A Civil Action

by Jonathan Harr

  “Bullshit,” said Facher. “They’re not going to cooperate. You’ll have to dismiss against them.”

  Facher was right. In the months that followed, Unifirst’s lawyers filed countersuits against both Grace and Beatrice. Cheeseman still wanted to keep Unifirst in the case, but Grace’s in-house corporate counsel finally overruled him. Unifirst was causing too much trouble and it did not look as if the company would ever cooperate in a joint defense. Against his will, Cheeseman was forced to dismiss all claims against the company.

  Schlichtmann, meanwhile, had been negotiating with Unifirst. At the first meeting the company’s lawyer offered a hundred thousand dollars. Schlichtmann set up a meeting at the Ritz-Carlton, just as he had done in the hotel fire case, and he brought in a groundwater expert from Princeton University. Unifirst’s lawyer increased his offer to six hundred thousand. Schlichtmann wanted more. The negotiation stalled for a while, and then Schlichtmann organized another meeting at the Ritz. In the end, Unifirst offered to settle all claims for one million and fifty thousand dollars. The company would pay four hundred thousand in cash immediately, and the balance in five years.

  Schlichtmann called the families together. On a Saturday morning at his office, they readily approved the Unifirst settlement, and they further agreed, at Schlichtmann’s suggestion, to use the first cash payment to finance the Woburn case. This money was important. Schlichtmann and his partners had made a million dollars from the Carney case, but they’d already spent most of that. Everyone in the office, from Kathy Boyer down to the cleaning lady, had gotten a big bonus. Schlichtmann had renovated his apartment and bought the new Porsche, and Conway and Crowley had each bought large houses in the suburbs. But all of that was petty cash compared with the real expense facing the firm. The Woburn case, Schlichtmann knew, had begun in earnest.

  Discovery

  1

  Everything Richard Aufiero knew about lawyers he’d learned from television and the movies. He was scheduled to go into Boston on the morning of January 7, 1985, a Monday, to have his deposition taken by the lawyers for W. R. Grace and Beatrice Foods. He awoke early that morning, feeling nervous. He imagined that the lawyers for the big companies would badger him, try to trick him into saying damaging things, or make him look stupid. “Like a moron,” he told his wife, Lauren, whose deposition was scheduled for that afternoon, right after his.

  Richard was the first of the Woburn plaintiffs—the first person in the entire case, in fact—to be deposed in that period before trial known to lawyers as discovery. Richard would have preferred coming later, so that he could talk to the other family members and find out what kind of questions he would be asked, but he had been given no choice in the matter. For whatever reason, the lawyers for Beatrice and Grace had selected him to go first. Schlichtmann had explained the deposition process to him and told him not to worry, but Richard couldn’t help feeling nervous. He put on his best pair of pants and a clean shirt. He considered wearing his green nylon Celtics jacket, his favorite piece of apparel, but he decided he should probably wear a sports coat. He had only one, it was about eight years old and a tight fit now, but it was the dressiest item he owned.

  Lauren was even more jittery than he. Ever since Jarrod’s death she’d been having anxiety attacks, her heart pounding rapidly, feeling, she used to say, as if she was going to die or go crazy. She’d been hospitalized for a week after Jarrod died, and she’d been seeing a therapist since then. Richard didn’t think it had helped her much. She’d started drinking more. For Richard, Jarrod’s death had created the opposite reaction. It was a rare event now when he took so much as a sip of alcohol.

  They were running late by the time they left the house, on a cul-de-sac in the Pine Street neighborhood, and heavy traffic caused them to make slow progress on I-93 to Boston. Richard made a living driving a truck, and he had traveled this route hundreds of times since the day when Jarrod, who’d been three years old, had died on the way to the hospital. Richard thought about that day every time he passed the Somerville exit, where he had raced off the interstate to the fire station for help. When Lauren had yelled that Jarrod had stopped breathing, Richard had pulled over into the breakdown lane and given the boy CPR, holding him in his lap. That moment was still vivid in his memory, Lauren screaming and carrying on, the cars and big semi-rigs roaring by them on the interstate, Jarrod lifeless in his arms. He thought about it often, but he and Lauren had not talked about it for a long time. And today, as they drove past the Somerville exit on their way to Boston, they kept their silence, even though Richard figured Lauren was probably thinking about it, just as he was.

