A Civil Action (37 page)

Cheeseman and Facher and their teams of associates continued throughout the fall and into the winter with the depositions of Schlichtmann’s expert witnesses. Schlichtmann had done what he could to prepare his experts, and most stood up fairly well.

There was, for example, the case of Dr. Vera Byers, an immunologist from California who had published some eighty-five articles on tumor immunology in respected journals such as
Lancet
. Last summer, at Schlichtmann’s behest, Byers had conducted her own physical examinations of the Woburn family members. After reviewing the work of Schlichtmann’s other experts, she concluded that the families were indeed suffering from chronic solvent poisoning. Long-term, low-dose exposure to TCE, she believed, had impaired their immune systems and caused the high incidence of leukemia.

Byers had never testified in court before. This was her first experience as an expert witness. As a rule, Schlichtmann liked inexperienced witnesses. “Virgins,” he called them. They were generally impressionable enough to follow his advice and listen to his warnings. They might get frightened under cross-examination, but Schlichtmann felt this was no handicap. “The honest, scared witness is best,” he once explained. “They exude honesty when they’re nervous. Judges and juries love them.”

Byers, who was in her early forties but looked younger, remained a plucky witness throughout the three long days of her deposition. When Facher showed her a list of a hundred scientific studies and asked which ones she had reviewed, Byers said, “Holy Toledo!” When he asked how many different kinds of leukemia there were, she said, “Jeepers! There are many kinds. It depends whether you’re a splitter or a lumper.” Several times she exclaimed, “Bingo!” and “You betcha!” when she happened to agree with something Facher said.

She grew more sober under questioning by Cheeseman, who began by asking if she’d been a cheerleader in high school. Turning to the substance of Byers’s opinion, Cheeseman demanded to know what specific harm Anne Anderson, for example, had suffered from the contaminated well water.

“The systems damaged were respiratory, cardiac, gastrointestinal, neurologic, and immune,” replied Byers. “And there was probably damage to cells and other organs.”

“Like the skin?” said Cheeseman.

“Like the skin,” agreed Byers. “Maybe the kidney.”

“Mostly you have the whole human body there, haven’t you?”

“True,” said Byers. “The thing is systemic.”

“Looks like you’ve found the universal evil in these solvents,” remarked Cheeseman. Item by item, he led Byers through Anne Anderson’s medical records. His tone grew mocking. “You wrote on the physical exam that she’s a well-developed, well-nourished woman in no apparent distress. Does that mean at the moment you were examining her she was not experiencing cramping, irritable bowel, rhinitis, sinus headache, migraine headache, et cetera?”

“That’s correct.”

“So,” said Cheeseman, “you caught her at a good moment, huh?”

The depositions of Schlichtmann’s twelve medical and three geological experts would ultimately consume fifty-three days and fill ten thousand transcript pages. Those whose opinions were based on quantifiable, objective measurements—the blink reflex tests and the cardiology exams, for example—fared best. The expert who fared worst was Dr. Alan Levin, another of Schlichtmann’s immunologists. On the third day of his six-day-long deposition, Facher began by asking the doctor in a mild, almost friendly manner how much time he spent on legal matters.

Levin said that consulting work occupied only 10 to 15 percent of his time. He added that he much preferred seeing patients in his clinic, work that he found more personally satisfying.

“Well,” said Facher, “how many lawsuits are you currently involved in?”

Levin replied that he’d been retained in two other cases, one in Sacramento, another in Texas.

“Tell me about the case in Texas,” said Facher. “Have you given an opinion?”

“I haven’t given an official opinion. I don’t have all the data, but based on what the defendant’s immunologist did, there’s clear evidence of immune dysregulation.”

Facher looked at notes prepared by one of his associates. “There’s some case in Iowa?” he said.

“I’m sorry,” said Levin. “You’re right. Mr. Carpenter. He’s suing a bunch of pesticide people.”

“I have a note here involving someone named Johnson. Does that mean anything to you?”

Levin shrugged. “Could have been,” he said.

“Millie is the first name? 1983?”

“Millie Johnson—she developed asthma after being exposed to Raid,” said Levin.

“Raid? The insecticide? Did you render an opinion of immune dysregulation?”

“I believe that’s what I did, yes.”

