A Civil Action (12 page)

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.”

6

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 name
W. R. GRACE
in 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 the
building. 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’s
right, 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 in
The Boston Globe
. Alerted by that story, crews from two local television stations
arrived 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.

Rule 11

1

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 identified
by 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.