  Lauren had often said that she didn’t want any part of the lawsuit. She didn’t want to keep reliving the event. “Money won’t bring Jarrod back,” she would say. “I hate them, those people who put the stuff into the ground. Why can’t they lose a son or daughter? Taking their money is not going to hurt them.”

  “We’re not in it for the money,” Richard would say. “We’re in it to show that we’ve been harmed by what they did.”

  By the time they found a parking space and got up to Schlichtmann’s office, it was fifteen minutes after ten. The deposition had been scheduled for ten o’clock at the law offices of Hale and Dorr, but Schlichtmann seemed unconcerned about the time. He had them take their coats off and relax for a few minutes while he went over the ground rules of depositions again. “Listen carefully to the questions and don’t volunteer anything,” he told Richard and Lauren. “Answer only what they ask, and don’t say, ‘I don’t know’ all the time. It’ll make you look evasive. Think each question through carefully, because whatever you say, we’re stuck with it.”

  Richard wanted to know if he had to answer all their questions, even ones about issues unrelated to the case and Jarrod’s death. He was thinking about some troubles he’d had as a teenager, and about his relationship with Lauren.

  Schlichtmann knew all about Richard’s past. He knew, for example, that Richard had abused drugs fifteen years ago, when he was seventeen, and that Lauren had once sought medical treatment for a cut she’d gotten when Richard had pushed her in the heat of an argument. And Schlichtmann knew that Facher and Cheeseman were also aware of these incidents. As part of discovery, Schlichtmann had been obliged to produce the medical records of each family member. He suspected that Facher had chosen Richard as the first deponent precisely because of these episodes.

  “They can ask any question they want and you’ve got to answer,” Schlichtmann told Richard and Lauren. “By the time they’re done, they’ll know more about you than you know about yourself. Tell them the truth, because if you lie and they find out, it’ll be a lot worse when they get you on the witness stand.”

  Lauren waited at the office while Richard walked with Schlichtmann and Conway the three blocks to Hale and Dorr. By now, they were half an hour late. On the twenty-seventh floor, a secretary escorted them into a large, well-lit conference room, thickly carpeted, the walls paneled in wood. Picture windows framed a panoramic view of Boston’s North End and the harbor. To Richard, the room seemed crowded with lawyers. He counted eight of them, all wearing dark suits and sitting around a long rectangular table. Their conversation stopped as he entered the room, and he felt their gazes turn on him—cool, appraising stares. He tried to smile and began to say something—a simple greeting—but it emerged as a guttural sound and he ended by looking down and clearing his throat. He felt Conway behind him touch his arm and whisper, “Don’t worry, you’ll be fine.”

  Schlichtmann steered Richard to a chair near the middle of the table, and then sat beside him. Conway took an empty chair directly across from Richard. The court stenographer, a heavyset woman, sat at one corner of the table, her small machine mounted on a tripod in front of her.

  Facher presided over the gathering, sitting at the head of the table, with Neil Jacobs on his right and another young Hale and Dorr associate, unknown to Schlichtmann, next to Jacobs. On Facher’s left was Chees
eman, along with three of his colleagues from Foley, Hoag & Eliot. The two firms had agreed to work together as much as practicable throughout the discovery process. Many later depositions would be held in conference rooms at Cheeseman’s firm, but at this first deposition it was clear that Facher intended to run the show.

  “Let’s get started,” said Facher. He asked the stenographer to swear in the witness, and he began by asking a series of questions about Richard’s medical history, wasting no time in getting to the drug-abuse episode. Richard answered straightforwardly and Facher moved briskly on. “I take it the water began to taste funny to you from the moment you arrived in Woburn?” he asked Richard.

