruises, and a persistent fever: the clinical signs pointed to a blood disorder.
McLean suspected that Jimmy Anderson had leukemia, but he did not mention this suspicion to the Andersons. Leukemia is a rare disease, occurring in fewer than four out of one hundred thousand children each year. McLean wanted to see the results of a blood test before he made a diagnosis. It was late Saturday morning, but McLean arranged for the lab to analyze the boy’s blood sample that afternoon. He told the Andersons he should know more by then, and asked them to call him.
On the way home from the doctor’s office, Anne said to Charles: “I think he has leukemia.” The tone of her voice as much as what she’d said caused Charles to turn and look at his wife. She looked very frightened, and that in turn frightened Charles.
When Charles called Dr. McLean that afternoon, the doctor’s voice was grave. “There appears to be a problem with your son’s blood. We’re going to have to do some more tests to find out exactly what’s wrong.” He told Charles he would set up an appointment for Jimmy on Mondaymorning at Massachusetts General Hospital. He made no mention of leukemia, and Charles did not press him for a diagnosis. “If he knew what Jimmy had, he would have told us,” Charles said to Anne.
The Andersons had guests for dinner that Saturday night. In the kitchen, Anne wept. Nothing Charles said could dissuade her from the conviction that Jimmy had leukemia. The disease held a particular terror for Anne. In 1950, when she was fourteen years old and growing up in Somerville, a girl who lived in her neighborhood had gotten leukemia and died within a matter of weeks. Anne had never been close to the girl, but they’d known each other in passing. Word of the girl’s death had spread in hushed, whispered conversations around Anne’s junior high school. For the first time in her life, Anne understood mortality and death. The disease seemed especially frightening to her because it was such a mystery. It struck suddenly, it was invariably fatal, and no one knew what caused it.
On Monday morning, January 31, Anne and Charles drove to Boston with their son. Jimmy Anderson was examined by Dr. John Truman, the chief of pediatric hematology at Massachusetts General, Boston’s biggest hospital. “Thin, sad-faced 3½ year old with history of pallor and easy bruisability,” noted Truman. “Presents with moderate generalized lymphadenopathy and occasional bruises, but no petechiae. Spleen not palpable.”
Truman performed a bone marrow aspiration (“difficult pull with scant return”) which revealed 32 percent blast cells. Blasts are primitive white blood cells that multiply rapidly but are incapable of developing to maturity. Their numbers left no doubt in Truman’s mind about the diagnosis: acute lymphocytic leukemia.
That afternoon, Truman brought Anne and Charles into his office and told them what he had found. Anne remembered that the winter day was cold and clear, and that the afternoon sun angled through the blinds. She felt oddly distant, as if she were hearing Truman from afar, her attention drawn to the motes of dust that floated in the sunlight.
The next few weeks were very important, said Truman. He would attempt to induce a remission in James by using a combination of powerful drugs and radiation. The chances of a successful remission were good. There was, however, a 10 percent chance that James might die duringthe next four weeks. The greatest danger was not from the leukemia itself but from an opportunistic infection. Chemotherapy would kill cancerous cells in the blood and bone marrow, but it would also suppress the body’s ability to fight infection. A common childhood illness—the chicken pox, for example, or even a cold—could prove fatal.
When Truman began working with leukemic children in the early 1960s, there was no effective treatment for leukemia. Most children died within weeks of diagnosis. But in the last two years, great advances had been made by the St. Jude Children’s Research Hospital in Memphis. Truman explained to the Andersons the nature of the new treatment program, which was known as the St. Jude protocol. After the initial dosage of chemotherapy and radiation, which would take about a month to complete, James would have to return to the hospital’s outpatient clinic on a regular basis over the next three years. He would follow a maintenance program that included periodic doses of chemotherapy. The regimen, although aggressive and with many side effects, appeared promising. If James went into remission with the first round of chemotherapy, said Truman, his chances of surviving for the next five years were 50 percent or better.
Truman also talked about what caused childhood leukemia. Most parents, he had found, worried that they had done something wrong, or that they could perhaps have prevented the disease. Truman tried to allay the parents’ fears. The cause of acute lymphocytic leukemia was not known, he would tell them. Because that answer seemed so barren, he usually continued with a small disquisition on what was known. Some types of leukemia can be caused by ionizing radiation, or by chemicals like benzene. But that type—acute myelocytic—was not what James had. Some scientists also suspected that viruses might cause leukemia in humans. Viruses were believed to cause leukemia in cats, cows, birds, and rodents, and scientists at Harvard were currently trying to isolate a leukemia virus in cats. But that disease, Truman explained, was a very different illness from the one that afflicted humans.
Jimmy Anderson began the St. Jude protocol on Tuesday, the day after his diagnosis. He received several blood transfusions in an attempt to increase his platelet count. Truman examined the boy each day, looking for signs of infection or new bruises and petechiae, the cluster of small, purplish skin hemorrhages characteristic of leukemia. Anne came to the hospital early every morning. At first she returned home tosleep at night, but soon she began spending the nights with her son in his hospital room. Anne’s mother came to Woburn to look after the two older children.
By the end of the first week, James’s platelet count was still low but holding steady; he had no new bruises or petechiae. He was losing hair and experiencing severe nausea because of the drugs, but Truman felt he was clinically stable. By the end of the month there was no evidence of leukemic cells in either his peripheral blood or bone marrow. He had entered remission precisely on schedule. Everything had gone according to plan, and Truman felt optimistic about the boy’s recovery.
Anne Anderson was thirty-five years old the winter her son became ill. She was a handsome woman, tall and big-boned, from Norwegian ancestry, with high cheekbones, striking blue eyes, and blond hair. She had grown up in Somerville, across the Charles River from Boston, the youngest of four children, the only girl in a family of modest means. After high school, she went to work at the Somerville Public Library. When she was twenty-four years old, still living at home, she met Charles Anderson on a blind date. He was a year older than she, the son of a longshoreman. He had ideas about getting ahead in life. He’d gone to college and he wanted to work in computers. Charles and Anne courted for a year, and then, in 1961, they married.
They lived in a small apartment in the Boston area until, in 1965, they began looking for a house. They had often visited Woburn, where Anne’s best friend from childhood, Carol Gray, had moved with her family several years earlier. Carol and her husband had told a real estate agent that they wanted a house in the country, something close to Boston but with plenty of trees and some open spaces, and the agent had taken them to eastern Woburn.
In the mid-1960s, east Woburn had a pleasing rural aspect. The Aberjona River, a narrow, placid stream, only a few feet wide and waist-deep, ran through a marshland of reeds, cattails, and grassy tussocks. Much of the land on either side of the river valley had been farmed, and several small farms, an orchard or two, and open fields still remained. Along the river itself, at the edge of the marshes, grew copses of maple, oak, and hickory.
To Anne and Charles, east Woburn seemed like a fine place to settle down. Anne particularly liked the Pine Street neighborhood, not far from where Carol lived. It was a small enclave of about a dozen streets, a mile and a half from the center of town. It occupied the ridge of a low bluff that sloped gently to the east, to the marshlands of the Aberjona. The streets were quiet and shaded by trees, the homes modest, many of them constructed before World War II. No one with money to burn would look for a house in the Pine Street neighborhood, yet once people settled there they seemed to stay for a long while. Charles found the house, a ranch-style built in the early 1950s. It had three small bedrooms and a large picture window in the living room. The shingle siding needed paint, the kitchen floor needed new linoleum, but the price was only $17,900.
Once the Andersons settled in, they began attending Trinity Episcopal Church. Reverend Young was delighted to have new members join his flock, youthful ones at that. Charles and the minister were about the same age and they quickly became friends. In a short while, Charles began serving on the church’s board, and then, at Young’s request, as treasurer of the church.
Jimmy Anderson returned home from the hospital in mid-February. Some of the Andersons’ Pine Street neighbors came to visit, bearing casseroles and baked goods. One woman, Kay Bolster, who lived a block away on Gregg Street, mentioned to Anne that two families on either side of her each had a young boy with leukemia. Kay thought Anne might find some solace in talking to other parents who were going through the same experience. One of the mothers, Joan Zona, was a regular customer at the beauty parlor where Kay worked. Joan was a warm, outgoing woman, said Kay, although she had the impression that Joan was having a difficult time coping with her son’s illness. The boy, whose name was Michael, was not doing well in treatment. The other family, the Nagles, Kay knew only in passing, although from what she had heard it appeared the Nagle boy was doing well.
Shortly after Kay’s visit, Anne phoned Joan Zona. Joan seemed eager for company and invited Anne over for coffee. They spent two hours together that first day. When Anne left, she and Joan hugged eachother. The visits and phone conversations with Joan soon became part of Anne’s daily life. “Joan and I sort of hung on to each other,” recalled Anne some years later.
Michael Zona, the youngest of Joan’s four children, was being treated at the Children’s Hospital in Boston on a protocol similar to Jimmy’s. He had been diagnosed ten months before Jimmy, and Joan knew all about the hospital routines, the drugs and radiation, the side effects, knowledge that she readily shared with Anne.
One thing after another befell young Michael Zona, like toppling dominoes, and it seemed that nothing could intervene to save him. His problems had started with a mild cough that had gotten progressively worse. The family doctor had treated him with cough syrup and antibiotics, but he had failed to improve. One night when Michael complained that he couldn’t breathe, Joan took him to the emergency room. At first, the doctors thought he was suffering from bronchial asthma. Then they discovered a tumor the size of an olive in the mediastinum, a lymphosarcoma, between his right and left lungs. He underwent radiation treatments. A bone marrow biopsy later revealed that he had acute lymphocytic leukemia, the same disease Jimmy Anderson had.
Anne thought it strange that three cases of leukemia should occur in the same neighborhood, within a few blocks of each other. She wondered if it was coincidence, or if a virus of some sort was circulating. Dr. Truman, she remembered, had mentioned that some cancer researchers suspected a virus might cause childhood leukemia. Although she knew that was an unproven hypothesis, she and Carol Gray spent hours speculating about it.
Anne mentioned her suspicions to Joan Zona, too. Joan agreed that three cases of leukemia in the same small neighborhood did seem unusual, but she did not dwell on the subject the way Anne did. She was too preoccupied with Michael’s downward spiral to care about much else. In June 1972, while Jimmy was in remission and his prospects looked good, Michael Zona relapsed. His doctors attempted to induce a second remission with an experimental drug called Adriamycin, a highly toxic drug that causes deterioration of the heart muscles at levels near the therapeutic dose for leukemia. The therapy worked, and by July Michael was again in remission. It was short-lived,however. In late October, with his blood counts still alarmingly low, Michael’s doctor performed a bone marrow aspiration and found that 25 percent of the cells were blasts. Michael had relapsed for a second time. The cycle began again: another protocol was attempted, and yet another remission was induced. But the chances for Michael’s long-term survival were not good.
During a visit to the clinic at Massachusetts General that spring, Anne told Dr. Truman about the Zonas and the Nagles. Wasn’t it unusual, she asked, that there were three cases in the same neighborhood?
Truman listened in his polite, attentive manner, tall frame slightly stooped, but he would admit later that he did not give Anne’s question any serious consideration. He’d learned over the years that parents of children with leukemia tended to develop a heightened awareness of the illness. Everywhere they turned it seemed they encountered a reference to it, or someone else whose child had it. To Truman, this was not an uncommon psychological phenomenon. Many years later, in a deposition, Truman recalled his reaction to Anne’s queries: “My response was that on the basis of the number of children with leukemia that I was aware of at the time, and considering the population of the city of Woburn, I did not think the incidence of leukemia appeared to be increased. In essence, I dismissed her suggestion.”
Nor did it occur to Truman a year later, in June 1973, that there was anything unusual about the illness of a two-and-a-half-year-old boy from east Woburn named Kevin Kane, Jr. The boy had been referred to Truman from Winchester Hospital, where his mother, a nurse, had taken him because of a persistent fever, pallor, and irritability. Two weeks earlier he had been treated unsuccessfully for a respiratory infection that did not respond to penicillin. His history on presentation at Winchester Hospital included several respiratory infections as well as recurrent episodes of earaches. Winchester referred Kevin Kane to Dr. Truman at Massachusetts General with a “high suspicion” of acute lymphocytic leukemia. Truman confirmed the suspicion. He began treating Kevin Kane on a chemotherapy regimen similar to the St. Jude protocol. The child responded well. At four weeks, a bone marrow aspiration revealed that he was in remission.
Kevin Kane, Sr., and his wife, Patricia, lived with their four children on Henry Avenue in east Woburn. Henry Avenue curved around the perimeter of a low bluff overlooking the Aberjona marsh. From the back door of the Kanes’ house, looking east across the expanse of marsh, you could see the houses of the Pine Street neighborhood a quarter of a mile away. If you looked closely, you could see Orange Street and, through the trees, the red-shingled ranch house of the Andersons.
Anne found out about the Kanes’ child from Carol Gray, whose fourteen-year-old son delivered theWoburn Daily Timesevery afternoon along Henry Avenue. In the summer of 1973, as Carol’s son made his rounds, he learned that one of the Kanes’ children had leukemia. He reported the news to his mother, who went immediately to the phone and called Anne. “What the hell is going on here?” Carol said to Anne.
With the discovery of yet another leukemia case, Anne began writing down some of her thoughts. She made the first of many lists of the cases she knew about, writing in a spiral notebook the names of the children, their addresses, their ages and the dates when she figured they had been diagnosed.
The notion that each case shared some common cause began to obsess her. “The water and the air were the two things we all shared,” she said in a deposition some years later. “And the water was bad. I thought there was a virus that might have been transmitted through the water, some kind of a leukemia virus. The water had never tasted right, it never looked right, and it never smelled right. There were times when it was worse than others, usually during the summer, and then it was almost impossible to drink. My mother would bring some water from Somerville to the house on weekends, probably about three quarts, which we used as drinking water. The rest of the time, when we could mask the flavor of it with Zarex or orange juice or coffee or whatever, then we used water from the tap. But you couldn’t even mask it. It ruined the dishwasher. The door corroded to such a degree that it had to be replaced. The prongs that hold the dishes just gave way and broke off. On a regular basis, the pipes under the kitchen sink would leak, and under the bathroom sink. The faucets had to be replaced. The bathroom faucet dripped constantly. It seemed like no sooner would I get everything fixed and we’d have another problem.”
Long before Jimmy’s diagnosis, Anne’s neighbors in east Woburn would talk among themselves about the water the way most other people would talk about the weather. Like the weather, it seemed there was nothing one could do about the water, although people kept trying.
When Carol Gray moved to Woburn in 1961, there had been nothing unusual about the water. But by the time Anne and Charles moved into their house on Orange Street, in 1965, people in east Woburn had started to notice a change. “Does the water taste funny to you?” Anne had asked Carol during her first summer in Woburn. “Or is it just me?”
In retrospect, it became clear that the moment of change began in November 1964, when a new city well started pumping water into the Woburn system. The well, known as Well G (Wells A through F had been drilled in central Woburn over the previous forty years), had been sunk in the marshland on the east bank of the Aberjona River, half a mile north of the Pine Street neighborhood. The well penetrated an ancient valley that had been formed twelve thousand years ago by the last glacier to cover New England. Over the millennia, the valley had filled with gravel, sand, and silt, and the roaring ancestral river had become the tame Aberjona. Under the river, the sediment-filled valley acted as a sponge, creating a subterranean reservoir.
Even with Well G on line, Woburn needed more water. City officials did not want to pay to get it from the state Metropolitan District Commission. The Aberjona aquifer had proved so plentiful and inexpensive that the city had another well dug, Well H, three hundred feet from Well G. In 1967, three years after Well G went on line, Well H also began pumping. Although both wells were connected to the city water mains, they served only the homes in the east and, to a much lesser extent, those in the north and central sections.
Whitman & Howard, the engineering firm hired to find a suitable site and then to dig the two wells, congratulated the mayor on having so bountiful an aquifer close at hand. “We feel the city is fortunate in finding an additional groundwater supply of good quality in east Woburn,” wrote the engineer in charge, L. E. Pittendreigh, to the mayor. “The development of this supply will aid in overcoming the city’s Water Problem.”
As it turned out, Pittendreigh could not have been more wrong. The city’s real water problem began with the drilling of Wells G and H.
In the summer of 1967 the Massachusetts Department of Health contemplated shutting down both wells because of “the poor bacterial quality of the water supplied therefrom.” The city protested. The state health authorities relented, permitting the wells to remain open on the condition that the city subject the water to continuous chlorination.
Chlorination began in April 1968. That spring and summer, residents from east Woburn called the city’s public works and health departments to complain about the taste, the odor, and the murky, rust-colored appearance of the water. “The odor is almost like clear bleach,” wrote one angry resident. “Why can’t we have water like the rest of Woburn?” A woman from east Woburn wrote the “Tell It to Joe Action Line,” a daily column in theBoston Herald Traveler, and other residents complained to theDaily Timesthat “the water is very unpotable, very hard, and has a strong chemical taste.”
The Woburn City Council appointed a special committee to investigate the problem. The city engineer told the committee that the chlorine, which was the source of complaints about taste and odor, was added to the water to kill bacteria. The rusty color came from the water’s naturally high iron and manganese content, which the chlorine caused to precipitate out. The engineer assured the committee that the water was perfectly safe to drink.
Despite this assurance, a group of east Woburn residents formed their own committee in the spring of 1969 to force the mayor to close Wells G and H. They presented the mayor with a petition in August, and by October, after the peak demands of summer had eased, the mayor shut the wells. The following spring, the city engineer ordered the wells to start pumping again. The complaints about the odor and taste began “to pour again like so much water through a broken dam,” in the words of Gerald Mahoney, an east Woburn councilman. That summer was hot and dry. The engineer at the Woburn pumping station declared the water “absolutely safe.” The wells were closed again in January, when the risk of drought had passed. Four months later, in May 1971, the wells were reopened. Councilman Mahoney told theWoburn Daily Timesthat he had been “bombarded by calls of complaint” about the “putrid, ill-smelling, and foul water.” This was, said Mahoney, “the fourth successiveyear that the residents would be compelled to use it for drinking and other household purposes.” Nine days after the wells opened, Mahoney succeeded in getting them closed. But a month later, in July, the city engineer ordered them put back on line once again.
The cycle seemed unending. Anne Anderson called the city board of health and the public works department to complain. Carol Gray and Kay Bolster and other friends also complained. “Did you call today?” they would ask each other. “What did they say?”
“It was the same story all the time,” recalled Anne. “There wasn’t any problem with the water; the water had been tested and it was fine. I think toward the end, I felt like the answer was never going to be any different. Neighbors would talk, people would call, and everybody would give their own report of what they had heard.”
During the summer of 1972, six months after Jimmy Anderson’s diagnosis, the reservoir in central Woburn fell ominously low and the superintendent of public works told the citizens of Woburn that they had to conserve water. If they failed to observe a voluntary ban on certain activities—washing cars and watering lawns—the superintendent announced he would reopen Wells G and H, which had remained closed throughout the winter. The superintendent’s threat worked. The wells were not used that summer. Anne was preoccupied with caring for Jimmy. Since the water flowing from her taps seemed relatively pure, she gave no thought to it. The following spring, in 1973, the superintendent once again warned Woburn residents to conserve, but a severe drought compelled him to open Well G in August.
Charles Anderson was doing well in his job as a computer analyst at GTE. His work required that he travel a great deal, but in some respects that was a relief. Everything in the Anderson household seemed oriented toward illness and caring for Jimmy. The boy was thin and undersized for his age and he clung to his mother. To Anne, he appeared pitifully vulnerable, and she felt compelled to protect him. Nearly two years after his diagnosis, he began school. Anne bought him a wig to hide his wispy hair and bald patches caused by maintenance doses of chemotherapy, but she still feared that the other children would ridicule him. He missed days at school because of visits to the clinic or because he didn’t feel well. He missed more days because hedisliked school and begged his mother to let him stay home. Usually she acceded. Charles argued against such special treatment. He wanted the boy to lead as normal a life as possible. As it was, Jimmy had no friends; Anne was his constant companion. She and Jimmy had developed a special, intimate way of relating to each other. He would kiss and hug his mother and constantly require her touch, even as he grew older. Every night he slept with Anne and Charles in their bed. That practice had begun with his diagnosis, but it did not end as he grew older.
Reverend Bruce Young often drove Anne and Jimmy in to Massachusetts General. He didn’t mind the drive. He considered the task a part of his ministerial duties, and he enjoyed his chats with John Truman and the nurses at the hospital. He watched with curiosity the relationship between Anne and her son. “They seemed to draw from each other to the exclusion of others around them,” Young recalled some years later. “Anne cut everybody else off. She did it in the name of Jimmy and the fact that he was so sick and dependent on her. It became absolutely necessary for her to find some reason for why the kid was so sick. She had to find an enemy, a reason, something to focus her rage on for afflicting her son.”
Charles listened to his wife’s speculation about the connection between leukemia and the water. At first he was dubious. And as Anne became more adamant, he became increasingly skeptical. The problem with the water was no secret, he’d say. Everyone knew about it—the public health department, the city council, the mayor. It wasn’t as if people weren’t alerted to the fact that the water didn’t taste good and was discolored. When Anne talked about the water causing leukemia, he told her it was wild speculation. “If it’s something as obvious as the water, don’t you think somebody else would know about it?” Charles asked.
Long before Charles lost his patience, long before he stopped listening, Anne could see from the expression on his face how angry the subject made him. She couldn’t help bringing it up anyhow.
“What else could it be?” she asked once as they set out in the car to Lowell, to visit friends.
“What makes you think you know something the public health people don’t know?” he said. “If there’s a reason, I’m sure Dr. Truman would know. He’s treated dozens of cases.”
They argued all the way to Lowell. When they arrived, they were terse and white-lipped and said barely a word to each other all evening.
Charles believed that Anne’s phantom notion about the water causing leukemia had become a destructive obsession. It was, he told Bruce Young, contributing to the deterioration of their marriage. He asked the minister if he could use his influence with Anne. “Can you make her see reason?” he asked.
The minister had often heard Anne talk about her water theory during their trips into Boston. Usually he just let her talk. But now he felt obliged to try to intervene. When Anne brought up the water again, he told her about the experience he’d had after buying his car, a Volvo, that they were riding in. He had suddenly noticed Volvos everywhere he looked. But that had been an illusion, he said, a trick of the mind. There really weren’t a lot of new Volvos around; he’d simply become more aware of them. He suggested to Anne that she was experiencing the same sort of phenomenon with leukemia.
“I tried not to talk about it all the time,” Anne said in a deposition some years later. “I knew how I was being received by my husband. I stood for emotionalism; I was the hysterical mother. With Dr. Truman, I’d try to pick my moments. He was always very patient. I’d tell him: ‘If I stand on my front porch, I can see all these houses where children with leukemia live.’ His theory was that because more children were surviving, that’s the reason I was seeing more leukemia.”
Truman didn’t discourage Anne’s questions, but neither did he encourage her. He listened impassively. “From the outset, she, as indeed most mothers, asked what is known as to the cause of leukemia,” Truman observed. “It’s very tempting to look at the immediate environment, I suppose.”
When Anne pressed Truman for a response, he’d tell her there was no scientific evidence linking childhood leukemia to external factors. “We had, I’m sure, over a dozen conversations about it. She commented on the taste of the water and the aroma of the air in Woburn on several occasions and asked if they could be related to the leukemia.”
Anne realized that her search for an explanation had become an obsession. “I really wanted to believe that the water wasn’t a problem. But it just nagged at me and it wouldn’t go away. Itwasa fact—there reallywasthis number of children with leukemia.”• • •
For three years, until February 1975, James Anderson received a program of maintenance chemotherapy as prescribed by the St. Jude protocol. On February 21, a bone marrow aspiration confirmed that he was free of blasts and the maintenance was discontinued. Everything had progressed according to schedule. The Andersons were optimistic. The boy was still small, underweight and pale, as fragile as a porcelain figurine. But he appeared headed for a cure, one of the 50 percent that make it.
On September 15, seven months after the maintenance chemotherapy had ended, during a routine visit to the outpatient hematology unit at Massachusetts General, Truman noticed a troubling decrease in platelets in Jimmy’s blood. He ordered a bone marrow aspiration, but the results of that test were inconclusive. The boy continued to bruise easily and Truman suspected an early relapse. He ordered a second, and then a third bone marrow aspiration. By November, Jimmy began developing petechiae and suffering nosebleeds. A fourth bone marrow revealed 44 percent blasts. He had definitely relapsed. Truman was greatly discouraged. He believed he could induce another remission in Jimmy’s leukemia. But even if he succeeded, he knew the remission would probably be only temporary. The prospect for an ultimate cure was remote indeed.
Jimmy Anderson commenced a different protocol. Anne felt certain her son was dying. She had difficulty containing her anger. Her tone in dealing with the nurses and doctors became sharp. On occasion, Truman was the target of her anger.
That November, Anne remained with Jimmy in the hospital each day and throughout most nights. Often she slept with her son in his hospital bed. On an unseasonably warm day, she stood alone at the end of the hospital corridor, by an open window, looking out over the rooftops of Boston. Another woman—she was older than Anne, her hair gray, her face lined with sadness—came into the corridor from a nearby room. She walked up to Anne and said, without preamble: “A child just died of leukemia.” Anne felt exhausted. Her own child was dying and she had no energy for sympathy or even perfunctory condolence. She wished the woman would tell her story to someone whose child was in for a hernia operation, or a broken arm, something simpleand curable. But the woman (a grandmother? wondered Anne later) was distraught, with such an urgent need to talk that she failed to notice Anne’s coldness. She rambled on: the child had been a boy, just a baby still; he’d gotten sick so suddenly; the family lived in Woburn; their name was Lilley.
Back in the summer of 1966, when Bruce Young first arrived at Trinity Episcopal, Donna Carner was sixteen years old. She was the prettiest of the four Carner sisters, with a smile that dimpled her cheeks, and thick, dark hair. With boys, she adopted a languid and skeptical manner that implied she wouldn’t be surprised by anything. That manner served, she thought, to hide her shyness.
She immediately developed a crush on the new minister. All the girls in the small congregation seemed to have a crush on him. Despite his white clerical collar, his black shirt and his worn, shiny black suit coat, Donna found nothing stiff or pretentious about him. She thought he had a worldly manner. He smoked cigarettes, and in private conversation he might swear occasionally, as if to demonstrate that although he was a man of the cloth, he was not sanctimonious.
The Carner family of north Woburn did not dwell much on the more philosophical questions of faith. But they did attend the Sunday service at Trinity Episcopal without fail. Donna Carner quelled her adolescent love for Reverend Young after the minister’s wife gave birth to their first son. Donna found her first real romance one Saturday when she was a senior in high school. On a trip to Boston, she and her sister got involved in a bantering exchange with a good-looking boy who was in the Navy and stationed in Boston. His name was Carl Robbins and he was from Alabama. He fell in love with Donna the moment he saw her (or so he would tell her later). He came out to Woburn to meet her parents, and soon he became a regular weekend guest. By the time Donna was nineteen and two years out of high school, she and Carl had decided to marry. She worked as a bookkeeper at the General Aluminum Corporation in Woburn and had saved some money. Carl completed his military service and found a job as a welder. Reverend Young performed the wedding ceremony atTrinity Episcopal, and he attended the festive reception at the Carner home afterward.
Donna and Carl found a three-room apartment on the ground floor of an aging, slightly shabby tenement on Main Street, a mile northeast of downtown Woburn. Donna kept her job as a bookkeeper. The couple could afford to go out on occasion and they bought a few pieces of new furniture for the house they hoped they would own someday. Two years after the wedding, in March 1972, Bruce Young baptized Donna’s first child. She named the boy Carl Robbins III, although from the first day everybody called him Robbie.
He was a big, fine-looking baby, chubby and good-natured. But from the beginning, he had a difficult time in life. Before he was a year old, Donna had taken him on seven different occasions to the doctor for earaches. The infections resulted in a perforated eardrum. The pain kept the child awake and crying on many nights. Along with the ear problems, Robbie suffered repeatedly from skin rashes—eczema and dermatitis of unknown origin. Donna applied creams, ointments, and salves prescribed by the doctor, but the skin problems kept recurring. The child’s constant illness strained the marriage. Carl would help to care for Robbie, but he had to rise early for work and the boy’s crying kept him up at night. Donna had quit her job when she had Robbie, and the many small costs associated with the child’s illnesses grew into a dismaying debt. Their tempers grew short and the three-room apartment began to feel cramped.
In the midst of this, Donna got pregnant again. She talked to her gynecologist about her marital problems, and he recommended that she and Carl see a family counselor. Carl seemed to approach counseling with a good attitude. Donna came away from the first session feeling as if they could handle their problems after all. Their second son, Kevin, was born in 1975, the sixth year of their marriage. Carl still made an effort to help care for the boys, but the apartment felt smaller than ever now, and their debts mounted. “Things kept going downhill,” recalled Donna at a deposition many years later. “It was always kind of shaky, but what really finished it off was the summer when Robbie got very sick. It happened in July 1976, when he was four years old. He complained of a pain in his groin, and then suddenly he just stopped walking. It happened overnight. He also had a fever of a hundred and one. I took him to the pediatrician, and he sent him to the hospital for X rays.”
Robbie was tested for juvenile rheumatoid arthritis, but that test proved negative. An orthopedic surgeon at Choate Memorial Hospital in Woburn thought that Robbie’s left hip joint might be septic and proposed aspirating some fluid to see if that was the case. That procedure yielded no signs of infection. Nonetheless, the surgeon recommended draining the boy’s hip. Donna gave her consent, and Robbie was operated on that summer.
He recovered slowly. When he began to walk again, he had a peculiar lurching gait and dragged the toes of his left foot. He had to lift his knee high in order to bring forward the dangling foot. And he still complained of pain, now in the other hip. The pain became so severe that he could not turn over in bed. Doctors performed more tests. Robbie began complaining of pain in his knees, shoulders and neck. He could no longer walk, and in a short time he could barely move. In September he was referred to the New England Medical Center in Boston with a tentative diagnosis of juvenile rheumatoid arthritis. His lameness and the condition of his left leg and hip were a subject of inquiry and consternation, although the doctors agreed that this was clearly not his underlying problem. Many doctors examined him, but none could figure out what ailed him.
“I was scared to death,” said Donna of that time. “I didn’t know what was going on with Robbie. One weekend when I needed my husband at home the most with the two kids, he took off on his motorcycle. It was more important for him to go away for the weekend than to help me. I decided it wasn’t worth dealing with both things—with my marriage and with Robbie being so sick—so I filed for a separation.”
That was on October 12, 1976. The next day, during another visit to the New England Medical Center, three months after Robbie’s first complaints of bone pain, doctors noted that his spleen was enlarged and that he had a decreased white-blood-cell count with a high percentage of immature cells—blasts—in the peripheral blood. A bone marrow aspiration was performed. The bone marrow confirmed what the doctors had begun to suspect: Robbie had acute lymphocytic leukemia.
Donna spent most of the following two weeks with Robbie at the hospital. She missed church services, but her mother told Reverend Young about Robbie’s diagnosis. The minister drove to the New EnglandMedical Center to visit Donna and Robbie. He asked Donna if the doctors had mentioned anything about the cause of Robbie’s leukemia. Donna said, no, they hadn’t. All they’d said was that no one knew what caused leukemia. It was, so to speak, an act of God.
Reverend Young asked Donna if she thought the water could have played a role in Robbie’s illness. The question surprised Donna, although she knew the water was bad. From the beginning her husband had complained about the taste of Woburn water. He used to put tap water in the refrigerator because he thought that chilling it muted the smell and the chemical taste. Donna had tried to disguise the taste by mixing it with frozen juice concentrates or iced tea. She and Carl never had much money, so she used to economize by purchasing big boxes of powdered milk and mixing that with tap water. Robbie, of course, drank that. When the water smelled really awful, she would boil it before she mixed in the powdered milk. Still, it had never entered her mind that the water could have something to do with Robbie’s illness.
She gave Reverend Young a quizzical look and said, “Do you know something?”
The minister shrugged his shoulders and said, “Nothing, really. It was just a thought.”
Donna had often seen Anne and Charles Anderson at church with their three children. She knew, of course, that Jimmy Anderson had leukemia. But in the three years since Jimmy’s diagnosis she’d never spoken directly with Anne because she never knew quite what to say. She felt awkward expressing her sympathy. She feared it would come out wrong, as if she were merely being nosy. And then, as time passed, Donna felt that the opportunity to say something to Anne had passed, too.
It was Anne who approached Donna at Trinity Episcopal one Sunday morning, a month after Robbie’s diagnosis. Anne offered her sympathy and told Donna that she understood what she was going through. Her son, Jimmy, she said, had almost died not long ago. If Donna ever needed someone to talk with, said Anne, she was available.
Standing there on the church steps, Donna began to cry. “I just want to know how you stand it,” she said to Anne.
From that day on, Anne and Donna talked often on the telephone about the details of treatment, about the drugs, the radiation, the sideeffects, blood counts, and doctors. When Robbie lost his hair from chemotherapy, Donna took him to Boston to a wig shop recommended by the hospital. The chemotherapy made Robbie nauseated, and while they were in the store, he began to vomit. The clerk grew furious. The entire affair, meant to comfort Robbie, went badly and ended in humiliation. Donna called Anne. Often it wasn’t even necessary for her to explain how she felt. Anne knew already.
