A Civil Action

by Jonathan Harr

  Sharon Turner admitted that was true.

  The investigator said he knew where Bernard was living, and he also knew that Bernard owned some real estate and could afford to pay child support. He offered to have Bernard arrested when he appeared in Massachusetts.

  Sharon Turner declined this offer, but the investigator persisted. Again Sharon declined, more firmly this time, and finally the investigator thanked her and left his telephone number in the event she reconsidered.

  Schlichtmann learned about this incident from Bernard Turner himself, who was understandably incensed and vowed he would have nothing more to do with this case. To Schlichtmann, that made little difference. Turner’s testimony had been stillborn from the moment of its arrival, and Schlichtmann couldn’t find it within himself to muster much sympathy for Dr. Turner.

  Schlichtmann had meanwhile found several other, more credible, witnesses who had lived near the tannery. One man, the owner of a small electrical-repair business, told Schlichtmann that he had often played on the fifteen acres as a boy. He and his friends used to call one area near the tannery Death Valley because of the white, powdery dust coming from the tannery that had coated the hillside and killed everything in its path. This witness recalled the time he’d found an old railroad flare on the fifteen acres. He’d lit the flare and stuck it into a block of Styrofoam. The Styrofoam began to burn and he’d thrown the block into a small pond. The pond had erupted in flames, a burning pool that gave off a heavy black smoke. The conflagration had brought the neighbors running, and then the Woburn fire department, led by the chief.

  Schlichtmann heard from the fire chief of his mortification upon seeing hundreds of leaking drums strewn all about the property. The day after the fire, said the chief, he had called Riley to complain about the condition of the property, and he had also urged the health department to inspect the area. A year later another small fire brought the chief back to the Beatrice land. “Nothing had changed,” the chief said.

  It seemed that everyone but Riley recognized the fifteen acres as a toxic waste dump. Riley must have known about the condition of the property. Perhaps, thought Schlichtmann, the tanner really had been running an unauthorized waste dump. Perhaps he had charged his neighbor, Whitney Barrel, a fee for the use of the land. Jack Whitney had been in the business of refurbishing used 55-gallon drums, and the back of his property abutted the fifteen acres.

  Schlichtmann began looking into Whitney Barrel. The more he looked, the more apparent it became that Whitney had run a dirty business in the dirtiest possible way. Schlichtmann learned from a man who had worked at the barrel company in the late 1960s that Whitney would empty the residue of 55-gallon drums that had contained pesticides directly into the sewer line, which ran untreated to Boston Harbor. This former employee also said that Whitney had instructed him on a few occasions—“maybe half a dozen”—to empty the residue of drums containing an unidentified “poison” along the dirt road that led onto the fifteen acres. Furthermore, this worker recalled using TCE to wipe clean the heads of 55-gallon drums before he painted them.

  All of this suggested that Whitney had played an important role in the contamination of the fifteen acres. But Schlichtmann found it hard to believe that a man of Riley’s temperament would allow anyone to use his property without getting paid for the privilege. Schlichtmann would have liked to question Whitney about the nature of his business relationship with Riley—if indeed there had been one—but Jack Whitney’s testimony was forever out of reach. He had died a year ago, and the barrel company had gone out of business.

  This information changed the complexion of the case. Even so, in the eyes of the law, Beatrice Foods still bore responsibility for what had happened on its land, for keeping an “open and notorious” toxic waste dump. Legally, it did not matter who had contaminated the land, but Schlichtmann knew very well that it would matter to a jury. He still had a case, but it was a far weaker one if he could not prove that Riley had done the dumping himself.

  He had not given up on that yet. His team of engineers and geologists had shifted their attention from the Grace plant to Beatrice’s fifteen acres. They were taking soil samples, mapping the location of each barrel, and probing into the piles of debris. Schlichtmann went out to visit them when he had time. They had found several small clumps of a greasy material that contained TCE. Lab analyses revealed that this material also contained high levels of hexavalent chromium, which the tannery used in curing leather. The stuff even smelled like leather. And furthermore, it was composed largely of fats and oils. Schlichtmann believed that these clumps had to be tannery sludge, offal, and pieces of flesh that came from scraping the raw cow hides clean prior to tanning.

