A Civil Action (41 page)

Excused.

And then there was the woman in her mid-fifties, well dressed and obviously affluent, who told the judge that her husband once had “some dealings” with Facher’s firm.

“Would that lead you to favor Hale and Dorr’s claim?” the judge asked.

“Not necessarily,” replied the woman. “They charged my husband too much money.”

Excused.

Schlichtmann regretted losing all these candidates. But the judge also excused those who obviously favored Grace and Beatrice. The retired Boston transit worker, for example, who said of J. Peter Grace, chairman of W. R. Grace, “Well, I admire him. I have the greatest respect for the man. I would never want to see any harm come to him.”

The judge and the lawyers greeted this statement with stunned looks and a moment’s silence.

“You wanted an honest answer,” said the man, sounding defensive.

Excused.

On a good day the judge would question as many as eighteen prospective jurors. Some days he got through only ten. By the fifth day Facher and Cheeseman had used all of their peremptory challenges, all but one on women with children. Schlichtmann, too, had used all of his, all on men—on accountants, engineers, and bankers. Then, on the sixth day, Schlichtmann had a scare. Into the judge’s chambers came a man who manufactured chemical reagents for medical labs. The chemist said he had followed reports of the Woburn case in professional journals with great interest. “I don’t think they’ll be able to prove that the materials these two companies disposed caused leukemia.”

The judge thanked the man for speaking forthrightly and excused him. Then he looked at Schlichtmann and chuckled. “Having that fellow and no peremptories left!”

Schlichtmann smiled gamely. “I was naked before the world.”

Schlichtmann was still naked when the next man, a telephone company executive, said that he used to go sailing with an executive vice president at W. R. Grace.

“Were you close friends?” asked the judge.

“We were just sailing buddies. I doubt very much it would affect me.”

Judge Skinner seated the man. Then he glanced at Schlichtmann and saw his despondency. “Well, you never know,” said the judge, not unkindly. “Maybe he’s harboring a grudge. Maybe the Grace fellow cut him off at the buoy.”

Facher and Cheeseman got the telephone company executive, but Schlichtmann got a retired social worker who belonged to the Audubon Society and received Sierra Club literature, with which, she admitted, “I more or less agree.” In the end, however, most of those chosen were essentially compromise candidates. The forklift lady, for example—a woman in her sixties, gray-haired, plump and ruddy-cheeked, the image of a good-natured grandmother. True to the image, she had six grandchildren. She also worked in a department-store warehouse. “Believe it or not, I drive a forklift,” she said.

When the judge asked if she’d formed any impressions about the case, the woman hesitated before finally saying no. A long pause followed her answer.

Judge Skinner waited in silence.

“If you want an honest opinion?” said the woman at last. The judge nodded. “I thought maybe the lady was looking for extra money, and it was a big company …” her voice trailed off.

The judge seated the woman despite this comment. Schlichtmann had a peremptory challenge remaining at that time, but he decided not to use it. He liked the fact that this forklift operator had six grandchildren. And Facher and Cheeseman didn’t challenge her, either. They liked what she’d said about “the lady looking for extra money.”

It took six days and the
voir dire
of seventy-nine citizens to empanel six jurors and six alternates. The oldest was in his late sixties, the youngest in her early twenties. Only one woman had young children, but she was an alternate and would not actually deliberate unless one or more of the regular jurors had to be excused during the trial. There were three men on the regular jury—a utility foreman, a self-employed house painter, and a postal worker. Among the three women of the regular jury, one was the forklift lady. Another, a church organist, had four grown children. And the third, a clerk for an insurance company, was in her late twenties, unmarried and childless.

The lawyers really did not know much about any of these people. Superficially, at least, it wasn’t the jury of Schlichtmann’s dreams, and
it wasn’t Facher’s or Cheeseman’s, either. The judge, of course, was aware of this. He brought these proceedings to a close by telling the lawyers, “You’re not entitled to a jury of your liking. You’re only entitled to an impartial jury.”

