A Civil Action (43 page)

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Schlichtmann figured it would take him four or five weeks to complete the waterworks phase of the trial. In broad outline, his task was quite simple. He had to prove that the Grace and Beatrice properties were contaminated with TCE and other toxic solvents, and that these solvents had seeped into the groundwater and migrated to the city wells by the late 1960s.

He would call as many as thirty witnesses, but he intended to rely chiefly on the testimony of two expert witnesses. The first, a geologist, would describe to the jury the extent of the TCE contamination in the soil of the Grace and Beatrice properties and the time at which, in his opinion, it had occurred. The second expert, a Princeton professor, an
authority on the subject of groundwater flow, would explain how the TCE had percolated into the aquifer and was then drawn by the pumping action into Wells G and H.

The timing of these events was critical to Schlichtmann’s case. He had to show that TCE had gotten into the wells
before
the leukemias and assorted other ailments began to show up. With Grace, that was easy. He would call Tom Barbas and his fellow employees to the witness stand and have them testify about dumping TCE throughout the 1960s. Beatrice was more difficult. Schlichtmann did not have eyewitnesses who could implicate John J. Riley in the contamination of the fifteen acres. He would have to rely on circumstantial evidence and the testimony of his expert witness, the geologist, to date the contamination.

“Facher thinks all expert witnesses are whores. He’ll say to you, ‘You’re making it up, you’re a charlatan!’ ”

“Can I laugh at him?” asked the geologist.

They were in the conference room at Schlichtmann’s office. It was late in the evening. The geologist, a courtroom virgin, was getting a final lesson in witness-stand etiquette on the eve of his appearance. “Do you tend to get nervous?” Schlichtmann asked. “You will never—ever!—put your hands to your face.”

The geologist smiled. “How about scratching my crotch?”

Schlichtmann didn’t smile. “Just keep your hands clasped in front of you,” he said. “Don’t leave them free. Do you cross your arms like this?” Schlichtmann folded his arms tightly across his chest and drew his shoulders forward. “Don’t do it. It looks hostile and withdrawn. Now you’re slouching! Don’t slouch.”

“I’m a sloucher by nature,” said the lanky geologist, sitting more erect.

“Sit on the edge of the chair. It keeps you alert. And keep your eyes on whoever is talking. When Facher and Keating start cross-examining you, never look at me.” Suddenly Schlichtmann jumped up and pointed an accusatory finger. “Ahhhaa! Your hands are in front of your mouth now! You just went from slouching to lip holding!”

The geologist drew his shoulders back and sat erect, hands folded in front of him, as motionless as an artist’s model. He held the pose for a
moment and then he collapsed into laughter. He was punchy from long hours of work.

Schlichtmann went on: “They’re going to ask, ‘Are you being paid for your testimony?’ What do you say to that?”

The geologist hesitated. “Yes …?” he ventured cautiously.

“No, no, no! You’re being
compensated
for your time. By the way, do you own a burnt-orange sports coat? A puke-green tie? For God’s sake, don’t wear it. I want you to wear a conservative suit.”

The geologist’s name was John Drobinski. He and Schlichtmann had already spent many days before the start of trial going over the substance of his testimony. During the past year Drobinski had led a team of other workers in mapping every foot of the Beatrice and Grace properties. They had drilled more than two dozen test wells in the Aberjona marsh, conducted seismic refraction studies of the underlying bedrock contours, and collected samples of contaminated soil. On the fifteen acres owned by Beatrice, Drobinski had dug into piles of debris and rusted 55-gallon drums, piles saturated with TCE. He had found a Woburn campaign sticker from 1963, a prescription bottle dated 1967, and Budweiser beer cans with tab tops of the sort that Budweiser said they had stopped making in 1970. He had chopped down a stunted tree growing out of one pile and sent cross-sections to a botanist, who determined that the tree, eighteen years old now, had started growing in 1967. Based on these discoveries, and especially aerial photographs from the 1950s and 1960s that clearly showed the piles of drums and debris, Drobinski would take the witness stand tomorrow and testify that the Beatrice property adjacent to the tannery had been contaminated for at least twenty-five years.

Schlichtmann thought it would take him about three days to guide Drobinski through his testimony against Beatrice.

“A plaintiff’s case depends on momentum,” Facher once told his Harvard class. “The fewer objections you get, the better your case will move along. Objections break up the rhythm of an examination.”