In February, with Robbie’s leukemia in remission, doctors at New England Medical Center addressed the problem of his left leg. A nerve conduction study revealed that his sciatic nerve had been injured during the operation at Choate Memorial. The flexor muscles in his leg and foot were paralyzed, resulting in a condition known as “foot drop.” The muscles had already atrophied to the point that his left leg was an inch shorter than his right. The injury to the nerve, the doctors told Donna, was probably permanent. But to prevent further foreshortening of the tendons and muscles, Donna had to strap Robbie into a cast every night. During the day he wore a brace and required special shoes made of thick leather to withstand the unnatural wear. Donna had been forced to go on welfare. The shoes were expensive and Medicaid did not pay for them because they were not, strictly speaking, a medical expense. Donna lived frugally, saving what little she could to buy Robbie special treats—the television hookup when he was in the hospital, and restaurant meals when they went in to Boston each week for outpatient visits.
During one visit to the medical center, an orthopedist shook his head ruefully as he considered Robbie’s leg. “This should never have happened,” he told Donna.
“What do you mean?” she asked.
The orthopedist said he doubted there had ever been anything wrong with Robbie’s hip. In all probability, there had been no reason to operate. And even if Robbie’s hip had been septic, his sciatic nerve should not have been injured in a simple drainage procedure. “If I were you,” advised the doctor, “I might consider going after the guy.”
The more Donna thought about the botched operation, the angrier she became. Finally she called the only lawyer she knew, a Woburn attorney who’d done the legal work for her divorce. She felt he’d done a good job on the divorce, and he had not charged hermuch. He had a small office on Main Street, not far from Trinity Episcopal. The lawyer told her that he didn’t do medical malpractice cases, but he knew a lawyer at the firm of Reed & Mulligan in Boston who specialized in them.
A week later, Donna drove into Boston with Robbie to meet Joseph Mulligan. Donna addressed him as Mr. Mulligan. He insisted that she call him Joe. He was an enormous man, over six and a half feet tall and about three hundred pounds. In his office, he kneeled down on the carpet to talk directly to Robbie, and within a moment he had the boy laughing. Donna liked Joe immediately. At the end of their first meeting he told Donna that he thought Robbie might have a promising case, but he would need to get the opinion of one or two other doctors. When Donna asked, with some hesitation, about paying Mulligan, the lawyer said, “Don’t worry about that. It won’t cost you anything.” He explained that he would pay all the expenses and take a percentage of whatever recovery Donna got in the end. Usually, he said, his fee was one third, but given Donna’s circumstances, he would make it one quarter.
Several weeks later Joe Mulligan arranged to have Robbie evaluated by two doctors, an orthopedist and a neurologist. Donna would call him periodically. She’d leave a message, and Mulligan would usually call back within a day or two. He would assure her that he had not forgotten about her. “These things take time,” he’d tell her.
Two years passed. During that time, Robbie’s leukemia remained in remission. Donna began keeping the books at Trinity Episcopal, a job that paid nothing but got her out of her apartment. Robbie and Kevin usually came with her to the church. Robbie was in the first grade by now, and he liked school. Despite his pronounced limp, he was gregarious and made friends easily. He joined the Cub Scouts. At the outpatient clinic, he was a favorite among the nurses and doctors. In his chart they often referred to him as “charming” and “happy,” and noted his ebullience. Although he was plagued by headaches and nausea from the drugs, when a doctor asked how his stomach was feeling, he said, “It feels beautiful!”
Robbie’s first relapse occurred in 1979, three years after his diagnosis. His doctors tried to induce another remission with a slightly different protocol, but that failed. He was still in relapse and declining quicklywhen they tried a third protocol, which was successful. The entire ordeal took two months.
He remained in remission for the next year. He was nine years old when his third and final relapse was discovered during a routine visit to the hematology clinic. His death was inevitable, although Donna would not admit that to herself.
Reverend Young spent many hours with her and Robbie at the hospital. “Bruce taught me about God,” said Donna. “I couldn’t believe in a God cruel enough to let Robbie suffer the way he did. But Bruce made me feel that there’s a place we’re all going where we’ll be safe. I used to tell Robbie, when we went to a department store, that if we ever got separated he should meet me in the back left-hand corner. Toward the end, he used to say to me: ‘We’ll meet in the back left-hand corner of Heaven.’ ”
Robbie knew he was dying. On his twenty-sixth and last admission to the New England Medical Center he was treated with another course of chemotherapy in an effort to stem the production of blasts and relieve his pain. He suffered from intractable bone pain, a symptom not uncommon among leukemic children. The drugs no longer had any effect in controlling the leukemic cells, which multiplied in his bone marrow at a furious rate. He was in the final, fulminate stage of the disease. Morphine relieved his agony somewhat, but even the narcotic finally had no effect. He told Donna he wished he would die so the pain would stop.
For three weeks Donna lived at the hospital, sleeping on a cot in Robbie’s room. Reverend Young visited often; her mother and sisters came. Robbie had waking dreams and hallucinations. Donna would stroke his arm and head and speak softly to him. She stayed by his side for thirty-six straight hours until she could no longer keep her eyes open. She was asleep in a hospital lounge when he died, at eight o’clock in the morning. She had wanted to be with him when he died. She’d thought he would live one more day.
A year after Robbie’s death, on a hot afternoon in late June, Donna was standing in a line at the service desk at DeMoulas Supermarket, holding a half gallon of milk gone sour that she’d just bought that morning. In front of her was a blond-haired man in his early thirties. He lookedtired. He was pale and had dark smudges under his eyes, and he stood in a weary slouch. He, too, held a carton of milk. He noticed Donna with her milk.
“Sour milk?” he asked with an exasperated laugh.
Donna nodded and smiled back. The man had a friendly face, and he seemed to have a need to talk.
“This is the last thing I need right now,” said the man, gesturing with the carton. “I just spent a week at the hospital with my son.”
“Gee, I’m sorry to hear that,” said Donna. “What’s wrong with him?”
“He has leukemia,” said the man.
They stood inside the supermarket for half an hour and talked. The man’s name was Richard Aufiero, and he was a long-haul truck driver for Mayflower Moving, although he’d done little driving that summer because of his two-year-old son, Jarrod. He and his wife, Lauren, rented an apartment on Carmen Terrace, a cul-de-sac in the Pine Street neighborhood of east Woburn. Donna told Richard about her son Robbie, and also about Anne, who lived no more than a three-minute walk from Carmen Terrace. As they parted, Donna said to Richard, “Give me a call if you need somebody to talk to.”
Three months later, in September, Donna heard that Richard Aufiero’s boy had just died. On a Sunday afternoon that September, Lauren Aufiero had called Children’s Hospital in Boston, where her son was being treated for leukemia, and told the nurse who answered that she was worried about the boy. He seemed lethargic and unresponsive. “Does he have a temperature?” the nurse asked. Lauren said no, and the nurse told here not to worry unduly. “Bring him into the clinic on Monday morning,” the nurse said.
On Monday morning Jarrod’s breathing was shallow and Lauren could not wake him. Alarmed, the Aufieros got into their car and drove south on Route 93 toward Boston. Near the Somerville exit, Lauren, who was holding Jarrod, said, “Oh my God, I think he’s stopped breathing.” Richard pulled the car to the side of the highway and began giving his son mouth-to-mouth resuscitation. He tried for several minutes without success to revive him, and then he got back on the highway and raced for the Somerville exit, where he knew there was a fire station. The firemen tried to revive Jarrod, and they kept trying as theytook him by ambulance to Massachusetts General, the nearest hospital. But by the time they arrived Jarrod was dead.
The Woburn police were summoned in the spring of 1979 to investigate the appearance of 184 barrels of industrial waste on a plot of vacant land in northeast Woburn. The person responsible for dumping the barrels in Woburn, the so-called midnight dumper, was never caught, and the barrels were taken away before their contents could cause any harm. The whole event would have been inconsequential had it not been for the vigilance of the state environmental inspector who handled the case. He thought it prudent to test samples of water from Wells G and H, which lay just a half mile to the south.
The results of those tests reached the desk of Gerald McCall, acting director for the northeast region of the state environmental department, on Tuesday afternoon, May 22. McCall took one look at the analysis and quickly telephoned the Woburn city engineer. He told the engineer to shut down Wells G and H immediately. Both of the wells were “heavily contaminated” with trichloroethylene, commonly known as TCE, an industrial solvent used to dissolve grease and oil. The lab found 267 parts per billion of TCE in Well G and 183 in Well H. The wells also contained lesser amounts of four other contaminants, among them tetrachloroethylene, known as perc, another industrial solvent. The Environmental Protection Agency listed both solvents as “probable” carcinogens.
McCall had gone to Woburn to see the 184 barrels for himself. He had agreed then with the state inspector that it was highly unlikely any of the contents had gotten to the city wells. Now he was certain of it. The substance in the barrels had been identified as a batch of polyurethane resin that had gone bad, and none its constituents matched the solvents found in the wells. But where, McCall wondered, had the TCE and perc come from? He had no idea, but he wanted to find out. In a letter to the mayor of Woburn, McCall wrote: “The Department will continue to aid you in an investigation of the cause of the contamination of the subject wells.”
TheWoburn Daily Timesreported the closing of Wells G and H two days after the event. As it happened, Anne did not see the story. She’d gone with her family on vacation to New Hampshire. Bruce Young also missed the story. In an attempt to economize, he no longer subscribed to the Woburn newspaper.
But even if they had read it, the significance probably would have been lost on them. The article, written by the newspaper’s City Hall reporter, stated only that “a contaminant” of an unspecified nature had resulted in closing “the long controversial G and H wells.” The story focused on the mayor’s concern about a “severe” water shortage and his announcement of yet another ban on lawn watering and car washing.
A short paragraph at the end of the article assured residents that the city’s water was safe. TheDaily Timesquoted the Woburn city engineer as saying that “the water coming into their homes is potable and there is no fear in drinking it. The problem wells have been out of service since Tuesday afternoon, and will remain out until the problem is solved.”
The city engineer, whose name was Thomas Mernin, lived on Wood Street in east Woburn, a quarter of a mile from Wells G and H. Over the years he had heard plenty of complaints about the water from neighbors and even his own wife, who was upset at the way clothes came out of the wash stained with rust-colored spots. “The water had a taste of chlorine,” Mernin would say at his deposition. “But I never had any problem personally with the chlorine.”
Next door to Mernin on Wood Street lived Richard and Mary Toomey, whose three children often played with Mernin’s children. Richard Toomey was a sheet-metal worker, a large, good-natured man devoted to family life. He’d been brought up a Catholic in the Charlestown area of Boston, but he didn’t come to understand the true value of religion until his first son, Michael, had been struck by a car and killed while picking flowers for his mother at the edge of Wood Street. His second son, Patrick, became an altar boy.
More than once, Richard had talked to his neighbor, the city engineer, about the quality of the water. Richard believed that the water was responsible for rotting out the pipes in his house, which seemed inconstant need of repair. Mernin would bristle a little at the complaints. “We do all the tests that are necessary,” the city engineer would tell Richard. “It’s perfectly potable.”
All three of the Toomey children suffered terribly from skin rashes. Mary had taken them to dermatologists many times over the years. She’d been told there were two general categories of eczema. One type was caused by external irritations—poison oak, parasites, and some chemicals—and the other type by either an inability to tolerate certain foods or nervous reactions, with no apparent external cause. The dermatologists first prescribed lotions for the Toomey children. When that didn’t help, they performed allergy tests and recommended diets free of milk and eggs. The eczema abated at times but never really cleared up. Mary Toomey wondered if the water that rotted out the water pipes in their house was the cause of her children’s skin afflictions.
In June of 1979, a month after the closing of wells G and H, Patrick Toomey fell ill. His illness began with an earache and fatigue and continued throughout the summer. In August a blood test revealed that Patrick had a high white-blood-cell count. His pediatrician suspected leukemia and referred Patrick to Dr. John Truman at Massachusetts General Hospital.
Truman performed a bone marrow biopsy and confirmed the suspicion. Patrick, who was ten years old at the time, had chronic myelocytic leukemia, a particularly lethal form of leukemia. His prognosis was not good. He would almost certainly die. Truman asked Richard and Mary Toomey if they knew of anyone else in their neighborhood with leukemia, and both parents said they did not.
Anne Anderson got a call from her friend Carol Gray on the afternoon of September 10, 1979. “Read the newspaper” was all that Carol would say. Anne went out to the front porch and picked up her copy of theWoburn Daily Times. On the front page was a five-column banner headline:LAGOON OF ARSENIC DISCOVERED IN N. WOBURN. It was a pleasant, sunny day in late summer but Anne was oblivious to the world around her. She read the newspaper as if in a trance. “Everything seemed to stop still for me,” she recalled some years later.
The article, by a young reporter named Charles C. Ryan, told of the discovery in north Woburn that past July of a half-buried lagoon, nearly an acre in size and five feet deep, that was contaminated with arsenic, lead, chromium, and traces of other heavy metals. The lagoon had been uncovered by a construction crew working at the site of the old Merrimack Chemical Company, producer of arsenic-based insecticides and tanning chemicals. The crew had also unearthed several pits containing the rotting remains of animal hides, hair, and slaughterhouse wastes, the legacy of Woburn’s tanneries. “Arsenic in small doses,” the article stated, “is suspected as a cancer-causing agent,” and chromium was a known carcinogen that caused tumors of the lungs and nasal passages when inhaled. It was unclear, stated the article, whether these toxic metals had contaminated Wells G and H, situated a mile to the south. But the article did note that the two wells, which had pumped as much as a million gallons of water a day during the fifteen years since their construction, had already been closed “because they were contaminated by trichloroethylene, an industrial solvent that has been found to be carcinogenic.”
When Reverend Young heard about theDaily Timesarticle, he went out at once to buy a copy of the paper. “Suddenly,” he recalled, “everything Anne had been hammering away at seemed plausible, just from one day to the next.” That evening, he decided it was time for him to act. The logical first step, he reasoned, was to find out exactly how many leukemia cases had occurred in the city during the last fifteen years. He had once tried to find this information, but neither the state nor the city kept a record of the incidence of leukemia. Anne had told him of eight cases that she knew of. That did not seem like an excessive amount in a city the size of Woburn. Were there more cases? the minister wondered. How many cases was too many?
The next day he called Anne and told her he had come up with a plan. He would write a letter for publication in theDaily Timesasking parents who’d had a child diagnosed with leukemia in the last fifteen years to come to a meeting at Trinity Episcopal. Maybe they wouldn’t discover anything they didn’t already know, the minister told Anne. Maybe no one would show up at the meeting. But it was worth a try, he said, and Anne agreed.
On an evening three weeks later, Reverend Young propped open the door to the church meeting hall and arranged several rows of metal folding chairs on the scuffed linoleum floor. Donna Robbins arrived early to help him. The minister went to the door to greet people as they came in. He recognized several parents from the hospital clinics. By seven-thirty, he counted more than thirty people, mostly couples, standing in small groups, talking with one another. The minister waited a few moments longer, and then he stood and introduced himself. He explained why he’d called the meeting. “We want to find out if there is a problem in Woburn, or if there isn’t,” he said. He passed out copies of a questionnaire that a nurse at Massachusetts General had helped him to prepare, and asked that they be returned to him as quickly as possible.
Toward the end of the meeting, people began asking questions, voicing their worries and suspicions. Some people talked about their children, but not everyone who had come had a leukemic child. A few had family members with different sorts of cancers, one had a cat with leukemia, and others had come simply out of a concern about the local environment. The atmosphere felt loose and friendly. Many people joined in the talk. Anne was not one of them. Throughout the meeting she sat quietly with her husband. She had told Reverend Young that she didn’t want her role in this affair mentioned, and he respected her wishes. She did not like speaking before groups of people, and she also feared that others might ridicule her intuition. “I did not make my opinions known,” she explained some years later at her deposition, “because I was living with paranoia, because I saw myself as a housewife without training.”
Reverend Young waited for the questionnaires to be sent back. Several weeks after the meeting he and Anne met in his office at the church. They had information on twelve cases. That still did not seem to Young like a particularly large number over a fifteen-year period, but he did not mention this thought to Anne. He had purchased a street map of the city. Anne read aloud the address of each case, and the minister marked it on the map. Of the twelve cases, eight were located in east Woburn, and six of those were clustered in the Pine Street neighborhood, where perhaps two hundred families lived. Young thought the distribution looked highly unusual, especially when plotted on the map. He told Anne he’d call Dr. Truman the next morning and makean appointment to show him the map. He asked Anne if she wanted to come with him, but she told the minister he should go alone.
When Reverend Young arrived at the hospital some days later, he found the doctor in his office, about to eat lunch. Truman offered to share his meal, but the minister declined. He began telling Truman about the October 4 meeting. Truman listened politely. Young unfolded the map and placed it on Truman’s desk.
“Here,” explained the minister, finger to the map, “is east Woburn, and here is Anne Anderson’s house. And this is the Zonas’, and right next door are the Nagles. Here are the Kanes, and the Toomeys. Over here are the Carlsons; Donna Robbins, and Barbas, Ryan, Veno …”
Truman abandoned his lunch and looked intently at the map. “This is very interesting,” he murmured as if he were talking to himself.
“We’ve identified twelve cases altogether,” continued the minister. “There may be more. The problem is, I don’t know if twelve is unusual for a fifteen-year period.”
“This is a very striking cluster,” said Truman. “There’s no doubt about that.”
Truman told Young that he knew a doctor at the Centers for Disease Control in Atlanta who had investigated other leukemia clusters. “I think the next step is for me to call him,” Truman said, and he reached for the telephone.
The man whom John Truman called at the Centers for Disease Control was Dr. Clark Heath. He was the world’s foremost expert in leukemia clusters. It was a distinction that Heath himself might not have valued highly, since he was no longer sure that such a thing as a leukemia cluster existed.
Heath had first encountered what seemed to be a cluster in the spring of 1961, as a young doctor in his second year at the CDC. He’d been sent to the town of Niles, Illinois, a Chicago suburb, after a pediatrician there had reported the deaths of four young girls from leukemia within three months. In Niles, Heath methodically combed through death certificates and discovered four additional cases, three girls and one boy. The eight victims had lived within a single parish of Niles, an area slightly more than a square mile in size. All but one of the victims had attended the parish parochial school or had siblings whodid, and the one who did not, a ten-year-old girl, had lived within a block of the school. Heath also discovered three adult leukemia cases in the parish. Two of those adults had children at the school. All the cases had been diagnosed within the last three years.
Heath was a young man then. He began to hope that he might discover in Niles the cause of childhood leukemia. He and a colleague from the University of Chicago studied each leukemia case in great detail, scrutinizing medical records, examining samples of bone marrow and blood, testing the blood of family members, monitoring the levels of background radiation in the homes of the victims and at the parish school and church. They found no evidence of any hereditary factor. Heath felt almost certain that some infectious agent, probably a virus, had caused the disease. Researchers had identified leukemia viruses in animals—in mice and birds—and it seemed reasonable to suspect that such a virus also existed in humans. Moreover, leukemia occurred most frequently in children under six years of age, a time when they were most prone to infectious diseases. In Niles, Heath discovered that a “rheumatic-like illness” had circulated among children at the same general time as the onset of leukemia, and this, he thought, suggested “some infectious process.” But he could not link it with any certitude to the leukemias. After a year of work he was no closer to knowing what had caused the outbreak in Niles than on the day he’d arrived. Back then, he did not doubt that he’d seen a genuine leukemia cluster. In a report published in theAmerican Journal of Medicinein 1963, Heath wrote: “The cluster of eight cases of leukemia among children in Niles cannot reasonably be attributed to the effects of random distribution. These cases constitute a clearly defined micro-epidemic.”
Over the years, other leukemia clusters began to surface. Heath went to the small town of Orange, Texas, to investigate three cases that had occurred within nine months. From Douglas, Georgia, came a report of a “leukemia house,” where three residents and a regular visitor had, within ten years, contracted the disease. In Rutherford, New Jersey, six children, four of whom had attended the same elementary school, were diagnosed with leukemia. From Almond, New York, a rural village with a population of two thousand, came reports of four leukemias in less than a year. In all of these places, as in Niles, investigators failed to find a cause, or even a significant lead.
Two decades had now passed since Heath had gone to Niles. He knew more, and was certain of less. “Results have suggested little if any tendency for cases to come in clusters beyond what chance would predict,” he wrote in 1982 in the textbookCancer Epidemiology and Prevention. Others in the field agreed with this position. Some epidemiologists at the CDC, for example, explained apparent leukemia clusters by analogy to the “Texas sharpshooter” effect: a man shoots at the side of a barn and then proceeds to draw targets around the holes. He makes every shot into a bull’s-eye. If an epidemiologist were to draw a circle around, say, the greater Boston area, he would find an incidence of leukemia comparable with the rest of the United States. Draw a circle around Woburn and he’d find a worrisome elevation. Draw a circle around the Pine Street neighborhood and he’d find an alarming cluster. Was it a real cluster? Or was he just drawing bull’s-eyes where he found bullet holes?
Despite Heath’s doubts about clusters, he still felt it was “highly likely” that infectious agents played a role in the cause of childhood leukemia. But any such agent, he thought, would have to be a pathogen of low potency, one that was widespread but affected only a very few susceptible individuals. And he no longer had much faith that epidemiological investigations would yield any answers to childhood leukemia. The available techniques were too crude and the disease too rare to establish any firm connection between cause and effect.
Nevertheless, when John Truman called him, Heath was duty-bound to investigate. He arranged to send an epidemiologist to Boston to meet with Truman and to collect the records of leukemic children from other Boston area hospitals.
Reverend Young left John Truman’s office more certain than ever that there was an epidemic of leukemia in east Woburn. And then events began to converge. Charles Ryan, theDaily Timesreporter who had written about the arsenic lagoon, had just completed a story concerning a study of cancer mortality by the state’s department of public health. In Woburn, deaths from all cancers had increased by 17 percentduring a five-year period in the mid-1970s. The incidence of leukemia in particular, and to a lesser extent kidney cancers, was alarming. “Even though cancer seems to be on the increase in Woburn,” wrote Ryan, “there is no way of knowing if that increase is due to the toxic wastes found in north Woburn.”
After reading this story, Reverend Young immediately called Charles Ryan at theDaily Timesand told him about the leukemia cluster he and Anne had discovered. Ryan’s second story appeared on December 12, 1979, on the front page of the paper under the headlineCHILD LEUKEMIA ANSWERS SOUGHT.
The mayor, unhappy with the publicity the city had received about the arsenic lagoon in north Woburn, was even less happy with Reverend Young’s activities. “For anyone with little or no authority to give the impression that there is a major health crisis within the confines of the city, without factual evidence to back up their statements, is totally irresponsible,” announced the mayor at a city council meeting. Reverend Young heard that the mayor, in private conversation, was furious about the “panic” and “hysteria” created by reports of high cancer rates. The chamber of commerce warned publicly about declining property values and other serious economic effects. “Businesses may decide not to expand, or even to move out of the area,” one speaker told the chamber. “Industrial land may not be sold because of the problem. Property values may be down.” The chamber’s vice-president foresaw “an exodus of business” and said, “We’ve got to try to head that off.”
That December the Centers for Disease Control formally requested permission from the city to launch an investigation into the possible leukemia cluster. With help from the Massachusetts Department of Health, an epidemiologist from Atlanta began designing a study for Woburn. Trained researchers from the department of health would be sent to the homes of the twelve families with leukemic children and conduct in-depth interviews on a wide range of subjects. The researchers would also interview twenty-four other Woburn families that had been selected as controls, matched by age and sex with the leukemic families. The study, said the experts, would take a year to complete.
Reverend Young worried that those in authority would try to minimize or even suppress the results of the investigation. On Sunday mornings, from the pulpit at Trinity Episcopal, he began to speakabout environmental contamination in Woburn and the high incidence of leukemia. He seized every opportunity to speak in public on the issue, and granted interviews to any reporter who asked. To aNew York Timesreporter, he said, “I set out to prove [Anne] wrong, that cancer and leukemia don’t run in neighborhoods, but she was right.” When Senator Edward Kennedy’s office invited both him and Anne to testify in Washington before the Senate Committee on Public Works and the Environment, he immediately accepted. Anne told the minister she would not go. She had to take care of Jimmy. Young insisted. “You must do this for Jimmy,” he told her.
So Anne went. She spoke only briefly, but her words became the headline inThe Boston Globe’s story the next day. “We fear for our children, and we fear for their children,” she said. “The neighborhood lives in fear.”
Donna Robbins got a visit from two researchers working on the CDC investigation one evening in July 1980, seven months after John Truman’s call to Clark Heath. The researchers asked Donna about the medical histories of everyone in the family, how often they had been exposed to X rays, how many pregnancies and miscarriages she’d had. They asked about her and her ex-husband’s jobs, their ethnic and religious backgrounds, their church and community activities, their eating habits, hobbies, and household pets. Did she keep a garden? Had she or her sons ever fished or waded in Woburn lakes and streams? Had she ever smoked cigarettes? Painted her apartment? Used hair spray or hair dye? Traveled outside Woburn? The entire process took nearly two hours. Donna answered as best she could. After the researchers left, she realized that they had never asked her about the tap water.
A few weeks later, Donna got a call from the Woburn lawyer who had handled her divorce, the same lawyer who’d referred her to Reed & Mulligan about Robbie’s hip operation. The lawyer said he’d been following events in the newspaper. He asked Donna if she’d thought about a lawsuit, perhaps against the city. Donna said the idea had not occurred to her. “Well,” said the lawyer, “you might call Joe Mulligan and see what he thinks.”
Donna raised the subject with Reverend Young the next day. The idea intrigued the minister. He thought a lawyer might help them get some answers. He told Donna he’d be happy to meet with Mulligan and explain the circumstances in Woburn.
Donna called Joe Mulligan. The lawyer expressed interest in meeting with Young and seeing if there was indeed a case. Although nothing had yet come of the case concerning Robbie’s hip, Donna still had faith in Mulligan. He had always treated her kindly. He still assured her periodically that Robbie’s case was developing, and she believed him.
The following week Mulligan drove out to Woburn in his white Cadillac, and Donna greeted him at the back door of the church. She escorted him through the hallway cluttered with the Trinity Thrift Shop’s wares, the piles of old clothes, the chipped dishware and battered toys. Bruce Young’s small, dark office was almost as cluttered as the hallway, and Mulligan seemed to fill all the space.
Reverend Young unfolded the map with the leukemia cases and showed it to Mulligan. He explained how he and Anne had put the map together, told him about his visit to Truman’s office, and described the way the city officials had reacted. “The odds of a cluster like this occurring by chance,” the minister told Mulligan, “are on the order of a hundred to one.”
Mulligan seemed impressed. Twelve children with leukemia—eight of them within a half-mile radius, six of them living almost next door to each other—and contaminated drinking water. It was, in legal terms, as Mulligan later said, “almostres ipsa loquitur”—the thing speaks for itself. There was, however, Mulligan pointed out, one significant problem: Who was to blame for the TCE in the wells? Reverend Young replied that the Environmental Protection Agency had just begun an investigation. Once the agency completed its report, they’d know the source. Mulligan suggested that he meet with the families. Reverend Young agreed to make the arrangements. And Mulligan departed, carrying a file of newspaper clippings that the minister had collected.
Since Anne knew most of the families, Reverend Young gave her the job of calling them to meet with the lawyer. The task made Anne uncomfortable. She wasn’t certain how some of the people might reactto the idea of hiring a lawyer. She wrote down what she wanted to say and rehearsed it a few times: “We thought it might be a good idea to meet with an attorney to see what the possibilities are.”
One woman whose son had died recently said coldly, “That was never on my mind.” The woman’s tone seemed to accuse Anne of attempting to turn a child’s terrible misfortune into profit. And a few families whose children were doing well in treatment declined the invitation. Anne thought perhaps they were superstitiously afraid, as if going to the law would cause their children to have relapses. But most of the families with leukemia in their households seemed interested.
The meeting with Mulligan took place late in August at the church. Mulligan introduced himself and talked a little about his firm and the sort of cases he had handled. For the most part he listened to the families tell their stories. The big question was whom to blame for the contamination of Wells G and H. Most people thought the old Woburn tanneries were probably responsible. One person suggested they could sue the city or the state. Certainly the city had been warned, time and again, about the water quality, yet the officials had paid no heed. Another man, the owner of a supermarket in town whose daughter had died two years earlier, vehemently opposed that idea. He feared his customers would disapprove of a lawsuit against the city, especially if it resulted in raising taxes to pay the cost of a judgment.
Someone asked Mulligan how much they would have to pay for his services. Mulligan explained that they would sign a standard contingency fee contract, which would entitle him to receive one third of any recovery, plus expenses he incurred in developing the case. The families had no obligation to pay him unless he settled the case or won a judgment in court.
Mulligan made a good impression on most of the families. They liked his confidence and assurance, and the way he listened to their comments and observations. He hadn’t made any grand promises, but he had mentioned in passing some of the cases he had worked on, and he seemed like an able lawyer.
At a second meeting some weeks later, in September, Mulligan asked those families interested in signing on with him to call at his office and arrange for an appointment. Five of the families—Anderson, Robbins, Zona, Kane, and Toomey—decided to have Mulligan represent them.That autumn, they drove into Boston to complete the paperwork and sign the standard personal injury contract forms.
Charles Anderson had been offered a promotion that required him to move to Toronto. He told Anne that he wanted to accept the offer, and he wanted her and the children to come with him.
Anne replied that moving now would be unfair to Jimmy.
“Toronto is not the end of the earth,” said Charles. “They have good doctors there, too.”
In the summer of 1980, after nineteen years together, Anne and Charles separated. Anne remained in Woburn with the children.
Jimmy was now eleven years old. He was small and frail, and he attended school fitfully, but since his relapse five years ago his blood counts had remained stable. Anne believed that he would, in time, be completely cured of the disease.
Late that summer, however, Dr. Truman noted that the boy’s platelet count and white-blood-cell count were both falling. A bone marrow biopsy revealed immature cells with irregular nuclei. Although the cells were not typical of lymphoblastic leukemia, Dr. Truman feared the leukemia was recurring. He did two more bone marrow biopsies. The results were inconclusive. In November he discovered that the total number of cells in Jimmy’s bone marrow was decreasing rapidly, a condition known as aplastic anemia. The boy did not have leukemia, but without a functioning bone marrow, he would die just as certainly as if he did.
Truman had never encountered this development before and it puzzled him. He stopped chemotherapy immediately. He tried to stimulate Jimmy’s bone marrow into producing platelets and white blood cells by administering anabolic steroids. That had no effect. Jimmy’s condition worsened. Truman tried a more experimental form of treatment with a compound known as ATG. “That, too, was unsuccessful,” recalled Truman at his deposition. “Bleeding worsened. His normal protective white blood cells vanished. Infections worsened.”
On December 22, 1980, Anne called the Woburn fire department and asked for an ambulance to take her son to Massachusetts General.Jimmy was bleeding steadily and profusely from his nose and his mouth, and his urine was grossly bloody. As the ambulance crew loaded the boy onto a stretcher, one of the firemen asked Anne, “Is your son a patient of John Truman’s?”
Anne, surprised, said, “How did you know?”
“My son had leukemia, too. Dr. Truman was his doctor.”
Anne had not seen the man at any of the meetings. “What’s your name?” she asked.
“John Lilley,” said the fireman.
Anne knew the name. She remembered that day almost six years ago, during Jimmy’s first relapse, when a distraught older woman had told her in the hospital corridor that a boy named Michael Lilley had just died.
Jimmy Anderson’s bleeding was controlled, although never completely arrested, by massive transfusions of platelets. He was twelve years old, and he knew his fate. “I’m going to die,” he told his mother angrily on the eighth day of his last hospitalization. “It’s not fair. I’ll never get out of here.”
The pain, which had always been present in recent months, became unremitting. He shook with chills, bled from the nose and mouth, had ringing in his ears and blurred vision. He complained especially about the pain in his stomach. When pain medication was not immediately forthcoming, he demanded it. “Don’t you understand?” he shouted at a nurse. “I really need it.”
The following day he became despondent. The nurses tried to coax him out of bed, but all he said was “I’ll never be able to go home.” Anne rarely left the hospital. On occasion she went to the cafeteria to eat, but most of her time was spent on the children’s cancer ward. Charles Anderson returned from Toronto to be with his son and to keep Anne company. By mid-January, the boy had reached a nadir. “Saga of intermittent fever goes on,” noted one of the nurses. “Mother has been here constantly and they both appear exhausted. Jim asking: Why me?”
Jimmy died on Sunday morning, January 18, 1981. Five days later, the Centers for Disease Control and the Massachusetts Department of Public Health jointly released a report entitledWoburn: Cancer Incidence and Environmental Hazards. The report was based on the investigationthat had started with Dr. Truman’s phone call to Clark Heath at the CDC more than a year earlier.
The report confirmed that an unusual number of leukemia cases did indeed exist in east Woburn. It read, in part: “Analysis of residence at the time of diagnosis reveals a significant concentration of cases in the eastern part of Woburn, where the incidence of disease was at least seven times greater than expected. The incidence of childhood leukemia for the rest of Woburn was not significantly elevated compared to national rates.”
The authors of the report said they could not establish a definite link between the contaminated drinking water and childhood leukemia. But they saw reason for suspicion: “Although the contaminants in wells G and H are not known to cause leukemia, the fact that organic contaminants were found in the water supply must be emphasized.” The report pointed out that the wells had been “on line during the presumed critical exposure period of the childhood leukemia cases and they served primarily the eastern part of Woburn.”
The authors noted that the source of the contamination of the wells was still unknown. The Environmental Protection Agency was attempting to trace the contaminants back to the point of origin, but that task, time-consuming and costly, would take at least another year, and probably longer.
