“There’s no plan to impose any discipline on you for what you’ve told us, or for having talked with the U.S. attorney,” Cheeseman told Love. “It’s your right to find out what happened around here that might affect the environment.” But Cheeseman made it clear that Love could not speak with Schlichtmann again, or the company would have no choice but to fire him. And then Cheeseman said, “Thank you for coming in and being honest with us.”
Love felt an enormous sense of relief and a genuine gratitude to Cheeseman. “My pleasure,” he said.
Schlichtmann drove the shiny black Porsche out to the Grace plant one week in July. He had applied for a court order to inspect the land. He had cracked the Grace case, but he still had to prove that the TCE dumped by Barbas and the other workers had actually gotten to the city wells, half a mile away. He had hired a team of geologists and engineers to inspect the Grace land, take soil samples, and drill monitoring wells to determine the direction of the groundwater flow.
Cheeseman was at the plant, too, with his own team of experts to watch over Schlichtmann’s experts. The work went on for four days. It started to rain one afternoon, fat drops splashing on the asphalt parking lot, and everyone took cover inside the plant. Cheeseman ran out to raise the top of his Triumph sports car. He saw Schlichtmann’s Porsche, its windows down, the sun roof opened. For a moment, he considered rolling up the windows and closing the sun roof, but he decided against it. The rain came down in sheets, a tropical cloudburst. Later, when Schlichtmann walked out to his car, Cheeseman watched him open the door. Water trickled out of the Porsche and Schlichtmann swore. Cheeseman laughed heartily, loud enough for Schlichtmann to hear.
6
The first deadline set by Judge Skinner for the completion of discovery had come and gone. The judge himself had extended the deadline once, after allowing Unifirst into the case, and then in July he granted another six-month extension, until the end of January, at the request of all parties.
Schlichtmann needed this extra time. He had a lot to do. The case against Grace had occupied him throughout the spring and into the summer, and he had done almost no work on Beatrice. He had taken only one deposition, that of John J. Riley, manager of the Beatrice tannery, and it had not gone well. The tanner had answered his questions with open contempt. Schlichtmann, patient at first, soon began responding in kind. An hour into the deposition, Neil Jacobs, sent along by Facher to represent Riley, felt compelled to interrupt Schlichtmann and say, “Hold on! Hold on a minute! There really isn’t any reason to make this unpleasant or to be rude.”
Schlichtmann ignored Jacobs. He asked Riley again to describe just how he had used a mixture of silicone and tetrachloroethylene to waterproof leather for the U.S. Army. “In what contraption was it used?” Schlichtmann asked.
Riley looked down at the glass of water in front of him. He had a massive, bejowled face and a darkly florid complexion with blue eyes that looked small, almost porcine. He picked up the water glass, holding it between thick sausage-like fingers, and then, looking directly at Schlichtmann, he emptied the glass onto the bird’s-eye-maple conference table.
Schlichtmann stared at the pool of water on his $12,000 table, at the water dripping onto his carpet. “Let the record show that the witness has emptied a glass of water on the conference table.”
“Just a few drops,” said Neil Jacobs, attempting to minimize the act in the pages of the record.
“What do you intend to indicate by pouring the water on my conference table, Mr. Riley?” asked Schlichtmann.
“This is how the silicone was put on the leather,” replied Riley.
“Poured right on like you poured this glass of water on my table?”
“A pump was pumping it,” replied Riley.
“Some of the mixture would spill off the leather, like it spilled on my table, wouldn’t it?”
“No.”
Perc had been found in large amounts in the soil on the fifteen-acre parcel of wooded, overgrown land owned by Beatrice. But when Schlichtmann asked Riley how much perc he had used over the years, Riley said, “Very little.”
“Do you know how many drums you purchased?” asked Schlichtmann.
“I couldn’t answer you specifically.”
“Do you have any idea?”
“Would have been very small.”
“How much leather did you make for the government?”
“I don’t remember.”