And so Facher objected, and kept on objecting. On the second day of trial, the morning Drobinski was supposed to take the stand, Facher demanded an audience at the judge’s bench. He objected to documents that Schlichtmann planned to put into evidence on the grounds of relevance,
hearsay, authenticity, best evidence, and undue prejudice. “It is a dreadful piece of work,” Facher said of one report by a state environmental agent. “The most outrageous report you’ve ever seen.” He objected to Drobinski’s soil-test results, and again when Drobinski, on the stand at last, tried to show the jury photographs he had taken on the fifteen acres. “They’ve got these giant blowups of everything!” Facher complained in a whispered conference at the judge’s bench.

“Of course,” said the judge. “If you’re going to present a case to the jury, you blow up the photographs. You’re not shocked by that, are you?”

“But these blowups, they’re distortions,” insisted Facher. “When you see them you’ll agree. They have a hand the size of a tennis racket in this photograph.”

“If you want to point out that nobody has a hand that big, you’re entitled to do it,” said the judge.

Facher objected when Schlichtmann tried to bring into the courtroom a large diagram depicting the fifteen acres. “The King Kong exhibit,” Facher called it, “a gigantic piece of demonstrative evidence, I would say ten feet high because it’s bigger than Jan, and Jan is about six feet four. They’ve drawn little pictures of barrels on it, and they’ve got a hinge on it and then there’s a big index, and I will object to it.”

The proceedings ground to a halt as the judge left the bench and went out to the corridor to examine the King Kong exhibit. He permitted Schlichtmann to use it, but that didn’t deter Facher. A few moments later, Facher objected to a photograph of the tannery’s sludge lagoons. “It’s a false photo,” he told the judge.

Schlichtmann turned to stare at Facher. “It is, is it?”

“Absolutely,” said Facher.

“It’s your photo,” said Schlichtmann, “from your own engineer. Did your engineer falsify it?”

Throughout the first week of trial, every morning began with Drobinski taking the witness stand and then sitting mutely, hands properly clasped before him, as the lawyers gathered at the judge’s bench to dispute one matter or another. The interruptions would continue throughout the day. Facher would rise to object and ask to speak to the judge, and then all the lawyers, including Cheeseman and the other Grace lawyers, would rise and troop up to the bench for a conference in low but urgent voices that could last from a few seconds to half an hour. On the fourth day of trial, Facher’s objections resulted in
twenty-two trips up to the judge’s bench. Drobinski, meanwhile, sat on the witness stand, and the jurors sat in the jury box, looking bored and sleepy. They were forbidden to bring newspapers or other reading material into the courtroom. They gazed numbly at the vaulted ceiling or at the gallery, where the crowd had by now dwindled to fewer than a dozen people.

Nesson, the expert on the Federal Rules of Evidence, the one who knew more about their arcana than anyone else in the courtroom and perhaps in the entire First Circuit, would stand beside Schlichtmann at the bench conferences and argue in opposition to Facher. He overcame most of Facher’s objections, but even so he grew increasingly frustrated. “Your Honor,” he told the judge, making no effort to conceal his anger, “I’d like to put on record an objection to Beatrice’s efforts to break up the flow of the case and to delay this trial in every conceivable way.”

“I would agree,” replied the judge, “except that I think you invited this kind of thing by pushing for trial when you weren’t ready.”

Judge Skinner, of course, had also been anxious to keep the trial date. Perhaps because of this, the judge seemed willing to tolerate some of Facher’s more frivolous objections. And not all of the objections were frivolous. On the seventh day, just as Drobinski was about to utter his expert opinion on the time of contamination, Facher asserted that there was no proper scientific foundation for this opinion, which was based on nothing more than digging up old beer cans, chopping down a tree, and looking at aerial photos. Maybe those piles of debris and drums had been there for thirty years, Facher allowed, but no one could say with scientific certainty that they had been contaminated with TCE back then. Someone could easily have come onto the property in 1979, after the wells had closed, and dumped TCE onto those piles. For this reason, Facher asked the judge to exclude Drobinski’s opinion and thus end the case against Beatrice then and there.

Judge Skinner seemed tempted to do so. Nesson warned that such a ruling would be a grave and costly mistake that would surely be reversed by the Court of Appeals. Under Rule 702 of the Rules of Evidence, Drobinski met all the proper qualifications as an expert, Nesson argued. It was therefore up to the jury, not the judge, to decide whether they believed Drobinski’s testimony.