  If this material was indeed tannery waste, then how had it become contaminated with TCE, which Riley claimed he had never used? It was, of course, possible that someone else—Whitney, perhaps—had dumped TCE on top of it. That was possible, but to Schlichtmann the most logical explanation was that it had all come from the same place. And if that was true, it meant that Riley had lied about TCE.

  There was no obvious way for Schlichtmann to prove that. He hadn’t been able to find any tannery witnesses who could testify to using TCE. And Riley had testified under oath that there were no records of the chemicals the tannery had used before 1979. Those records had been routinely destroyed, if one could believe Riley’s sworn testimony. The paper trail did not seem to exist.

  *This name and the names of the other Turner family members are pseudonyms.

  The Woodshed

  1

  Discovery had transformed the offices of Schlichtmann, Conway & Crowley. Crowley’s desk, books, chairs, and framed diploma had been moved into Conway’s office, now so crammed with furniture that Conway had to shuffle sideways, crablike, to get to his own desk. Crowley’s office had become what Schlichtmann called the War Room. Carpenters had built shelves along the length of one wall to hold the bound volumes of deposition transcripts. Eight gray metal filing cabinets occupied another wall. Overhead, jammed between the stout oak beams of the ceiling, were cardboard tubes containing dozens of rolled maps and charts from the EPA and the U.S. Geological Survey. Schlichtmann had aerial photographs of east Woburn, some dating back to the 1950s and 1960s, enlarged and pinned like the targets of a bombing mission on another wall. Beneath the windows that overlooked India Street, three computer workstations held the medical records for each of the thirty-three plaintiffs, along with hundreds of other documents in the case. Conway had recruited two new associates, both recent law school graduates, and a paralegal. From a temporary personnel agency, Kathy Boyer had hired a receptionist, three secretaries, a messenger, and a part-time bookkeeper. The office had once worked efficiently with nine people. Now, the staff was doubled in size. Some days, Conway felt as if he’d walked into the wrong office.

  Schlichtmann arrived at work at six-thirty every morning and usually did not leave for home until around midnight. If he was not in Woburn interviewing witnesses or checking up on his team of geologists, he was at the conference room table, amid piles of medical texts, documents from Grace and Beatrice, government reports, and depositions. From these protruded tattered strips of yellow paper, like entrails, marking vital information. They bore Schlichtmann’s nearly illegible scrawl. He, and he alone, seemed able to recall the precise location, volume and page number, of every piece of arcana related to the case. When, on occasion, a particular fact eluded him, he’d sit motionless, peering into space, a picture of industrious cogitation, until he summoned forth its location.

  He held staff meetings every morning at eight o’clock for all office personnel. Attendance was mandatory, tardiness was punished by his wrath. He wanted the office to operate, he explained once, with the precision of a Swiss watch. Every pleading, every affidavit, every letter to a client or expert witness had to be flawless. A mistake, he used to tell them, even the most innocent one, could result in disaster—a motion lost, a witness unprepared, an opportunity over
looked.

  The case had become Schlichtmann’s entire universe. He no longer took the time even for common courtesies. Encountering someone he had not seen in days or weeks, he’d start, as it were, in mid-sentence, describing the testimony of a new witness or the import of a newly uncovered document. More than once the secretaries had seen him come rushing out of the office shower with only a towel wrapped around him, shouting in excitement about some new revelation.

  Kathy Boyer had hired a tall, willowy young woman of twenty-two, fresh from college, to answer the telephones. The woman, Patti D’Addieco, was alert and capable, and Schlichtmann soon put her in charge of collecting the complete medical records of all the Woburn family members. This was a formidable task. It involved thirty-three individuals, and Schlichtmann insisted on absolute thoroughness. He wanted her to find the report of every visit to a doctor, of every scraped knee, sore throat, and common cold. For those children with leukemia, the records consisted of thousands of pages—lab tests, chemotherapy protocols, the notes of nurses, doctors, social workers, and psychiatrists. And for the adults, some records dated back to the 1930s.

