A Civil Action
Page 27
Cheeseman was also standing. “Your Honor, we do expect to challenge the admissibility of that study.”
But by then the judge had risen from his chair, too. It was getting late and he had already spent a long day presiding over another case. “I’m not inviting a pretrial conference,” he said to Cheeseman. “I just wanted to find out if I was going to have to worry about that particular issue, and I wanted to get prepared to worry about it intelligently.”
2
Schlichtmann felt exhausted as he left the courthouse that afternoon. He had expected Cheeseman and Jacobs to challenge the Harvard study, and it appeared to him that Judge Skinner was already disposed to rule in their favor. Researching and writing a brief that might change the judge’s mind would take him dozens of hours. Imagining the work, he felt as if he’d already been up all night doing it. He had a hundred other things to do—fieldwork in Woburn to oversee, experts to prepare, interrogatories to answer—before actually attending to that problem. On top of everything else, the Woburn families were scheduled to return to Boston that week for a second round of depositions.
Schlichtmann felt it necessary to attend all of those depositions to defend his clients. There were nineteen of them—they included all of the parents and five of the oldest children—and most of them took an entire day. For three weeks Facher and Cheeseman and their assistants questioned the families closely about their use of more than five hundred brand-name household products—cleaning agents and detergents, rug shampoos, cosmetics, nail-polish removers, insect repellents, paints, lawn fertilizers, cold remedies, cough syrups, herbal teas, coffee, even peanut butter.
To Schlichtmann, the strategy behind this exhaustive list was obvious. These five hundred items all allegedly contained a known or suspected carcinogen. Peanut butter, for example, ranked high on the list, right up with cigarettes. The reason: all peanut butter contains trace amounts of aflatoxin B1, a natural but potent liver carcinogen produced by a common peanut mold. Cheeseman and Facher would try to suggest to a jury that inasmuch as the cause of childhood leukemia was largely a mystery to medical science, dozens of substances used by the families might just as likely have caused the Woburn illnesses as the contaminated water.
“Do you eat peanut butter?” one of Facher’s young associates asked Anne Anderson.
“No,” said Anne.
“Did you ever eat peanut butter?”
“I guess everybody living has probably tried it,” replied Anne. “I’ve eaten it, but I’m not a peanut butter fan.”
“Do your kids eat peanut butter?”
“Well, the same jar has been sitting there an awfully long time, so I guess we don’t eat much.”
“What kind is it, plain or chunky?”
“Plain, smooth,” said Anne.
“You made your children peanut butter sandwiches?”
“They ate some, when they were small.”
“When you say, ‘some,’ could you quantify that? One or two sandwiches a week for the children?”
Schlichtmann listened to questions of this sort for hours on end, all the while thinking about the other things he had to do. Memories of the Woodshed Conference were fresh, and he acted with greater restraint now. But he sometimes could not resist giving vent to his impatience. “It’s now five o’clock,” he told Facher’s associate. “You’re squandering time on absolutely ridiculous questions. The witness is exhausted and I’m exhausted. I urge you to finish your examination by six o’clock.”
His complaints had no effect. Do you eat bacon? one of Facher’s associates asked yet another of Schlichtmann’s clients. (Bacon contains dimethylnitrosamine, a carcinogen.) How often? How many slices? Do you fry it or bake it? Do you have Teflon pans? (Teflon is made of a resin containing acrylonitrile, a carcinogen.) How often do you use them? Do you chew sugarless gum? (Saccharin, a carcinogen in mice.) How often? Do you pump your own gas? (Benzene, a leukemogen.) How often do you bathe? Do you have plastic shower curtains? (Vinyl chloride, a liver carcinogen.) Have you ever owned a cat? (Feline leukemia virus.) Do you drink beer? (Nitrosamines.) Do you use a deodorant? (Aluminum chlorohydrate.) “Of course,” said Mary Toomey to that query, mildly indignant. “Since I came of age, I’ve always used deodorant.”