It was the Friday evening of Memorial Day weekend and the mood at Jason’s, a fashionable bar in Boston’s Back Bay, was festive. Teresa Padro, a young woman who worked as a clothing buyer for a chain of national discount stores, sat at the bar waiting for a friend to arrive. Teresa’s job required that she travel a lot. She stayed in motels, worked late, and often had to fend off the advances of middle-aged male clients after business dinners. She was thirty-one years old. She had thick, dark brown hair that fell to her shoulders, almond-colored skin, and a body slim from regular exercise.
Two men at the bar were trying to strike up a conversation with her. On the road, this would have been an annoyance. At home, in Boston, she felt mildly flirtatious. One of the men was making his pitch when she happened to glance at the door and met the eyes of a man who had just walked in. He was tall and lanky, and he wore (her expert eye could tell even at a distance) an expensive suit. She thought he looked “interesting,” as she later recalled, but just then one of the men beside herasked her to dance. She declined. Then his friend asked her, and she rejected him, too. A voice behind her said, “I’m the pinch hitter, since everyone else struck out.”
She turned and saw the well-dressed man who had just walked in. He told her his name was Jan Schlichtmann, and then he asked if she’d ever heard of him.
She thought that was a most audacious question. “Why? Are you famous?” she asked in a droll voice.
He said he was a lawyer. He’d just settled the Copley Plaza Hotel fire case for $2.5 million. “The biggest wrongful death settlement in Massachusetts history!” he exclaimed. His picture had been in theBoston Herald. Hadn’t she seen it?
“What kind of lawyer are you?” she asked.
“I represent people who’ve been injured.”
“Oh. An ambulance chaser.”
“No,” he said firmly. “I represent victims.”
“You probably sue doctors,” she said. “You wouldn’t fit into my life. My mother and my father and my brother are all doctors.”
He asked her what she was doing that weekend.
“I’m going to the Cape,” she said.
“Really? I’m going there, too.”
“Are you driving?” she asked.
“No, I’m taking the plane.”
“Don’t you have a car?”
“Yes,” he said. “I just bought a Porsche.”
He was so unabashedly egotistical that she had to laugh. He was tall, six feet three inches, with a lean, narrow face and a prominent Semitic nose. He wore a thick but neatly trimmed mustache, perhaps to fill out his face. His suit was expensive—handmade, she could tell at a glance. But the tailoring could not hide the fact that he was as gangly as a boy. Even the collar of his hand-tailored shirt did not quite fit around a neck as spindly as his. The most attractive thing about him, she thought, were his brown eyes, which seemed warm and gentle. When she commented on his eyes some days later, he laughed and told her his father used to tease him by calling him Spaniel Eyes. That night, he did Irish and Italian accents for her and told jokes until finally, despite herself, she was laughing.
“Do you have a girlfriend?” she asked him.
No, he said, shaking his head, he didn’t. She could tell by the smile just creasing his lips that he thought he was finally getting somewhere with her.
“Are you married?” she asked.
He said he wasn’t.
She shrugged. “What’s so great about you, then?”
When Teresa’s friend Alma arrived, he danced with both of them. He was not, she had to admit, a very good dancer, too loose-limbed for grace, but he was enthusiastic and not self-conscious.
They spent most of that weekend together, in Boston. He lived on the top floor of an old and elegant nineteenth-century building on Beacon Hill. From his balcony he had a sweeping view of the Charles River and the Esplanade. He had more suits than any man she’d ever met, but she soon learned that he really knew very little about clothes. “He buys labels,” she explained, after several years with him. “He’s the type to buy Baccarat china because it’s Baccarat. He doesn’t have the self-assurance to believe it’ll look good if it doesn’t have a label.” She began educating him about clothes. She bought him ties as gifts. After he won a big case wearing her ties, he became superstitious and would never appear in front of a jury without one she had selected.
He would take Teresa and her two best friends out on the town and entertain them the entire evening, laughing and dancing with each in turn. She thought he was astute about people. He could tell if she or one of her friends was having a problem of some kind. He’d ask about it and listen carefully to the answer. She became friends with the people who worked in his office, especially with his secretary, Kathy Boyer, who had worked for him since he started practicing law. When he won or settled a case, everyone in the office got a big bonus. He’d take the entire staff out for drinks and dinner whenever someone had a birthday. Sometimes he’d invite them all out for no reason at all. He always picked up the tab. When he prepared an opening or closing argument for a trial, he insisted that everyone in the office, even the receptionist and the filing clerks, listen and offer their opinions. During an actual trial, the entire office staff would come to the courthouse and sit in the gallery to watch him at work.
At first Teresa thought he was simply self-centered, a flaw he himself seemed to recognize in his character. “He’s also very generous,” said Teresa, “because he knows he’s self-centered and he feels guilty about it.”• • •
Lawyers in America have never been well liked. One of the first lawyers to arrive in the New World was an Englishman named Thomas Morton, who landed at Plymouth Colony in 1625, four years after the Pilgrims. Two years later he was jailed for trading firearms to the Indians and then expelled from the colony. In Massachusetts, fifteen lawyers practiced the profession in 1740, collecting debts and litigating disputes among merchants. By the time of the Revolution, that number had grown to seventy. For some citizens, lawyers had become “cursed hungry Caterpillars” whose fees “eat out the very Bowels of our Commonwealth.” Two hundred years later the basic complaint remains the same. “We may well be on our way to a society overrun by hordes of lawyers, hungry as locusts,” said Chief Justice Warren Burger in 1977.
As a youth, Jan Schlichtmann had not thought highly of the legal profession. He was born in Framingham, a working-class city dominated by a General Motors auto plant. His father, a traveling salesman, had always told his three sons that they should work for themselves. At the dinner table, he saw in his second son, Jan, a gift for argument. The boy had a passionate desire to persuade others to his own point of view, and he was unrelenting in his efforts. Irksome as this was in an adolescent, his father thought he saw in it the makings of a successful lawyer, and he urged Jan to consider the profession.
At the University of Massachusetts, Schlichtmann studied philosophy. To him, the legal profession did not seem any more independent or exalted than the plumbing trade. That was the analogy that occurred to him when he thought about becoming a lawyer. People hired you to fix things in their lives—wills, divorces, collecting on bad debts—the same way they’d hire a plumber to fix clogged pipes and leaky faucets in their houses. Working in a big law firm would be even worse. You’d do the dirty work of the rich and powerful.
When he graduated from college, in 1972, he married a fellow student. They moved to Rhode Island, where his wife entered graduate school. Schlichtmann, with a degree in philosophy, could not find a job that suited him. For want of anything better, he started selling life insurance to graduate students. In six months, he sold nearly a million dollars of insurance, but he despised the work. His marriage was unhappy. One day in the spring of 1973, he stopped selling insurance and started watching the Watergate hearings on television. For threemonths he sat at home, engrossed in the drama. His wife accused him of indolence. When the hearings ended, he knew he could never go back to selling insurance. He told himself he wanted to do something useful, something to benefit society, but he could not figure out what. He combed through the newspapers looking for a job. Finally he found an ad that read: “National Social Service Organization opening Rhode Island Branch. Looking for young, dynamic person as Executive Director. $8,500 salary.” He applied and discovered that the organization was the American Civil Liberties Union. One evening, he heard on the local television news that the ACLU had just opened its Rhode Island branch. Its new director, said the newscaster, was named Jan Schlichtmann.
His first case at the ACLU involved a group of nuns and welfare mothers who had gathered in the State House rotunda to protest the governor’s cuts in welfare aid. The group convened at the State House once a week on Wednesday afternoons for half an hour. After a short prayer they’d sing, “Wake up, my people, wake up to the needs of all who suffer sorrow.… All across the nation, hungry people are starving.” On the third Wednesday, the governor had them ejected, claiming they were disrupting State House business. When they returned the following week, the governor threatened to arrest them.
Schlichtmann looked for a lawyer among the ACLU’s membership who would take on the case, and then, full of zeal and impatience, he began working on it himself. He discovered that after the governor had ejected the nuns and welfare mothers, a theatrical troupe, invited by the governor’s wife, had performed in the rotunda for several hundred schoolchildren. Earlier that same week, the General Assembly had celebrated St. Joseph’s Day in the rotunda with a feast of Italian food and music. No one had protested these activities or claimed that they had disrupted State House business.
Working on this case, Schlichtmann experienced a profound revelation. The concept of a system of justice—laws and courts that permittedwelfare mothersto challengegovernors!—seemed to unfold gloriously before him. He suddenly saw that lawyering wasn’t just wills, divorces, and sordid criminal matters, the leaky faucets and clogged pipes of society. The law, he decided, was perhaps the highest calling a man could aspire to. On behalf of the nuns and welfare mothers, he drafted a complaint and held a press conference on the State House steps, surroundedby his clients. Camera crews and reporters came to interview him. He saw himself on television for the first time that night. He would have liked to argue the case himself in federal court, but he was not a member of the bar. He recruited a young lawyer just out of night law school and sat with him at the counsel table in Judge Raymond Pettine’s courtroom, orchestrating the presentation of witnesses and evidence.
By then he’d already applied to law school. Cornell accepted him. His marriage ended. In his first year at Cornell, Judge Pettine’s ruling, some thirty pages in ringing support of the nuns and welfare mothers, was reported in the Federal Supplement.
In law school, the big issues of law and society—civil liberties and the First Amendment—captivated him. Like every law student, he was required to study the law of torts, that broad field dealing with the compensation of people who had suffered loss or injury at the hands of another. He got a C in torts, a subject he found dull and unimportant.
He gave little thought to how he’d make a living as a lawyer. Most of his classmates were angling for big money jobs in big city firms, and Schlichtmann did the same. In his third year he had an interview with a senior partner from the New York law firm of Skadden, Arps, Slate, Meagher & Flom, one of the biggest and richest firms in the country. The interview got off to a bad start. The senior partner, who was cold and brisk throughout, asked Schlichtmann if he had any misgivings about working for the ACLU. He asked the question in a tone that suggested Schlichtmannshouldhave misgivings. Schlichtmann said, “My only regret is coming to this interview,” and he got up and left.
Schlichtmann flirted with the idea of becoming a country lawyer, but he finally decided on a job with a small Washington, D.C., law firm that specialized in dealing with the Federal Communications Commission. On the first day of his job one of the firm’s lawyers took him to the FCC and introduced him to the government agency he would be dealing with. On the second day he was shown a towering stack of government forms he’d be filling out so that a television network could purchase new stations. On the third day Schlichtmann sat at his desk wondering how he would endure his job. That morning he got a call from his criminal law professor at Cornell, G. Robert Blakey, who had just been appointed chief counsel for the House Select Committee on Assassinations. There was an opening on the staff. Was Schlichtmann interested?
Schlichtmann went into the managing partner’s office and asked for a year’s leave of absence.
“Pro bono?” said the partner. “We don’t do any goddamn pro bono work here.”
“I thought it would look good for the firm,” said Schlichtmann.
“The best thing for the firm,” said the partner, “would be for you to get out now.”
Schlichtmann spent nine months with the House select committee. He was one among many staff lawyers, and a low-ranking one at that. He felt stifled by the bureaucracy, by the need to report every action to superiors. He began to dream again about becoming a country lawyer, being his own boss, seeking fulfillment among the common folk.
He quit the committee and drove to Portsmouth, New Hampshire, with the idea of starting a practice. He discovered that Portsmouth already had plenty of lawyers. On the way back to Boston, he saw a sign for Newburyport, a coastal fishing village that was rapidly developing into a community of condominiums and boutiques. In Newburyport, a real estate agent told him it was just the sort of place that needed more lawyers, and he actually believed her.
Schlichtmann rented a second-floor apartment in a building in the center of town. He divided his living room into an office and reception area and hired a part-time secretary. He decided he would own the best law library in Essex County. He built his own bookshelves and started filling them with lawbooks, all bought on credit, no money down. In June he opened the office. Business was slow. He read his new lawbooks. By October he was broke and two months behind on the rent. He owed the landlord eight hundred dollars. One day that fall, a man walked into his office with an incredibly tangled real estate matter that he described at great length to Schlichtmann.
“Will you take the case?” the man asked finally.
“Yes,” said Schlichtmann, with a sinking heart.
“How much will it cost to retain you?” asked the man.
“Eight hundred dollars,” said Schlichtmann. He had begun to suspect that country lawyering was not for him.
During the next year and a half he worked on sundry legal matters. He recovered a security deposit in a landlord-tenant dispute. He handled a few workers’ compensation claims, a drunk-driving case, a dispute between a customer and a local merchant, and a “slip ’n fall,” as itwas called in the trade—a young woman emerged from a bar, caught the heel of her shoe in a sidewalk grate and fell, shattering her elbow. Schlichtmann attempted to cultivate the local banks in order to get house closings, but he had no great success. He eked out a living. He fell behind on payments for his law library.
One morning, a shy, inarticulate young man named Lowell Eaton entered his office and asked, apologetically, if he might talk to Schlichtmann about a legal matter. Eaton explained that his only child, a three-year-old boy named Stuart, had drowned five years ago in a gravel pit next door to his house. It had happened on a Saturday afternoon, when Lowell and his wife were both working the morning shift at the shoe factory. The boy’s grandmother was tending the child. She left him alone in the backyard for a few minutes while she went into the kitchen to get a basket of laundry. When she returned, Stuart was nowhere in sight. She went next door, where Stuart’s aunt lived, but found no sign of the boy. After an increasingly frantic search, she found Stuart floating facedown among the reeds and overgrowth of the gravel pit. The very next day, Lowell Eaton told Schlichtmann, the construction company that owned the land had sent a convoy of dump trucks to fill the pit.
Lowell explained that he’d already gone to one lawyer. The lawyer had filed a suit against the construction company, but then nothing had happened. Lowell had called the lawyer every so often to ask about the case. Three years had passed. The last time Lowell had called, the lawyer had advised him to stop dwelling on the death of his son. By then, Stuart’s grandmother had died and there were no witnesses to the boy’s death. The case, the lawyer had said, was hopeless.
Lowell Eaton asked if Schlichtmann would take the case, and Schlichtmann agreed to look at the file. A wrongful death case was more complicated than anything he’d ever attempted. It required writing up lengthy interrogatories, taking the depositions of witnesses, and properly requesting documents. If the case went to trial, he’d have to choose a jury, give opening and closing arguments, cross-examine witnesses, and build foundations for evidence. He had never done those things before, but he had little else to occupy him. He told Lowell Eaton he’d take the case.
Schlichtmann filed an amended new complaint asserting that the construction company was negligent and reckless in allowing the pool of water to accumulate in the gravel pit, in not fencing the land, fillingin the pit, or posting it as a hazard. The defense lawyer was named Clement McCarthy, a veteran of several hundred trials and a dour and gloomy man. He denied the accident had taken place on his client’s land or that such a pit had ever existed. Certainly it did not exist today, said McCarthy. And even if it had once existed, Stuart Eaton had been a trespasser. Moreover, his parents had assumed the risk by choosing to live next to a gravel pit, if such a pit had indeed ever existed.
Schlichtmann began reading books on the fundamentals of discovery and trial practice. He hired a photographer to fly above the site of the old gravel pit and take aerial photographs. He collected photographs of Stuart in the week before his death, photographs of Stuart’s parents proudly holding their son. In Rhode Island he located the newspaper photographer who had taken a picture of the pit and the pool of water on the afternoon of Stuart’s death. He had all of those photographs enlarged to the size of movie posters and mounted for display in the courtroom. He hired a civil engineer and a doctor to testify as expert witnesses. Late one evening he realized that he had found his calling. “This,” he said to himself, “is what I want to do with my life.”
After four months of work, he felt prepared for trial. He struggled to get a trial date in the crowded state courts while Clem McCarthy requested and received one continuance after another. With each delay, Schlichtmann went back to the case and worked some more. By the end of seven months, he had spent fifteen thousand dollars on the case, most of it borrowed. He was deeply in debt. The lawbook company dunned him. His landlord threatened to evict him. Creditors called constantly. His part-time secretary, Kathy Boyer, was working full-time for no pay.
A week before the new trial date, the claims manager at Liberty Mutual, the insurance company that represented the construction company, called and offered to settle the case. “Let’s get rid of this thing,” said the claims manager. “Everybody in the case is dead—the owner of the construction company, the boy’s grandmother, the boy. Without the grandmother, you don’t have a witness to the boy’s death. I’ll give you five thousand dollars and you’ll go on to the next case.”
“I can’t do that,” said Schlichtmann.
“That’s more money than this family has ever seen before. There’s no way you can win this thing. With five thousand, you can get your expenses back.”
“I’ve spent fifteen thousand,” said Schlichtmann.
The claims manager laughed grandly. “You say this is your first trial? Maybe I’ll come and watch this. I want to see the kid who blew the Eaton case.”
The trial lasted eight days. Schlichtmann sat at the counsel table with Kathy Boyer. Clem McCarthy objected constantly on procedural grounds: “Lack of foundation, hearsay, leading question, irrelevant.” Judge Peter Brady would summon Schlichtmann to the bench and explain the rudiments of trial technique. The judge was a patient man, and he was also impressed by the work Schlichtmann had put into the case. On the last day of trial the judge called both the lawyers to the bench. “I think somebody’s going to get hurt here,” he said. “My sense is that you should settle this case.” He looked at Clem McCarthy, “I think seventy-five thousand dollars is fair.”
“Judge, what are you doing to me?” said McCarthy with great indignation but also with an eye on Schlichtmann. “Jesus Christ, this case isn’t worth that much!”
In the hall, Schlichtmann asked Kathy Boyer’s advice. “Take it, Jan,” she said, thinking about the many weeks she’d gone without a paycheck. The Superior Court clerk took Schlichtmann aside and offered his advice. “This is a tough county,” he said. “A drunk driver ran down a kid playing on his own lawn and the parents only got twenty thousand. You should take the money.”
But after nearly a year of work, Schlichtmann wanted to hear what the jury would say. He told the Eatons about the offer. “I think we’ll win the case,” he said, “and I think we’ll get more money from the jury.” Lowell Eaton told Schlichtmann to do what he thought best.
At the judge’s bench, Clem McCarthy said, “I’ve talked to my client and they’re willing to settle for seventy-five thousand.”
Judge Brady looked at Schlichtmann.
“I can’t accept it,” said Schlichtmann.
“I was a trial lawyer for a long time,” the judge said, looking soberly at Schlichtmann. “I think you ought to give this very serious thought.”
Schlichtmann said he had given it serious thought. “My clients would rather take no from the jury than seventy-five thousand dollars from the insurance company.”
Clem McCarthy shook his head in amusement. “You’re not going to allow Mr. Schlichtmann any second thoughts after he’s shed his tears, right, Judge?”
Schlichtmann gave his summation just before lunch. The jury began deliberating and Schlichtmann started pacing in the hallway, too nervous to eat. One hour and fifteen minutes later, the jury came back with a verdict of $250,000 for the Eatons, plus another fifty thousand dollars in interest accumulated since the time of Stuart’s death. Clem McCarthy, a grim look on his face, demanded that the judge set aside the verdict on the grounds that it was excessive. The judge, amused, rejected McCarthy’s motion. “You said there’d be no second thoughts after the tears were shed.”
Schlichtmann’s gamble had paid off, but it had been foolhardy, dignified only by his inexperience and the fact that he’d won. It was not necessarily the best sort of lesson for a fledgling lawyer.
Schlichtmann’s fee from the Eaton case came to nearly a hundred thousand dollars. He paid his debts, gave Kathy Boyer a large bonus, and went to a tailor to get some suits made. He had decided to make his name as a trial lawyer, and the nearest place to do that, he knew, was in Boston. He wrote letters to the three most prominent personal injury firms in the city looking for a job. A month passed. He got no response. He sent out more letters. One of these he addressed to the firm of Reed & Mulligan.
He was waiting to hear from the Boston firms when, by a stroke of luck, he landed a major case. A Newburyport businessman, the proud owner of a new single-engine Piper Arrow, had flown to Atlantic City for a weekend of fun and gambling with three companions. On the return flight to Massachusetts, the plane had crashed into Long Island Sound, killing all of the occupants. The bodies had not been recovered, although some debris from the Piper Arrow had washed up on a beach. One of the passengers had been a young divorcée whose four-year-old son was now in the custody of her ex-husband. As it happened, one of Schlichtmann’s part-time secretaries encountered the ex-husband oneevening in a Newburyport bar. The man told her he was looking for a lawyer to represent his son’s interests.
“I’ve got just the lawyer for you,” Schlichtmann’s secretary said.
Schlichtmann had just plunged into the case when he got a telephone call from the senior partner at the firm of Reed & Mulligan. Barry Reed said he’d received Schlichtmann’s letter asking for a job and he wanted to meet with him. Would Schlichtmann come down to Boston for lunch?
Schlichtmann met Reed at an expensive Italian restaurant on Beacon Hill, a place frequented by the governor and the mayor and the state’s other power brokers. Schlichtmann followed Reed across the restaurant, watching as Reed stopped at one table after another to exchange greetings, shake hands, and chat with acquaintances. Reed was at the height of his celebrity. He had written a novel,The Verdict, which was being filmed on location in Boston, starring Paul Newman. The Boston news media followed the filming closely, mentioning in nearly every story Barry Reed, author and lawyer. Often Reed’s photograph accompanied the stories. He was himself as handsome as a movie star—in his mid-fifties, slim, a full head of wavy silvery hair, his features chiseled and rugged. He had a reputation as a raconteur, and at lunch with Schlichtmann he told one story after another about his cases, interrupting his tales only to wave or nod to passing acquaintances. Schlichtmann felt dazzled by Reed. He noticed, though, that Reed never once asked him about himself. By the second hour Schlichtmann began to wonder why Reed had invited him to lunch.
As Reed was signing the tab, he mentioned, as if the thought had just that moment occurred to him, that he represented the estates of two passengers in the crash of the Piper Arrow. The pilot had carried a million-dollar insurance policy, payable to the passengers if Reed could prove that the pilot had acted negligently. Reed said he had heard that Schlichtmann represented the third passenger. “I think you should let me handle that case,” counseled Reed. Of course, he added, he would pay Schlichtmann a handsome referral fee when the case was settled, and Schlichtmann would not have to do any work.
“It’s my only case,” protested Schlichtmann, who had the distinct impression that Reed did not think him capable of handling it. “Why don’t we work on it together?”
Reed didn’t appear to like this idea. He tried again to talk Schlichtmann out of the case, but Schlichtmann refused to give it up. In the end, Reed agreed to let Schlichtmann work with him, perhaps if only to keep a close eye on the young lawyer. “Okay,” said Reed. “You can work out of the conference room at my office.”
Schlichtmann began spending most of his time at Reed & Mulligan. Reed would stop by the conference room occasionally to see how the “kid” (as he began referring to Schlichtmann) was doing. Usually the kid was there when Reed left the office at night. Usually he was there when Reed arrived in the morning. These hours were something new at Reed & Mulligan. Sometimes the kid would disappear for a few days. Then he’d burst into the office brandishing a piece of the Piper Arrow or an article of clothing he’d found while combing a Long Island beach. The kid did not work quietly. Each new discovery brought shouts of jubilation from the conference room. The office settled back into tranquillity when the kid went to Atlantic City to trace the last days of gambling, drinking, and high living of the businessman and his three companions. It erupted when the kid returned with the businessman’s credit-card receipts and affidavits from the bartenders and cashiers who’d seen the four revelers on their last day.
Schlichtmann believed the businessman had been drunk and therefore negligent in operating the plane. Furthermore, he’d earned his pilot’s license only four months before the accident and was not qualified to fly on instruments. Yet he’d left Atlantic City at six o’clock in the evening, taking off into overcast skies. He had entered the cloud cover near Long Island and encountered sleet and snow. Schlichtmann got a tape recording of the pilot’s last conversation with an air-traffic controller at Kennedy Airport. The entire office of Reed & Mulligan gathered around to listen. They heard the businessman, his voice panicky as he lost his bearings in the clouds, request a lower altitude from the air-traffic controller. The controller instructed him to turn to the right during his descent. He turned to the left instead. He apologized, and then there was an unintelligible sound, high-pitched and keening. Perhaps it was a scream. Seconds later the Piper Arrow disappeared from the radar screen.
Schlichtmann filed suit in Massachusetts Superior Court three months after the accident. Within a matter of days he and Reed began negotiating with the insurance company that held the million-dollarpolicy on the pilot. The case would settle, Schlichtmann believed, for a sum close to the policy limit.
Never in the history of Reed & Mulligan had a case been put together so swiftly. Reed began to treat Schlichtmann like a son. He mentioned one morning that there were other cases in the office that needed work. “The kid is like a bulldog,” Reed told his partner, Joe Mulligan. “Once he gets hold of something, he doesn’t let go.”
Donna Robbins had been calling the office of Reed & Mulligan off and on for nearly three years, ever since Joe Mulligan had taken the malpractice case concerning Robbie’s hip. That case, a difficult one to begin with, had been rendered essentially worthless since Robbie’s death by leukemia. Mulligan felt he’d be lucky to get Donna a few thousand dollars, a “nuisance-value” settlement.
Four months had passed since Mulligan had signed up the families in the Woburn case, and Anne Anderson had begun calling the office, too. Mulligan answered most of the calls at first. “These things take time,” he’d explain to Anne, the very same words Donna used to hear when she called about Robbie’s case. After a while Mulligan let his secretary handle most of the calls. She would tell Anne or Donna that Joe was out of the office or in a meeting. The secretary began feeling sorry for the women. After making yet another excuse, she’d walk into the office of one of the firm’s associates and say, “What are we going to do with these poor people?” But the associate was a lowly member of the firm. He could only shrug. The case wasn’t his.
Reed & Mulligan had many personal injury cases in its files. Mulligan was fond of calling especially promising cases “gold mines.” A new case might look promising at first, but further investigation sometimes revealed a fatal flaw, and the case would die quietly in the files. Many cases in many firms across the nation expired in such a fashion.
Mulligan still regarded Woburn as a potential “gold mine,” but he had done little work on the case. He had gone once to speak with the state environmental people, hoping they could tell him who had contaminated the wells. But they’d been “tight” (as he later put it) with information. He had also hired at minimum wage two students fromSuffolk Law School, where he himself had gotten his degree, night division. He had instructed the students to collect whatever pertinent information they could find in Woburn, and he’d left them to work on their own. One of them quit after a few weeks, and the other one did little more than clip newspaper articles from theWoburn Daily Times.
Mulligan had followed Schlichtmann’s progress on the Piper Arrow case with interest. He was impressed with Schlichtmann’s industry, and he decided to recruit the young lawyer for the Woburn case. One evening that winter, before leaving the office, he stopped at the library and invited Schlichtmann out for a drink. “I’ll be at the Littlest,” said Mulligan. “Meet me there.”
The Littlest Bar on Province Street was Mulligan’s favorite haunt. It was not only tiny but also subterranean, down six steps from the street. By dusk on a winter evening, the Littlest was crowded with men, most of them Irish, many of them lawyers, a tight nest smelling of whiskey and tobacco. Mulligan cut a huge swath in the Littlest. He towered over the bar and his stentorian voice rose above the babble. Among some patrons at the Littlest, word had it that Reed’s hero inThe Verdict, the dissolute but principled lawyer, was modeled after Mulligan. Mulligan never denied it.
When Schlichtmann arrived at the Littlest that evening, Mulligan bought him a drink and introduced him around. He put his arm around Schlichtmann’s shoulder (he was taller by several inches than Schlichtmann, who himself stood well above an average crowd) and steered him to a stool in the corner of the bar. He began talking about the Piper Arrow case, telling Schlichtmann that he was impressed by how quickly he’d put it together. “There are other good cases in the office,” Mulligan continued. “I’ve got one in particular I’d like you to look at, a mass-disaster case, best case in the office. This one could be a real gold mine. It’ll require some hard work, but you’re just the sort of guy to develop it.” Mulligan began describing the Woburn case.
Schlichtmann had read inThe Boston Globeabout the leukemia cluster, but he hadn’t known that Mulligan was involved, or that there was even a case. He felt flattered that Mulligan would ask him to work on a case of such importance and celebrity. “When can I see the file?” he asked.
Mulligan said he’d have his secretary get it for him tomorrow. “A lot of pieces are still missing from the puzzle,” Mulligan confided. Theytalked about Woburn for an hour over drinks. Mulligan told Schlichtmann several times he was “delighted” to have him working on the case.
On the conference room table the next morning Schlichtmann saw a slender manila file labeled “Woburn Cases.” The file, less than an inch thick, looked very thin for a mass-disaster case. The Piper Arrow file, by contrast, occupied almost an entire cabinet drawer. Schlichtmann opened the Woburn file and saw newspaper clippings and Mulligan’s contingency fee agreements, standard forms in which the lawyer had agreed “to do any and all necessary things in the prosecution of any claims which the client may have against”—here Mulligan had filled in the words—“any and all Defendants identified by the attorneys.”
The only other item in the file was the report of the investigation by the Centers for Disease Control and the state department of health. Schlichtmann started reading the report. Some of it seemed promising—the fact, for instance, that it was very unlikely the cluster of childhood leukemias in east Woburn could have occurred merely by chance. But other items in the report gave Schlichtmann pause. “With few exceptions,” said the report, “investigations of leukemia clusters have failed to demonstrate significant associations or even promising leads as to environmental causes.… None of the chemicals found in Wells G and H are known to be leukemogenic, although trichloroethylene and tetrachloroethylene have been found to cause tumors in laboratory animals. The source of the present contaminants is unknown.”
When he finished reading, Schlichtmann felt dismayed. A dozen questions went through his head: Whose chemicals had polluted the wells? Who had dumped these chemicals, and when had they gotten into the water supply? Had they in fact caused leukemia? The file was silent on almost every question. It was apparent that Mulligan had spent little time on the case.
Schlichtmann took the file back to Newburyport and found himself looking at it again. He could not even pronounce the names of the chemicals in the Woburn wells, but he felt instinctively that they probably had caused the cluster of leukemias. He himself had always been vigilant about what he ate and drank. His grandfather, owner of a pharmacy and soda fountain, had once caught Schlichtmann’s father eating a handful of maraschino cherries. “Don’t ever eat those,” the grandfather had warned. “They’re full of chemicals that’ll make you sick.” Warnings of this sort had in turn been impressed on Schlichtmann atan early age. His father had always done the family’s grocery shopping. He’d read labels obsessively, long before most people gave labels any thought, and pointed out to his sons all the chemicals in canned foods. Dutiful in this respect at least, Schlichtmann never took any drug stronger than aspirin, nor had he ever smoked or drunk coffee. He rarely ate red meat and he avoided tap water, preferring instead bottled water, the more expensive the better.
At a glance, the Woburn case did look, as Mulligan had said, quite promising—polluted drinking water had apparently caused an epidemic of leukemia. But Schlichtmann knew that such a claim would be difficult to prove. He’d have to delve into the question of what causes leukemia, a question that medical science itself had not yet resolved. And it would be expensive. The Eaton case, by comparison, had been a simple affair, and yet he’d spent fifteen thousand dollars and seven months working on it. At this point in his career, Schlichtmann had been practicing law for only three years. He had taken only one case to trial. Woburn was too big, he told himself, too expensive, too complicated.
Mulligan’s secretary began directing the phone calls from Anne and Donna to Schlichtmann. The message slips soon grew into a small pile. One evening that spring, Schlichtmann went out to Woburn to meet the families. It was dusk when he left the office. He drove through the Pine Street neighborhood, past the quiet orderly homes, the forsythia in full bloom. When he arrived at Anne’s house, the families were gathered in the living room, awaiting him. He introduced himself and explained that Mulligan had asked him to work on the case.
He knew that these people wanted to hear what progress he and Mulligan had made. He explained that he had no basis yet for filing a lawsuit. That action would have to wait until the government agencies had identified the source of the contaminants in the wells. “Toxic waste dumps are surfacing all over the country,” he told the families. “The EPA doesn’t have the capacity or the leadership to investigate each one. You have to organize, you have to force them to do their job. This is a political battle now, not a legal one. We’re not ready for the legal battle yet.”
He stayed at Anne’s house for nearly two hours, answering questions, getting a sense of his new clients. Anne’s child had died four months earlier, and she looked pale, her eyes rimmed in red as if she had beencrying just moments ago. But Schlichtmann was struck by her forcefulness and the intelligence of her questions. He talked for a while with Richard and Mary Toomey, whose son Patrick had also died earlier that year. Richard, a sheet-metal worker for nearly thirty years, was a reserved man, but he had a blunt, honest face, and Schlichtmann liked him immediately. “We’re not in this for money,” Toomey told Schlichtmann. “We just want information. No one will tell us anything.”
Schlichtmann left the meeting feeling sorry for these people. But he also felt he could do little to help them.
In the files at Reed & Mulligan, Schlichtmann found dozens of other cases, many of them gathering dust, waiting for someone to take interest. They were, he thought, like unpolished stones, like lumps of coal. Many were of such small value—the one concerning Donna Robbins’s boy, for example—that they would barely justify his labor. A few were completely worthless. But some looked as if they might contain a diamond at the core. He kept searching for the most promising ones. Soon the Woburn file was buried beneath the other cases.
Assisting Schlichtmann was a lawyer who occupied a small cubicle next to Mulligan’s office. The lawyer’s name was Kevin Conway. He was in his mid-thirties, several years older than Schlichtmann, short and stoutly built, with a belly that was edging toward portliness. He had a manner, unpracticed and unconscious, of conveying warmth and concern. The office workers all seemed to come to Conway with their troubles. When, for instance, Mulligan’s secretary became upset by the plight of the Woburn mothers, she went to Conway.
