Nesson smiled and shrugged. “I’m flying back to Boston this evening.”
“So am I!” said Schlichtmann. “We can talk on the plane.”
But Nesson merely smiled and walked away.
“Jan, don’t try to talk to him on the plane,” warned Rikki. “Just let him think about it for a while. Please. Promise me.”
Ten minutes after the plane took off, Schlichtmann left his seat in first class and went back to coach to find Nesson. He brought a copy of his summary judgment brief and of the Harvard Health Study. “There’s an empty seat next to me in first class,” Schlichtmann said to Nesson. “Come on up. We can talk.”
Nesson shook his head. “I’m comfortable here,” he said coldly.
Schlichtmann pressed the documents on Nesson and then, feeling as if he had done all he could, and perhaps more than he should, he returned to his seat.
Nesson had taught at Harvard Law School for nineteen years. He had known from the age of six that he wanted to be a lawyer. As an undergraduate at Harvard College, he had marked time by studying mathematics until he could enter law school. The subject bored him and he got mediocre grades. In his junior year he took the law school boards, got an almost perfect score, and applied for early admission to Harvard Law. He was shocked when he was rejected. He appealed to the dean of the law school. He was even more shocked when the dean told him not to bother applying again. High test scores and low grades indicated laziness, the dean said, and Harvard Law did not want lazy students. Nesson framed the rejection letter in a black border, as if it were a obituary, and hung it above his desk. He began studying mathematics in earnest. His grades improved. He applied again to the law school, and this time he was admitted.
The law seemed to Nesson like a series of wonderfully complicated but entertaining riddles involving human behavior. At the end of his first year, when the registrar posted the grades in Langdell Hall, Nesson ranked first in his class of five hundred students. Given his undergraduate record, he considered this “a fluke,” as he put it many years later. But at the end of his second year, he again ranked first. In the hotly competitive atmosphere of Harvard, rumors about his brilliance began to circulate. His rivals for the head of the class were determined to dislodge him in the third and final year. They did not succeed. He was a true legal prodigy. At Harvard Law, grades are carried out to three decimal points, and legend has it that Nesson left the law school with the highest grade point average since Felix Frankfurter graduated in 1907.
Harvard has a long tradition of rewarding its best students with teaching positions. Nesson was only twenty-seven years old when the law school invited him back to Cambridge. By then he’d spent a year clerking for Supreme Court Justice John Harlan, and another year at the Civil Rights Division of the Justice Department under John Doar. He accepted Harvard’s offer and won tenure within three years. He married one of his law students and bought a home in the most expensive district of Cambridge, not far from the Harvard campus. And then he began to think that perhaps he should have seen more of the world. He took time off from teaching to work on the celebrated Berrigan and Ellsberg cases.
His job carried great prestige and he made a good income, but it was only a fraction of what many of his former law school classmates, and even some of his former students, now made in private practice. Nor had he achieved either the scholarly recognition or the popular fame of colleagues such as Laurence Tribe, Arthur Miller, and Alan Dershowitz.
At lunch in San Juan, Nesson had kept his own counsel while listening to Schlichtmann talk about the Woburn case, but he had not been bored. Now, on the plane, reading the material that Schlichtmann had thrust upon him, he saw that this young lawyer had developed a great deal of evidence in immunology, cardiology, and neurology. Clearly Schlichtmann understood that he could not rely on the Harvard study alone. From what Nesson could tell, Schlichtmann must have invested a fortune in this case. He obviously made a good deal of money, since he dressed expensively and flew in first-class. He wanted help, and Nesson figured he needed it.
Nesson had once written a poem that he handed out to his students on the last day of a class in criminal law. It read in part:
Reach for what you want
Want more than you can get.
Reach, and learn what you can let go …
To get what you want,
Reach for more,
An adversary premise,
A good premise …
What do you want?
More than you can get.
But then how?
Take it in pieces,
Want it all.