Roland Gamache was dying of leukemia by the time his second deposition began. Neither he nor his wife could admit this to each other. But the lawyers all knew. In early October, Gamache did not have strength enough to get out of bed. His bone marrow had stopped producing red blood cells and, as a result, every cell in his body was slowly asphyxiating. He received a blood transfusion and began a new round of chemotherapy, and he felt well enough to travel to Boston for his deposition. “The last three months have been very difficult,” he told his examiner, one of Cheeseman’s assistants.
“Are you and your wife able to talk about the situation candidly?” asked the associate.
“It’s difficult for her, very difficult,” said Roland. “Every time we talk, there’s tears in her eyes.”
On a Friday afternoon, after a week of these depositions, Schlichtmann left his office early and went downstairs to Patten’s Bar & Grill. He found an empty booth in a dark corner of the bar and sat alone in the gloom, drinking a double Scotch. He had finished his first drink and ordered a second when his friend Tom Kiley arrived. He had met Kiley, who was himself a personal injury lawyer, six years ago at the Essex County courthouse, on the day Schlichtmann began the Eaton trial. After the verdict, Kiley had called to congratulate him. Over the years, a mutual regard grew into a friendship. In time, they developed a ritual of getting together on Friday afternoons for a drink.
Schlichtmann valued Kiley’s counsel even though he and Kiley practiced personal injury law in very different ways. Kiley didn’t feel secure unless he had dozens of cases in his files, most of them small, uncomplicated disputes—his “bread and butter,” he called them. He’d won a few big and difficult malpractice cases, too, and he was ambitious, but he ran a frugal office with only two assistants. “He counts the pencils when he leaves the office at the end of the day,” Schlichtmann once said of Kiley. And Kiley, watching Schlichtmann risk a small fortune on the Carney case, had said, “I’d wake up in a cold sweat at two o’clock every morning.” As for Woburn, Kiley admired Schlichtmann for taking it on, although he personally would not have done so.
Now, in Patten’s, Kiley saw in his friend’s demeanor all the reasons for avoiding cases like Woburn. Schlichtmann looked wan, almost sickly, and he spoke like a man on the verge of despair. “I feel like I’m drowning,” Kiley heard Schlichtmann say. “I’m in too deep. I’ve got no control over this case, and that scares me.”
Schlichtmann told Kiley about the Woodshed Conference, and about the last hearing, when the judge had seemed on the verge of excluding the Harvard Health Study. He felt, Schlichtmann said, as if he were being overwhelmed by the two big law firms (Facher and Cheeseman each had a staff of a dozen lawyers working on the case by now), by their discovery demands, their constant motions, and their personal attacks. The judge’s magistrate didn’t respect him or his case. Even worse, neither did the judge.
Kiley didn’t doubt the truth of any of this. In his own practice, Kiley tried to avoid the federal courts, which he found much less receptive to personal injury law than the state courts. All the same, he tried to reassure Schlichtmann. “You’ve got to get hold of yourself,” Kiley said. “You can do this, but you can’t do it by yourself. You’ve got to get somebody to help you out.”
Kiley offered his own services, on a part-time basis. He’d had a successful year and he could spare the time. But, mused Kiley, the best thing might be for Schlichtmann to find a law professor, someone who could render advice on the legal theories of the case, someone who could figure out how to get the Harvard Health Study into evidence. “Maybe you’ll have to pay some professor thirty or forty thousand dollars,” Kiley said. “You’ve already spent a million, so what’s another thirty thousand?”
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sp; Kiley mentioned a professor at Suffolk who might be interested. Schlichtmann wrote the name down on a napkin. The more he and Kiley talked about candidates, the more animated Schlichtmann became. Yes, Kiley was right! A law professor who would sit with him at the counsel table during trial, an éminence grise who would command the judge’s respect, whose sentences the judge would be honored to finish. One name led to others. Soon they had compiled a list of half a dozen law professors from Suffolk, Northeastern, and Boston University.
They were working on this list when Rikki Klieman came into Patten’s Bar & Grill. She had not seen much of Schlichtmann since the Carney trial, since that morning when he’d called her in a paroxysm of anxiety. But she felt convinced that they were right for each other and that someday they would be together. She had spent her day in court, defending a client accused of smuggling drugs into the country aboard a fishing boat. She wore a conservatively cut gray suit, hemline to the knees, a pearl necklace, and gold-bangled earrings.