“I have a note here about Times Beach. What is that?”

“I’m involved in Times Beach, too,” Levin answered, “and I was involved in Three Mile Island.”

Facher smiled. “I seem to be helping your memory. Any others?”

“I can’t recall right now.”

“I have a note, Aircraft Stamping.”

“That went to the jury,” said Levin.

“And your opinion was what?”

“That the chemicals caused immune dysregulation in that population.”

“Do you have any criminal record, by the way?” said Facher.

Schlichtmann, seated next to Levin, held his tongue.

“No,” said Levin.

“What about Schuller?” asked Facher, getting back to Levin’s professional history. “Does Schuller mean anything to you?”

“Schuller was a patient of mine who was exposed to chlordane. That was an interesting case.”

“Your opinion, again, was immune dysregulation?”

“Right,” said Levin.

“Fiberite Corporation,” said Facher. “Does that mean anything to you?”

And on it went. Cheeseman, too, had done some research on Dr. Levin. Cheeseman’s medical experts had told him that “clinical ecology,” a branch of immunology championed by Levin, was “a screwball science.” Cheeseman thought Levin was a charlatan, and he finally said so on the sixth day of Levin’s deposition, when the doctor asserted that the T cell tests led him to believe that Anne Anderson was “a sick lady,” at risk of developing serious illness in the future. In a voice heavy with sarcasm, Cheeseman said, “That’s sort of like reading entrails, isn’t it? Tarot cards. You throw the cards down and look at them and you see the future from that?”

It had been a difficult week for Levin, and almost as difficult for Schlichtmann. He admired and trusted the immunologist, and he owed him a debt of gratitude as well. Levin had been his first expert, his guide and tutor on the medical part of the case. “Cheeseman doesn’t want to believe that this is a legitimate case,” Schlichtmann said after Levin’s deposition. “He wants to believe that I’m a charlatan. But I believe these people have been injured, and the more I find out, the more I believe that. I believe these chemicals can cause harm. I don’t want any of them in my body.”

6

Schlichtmann got his chance in the final two weeks of discovery to hear the opinions of the medical experts hired by Cheeseman and Facher. Together they had assembled a roster of twenty-eight specialists, many with impressive résumés, several from the nearby Harvard Medical School. There were six toxicologists, five epidemiologists, three neurologists, a molecular biologist, a pediatric hematologist, a cardiologist, a psychiatrist, and several immunologists, chemists, and
pathologists. Schlichtmann had no time to take leisurely six-day-long depositions, as Facher and Cheeseman had. One day during the last week of discovery he took eight depositions, walking into conference rooms to confront expert witnesses whose specialties—whose very names—he did not know.

He found that several of these doctors knew his own experts, sometimes personally, sometimes only by reputation. One physician, a specialist in occupational medicine, told Schlichtmann that he had often referred patients to Dr. Robert Feldman’s clinic.

“What’s your opinion of Dr. Feldman?” Schlichtmann asked this expert.

“He strikes me as a good neurologist,” replied the doctor. “I depend on his judgment considerably.”

Schlichtmann planned to use this in front of the jury, even though this same doctor stated that he did not believe the Woburn families had suffered any ill health from exposure to TCE. “I’ve seen individuals working with levels of exposure a thousand—ten thousand—times the levels you have quoted without suffering any ill effect,” the doctor said.

A neurologist, a professor at Harvard, agreed that Feldman was, in his words, a “competent” neurologist, but he, too, disagreed with Feldman’s conclusions. He thought Feldman had completely misinterpreted the results of the blink reflex tests. “I think the normal ranges, as construed by Dr. Feldman, were excessively low,” said this neurologist. Another Harvard professor, a pediatrician, said much the same thing about Colvin’s T cell tests. This expert acknowledged that Colvin had an “impeccable” reputation, but he thought Colvin had used “rather low” laboratory normals in assessing the Woburn families’ T cell values.

The cardiologist hired by Facher and Cheeseman was an eminent doctor by any measure. His name was Gilbert Horton Mudge, Jr., a professor at Harvard and director of the heart transplant program at Brigham & Women’s Hospital. Schlichtmann asked Dr. Mudge if he had reviewed the cardiological exams of the Woburn families. Mudge said that he had.

“Were any of those people suffering from cardiac arrhythmia?” asked Schlichtmann.