And so it went for the entire day. Riley denied, repeatedly and emphatically, that the tannery had used TCE. “Never,” said the tanner, shaking his massive head, “never.” When Schlichtmann asked Riley if he kept records—purchase orders, invoices, formulas, records of any type—concerning the chemicals used by the tannery, Riley said that none existed.
“The records were destroyed?” asked Schlichtmann.
“We don’t have the space to keep records for very long.”
“How far back do the records go?”
“Three years,” said Riley.
Riley’s three-year-old records were all but useless to Schlichtmann. The city wells had been closed six years ago. “Is it company policy to destroy records after three years?” he asked the tanner.
“Yes.”
“How long has that been company policy?”
“Forever,” said Riley.
Schlichtmann didn’t believe any of this. He pressed Riley on it, but the tanner stuck to his story, admitting only that personnel files were kept longer than three years. He angrily denied dumping tannery waste, toxic chemicals, or waste of any sort on the fifteen acres that bordered the Aberjona River. That land, owned by the tannery since the early 1950s, was used only for the tannery’s production well, insisted Riley. But it was also strewn with dozens of rusting 55-gallon drums. Schlichtmann had walked through there. He’d seen the drums and smelled the characteristic sickly-sweet odor of chlorinated solvents rising from patches of bare, dark earth among the oak and maple trees. The land was so grossly contaminated with TCE and other solvents that the EPA had ordered Riley to erect a chain-link fence around it for the sake of public safety.
But when Schlichtmann asked Riley if he’d ever seen drums or other debris on that land, the tanner said, “No, sir.”
Had Riley ever seen areas where toxic waste had killed the surrounding vegetation?
“No, sir.”
How would Riley describe the land?
“Just plain wildlife, that’s all.”
“So, as far as you’re concerned, Mr. Riley, up until today, that land has been essentially in a wild state and has not been used for waste disposal?”
“Yes,” replied the tanner.
Schlichtmann felt certain that Riley had dumped tannery waste and drums containing perc and TCE on the fifteen acres, just as the Grace employees had dumped solvents behind their plant. He felt certain that Riley had records of chemicals used by the tannery. But he had no proof of that. This deposition reminded him of the first time he’d deposed Barbas and Shalline. He’d gotten nothing from them either, but he had persisted and then he’d gotten lucky. He needed the same sort of luck with Beatrice. He needed to find another Al Love.
• • •
Schlichtmann put in a call to a private investigator, a former police detective he had once hired to locate a vanished witness in a malpractice case. He asked the investigator to go out to Woburn and find former tannery employees.
The investigator quickly located an ailing but voluble sixty-six-year-old man who had worked at the tannery for thirty-eight years, his entire adult life. This worker had undergone four operations for skin cancer and had a degenerative muscle disease, which he believed had been caused by the tanning chemicals. He did not wish Riley well, but he could not recall the tannery’s ever using TCE or tannery workers dumping waste on the fifteen acres. He did, however, know plenty of former tannery employees. “Jack Knowlty, he worked in the tan room, but he died two years ago of stomach cancer, and he was only in his forties. Maurice O’Conno
r, color room, he died of cancer, too, and he was a young guy. Nick Murray and Jim Feeney, they both had heart attacks. Frank Valente worked in the wringing room, he died of lung cancer.”
This sad litany led Schlichtmann to conclude that working at the Beatrice tannery could cost a man his life. The old worker did name one colleague he believed was still alive, just barely. “Joe Palino, he was a color mixer, he worked with the chemist. He’s got lung cancer, too.”
Schlichtmann sent his investigator to visit Joe Palino, who, as it happened, had just returned from a long hospital stay. Palino sat on his living-room sofa, a pale green tube attached to his nose, a bottle of oxygen on a small wheeled cart beside him. He said he did not remember seeing anyone at the tannery dispose of drums or tannery waste on the fifteen acres. But he did remember trichloroethylene. He thought perhaps the tannery had used TCE for cleaning embossing plates.