She’d come to Patten’s hoping that she could persuade Schlichtmann to go to Puerto Rico with her, to the First Circuit Judicial Conference. It was a prestigious event, by anonymous invitation only, and this year’s conference, on the beaches of San Juan, promised to be more fun than most. Rikki’s invitation, she happened to know, had come from Judge Skinner, for whom she had clerked after law school. She and lawyers from the large, well-connected corporate law firms routinely got invited. Solo practitioners and plaintiff’s lawyers, ambulance chasers like Schlichtmann, rarely did. But this year, for the first time, Schlichtmann received his own anonymous invitation in the mail.
Rikki had been trying all week to talk him into coming. She knew that he was still involved with Teresa, but she had a sense that this relationship wouldn’t endure. “I saw this as my chance to get Jan alone,” Rikki would say later, with a smile.
Kiley and Schlichtmann were working on their list of law professors when Rikki sat down at the table. She listened awhile, and then she made a suggestion that suited both Schlichtmann’s needs and her own purposes for being here. “How about Charlie Nesson?” she said. “He’s speaking at the conference in Puerto Rico.”
Schlichtmann turned to her in astonishment. “The judge just mentioned him,” he exclaimed. “You know him?”
Rikki said yes, she’d known Nesson for years. She taught at the Harvard Trial Advocacy Program every January, which Nesson had adopted as his special program. In fact, she and Nesson had gone out to dinner with mutual friends not long ago. “Come to Puerto Rico with me and I’ll introduce you to him,” Rikki said.
The coincidence seemed at first quite remarkable to Schlichtmann. And then, after a few moments, he decided it was not a mere coincidence at all, but a matter of destiny. Clearly, this Professor Nesson, author of articles that the judge himself cited, was the one whom Providence had chosen.
3
Rikki Klieman flew down to San Juan on the following Friday, November 1. The next morning, she went out to the beach, returning periodically to the lobby of the Dupont Hotel to see if Schlichtmann had arrived. When he finally did arrive, early that afternoon, she was there to greet him. Directly behind him, she saw a porter wheeling in a black litigation bag, its sides bowed out with the weight of documents. Her heart sank. It looked as if the bag contained more reading than anyone could hope to accomplish in a month.
She talked Schlichtmann into going to the beach with her. He brought along a large sheaf of documents. “He carted them around with him everywhere,” Rikki would recall later. “He looked so unhappy.” She lay in the sun, listening with half an ear as Schlichtmann talked about the case. All around them on the beach were dozens of pale lawyers and their wives—corporate attorneys of distinction, federal prosecutors, bankruptcy judges, magistrates, district court judges, appeals court judges.
Schlichtmann pestered Rikki about meeting Nesson. He had already checked the hotel registration and found that Nesson had not arrived. That evening he and Rikki went to a party at the Old Fort in San Juan. Schlichtmann looked for Nesson and had a lot to drink. He encountered one of Facher’s partners from Hale and Dorr. The partner, who had consumed a number of rum punches himself, told Schlichtmann that Woburn was a “career-making” case, one that would no doubt lead to fame and riches. “Are you kidding?” exclaimed Schlichtmann, who spent the next half hour telling Facher’s partner how impossible the case was. Rikki wandered off to find a more interesting conversation. She lost track of Schlichtmann that evening, and she returned to her room late, and alone.
She awoke early the next morning and went to the beach to lie in the sun. Her hopes of kindling a romance with Schlichtmann had not worked out on this trip, but she felt that wasn’t the fault of either of them. Woburn absorbed him completely, and she understood that. She had spent the last ten years of her own life completely absorbed in her career. She wouldn’t give up on him yet. She decided to go on being patient.
Nesson was scheduled to give his talk before lunch, and Rikki wanted to hear him. She had a professional interest in the subject—government confiscation of the assets of drug dealers. She folded her towel and returned to the hotel just before Nesson’s talk began. She wore a loose shift over her swimsuit and took a seat in the back of the room. As Nesson concluded his presentation, Schlichtmann sat down next to her.
“Go speak to him when he finishes,” he whispered.