Conway had been at Reed & Mulligan for two years, doing piecework, getting paid by the case. The job was his third since graduating in the top half of his class at Georgetown University Law School. He had started his career working for a big company in New York, where he’d had an office with a view and made a handsome salary. But after six years there, he’d felt as if life were passing him by. He had no sense of accomplishment. He’d looked at the people around him, people who’d spent their lives working for the company, and he’d realized that if he didn’t leave soon, he might never get away.
Conway had decided to go into practice for himself. He descended from a position of relative prestige in the legal world—from an office on the fiftieth floor of a fancy building in New York—to the lowly status of a solo practitioner, close to the legal profession’s bottommost rung. He moved into the basement of a century-old building in Belmont, a suburb of Boston. From the window of his office in Cushing Square, he had a pavement-level view of a working-class neighborhood of small shops. He knew this world well. He’d grown up near Belmont, not far from his new office, the second of nine children, the son of a schoolteacher. There had never been much money in the Conway family, but there had always been plenty of warmth and conviviality. Every Sunday afternoon the entire Conway clan would assemble in the living room with their musical instruments for a concert. The house was always a thick tangle of kids, crowded with Conways, but so inviting that many neighborhood kids gathered there, too.
For his new office in Belmont, Conway hired a secretary, a pretty woman in her early thirties named Peggy Vecchione who had once dated Conway’s younger brother. By her own admission, Peggy could barely type and she knew nothing about legal work. But she needed a job badly. She had recently gotten divorced and had two children to support. Conway didn’t think twice about hiring her.
Together they handled the legal problems of anyone who walked in Conway’s door. Most of these problems were simple matters—wills, minor criminal infractions, house closings. Also some divorces, though Conway did not like divorces because they saddened him and he invariably spent too much time trying to reconcile the unhappy spouses. Peggy watched one couple walk out the door, irritated by Conway’s counseling. “Don’t you understand?” the man said, his voice raised. “We want a divorce!” Peggy told Conway he must have done a good job. “At least they’re angry at you instead of each other,” she said.
Conway came dutifully to work every day, even though there wasn’t always much to do. He’d consult with Peggy about how much to charge a client. For a will of moderate complexity, she would advise one hundred fifty dollars. “They can’t afford that,” Conway would say of an elderly couple. He would charge fifty dollars. He’d ask Peggy how long it would take her to type the will, and she’d say, anticipating many errors and retyping, “Oh, about a week?” Conway would respond, “Hmm, that long?” But he wouldn’t complain. When businesswas slow, he went to the arraignment courts and represented indigent defendants. For each case, he got paid seventy-five dollars by the state. He made only as much as he needed, and his needs weren’t great.
After a few years in Belmont, Conway married a woman he’d courted since his New York days, and his needs grew slightly greater. He had known Joe Mulligan for several years, and when Mulligan invited him to come work at his firm, Conway accepted. He brought Peggy along with him. He didn’t draw a salary. He got paid only from the proceeds of cases he helped to resolve.
He’d been at Reed & Mulligan two years, working out of a small cubicle, when Schlichtmann showed up. Peggy would never forget that day. “Kevin used to tell me, ‘There’s no passion in my life.’ He was bored with what he was doing. Then Jan burst into the office. He represented somebody in an airplane crash, a client that Barry Reed wanted. Barry didn’t have a chance against Jan. He was overpowering. Kevin was stunned by him. Kevin said, ‘Jan’s exactly like what you hope you’re going to be when you get out of law school.’ ”
Conway had helped Schlichtmann draft the complaint in the Piper Arrow case. When Schlichtmann began digging through the files at Reed & Mulligan, Conway was his guide. Conway unearthed a case in which a three-year-old girl, vomiting and with a high fever, was examined by a doctor, treated with aspirin, and sent home. She developed fulminant meningitis and suffered brain damage as a result. Schlichtmann and Conway settled the case for $675,000. They worked together every day. In the evening they’d go downstairs to the Emperor of China restaurant on Tremont Street for dinner and then come back to the office and work some more. They took on a case in which a hospital incubator had overheated, causing brain damage in a newborn infant. They settled that case for $1.15 million. When an insurance company refused to settle a claim in which a surgical clamp had been left for nine years in the abdomen of a elderly man, Conway and Schlichtmann prepared for trial. It was an Essex County case, on the north shore of Massachusetts, not far from Schlichtmann’s old office in Newburyport. They rented a room at a cheap motel near the Essex County courthouse. They lived there for two weeks, amid piles of lawbooks, medical texts, and legal pads. On the bureau was a portabletypewriter, on which Schlichtmann typed last-minute motions. They ate their meals at a diner next to the motel, keeping company with long-haul truck drivers. They worked until two or three o’clock in the morning, and then got up to go to court. Conway felt punchy from lack of sleep, but he also felt exhilarated. “Working with Jan,” Conway said of that time, “was the difference between being alive and being dead.” The jury awarded their client $492,000.
Conway felt as close to Schlichtmann as a brother, although in most respects they appeared to be complete opposites. Schlichtmann was tall and slender, Conway short and stout. Schlichtmann’s shoes were always polished to a high gloss, Conway’s were always scuffed. Schlichtmann’s tailored shirts were perfectly pressed, Conway’s were taut over his substantial belly and billowed out of the back of his pants. Schlichtmann’s tie, perfectly knotted, was held in place with a gold collarpin. The knot in Conway’s tie had usually descended an inch or two by the time he arrived at work. Schlichtmann, fastidious about health and diet, watched Conway eat doughnuts for breakfast and drink “gallons” of coffee. “You treat your digestive tract like a sewer,” Schlichtmann once told him. Conway had a kind word for everyone he encountered—the receptionist, the filing clerk, the office boy—while Schlichtmann, impatient and always hurrying, often failed to observe even common civilities. Conway tried never to judge anyone harshly. “You can never know enough about why someone acts the way they do,” he would say.
They differed in their approach to money, too. Conway lived frugally, saving to buy a house and start a family. Schlichtmann spent every penny he earned. Conway noticed that Schlichtmann usually seemed depressed when he had money in the bank. He seemed driven by a need to get rid of money as quickly as possible, and when he had spent it all, he would burrow into another case and his spirits would rise.
Conway found the cases in the files of Reed & Mulligan and got Schlichtmann interested in them. But Conway didn’t like the Woburn case. Whenever Schlichtmann mentioned it, Conway tried to steer him away. “It’s a black hole,” he’d warn Schlichtmann. Conway had never met the families, and he could view the case in a cold, unemotional light. He had learned by then that Schlichtmann never did anything inhalf measures, and the full measure of Woburn—the size, the complexity and the cost—scared Conway. “We don’t want that one,” he would say when he and Schlichtmann went downstairs after work to the Emperor of China restaurant and discussed new cases.
For a time after her son’s death, Anne Anderson had rarely left the house, fearful she would break down and weep in public. She used to dream that Jimmy was still alive, and then she would awake, stunned by the fresh realization that he was gone. In the grocery store she’d see something he had liked and her tears would start to flow.
She recovered slowly. A few months after Jimmy’s death, she began working at her brother’s stonecutting business in Somerville, partly to pay the bills, but also to try to get her mind off Jimmy. She worked in the office, answering telephones and keeping accounts. But her thoughts kept returning to the contaminated wells. She wanted answers, and she wanted to bring to account whoever had caused her son’s illness and suffering. As far as she could see, neither Mulligan nor Schlichtmann had done anything. Schlichtmann didn’t even return her phone calls.
Driving home from work one afternoon in the fall of 1981, Anne turned on the radio and began listening to the Jerry Williams talk show on WRKO. The subject that day was lawyers. Listeners were invited to call in and ask questions of two lawyers who were guests on the show. Anne was listening with half an ear when she realized that one of the voices was familiar. It was Schlichtmann’s voice. Here he was, on the radio, pontificating about the law, about serving clients, and she could never even get him on the phone. She drove home as fast as she dared. She ran into the house, picked up the kitchen phone and dialed the station without pausing to take her coat off.
“I’ve got a question for Mr. Schlichtmann.”
“Go ahead, please,” said the talk show host.
“What should you do when your lawyer never calls you back?”
“Wait a minute!” said Schlichtmann. “I know this voice. Is this Anne?”
“Jan, I call and call and never get to talk with you.”
Over the air, Schlichtmann laughed painfully. “Your messages are right next to my mother’s,” he said. “I haven’t called her back either.” Then he added, “You can talk with Kathy, you know.”
“Kathy doesn’t have the answers,” said Anne.
Schlichtmann didn’t have any answers either, but he did not say so. He promised to call Anne the next morning.
Anne hung up the phone and then she picked it up again and called Donna Robbins. “Guess what I just did,” Anne said.
Despite all its difficulties, the case tantalized Schlichtmann. He believed that it had merit. He kept thinking that if he was destined for something great in life, this case might be his opportunity. If he were to win it, he would set new legal precedents and gain a national reputation among his fellow plaintiffs’ lawyers. He would no doubt make a lot of money. And he would have helped the families of east Woburn. Fame, fortune, and doing good—those were, in combination, goals worth striving for, he thought.
But by the winter of 1982 Schlichtmann still had not made a decision on the case. The statute of limitations—three years for a personal injury action in Massachusetts—had begun to run on the day the Woburn wells had closed, on May 22, 1979. If he was going to drop the case, he had to tell the families soon. If not, he had to start working quickly to prepare the complaint. As ambitious as he was, he also liked to think of himself as a businessman, a pragmatist. Conway had called this case a “black hole,” and Conway was probably right. Schlichtmann decided there were other worthy cases he could devote himself to, cases he could win.
So in February he called Anne and asked her to arrange a meeting with the families at Trinity Episcopal. On the evening of the meeting, as Schlichtmann prepared to leave for Woburn, Conway came into his office. Conway made him promise that this time he would level with the families. He’d tell them that he didn’t have sufficient basis to file a lawsuit. Conway followed Schlichtmann to the door. “When you come back, we won’t have the Woburn case anymore. Right, Jan?”
“Right,” said Schlichtmann.• • •
At Trinity Episcopal, the small gathering of men and women sat in metal folding chairs around a long wooden banquet table that was usually used for church suppers. Reverend Young sat among them. The church hall was dimly lit and cold. Some of the women kept their coats on. Everyone but Anne thought that Schlichtmann had come to inform them of new developments in the case. She alone suspected that he had come to wash his hands of it, but she had not voiced her suspicion to the others, not even to Donna or Reverend Young.
Schlichtmann sat across from the families and recited the now familiar litany of difficulties—the absence of a defendant, the problem of proving that the chemicals had caused the leukemias, and the cost, especially the cost. “There are a lot of questions,” said Schlichtmann, “and we don’t have any of the answers yet. I’m afraid the resources to pursue this simply aren’t there.”
A sense of bleakness came over the group. Anne thought to herself, He’s done everything but say good-bye.
For a moment, no one spoke. Schlichtmann, it seemed, couldn’t bring himself to say good-bye, to get up and leave. Then Reverend Young cleared his throat and said, “What if I told you I know where we can get some money?”
Schlichtmann looked doubtfully at the minister. This was not a case that could be financed by church bake sales.
Reverend Young explained that he had spoken that very afternoon with a lawyer in Washington, D.C., the executive director of a new public-interest law firm called Trial Lawyers for Public Justice.
Schlichtmann grew suddenly alert. He knew about the firm! he exclaimed to Reverend Young. He was, in fact, one of its founding members! Six months ago, at a convention of trial lawyers in San Francisco, he had contributed a thousand dollars to help get the organization started. He had, of course, liked the name, and he was sympathetic to the goal of using the legal system to bring about social change.
The conversation with the Washington lawyer, continued Young, had come about by coincidence, the result of a call from a staff member in Senator Edward Kennedy’s office. The staffer had read that Trial Lawyers for Public Justice was looking for a good environmental case. Woburn had come to her mind. She’d called Reverend Young, andthen, at four o’clock that afternoon, she’d set up a conference call between him and the executive director, whose name was Anthony Roisman. Over the phone, Young had described the situation in Woburn, and Roisman had said the case sounded interesting. Moreover, Trial Lawyers for Public Justice had some funds already earmarked for an environmental case. But, Roisman had also said, he could not just step in and take the case away from another lawyer.
And that, Reverend Young told the gathering at Trinity Episcopal, was why he had not mentioned the conversation until this moment.
Schlichtmann, greatly animated now, questioned the minister closely about every detail of his conversation with Roisman. He remarked several times on the “amazing” coincidence of events. He told the families he would call Roisman the first thing tomorrow morning. He hoped that he and Roisman could work together on the case. When he left Trinity Episcopal that evening, the mood among the families was no longer somber.
The next morning Conway appeared at the door of Schlichtmann’s office. “Well?” Conway said.
“We’ve still got the case,” said Schlichtmann. “I couldn’t say no.”
Roisman flew up to Boston the following week. He and Schlichtmann spent two days together. Roisman was in his early forties, a Harvard Law School graduate who had been head of the U.S. Justice Department’s Hazardous Waste Enforcement Section during the Carter administration. He knew how to assemble a complicated environmental case, and he thought that based on everything he had heard so far Woburn appeared most promising.
Schlichtmann invited Roisman to take over as lead counsel in the case. Roisman accepted, and asked Schlichtmann to remain on as local counsel. This arrangement suited Schlichtmann perfectly. He’d still be involved in an important case, and there was much he could learn working alongside a man of Roisman’s experience. They agreed to split equally the costs of preparing the case. Roisman’s organization would receive two thirds of any fee that might result from a settlement or a verdict, and Schlichtmann and Mulligan would split the other third.
After almost two years of little more than talk, events suddenly began to move swiftly. One of Roisman’s assistants collected medical and scientific studies on TCE and the other chemicals in the city wells. Using the Freedom of Information Act, Roisman obtained from the Environmental Protection Agency a preliminary report of its east Woburn investigation. The agency had narrowed its focus to a single square mile of the Aberjona River valley, some 450 acres surrounding Wells G and H. Contractors for the EPA had drilled test wells along the periphery of that square mile. On the northeast side, chemical analysis of the groundwater revealed high concentrations of TCE migrating through the soil in a featherlike plume toward Wells G and H. Even higher concentrations of TCE were found in groundwater to the west of the two wells, under fifteen acres of wooded, undeveloped land alongside the Aberjona River. The EPA listed the names of several industries situated around the perimeter of the square mile, but it did not identify which of those were responsible for the contamination. “Further study is required,” stated the report.
The EPA did, however, put the east Woburn aquifer on its National Priorities List, more commonly known as the Superfund. The agency ranked each site by a formula that involved the proximity of the polluted area to residential areas, the nature of the chemicals involved, and whether or not drinking water had been contaminated. By 1982 there were 418 sites on the EPA list. The east Woburn well field, the newest addition, was ranked thirty-ninth.
The EPA report was highly technical, filled with maps of bedrock and groundwater contours, well logs, and scientific jargon. To decipher it, Roisman hired a Princeton University professor, an expert in groundwater contamination and hazardous wastes. The professor told Roisman and Schlichtmann that the underground plume of TCE coming from the northeast appeared to originate at a manufacturing plant owned by W. R. Grace, the multinational chemical company. The other source of contamination, to the west of Wells G and H, came from the fifteen acres of wooded land that was owned by the John J. Riley Tannery. And the tannery, it turned out, was itself owned by the giant Chicago conglomerate Beatrice Foods, producer of dozens of consumer goods, from Samsonite luggage to Playtex bras, Peter Pan peanut butter and Tropicana orange juice.
Both companies ranked high in the Fortune 500. In the lexicon of personal injury lawyers, they had “deep pockets,” and this fact had weight for Schlichtmann and Roisman. Personal injury law is not a charitable enterprise. To a lawyer working on a contingency fee and paying the expenses of a case himself, it is crucial that the defendant either have assets, preferably a lot of them, or a big insurance policy. To Schlichtmann, having Grace and Beatrice as defendants in the case was like learning that a woman his mother kept trying to set him up with had a huge trust fund.
On a sunny day in mid-April, Schlichtmann drove out to Woburn alone in his Porsche. On his visits to meet with the families, east Woburn had always seemed to him a familiar sort of place, dull and slightly depressing, a landscape of humble residential developments and suburban industrial parks, a place no different from thousands of others across the country, and hardly worth a second glance. But on this visit, everything he saw seemed to take on a sharper focus. Buildings and landmarks seemed more clearly etched, and their images remained in his mind.
He drove south down Washington Street, a busy two-lane thoroughfare near the junction of Interstate 93 and Route 128. Twenty years ago, the land to his left had all been farms. Some patches of woods and overgrown fields still remained between the new, low-roofed industrial complexes and office buildings. The right-hand side of the road was mostly hardwood trees, just now coming into bud. Beyond them and downhill lay the Aberjona marsh, but he couldn’t see it from this part of the road.
He parked across the street from a large plain single-story building with a brick façade. It had a glassed-in entryway and, above that, the nameW. R. GRACEin polished aluminum lettering. He studied the building from his car. In the midst of this scruffy landscape, the grounds of the Grace building stood out. A row of neatly pruned shrubs had been planted along the front of the building and the lawn was thick and well tended. On the lawn, beneath a young maple tree, there was a picnic table. Schlichtmann could see several employees in tan uniforms moving among the loading docks around the side of thebuilding. From the EPA report, Schlichtmann knew only that this plant made stainless-steel equipment for the food-packaging industry. Trichloroethylene was a solvent used mainly for removing grease from machined metal parts. To Schlichtmann, it stood to reason that a plant such as this one would use TCE. He wondered if any of those men in uniforms were using TCE today. And just how did they dispose of it? He would have liked to speak to one of those men, or to walk into the plant and ask for a tour, but he couldn’t, of course. For now, the building might as well be a fortress. Its façade told him little, and he soon grew tired of staring at it.
He pulled back out onto Washington Street and continued driving slowly to the south, in the direction of the Pine Street neighborhood. After a quarter of a mile, he turned west onto Salem Street, which crossed the northern border of the Pine Street neighborhood. He passed over a small concrete bridge that spanned the Aberjona River. Looking north, he could see the expanse of marsh surrounding the river. At the edge of the marsh, visible among a copse of still leafless trees, were the two brick pumping stations that housed Wells G and H. Their doors would be padlocked shut now. Ahead of him, as Salem Street began a gentle climb, loomed the immense brick smokestack of Beatrice’s J. J. Riley tannery.
Schlichtmann parked near a chain-link fence that enclosed the tannery compound. The ripe odor of hides and animal waste hung thickly in the air. The tannery consisted of a large brick building, mottled with age, and several sheds and outbuildings. It looked as if later additions to the main building had been constructed of cement block and corrugated metal. A dozen or more large bales of raw cattle hide were piled behind the building.
On his way to the tannery, Schlichtmann had passed by the dirt road leading up to the fifteen acres of wooded land mentioned in the EPA report. This piece of land, also owned by Beatrice, was roughly triangular in shape, abutting the tannery to the west and the Aberjona River to the east. The tannery had a production well on the land, and the EPA had measured high levels of TCE in it, levels three times what they had found in the city wells.
At the tannery, Schlichtmann turned the Porsche around, and drove back down Salem Street. He turned left onto the dirt road. Twenty yards up the road a tall metal gate barred his way. To Schlichtmann’sright, beyond a six-foot-high fence, was a sprawling junkyard owned by Aberjona Auto Parts. To his left was the Whitney Barrel Company, a refurbisher of used 55-gallon drums and underground oil tanks. Hundreds of drums were piled along a fence at the back of the Whitney property, and Schlichtmann could smell a strong chemical odor.
He got out of the car and walked up to the gate barring entry onto the Beatrice land. The dirt road on the other side looked well used, bordered by scrubby underbrush. Schlichtmann saw many more drums strewn beside the dirt road. He wondered if they had come from Whitney Barrel. Standing there, he found himself already framing arguments. Beatrice owned this land. It bore legal responsibility for its condition. And if Whitney Barrel had used this land as a dump site, the tannery had probably done so, too.
Roisman had started composing the lengthy complaint that would form the basis of a lawsuit against W. R. Grace and Beatrice Foods. Schlichtmann, who knew more than Roisman about Massachusetts personal injury and wrongful death law, assisted him. The complaint asserted that subsidiaries owned by Grace and Beatrice had poisoned the plaintiffs’ drinking water with toxic chemicals. These chemicals included TCE, which the complaint described as “a potent central nervous system depressant that can cause severe neurological symptoms such as dizziness, loss of appetite, and loss of motor coordination. It can produce liver damage and cause cell mutations and cancer.” The poisoned water, stated the complaint, had resulted in a cluster of leukemia, the deaths of five children, and injuries to all of the family members who were party to the lawsuit, including “an increased risk of leukemia and other cancers, liver disease, central nervous system disorders, and other unknown illnesses and disease.” The plaintiffs sought compensation for these injuries, and punitive damages for the willful and grossly negligent acts of the two companies.
Roisman and Schlichtmann finished the complaint on May 14, 1982, eight days before the statute of limitations expired. Schlichtmann took the complaint by hand to Superior Court in Boston and filed it.
One week later a story about the lawsuit appeared inThe Boston Globe. Alerted by that story, crews from two local television stationsarrived at Reed & Mulligan to interview Schlichtmann. The camera crews set up their equipment in the firm’s library. Conway watched from the door as first one television reporter and then another talked to Schlichtmann. Conway felt glad that he wasn’t the one being interviewed. The cameras and lights would have made him nervous, but he could see that Schlichtmann basked in them.
That evening they went downstairs to the Emperor of China restaurant and ordered drinks at the bar. Schlichtmann asked the bartender to turn on the news so he could watch himself. He made the bartender flip the channel back and forth between the two stations so that he’d miss none of his performance.
While Schlichtmann watched himself on the news, Conway watched Schlichtmann. He knew that Schlichtmann would spend a good deal of time on this case, but he reminded himself that Roisman would be in charge. Roisman would do most of the work. They were just the local contact. Conway told himself he wasn’t worried.
Every Wednesday afternoon, from February until May, Jerome Facher would leave his office in Boston shortly after three o’clock and take a subway to Harvard Square in Cambridge. The early winter dusk would be settling over the city by the time Facher disembarked from the subway and walked several long blocks up to the Harvard Law School. Facher was sixty years old. He had narrow shoulders, a small, spare frame, and neatly trimmed gray hair. He was the chairman of the litigation department at the Boston firm of Hale and Dorr, and for the past twenty years he had also taught a course in trial practice at Harvard. He still taught from the same textbook, now dog-eared and stained, that he had used in his first year of teaching. He carried it in a battered black litigation bag that was usually heavy with deposition transcripts, motions, and interrogatories from real trials. Some years ago the bag’s leather handgrip had snapped under just such a load. Facher had twisted a coat hanger into a new grip and wrapped it with adhesive tape. When a seam burst, he repaired that with more tape, liberally applied. He owned several other litigation bags, each identifiedby decals of cartoon characters he’d once found in a cereal box. This particular bag, which might have been a hobo’s suitcase, was his favorite. It was known as the pig bag because it had a Porky Pig decal on it. In the years he’d carried this bag in and out of courtrooms, to home and to work, Facher had not lost a trial. Some trials required the use of several bags, but Facher always brought along the pig bag. “You don’t change your socks in the middle of the World Series,” he would tell young associates at Hale and Dorr.
In his classroom at Harvard, Facher would sit at a plain wooden table in the well of a room that was shaped like a small amphitheater. Every year he faced fifteen new students, along with several first-year associates from Hale and Dorr who had come to learn from the master. Behind Facher’s thick glasses, his eyes were heavily lidded, as if he were on the verge of dozing. During class and in the courtroom, he often pursed his lips in a skeptical and disapproving manner, like a candy-store proprietor guarding the goods against young hooligans.
Each week he assigned his class a case from the trial practice textbook and appointed students to conduct mock examinations. One Wednesday evening he told a young woman to represent the plaintiff. Until now, this student had not uttered a word in Facher’s class. When Facher himself had been a law student at Harvard, in the late 1940s, he’d been reticent, too. He had felt intimidated by the brilliance of his fellow students, most of whom had graduated from Princeton, Yale, and Harvard. Facher had attended Bucknell Junior College. At Harvard he had lived each day in fear that a professor would call on him. When other students responded to a professor’s query, Facher would say to himself, My God, I didn’t think of that. During his three years of law school, he could recall speaking aloud in class fewer than a dozen times. But he’d gotten high grades and he’d madeLaw Review, the mark of academic distinction.
Now, as a teacher, Facher had changed his modus operandi. He maintained a steady stream of commentary. As the shy student struggled to build the plaintiff’s case, Facher interrupted with a running critique of her methods. He did not feel much sympathy for her. Next year, she would probably have a job as an associate in a big firm in New York or Chicago, earning seventy thousand dollars a year. (Based on this performance, Facher thought he would not hire her at Hale and Dorr.) After thirty minutes the woman had made little progress. Heroriginal strategy had been thwarted by objections from her adversary. Facher gave her some guidance, but his commentary became increasingly acerbic. In annoyance, he fiddled with his tie, tapped his fingers, straightened material on his desk. The woman attempted to enter a document into evidence and the opposing side objected on the grounds of authenticity.
“Now what are you going to do?” Facher asked her.
The young woman looked down and shuffled through her papers but said nothing. Her hair fell in front of her face, covering her eyes. Facher stared at her. The silence grew longer.
Finally another student suggested hiring a handwriting expert to testify to the authenticity of the document.
“What?” said Facher in irritation. “And pay five thousand dollars? Far too complicated.” To the young woman, he said, “What are you going to do? Give up? Tell the senior partner you lost the case? Make a living selling cheeseburgers?”
The woman, head down, shoulders quivering, silently wiped a tear from her cheek.
Another student said, “Five-minute recess, Your Honor?”
Facher ignored the request. “This is an intellectual profession. You are not driving nails into a board.” Although he realized suddenly that the student was crying (in twenty years of teaching, this was the first time it had happened), Facher decided a recess would only call attention to her plight and embarrass her more. “You ask the witness: ‘Who prepared this document? Where did that happen? Who was present? Did your secretary type it?’ ”
The class was silent and uneasy.
“Little questions,” continued Facher. “Little bricks build big walls. Too many of you are afraid to ask simple questions. The tools of the trade are the English language and the rules of evidence.”
Facher’s temper seemed to grow shorter as the day grew longer. The reason for this, he once speculated, was that he suffered from chronic insomnia. But by now he was feeling bad for the student. “Go slowly,” he told her, not unkindly. “Ask one question at a time, and you’ll find there is a rhythm to it.”
And then, to turn attention from her, he said to the class, “Why wasn’t there an objection to this document as hearsay?”
“Because it’s original?” ventured one student.
Facher sighed.“The Boston Globewas original this morning and there’s more hearsay in that than you’ll find in your first five years as a lawyer. You’re expected to make objections. Keep evidence out if you can. If you fall asleep at the counsel table, the first thing you say when you wake up is, ‘I object!’ ”
After class, Facher would often return to his office and work until midnight before departing for home. He owned a condominium in Arlington, three miles from the law school. He lived there alone, his only companion an aged cat. He had been married once, for seventeen years, but that contract had been dissolved long ago. As a young lawyer, a skillful cross-examination would make his heart soar, and he rarely resisted opportunities to hone his skills. He used to practice on his wife. “I can’t prove it,” he once mused, “but I bet trial lawyers have more marital problems than any other type of lawyer. I wasn’t the greatest husband in the world.”
After his divorce, he began to work weekends and to experience sleepless nights. He’d lie awake, conducting cross-examinations in his head for hours. He found a soothing quality in the staccato rhythms of cross-examination, but he still couldn’t fall asleep. Once, when his insomnia became intolerable, he sought relief at the Harvard Health Center. He was placed in a dimly lit room, recumbent on a comfortable chair, with electrodes monitoring his pulse, blood pressure, and respiration rate. A therapist gave him instructions in deep breathing and relaxation, and told him to conjure the most pleasing thought he could. He visualized an afternoon at Fenway Park, the Red Sox ahead by a run and their ace pitcher on the mound. In the laboratory he excelled at relaxation. In his own bed, where there was no one to marvel at his expertise, no one to compete against, he lay awake, furious at his inability to sleep.
Two hundred lawyers worked at Hale and Dorr, eighty of them in the litigation department. Some Boston lawyers thought that Hale and Dorr most resembled the big New York firms that specialized in what they called “bare-knuckle” litigation. In an era when many corporate lawyers never see the inside of a courtroom, Facher had tried more than sixty cases and won most of them. “I love to try cases,” he once said. “That’s the fun of being a lawyer. I’ve never had an unhappy day at Hale and Dorr.”
The law firm occupied ten floors at 60 State Street, a glass and concrete skyscraper in downtown Boston, two blocks from the federalcourthouse. Although the building was modern, the law firm’s reception rooms, with thick Oriental carpets, Chinese vases, and dark oiled wood, gave the appearance of an old and venerable practice. Facher’s office was on the twenty-fifth floor, across from the firm’s law library. The office was small in relation to Facher’s stature in the firm. He had been offered more spacious quarters on the twenty-seventh floor, but he had declined. He didn’t spend much time in his office anyway. He would stop there in the morning to check the mail and phone messages and then he would vanish to one of his many hideouts, as he called them, where he could work without interruption.
He had hideouts on several different floors, but his current favorite was on the twenty-first, at the end of a windowless corridor, behind a heavy steel door. The door opened into a large, dimly lit storage room that served as a warehouse for the firm’s moribund files. Dozens of gray metal filing cabinets, their drawers filled with legal papers, lined the walls. The overflow was stuffed into stout cardboard boxes that were stacked on top of the cabinets and on the floor, pyramids of paper reaching up to the ceiling. Some acoustical panels in the ceiling were missing, and electrical wires, wrapped in black tape, hung from the dark cavities. Near the center of the room, in a pool of lamplight, Facher had assembled three large tables to form a desk on which more paper—depositions, briefs, motions, affidavits—had accumulated. Piles of legal memoranda had taken root on a sagging, threadbare, mustard-yellow couch, a piece of furniture that would never be exposed to the soft lights and thick carpets of a Hale and Dorr reception room.
Facher would sit amid these files in his shirtsleeves, the breast pocket stained by a leaky pen, his collar and cuffs frayed. He looked like an aging clerk caught in the backwater of a large bureaucracy, yet one hour of his time would cost a client several hundred dollars and he earned more than he could ever spend.
He was a very frugal man. His partners had seen him bring a plastic bag to the firm’s Friday lunch buffet and stuff it with leftovers to take home and freeze. He hated going out to restaurants, even if someone else was paying. He usually ate at his desk, from little napkin-wrapped bundles of celery and cauliflower or stale pieces of cake salvaged from buffets. “I hate waste,” Facher liked to say. “I’m economical in my life. Some would say cheap.”
Those who did not know him well tended to mistake his frugality for miserliness, but he cared little about accumulating money. When he bought his condominium in Arlington, his partners advised him to take out a mortgage so he would have at least one tax deduction. But Facher paid in cash. He viewed the interest on a mortgage as a waste.
Some senior partners had platoons of younger lawyers working on their cases. Facher, economical as ever, would assign only a junior partner and one associate to each of his cases. He did not readily trust the work of his subordinates. He was much harsher with them than with his students. In earlier years he would send what became known as “black hand” memos to those whose work especially disappointed him. “I think we made a mistake hiring you,” he’d write. “Is English your first language?” On the draft of a brief, he would scrawl: “Bullshit! Who’s going to believe this crap?” and “Why are you wasting my time?” Facher believed he had mellowed with age. Now he might write: “I think this is poorly written and poorly reasoned. Why don’t you tear it up and start over?”
Most associates feared working with him. Yet those who survived his tutelage usually felt great affection for him. They were known around the firm as “Jerry’s boys.” They believed he was the best teacher in the firm, but even so, most would not choose to work with him again if they could avoid it.
The Woburn case arrived on Facher’s desk in the last week of May 1982, sent to him by the assistant general counsel at Beatrice Foods in Chicago. Facher usually had thirty or forty cases in various stages of development, some of them several years old. He had lost a few trials in his career, and he had also settled many cases before trial, but he’d never seen a case that he thought he could not have won. “Every civil case can be won,” he once told his Harvard class.
He had many important corporate clients, but none was larger or wealthier than Beatrice. One of Beatrice’s lesser-known divisions, the John J. Riley Tannery in Woburn, was now alleged, read Facher, to have “contaminated with toxic chemicals … the groundwater used by plaintiffs and plaintiffs’ decedents for drinking and household purposes” and to have caused the deaths of five children.
It was, on the face of it, a personal injury case, and most such cases tended to be simple matters compared with the commercial litigation that Facher was used to. Yet he saw right away that there was nothing simple about this complaint. There was a long list of plaintiffs, each purportedly suffering “an increased risk of leukemia and other cancers, liver disease, central nervous system disorders, and other unknown illnesses and disease.” The burden of trying to prove such allegations—if they could be proven, which Facher seriously doubted—would be daunting, not to mention very costly.
Facher had heard about other big cases of this sort, environmental cases alleging all kinds of dreadful injury. They seemed to have come into vogue recently, but none of them had ever amounted to anything. This case didn’t worry him. The complaint, however, had to be answered, and that required sending a lawyer out to Woburn to speak with John J. Riley, Beatrice’s manager at the tannery. Facher gave the job to a junior partner, a former Harvard student of his named Neil Jacobs, who was known in the firm as one of Jerry’s boys.