Nesson’s gifts clearly lay in the legal, not the poetic, realm, but the poem was a disarmingly candid statement about ambition. He had been looking for a new challenge. The Woburn case seemed like a wonderful riddle, and it had everything he could want in a lawsuit—interesting proof and evidence problems, an important social and environmental issue, plenty of media attention and, not least of all, the potential for making a great deal of money. It seemed, in short, like something worth reaching for.
Nesson left his seat in coach and went up to the first-class section. He tapped Schlichtmann on the shoulder.
Schlichtmann looked up and broke into a smile.
“Okay,” said Nesson. “I’m interested. What kind of deal can you offer me?”
4
Conway didn’t mind the idea of a law professor joining the team. Conway knew they needed help, and he was prepared to remain open-minded, at least until he met Nesson. But Gordon was opposed. Gordon grumbled about ivory-tower academics who never did any real work and yet always seemed to have exalted opinions of themselves. What would Nesson actually do? Gordon asked. And how much would he want for it? There was no money, not even any loose change around, to pay someone like Nesson. Schlichtmann had already brought Kiley into the case and offered him a share of the fee. The thought of giving yet another share to this Harvard professor, this outsider, appalled Gordon. How much more of the case were they going to give away?
To Schlichtmann, it made no difference what anyone else thought. One evening shortly after his return from Puerto Rico, he brought Nesson over to the office to meet the rest of the team. They assembled around the conference room table—Conway and Crowley, Gordon and Phillips, Kiley and a defense lawyer named Tom Neville, a childhood friend of Conway’s who had volunteered his services—to hear the Harvard Law professor.
To his thinking, Nesson told those gathered around, this case should stand for something more than just compensating the Woburn families for their losses and injuries. It was, he continued, the sort of case that could ring alarm bells in corporate boardrooms all across America. How do you stop big corporations like Grace and Beatrice from polluting the earth? How do you send the message that they cannot get away with it anymore? “The only language that corporations understand is money,” said Nesson. “Sales, income, earnings, profits, the bottom line. That’s their blood.”
Then Nesson asked how much W. R. Grace and Beatrice made in one year.
Gordon had collected a large stack of Grace and Beatrice annual reports. He knew these figures as well as he knew his own bank account. W. R. Grace had reported sales of slightly over five billion dollars last year, Gordon replied, with profits of $198 million. For Beatrice, net earnings had come to $436 million.
“What do you think it would take to get Grace’s attention?” asked Nesson. “What’s the smallest unit that would make a difference to a corporation of that size? Ten million dollars? Fifty million? A hundred million?”
The Harvard professor had everyone’s attention now.
“What if,” said Nesson, “you took away a full year of profits? I think that might get their attention.”
Nesson was talking about something far larger than anything Schlichtmann had dared to imagine. Just a month ago, he had told Uncle Pete at the Bank of Boston that the case might be worth as much as three million dollars per family, a total of twenty-four million. Could Nesson possib
ly be right? A year of profits from both Grace and Beatrice amounted, in round figures, to more than half a billion dollars.
“You have a whole city poisoned,” Nesson was saying. “You have public attention riveted to this case. And you have two multibillion-dollar corporations caught in the net.” In the final phase of the case, said Nesson, the judge would have to allow them to tell the jury the net worth of these two corporations. They would ask the jury not just to compensate the families, but to punish the corporations, to send a message in the only language that companies like Grace and Beatrice understood.
“Frankly,” admitted Nesson, “I’m in this for the punitive damages.”
The law professor had cast an entirely new light on the case. Schlichtmann himself had always maintained that Woburn was a “political” case, but he felt now that he’d never come close to defining it as clearly, as succinctly, as brilliantly, as Nesson just had. And this analysis came from a man who gave lectures to judges and to corporate executives and their high-powered lawyers. Nesson was, to a far greater extent than any of them sitting around the conference table, a part of the very establishment to which he wanted to send a bill for half a billion dollars.
By the time Nesson had finished, no one in the room had any qualms about his joining the team.
“The man is brilliant,” Gordon conceded.