“I believe all those patients were normal,” replied the doctor.

“Are any of them suffering from cardiac arrhythmia?” Schlichtmann asked again.

“Their rhythm disturbances are within normal limits,” said Mudge.

Mudge still had not answered the question. Schlichtmann asked it again, for a third time: “Are any of these people suffering from cardiac arrhythmia?”

“Yes,” said Mudge.

“How many of them are suffering from cardiac arrhythmia?”

“As I remember, virtually all of them had some cardiac arrhythmia. But it’s my opinion that such rhythm disturbances are entirely consistent with a normal patient population.”

Near the end of the deposition, which lasted less than an hour, Mudge said he would like to take echocardiograms of the Woburn people. “I’d like to look at their echocardiograms to see if there’s any objective evidence to suggest a structural abnormality of the heart.”

“Why would that be important?” asked Schlichtmann.

“To make absolutely sure that there’s no reason to be concerned about these extra heartbeats.”

Schlichtmann liked Dr. Mudge. He looked forward to seeing him again, in front of a jury. Schlichtmann smiled at him. “We’re all done, Doctor. Go forth and heal.”

None of the six toxicologists hired by Cheeseman and Facher believed that the small amounts of TCE found in Woburn wells could have affected the health of the plaintiffs. One of them, from the University of California at Berkeley, agreed that TCE could damage the heart, the central nervous system, and the immune system, but not at the “infinitesimally small levels” reported in Woburn.

Schlichtmann asked how much TCE it would take to cause such damage, and the toxicologist said, “Very, very high levels.”

“How high?”

“I don’t think people would drink the water at levels high enough to cause toxicity,” said the toxicologist.

Schlichtmann asked the toxicologist if he would consider the levels in the Woburn water to be safe.

“There is no such thing as complete safety,” replied the toxicologist. “Everything poses a risk. Walking down the street is not safe. Sitting here in this room, being bombarded by cosmic rays, is not safe. What
I’m saying is, the risk is acceptable to the human population because it is so infinitesimally small.”

By way of illustration, continued this expert, the risk of getting cancer from the Woburn water would be roughly equivalent to spending thirteen minutes in a canoe on a placid lake, or to smoking three cigarettes.

“Three cigarettes a day?” said Schlichtmann.

“Three cigarettes in a lifetime,” said the expert. “Absolutely negligible risk, insignificant.”

Schlichtmann deposed a pediatric hematologist from Chicago, a renowned specialist who had treated hundreds of children with leukemia. The hematologist agreed that there was indeed a high incidence of leukemia in Woburn, but he also stated that “all previous clusters of childhood leukemia were related to statistical coincidence and not to any specific exposures.” In his opinion, the Woburn water had nothing to do with the Woburn leukemias. Both animal and epidemiological studies, he said, indicated that TCE was not a carcinogen in man.

If that was so, asked Schlichtmann, then what did cause the Woburn leukemias?

“I don’t think anyone in the world knows what causes acute lymphocytic leukemia in children,” said the hematologist. “It’s evolving. The molecular biologists are going to tell us the answers, but no one knows the answers yet.”

The molecular biologist, a professor at Tufts University School of Medicine named Dr. John Coffin, admitted at his deposition that he did not know the answers yet. But he had a theory. He had spent much of his professional life studying tumor viruses, and he believed that a virus was most likely responsible for many cases of acute lymphocytic leukemia in children. That was, at least, a “plausible” explanation, Coffin maintained, more plausible than the contaminated well water. “My opinion,” Coffin told Schlichtmann, “is that the compounds in this case are not at all likely to be human carcinogens.”

“Are you aware,” asked Schlichtmann, “that the EPA has determined that trichloroethylene is a probable human carcinogen?”

“Is that their exact phrasing?” replied Coffin. “My memory is that the EPA did not conclude that it was a probable human carcinogen.”

In this instance, Coffin’s memory was wrong. “If I told you they had,” continued Schlichtmann, “would that be news to you?”

“It is a question of phrasing,” said Coffin. “I don’t remember the phrasing.”

Schlichtmann sensed that he had Coffin in retreat. He decided to push him further. “In your opinion, Doctor, does trichloroethylene pose a health hazard in the domestic water supply?”