5

The nuances of jury selection engaged Schlichtmann during the day. In the evenings, back at the office, he allowed himself to relax for brief moments, and it was delicious relaxation to reflect on how far he had come. Now that the trial was about to begin, Woburn was attracting attention across the entire nation. An article in
The Washington Post
called it a “bellwether case,” and
The New York Times
quoted legal experts who said that it would make “the court a forum for a national debate” on toxic waste and cancer. Articles appeared in
Newsweek, Time
, and
The New Republic
, nearly all of them citing Judge Skinner’s comment about the potential for an “astronomical” verdict. According to
Business Week
, Woburn promised to become a “landmark case” with “major implications for companies.”

But the case, of course, was not a landmark yet. The trial was still to come, and just before it began Judge Skinner made an important decision about the way Schlichtmann would have to present his evidence.

It occurred when the judge mentioned that he’d been pondering the question of a trial plan. “I’ve been trying to picture what this trial is going to look like,” the judge told the lawyers. “You’ve got thirty-three plaintiffs, and to submit all thirty-three of these causation and damage issues in one trial may be unbelievably cumbersome. It’s very complicated.” The judge asked the lawyers to submit briefs with their suggestions for a trial plan.

Schlichtmann had assumed all along that he would be allowed to present witnesses in the order and manner in which he saw fit. That had always been the plaintiff’s prerogative. But the judge clearly had doubts about the traditional way.

Schlichtmann and Nesson talked it over. Nesson proposed the idea of a “test case” involving only one family. The trial could begin, Nesson suggested, with Anne Anderson’s telling the jury about the onset of
Jimmy’s illness, about her trips to Dr. Truman’s clinic at Mass. General, where she’d seen other mothers from Woburn, and about her growing suspicion that something in the environment was causing an epidemic of leukemia. After Anne, they would present evidence that Grace and Beatrice had contaminated the city wells. And then the medical experts would explain how the toxic solvents had caused leukemia and other illnesses.

Schlichtmann liked this approach. Nesson thought it would appeal to the judge for several reasons. It answered the judge’s concern about the jury keeping straight all the family members. Moreover, Nesson recalled that Skinner, ruminating aloud on the subject, had first mentioned “trying the plaintiffs
seriatim
,” an idea very similar to a test case.

Nesson’s plan incorporated Facher’s greatest fear. Ever since hearing Richard Aufiero tell the story of his son’s death, more than a year ago now, Facher had been vowing—to himself and even once aloud to Schlichtmann—that no jury would ever hear the families’ stories. He had tried several times to make good on this vow. He had offered Schlichtmann a million dollars to drop Beatrice from the case; he’d gotten the judge to take Schlichtmann out to the Woodshed; and then he’d tried to postpone the trial in the hopes that a long postponement would leave Schlichtmann too much in debt to proceed.

Now, on the eve of trial, Facher saw another chance to keep the families off the witness stand and away from a jury’s sympathetic eyes. He suggested to the judge that the trial should deal first with the question of whether any “poisons” (“If Jan likes that term, I’ll use it,” Facher said) had gotten from the Beatrice property to the city wells. If a jury were to decide that Beatrice had not contaminated the wells, that would end the case for Beatrice. “You wouldn’t need thirty-three plaintiffs telling us how they lost their children and how they’ve suffered,” Facher told the judge.

As for Cheeseman, he didn’t want the families on the witness stand, either. He and his partners had several different ideas, the first of which involved a trial just on the issue of whether TCE could cause leukemia, the issue he believed would be the weakest part of Schlichtmann’s case.

Judge Skinner took a week to consider these various suggestions. He finally decided on a plan virtually identical with Facher’s. The first stage of the trial, the judge announced to the lawyers, would deal with the question of whether Beatrice and Grace were responsible for contaminating
the city wells. The “waterworks” phase of the case, the judge called it. “Unless you get the product being dumped on the property and getting into the water, there’s no case. There’s no point in going any further.”

If, however, the jury
did
find Beatrice and Grace liable, continued the judge, the second stage of the trial would address the medical question—had the chemicals in fact made the surviving family members sick and killed the children? “If the jury decides that favorably,” continued the judge, “then you have to ask, ‘How much is that worth? How much compensation do you give somebody for the loss of a child?’ ” The judge paused, and then he said in a low voice, “What a question!”