  Patti D’Addieco held Schlichtmann in awe. In truth, she later confided, she had a crush on him. She tried her best to please him, but she ran into difficulty finding many of the oldest records. One morning, as she hurried into work, she encountered Schlichtmann by the reception desk.

  “You got all the medical records yet?” he asked. “I can’t get complete records for Anne Anderson because the doctor—”

  “I don’t care,” interrupted Schlichtmann. “Just get them.”

  “Jan, I can’t. The doctor’s dead.”

  “I don’t care!” shouted Schlichtmann, loud enough for everyone in the office to hear. “Dig the man out of his fucking grave! Go to his widow’s house and get them out of the fucking basement! Do you think Facher cares why you can’t get the medical records?”

  Patti D’Addieco turned abruptly, tears in her eyes, and fled to the library. She heard Schlichtmann coming and she quickly picked up the telephone.

  “Patti, put down the phone,” he said.

  “I’m upset now. I don’t want to talk.”

  “Why are you upset?”

  “I’ve been working really hard.” She wiped tears from her eyes. “I just can’t talk now.”

  “Okay,” said Schlichtmann gently. “I’ll talk, you listen.” He spoke softly; he said he knew she’d been working hard and he appreciated her efforts; she was a valued employee. He continued in this vein for several minutes, but never actually apologized. Patti felt the tug of a gentle seduction and, against her will, she began to smile. Then Schlichtmann said, “Okay, now go get the medical records.”

  Some months later Patti D’Addieco got her revenge. For Schlichtmann’s birthday, she wrote a song—the “Schlichtmann Rap”—and sang it to him at the office party.

  Now let me tell you a story ’bout a man named Jan

  Gonna rock you into justice like no other mother can

  You can see it in his smile as he’s walkin’ into trial

  His hands’ll be washed and his clothes’ll have style

  Now I want medical records and I want ’em done right

  I don’t care if you gotta stay here all night

  I want ’em perfect and I want ’em neat

  And if you fuck ’em up, you be walking on the street.

  What, no juice? I made it perfectly clear

  That there’s always gotta be some juice in here

  And it’s gotta be natural and it’s gotta cost more

  Than any other juice in any other store

  Now before we end this Schlichtmann rap

  Lemme tell ya one more thing ’bout this Schlichtmann chap

  He’s got a quick tongue and he’s got a keen wit

  And the best thing about him is he can take this shit.

  Collecting all of the medical records had been the idea of a Chicago doctor, a specialist in occupational and environmental medicine named Shirley Conibear. Schlichtmann had gone to Chicago to recruit her almost a year ago. He had drawn up a list of doctors—cancer specialists, pathologists, immunologists, and toxicologists—who had testified in other cases involving toxic substances, such as Agent Orange and asbestos. Some of those doctors had told him they were too busy to get involved in Woburn. Some had rejected him outright, saying they didn’t believe Schlichtmann had a case. To those who had seemed interested, Schlichtmann sent a thick file of material along with a check for twenty-five hundred dollars, his standard payment for his first consultation with an expert witness.

  Dr. Shirley Conibear had published many articles about the health problems of industrial workers exposed to toxic chemicals. The Woburn case, particularly Colvin’s T cell tests and the Harvard Health study, had intrigued her. She and Schlichtmann had spent several hours in her Chicago office discussing the medical aspects of the case. She had suggested then that Schlichtmann start collecting the medical records. If these people had indeed been injured by exposure to TCE, Conibear had said, a pattern of health problems should emerge in the records. Furthermore, Conibear could use the records to compare the state of the families’ health before October 1964, the date Well G had gone on line, to the record of their complaints after they’d been exposed to the water.

  For a handsome fee, Conibear had agreed to come to Boston and perform thorough physical examinations of all twenty-eight living family members. Schlichtmann had his staff prepare for Conibear’s arrival by leasing a suite of rooms in a doctor’s office building near the Boston University Medical Center and furnishing it with rented equipment. He also arranged accommodations for a week at the Ritz-Carlton for Conibear and her staff, which included two other physicians and a lab technician.