It was not long before Gordon began conjuring up images of a Palm Beach villa with a large yacht moored outside and two Mercedes-Benzes in the garage. Schlichtmann disliked hearing that sort of talk. He felt it was a jinx, and Gordon refrained from spinning these daydreams in Schlichtmann’s presence. But Phillips knew of Gordon’s reveries and he knew where they came from. Phillips himself wasn’t immune to such fantasies, nor was anyone else on the team, for that matter. But Phillips had a sardonic way about him. Billion-Dollar Charlie, Phillips called Nesson, out of the professor’s hearing.
If Judge Skinner was surprised to see Professor Nesson at the next hearing, sitting next to Schlichtmann at the counsel table, he did not show it. He welcomed Nesson with a smile and an amiable nod. Over the years, he had attended several of Nesson’s lectures. He genuinely enjoyed a good intellectual discussion, and he looked forward to having several with Nesson in coming months. Nor did the judge seem to take offense when Nesson, rising to address him for the first time, announced: “I consider it my job to get this verdict with no error that can possibly upset it on appeal.”
Still smiling, the judge said, “If you can prevent me from making an error, that’s fine.”
But the smile began to fade from the judge’s lips as Nesson went on to explain how he saw this case. The Woburn families, he told the judge, “feel that they’re suing on behalf of a broader constituency. They want this case to set an example, Your Honor. They want to send a message, to ring the alarm, if you will, in the corporate boardrooms across the United States.”
The judge didn’t say anything then. It only became apparent some weeks later at the next hearing, in the midst of another discussion, just how much Nesson had irritated him. “I take umbrage at the entire tone of your presentation,” the judge told Nesson, his voice rising in anger. “You were trumpeting away about sending messages to the boardrooms of America. Lawsuits are between parties, Professor. One side seeks compensation and the other side defends against it. If the boardrooms of America happen to notice what’s going on, that’s an incidental consequence of the process. It’s not the purpose of it.”
“I apologize for my tone,” Nesson said quietly. “You will not hear another trumpet from me.”
Still, the idea that the case might actually be worth a monstrous sum of money occurred to the judge himself shortly after Nesson’s appearance in his courtroom. “This is really quite an interesting and important case,” the judge mused at the end of a less acrimonious hearing. “The amounts of dollars potentially at stake here are astronomical, I suppose.”
Astronomical—the sound of that word rang in Schlichtmann’s ears.
“I have no idea what a jury might do with it,” continued the judge. “Certainly there’s the potential for a very substantial award. I wouldn’t expect it to knock out the Texaco case as the champion high verdict of the century, but it is obviously an important case.”
In the privacy of Schlichtmann’s office, Nesson had talked about hundreds of millions of dollars, and now the judge was comparing Woburn—or so it seemed to Schlichtmann—to Pennzoil v. Texaco, in which a jury had awarded the plaintiff, Pennzoil, eleven billion dollars.
Gordon happened to be sitting in the courtroom gallery that afternoon. That’s bankable, Gordon thought when he heard the judge’s remarks. Gordon planned to take a copy of the transcript to Uncle Pete at the Bank of Boston and try to use it as collateral for a bigger loan.
5
The pace of discovery grew more frantic as the trial date drew near. By December all of the lawyers in the case were working seven days a week. They lived on sandwiches and catered cold cuts and take-out Chinese food, eating meals at their desks or around conference tables. Those who had families saw them infrequently. Conway would arrive home in Wellesley after his wife and two children had gone to sleep, and he’d awake the next morning in the dark winter dawn, before anyone else had arisen. Some nights Schlichtmann never even got home. He’d fall asleep on the couch in his office and awake the next morning at first light. His grandmother died in early December. She was buried on a Sunday, and even then Schlichtmann could spare no more than an hour to attend her funeral.
It was a time of cold, gloomy weather, a time of fatigue and headaches and burning eyes and short tempers. One of Facher’s young associates at Hale and Dorr had made plans to get married that winter. Facher told her to delay the wedding until after the trial, and she did, but she also began plotting a transfer out of litigation and into real estate. Over at Foley, Hoag & Eliot, Cheeseman billed W. R. Grace for 115 hours of his time in a single week, an average of sixteen and a half hours a day for seven straight days. He had never billed that many hours in one week before, not even as an associate anxious to impress the senior partners. He hoped never to do it again.