That debate went on for an entire morning. The twelve jurors, meanwhile, sat upstairs in the small, overheated jury room. At noon, Judge
Skinner retired to his chambers to ponder the matter. Upon his return, he told the lawyers that his decision was “a very close one.” Drobinski’s opinion could not rightly be called “scientific”—“He eyeballs the soil the way anybody who has ever dug a hole eyeballs the soil,” said the judge. Nonetheless, on the basis of Nesson’s argument, the judge decided he would permit Drobinski to state his opinion to the jury.

Nesson had just earned his keep. He had single-handedly saved the case against Beatrice. Back at the office that afternoon, Schlichtmann was exultant. “Charlie, you got inside the judge’s perimeter!” Schlichtmann crowed gleefully, splaying his fingers out like a mystical masseur. “You were touching the old bastard’s brain!”

But Drobinski’s time on the witness stand was not over. In fact, his true ordeal was just beginning. On Friday afternoon, at the end of the second week of trial, Facher began a cross-examination that would last the entire third week. He sought to portray Drobinski as a biased and untruthful witness, handsomely paid for his testimony, who had looked only for information harmful to Beatrice. Wasn’t it true, Facher demanded, that most of the fifteen acres was “pristine,” full of “pretty little blue wildflowers”? Wasn’t it true that only six of Drobinski’s nineteen auger samples had contained TCE? Why hadn’t Drobinski told the jury that fact? Wasn’t it true the highest levels of TCE occurred at the surface of the soil? And that the levels declined the deeper Drobinski dug? This meant the contamination had to be recent, not twenty years old, didn’t it? Wasn’t that plainly obvious to anyone?

“People are greedy,” Facher once told his Harvard class. “The biggest problem with witnesses is that most of them exaggerate.” In Drobinski’s deposition testimony, Facher had found an exaggeration, and now he drew it forth for the jury to see. Drobinski had claimed he’d gotten his master’s degree in geology in 1976, but Facher, taking nothing for granted, had learned that the degree had actually been awarded in 1979. “Didn’t you tell me under oath, at your deposition, that you had a degree in 1976?” Facher asked.

“Sir,” replied Drobinski, “I was told by my thesis committee and the geology department that I did have my degree.”

“You were
told?
You’re saying you had a
verbal
degree in 1976?” Facher’s voice was full of incredulity. “Is that what you want the jury to
believe? Do you know of any university in the world that grants oral degrees?”

Then Facher showed Drobinski a copy of his application to the state of Oregon, also made under oath, for certification as a geologist. “Did you swear under penalties of perjury that you had a degree in 1976?”

Drobinski studied the application. “Yes, sir, that’s what it says.”

“You were trying to get your license in the state of Oregon by filing a paper that contained false information, isn’t that right?”

“I would not characterize it that way,” said Drobinski.

“It was under oath, wasn’t it?”

“Yes, sir.”

“It says ‘1976’ opposite ‘master’s degree,’ doesn’t it?”

“Yes, sir.”

“You were trying to tell the state of Oregon you already had your master’s degree when you didn’t, isn’t that right?”

And so it went for a long while that day, Facher brandishing this small, but perhaps telling, inconsistency in an effort to cast doubt on the veracity of everything Drobinski had said.

Schlichtmann sat quietly at the counsel table. He looked completely calm, his features bland and inscrutable, but he was seething inwardly. If this were a deposition, he would have interrupted a dozen times and fought bitterly with Facher. But now, in the courtroom, he rarely objected to any of Facher’s questions, even when he had legitimate cause. He disliked objecting in front of jurors. He didn’t want any juror to get the idea that he was trying to conceal something under the cloak of a legal technicality.

Schlichtmann had his head turned slightly to his right so that he could see, out of the corner of his eye, Drobinski on the witness stand. The geologist was lean and wiry, with a broad forehead and a thick mustache. He sat forward on the edge of his chair, just as Schlichtmann had instructed, his hands clasped lightly together on the small wooden desk in front of him. Schlichtmann thought Drobinski was holding up well, all things considered. Drobinski answered Facher politely, always calling Facher “sir,” and never once raising his voice or betraying any irritation. Schlichtmann could also see Facher standing splayfooted before the geologist, his arms crossed over his chest, his shoulders hunched, a gray wisp of a man with heavy-lidded eyes and thick glasses. His lips were pursed in a manner suggesting profound skepticism.