A Civil Action (19 page)

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 than
a 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.
Time
magazine, 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 with
him. 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 cause
for 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. The
Boston 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 the
Herald
, 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.

2

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.”