Facher was happy to let Judge Skinner take credit for this plan. Facher suspected the judge was trying to make amends for denying his plea for a six-month delay. And the judge, in fact, as much as acknowledged so. Announcing the waterworks plan to the lawyers, Skinner said, with an eye to Facher, “You won’t have to master everything at once. You can take a breather between phases.”

On the face of it, it did make sense to divide up the trial in this way. Nesson saw the logic of it, but he also saw the danger. The jurors would come into the courtroom expecting to hear a human drama about the poisoning of the Woburn families. Instead, they’d first have to sit through a case about geology and groundwater movement.

Nesson tried to change the judge’s mind. “This is the defendants’ plan,” he began, but the judge quickly interrupted him.

“No, it’s
my
plan,” the judge insisted.

“It’s your plan,” conceded Nesson. “But when you start the trial with essentially a bloodless issue, where you don’t have the families, that’s very advantageous to the defendants.”

But the judge was adamant. “I’ve given this a lot of thought, Mr. Nesson. I appreciate your problem. I didn’t come here directly from law school, you know, and I’m perfectly aware of the necessity for getting a little pizzazz into it. If it’s as you say—all these dreadful people are wickedly and heartlessly dumping known poisons into the water system—holy moly, what more of a hair-raising opening do you need?”

To Schlichtmann, the structure of the trial didn’t matter as much as the fact that there would be a trial. He would have preferred starting with Anne as the first witness, but he was in an especially optimistic
frame of mind nowadays. He could even see an advantage in this plan devised by Facher and adopted by the judge. After all, both the Grace and Beatrice properties were contaminated with TCE. Wasn’t it obvious that they had contaminated the wells, too? A jury would surely see that. The waterworks, Schlichtmann told Nesson, was actually the easiest part of the case. In winning it, they would gain credibility with the jury, credibility they might need later, for the leukemia part of the case.

Nesson remained worried, but Schlichtmann wasn’t particularly worried about Nesson being worried. Schlichtmann had his jury at last, and he had never lost in front of a jury. Nesson was, after all, only a law professor. He didn’t have much trial experience.

Then again, compared with Facher, Schlichtmann didn’t have much, either.

6

Judge Skinner gave the lawyers two additional weeks after jury selection to prepare for the trial. On Tuesday afternoon of the second week, Schlichtmann got a call from Facher’s lieutenant, Neil Jacobs. Over the phone, Jacobs said he wanted to make another attempt to settle the case against Beatrice. Schlichtmann thought it odd that Jacobs, not Facher, would make this call, but he was happy to talk settlement with Jacobs anyway.

They met for drinks that evening at the Bay Tower Room. Schlichtmann told Jacobs that if he really wanted to negotiate, he would bring in someone from Beatrice, a “decision-maker,” who could authorize settlement. Jacobs agreed to have Beatrice’s assistant general counsel fly in from Chicago. But Jacobs seemed nervous. He asked Schlichtmann for some assurance that the assistant general counsel wouldn’t come to Boston just to hear another outrageous demand. “This won’t be another Four Seasons type of demand?” asked Jacobs.

“You won’t be embarrassed,” said Schlichtmann.

There were no elaborate preparations for the negotiation this time, no rented suites or silver service, and the sums discussed were not, as Schlichtmann had promised Jacobs, fantastical. On Friday morning Schlichtmann, Conway, and Gordon went over to Hale and Dorr to meet the Beatrice assistant general counsel, a thin, chain-smoking
woman in her mid-forties named Mary Allen. She responded with hostility to Schlichtmann’s opening demand for thirty-six million dollars. She threw down her pencil and called it “extortion.” She told Schlichtmann that Beatrice was a big company and that he was “just a mosquito to us.”

Jacobs, looking worried, escorted Mary Allen from the room. A few moments later he returned alone. Mary Allen was upset, he said. The demand was much larger than either he or she had expected. He was, however, prepared to make Schlichtmann a counteroffer: Half a million dollars for each family, four million in total. “Will that do it?” Jacobs asked.