Neil Jacobs had met John J. Riley once before, while working with Facher on a minor matter, a breach of contract claim against the tannery, and he remembered the old tanner well. Riley was not the sort of man who faded easily from memory. He possessed an incendiary temper, and he was six feet tall, with an immense girth, limbs thick as tree boles, and a heavy, florid face. He had begun working at the tannery when he was seven years old, sweeping the beamhouse floor for his father, who had started the business in 1909, when twenty or more tanneries had operated in Woburn. The Riley operation was the last of them, and Riley himself was Woburn’s last tanner.
In many ways that was a tribute to Riley’s business acumen. He was in his mid-fifties now, a crafty, intelligent man, college-educated, and proud of what had once been the family business. He resented in particular the frequent complaints of east Woburn homeowners about odors from the tannery. He tended to regard such complaints as personal affronts. He himself had lived most his life in east Woburn, less than a mile from the tannery. He had once confronted a neighbor who had written an article about the tannery stench for the Civic Association Newsletter. Banging on the neighbor’s door one evening, he hadstomped uninvited into the living room, put his thick finger to his neighbor’s chest and yelled that he, Riley, was a big taxpayer in the city, and by what right did the neighbor slander his business in such a manner? The neighbor, at first taken aback by the verbal tirade, finally told Riley to get out of his house.
New, more stringent environmental regulations also infuriated Riley. He made no secret of his belief that environmentalists were conspiring to drive him out of business, as all the other Woburn tanneries had been driven out. A few years back the state had ordered him to build a waste-treatment facility at a cost of a million dollars. Riley couldn’t afford it. Around that time he heard from another tanner in the Midwest that Beatrice Foods was interested in acquiring a tannery because the company needed a steady supply of leather for its consumer products. Riley decided to sell the family business to Beatrice. He took no joy in this, but he stayed on as tannery manager, as Beatrice had required, at a handsome salary.
Jacobs drove out to Woburn to interview Riley. They met at the door of an old, dilapidated white frame house that served as the tannery’s administrative offices. In a small, cluttered conference room, Riley told Jacobs that the lawsuit was nothing but lies. He had never dumped any chemicals on his property. He had never even used TCE. He admitted that the tannery had used tetrachloroethylene—“perc”—for a few years in the late 1960s when he had a contract to waterproof leather for U.S. Army combat boots. But Riley claimed there had been no waste solvent from that process.
Jacobs asked Riley about the fifteen acres cited in the complaint as the source of the TCE contamination. Riley explained that his father had purchased that land from the city some thirty years ago, in 1951, and had installed a production well there for the tannery. Aside from that, said Riley, the land was completely undeveloped, nothing but woods and underbrush. It was possible to walk from the tannery to the fifteen acres, but Riley preferred to drive. It took only two minutes. He and Jacobs got into a station wagon and Riley drove out of the tannery parking lot, turned left onto Salem Street, and then, fifty yards later, turned left again onto the dirt road.
Heading up the dirt road toward the fifteen acres, they passed Whitney Barrel, with its hundreds of 55-gallon drums, and the rusting hulksin the junkyard of Aberjona Auto Parts. Riley stopped to open the metal gate that had barred Schlichtmann’s way, and drove onto the fifteen acres. Jacobs noticed more barrels along the side of the road, on the scrubby, hard-packed earth. These belonged to Whitney, Riley told Jacobs. The road was well traveled and clearly defined, although as Riley drove on the foliage grew more dense and tree branches slapped against the station wagon. After about a hundred yards, Riley stopped the car and Jacobs got out to take a look around. Twenty paces off the road, Jacobs noticed a large pile of debris. He walked closer, treading carefully—he was wearing a suit and a pair of good leather shoes. The pile, which later would be known as Debris Pile E, contained some rotting timber and several 55-gallon barrels in various stages of decay, one of them oozing a dark, thick material onto the ground. There were some corrugated cardboard containers with plastic linings used for packing chemicals, pieces of rusted sheet metal, several pesticide containers, and a pair of discarded gloves, a leather boot, a long-handled brush, and a collection of beer cans. The earth was darkly stained, and a sickly, nauseating chemical odor pervaded the air. A few yards further into the brush Jacobs could see another pile of debris and more barrels, overgrown with weeds and saplings.
Jacobs poked around the pile and asked Riley if he knew where the material had come from.
Once again Riley said he had never dumped anything on this land. Anyone could have driven up the dirt road and dumped debris there, he added. He knew that Jack Whitney, owner of the barrel company, used to store some large oil tanks on the land. He’d had a run-in with Whitney, told him to get his tanks off the land. Whitney did not run a clean shop, observed Riley.
When they returned to the tannery, Riley took Jacobs on a brief tour of the plant. They went through the beamhouse, where the hides were soaked in water, limed, and dehaired, and the tan house, where the skins were pickled in tanning liquors and fats and then dyed. Behind the tannery building, Jacobs saw a settling basin containing a thick, malodorous sludge, the waste product from the tanning process. Each day the tannery produced half a million gallons of wastewater that was pumped into the basin. When the solids had settled to the bottom, the liquid was flushed down the sewer and ultimately discharged intoBoston Harbor. The tannery had been identified by the state as the second largest polluter of the harbor, and the harbor was the most polluted in the nation. It was for this reason that the state had ordered Riley to build a million-dollar waste-treatment facility, and that, in turn, had led Riley to sell the tannery to Beatrice Foods.
The waste-treatment facility still had not been built, but that had nothing to do with this lawsuit or the TCE in wells G and H. As far as Jacobs was concerned, the fifteen acres had been contaminated by third parties—by Whitney, perhaps by Aberjona Auto, and by others unknown.
Back in Boston, Jacobs began working on the reply to the plaintiff’s complaint. It was not hard labor, since most of the responses required only standard, time-tested language: “Defendant Beatrice Foods Co. lacks knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 45 of the Complaint.” Jacobs wrote that response sixty-five times, altering only the paragraph number.
Paragraph 53 of the complaint asserted that the fifteen acres “consists of wooded field and marshlands. There is a well defined dirt road located next to the marshland along which is [sic] deposited numerous tanks and drums. The drums are in various conditions: new and rusted, open and closed. Drums have also been deposited near the railroad tracks. There are some areas of distressed vegetation, indicating spills of hazardous materials.”
In response, Jacobs wrote: “Defendant Beatrice Foods Co. admits that the land consists, in part, of wooded fields and marshlands and has a dirt road through a portion of it. Defendant Beatrice Foods Co. denies the remaining allegations contained in Paragraph 53 of the complaint.”
Although Jacobs had seen the barrels with his own eyes, he was not about to make such an admission on behalf of his client. Among defense lawyers, this, too, was part of the time-tested tradition of the law. The burden of proving each and every allegation rested upon the plaintiff, upon Schlichtmann and Roisman.
When Jacobs finished a draft of the reply, he brought it to Facher, who read it quickly and gave his approval. Facher was preparing a big commercial case for trial and he had more pressing matters on his mind.
The other defendant in the case, W. R. Grace, was represented by a lawyer named William Cheeseman, a senior partner at the Boston firm of Foley, Hoag & Eliot. Unlike Facher, Cheeseman immediately regarded this lawsuit as a very serious matter. In part, that had to do with Cheeseman’s client. On the day Cheeseman learned of the lawsuit, a Grace executive had told him, “This case will have the attention of the company from top to bottom.” On the next day, W. R. Grace’s corporate headquarters in New York issued a press release “strongly” denying the “irresponsible and unjustified” allegations in the complaint. The company’s Woburn plant, said the release, did not make chemicals and therefore “could not have caused the water contamination problem.”
This was not the first time W. R. Grace had been accused of polluting the environment. The corporate empire included chemical and manufacturing plants in two dozen states as well as in Europe, South America, New Zealand, and Japan. Cheeseman himself already represented Grace in another matter, one that bore a striking similarity to Woburn—a Grace chemical factory had been sued by the town of Acton, Massachusetts, for polluting its groundwater. But no one in Acton was claiming that Grace had killed five children and poisoned an entire neighborhood. It was those allegations, and the headlines they had created, that made the Woburn case an especially frightening specter to a company like Grace. Cheeseman understood that he should spare no effort to stop this case in its tracks.
He was well suited for that task. He specialized in pretrial maneuvering. He had a reputation at his firm for finding clever ways to kill lawsuits in their infancy, with motions of demurrer or summary judgment. He’d already filed a partial summary judgment in the Acton suit. Jury trials and personal injury cases almost never entered his life. Usually he represented one large company that was suing another, or was being sued by the government, in disputes that were complicated but dry and bloodless and almost invariably settled out of court. In his entire career, Cheeseman himself had tried only four small cases to a jury. He did not like jury trial work, and he recognized that he was not particularly good at it.
He had a vivid memory of watching a jury trial for the first time, fifteen years ago when he was a law student at Harvard. He had sat in the gallery of a Boston courtroom listening to a lawyer ask his client, a young woman, to describe the details of an accident in which a child had been killed. The woman had been holding the child, her sister, in her arms when a bus collided with the car in which she’d been riding. As the woman recalled the event on the witness stand, she broke into sobs. Her lawyer, an older man of obvious experience, stood next to the jury box, one eye on the jurors, while his client wept. When the woman recovered her composure, the lawyer gently asked another question. More weeping followed. Cheeseman saw one of the jurors take a Kleenex out of her pocketbook and dab her eyes. And Cheeseman, too, had felt moved.
When court recessed for the day, Cheeseman walked into the hallway and stood waiting for an elevator. A few minutes later the lawyer emerged from the courtroom with the young woman and her family. They were in high spirits, talking excitedly among themselves. The lawyer said something to the woman, and Cheeseman saw her laugh.
He was appalled. At that moment he believed that the entire courtroom performance had been a cynical charade. Later he realized that wasn’t wholly true. The womanhadsuffered a terrible loss, and perhaps her laughter in the hallway had been simply a release of tension. But the experience had left Cheeseman disdainful of the tactics of personal injury lawyers and leery of juries. “Everyone understands that the deck is stacked,” Cheeseman observed many years later. “Somebody who’s been hurt has the sympathy of the jury. Big companies don’t get that sympathy.”
Jury trials are the rarest form of business at large corporate law firms, and they were especially rare at Foley, Hoag & Eliot, which employed a hundred lawyers but had only a few experienced trial lawyers. Cheeseman’s firm took great pride in its reputation as an “intellectual” law firm. Most of its recruits came, as Cheeseman did, from Harvard, and most of them had been on theLaw Review. “Scholarship has always been a hallmark of the firm’s reputation,” stated a Foley promotional brochure. “Scholarship” sometimes meant long and tediously researched briefs. Among the Boston bar, the firm was famous (“maybe infamous,” Cheeseman admitted) for the length of its briefs.
Cheeseman had a rigorous, logical cast of mind. As an undergraduate at Harvard College, he’d studied mathematical physics. He knew he was smart, but in his most self-critical moments he saw himself as methodical and dull. His remedy for this perceived flaw was itself methodical. “I work hard to cultivate a little flakiness in myself,” he once confessed. He cultivated various small eccentricities. Over time, he acquired a collection of hats—berets, tams, Greek fisherman caps, fedoras—which he wore to work, along with a bulky sheepskin coat instead of the cashmere overcoat that seemed part of the legal dress code. He wore his suits, bought off the rack, until the crease in the trousers disappeared and new creases laced the back of his suit coat. He let his hair grow so long and shaggy that even his eight-year-old daughter once told him he needed a haircut. He drove to work in a small English sports car, a Triumph, which he raced in Sunday-morning autocrosses in the empty parking lots of malls and supermarkets. He wanted to own a Porsche, and though he had a handsome income, he felt he could not afford one yet. He quelled his desire with a small toy model of a Porsche Carrera, which he kept on a bookshelf in his office. A psychiatrist friend once told him, “You’re the loosest obsessive-compulsive I’ve ever met.” Cheeseman remembered that remark as a compliment.
At the firm he was well liked. He was not snobbish to young lawyers who had not gone to Harvard, as some partners at the firm were. Office politics did not interest him. He tended to avoid the firm’s parties and he did not hang around after hours to trade stories about clients and adversaries. In an occupation that could consume every waking hour, he set limits on what the firm could demand of him. Some young associates who toiled nights and weekends in the hope of making partner admired Cheeseman for this, although they did not often follow his example.
Cheeseman quickly learned the basic facts about Grace’s Woburn plant from one of the company’s in-house lawyers. The plant had been built in 1960. It employed about a hundred people in making machinery for the food-packaging industry, for vacuum-wrapping meats—turkeys, hams, hot dogs, and the like—in plastic film, which was also made by Grace at plants in Iowa, Indiana, and Texas. The Woburn plant hadonce used TCE in the early 1960s, but a search of the records revealed the purchase of only a single 55-gallon drum. Workers had used the solvent for hand-cleaning small metal parts. Some employees, it seemed, might have dumped small amounts of used solvent, no more than a few “teacups” at any one time, into a ditch behind the plant. But this small amount, Cheeseman was told, could not have contaminated the city wells, which were half a mile away from the plant.
A Grace executive showed Cheeseman a tape of Schlichtmann’s press conference announcing the lawsuit. It began with a reporter standing in front of the Grace plant in Woburn. “Lawyers for the Woburn families,” the reporter said, “allege that this W. R. Grace plant has dumped solvents and chemical wastes that have contaminated two city wells and caused the deaths of five children.”
The picture faded to an interior shot of a law office. Cheeseman saw a tall, thin young man wearing a dark suit and vest, a red tie, and a gold collar pin. Behind him were shelves of leather-bound law books. “Jan Schlichtmann is one of the lawyers representing the families,” said the voice of the reporter. “Mr. Schlichtmann, what do your clients hope to get out of this lawsuit?”
Schlichtmann, looking directly into the camera, said, “First of all, we want these companies to pay for the injuries they’ve caused these families. We want them to stop dumping their chemical wastes. And we want them to clean it up.” The evidence, continued Schlichtmann, will show that W. R. Grace’s plant had dumped chemical wastes on the ground for twenty years, ever since the plant had opened.
The tape ended with the reporter saying that some Woburn residents were already demanding that the city shut down the Grace plant.
Cheeseman found this fellow Schlichtmann’s performance highly unprofessional. Public comment about a pending case, especially inflammatory comments about evidence, violated the Canons of Professional Ethics. A lawyer risked censure for such behavior. Schlichtmann looked young and untested, thought Cheeseman. Perhaps Schlichtmann believed he could intimidate Grace by inflaming public opinion. Perhaps he simply hoped to grab a quick settlement.
Back at his office, Cheeseman began making inquiries. None of his colleagues at Foley, Hoag & Eliot had heard of Schlichtmann. In itself, that was not surprising since Cheeseman’s firm rarely descended to the level of personal injury law. In Martindale-Hubble, the national lawdirectory, Cheeseman found that Schlichtmann was thirty-one years old, had gone to Cornell Law School, and had passed the bar exam barely four years ago. “He’s as green as he looks,” Cheeseman told one of his partners.
Cheeseman hoped to teach this young lawyer a painful lesson about dealing with companies like W. R. Grace. He decided first to remove the case from the state Superior Court to the federal court. W. R. Grace, with headquarters in New York and operations across the entire country, was entitled to federal jurisdiction. And the federal courts, Cheeseman believed, had a generally higher caliber of judges whose tolerance for personal injury cases of questionable merit was correspondingly lower.
Then Cheeseman wrote a letter advising Schlichtmann and Roisman to withdraw the lawsuit. “If you do not withdraw this action,” Cheeseman warned, “please be informed that we will take appropriate steps to seek a prompt dismissal of the action, and we will seek an award of attorneys’ fees and expenses against you and your associates.”
Cheeseman never got a response to his letter. Throughout the summer and into the fall, he heard nothing more about the Woburn case. He was feeling circumspectly pleased. He began to think maybe Schlichtmann had abandoned the case. Cheeseman had known that to happen before—a plaintiff’s lawyer hastily files a complaint in order to make the statute of limitations and only later begins to think better of his chances. Or perhaps the letter had scared Schlichtmann off.
It wasn’t until one morning in October that Cheeseman learned the case hadn’t gone away after all. He received from Schlichtmann a lengthy set of interrogatories, fifty-two pages of written questions to be answered under oath, concerning every aspect of the history and operations of the Woburn plant. Cheeseman was required, as all lawyers are, to answer the interrogatories within thirty days. But Cheeseman had no intention of doing that. Instead, he began preparing his next move, one he’d been thinking about since last spring.
It was a bold and creative stroke, exactly the sort of thing that had given Cheeseman his reputation for getting rid of difficult lawsuits. Among the many dozen rules of Civil Procedure was a little-known and rarely used provision—Rule 11—that had been conceived half acentury ago, in 1938. The rule had been intended to curb frivolous and irresponsible lawsuits, but it was so weakly worded and easy to circumvent that few lawyers ever wasted their time invoking it. Cheeseman had heard, however, that the Senate Judicial Conference was revising the rule to make it much stronger. Among other things, the proposed revisions would lay out harsh punishments—large fines, public reprimands, and even suspension—for lawyers who filed “sham and false” claims. The new Rule 11 had not been enacted yet, but that didn’t trouble Cheeseman. It had given him the idea, and as far as he was concerned, even the weak standard of the old Rule 11 applied to this case.
“It is certainly true that Rule 11 proceedings are, and should be, rare and serious matters,” wrote Cheeseman in his motion to dismiss the case. And then he proceeded to enumerate his reasons for invoking the rule. Most compelling of all was an article he’d found in theProvidence Journaltwo weeks after the case had been filed. The article quoted Roisman’s research assistant as saying that there was “no firm proof of a connection between the families, the chemicals found in their wells, and the two companies. ‘It’s kind of a common-sense link,’ ” the assistant reportedly said. “ ‘It’s a fairly safe assumption that there is some kind of link.’ ”
Cheeseman planned to use this statement—it was an admission, pure and simple, that the lawyers for the Woburn families had no grounds for the allegations—as the centerpiece of his Rule 11 motion. He would buttress it by showing that there was nothing in the medical or scientific literature to suggest that TCE or perc could cause leukemia. Furthermore, both the Environmental Protection Agency and the Centers for Disease Control had clearly stated in their reports that “the contaminants found in Wells G and H are not known to cause leukemia.”
And finally, the EPA had never identified the Grace plant as a source of contamination. The agency had said that more research was necessary to find those responsible. If the EPA could not implicate Grace, then how could Schlichtmann and Roisman? To Cheeseman, it seemed obvious that his client had been selected because it was a six-billion-dollar corporation whose name was associated with the chemical industry.
As he worked on the Rule 11 motion, Cheeseman decided to call Neil Jacobs at Hale and Dorr to inform him of his plans. It made senseto Cheeseman that Grace and Beatrice, co-defendants in the case, should work together whenever possible. Last summer, Cheeseman had spoken with Jacobs about removing the lawsuit to federal court. Jacobs had readily agreed to that, and now Cheeseman hoped that Jacobs and Facher would also join the Rule 11 motion. Facher’s name and stature, thought Cheeseman, would lend the motion even greater weight.
Over the phone, Jacobs sounded intrigued by Rule 11. He told Cheeseman he would discuss the idea with Facher and call him back.
Not all of the leukemia victims in Woburn were children. There was, for instance, Roland Gamache. He lived with his wife, Kathryn, and their two young children in the Pine Street neighborhood, one house away from the Zonas, a few blocks from Anne Anderson. In the summer of 1980, in his thirty-fifth year, Roland had gotten a small cut on his ankle while water-skiing at his summer home in New Hampshire. The wound bled for several hours. It was an annoyance, but it did not seem serious. A week later, back home in Woburn, he went to the dentist to have his teeth cleaned. The next morning he awoke and found blood in his mouth and on his pillow. After many tests at the New England Medical Center, doctors confirmed a diagnosis of chronic myelogenous leukemia.
The Gamaches, of course, had read in the newspapers about the east Woburn leukemia cluster. They knew that one of the Zona boys had died of leukemia. They also knew Patrick Toomey—he was an altar boy at their church. And their daughter, Amy, was in the same class at school as Kevin Kane. After Roland’s diagnosis, Kathryn asked his doctor if he could have gotten leukemia from the Woburn water. The doctor said she didn’t know. No one knew what caused leukemia.
In the two years since his diagnosis, Roland had felt fine. He was not on chemotherapy, and at times it was hard for him to believe that he had a fatal illness. His disease, however, was grave. In reply to Roland’s blunt question, his doctor told him he could probably expect to live only five to eight more years. Roland buried himself in work at the family-owned business, Severance Trucking, which was prospering.The firm now had fifty vehicles and eighty employees. He hoped to live long enough to see his two children graduate from high school and go on to college.
The early meetings at Trinity Episcopal Church had occurred before Roland’s diagnosis. He knew nothing about the plans for a lawsuit until his neighbor, Joan Zona, knocked on his door one evening in April 1982, a month before Schlichtmann would file the complaint. She asked Roland if he would join the other families in the case. The lawyers, she told him, wanted to enlist as many Woburn leukemia victims as they could find. Roland said he would think about it. He and Kathryn talked it over, and they decided that if the lawsuit would stop big companies from polluting the environment, they should support it. Moreover, they had learned that TCE can cause skin rashes, and both their children had experienced chronic rashes during the years the wells had been opened. Roland didn’t want his children exposed to any more toxic chemicals, and that seemed like the best reason to join the lawsuit.
Roland and Kathryn went in to Boston to meet with Schlichtmann. They spent an entire day answering questions about themselves, signed all the necessary papers, and after that they gave the lawsuit little thought.
Some months later, in the fall of 1982, Roland was making plans to take his eight-year-old son and two other boys to a Bruins hockey game. He had two season tickets to the Bruins, and he needed two additional tickets for the outing. As it happened, the Riley tannery had a pair of season tickets adjacent to his own. Roland decided to call on Jack Riley and propose a trade—two Celtics basketball tickets for the hockey tickets. He had never met Riley before, and he did not realize that he and Riley were now antagonists at law.
When Roland phoned the tannery that afternoon, a secretary told him that Riley was out but she expected him back shortly, and she offered to take a message.
Riley saw the message from Roland Gamache on his desk when he returned from lunch. He recognized the name immediately—Gamache was one of the plaintiffs in the lawsuit. He found it incredible that Gamache would call him about hockey tickets when he was suing him. “Tell him to come over,” Riley said to his secretary. “I want to talk with him.”
Gamache arrived at the tannery late that afternoon. He extended his hand to Riley and smiled pleasantly at him. He explained the trade he wanted to make.
“I’m not a basketball fan,” said Riley coldly.
Gamache, taken aback by Riley’s demeanor, began to rise from his chair. “Well,” he began, “in that case …”
“I’m not a fan,” continued Riley, “but I’m sure somebody here is. Tell me this: Why are you asking me to trade tickets when you’re suing me?”
“Suing you?” said Gamache.
“Yeah.” Riley looked intently at Gamache. “Don’t you have leukemia?”
“Yes,” said Gamache, surprised that Riley would know.
“Well, what are you suing me for?”
“I don’t know what you’re talking about.”
“You’re one of the plaintiffs who is suing the John J. Riley Company, division of Beatrice Foods.”
Gamache was shocked. For a moment, he could think of nothing to say. He shifted uncomfortably in the chair. “Look,” he said to Riley, “I’m sorry, but maybe I should leave. I didn’t realize your tannery was part of the lawsuit. The lawyers were looking for people to join the case. All we want to do is stop the big chemical companies from dumping.”
“Look, Roland, I was born and brought up in this town,” said Riley. “I’ve been chairman of the school committee, on the planning board, on the board of a local bank. That goddamn land is my life, my blood, because that’s where I get my water. If you think I’m dumping toxic chemicals there, you’re crazy. You dump more when you change the oil in your car than I’ve dumped in a whole lifetime. I never dumped anything, and neither did Beatrice Foods. To accuse me and my company of giving people leukemia—I don’t like it one goddamn bit.”
Gamache was shaken by this outburst. Once again, he got up to leave, but Riley had not stopped talking. He was telling Gamache, his tone calmer now, that he had a case of leukemia in his own family, his sister’s boy who lived in Rhode Island. “And I’m not being fresh, but he never drank a drop of Woburn water. I’m well aware of the emotional problems caused by this sort of thing.”
“My biggest fear,” replied Gamache, “is that the city is going to reopen those wells. I never want my children exposed to that water again. That’s the reason I joined the lawsuit.”
“Those goddamn wells should never have been used in the first place,” said Riley. “That’s what Denny Maher, the guy who drilled them for the city, told me. The water’s only good for industrial purposes. I run a good clean operation, which is the reason I’m the only tannery left in the city.”
Then Riley handed the hockey tickets to Gamache. “You take these tickets. Someday I’ll call you for the Celtics tickets.”
After Gamache departed, Riley called Neil Jacobs to tell him about the incident. “The guy didn’t even know who he’s suing,” said Riley. “He said he did it because the lawyer got him into it.”
To Jacobs, this sounded like evidence that Schlichtmann had actively solicited people to join the lawsuit. Jacobs wondered if a charge of barratry—“the groundless stirring up of lawsuits”—could be made against Schlichtmann. The crime of barratry had an archaic ring and it was rarely invoked nowadays, although early in the century it had been used frequently against personal injury lawyers, then a new breed widely despised by the established bar. All the same, Jacobs thought that Gamache’s own words, as reported by Riley, seemed like an apt description of barratry.
Jacobs mentioned this to Facher, but Facher dismissed it with a wave of his hand. Jacobs also told Facher about Cheeseman’s plan to file a Rule 11 motion. Facher dismissed that gambit, too. It had little chance of success, he told Jacobs. “I’m a great believer in doing things once,” Facher liked to say. “If you’re going to knock a guy down, do it so he can’t get up again.”
Jacobs called Cheeseman to tell him that Facher had decided not to participate in the Rule 11 motion. But there was another matter, continued Jacobs, that Cheeseman might find worth pursuing. Jacobs described the meeting between Riley and Roland Gamache. As long as Cheeseman was thinking about Rule 11, said Jacobs, he might also consider a charge of barratry.
Cheeseman liked the idea. He was disappointed that Facher would not join the Rule 11 motion, but he himself intended to use every weapon he could find against Schlichtmann. And barratry seemed to fit in perfectly with the Rule 11 charge of filing a groundless lawsuit.
Cheeseman added a new paragraph, under the heading “Barratry,” to his Rule 11 motion. “We have highly specific and direct evidence to support this charge,” he wrote, “but at this time, it is based on a privileged communication from counsel for W. R. Grace’s co-defendant.” Since the information was, in theory, protected by the attorney-client privilege between Jacobs and Riley, Cheeseman could not reveal it to Schlichtmann. To make the charge stick, however, he would have to reveal it to the District Court judge. “If the Court will entertain anin cameraaffidavit regarding the communication,” wrote Cheeseman, “W. R. Grace will submit it for examination by the Court.”
Along with the out-of-court statements to the press (“the opening day publicity effort,” Cheeseman called it in his brief), Schlichtmann and Roisman had filed a groundless lawsuit and engaged in solicitation of clients, all violations of the Canons of Professional Ethics. Such behavior should anger any judge, thought Cheeseman. The Board of Bar Overseers might even decide to conduct disciplinary hearings. Schlichtmann could be publicly chastised and fined for his actions.
When Cheeseman removed the Woburn case from state court to the U.S. District Court, the file went to the office of the civil clerk on the fourteenth floor of the John W. McCormack federal building in downtown Boston. The Woburn case was one of 4,811 civil actions filed in the U.S. District Court in Boston that year. The in-take clerk assigned each new case to one of the court’s nine trial judges by means of a lottery, a system devised to prevent lawyers from shopping for a judge they believed sympathetic to them or their case.
For the Woburn case, the clerk took a small sealed manila envelope containing the name of one of the nine judges from the top of the tort category. He ripped it open and shook out a slip of paper with the name “Skinner, W. J.” typed on it.
At that time Judge Walter Jay Skinner had a backlog of more than five hundred cases. Each month, the lottery piled twenty to thirty new cases on top of that backlog. The vast majority of these cases would settle before trial, but they usually settled only after Judge Skinner hadmet with the lawyers in a pretrial conference and threatened an early trial date. The judge worked long hours to reduce his backlog. He was another graduate of Harvard Law School, fifty-six years old, his hair turning white, his blue eyes pale and watery behind horn-rimmed glasses. In his chambers he was a man of great rectitude and decorum. He referred to his wife as “Mrs. Skinner,” and when a law clerk once called her “Sylvia,” he gave the clerk a withering stare. Among the Boston trial bar, he was known as a hardworking and fair jurist, but one who could also be short-tempered and curt. “Pull up your socks and try the case,” he’d warn lawyers. “I’m not going to hold up this trial while your minions labor in some library.” He had once sentenced two lawyers to a seminar on trial practice for filing poorly researched and groundless motions. He would slap his hand with a resounding thwack on his bench and say in a menacing voice, “Now, that’s the end of it! Life is short.”
He was an avid tennis player, and when time permitted he liked to walk up the fifteen flights of stairs to his office for the cardiovascular benefit. He might have had a tall, imperious bearing were it not for a singular deformity—he had a humped back. The year he graduated from Harvard College, in 1948, he had his spine fused because of a painful disk abnormality. Ever since, he’d walked with his knees bent, his back bowed deeply forward at the waist, his head craned upward to see where he was going, like a man carrying a heavy but invisible load.
He was too busy to keep apprised of each new case assigned to him, but the Woburn case was a different matter altogether. He’d read the newspaper accounts of the Woburn leukemia cluster, he’d read about Schlichtmann filing the case, and he’d even seen Schlichtmann on the evening news. He thought Schlichtmann had skirted the bounds of legal ethics with his out-of-court statements, but that, the judge believed, was a matter for the Board of Bar Overseers to consider. He remembered Schlichtmann—tall, angular, earnest—from an encounter three years ago in his courtroom. He had rather liked Schlichtmann then. Certainly he had approved of Schlichtmann’s case. Schlichtmann had represented the Clamshell Alliance, a group that wanted to protest the delivery of a nuclear reactor core to the Seabrook power plant. The protesters had planned to stage a march through the town of Salisbury; they’d gone to the board of selectmen to request a parade permit. Such permits had been routinely granted to other groups—veterans andColumbus Day marchers—but the chief of police had denied the Clamshell’s request. Skinner recalled that he had ruled swiftly in favor of Schlichtmann’s clients and soundly reprimanded the police chief for violating the protesters’ constitutional rights. Then Schlichtmann had demanded that the town of Salisbury pay his fee.
Judge Skinner had balked at this. “I think your clients ought to take this ruling and run,” he’d told Schlichtmann.
“That’s what I’m afraid of, Your Honor, and I’ll be left holding the bag,” Schlichtmann had replied.
Skinner had smiled. “What’s your fee?”
“Sixty dollars an hour.”
Skinner looked at the town counsel. “I have just one question for you. Is Mr. Schlichtmann worth sixty dollars an hour?”
“I guess so,” the lawyer for the town had replied.
“Then pay him,” Skinner had ordered.
Judge Skinner read Cheeseman’s Rule 11 motion with great interest when it arrived in his chambers in mid-November. In his nine years on the federal bench, no lawyer had ever brought a Rule 11 motion in his courtroom, nor did he know of any other judge in the First Circuit who had heard such a motion. Skinner felt that there were a lot of worthless cases—“junk,” he once called them—clogging the federal docket and contributing to his own immense caseload. He knew about the proposed revisions to the rule, and he thought them an excellent idea. In his opinion, lawyers should be encouraged to use Rule 11 much more often.
The rule was unusual in that it seemed to require the lawyer who had filed the complaint to take the witness stand and undergo cross-examination by his accuser. Such an occurrence was, like a Rule 11 hearing itself, exceedingly rare. A lawyer’s job is to argue his client’s cause, not to act as a witness whose very testimony could, perhaps, result in his client’s case being stricken. But Skinner believed the rule called for Schlichtmann to take the witness stand and answer Cheeseman’s questions. That, he decided, was how he intended to conduct this hearing.
Accompanying the Rule 11 motion was a lengthy memorandum from Cheeseman. In Skinner’s experience, Foley, Hoag & Eliot alwaysfiled long briefs. It was a hallmark of the firm, and it had irked Skinner before. He was busy with other cases, and he did not read Cheeseman’s memorandum thoroughly. He failed to notice on page nine the single paragraph entitled “Barratry.”
The judge asked his clerk to schedule a hearing on the Rule 11 motion. The clerk found an opening in Skinner’s busy trial calendar on Thursday, January 6, at two-fifteen in the afternoon. The clerk notified Cheeseman and Schlichtmann to appear in the judge’s court at that time, prepared for an evidentiary hearing with oral argument and witnesses.
Schlichtmann telephoned Cheeseman the morning he received the Rule 11 motion. It was their first conversation. “These charges are ridiculous and you know it,” he told Cheeseman. “This thing about barratry, it’s outrageous for you to attack me personally.”
“No more outrageous than the allegations you’ve made against my client,” said Cheeseman.
“I want you to drop these charges so we can deal with the issues in this case,” said Schlichtmann.
“Dismiss the lawsuit and I’ll drop the charges.”
“You know I can’t do that,” said Schlichtmann.
“Then my client intends to bring whatever charges it thinks are appropriate.”
The cool, deliberate tone of Cheeseman’s voice infuriated Schlichtmann. “Listen, you bastard, drop this thing now.”
“No,” said Cheeseman.
Schlichtmann slammed the phone down. He was breathing hard, his face flushed, so angry that his hands shook. Conway had never seen him in such a state. “This guy is an asshole,” Schlichtmann shouted. “If the judge believes him, I could be charged with unprofessional conduct. I could be disbarred.”
