Conway found the cases in the files of Reed & Mulligan and got Schlichtmann interested in them. But Conway didn’t like the Woburn case. Whenever Schlichtmann mentioned it, Conway tried to steer him away. “It’s a black hole,” he’d warn Schlichtmann. Conway had never met the families, and he could view the case in a cold, unemotional light. He had learned by then that Schlichtmann never did anything in half measures, and the full measure of Woburn—the size, the complexity and the cost—scared Conway. “We don’t want that one,” he would say when he and Schlichtmann went downstairs after work to the Emperor of China restaurant and discussed new cases.
5
For a time after her son’s death, Anne Anderson had rarely left the house, fearful she would break down and weep in public. She used to dream that Jimmy was still alive, and then she would awake, stunned by the fresh realization that he was gone. In the grocery store she’d see something he had liked and her tears would start to flow.
She recovered slowly. A few months after Jimmy’s death, she began working at her brother’s stonecutting business in Somerville, partly to pay the bills, but also to try to get her mind off Jimmy. She worked in the office, answering telephones and keeping accounts. But her thoughts kept returning to the contaminated wells. She wanted answers, and she wanted to bring to account whoever had caused her son’s illness and suffering. As far as she could see, neither Mulligan nor Schlichtmann had done anything. Schlichtmann didn’t even return her phone calls.
Driving home from work one afternoon in the fall of 1981, Anne turned on the radio and began listening to the Jerry Williams talk show on WRKO. The subject that day was lawyers. Listeners were invited to call in and ask questions of two lawyers who were guests on the show. Anne was listening with half an ear when she realized that one of the voices was familiar. It was Schlichtmann’s voice. Here he was, on the radio, pontificating about the law, about serving clients, and she could never even get him on the phone. She drove home as fast as she dared. She ran into the house, picked up the kitchen phone and dialed the station without pausing to take her coat off.
“I’ve got a question for Mr. Schlichtmann.”
“Go ahead, please,” said the talk show host.
“What should you do when your lawyer never calls you back?”
“Wait a minute!” said Schlichtmann. “I know this voice. Is this Anne?”
“Jan, I call and call and never get to talk with you.”
Over the air, Schlichtmann laughed painfully. “Your messages are right next to my mother’s,” he said. “I haven’t called her back either.” Then he added, “You can talk with Kathy, you know.”
“Kathy doesn’t have the answers,” said Anne.
Schlichtmann didn’t have any answers either, but he did not say so. He promised to call Anne the next morning.
Anne hung up the phone and then she picked it up again and called Donna Robbins. “Guess what I just did,” Anne said.
Despite all its difficulties, the case tantalized Schlichtmann. He believed that it had merit. He kept thinking that if he was destined for something great in life, this case might be his opportunity. If he were to win it, he would set new legal precedents and gain a national reputation among his fellow plaintiffs’ lawyers. He would no doubt make a lot of money. And he would have helped the families of east Woburn. Fame, fortune, and doing good—those were, in combination, goals worth striving for, he thought.
But by the winter of 1982 Schlichtmann still had not made a decision on the case. The statute of limitations—three years for a personal injury action in Massachusetts—had begun to run on the day the Woburn wells had closed, on May 22, 1979. If he was going to drop the case, he had to tell the families soon. If not, he had to start working quickly to prepare the complaint. As ambitious as he was, he also liked to think of himself as a businessman, a pragmatist. Conway had called this case a “black hole,” and Conway was probably right. Schlichtmann decided there were other worthy cases he could devote himself to, cases he could win.
So in February he called Anne and asked her to arrange a meeting with the families at Trinity Episcopal. On the evening of the meeting, as Schlichtmann prepared to leave for Woburn, Conway came into his office. Conway made him promise that this time he would level with the families. He’d tell them that he didn’t have sufficient basis to file a lawsuit. Conway followed Schlichtmann to the door. “When you come back, we won’t have the Woburn case anymore. Right, Jan?”
“Right,” said Schlichtmann.
• • •
At Trinity Episcopal, the small gathering of men and women sat in metal folding chairs around a long wooden banquet table that was usually used for church suppers. Reverend Young sat among them. The church hall was dimly lit and cold. Some of the women kept their coats on. Everyone but Anne thought that Schlichtmann had come to inform them of new developments in the case. She alone suspected that he had come to wash his hands of it, but she had not voiced her suspicion to the others, not even to Donna or Reverend Young.
Schlichtmann sat across from the families and recited the now familiar litany of difficulties—the absence of a defendant, the problem of proving that the chemicals had caused the leukemias, and the cost, especially the cost. “There are a lot of questions,” said Schlichtmann, “and we don’t have any of the answers yet. I’m afraid the resources to pursue this simply aren’t there.”
A sense of bleakness came over the group. Anne thought to herself, He’s done everything but say good-bye.
For a moment, no one spoke. Schlichtmann, it seemed, couldn’t bring himself to say good-bye, to get up and leave. Then Reverend Young cleared his throat and said, “What if I told you I know where we can get some money?”
Schlichtmann looked doubtfully at the minister. This was not a case that could be financed by church bake sales.
Reverend Young explained that he had spoken that very afternoon with a lawyer in Washington, D.C., the executive director of a new public-interest law firm called Trial Lawyers for Public Justice.
Schlichtmann grew suddenly alert. He knew about the firm! he exclaimed to Reverend Young. He was, in fact, one of its founding members! Six months ago, at a convention of trial lawyers in San Francisco, he had contributed a thousand dollars to help get the organization started. He had, of course, liked the name, and he was sympathetic to the goal of using the legal system to bring about social change.
The conversation with the Washington lawyer, continued Young, had come about by coincidence, the result of a call from a staff member in Senator Edward Kennedy’s office. The staffer had read that Trial Lawyers for Public Justice was looking for a good environmental case. Woburn had come to her mind. She’d called Reverend Young, and then, at four o’clock that afternoon, she’d set up a conference call between him and the executive director, whose name was Anthony Roisman. Over the phone, Young had described the situation in Woburn, and Roisman had said the case sounded interesting. Moreover, Trial Lawyers for Public Justice had some funds already earmarked for an environmental case. But, Roisman had also said, he could not just step in and take the case away from another lawyer.
And that, Reverend Young told the gathering at Trinity Episcopal, was why he had not mentioned the conversation until this moment.
Schlichtmann, greatly animated now, questioned the minister closely about every detail of his conversation with Roisman. He remarked several times on the “amazing” coincidence of events. He told the families he would call Roisman the first thing tomorrow morning. He hoped that he and Roisman could work together on the case. When he left Trinity Episcopal that evening, the mood among the families was no longer somber.
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 Harva
rd 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.
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