Cheeseman knew nothing about Facher’s attempt after the Woodshed Conference to settle the Beatrice case for a million dollars. To all appearances, their informal alliance against Schlichtmann remained intact. But Cheeseman worried about his ally’s stamina. One day that winter he watched Facher stand before Judge Skinner to argue a motion that Cheeseman himself had an interest in. Facher looked exhausted, small and old and gray. His voice drifted off into a mumble. It sounded almost as if he were muttering in his sleep. The judge gently reminded Facher to speak up. And then Facher just shrugged and wearily sat down. He’s giving up on the motion, thought Cheeseman in alarm. Later, back at his office, Cheeseman remarked to his partners, “Facher’s getting old for a trial lawyer. I wonder if he’s losing it. I wonder if we can still depend on him.”
Cheeseman and Facher and their teams of associates continued throughout the fall and into the winter with the depositions of Schlichtmann’s expert witnesses. Schlichtmann had done what he could to prepare his experts, and most stood up fairly well.
There was, for example, the case of Dr. Vera Byers, an immunologist from California who had published some eighty-five articles on tumor immunology in respected journals such as Lancet. Last summer, at Schlichtmann’s behest, Byers had conducted her own physical examinations of the Woburn family members. After reviewing the work of Schlichtmann’s other experts, she concluded that the families were indeed suffering from chronic solvent poisoning. Long-term, low-dose exposure to TCE, she believed, had impaired their immune systems and caused the high incidence of leukemia.
Byers had never testified in court before. This was her first experience as an expert witness. As a rule, Schlichtmann liked inexperienced witnesses. “Virgins,” he called them. They were generally impressionable enough to follow his advice and listen to his warnings. They might get frightened under cross-exam
ination, but Schlichtmann felt this was no handicap. “The honest, scared witness is best,” he once explained. “They exude honesty when they’re nervous. Judges and juries love them.”
Byers, who was in her early forties but looked younger, remained a plucky witness throughout the three long days of her deposition. When Facher showed her a list of a hundred scientific studies and asked which ones she had reviewed, Byers said, “Holy Toledo!” When he asked how many different kinds of leukemia there were, she said, “Jeepers! There are many kinds. It depends whether you’re a splitter or a lumper.” Several times she exclaimed, “Bingo!” and “You betcha!” when she happened to agree with something Facher said.
She grew more sober under questioning by Cheeseman, who began by asking if she’d been a cheerleader in high school. Turning to the substance of Byers’s opinion, Cheeseman demanded to know what specific harm Anne Anderson, for example, had suffered from the contaminated well water.
“The systems damaged were respiratory, cardiac, gastrointestinal, neurologic, and immune,” replied Byers. “And there was probably damage to cells and other organs.”
“Like the skin?” said Cheeseman.
“Like the skin,” agreed Byers. “Maybe the kidney.”
“Mostly you have the whole human body there, haven’t you?”
“True,” said Byers. “The thing is systemic.”
“Looks like you’ve found the universal evil in these solvents,” remarked Cheeseman. Item by item, he led Byers through Anne Anderson’s medical records. His tone grew mocking. “You wrote on the physical exam that she’s a well-developed, well-nourished woman in no apparent distress. Does that mean at the moment you were examining her she was not experiencing cramping, irritable bowel, rhinitis, sinus headache, migraine headache, et cetera?”
“That’s correct.”
“So,” said Cheeseman, “you caught her at a good moment, huh?”
The depositions of Schlichtmann’s twelve medical and three geological experts would ultimately consume fifty-three days and fill ten thousand transcript pages. Those whose opinions were based on quantifiable, objective measurements—the blink reflex tests and the cardiology exams, for example—fared best. The expert who fared worst was Dr. Alan Levin, another of Schlichtmann’s immunologists. On the third day of his six-day-long deposition, Facher began by asking the doctor in a mild, almost friendly manner how much time he spent on legal matters.
A Civil Action Page 28