Roisman flew up from Washington to discuss strategy for the hearing. Judge Skinner had made it clear in his order that a Rule 11 hearing would require Roisman or Schlichtmann, or perhaps both, to take the witness stand and be cross-examined by Cheeseman. Roismanbelieved they had no choice but to comply with the judge. Schlichtmann said he would refuse.
“What if the judge makes you?” asked Conway.
“I won’t go,” said Schlichtmann. “It’s wrong. I’m an advocate for my clients. He can’t make me testify against them.”
“He’ll cite you for contempt,” said Conway.
“I don’t care. I won’t go on the witness stand.”
“Jan, he could throw you in jail,” said Conway. “You know what the Charles Street jail is like?” Conway imagined Schlichtmann, in his polished Bally shoes, his red Hermès tie, his thousand-dollar suit, sitting in a Charles Street holding pen surrounded by drunks, thieves, and drug addicts. “You better bring your toothbrush on January sixth,” Conway said.
It was Conway who came up with the idea of turning the barratry charge against Cheeseman. “It’s based on anin cameraaffidavit, a secret charge. The judge isn’t going to like it. I think he’ll be outraged by it. What if you make that the issue? Maybe it’ll get him angry at Cheeseman.”
Schlichtmann thought the idea had possibilities. If he could get the judge angry at Cheeseman at the start of the hearing, perhaps Skinner would regard the Rule 11 motion more skeptically. Schlichtmann decided that the moment he entered the courtroom he’d start talking and he wouldn’t sit until he had turned the judge’s attention to the barratry charge and away from Rule 11. Whether he would succeed was another matter. Judge Skinner, he knew, liked to keep a tight control of proceedings in his court.
They decided to pack the entire case file—all the EPA reports, the leukemia study by the Centers for Disease Control, toxicology reports on the chemicals, newspaper clippings, every bit of data and piece of paper generated about the Wells G and H—and lug it all to court. They would pile it on the counsel table, in front of Judge Skinner’s bench, as evidence of how much information they had to support the complaint. They loaded the files into three large cardboard boxes and placed those on a wheeled cart. Even in its infancy, the case had grown to an impressive size.
Conway looked at the baggage with a appraising eye. “Jan, don’t forget your toothbrush,” he said.
Thursday afternoon, January 6, 1983, was a gray, overcast day, the smell of snow heavy in the air. Out of the offices of Reed & Mulligan came a procession of lawyers—Schlichtmann in the lead, flanked by Roisman and Conway, followed by Reed and Mulligan and half a dozen others, friends who were coming to lend moral support. Word of the unusual hearing had traveled quickly among the Boston personal injury bar. The group marched up Tremont Street, past the black wrought-iron fence of the Old Granary Burying Ground, where the earthly remains of Paul Revere lie, and turned down Milk Street toward the federal courthouse.
The U.S. District Court for the District of Massachusetts is situated in the John W. McCormack federal building, twenty-two stories tall, built in the 1930s of granite and black marble. The building occupies an entire city block, a dark, massive structure of towering stone piers and tall, narrow windows. Heavy bronze grillework covers the lower windows and doors, and above the arched entryways carved stone spandrels depict battle-axes and eagles. In the crenellated battlements high above, peregrine falcons live and prey on the pigeons that feed in Post Office Square.
Under the cold winter sky the building looked foreboding to Schlichtmann. His brow was moist with sweat and his palms were damp. He had not slept well last night. He’d lain awake for a long time, thinking about disciplinary hearings, public censure, disbarment. He regretted ever getting involved in this case. When he arrived on the fifteenth floor, where courtroom No. 7, Judge Skinner’s court, was located, he stopped first at the men’s room. He washed his hands and splashed water on his face, stared for a moment out the window, trying to compose himself.
He entered the courtroom through a pair of tall leather-padded doors. The room was large, with high, vaulted ceilings, black polished marble wainscoting, and fluted columns along the walls. A pale winter light entered the room from a row of windows behind the jury box. Under the windows, old radiators hissed softly, emitting a stale, faintly steamy odor. From above the judge’s black marble bench peered a large bronze eagle in bas-relief, its talons clutching arrows. The room was divided in half by a thick wooden railing, the long rows of the spectators’gallery on one side, the counsel tables, jury box, and judge’s bench on the other. To the right of the judge’s bench, directly across the room from the jury box, was the raised platform of the witness stand. It consisted of a narrow desk made of dark, polished wood, behind which was a heavy leather-upholstered chair.
Courtrooms were familiar places to Schlichtmann. He never entered one without feeling a sense of anticipation, a pleasing surge of energy and nervous excitement. But he’d never before seen a courtroom from the perspective of the accused. He might at this moment have been in handcuffs. The cavernous, stolid old courtroom looked gloomy, and the witness stand, where the judge would have him sit today, seemed menacing.
Schlichtmann went with Roisman and Conway to the long wooden table directly below the judge’s bench, the counsel table usually reserved for the plaintiffs. The rest of his retinue, the friends lending moral support, sat in the front pew of the spectators’ gallery. Two other groups of lawyers, seven or eight in all, entered the courtroom. Schlichtmann recognized none of them. A tall man, perhaps forty years old, in need of a haircut, wearing a sheepskin coat and a leather cap with a narrow brim, took a seat at one counsel table. Schlichtmann heard this man speak to a woman dressed in a dark suit who was seated next to him. He recognized the voice and knew that this was Cheeseman. To Cheeseman’s left, at the third counsel table, sat two men, one who appeared to be about sixty, the other one younger, near Schlichtmann’s age. The older man wore a cheap gray suit that looked as if it was made of polyester. The younger man was short and stocky with a mustache and glasses, and a round, moonlike face. Schlichtmann did not know their names, but he surmised that they must be counsel for Beatrice Foods.
The door to the right of the judge’s bench opened and Judge Skinner appeared, black robe draped over his bent form.
“All rise,” said the clerk. “This court is now in session. Civil Action 82-1672, Anderson et al. versus W. R. Grace, et al.”
Judge Skinner studied the gathering of lawyers with a look of mild surprise. “This is the only case?” he said to his clerk. “There are a lot of lawyers.” He saw Facher sitting at a counsel table. He’d known Facher for thirty years, since law school, and Facher had tried several cases in his court before. “Mr. Facher, do you have an interest in this case?”
“I am a co-defendant, so I guess I do have an interest,” said Facher. “But it’s not my motion,” he added.
“All right,” said the judge. “It’s Foley, Hoag’s motion, I guess. There’s been a lot of publicity about this case. I consider that to be a disciplinary question that must be raised—if it is raised—with the Board of Bar Overseers and not in connection with the trial.” The judge paused. “The remaining question is Rule 11.”
Schlichtmann had remained standing. He did not know if Judge Skinner remembered him. “Your Honor, if I might, my name is Jan Schlichtmann.”
“I know,” said the judge.
“Your Honor,” continued Schlichtmann, “this is a very unusual procedure for me.”
“For me, too,” replied the judge. “I’m taking quite an interest in Rule 11. I think it’s been woefully ignored in the history of the federal rules, and that has probably caused the dockets of this and other federal courts to be clogged with a good deal of garbage over the years.”
Schlichtmann took a deep breath. “I’d like to bring to Your Honor’s attention an important matter. Under the heading of ‘Barratry,’ Mr. Cheeseman states that he has ‘highly specific and direct evidence’ to support the charge that we have engaged in the solicitation of clients, which is a violation of the disciplinary rules and could subject us to disbarment if proven. He says it’s based on privileged communication from Hale and Dorr, counsel for the co-defendant in this case. They have information which they have supplied to Mr. Cheeseman concerning my improper conduct.”
Judge Skinner looked mystified. He thought he was hearing the Rule 11 motion, not a charge of barratry. “Barratry?” the judge said. “It’s a privileged communication from counsel for whom?”
“From Hale and Dorr, counsel for Beatrice Foods, which owns the John J. Riley Tannery,” said Schlichtmann.
The judge looked at Cheeseman. “Where’s the privilege supposed to be?”
Cheeseman stood to explain. “There was a communication from Beatrice Foods’ client to their attorney, which was then communicated to me.”
“Well, then,” said the judge, “the confidentiality of that is destroyed, isn’t it?”
“I think not,” said Cheeseman.
“Because we’re engaged jointly in the defense of an action. My understanding of the rules—”
Judge Skinner waved his hand impatiently. “If you think you are going to give me secret stuff against this attorney”—Skinner pointed to Schlichtmann—“without giving him a chance to respond in open court, you are not. I’m going to send your motion packing. If you have a basis for this charge, you better reveal it. If you don’t, forever hold your peace.”
Schlichtmann started to speak. “Your Honor—”
“Wait a minute,” interrupted the judge. “There’s going to be enough spitting back and forth without you starting so soon.” He glared at Cheeseman, awaiting his response.
“If Your Honor doesn’t wish to see the affidavit,” said Cheeseman, “I have no interest or desire in showing it to you at this time.”
“I am not going to take anin cameramotion on a matter that involves this attorney and his professional reputation. We’ll proceed with the Rule 11 motion.”
But Schlichtmann was not ready to proceed with the Rule 11 motion. “Your Honor, may I?” he said again.
Judge Skinner nodded.
“I hope you appreciate that this accusation of barratry compromises my relationship with my clients as well as with you, Your Honor, because I now appear before you under a cloud of impropriety.”
“The cloud has not materialized,” said the judge.
“But a lie is halfway around the world before the truth gets its boots on,” replied Schlichtmann.
The judge looked amused by this piece of rehearsed wisdom.
“I ask that Hale and Dorr reveal what information it has so we can dismiss this charge and get on with the business of this lawsuit,” continued Schlichtmann. “Otherwise I’ll appear before Your Honor with these grave accusations of impropriety, and Your Honor has no idea whether they are true or not.”
The judge sighed. “Mr. Facher, do you wish to reveal this material to Mr. Schlichtmann at this time?”
“I don’t want to prolong this,” said Facher, standing to address the judge. “The characterization that it’s ‘highly specific and direct evidence’is his characterization”—Facher indicated Cheeseman“—and not mine. We received certain communications, we said this is the information we received, here it is. We did nothing about it. I don’t have any particular problem if Mr. Cheeseman wants to tell Mr. Schlichtmann, although technically, I guess, it still is privileged because it came from a client and we’re engaged in a joint defense.”
“I don’t know about that,” said Judge Skinner.
“I want the Court to know that this is notmycharacterization of the information,” repeated Facher.
Schlichtmann, still standing, glanced at Cheeseman, who in turn was looking curiously at Facher.
“I make a motion to strike this material as being scandalous and immaterial,” said Schlichtmann. “An allegation made by Mr. Cheeseman in an attempt to discredit me in front of this Court.”
“I will not strike it,” replied the judge, “but I will impound it. Who knows? Maybe it’ll turn out to be correct.”
“That’s precisely the point, Your Honor,” said Schlichtmann. “I’m in an impossible position.”
“No you’re not. You can consider yourself perfectly innocent until some proof has been raised. As a matter of fact, I think the whole notion of solicitation is undergoing some change, and quite properly so. Once you start talking about lawyers representing classes of disadvantaged people who, practically by definition, are not in a position to go seeking counsel, you have some element of solicitation. I’m inclined to think it’s a good thing.”
“Hale and Dorr said they would not characterize it—”
“Look, Mr. Schlichtmann,” interrupted the judge, “I understand you’re in a terrible state of concern. There’s nothing I can do about it this afternoon but impound this document.”
“I think Mr. Flasher”—Schlichtmann had not heard Facher’s name correctly, and now he mispronounced it—“has an obligation to me. I ask that he give this information to the Court.” Schlichtmann knew by the judge’s reaction—a barely perceptible widening of the eyes, a slight compression of the lips—that he had gotten Facher’s name wrong. From the counsel table behind him, he heard a muffled snort. He felt as if he had committed an indiscretion, a social gaffe; his ignorance of Facher’s name and stature marked him as an outsider.
“I can’t put the thumbscrews to Mr. Facher, can I?” said Judge Skinner. He seemed to articulate Facher’s name with elaborate clarity.
“I’ll be glad to inquire of my client,” offered Facher.
“Do you want to go out and get on the phone right now?” asked the judge.
Facher had not meant to make the inquiry at this very moment, but he shrugged his assent and slowly departed the courtroom. There was a pay telephone in the corridor, right outside the courtroom door.
“Meanwhile,” said the judge, “let’s get back to the Rule 11 motion.”
Schlichtmann slowly sat.
“The matter before us seems to be a very simple one. The question is: What did you have before you when you drew up this complaint? And the best way to find that out is for Mr. Cheeseman to ask you. If you had a basis to file a lawsuit, that’s the end of it. If you filed the thing without making some kind of investigation, then I’ll strike the complaint.”
Schlichtmann was on his feet again. “It would be, I believe, unseemly for a plaintiff’s attorney to take the witness stand and answer questions by the defendant’s attorney,” he said. “I almost feel it would be necessary for us to have our own attorneys. I’m willing to provide the Court with detailed affidavits.”
“No. I’m not going to decide the case on affidavits. Let there be cross-examination. The allegation, as I understand it, is that you charged W. R. Grace with running a chemical operation in Woburn, and what they actually have out there is a machine shop.”
The judge had gotten this wrong, no doubt from reading Cheeseman’s motion, which had made exactly that assertion. “It is not a chemical operation,” agreed Schlichtmann. “It is a machine shop, but they do use various chemicals and solvents.”
“Don’t try the case here,” said the judge, annoyed. “The motion is Mr. Cheeseman’s and the floor, properly at this point, is his. I’m going to permit him to inquire of you.”
“Your Honor,” continued Schlichtmann, “we’ve provided affidavits about our investigation, the hours spent, the public documents we used, the experts we consulted. We came to the conclusion that we had good faith and good reason to believe that W. R. Grace used these chemicals and that these chemicals entered the groundwater and contaminated it, resulting in injury to the plaintiffs.”
“Okay,” said Judge Skinner. “Now Mr. Cheeseman is entitled to cross-examine you.”
Cheeseman stood, legal pad in hand, ready to call Schlichtmann to the witness stand.
But Schlichtmann would not stop talking. “When I take the witness stand, I cease being an attorney for my clients. I become a witness in this case subject to all the rules of examination. I can no longer be a professional, objective advocate for my clients.”
“The inquiry is going to be limited, Mr. Schlichtmann. I have no doubt that this is the way to proceed.”
“Your Honor, I cannot take the stand without withdrawing as counsel in this case.”
“No,” said the judge, “I don’t think that is right.”
“I’m under ethical considerations not to be a witness in a case against my client, Your Honor. What I say on the witness stand will determine whether my client’s complaint is stricken and the case thrown out of court.”
“That’s right,” said Skinner.
“Is it not unseemly for an attorney—”
“Look,” said Judge Skinner, visibly angry now. “I’ve decided how I’m going to do it, and that’s how I’m going to do it. I will not listen to much more of this.”
“Your Honor, forcing me into the humiliation and disgrace—”
“You will survive it,” said Skinner curtly. “Being a lawyer is no bed of roses. Now you sit down, and Mr. Cheeseman can call a witness.”
Schlichtmann complied, a grimace on his face.
The judge looked at Cheeseman. “Who do you want first?”
“Mr. Schlichtmann,” said Cheeseman.
“I respectfully refuse to take the stand,” said Schlichtmann, on his feet again. “I ask the Court’s forbearance in allowing me to argue why it is unnecessary.”
Judge Skinner had run out of forbearance. He could hold Schlichtmann in contempt, impose a fine, even jail him until he agreed to take the witness stand. Or he could dismiss the case outright. He seemed to consider the possibilities for a moment. Finally he said, “I’m not going to hold you in contempt if you are acting under what you think is your professional conscience. But I may dismiss the complaint.”
“That’s precisely the predicament I’m in,” said Schlichtmann, hands outstretched. “I have an obligation to myself and to my client. It may result in my client having his case thrown out of court.”
The judge sighed deeply. “I don’t think there are six questions that Mr. Cheeseman can ask you, actually.”
Schlichtmann could see that he was wearing the judge down. “Could we try it this way—have you ask those six questions?”
“You want Mr. Cheeseman to submit the questions to me?”
“Yes, Your Honor.”
“Mr. Cheeseman, are you willing to do it that way?”
“I have a few more than six questions,” Cheeseman said, who was obviously reluctant to do it that way.
“Well, whatever you have, do you want to give it to me?”
“I’m sure you can’t follow my handwritten notes.”
“Give me a chance.” The judge beckoned Cheeseman to come forward. “Come over here to the side bar.”
Cheeseman walked reluctantly to the side of the judge’s bench, carrying his yellow pad of notes.
Schlichtmann watched in astonishment. All Cheeseman had to say was, No, he wanted to conduct the examination himself, it was his right to do so, and thereby affirm the judge’s first instinct. But he had given in without a fight. Schlichtmann glanced at Roisman, raised his eyebrow, and smiled a small, quick smile.
Cheeseman and the judge conferred in whispers for several moments. The courtroom, with fifteen or so lawyers watching, was silent except for the murmured exchange at the bench.
Finally the judge cleared his throat and said, “There are a couple of questions Mr. Cheeseman wants answered, and the first one is addressed to Mr. Roisman: When were you first retained with respect to this case?”
At the counsel table, Roisman stood. “Mr. Schlichtmann asked us to get involved around February of 1982.”
Judge Skinner conferred again with Cheeseman, who remained at the judge’s elbow, looking unhappy. The judge asked when Roisman and Schlichtmann had first seen the EPA documents reporting the contamination near the W. R. Grace plant, and Roisman said in June 1982. There was another whispered conference between the judge and Cheeseman.
“The next question …” began the judge, and then he grunted. “I think that’s a rhetorical question, Mr. Cheeseman.”
“I think not, Your Honor,” said Cheeseman.
“You better clarify it for me again.”
Schlichtmann watched the two of them with interest. He thought the judge had lost all enthusiasm for this hearing. Skinner seemed uncomfortable, almost embarrassed, with a proceeding in which he and a lawyer conferred alone, off the record,ex parte, about another lawyer. Schlichtmann felt certain he had won.
After a few more desultory questions, Judge Skinner finally said, “All right. I think that is the end of the catechism, is it not, Mr. Cheeseman? Anything else before we bring this hearing to a close?”
“There is one other matter,” said Schlichtmann. “I believe Mr. Facher has made his phone call to his client.”
Facher had in fact returned after only a few moments outside the courtroom. He had seen everything that had gone on between the judge and Cheeseman. To Schlichtmann, Facher said, “I have no information. They are all out to lunch in Chicago. I have no personal problem with showing you the affidavit. It doesn’t cast any great aspersions on you.”
“Based on that statement,” Schlichtmann said to the judge, “I ask the Court to make a finding that there is no evidence of any impropriety.”
Judge Skinner seemed to consider this for a moment. “Mr. Facher has made a judgment, but I can’t let his judgment be substituted for mine.” Then he added, mostly to himself, “Ordinarily, I would give it great respect.”
Schlichtmann started to speak again, but the judge cut him off abruptly. “Look, you’ve got an issue that’s quietly dying on the vine here. Why do you run the risk of reviving it?”
“I don’t want to be the one dying on the vine, Your Honor.”
“As far as I’m concerned, it will remain a non-issue,” said Skinner, rising to indicate the hearing was over.
After the judge departed, Schlichtmann turned and walked toward Facher, who was putting on his coat. Schlichtmann ignored Cheeseman, who stood a few feet away, busying himself with papers on the counsel table, and extended his hand to Facher. “I want to thank you,” Schlichtmann said. “It was very statesmanlike of you not to join in this ridiculous attack.”
Facher smiled at Schlichtmann in a soft, sleepy manner and accepted the handshake. Schlichtmann had gotten the best of both Cheeseman and the judge, and Facher had found that most entertaining. Schlichtmann’s comment about statesmanship amused him further. Statesmanship had nothing to do with being a trial lawyer. To Schlichtmann he said, “You did a good job. I don’t know if you’re right about this case, but you certainly did a good job.”
Judge Skinner issued his ruling two weeks later. “Rule 11 is a useful tool to restrain frivolous and abusive litigation,” the judge wrote. “Rule 11 may not be used, however, to harass the serious litigant whose claim may depend upon circumstantial evidence and may not be fully developed at the time the complaint is filed.” The EPA reports and the study of the Woburn leukemia cluster by the Centers for Disease Control constituted sufficient grounds for filing a complaint. “Accordingly, defendant’s Rule 11 motion is DENIED.”
Schlichtmann had already celebrated. He knew he’d won the moment the hearing had ended. At Reed & Mulligan that evening, he opened bottles of champagne. He laughed and did parodies of Cheeseman, of the way Cheeseman had walked stiffly up to the judge’s bench, of the wounded look on Cheeseman’s face when the judge said his question was rhetorical. Everyone joined in the celebration, which went on until late that night.
The next morning, Schlichtmann awoke without a thought of the Woburn case. It seemed to lie in a distant future. He still believed that he was merely Roisman’s local counsel. He didn’t realize then how large an investment Cheeseman’s motion had given him in Woburn.
Orphans & Dogs
For most of the next year and a half, Schlichtmann let the Woburn case languish in the files. His life was busy, his career on the rise. He and Conway stayed on at Reed & Mulligan for a while. Barry Reed landed a big case—a hotel fire in which a businessman had died—and Schlichtmann jumped on it. He hired the nation’s leading expert on hotel fires and spent twenty-two thousand dollars preparing courtroom exhibits. Then he invited the hotel’s lawyers and insurance agents to a meeting. Reasoning that this case should be worth a lot of money, he spared no cost in arranging the setting for the meeting. He reserved the Grand Ballroom at the Ritz-Carlton and a private dining room for lunch and dinner breaks. At the end of the first day the parties retired to the dining room and continued their discussion over lobster bisque, tomatoes Provençale, grilled rack of lamb, and a grand cru Bordeaux, all paid for by Schlichtmann.
The negotiation went on for three days. Schlichtmann laid out his entire case, assisted by Conway and a young lawyer from Reed & Mulligan named Bill Crowley. Schlichtmann let the hotel’s insuranceagents and lawyers look at his exhibits and cross-examine his fire expert. The hotel brought in its own fire expert. The two experts discussed the evidence, agreeing far more often than not. On the third day Schlichtmann walked out of the Ritz with a settlement of two and a quarter million dollars.
He had invented a new way of doing business. The Ritz negotiation had been almost like a trial, but in an atmosphere that was congenial instead of adversarial. True, it had been expensive, but not nearly as expensive as a two-week trial, and much less risky. Schlichtmann felt proud of his newfound method. He saw no reason why the same approach shouldn’t work in every case.
Barry Reed took a large portion of the hotel fire fee, even though he had never appeared at the Ritz negotiation. Schlichtmann split his share, with Conway and Crowley. And when a reporter fromThe Boston Globecalled to ask about the settlement, Reed took the call and all the credit, too.
“You could have at least mentioned my name,” said Schlichtmann.
Soon afterward, Schlichtmann left Reed & Mulligan to start his own firm. Bill Crowley came along with him. And so, of course, did Conway. There had never been any doubt in Conway’s mind that he would go wherever Schlichtmann went. Life would have been unbearably dull without Schlichtmann.
The name of the new firm was Schlichtmann, Conway & Crowley. There was nothing modest about its beginnings. Schlichtmann saw to that. The Ritz negotiation had convinced him that the appearance of success often begets success. The three partners found an office on the second floor of an old three-story brick building, a historic landmark near the waterfront, at the corner of Milk and India streets, two blocks from the federal courthouse. Schlichtmann hired one of Boston’s most fashionable interior decorators. The partners put all their earnings from the hotel fire case into renovating and furnishing the office, uncovering the massive oak beams and rebuilding the ancient brick archways. Schlichtmann ordered a large conference room table, made of bird’s-eye maple and stainless steel, from the man who had designed a similar table for the Blue Room of the White House. Surrounding the table were eight chairs of soft, buttery leather, each like a sofa unto itself. Oak filing cabinets were specially built for the office, along with a library to hold Schlichtmann’s substantial collection. He had the decoratorinstall a kitchenette and bathrooms equipped with telephones and a spacious tiled shower. The firm leased the most advanced office computer system available. In keeping with the opulence of the new office, Kathy Boyer arranged for fresh flowers to be delivered daily.
The firm celebrated its opening with a huge party. A crane pulled up outside, stopping traffic on India Street for several hours, in order to hoist a grand piano through the second-floor windows. The first floor of the building was occupied by a venerable old Irish pub named Patten’s Bar & Grill. Schlichtmann rented the pub for the evening and hired the best caterer in town to prepare the food. Waiters in black tie served champagne. One jazz combo played downstairs at the bar while another played upstairs in the office. Reed and Mulligan came to the party, along with a hundred other lawyers and their spouses, among them many insurance company lawyers and agents, Schlichtmann’s past adversaries. Teresa was there, of course, and so was Schlichtmann’s mother and most of the Conway clan. Late that evening, the party still in full swing, Conway ran into Schlichtmann coming out of the men’s room. They smiled at each other. They had a wonderful future before them. “There’s only one thing, Jan,” said Conway.
Schlichtmann looked at his partner.
“Woburn,” said Conway. “Get rid of it. Please.”
Schlichtmann simply laughed.
Some types of personal injury cases are riskier than others. Medical malpractice claims, for instance, are usually much more complicated to prepare than most accident claims. They also tend to require large investments of time and money, and the results are far from certain. Among those malpractice claims that go to trial, the plaintiff can expect to lose, on average, two times out of three. Like most people, plaintiffs’ lawyers don’t like to take chances with their own money. They either settle or drop the vast majority of cases before trial. Furthermore, most successful personal injury firms try to carry large inventories of cases, many of which are small and uncomplicated. Small claims yield small rewards, but they also provide a regular stream of revenue for a firm.
That way of doing business didn’t appeal to Schlichtmann. He didn’t want to spend his career churning through small cases. He hadgrander visions. He wanted his firm to deal only in those cases that promised big rewards and required big investments. Conway went along with this strategy. He and Schlichtmann agreed that they would accept only ten new cases a year. It would be Conway, cautious Conway, who would serve as the firm’s gatekeeper. He would weigh the questions of liability and damages and decide what cases were worth investing in.
Some of the claims that came to the new firm in its first year were patently frivolous and Conway quickly rejected them. (One prospective client wanted to sue “for bodily damages I have sustained as a result of drinking beer for a period of twenty-five years.”) Conway called such cases “dogs.”
“Orphans,” on the other hand, were cases that looked as if they might have some merit but that for one reason or another had circulated among several law firms, rejected by one and passed on to another. Most of these were medical malpractice cases. In time, Conway’s reject file would contain many orphans, instances of disability and death from cancers, ruptured aneurysms, kidney failures, high fevers, and cardiac events. In most of those instances, Conway judged that doctors had not been responsible for the sad outcomes. They were, so to speak, “acts of God.” Conway was easily given to compassion but not to recklessness. “You measure your success by the cases you don’t take,” he liked to say.
The grand piano had scarcely been lowered from the second-floor window when a classic orphan crossed Conway’s desk and arrested his attention. Two Boston firms and the biggest plaintiff’s firm in New York, Kriendler and Kriendler, had already rejected it. It was, on the face of it, a most puzzling case. A young man had been in an auto accident, had suffered whiplash, and had gone to the hospital for what everyone had believed would be a short stay. Five months later, he left the hospital in a wheelchair, completely crippled, the victim of a massive infection that had eaten away the bones of his hips. More hospitalizations and many operations had ensued. The young man’s medical record had become a Manhattan phone book, a history of 622 days in various hospitals.
To Conway, it seemed amazing that a minor automobile accident could have resulted in such a medical nightmare. He wanted to adopt this orphan. He gave the file to Schlichtmann, who took it home one weekend to read. For the next six months Schlichtmann thought aboutnothing else. And the Woburn case, ignored by Conway and forgotten by Schlichtmann, became an orphan in its own right.
Schlichtmann began trying to unravel what had happened to the young man. By the time he had his answer, he’d spent two hundred thousand dollars on the case, far more than he’d spent on any other, more than anyone, including even Conway, thought prudent. He found that the young man, whose name was Paul Carney, had been treated with steroids immediately after the accident. This was the accepted treatment for reducing dangerous swelling in injuries such as whiplash. But Carney had received high doses of steroids for three weeks, much longer than recommended. Schlichtmann learned that steroids in massive amounts can destroy bone matrix, particularly in the hips. In Carney’s case, this process was further abetted by an infection that had entered through a catheter. The infection had spread throughout Carney’s entire body, its symptoms—swelling and fever—masked by the steroids.
Schlichtmann left nothing to chance in preparing the case. Twice he organized mock trials, presenting the case to panels of ordinary people who had been hired off the street to act as jurors. In both instances, the mock juries came in with similar verdicts: three million dollars.
Schlichtmann invited the defense lawyers and insurance agents to the Grand Ballroom at the Ritz-Carlton. As it had in the hotel fire case, the negotiation went on for several days. And it worked, after a fashion. The insurance company, which had earlier refused to offer a dime, now offered a million dollars, the limit of its policy. Schlichtmann turned it down.
On the street, rumors about the Carney case spread quickly. Milliondollar settlement offers, like million-dollar verdicts, were not all that common. Lawyers stopped Schlichtmann and asked if he had really rejected a million dollars. Some admired his audacity. Others thought him irresponsible. Almost no one believed the rumor that he had actually risked two hundred thousand dollars on one malpractice case.
The Carney case was a big story among only part of the Boston bar. Corporate lawyers don’t travel in the same circles as personal injury lawyers. William Cheeseman hadn’t heard about the Carney case. He hadn’t laid eyes on Schlichtmann since the Rule 11 hearing, more thana year ago. He was strolling up the sidewalk on Milk Street toward his office one spring afternoon when Schlichtmann, walking as fast as a man can walk without running, nearly ran him down.
Schlichtmann shook hands with Cheeseman. The Rule 11 motion still rankled him, but even so he felt—it seemed odd to him then—a desire for Cheeseman’s respect. They stood for a moment on the sidewalk and talked, a few paces from the door leading up to Schlichtmann’s office.
“I’m going to trial next week,” said Schlichtmann. He told Cheeseman about the Carney case and the million-dollar offer by the insurance company. Cheeseman seemed interested, so Schlichtmann began describing the courtroom exhibits he intended to use.
“I’d like to see these exhibits sometime,” said Cheeseman.
“You want to?” said Schlichtmann. “My office is right here. Come on up.”
The office was in an uproar. It looked like the backstage of a major theatrical production just before curtain time. The exhibits occupied the entire conference room and spilled out into the hallway and the reception room. There were a dozen large, hand-colored illustrations showing the progress of Carney’s disease from normal bone tissue to advanced necrosis. There were poster-sized blowups of the doctors’ entries into Carney’s hospital chart, and graphs documenting Carney’s decline during the three weeks of steroid treatment. Schlichtmann had even produced a movie—A Day in the Life of Paul Carney. On the conference room table Cheeseman saw anatomical models of hips and prosthetic joints.
Schlichtmann gave Cheeseman a tour, explaining his theory of the case and how he intended to prove it. He noticed that Cheeseman’s interest seemed more than just casual. Schlichtmann thought to himself, He’s thinking about what the Woburn exhibits might look like.
Cheeseman asked how much he had spent on the Carney case. Schlichtmann smiled. “A lot. A couple hundred thousand dollars.”
Cheeseman raised his eyebrows. “The entire office is working on this one case?”
“That’s the way we like to work,” said Schlichtmann.
Cheeseman spent twenty minutes in the office. Neither he nor Schlichtmann mentioned the Woburn case. As he was leaving, Cheeseman said, “I’d like to see this trial. Will you give me a call when it starts?”
“Sure,” said Schlichtmann.
Memories of this tour lingered with Cheeseman. He was amazed that Schlichtmann would risk so much on one case. If he were in Schlichtmann’s shoes, he thought, he wouldn’t be able to sleep at night. He really did want to see the Carney trial. He hoped that Schlichtmann would lose.
Being in trial, Schlichtmann once said, is like being submerged in deep water for weeks at a time. The world above becomes a faint echo. War, scandal, and natural disaster may occur, but none of it seems to matter. The details of the case occupy every waking hour and usually intrude into dreams as well. Existence becomes spartan. When you finally come to the surface to breathe normally again, the world seems altered in fundamental ways. Win or lose, you set about rediscovering pleasures only dimly remembered. Colors seem brighter, food tastes better, the weather is of compelling interest.
The Carney trial, six months in preparation, lasted fifteen days. Conway and Kathy Boyer bought sandwiches for Schlichtmann and begged him to eat, but he rarely did. By the end of the trial he had lost fifteen pounds.
On the Monday afternoon when Schlichtmann delivered his summation, the courtroom gallery was full. Everyone who worked at the office had come to watch. Schlichtmann’s banker had also come. The banker had lent the firm money for the Carney case and he was there, as he put it, “to keep an eye on the collateral.” There were many lawyers in the gallery, curious observers, but Cheeseman was not among them. Schlichtmann had forgotten—perhaps on purpose—to call him.
One of the lawyers in the gallery, a slender woman with fine, sculpted features and chestnut-colored hair, had flown back to Boston from Atlanta, where she was representing a drug smuggler, just to hear Schlichtmann’s summation. Her name was Rikki Klieman. At the moment, her career was ascendant.Timemagazine, in an article entitled “The New Women in the Court: Five of the Best and Brightest,” had called her a “superstar.” She’d spent a year as Judge Skinner’s law clerk. She’d also worked briefly in the litigation department at Hale and Dorr, where Facher ruled. Some years ago Barry Reed had introduced her to Schlichtmann, and she’d found herself quite taken withhim. Given the chance, she believed she could fall in love with him. She imagined they might marry someday and have children. “Somehow, in my fantasy life,” she once mused, “Jan and I will work hard and then we’ll end up together.” As it was, she and Schlichtmann were just good friends. They’d gone out to dinner several times, but to her dismay they had always talked about the law.