To Schlichtmann, this sounded like the break he was hoping for. Fearing that Palino might die before trial, he arranged for a bedside deposition at Palino’s home. But at the deposition, Palino flatly denied that the tannery had used TCE, and he accused Schlichtmann’s investigator of falsely representing himself as someone “for Riley.”
One after another, interviews with a dozen former tannery employees led Schlichtmann nowhere. None could recall using TCE, or dumping tannery waste and 55-gallon drums on the fifteen acres.
Schlichtmann began searching the files of local and state agencies that might have had dealings with the tannery. At the state public health department, he finally got his first true break. He found a report—he called it “the killer document”—that proved Riley had not told the truth at his deposition. It was two pages long, dated July 12, 1956, the typewritten notes of a sanitary engineer named A. C. Bolde who had gone to the tannery in response to repeated complaints by east Woburn residents about “terrible” and “foul” odors. According to Bolde’s notes, he and Riley had walked up the dirt road leading onto the fifteen acres. “It was observed,” wrote Bolde, “that large quantities of old sludge containing hair and some fleshings were deposited between the Access Road and the Aberjona River for a length of 500 to 600 feet. Some of those deposits were within a few inches of the water.…” Bolde told Riley that he’d have to remove the tannery waste. Riley objected, stating that he owned the land and could therefore use it as he wished. “[I] pointed out to him,” wrote Bolde, “that regardless of ownership, the placing of such materials which may result in polluting the river is in violation of existing state laws.” Riley had finally agreed (“reluctantly,” noted Bolde) to remove the tannery waste.
This document was thirty years old and it dealt only with tannery waste, which might or might not have contained TCE. But even so, Schlichtmann thought it had great value. Riley had sworn at his deposition that he had never dumped anything on the fifteen acres. Riley had lied then, and Schlichtmann—who didn’t need much convincing—believed that Riley was also lying about using TCE.
The report provided Schlichtmann with another lead. He began looking for the residents who had complained to the health department about the tannery odor. Some of them, he hoped, might have seen Riley’s trucks dumping waste and drums of chemicals on the fifteen acres.
Schlichtmann’s private investigator began knocking on doors. He found an elderly woman named Ruth Turner* who had lived all her life in a shabby old frame house on Salem Street, less than a hundred yards from the tannery. The house, said Ruth Turner, had been in her family for more than a century. She recalled that when she was a young girl the Aberjona River had run clear and was full of fish. To the west of the house, where the tannery was now located, there had been an apple orchard, to the east a cornfield. But the character of that land had started to change in the 1950s. Her husband, Paul, would often walk down behind the house, in the forest by the Aberjona River, on the land owned by Riley. He would return from his walks and tell her about the barrels and piles of debris he’d seen there, and how sludge waste from the tannery would flow down the hill and onto the land. In the years before Paul’s death in 1981, recalled Ruth, he often awoke in the middle of the night. On several occasions, he’d told Ruth about hearing the sounds of trucks at two or three o’clock in the morning. He had said that he could see the headlights of flatbed trucks full of barrels driving up the access dirt road onto the fifteen acres. “They’re dumping stuff in the middle of the night,” Ruth recalled his saying.
Ruth Turner informed Schlichtmann that her eldest son, Bernard, now a medical doctor in the Chicago area, knew a great deal about what had happened on the fifteen acres. He had often complained to the health authorities about the tannery.
Schlichtmann located Dr. Bernard Turner in Chicago. Over the phone, the doctor told Schlichtmann that he had a vivid memory of the fifteen acres in the 1950s and 1960s. “I’d go down there four or five times a week. It was a play zone. In the early days, it was quite wooded, farmland.” Dr. Turner said that later, when he was older, he had complained to the board of health about the tannery and the condition of the land at least twenty times. His father and grandfather had both complained, too. “The odor would be unbelievable,” Turner told Schlichtmann. “There were massive quantities of barrels, literally hundreds. There were drums corroding, leaking into the ground. The barrels were rotting because of the corrosive compounds. What interested me as a kid was the red hazard label on the barrels. They were solvents—xylene, toluene, butyl alcohol, trichloroethylene. One never forgets the smell of butyl alcohol or of trichloroethylene.”