  “From when I first started going out with my wife,” replied Richard.

  “So you were aware when you moved to Woburn that its water didn’t taste so good?”

  “Yeah,” said Richard. “But a lot of places the water doesn’t taste so good.”

  “I agree with that,” said Facher.

  “We were drinking bottled water off and on.”

  “From the beginning you resorted to bottled water?”

  “Off and on. We split, half and half. Like we cooked with regular water and did other things. To make orange juice, we used the tap water, but to drink just straight water, I drank bottled water.”

  “Has any doctor ever told you that you had any dysfunction of your immune system?”

  “No,” said Richard, “but when my son died, they told us that was why he died. His immunity system was tore down to nothing.”

  Facher looked through the file of medical records in front of him. “There’s been some reference to salmonella as the cause of his death. Do you know anything about that?”

  The immediate cause of Jarrod’s death had indeed been attributed to salmonella, although his doctors had said that he would not have died from the bacterial infection if his immune system had not been suppressed by chemotherapy. “That’s what the autopsy read, something like that,” replied Richard. “I’m not sure. I’m not a doctor.”

  “What caused you to have an autopsy?”

  “Because he was doing good. He looked great. He only lived three months with leukemia and he looked fine.”

  “Did you have some personal talk with the doctor about this?” asked Facher.

  “More of a violent talk with him,” admitted Richard. “Because my son died like, like … nothing, all of a sudden, and they weren’t taking any tests.”

  “By violent, you mean you were angry?”

  “Yelling at him,” nodded Richard. “He reassured us the tests that they didn’t do are going to be done from now on, which is small compensation for my son’s life.”

  “Let me see if I understand,” said Facher. “Your son seemed to be doing all right, was in remission, you were optimistic about his future, and suddenly he became ill and died?”

  “They said that was expected. Anybody with a disease like leukemia could die any minute.”

  “But you were angry and upset and maybe even accusatory when—”

  “Anybody would be,” interrupted Richard, sounding a little angry just now. “My son just died.”

  “I understand that,” said Facher softly. “I was just trying to re-create the event.”

  “One day he’s fine, he’s playing, next day he’s dead. That was the gist of the whole thing. You can tell when your child isn’t feeling well. You try to explain it to them on the phone and they say: ‘Has he got a temperature?’ You say, no. ‘He’s all right, then,’ they say. ‘Don’t worry. Bring him into the clinic Monday morning.’ ” Richard paused. “He died Monday morning.”

  “He was in the clinic when he died?” asked Facher.

  “No. He was in the car on the way down I-93.”

  Facher had not known this. “He died in the car on the way to the clinic?” Facher asked.

  “He died on I-93, up by the Somerville exit. We cut off and went to the fire station—” Richard was going to say more but he could not. He was on the verge of tears. He picked up a glass of water and drank deeply.

  For a moment no one in the room moved. The only sound came from Richard, whose breath was raspy and labored. Conway, who felt very moved by Richard’s anguish, put a hand up to his eyes. The motion must have caught Facher’s attention, for Conway saw the old lawyer glance sourly at him.

  Finally Facher said to Richard, “You had called, wanting to bring him in, and they said—”

  “Called Sunday, Sunday morning, and they said bring him in Monday.”

  Facher asked a few more questions about the boy’s treatment and then decided that he’d learned enough. He turned the deposition over to the lawyers for W. R. Grace. One of Cheeseman’s partners asked several quick questions, taking only a minute or so, and then Facher said, “I have nothing further at this time, Mr. Schlichtmann.” He looked at Richard. “Thank you very much, sir.”

  Richard pushed his chair back and stood. Schlichtmann stood, too, and gently patted Richard on his back. The defense lawyers remained seated and the room was very quiet.

  Schlichtmann put on his coat and walked with Richard to the door. They had reached the door when Schlichtmann heard Facher speak.

  “Good-bye and good luck,” said Facher.