Rikki Klieman thought Schlichtmann looked thin, even gaunt. His suit jacket seemed to billow on him. Before court had convened, she’d gone up to him in the corridor and wished him luck. His eyes had appeared glazed and distant. He’d nodded his head but he’d seemed barely to notice her.
She knew the architecture of a summation well; she had given many final arguments herself. Schlichtmann was working toward the emotional climax, describing the young man’s helplessness, how his father aided him out of bed every morning and dressed him for the day. The summation was quite moving, the best Schlichtmann had ever given. In the gallery, some people brushed tears from their eyes. Although Rikki was practiced in the trial lawyer’s art, she felt, to her astonishment, on the verge of tears herself.
Schlichtmann waited in the courthouse corridor for the verdict. On the afternoon of the second day, the jury foreman sent a message to the judge, who summoned the lawyers up to his bench. The jurors wanted the judge to explain the legal concept of negligence again. It was not a good sign for the plaintiff. The judge knew that Schlichtmann had rejected a million-dollar offer. He looked directly at Schlichtmann. “I advise you to talk to one another and see if you can reach some sort of settlement.”
This was, word for word, almost exactly what the judge in the Eaton case had said. Schlichtmann had the eerie sense of history repeating itself, except that this time he felt a wingbeat of fear. This time the stakes were much higher.
That evening Schlichtmann went to the Parker House with Conway and Crowley and a group of friends, among them Rikki Klieman. Everyone was solemn and worried. Someone suggested that Schlichtmann go back to the insurance company and see if the million dollars was still on the table. Schlichtmann kept insisting there was no causefor alarm, as if saying so would make it true. It was merely a question that one juror wanted cleared up. “Don’t you think so?” he kept asking everyone in turn.
That night, Schlichtmann went home and lay in bed trying to sleep, but he could feel his heart thudding and he imagined he could feel his adrenal gland squeezing adrenaline into his system with each beat. He thought about his reputation and career, about the lawyers who’d said he was foolish to reject a million-dollar offer, about Paul Carney in his wheelchair awaiting the verdict.
He arose at dawn and went to his office. At six o’clock, as he watched the sun rise over Boston harbor, he called Rikki Klieman. The phone rang several times before she answered, her voice thick with sleep.
Should he take the million dollars? Schlichtmann asked her. Or should he wait for the jury’s verdict?
“You’ve made your choice,” Rikki said. “You’ve turned down the money.” She got out of bed and put on a robe, still cradling the phone to her ear. She brushed her teeth while she listened to him talk. She gave him no sympathy.
“What do you think the jury’s going to do?” he asked.
“Jan, I don’t read tea leaves,” she said. “The jury’s question is not good. But the only reason to be as crazy as you are is if you haven’t made up your mind. Have you made up your mind?”
“Yes,” he said.
“Then you’ve got to live with it.”
The jurors returned their verdict that afternoon. They found the doctor and hospital negligent and they awarded Paul Carney $4.7 million.
Outside the courthouse in Pemberton Square, Schlichtmann danced. He jumped onto a park bench and did a soft-shoe, long arms akimbo, pirouetting with joy in his dark blue suit. Conway, looking rumpled, his shirttails emergent, his tie coming undone, stood and watched his partner. People stopped to stare. “He’s just won a big case,” Conway explained. TheBoston Herald, a tabloid given to sensationalism, put the story on the front page with a headline that looked as if war had been declared. “The award is the largest in Bay State history,” asserted theHerald, which had rounded the verdict to an even five million dollars.
Schlichtmann had taken five cases to trial, each one bigger than the last, and he had not lost once. The Carney case had given him plenty of money. And it had also given him a new measure of confidence. Any other malpractice case would now look pitifully small compared with Carney. He felt he was ready for something bigger. He felt he was ready for Woburn.
As it happened, events had conspired to bring Woburn back into the news without any help from Schlichtmann. He had been immersed in frantic preparations for the Carney trial when two professors at the Harvard School of Public Health announced that they had completed a three-year study of leukemia in Woburn. Schlichtmann had known that the study was going on, but he had played no role in it. On the evening of February 8, 1984, he was just one of three hundred people who gathered at Trinity Episcopal Church to hear the findings of what would come to be called the Harvard Health Study.
The project had started back in the spring of 1981, when Reverend Young and Anne Anderson were invited to speak at a seminar at the School of Public Health. A professor at the school, a statistician in his mid-fifties named Marvin Zelen, had been intrigued by their talk. Woburn seemed to him like an interesting riddle. Was there or was there not a link between the well water and the cluster of leukemias? By the end of the seminar, Zelen thought he knew a way to solve this riddle.
Statistical studies of the sort Zelen specialized in had proved, for example, an irrefutable link between cigarette smoking and lung cancer, but those studies had been based on an analysis of tens of thousands of cases of lung cancer. Statistical studies rely upon large numbers, and Zelen had only twelve cases of leukemia to work with in Woburn. But Zelen thought he saw a way to get larger numbers. He reasoned that if the well water had, in fact, caused leukemia, it might also have caused a variety of other childhood health problems. If an unusual pattern of birth defects and reproductive disorders emerged among families that had gotten their water from wells G and H, that would tend to support the theory that the cluster of leukemia cases was not simply a coincidence, a statistical fluke.
Zelen and a colleague undertook an ambitious study. They began collecting information on the outcome of every pregnancy and childbirth in Woburn between 1960 and 1982. Although the most reliable health data came from house-to-house interviews, that method was expensive and time-consuming. Zelen and his team at Harvard settled on a telephone survey, a task that volunteers in Woburn could be trained to do. By the end of the survey, the volunteers (they numbered several hundred, among them Anne Anderson and Donna Robbins) had made seven thousand phone calls and collected health data on more than five thousand children.
“The combined weight of evidence,” wrote Zelen and his colleagues in the completed 153-page study, “strongly suggests that water from wells G and H is linked to a variety of adverse health effects.” The Harvard scientists found an increased rate of fetal and newborn deaths among pregnant women whose homes had gotten the largest quantities of the water. Among children in the Pine Street neighborhood, an area of high exposure, they found increased rates of allergies, skin afflictions such as eczema, and respiratory disorders—chronic bronchitis, asthma, and pneumonia. They also found a “significant excess” of congenital defects to the eye and ear, of kidney and urinary tract disorders, and of “environmental” birth defects, a grouping that included cleft palate, spina bifida, Down’s syndrome, and other chromosomal aberrations.
And finally, the study determined that there was indeed a positive link between exposure to the well water and the high rate of childhood leukemia. On average, children with leukemia received 21.2 percent of their annual water supply from the wells, compared with 9.5 percent for children without leukemia.
When Zelen announced these findings at Trinity Episcopal on that night in February, a hush fell over the crowd. Then someone said, in a voice audible to all, “Thank God for Marvin Zelen,” and the crowd broke into applause.
Some experts said that the Harvard Health Study was a good study. Dr. John Truman, who was in the audience at Trinity Episcopal, stated at his deposition a year later: “It’s a very well-done study. It clearly shows that ingestion—drinking of that water—is associated with a higher incidence of leukemia. Prior to it, I didn’t think childhood leukemia was caused by external factors, but now I think we have to consider external factors as a real possibility.”
Others, however, maintained that the study was seriously flawed. “This report is characterized by … an ignorance of epidemiological issues,” wrote one reviewer at the federal Centers for Disease Control. The American Industrial Health Council, an industry research group, denounced the study as biased, and even one of Zelen’s colleagues at Harvard stated, “It was an incredible mistake to use as interviewers people who have a self-interest in the outcome. To my mind, that just destroys the credibility of it right there.”
Whatever its true merits or failings, the study created an immediate public sensation. The headline on the front page ofThe Boston Globe—WOBURN LEUKEMIA LINKED TO TAINTED WATER—delighted Schlichtmann. As he saw it, the study confirmed to the world at large the legitimacy of the Woburn case, and it came with the imprimatur of Harvard upon it.
He wasn’t disturbed by the critics, but he also understood that as a piece of evidence the study had limitations. It had not addressed the biological causes of leukemia. It did not prove that the contaminated well water had caused the leukemias. It showed only that those children who drank water from Wells G and H were more likely to get leukemia than those who did not. Schlichtmann knew that he and Roisman would need more than this study to prove that TCE had caused leukemia in Jimmy Anderson and the other children.
The Harvard Health Study also provoked response from another quarter—from Cheeseman. He had planned, in his methodical way, a longrange strategy for the Woburn case. After his disappointment with Rule 11, his strategy called for him to wait until Schlichtmann made the next move. Months had passed, and then a year, and Schlichtmann had done nothing. By then, Cheeseman felt he might have reason to hope that Woburn had become an orphan.
But the Harvard study dashed that hope. The day after its release Cheeseman started to prepare his next move, a motion for summary judgment. It took him several months. He had been working on it—had almost finished it, in fact—when he had that chance encounter on Milk Street with Schlichtmann. He was glad he’d gotten the tour ofSchlichtmann’s office and seen the Carney exhibits. If Woburn ever went to trial, Cheeseman told himself, at least he’d know what to expect.
Cheeseman’s summary judgment motion asked Judge Skinner to dismiss the Woburn case on the grounds that Schlichtmann would be unable to present any competent scientific evidence showing that TCE caused leukemia. Without such evidence, Cheeseman argued in his brief, the case, as a matter of law, could not go to a jury.
At first Cheeseman had figured his motion didn’t stand much of a chance. He’d regarded it mostly as a means of educating Judge Skinner to the real scientific issues in the case. But he’d found himself growing more optimistic as he worked on the motion. At the Harvard Medical School he visited the labs of two doctors, both world-renowned experts in the study of blood disorders. Between them, they had treated more than two thousand leukemia patients. One of the doctors, Dr. James Jandl, had just written a chapter on leukemic diseases for his latest book,Blood: Textbook of Hematology. Jandl had reviewed all of the medical and scientific literature on leukemogenesis and had found nothing at all to suggest that TCE played a role in the disease. He regarded the Woburn lawsuit with thinly veiled contempt.
The Environmental Protection Agency, it was true, had listed TCE as a “probable” carcinogen. But it had done so on the basis of animal tests—lab experiments in which mice, rats, and hamsters were fed enormous quantities of TCE over long periods. In one experiment, white mice had developed cancers of the lymph system, which manufactures white blood cells. But that particular strain of laboratory mouse, Jandl pointed out, was known to have a high incidence of “spontaneous” lymphosarcoma, and even the authors of the study had discounted the results. Furthermore, both Harvard doctors told Cheeseman they had little faith in extrapolating the results of animal studies to human beings. The life spans of animals, their chromosomal structures, and their metabolism were just too different.
Cheeseman called Facher to tell him of his work on summary judgment. He would have liked Facher to join the motion, but once again, as with Rule 11, Facher expressed no interest.
Cheeseman went on by himself. He asked the two doctors to sign lengthy affidavits stating that there existed no medically accepted evidence to support the opinion that TCE could cause leukemia in humans. In the absence of such evidence, Cheeseman wrote in his briefto Judge Skinner, Schlichtmann could not make out aprima faciecase on causation. “Summary judgment should therefore be entered, dismissing the claims.”
Cheeseman felt confident the judge would schedule a hearing for oral argument in a motion of this importance, but he wanted to make certain of that. He ended his motion by saying, “Grace believes that oral argument with respect to this matter may be of assistance to the Court and therefore requests such argument, and estimates one hour will be necessary for both sides to be heard.”
The arrival of Cheeseman’s summary judgment motion—only a week after the Carney verdict—dampened Schlichtmann’s spirits considerably. It was an excellent motion, well argued and supported by two illustrious doctors. Schlichtmann had hoped to take a vacation after the Carney trial, but now he and Roisman had only ten days in which to respond. They could ask Cheeseman for a thirty-day extension, but even so, that still wouldn’t allow much time to reply to a motion of this caliber. Because of the shortness of time, they agreed that Schlichtmann would handle the reply largely by himself.
Schlichtmann called Cheeseman to ask for an extension. “It’s a very good motion,” he added. “I think you’ve got a chance of winning.”
By now, Cheeseman thought so too, although it surprised him to hear Schlichtmann admit it. He didn’t object to a thirty-day extension.
Schlichtmann went to work. He met with an immunologist from California who had been recommended by Roisman. The immunologist, Dr. Alan Levin, was experienced in legal matters. He had served as an expert witness many times before in cases involving toxic substances. He told Schlichtmann that he regarded lawsuits as a useful vehicle for social change. Schlichtmann found this attitude most unusual in a doctor. The medical community, Levin explained, was far too slow in recognizing the perils of environmental toxins. “Twenty years ago we were using X rays to see if our shoes fit, and zapping our gonads in the process,” Levin said. “If you talk to any intelligent twenty-year-old today, he’d say nobody could be that stupid. Your children are going to ask you, ‘Did they really spray insecticides from airplanes?’ ”
Levin had a theory about the Woburn case. He believed that constant low-level exposure to TCE had damaged the immune systems ofall the members of the Woburn families. “These chemicals always do something,” he told Schlichtmann. “Most of the time they don’t do enough damage for us to notice. You might lose a few cells, but you won’t notice it because we’ve got a lot of extra cells.” A healthy, vigilant immune system will attack and kill aberrant cells. But if the immune system has been damaged, as Levin speculated, a malignant cell stands a far greater chance of surviving and proliferating.
All this made sense to Schlichtmann. But was there an objective way of testing for this damage? Levin said he knew of an immunopathologist at Harvard whose lab specialized in monitoring the immune systems of patients after organ transplant surgery. But the tests would be expensive, warned Levin, and he could not be certain what they would show.
Schlichtmann decided to go ahead anyway. Levin called the pathologist, whose name was Dr. Robert Colvin, and explained his interest in a series of blood tests. The working hypothesis, Levin told Colvin, was that exposure to chemicals in the drinking water had caused abnormalities in the immune systems of all the family members, not just those who had gotten leukemia.
Colvin had heard about the Harvard Health Study and the Woburn cluster. An interesting subject, he said to Levin. He asked what tests Levin wanted. A lymphocyte count, replied Levin, And a series of T cell assays.
The lymphocyte count—a simple count of white blood cells—was easy enough. Any lab could do that. The T cell assays were somewhat more difficult. All T cells look alike, but they perform different functions, and distinguishing one from another was a tricky business. The helper T cell, for instance, identifies foreign organisms—viruses, bacteria, cancerous cells—and summons killer T cells, which are equipped with cytotoxic enzymes. Another type of T cell, the suppressor, stops the attack of the killer T cells when the invading organism has been conquered.
Colvin used a technique for marking T cells with reagents to differentiate them, and then he counted them with a laser. But he had never heard of using T cell assays to document exposure to chemicals. Even if the tests did show something unusual, there would be no way of telling what had caused the abnormality. The assays would serve no diagnostic purpose, he told Levin.
Levin thought that Colvin might find an abnormality in the ratios of one set of T cells to another. He could not predict what sort ofabnormality, however. The assays would be somewhat of a fishing expedition, Levin allowed.
Colvin did not like fishing expeditions. His lab was in great demand. It was hard enough for him to find time to fulfill all his colleagues’ requests. Yet the idea intrigued him, and in the end he agreed to do the tests. “But,” he added, “I don’t think you’re going to find anything.”
Colvin suggested they start by testing just one family. The protocol was rigid: the blood could not be refrigerated, and it had to arrive in Colvin’s lab on the morning it was drawn. It would take a full day to do one run of blood in the machine, to agglutinate out the red cells, to fix and stain the white cells, and to perform the cell counts. Schlichtmann would have to make the arrangements to have the blood drawn and transported to the lab. It would cost about ten thousand dollars to have all the families tested. Schlichtmann readily agreed to the price. After all, he had spent more than that for a conference room table in his new office.
The Zonas were the first to have their blood drawn. When the tubes arrived at Colvin’s lab, a technician prepared the blood, marked the T cells with reagents, and ran the assays on the Spectrum 3 cytometer, the machine that counted cells by laser.
As Colvin began plotting the results on a graph, he knew immediately something was awry. To begin with, he saw far more white cells than he expected, a condition known as lymphocytosis, a sign of an immune system in a heightened state of alert. As he calculated the ratio of helper T cells to killer T cells, it became apparent there was another abnormality. The killer cells peaked sharply in all of the family members, particularly in two of the adolescent children. Colvin rarely saw such distinct peaks. He was not certain precisely what this meant. Perhaps their systems were reacting to a carcinogen, as Levin suspected. Whatever its significance, Colvin found it very unusual.
Colvin called Levin and described what he’d found. As a scientist, Colvin trusted results only if they could be replicated. “I think we ought to do the Zonas again, to make sure that this is something that persists,” Colvin said.
Before performing a second assay on the Zonas, Colvin tested the accuracy of the Spectrum 3 cytometer. He regularly sampled his own blood and that of people who worked in his lab, and compared thoseresults with the normal values reported by other labs. If the normals corresponded, Colvin felt confident that the machine was functioning accurately.
But when Colvin tested the new control group this time, he inadvertently included a lab employee who’d had skin cancer—a melanoma—several years earlier. Colvin saw at once that the killer T cell values for this employee were far outside the normal range, and he eliminated that individual from the control population. But those readings had looked, he thought, strikingly like the results for the Zonas.
Schlichtmann meanwhile got Cheeseman to agree to yet another thirty-day extension. In the weeks that followed, all twenty-eight living members of the Woburn families had blood drawn. Colvin tested the blood of each individual twice. By the time he finished he saw a distinct pattern. “The data are intriguing,” he wrote in a note to Levin on June 15, “because they suggest that there is an increased number of cells in these patients that have a phenotype compatible with killer cells. The implication is that this might be a compensatory response to resist the effects of a carcinogen.”
Levin flew in from California to meet with Schlichtmann. “Basically,” explained Levin, “Colvin thinks that these people might have a carcinogen on board and they’re constantly fighting it. The kids who developed leukemia have lost the fight.”
By now, Colvin felt he was onto something interesting and he wanted to keep pursuing it. He suggested to Levin that he run another series of tests—functional assays, more complicated and more expensive than the first. He and Levin came up with the idea of testing a control group of fifty Woburn residents who had not been exposed to the well water and comparing those results with the eight families. A study of that scope would cost at least fifty thousand dollars.
Schlichtmann was excited by the initial results. He was eager to do the big study, and he wasn’t daunted by the cost, but it would take months to set up, and he had no time for that now. The deadline for his reply to the summary judgment motion was only days away.
Levin had also been searching the scientific literature for studies of TCE. He’d found an epidemiological study of three hundred and thirty dry-cleaning workers, an occupation in which both TCE and perc, the other chemical in the Woburn wells, were commonly used.The study reported significant increases of several different cancers, among them kidney, bladder, and cervix, and also found five leukemia victims where, statistically, only two had been expected. The author of the study considered the leukemia finding only marginally significant, however. And since the workers had been exposed to several chemicals—TCE, perc, and carbon tetrachloride—the study was unable to draw conclusions about the carcinogenic capacity of any single chemical.
Schlichtmann was beginning to feel slightly more confident. He still did not have any definitive medical evidence to show that TCE could cause leukemia in humans. But he did have the Harvard study; he had Colvin’s blood tests; and Levin had found two more animal studies, overlooked by Cheeseman’s Harvard doctors, suggesting that TCE had damaged blood-forming cells in the bone marrow. He and Levin worked on an affidavit in which Levin stated his belief, “to a reasonable medical certainty,” that the TCE in the wells had “caused or substantially contributed to serious illnesses, including immune dysfunction and leukemia” among the families.
Schlichtmann sent copies of his brief by messenger to Judge Skinner and to Cheeseman. It was a Friday afternoon in late July. The judge always spent the month of August at his summer house on the Maine coast. Schlichtmann felt certain the judge would not schedule oral argument until September.
Cheeseman was unimpressed by Schlichtmann’s brief. He began outlining what he would say at oral argument. His hopes were still high when, four days after Schlichtmann filed his brief, he got a call from Judge Skinner’s clerk. “The judge has ruled on summary judgment,” said the clerk. “You can pick up the order this afternoon.”
Cheeseman thought he hadn’t heard the clerk correctly. “The judge has ruled? What about oral argument?”
“There’s no hearing scheduled,” replied the clerk.
Cheeseman knew he’d lost again. The judge had flatly ignored his request for a hearing. Cheeseman went across the street to the courthouse. The judge’s ruling was terse and it stung. “Since the complex factual issue of causation is a subject of heated dispute in this case,summary judgment is clearly inappropriate. Defendant’s motion is DENIED.”
Cheeseman felt convinced that the specter of Rule 11 had come back to haunt him. “Skinner thinks I jerked him around on that one,” he would remember thinking. “He’s got a bit of a temper.”
These thoughts worried Cheeseman. He’d have to live with this judge for a long time yet.
Twice Schlichtmann had gone up against Cheeseman, one of Boston’s best practitioners in pretrial maneuvers, and he had come out a winner both times. The case was two and a half years old now, and so far he had done nothing but respond to Cheeseman’s attacks. Many years later Schlichtmann would say that if it had not been for Cheeseman, especially the Rule 11 motion, he might have followed Conway’s advice and let Woburn slip away. But at the time, it seemed to Schlichtmann as if somebody were trying to tell him that Woburn really was his destiny.
He was summoned to Judge Skinner’s chambers, along with Cheeseman and Facher, when the judge returned from his vacation in Maine. “I’m putting this case on a tight leash,” the judge told the lawyers in a stern voice. He gave them nine months, until May, to complete discovery. He expected the lawyers to be prepared to select a jury shortly after that.
Conway reminded Schlichtmann that they were still just local counsel. The case really belonged to Roisman and Trial Lawyers for Public Justice, even though Schlichtmann had paid all the bills so far and done most of the work on summary judgment. That one motion, Conway calculated, had cost the firm twenty-five thousand dollars. If nothing else, it was by now perfectly clear that Woburn would require a true fortune to prepare. Levin recommended bringing in experts in half a dozen disciplines—neurology, cardiology, toxicology, internal medicine, among others—to perform complete medical workups on all twenty-eight plaintiffs. And then there was Colvin’s big blood study with fifty controls. Where was Trial Lawyers for Public Justice? wonderedConway. Since Roisman and his organization stood to collect two thirds of any fee that resulted from the case, they should at least be risking some of their own money.
That fall, Schlichtmann flew out to Milwaukee, where Trial Lawyers for Public Justice was having its annual board meeting. He laid out for the directors his plan for preparing the case, and he estimated that it would cost at least three hundred thousand dollars, maybe as much as half a million if it went to trial.
All of the board members were seasoned trial lawyers, older than Schlichtmann, and with many million-dollar verdicts to their credit. At the head of the table sat Ted Warshafsky, a Milwaukee lawyer who’d made his name suing drug companies. He was an excitable man in his late fifties, given to occasional explosive and profane outbursts. On the theory that a pet would have a calming effect, he had acquired a large boxer. The dog accompanied him everywhere. It took an instant dislike to Schlichtmann. When Warshafsky heard half a million dollars, he flew into an apoplectic rage, his face crimson as he shouted at Schlichtmann. Immediately the boxer’s ears went up. It leaped to its feet and put its paws on the table, a menacing eye on Schlichtmann, who half rose from his chair, prepared to bolt from the room.
Warshafsky got the dog under control. Still muttering at the far end of the table, he let Sal Liccardo, a California lawyer famous for his lawsuits against car manufacturers, take up where he’d left off. “When I had the Ford case,” Liccardo said angrily, “I only spent fifty thousand dollars on it, and that was a huge case. I never heard of anybody spending three hundred thousand on a case. It’s insane.”
Schlichtmann, of course, had spent nearly that much on the Carney case, but this didn’t seem like the time to bring that up. “It’s the only way I know how to do this case,” he told the directors, keeping a wary eye on the boxer. “But I’m happy to have you take it over. It’s all yours.”
That evening, Schlichtmann and Roisman went out for a drink. “The board’s made a decision,” Roisman said. “There can only be one captain of the ship. Since you’ve put so much time into the case already, we’ll let you run with it.”
Schlichtmann returned to Boston and told Conway the news. Trial Lawyers for Public Justice would still take 12 percent of any settlementor judgment as a fee for its early work, but all the strategy, and also all the risks, belonged to them now, and them alone.
Schlichtmann ran into Cheeseman again that fall, after returning from Milwaukee. He had just traded in his Porsche 911 for a new one, the top-of-the-line model 928. It was low-slung and it gleamed like a jewel. He was getting out of the car when he saw Cheeseman.
“Yours?” asked Cheeseman.
Schlichtmann nodded. “I just bought it.”
“Business must be good.”
Schlichtmann smiled and shrugged. “The Carney case,” he said simply.
Cheeseman stroked the flank of the car, peered in the cockpit, and then asked if he could sit in it. The car had only a few hundred miles on the odometer. Taking the driver’s seat, Cheeseman examined the controls. He dreamed about owning one of these. He asked about engine displacement, gear ratios, and torque.
Schlichtmann confessed he knew nothing about those things.
“This car is wasted on you,” said Cheeseman, laughing.
By now, Cheeseman had found out some sobering news about Grace’s Woburn operation. A search of the plant’s records revealed that it had used at least four 55-gallon drums of TCE, considerably more than the single drum that Grace had reported to the Environmental Protection Agency. Cheeseman also learned that the plant manager had ordered workers to bury six drums that had contained toxic waste solvents, including TCE, in a trench behind the plant more than a decade ago. The EPA had ordered Grace to dig those drums up. A photographer from theWoburn Daily Timeshad attended the exhumation. The paper had published a huge front-page photograph of a crane lifting a rusted, partially crushed drum from the trench.
Cheeseman realized now that almost any jury would probably find his client guilty of contaminating the city wells, although he emphatically did not believe that such low levels of TCE had caused any harm. Yet he could imagine Schlichtmann calling the Woburn mothers to thewitness stand. He could see them weeping, just as he’d seen that young woman weep on the witness stand fifteen years ago, when he’d been a law student. More than ever, it looked as if this case was becoming the sort of public relations nightmare that every big company feared. Cheeseman had no trouble imagining a huge verdict—tens of millions of dollars—against his client.
He had already lost two motions, but he wasn’t out of motions yet. The EPA’s preliminary report had implicated a third company north of the city wells. This company, a thriving family-run business named Unifirst, supplied work clothes to industries from Florida to Maine, and it used large quantities of tetrachloroethylene to clean those clothes. The company had admitted to an accidental spill of the solvent, but it claimed that the spill had been contained. Cheeseman didn’t believe this, and he suspected there had been other spills, too. One way of shielding his own client from a huge verdict would be to drag Unifirst into the case and make it a defendant, a joint “tortfeasor,” along with Grace and Beatrice.
Cheeseman prepared a motion to implead Unifirst. It was, on the face of it, a purely defensive maneuver, but Cheeseman also foresaw one other benefit—it would make life more difficult for Schlichtmann. He would have to deal with three separate defendants, each with its own big corporate law firm, and that would surely tax his resources.
As Cheeseman drew up the motion, he considered calling Facher to inform him, but Facher had refused to help with the earlier motions. So Cheeseman didn’t bother to call the old lawyer, and that would turn out to be a costly mistake.
Judge Skinner approved Cheeseman’s Unifirst motion, the first by Cheeseman the judge had approved. For his part, Schlichtmann had no objection to Unifirst’s presence in the case. He might have sued the company himself had he not considered it to be a minor player. The city wells had contained only small quantities of tetrachloroethylene, and Unifirst had never used TCE, the main culprit in the case. As for making his task more complicated, Schlichtmann laughed in delight when he received Cheeseman’s motion. “Listen to this,” he said to Conway, reading aloud: “ ‘Unifirst breached its duty to plaintiffs by carrying outthe manufacture, use, control and disposal of the chemicals in reckless disregard for the health, safety and economic interests of plaintiffs.’ ”
Schlichtmann laughed again. “My God, look at what Cheeseman’s saying! It’s exactly what we said about Grace!”
The next morning, Schlichtmann called the lawyer at Goodwin, Proctor & Hoar who represented Unifirst. “I see you got an invitation to the party,” Schlichtmann said.
“It’s very odd that you should call,” replied the lawyer. “I was just thinking about calling you.”
“When can we get together?” said Schlichtmann.
“How about right now?”
At their first meeting the Unifirst lawyer told Schlichtmann that he hoped they could work out an amicable settlement that would result in his client being dismissed from the case. Money would change hands, of course, but as he saw it, his client’s real adversary was Cheeseman and W. R. Grace. Schlichtmann, after all, had not been the one to sue Unifirst.
Facher wasn’t laughing. Up until this motion, Facher had rather liked Cheeseman, although he thought Cheeseman had shown bad judgment with the Rule 11 motion, and poor execution when he’d let Schlichtmann outmaneuver him at that hearing. Rule 11 had been bad enough, thought Facher, but this impleader of Unifirst was a more serious blunder. Unifirst would create havoc in the courtroom. The company would never cooperate in a joint defense, not after being dragged into the case by Cheeseman. They’d start pointing fingers. In no time, all three companies would be fighting among themselves about who had contaminated the wells. Facher had spoken briefly with Cheeseman about this before, and he thought they had agreed that such tactics would only help Schlichtmann.
Facher called up Cheeseman. The conversation, as Facher later remembered it, began with his saying, “What the hell is the point of this? You’re claiming Unifirst dumped this crap and poisoned these people. It’s the same thing Schlichtmann’s saying. You can always blame Unifirst, even if they’re not there. In fact, it’s better that way because they can’t respond.”
Cheeseman said Unifirst would come to its senses. The company might be angry now, but it would soon realize that it was in its best interest to cooperate.
“Bullshit,” said Facher. “They’re not going to cooperate. You’ll have to dismiss against them.”
Facher was right. In the months that followed, Unifirst’s lawyers filed countersuits against both Grace and Beatrice. Cheeseman still wanted to keep Unifirst in the case, but Grace’s in-house corporate counsel finally overruled him. Unifirst was causing too much trouble and it did not look as if the company would ever cooperate in a joint defense. Against his will, Cheeseman was forced to dismiss all claims against the company.
Schlichtmann, meanwhile, had been negotiating with Unifirst. At the first meeting the company’s lawyer offered a hundred thousand dollars. Schlichtmann set up a meeting at the Ritz-Carlton, just as he had done in the hotel fire case, and he brought in a groundwater expert from Princeton University. Unifirst’s lawyer increased his offer to six hundred thousand. Schlichtmann wanted more. The negotiation stalled for a while, and then Schlichtmann organized another meeting at the Ritz. In the end, Unifirst offered to settle all claims for one million and fifty thousand dollars. The company would pay four hundred thousand in cash immediately, and the balance in five years.
Schlichtmann called the families together. On a Saturday morning at his office, they readily approved the Unifirst settlement, and they further agreed, at Schlichtmann’s suggestion, to use the first cash payment to finance the Woburn case. This money was important. Schlichtmann and his partners had made a million dollars from the Carney case, but they’d already spent most of that. Everyone in the office, from Kathy Boyer down to the cleaning lady, had gotten a big bonus. Schlichtmann had renovated his apartment and bought the new Porsche, and Conway and Crowley had each bought large houses in the suburbs. But all of that was petty cash compared with the real expense facing the firm. The Woburn case, Schlichtmann knew, had begun in earnest.
Everything Richard Aufiero knew about lawyers he’d learned from television and the movies. He was scheduled to go into Boston on the morning of January 7, 1985, a Monday, to have his deposition taken by the lawyers for W. R. Grace and Beatrice Foods. He awoke early that morning, feeling nervous. He imagined that the lawyers for the big companies would badger him, try to trick him into saying damaging things, or make him look stupid. “Like a moron,” he told his wife, Lauren, whose deposition was scheduled for that afternoon, right after his.
Richard was the first of the Woburn plaintiffs—the first person in the entire case, in fact—to be deposed in that period before trial known to lawyers as discovery. Richard would have preferred coming later, so that he could talk to the other family members and find out what kind of questions he would be asked, but he had been given no choice in the matter. For whatever reason, the lawyers for Beatrice and Grace had selected him to go first. Schlichtmann had explained the deposition process to him and told him not to worry, but Richard couldn’t help feeling nervous. He put on his best pair of pants and a clean shirt. Heconsidered wearing his green nylon Celtics jacket, his favorite piece of apparel, but he decided he should probably wear a sports coat. He had only one, it was about eight years old and a tight fit now, but it was the dressiest item he owned.
Lauren was even more jittery than he. Ever since Jarrod’s death she’d been having anxiety attacks, her heart pounding rapidly, feeling, she used to say, as if she was going to die or go crazy. She’d been hospitalized for a week after Jarrod died, and she’d been seeing a therapist since then. Richard didn’t think it had helped her much. She’d started drinking more. For Richard, Jarrod’s death had created the opposite reaction. It was a rare event now when he took so much as a sip of alcohol.
They were running late by the time they left the house, on a cul-de-sac in the Pine Street neighborhood, and heavy traffic caused them to make slow progress on I-93 to Boston. Richard made a living driving a truck, and he had traveled this route hundreds of times since the day when Jarrod, who’d been three years old, had died on the way to the hospital. Richard thought about that day every time he passed the Somerville exit, where he had raced off the interstate to the fire station for help. When Lauren had yelled that Jarrod had stopped breathing, Richard had pulled over into the breakdown lane and given the boy CPR, holding him in his lap. That moment was still vivid in his memory, Lauren screaming and carrying on, the cars and big semi-rigs roaring by them on the interstate, Jarrod lifeless in his arms. He thought about it often, but he and Lauren had not talked about it for a long time. And today, as they drove past the Somerville exit on their way to Boston, they kept their silence, even though Richard figured Lauren was probably thinking about it, just as he was.