“Not now,” she said. “I’ve got to change my clothes.”
“Why? You look fine.”
“Jan, just calm down,” she said, and she left for her room.
Schlichtmann went to the dais, where Nesson, surrounded by a small audience, was engaged in conversation with an elderly federal judge named Charles Wyzanski. Nesson appeared to be in his late forties, slightly built, with pale, almost translucent skin. He had luminous hazel eyes and a broad and cerebral brow. His light brown hair, which had grown long, over his ears and down the nape of his neck, was turning gray. Schlichtmann elbowed his way through the group around Nesson until he stood beside the Harvard professor. He waited impatiently for a pause in the conversation, for an opportunity to interrupt the old judge who was relating what seemed to Schlichtmann a complicated and interminable story. As he waited he watched Nesson, who listened to the judge serenely in a manner that made Schlichtmann think of Zen-like wisdom. When the judge finally paused, Schlichtmann impulsively thrust his hand out and introduced himself to Nesson. “I’m involved in a case, maybe you’ve heard about it,” Schlichtmann began.
Nesson had already noticed, out of the corner of his eye, this tall young lawyer, head bobbing above the crowd, an intent and anxious look on his face, homing in on him. Nesson recognized the type. Another fresh-faced young member of the bar seeking free advice, he thought. Nesson got paid handsomely to give speeches at conferences such as this, but he got no compensation for the advice lawyers inevitably sought afterward. After nineteen years at Harvard and many of these legal conferences, Nesson had become adroit at getting rid of pests. He shook Schlichtmann’s hand and said, “Please meet Judge Wyzanski.” Then he turned and began to make his escape. The elderly judge started to say something to Schlichtmann, who ignored him and took a step in pursuit of Nesson.
“You want some advice?” said Nesson over his shoulder.
Schlichtmann nodded.
“My advice is you should never turn your back on a federal judge.” And then Nesson disappeared into the crowd.
Rikki, freshly showered and wearing a skirt and blouse, came downstairs to find Schlichtmann looking frantic. He had reservations on a plane back to Boston that afternoon. “Time’s running out,” he said.
She told him to find a table for the luncheon session, and then she went in search of Nesson. She spotted him in the lobby, among another group of judges and lawyers. She went up to him and put her hand on his sleeve. “Charlie,” she said, “have lunch with me. I’ve got someone I want you to meet.”
Leading Nesson back to the conference room, she cou
ld see Schlichtmann standing at a table, peering anxiously around for her. She felt like a matchmaker, and the irony of this thought amused her. It also made her a little nervous. She worried that Schlichtmann, in his eagerness, would put Nesson off.
She introduced them to each other. Nesson smiled wryly. “We’ve already met,” he said.
As they took their seats at the table, Rikki between the two men, she leaned close to Schlichtmann and said, “Jan, settle down and let me talk.”
Schlichtmann managed to contain himself for several moments while Rikki described the Woburn case to Nesson, who listened and said very little. Schlichtmann mentioned the Harvard Health Study, and Nesson said he recalled reading about it in the newspapers. Waiters came with lunch and by the time the plates were cleared, Schlichtmann had barely touched his food. As Schlichtmann talked, the waiters brought lemon meringue pie for dessert. Rikki watched Nesson pick up a fork and begin to create designs in the meringue. He never took a bite of the pie, but the designs grew increasingly complicated. She couldn’t tell if this meant that Nesson was interested in what Schlichtmann was saying, or if he was merely bored.
Up on the dais in the front of the room, someone stood to introduce one of Nesson’s famous colleagues from Harvard, Arthur Miller. Schlichtmann kept talking. Miller began delivering the keynote address, and still Schlichtmann talked. Rikki put her hand on his arm, and finally he stopped.
He sat in silent agitation through Miller’s speech, not hearing a word of it. As soon as Miller finished, while polite applause rippled through the room, he leaned over to Nesson to resume his disquisition. But before he could get a word out, Nesson stood to excuse himself. He explained that he had made plans to tour the old section of San Juan with friends that afternoon. “Interesting case,” he told Schlichtmann.
“Maybe we can get together later today,” Schlichtmann said.