  To Schlichtmann’s ears, these words came out sounding contemptuous, almost like a sneer, as if Facher had said, “Good-bye and good riddance.” Schlichtmann turned quickly on his heel and glared at Facher. “You’re the one who’s going to need the luck,” he said.

  Facher had not meant to sound contemptuous, but he had been greatly disturbed by Richard Aufiero’s testimony. This first deposition had not gone at all the way he had planned. “Some cases a lawyer can’t lose,” Facher often told his Harvard students. “Some, maybe, he can’t win. You play the hand you’re dealt.”

  After Aufiero’s deposition, Facher believed that this case was one he probably could not win, not in front of a jury. He could imagine Aufiero on the witness stand with Schlichtmann slowly drawing out the details of Jarrod’s death. The entire courtroom, maybe even the judge, would be in tears by the time Schlichtmann was done. And it wasn’t just Aufiero. There were seven other families, each with its own tragic story to tell.

  At that moment, Facher calculated the odds against him at about ten to one. He realized then that he might have to settle this case before trial, and that thought was distasteful to him. He was proud of saying that he had never yet paid more than a million dollars to settle a case, but in this instance, he suspected that settlement would not come so cheaply.

  He told himself that he had to find a way to keep the plaintiffs off the witness stand. He did not know how he could do that, short of settlement. But it was early yet. Discovery had just begun. A lot would happen between now and the time a jury was impaneled.

  2

  The depositions of the thirteen Woburn adults took up the entire month of January. Schlichtmann attended every one of them, but he could not afford to take much satisfaction in the drama of his clients’ stories. His thoughts were occupied with the job of building a convincing case against W. R. Grace and Beatrice Foods. To do that, he had to discover a great deal. Some human hands were responsible for the contamination of the Aberjona aquifer. Schlichtmann had to find out whose hands, and how much they had dumped, and on whose authority.

  He began his own series of depositions, which were held in his office around the $12,000 bird’s-eye-maple table. He turned his attention first to Grace. The company had admitted to the EPA that its employees had dug a pit behind the plant and placed several drums into it. The company had described this material as “generally innocuous,” and had stated that no actual drums had been buried. But Schlichtmann knew that this admission had been incomplete at best, and perhaps even a deliberate lie. The EPA, after all, had subsequently unearthed from the plant’s backyard six corroded drums, lying end to end, which had once contained TCE and other toxic solvents.

  Schlichtmann wanted to bring before a jury the
employees who had committed those acts and the supervisors who had overseen them. He asked Cheeseman to produce for deposition the Woburn plant’s “most knowledgable person” concerning chemical use and waste-disposal practices. Cheeseman arrived at the appointed time, a Wednesday morning in the first week of March, with a man named Paul Shalline, head of safety and maintenance at the Woburn plant.

  Schlichtmann learned from Shalline that he had worked at Grace for thirty years. He had only a trade school education but had risen, briefly, to the position of plant superintendent at Woburn. Then he’d been demoted. He was sixty years old and unprepossessing in manner and appearance. He replied to Schlichtmann’s questions in a slow and deliberate manner, often giving vague answers or claiming not to remember. He said he had been appointed “pollution control officer” at the Woburn plant, but when Schlichtmann asked when this appointment had occurred, Shalline replied, “I don’t remember.”

  “What were your duties?” asked Schlichtmann.

  “I would oversee disposal and discharge to the drains, be sure we weren’t polluting the air, and anything related to that field.”

  “Do you know if chemicals were disposed in back of the building, on the land?”

  “I don’t know that,” replied Shalline.

  This puzzled Schlichtmann. Cheeseman had admitted in his response to interrogatories that “small amounts” of chemical waste had been poured “from time to time” on the ground behind the plant. Cheeseman had produced Shalline as the person most knowledgable about waste disposal, but now Shalline denied knowing anything.

  Schlichtmann tried again, quoting almost verbatim from Cheeseman’s reply to the interrogatories. “From time to time, were waste materials disposed of by spilling them on the ground in the back of the plant?”

  “If you know,” interrupted Cheeseman.

  “I don’t know,” said Shalline.