  Conibear’s first round of reports, more than nine hundred pages long, cost Schlichtmann $88,729. He felt they were worth every penny. He read that in 1964, the year Well G came on line, Richard Toomey had suffered an episode of gastric and abdominal pain so severe that he’d gone to see a doctor. By 1971, when the wells were operating full-time, Toomey’s stomach problems had become chronic. He had also complained repeatedly of sore throats, headaches, nausea, severe sweats, and various rashes. Toomey’s daughter, Mary Eileen, born in 1965, had suffered repeated rashes on her face and legs, sinus problems, vomiting, chills, and abdominal pains. To Schlichtmann, the record of her complaints looked remarkably similar to her father’s.

  The records of Anne Anderson told of a history of chronic abdominal pain, intestinal cramps, irritable colon, nausea, vomiting, and fatigue. Anne’s oldest son, Chuck: rashes during the first three years of his life and upper respiratory tract infections. Kathryn Gamache: sore throats, epigastric pain, nausea, abdominal cramps, light-headedness, vertigo. Kathryn’s daughter, Amy: rashes on the head, abdomen, and legs, nausea, diarrhea, irritable colon. Diane Aufiero: sore throats, nausea, light-headedness, skin eruptions. And each of the five children who had died of leukemia had experienced rashes, sore throats, and chronic earaches before their diagnoses.

  One after another, the case histories of the plaintiffs looked astonishingly alike. Conibear told Schlichtmann that the pattern of chronic solvent poisoning was unmistakable. She had conducted a computer search of scientific journals and found more than a hundred articles on the toxic effects of TCE. Most of those articles dealt with workers who’d been exposed to the solvent, and they cited the same constellation of symptoms—dizziness, nausea, vomiting, fatigue, skin rashes. Among the Woburn families, any one person might have the misfortune to suffer repeated rashes, chronic abdominal pains and nausea, and sinus and upper-respiratory-tract infections. But for a group of families, related to each other only by geography and the water they used, to suffer so many common ailments and to have a leukemic child in the family—to Schlichtmann, that could not be coincidence.

  Conibear had also made another important finding—nine of the fourteen Woburn adults showed signs of cardiac arrhythmia, or irregu
lar heartbeats. This, too, seemed to fit the pattern of exposure to TCE. The scientific literature contained a dozen case studies documenting what one study called the solvent’s “significant effects on the cardiovascular system.” Autopsies of workers overcome by TCE fumes confirmed that several had died of “ventricular fibrillation”—a fatal arrhythmia—and “primary cardiac failure.”

  Conibear had given the Woburn adults standard twelve-lead electrocardiograms, but she told Schlichtmann that there were a battery of more extensive tests that could be administered by a trained heart specialist. Schlichtmann decided to send the families to a first-rate cardiologist. He found one in Boston, not far from his own office. This cardiologist, Saul Cohen, taught at the Boston University School of Medicine and also maintained a private practice. Schlichtmann called him up and explained that he wanted thorough cardiac workups, examinations of the sort the nation’s president would receive.

  Cohen was familiar with TCE and its pathological effects on the heart. But he was openly skeptical about the danger of such low-level exposures, especially in drinking water. All of the case studies he had read involved workers who had inhaled TCE vapor in much higher concentrations than the levels found in the Woburn water. “Are you going to want me to testify?” Cohen asked Schlichtmann.

  Schlichtmann said yes, he hoped Cohen would testify.

  “I’ll testify to what I find, but I may not find anything,” warned Cohen.

  Schlichtmann didn’t mention the fact that Conibear had already found nine cases of arrhythmia. It would be best, he thought, to have Cohen discover the arrhythmias on his own.

  It took Cohen six weeks to complete his examinations of all the Woburn adults and the three oldest teenage children. He began with routine physicals followed by blood tests, resting electrocardiograms, treadmill cardiograms, and twenty-four-hour-long ambulatory heart recordings by Holter monitor. When he finished, he delivered to Schlichtmann’s office a summary of his findings, along with a three-foot stack of reports that contained hundreds of pages of rhythm strips from the electrocardiograms. And, of course, a bill for services rendered: $55,762.