Schlichtmann could barely contain his excitement. He’d found a medical doctor who could testify that TCE had been dumped on the fifteen acres since the 1950s. He asked Turner how, as a boy, he’d been able to remember all those complicated names. The doctor explained that he’d been interested in chemistry. His grandfather had given him the Handbook of Chemistry and Physics, published by the Chemical Rubber Publishing Company, and he used to look up the names. “In fact, I’ve still got the book,” he told Schlichtmann.
But twenty minutes into the conversation Schlichtmann began to worry. The doctor said he’d gotten his medical degree from a school in the Dominican Republic. Over the phone, Schlichtmann could detect a pompous, self-important manner in Turner’s voice. Then Dr. Turner began offering a résumé that made Schlichtmann’s heart sink. He informed Schlichtmann that he was currently a consultant to the government of Kuwait on environmental problems. He said he was also a consultant to a clinic in electromyography, and to a coal-oil gasification project, and to an investment firm that was building a blood fractionation plant in Costa Rica. As if all this were not enough, Turner went on to say that he was about to enter a consulting arrangement with the Environmental Protection Agency. In fact, he told Schlichtmann, he was currently under consideration by the EPA for the post of assistant director of Region Five.
Schlichtmann listened to this fantastic story with growing dismay. In a matter of minutes, the perfect witness had turned into a trial lawyer’s nightmare. Yet Turner’s childhood recollections did have the ring of truth to Schlichtmann. He believed that Turner really had seen those drums, even if he was not about to become an assistant director at the EPA.
Schlichtmann knew he could not risk putting Turner on the witness stand. He could imagine the delight Facher would take in cross-examining this doctor. But he listed Turner as a witness anyway, one who would testify about the presence and contents, including TCE, of hundreds of drums on the Beatrice property from the 1950s to the 1970s. If nothing else, Schlichtmann figured, this would probably give Facher cause for alarm.
The appearance of Dr. Bernard Turner’s name on the witness list, and the description of Turner’s testimony, did worry Facher. He had already made plans to fly out to Chicago to meet with Beatrice’s assistant corporate counsel, and he decided that he would depose Turner while he was there.
Schlichtmann did not attend this deposition. He was too busy to go to Chicago. But he did read the transcript of Facher�
�s interrogation of the doctor.
MR. FACHER: You were eleven years old when you saw these barrels?
DR. TURNER: That’s correct. I saw the red hazard labels.
Q: What labels did you see?
A: I saw xylene, toluene, butanol. I saw trichloroethylene—
Q: This is as an eleven-year-old kid?
A: You are raising a little heat with me.
Q: As an eleven-year-old kid, you remember seeing labels with these long chemical names on them? More than thirty years ago?
A: That’s correct.
Q: You’re not taking names that you know today and putting them on sights and sounds that you saw thirty years ago?
A: I remember it today. Do you forget what your mother looks like?
Q: Do I forget what my mother looks like? My mother doesn’t look like a chemical drum with a label on it.
Stenographic transcripts do not record the demeanors of the participants or the tones of their voices, but Schlichtmann did not need such descriptions to imagine the sound of angry voices and shouting.
Near the end of the deposition, Facher had asked the doctor if he was married, and Turner had said he was divorced.
Q: What’s your former wife’s name?
A: Sharon Turner.
Q: Do you know where she’s located?
A: No.
Q: She remarried?
A: I don’t think so.
To Schlichtmann, these last few questions seemed aimless, just the routine toil of a lawyer attempting to dig up whatever information he could.
Four days after Turner’s deposition, a private investigator employed by Facher’s firm located Turner’s ex-wife at her home in Stark, New Hampshire, a tiny hamlet near the Canadian border. Over the phone, the investigator told Sharon Turner that he was calling about a case in which her ex-husband was to be a witness. He said that he’d come across a three-year-old capias for Bernard’s arrest, signed by Sharon. “You took Bernard to court for not paying child support?” the investigator asked.
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