Lauren had often said that she didn’t want any part of the lawsuit. She didn’t want to keep reliving the event. “Money won’t bring Jarrod back,” she would say. “I hate them, those people who put the stuff into the ground. Why can’t they lose a son or daughter? Taking their money is not going to hurt them.”
“We’re not in it for the money,” Richard would say. “We’re in it to show that we’ve been harmed by what they did.”
By the time they found a parking space and got up to Schlichtmann’s office, it was fifteen minutes after ten. The deposition had been scheduled for ten o’clock at the law offices of Hale and Dorr, butSchlichtmann seemed unconcerned about the time. He had them take their coats off and relax for a few minutes while he went over the ground rules of depositions again. “Listen carefully to the questions and don’t volunteer anything,” he told Richard and Lauren. “Answer only what they ask, and don’t say, ‘I don’t know’ all the time. It’ll make you look evasive. Think each question through carefully, because whatever you say, we’re stuck with it.”
Richard wanted to know if he had to answer all their questions, even ones about issues unrelated to the case and Jarrod’s death. He was thinking about some troubles he’d had as a teenager, and about his relationship with Lauren.
Schlichtmann knew all about Richard’s past. He knew, for example, that Richard had abused drugs fifteen years ago, when he was seventeen, and that Lauren had once sought medical treatment for a cut she’d gotten when Richard had pushed her in the heat of an argument. And Schlichtmann knew that Facher and Cheeseman were also aware of these incidents. As part of discovery, Schlichtmann had been obliged to produce the medical records of each family member. He suspected that Facher had chosen Richard as the first deponent precisely because of these episodes.
“They can ask any question they want and you’ve got to answer,” Schlichtmann told Richard and Lauren. “By the time they’re done, they’ll know more about you than you know about yourself. Tell them the truth, because if you lie and they find out, it’ll be a lot worse when they get you on the witness stand.”
Lauren waited at the office while Richard walked with Schlichtmann and Conway the three blocks to Hale and Dorr. By now, they were half an hour late. On the twenty-seventh floor, a secretary escorted them into a large, well-lit conference room, thickly carpeted, the walls paneled in wood. Picture windows framed a panoramic view of Boston’s North End and the harbor. To Richard, the room seemed crowded with lawyers. He counted eight of them, all wearing dark suits and sitting around a long rectangular table. Their conversation stopped as he entered the room, and he felt their gazes turn on him—cool, appraising stares. He tried to smile and began to say something—a simple greeting—but it emerged as a guttural sound and he ended by looking down and clearing his throat. He felt Conway behind him touch his arm and whisper, “Don’t worry, you’ll be fine.”
Schlichtmann steered Richard to a chair near the middle of the table, and then sat beside him. Conway took an empty chair directly across from Richard. The court stenographer, a heavyset woman, sat at one corner of the table, her small machine mounted on a tripod in front of her.
Facher presided over the gathering, sitting at the head of the table, with Neil Jacobs on his right and another young Hale and Dorr associate, unknown to Schlichtmann, next to Jacobs. On Facher’s left was Cheeseman, along with three of his colleagues from Foley, Hoag & Eliot. The two firms had agreed to work together as much as practicable throughout the discovery process. Many later depositions would be held in conference rooms at Cheeseman’s firm, but at this first deposition it was clear that Facher intended to run the show.
“Let’s get started,” said Facher. He asked the stenographer to swear in the witness, and he began by asking a series of questions about Richard’s medical history, wasting no time in getting to the drug-abuse episode. Richard answered straightforwardly and Facher moved briskly on. “I take it the water began to taste funny to you from the moment you arrived in Woburn?” he asked Richard.
“From when I first started going out with my wife,” replied Richard.
“So you were aware when you moved to Woburn that its water didn’t taste so good?”
“Yeah,” said Richard. “But a lot of places the water doesn’t taste so good.”
“I agree with that,” said Facher.
“We were drinking bottled water off and on.”
“From the beginning you resorted to bottled water?”
“Off and on. We split, half and half. Like we cooked with regular water and did other things. To make orange juice, we used the tap water, but to drink just straight water, I drank bottled water.”
“Has any doctor ever told you that you had any dysfunction of your immune system?”
“No,” said Richard, “but when my son died, they told us that was why he died. His immunity system was tore down to nothing.”
Facher looked through the file of medical records in front of him. “There’s been some reference to salmonella as the cause of his death. Do you know anything about that?”
The immediate cause of Jarrod’s death had indeed been attributed to salmonella, although his doctors had said that he would not have died from the bacterial infection if his immune system had not been suppressed by chemotherapy. “That’s what the autopsy read, something like that,” replied Richard. “I’m not sure. I’m not a doctor.”
“What caused you to have an autopsy?”
“Because he was doing good. He looked great. He only lived three months with leukemia and he looked fine.”
“Did you have some personal talk with the doctor about this?” asked Facher.
“More of a violent talk with him,” admitted Richard. “Because my son died like, like … nothing, all of a sudden, and they weren’t taking any tests.”
“By violent, you mean you were angry?”
“Yelling at him,” nodded Richard. “He reassured us the tests that they didn’t do are going to be done from now on, which is small compensation for my son’s life.”
“Let me see if I understand,” said Facher. “Your son seemed to be doing all right, was in remission, you were optimistic about his future, and suddenly he became ill and died?”
“They said that was expected. Anybody with a disease like leukemia could die any minute.”
“But you were angry and upset and maybe even accusatory when—”
“Anybody would be,” interrupted Richard, sounding a little angry just now. “My son just died.”
“I understand that,” said Facher softly. “I was just trying to re-create the event.”
“One day he’s fine, he’s playing, next day he’s dead. That was the gist of the whole thing. You can tell when your child isn’t feeling well. You try to explain it to them on the phone and they say: ‘Has he got a temperature?’ You say, no. ‘He’s all right, then,’ they say. ‘Don’t worry. Bring him into the clinic Monday morning.’ ” Richard paused. “He died Monday morning.”
“He was in the clinic when he died?” asked Facher.
“No. He was in the car on the way down I-93.”
Facher had not known this. “He died in the car on the way to the clinic?” Facher asked.
“He died on I-93, up by the Somerville exit. We cut off and went to the fire station—” Richard was going to say more but he could not. He was on the verge of tears. He picked up a glass of water and drank deeply.
For a moment no one in the room moved. The only sound came from Richard, whose breath was raspy and labored. Conway, who felt very moved by Richard’s anguish, put a hand up to his eyes. The motion must have caught Facher’s attention, for Conway saw the old lawyer glance sourly at him.
Finally Facher said to Richard, “You had called, wanting to bring him in, and they said—”
“Called Sunday, Sunday morning, and they said bring him in Monday.”
Facher asked a few more questions about the boy’s treatment and then decided that he’d learned enough. He turned the deposition over to the lawyers for W. R. Grace. One of Cheeseman’s partners asked several quick questions, taking only a minute or so, and then Facher said, “I have nothing further at this time, Mr. Schlichtmann.” He looked at Richard. “Thank you very much, sir.”
Richard pushed his chair back and stood. Schlichtmann stood, too, and gently patted Richard on his back. The defense lawyers remained seated and the room was very quiet.
Schlichtmann put on his coat and walked with Richard to the door. They had reached the door when Schlichtmann heard Facher speak.
“Good-bye and good luck,” said Facher.
To Schlichtmann’s ears, these words came out sounding contemptuous, almost like a sneer, as if Facher had said, “Good-bye and good riddance.” Schlichtmann turned quickly on his heel and glared at Facher. “You’re the one who’s going to need the luck,” he said.
Facher had not meant to sound contemptuous, but he had been greatly disturbed by Richard Aufiero’s testimony. This first deposition had not gone at all the way he had planned. “Some cases a lawyer can’t lose,” Facher often told his Harvard students. “Some, maybe, he can’t win. You play the hand you’re dealt.”
After Aufiero’s deposition, Facher believed that this case was one he probably could not win, not in front of a jury. He could imagineAufiero on the witness stand with Schlichtmann slowly drawing out the details of Jarrod’s death. The entire courtroom, maybe even the judge, would be in tears by the time Schlichtmann was done. And it wasn’t just Aufiero. There were seven other families, each with its own tragic story to tell.
At that moment, Facher calculated the odds against him at about ten to one. He realized then that he might have to settle this case before trial, and that thought was distasteful to him. He was proud of saying that he had never yet paid more than a million dollars to settle a case, but in this instance, he suspected that settlement would not come so cheaply.
He told himself that he had to find a way to keep the plaintiffs off the witness stand. He did not know how he could do that, short of settlement. But it was early yet. Discovery had just begun. A lot would happen between now and the time a jury was impaneled.
The depositions of the thirteen Woburn adults took up the entire month of January. Schlichtmann attended every one of them, but he could not afford to take much satisfaction in the drama of his clients’ stories. His thoughts were occupied with the job of building a convincing case against W. R. Grace and Beatrice Foods. To do that, he had to discover a great deal. Some human hands were responsible for the contamination of the Aberjona aquifer. Schlichtmann had to find out whose hands, and how much they had dumped, and on whose authority.
He began his own series of depositions, which were held in his office around the $12,000 bird’s-eye-maple table. He turned his attention first to Grace. The company had admitted to the EPA that its employees had dug a pit behind the plant and placed several drums into it. The company had described this material as “generally innocuous,” and had stated that no actual drums had been buried. But Schlichtmann knew that this admission had been incomplete at best, and perhaps even a deliberate lie. The EPA, after all, had subsequently unearthed from the plant’s backyard six corroded drums, lying end to end, which had once contained TCE and other toxic solvents.
Schlichtmann wanted to bring before a jury the employees who had committed those acts and the supervisors who had overseen them. He asked Cheeseman to produce for deposition the Woburn plant’s “most knowledgable person” concerning chemical use and waste-disposal practices. Cheeseman arrived at the appointed time, a Wednesday morning in the first week of March, with a man named Paul Shalline, head of safety and maintenance at the Woburn plant.
Schlichtmann learned from Shalline that he had worked at Grace for thirty years. He had only a trade school education but had risen, briefly, to the position of plant superintendent at Woburn. Then he’d been demoted. He was sixty years old and unprepossessing in manner and appearance. He replied to Schlichtmann’s questions in a slow and deliberate manner, often giving vague answers or claiming not to remember. He said he had been appointed “pollution control officer” at the Woburn plant, but when Schlichtmann asked when this appointment had occurred, Shalline replied, “I don’t remember.”
“What were your duties?” asked Schlichtmann.
“I would oversee disposal and discharge to the drains, be sure we weren’t polluting the air, and anything related to that field.”
“Do you know if chemicals were disposed in back of the building, on the land?”
“I don’t know that,” replied Shalline.
This puzzled Schlichtmann. Cheeseman had admitted in his response to interrogatories that “small amounts” of chemical waste had been poured “from time to time” on the ground behind the plant. Cheeseman had produced Shalline as the person most knowledgable about waste disposal, but now Shalline denied knowing anything.
Schlichtmann tried again, quoting almost verbatim from Cheeseman’s reply to the interrogatories. “From time to time, were waste materials disposed of by spilling them on the ground in the back of the plant?”
“If you know,” interrupted Cheeseman.
“I don’t know,” said Shalline.
“Was material from the degreaser in the machine shop disposed of by spreading it on the ground in back of the plant?”
“I’m not aware of that.”
“Was it the practice of the Woburn plant in the 1960s to dispose of waste material by spreading it on the ground in the rear of the plant?”
“If you know,” interjected Cheeseman again.
“I don’t know,” said Shalline. “I don’t know if it was an authorized procedure.”
“Could it have been an unauthorized procedure?”
“It could have been. Somebody could have done it without my seeing it.”
The deposition of Paul Shalline lasted two working days. By its end, after twelve hours of interrogation, Schlichtmann had gotten only denials and professions of ignorance from Shalline. The man claimed to know nothing about the six barrels of toxic waste that had been buried behind the plant and exhumed by order of the EPA. Schlichtmann believed that Shalline was lying to protect himself, or perhaps the company. He thought it would be just a matter of time until he exposed those lies.
In reply to Schlichtmann’s interrogatories, Cheeseman stated that TCE had been kept in the plant’s paint shop, where it was used to clean metal parts prior to painting. So Schlichtmann summoned the Grace painter for deposition.
The painter’s name was Thomas Barbas. Schlichtmann studied him from across the conference table. He was in his early forties, heavyset, his round face plump and smooth, his straight brown hair receding high on his brow. He wore an ill-fitting blue sports coat, tight around his shoulders and under his arms, on which he had buttoned all three buttons. He looked ill at ease in these clothes, much as Richard Aufiero had in his, as if they were the sort worn only on rare occasions, to church or to court. He sat erect and stolid in the chair next to Cheeseman, saying nothing and barely moving. Schlichtmann had the impression of a man who was not just nervous but frightened.
The stenographer swore Thomas Barbas in and Schlichtmann began by asking him his occupation.
“Buyer,” replied Barbas.
“You’re a buyer?” said Schlichtmann in surprise. He had asked Cheeseman to produce the painter. “How long have you been a buyer?”
“Since the beginning of the year.”
“Prior to that, what was your occupation?”
“And how long had you been a painter?”
“Approximately twenty-two years,” said Barbas.
“Was there a reason why you changed your occupation from painter to buyer?” asked Schlichtmann.
“There was a job opening. I put in for it and I got it,” said Barbas.
Schlichtmann questioned Barbas about the details of his job as a painter. Barbas answered in monosyllables, in a soft, sometimes barely audible voice. He admitted that when he first started working at Grace in 1961, he had dumped used cleaning solvents into a drainage ditch behind the plant. “At the end of the work day, take the solvent out and dump it on the ground,” said Barbas. “We did like what we were supposed to do.”
So this was where Cheeseman had gotten his information. “How long did you do that?” asked Schlichtmann.
“I’d say maybe a couple of months.”
Barbas went on to say that he had stopped the practice after only two months. “It was my idea originally to put the used solvent and paint sludge in barrels and have them taken out legally. That was my recommendation to the boss.”
“Who was the boss?” asked Schlichtmann.
“You told Mr. Shalline you didn’t think it was a good idea to dump it on the ground?”
“Why did you think it was a bad idea?”
Cheeseman objected to this question for the record. Under the rules governing depositions, all objections are preserved until the time of trial, when a judge is present to rule on the objection. Until then, a deponent is compelled to answer despite the objection, and Cheeseman indicated to Barbas that he should do so.
“I didn’t think it was a bad idea,” said Barbas. “I didn’t think it was hazardous.”
“Then why did you recommend having it hauled away?”
“After a while I thought it was a bad idea.”
Again Cheeseman objected for the record, but Barbas had to answer.
“That would be similar to taking gasoline and throwing it on the ground,” Barbas said. “It is not a good idea.”
Barbas claimed that Shalline had agreed with his recommendation, and thereafter the painter had emptied waste solvents into 55-gallon drums that were kept by the back door of the plant. Barbas said he did not know what had happened to the drums after they’d been filled with waste.
“Mr. Barbas,” said Schlichtmann, “did you at any time participate in disposing those drums of material into a pit in the rear of the plant?”
“No,” said Barbas.
“No,” repeated Barbas.
“Did you witness it?”
“Do you have any information or knowledge that such an incident took place?” asked Schlichtmann.
“Yeah, they dug those drums up, didn’t they?”
“Is that the only information you have?”
“I might have heard about something before, but I’m not sure,” said Barbas.
“Who did you hear about it from?”
“I don’t remember,” said Barbas.
“What’s your understanding as to what happened during that incident?”
“Well, now, I object,” interrupted Cheeseman. “He has indicated he didn’t see it, didn’t hear about it, and you’re asking him to describe it?”
“Uh-huh,” said Schlichtmann, who kept staring at Barbas and asked: “What do you know about the incident?”
Schlichtmann’s style—the intent stare, the rapid-fire questions, repeated again and again—annoyed Cheeseman. “Ignore the tone of voice and the way he’s leaning across the table and staring at you,” Cheeseman advised Barbas.
“Iamleaning forward and staring at him,” said Schlichtmann without taking his eyes off Barbas. “I’ll lean backwards if it will make you more comfortable. I’ll stand on my head.”
Barbas seemed prepared for a battering, his head hunkered deep into his broad shoulders.
“What do you know?” Schlichtmann repeated.
“Just the things that we’ve heard about and read about in the paper—some barrels were buried,” Barbas said.
Schlichtmann asked Barbas if he’d ever talked to Paul Shalline about the pit.
“I told him I didn’t know anything about it,” replied Barbas. “I told him that my job was to put the waste in the barrels and it was the company’s responsibility to get rid of them legally, and that was it. That’s all I said to him.”
Schlichtmann could get nothing more out of Barbas, but he felt sure that Barbas knew much more. After the deposition, in the office that evening, Schlichtmann reflected on how very odd it was that Barbas should have gotten his first and only promotion just now, just before his deposition, after twenty-two years in the paint shop.
Three weeks later, on a Thursday morning in early April, the receiving clerk at the Grace plant, a man named Al Love, drove into Boston to have his deposition taken.
Love had already spent some time with Cheeseman, who had asked him a lot of questions about his job at the plant and told him what to expect at the deposition. Now, on their way down Milk Street to Schlichtmann’s office, Cheeseman had a few more words of advice to offer. “Schlichtmann is a flamboyant sort of guy,” Cheeseman said. “He can be very zealous and excitable. Just relax and don’t get angry with him. Try to stick to yes or no answers.”
In the conference room at Schlichtmann, Conway & Crowley, a short, stout man in a rumpled suit smiled pleasantly at Love and introduced himself as Kevin Conway. A few moments later, a man whom Love understood to be Schlichtmann, tall and angular, came into the room. He nodded brusquely to Love, and Love nodded back.
Love tried to follow Cheeseman’s instructions, answering Schlichtmann’s questions tersely, rarely speaking more than a few syllables. He told Schlichtmann he lived on Pine Street in east Woburn. He’d started working in the sheet metal department in 1961, six months after the plant had opened. Back then, before his promotion to receiving clerk, he had cleaned metal parts with a solvent he obtained from a drum in the paint shop.
“Did you ever see a name on the side of the drum?” asked Schlichtmann.
“Yes,” replied Love.
“What was the name?”
“I couldn’t tell you.”
“Did the drum indicate that it had trichloroethylene in it?”
“I don’t remember,” said Love.
Schlichtmann asked Love what he would do with the leftover solvent, and Love said he would take it back to the paint shop and pour it into a smaller container of waste. Had Love ever seen anyone dumping out these containers of waste solvent?
“Yes,” said Love.
“Where would they take it?”
“Backyard,” said Love in a low voice.
“What would they do in the backyard?”
“Where?” asked Schlichtmann quickly. “On the ground?”
“And you saw that happen? You saw it happen on more than one occasion?”
“Yes,” said Love, who could see that Schlichtmann was leaning forward, looking intently at him. It was plain to Love that his answers excited Schlichtmann.
“How did you happen to see this?” Schlichtmann asked.
“On coffee break.”
“Who were those people you saw do it?”
“The names?” asked Love reluctantly.
“Yes, the names,” said Schlichtmann.
Love named Tom Barbas and Joe Meola, the plant’s maintenance man. Those two, he said, were the only ones he had seen.
“Where was it, the place where you have your coffee break?”
“In the field in the backyard,” replied Love. “I used to go out there and hit nine iron shots, golf balls.”
“Is that right? Enlightened employee policy at Grace.” Schlichtmann smiled broadly at Cheeseman. “Tell me exactly what you’d see them do. How did they empty this container?”
“Just tipped it over into a ditch.”
“What kind of ditch?”
“Just an open trench that led down to the back of the property, to a natural waterway, a brook, I think.”
Schlichtmann had Love draw a diagram of the Grace plant and mark the areas along the drainage ditch where he’d seen Barbas and Meola dumping material. Then he asked Love to mark the pit into which several drums of waste had been emptied. Love drew a square directly behind the plant.
“Was there more than one pit?”
Love said he recalled only one. It had been dug in 1974, during the construction of an addition to the main building. He and Tom Barbas had made jokes about it. “We referred to it as the ‘recreation area.’ That was supposed to be the ‘swimming pool.’ ” He said he had never seen anyone dump drums of waste into it, although after the lawsuit had been filed he’d heard employees joking about such things.
By then, it was nearly one o’clock. The deposition had gone on without a break for almost three hours. “Let’s take a two-minute break,” Schlichtmann said to Love, “and we may get you out of here for lunch.”
Schlichtmann stood and motioned for Conway to follow him out of the conference room.
Conway shut the door behind him. In the hallway they conferred in whispers. The deposition was about to end, but Schlichtmann had the feeling that he had left something undone. Love had been nervous at first, like the others before him, but Schlichtmann detected something else about the man—a poise, a sense of quiet self-confidence. Love had a rawboned, rangy build and he seemed like a man who could take care of himself. Barbas and Shalline might have difficulty lying effectively, but Schlichtmann thought that Love might have difficulty abandoning his self-respect enough to lie.
“What do you think?” Schlichtmann asked Conway.
Conway reflected for a moment. “He lives on Pine Street in east Woburn, just a couple of houses away from Anne Anderson. Why don’t you ask him about the water? Ask him about his family’s health.”
Back in the conference room, Schlichtmann said to Love: “You’ve lived in east Woburn for how many years, Mr. Love?”
“And you have how many children?”
Schlichtmann asked for their names and ages, and Love complied. “That’s quite a family,” Schlichtmann remarked. “You know what the water was like in east Woburn?”
“When? Now?” replied Love.
“How would you describe the water during the 1960s?”
“How about the seventies?”
“What did it smell like?”
“Chlorine, or something,” said Love. “Very pungent smell.”
“And how about the color? What did it look like?”
“Sometimes very dark.”
“Seem to have things in it? A residue?”
“Did you drink it or did you—”
“Yeah, I drank it,” said Love abruptly.
“Were you concerned when you found out the wells were contaminated?”
Cheeseman objected. Donald Frederico, one of Facher’s young associates, had been listening to the deposition with only half an ear. He had no particular interest in Love’s testimony because it did not involve Beatrice, but Facher wanted a Hale and Dorr lawyer present at every deposition. Frederico had already sat through Shalline and Barbas, and on this morning he’d spent most of his time reading theBoston Herald. He had a low regard for personal injury law in general and a growing dislike for Schlichtmann in particular. “Plaintiffs’ lawyers feed on death,” Frederico once remarked. “They see a dead person as an opportunity to make a bundle.” Now, when Cheeseman objected, Frederico looked up from theHeraldand added his objection, too.
“Were you concerned for your own health?” asked Schlichtmann. Cheeseman objected again and Frederico joined him. Love answered yes.
“Were you concerned for the health of your family?”
Love said yes again.
“Has any of your family experienced serious illness?”
The objections came with every question now, and they disturbed Love. He could not understand why Cheeseman and Frederico were objecting to questions about his family’s health. Cheeseman was supposedto be on his side, but it seemed as if Schlichtmann was his ally, not Cheeseman.
Love said, “Yes, I’m concerned about their health. My youngest son has a seizure disorder. One of my daughters had a miscarriage and my granddaughter had a birth defect.”
“Have any of your children experienced rashes?” asked Schlichtmann.
Frederico had put down his newspaper. “Are we going to sit here and go through his entire family’s medical history?” he asked with a disbelieving laugh.
“You can leave,” said Schlichtmann.
“Such irrelevant matter,” snorted Frederico.
Love glanced darkly at Frederico. When he looked back at Schlichtmann, their eyes met for a brief moment. He thought he saw Schlichtmann give him a slight, almost imperceptible nod of understanding.
Then Schlichtmann’s gaze shifted to Frederico. “You can leave,” he said again.
“I’m not going to leave if you’re conducting a deposition,” snapped Frederico.
“Then sit and listen,” said Schlichtmann in the tone one would use on a troublesome child. He looked back to Love. “Have you or your wife had problems with burning eyes?”
“Objection!” said Frederico.
Love nodded. “In the shower, during the time the water was bad in east Woburn.”
“And your wife complained of it?”
“Objection!” said Frederico.
“Yes,” said Love at the same moment that Cheeseman added his objection.
“Slow down a bit,” said Cheeseman. “Give me a chance.”
“Are you aware,” asked Schlichtmann, “of any of your neighbors who have had leukemia in their families?”
“Have you read reports about the contamination found in the wells?”
“Yes,” said Love.
“Are you concerned about the health effect of what was found in the wells?”
“You’re concerned for your family, is that right?”
Schlichtmann looked straight at Love and smiled. “All right, we’re all set. Thank you very much, Mr. Love.”
Love nodded and smiled back at Schlichtmann.
As Love remembered it later, he felt confused and angry after the deposition. His head throbbed and he could feel a headache coming on as he and Cheeseman walked up the street.
“You did very well,” said Cheeseman in a kindly way. “I thought you’d be upset when he started asking personal questions about your family.”
“That didn’t bother me at all,” said Love.
Cheeseman changed the subject and asked Love about the Woburn plant manager. Cheeseman said that he’d heard that the manager, whose name was Vincent Forte, had a quick temper. “What kind of guy is he?” Cheeseman asked.
Love thought this question was singularly odd coming from Cheeseman. He knew that Cheeseman had spent quite a lot of time with the plant manager, and he felt the lawyer was probing him, trying to see if he had a grudge against the manager or the company. His headache felt worse. “I never had any problems with Vin,” Love replied. “I always got along with him pretty good.”
On the sidewalk outside Cheeseman’s office building, they paused for a moment. Love was anxious to leave Boston and get home, but Cheeseman was still talking. “If you’ve got any questions, or want to talk, I’m only a phone call away,” Cheeseman said. Then, in a friendly voice, he asked, “Are you going back to work?”
Love looked at the April sky. It was overcast and a little chilly, but shafts of sunlight pierced the clouds. “No,” he said with a touch of defiance. “I think I’m going to play some golf.”
The more Al Love thought about it, the angrier he got at the way Cheeseman and especially Frederico had acted when Schlichtmann had asked about the health of his family. On a morning a week after his deposition he sat at his desk contemplating the telephone. Finallyhe dialed Cheeseman’s number. He felt nervous and his words came awkwardly. “I’ve been thinking about this situation,” he told Cheeseman. “I feel like I’m betwixt and between. I don’t know which side I should be on, but I don’t think everything that went on around here is getting told.”
Cheeseman said he was planning to come out to the plant the next day. “Why don’t we talk?”
The following afternoon Cheeseman appeared at the door of the receiving office. He suggested to Love that they go to the conference room, where they could talk in private. “Tell me what’s bothering you, Al,” said Cheeseman as he closed the door.
Love said that he was concerned about the health of his family. “I’m wondering if I should get a lawyer for my children’s sake,” he said.
“I can’t advise you one way or the other about getting a lawyer,” replied Cheeseman. “That’s something you’ve got to decide for yourself.” Cheeseman paused, and then he added: “As a practical matter, I don’t believe those chemicals in the water made anyone sick.”
“What about the leukemia cluster? That’s been documented.”
“No one knows what causes leukemia,” explained Cheeseman. “And no one knows what caused this cluster. I personally think it’s just a matter of chance. If you took a hundred pennies and threw them in the air, half would land heads and the other half would land tails. If you looked around carefully, you’d probably be able to find some heads grouped together in a cluster. But it’s purely a matter of chance. No one can explain it.”
Love thought about that for a moment. He shook his head slowly and said, “I can’t buy it. I know that water was contaminated. And I know from people around here that barrels have been buried and things have been dumped. I wasn’t the one who did it, but I know it happened.”
“Al, this is very important,” said Cheeseman. “I want you to tell me the names of those people.”
Love did not want to become an informer. He had already named Barbas and Meola at his deposition, but he’d been under oath then. He and Tommy Barbas had known each other almost their entire lives. When Barbas had started work at the plant, fresh out of high school, Love had taken it upon himself to look after the younger man. At the company Christmas parties, Love and his wife, Evelyn, always sat at the same tablewith Tommy and his wife. They’d had the Barbases over to dinner at their house. Love wasn’t about to cause any more trouble for Barbas. If Tommy had anything to tell the lawyers, he himself should be the one to do it. “I can’t do that,” Love told Cheeseman, shaking his head.
“Can you speak to these people and ask them to come to me?”
Love said, “Let me think about that.”
“It’s very important that we learn about everything that went on around here,” said Cheeseman.
Listening to Cheeseman speak, it suddenly dawned on Love that perhaps the lawyer really did not know what had happened at the plant. Certainly Vin Forte, the plant manager, knew everything. If Cheeseman was in the dark, then Forte must have lied to the lawyers to protect himself. And Tommy Barbas must have lied, too.
“We need the information so we can disclose it to the appropriate officials,” continued Cheeseman. “We need it so we can get the Environmental Protection Agency in, so we can clean up everything that might be in the ground.”
Love shook his head.
Word spread quickly around the plant that day that Cheeseman had come to see Love. Some people whispered that Al had gotten himself into a predicament of some sort with the lawyers. Love had not risen far in the plant hierarchy, but he had a quiet authority that had led others to respect him and his word. When one of Love’s friends, Cy Witmer, who worked in the sheet metal shop, heard the rumors, he took a break and came to see Love. “What’s going on, Al?” Witmer asked.
“I do believe I’m on the wrong side of this whole thing,” Love said.
During the next week, Love slept poorly. He could barely eat. His wife, Evelyn, worried about him. At night, after dinner, while Evelyn cleaned the dishes, they talked about whether he should go over to see Anne Anderson. She lived just around the corner, on Orange Street, a two-minute walk. Although they had been neighbors for fifteen years, the Loves did not know Anne well. Al had seen an ambulance come to her house on more than one occasion when her son had been ill, and he knew that she and her husband had separated. When the Woburn leukemias began to attract media attention, Al had thought Anne was“a fruitcake,” as he put it, a sad case who’d broken under the strain of the tragedies that had befallen her. But lately he’d begun to reconsider. He wondered how Anne would receive him if he went over and knocked on her door. It occurred to him that since he worked for Grace she might blame him for what had happened to her son.
Evelyn had always told Al that someone in Grace management would surely come forward with the truth, somebody whose responsibility it was. But now, witnessing the turmoil that Al was in, she told him he should go speak to Anne and tell her what he knew. They tried to weigh the consequences of such an act, whether Al would lose his job if it came out. But to Evelyn, losing a job now seemed less important than doing what Al thought was right, and what would set his mind at rest.
On Wednesday evening, the first of May, three weeks after his deposition, Al Love walked over to Anne’s house and knocked on the door. Anne invited him in, offered him coffee, and they sat at her kitchen table. He told her that he’d thought about coming to see her for some time, but he’d been afraid she might not want to talk to him because he worked for W. R. Grace. He said he cared about what had happened in the city and to her son, and he was angry about the way the company was handling itself.
Anne put her hand on his arm and said, “You have no idea how much this means to me.” She had tears in her eyes, and she apologized for crying. Love said he was worried about the health of his own family. He’d heard rumors at the plant about many drums being buried. “Fifty or more drums,” he said. “There’s a lot that’s not coming out.”
He and Anne talked for almost two hours. Love remembered feeling clearheaded and calm for the first time in weeks. As he was about to leave, Anne asked if he would be willing to speak to Schlichtmann, to tell him what he had told her.
Yes, Love said, he would talk to Schlichtmann.
Schlichtmann arrived by invitation at the Loves’ house the next evening. He and Al sat in the living room, talking for two hours about the Grace plant. Al told him about the rumors of fifty or more drums being buried under an addition that had been added onto the plant inthe early 1970s. Schlichtmann had brought along the deposition transcripts of Tom Barbas and Paul Shalline, and he asked Love to read them as soon as he could.
A few days later, after Love finished reading the lengthy transcripts, he and Schlichtmann met again. Love, shaking his head ruefully, said that Tommy Barbas had not told the truth at his deposition. Love recalled how he’d sat in the cafeteria at work three years ago with Barbas and a supervisor named Frank Kelly, listening to the two men talk about the drums of toxic waste buried out back behind the plant. He remembered how Kelly, laughing, had pointed at Barbas. “Tommy knows all about it,” Kelly had said. The other workers at the table had laughed, too, and even Barbas had smiled. Everyone had treated it like a big joke, Love told Schlichtmann.
Nearly every day for the next two weeks, Schlichtmann or Conway or someone else from the office called or stopped by Love’s house. One night Schlichtmann arrived with a thick stack of aerial photographs of the Grace plant dating back to 1960. Schlichtmann spread these on the dining room table and had Love study them with a magnifying glass, trying to identify the areas where he’d seen the pits and where Barbas and Meola had emptied their buckets of solvent and the degreasing machine. Schlichtmann went over every detail four, five, six times, probing for more, and Love answered patiently. They worked until late in the evening, the lights in the house blazing, the windows open in the soft spring air, people from Schlichtmann’s firm arriving and departing as if Love’s house had become its Woburn office.
Schlichtmann wanted the names of former Grace workers who might know more about the buried drums. Love mentioned Robert Pasqueriella, an electrician who used to work at the plant. Schlichtmann asked if he would call Pasqueriella right then, and Love did so.
Pasqueriella had not worked at Grace for six years, and he had to think a minute before it came back to him. Then he remembered a conversation he’d had with Frank Kelly. “Sure,” Pasqueriella said to Love. “Frank told me about those barrels.”