Levin said that consulting work occupied only 10 to 15 percent of his time. He added that he much preferred seeing patients in his clinic, work that he found more personally satisfying.
“Well,” said Facher, “how many lawsuits are you currently involved in?”
Levin replied that he’d been retained in two other cases, one in Sacramento, another in Texas.
“Tell me about the case in Texas,” said Facher. “Have you given an opinion?”
“I haven’t given an official opinion. I don’t have all the data, but based on what the defendant’s immunologist did, there’s clear evidence of immune dysregulation.”
Facher looked at notes prepared by one of his associates. “There’s some case in Iowa?” he said.
“I’m sorry,” said Levin. “You’re right. Mr. Carpenter. He’s suing a bunch of pesticide people.”
“I have a note here involving someone named Johnson. Does that mean anything to you?”
Levin shrugged. “Could have been,” he said.
“Millie is the first name? 1983?”
“Millie Johnson—she developed asthma after being exposed to Raid,” said Levin.
“Raid? The insecticide? Did you render an opinion of immune dysregulation?”
“I believe that’s what I did, yes.”
“I have a note here about Times Beach. What is that?”
“I’m involved in Times Beach, too,” Levin answered, “and I was involved in Three Mile Island.”
Facher smiled. “I seem to be helping your memory. Any others?”
“I can’t recall right now.”
“I have a note, Aircraft Stamping.”
“That went to the jury,” said Levin.
“And your opinion was what?”
“That the chemicals caused immune dysregulation in that population.”
“Do you have any criminal record, by the way?” said Facher.
Schlichtmann, seated next to Levin, held his tongue.
“No,” said Levin.
“What about Schuller?” asked Facher, getting back to Levin’s professional history. “Does Schuller mean anything to you?”
“Schuller was a patient of mine who was exposed to chlordane. That was an interesting case.”
“Your opinion, again, was immune dysregulation?”
“Right,” said Levin.
“Fiberite Corporation,” said Facher. “Does that mean anything to you?”
And on it went. Cheeseman, too, had done some research on Dr. Levin. Cheeseman’s medical experts had told him that “clinical ecology,” a branch of immunology championed by Levin, was “a screwball science.” Cheeseman thought Levin was a charlatan, and he finally said so on the sixth day of Levin’s deposition, when the doctor asserted that the T cell tests led him to believe that Anne Anderson was “a sick lady,” at risk of developing serious illness in the future. In a voice heavy with sarcasm, Cheeseman said, “That’s sort of like reading entrails, isn’t it? Tarot cards. You throw the cards down and look at them and you see the future from that?”
It had been a difficult week for Levin, and almost as difficult for Schlichtmann. He admired and trusted the immunologist, and he owed him a debt of gratitude as well. Levin had been his first expert, his guide and tutor on the medical part of the case. “Cheeseman doesn’t want to believe that this is a legitimate case,” Schlichtmann said after Levin’s deposition. “He wants to believe that I’m a charlatan. But I believe these people have been injured, and the more I find out, the more I believe that. I believe these chemicals can cause harm. I don’t want any of them in my body.”
6
Schlichtmann got his chance in the final two weeks of discovery to hear the opinions of the medical experts hired by Cheeseman and Facher. Together they had assembled a roster of twenty-eight specialists, many with impressive résumés, several from the nearby Harvard Medical School. There were six toxicologists, five epidemiologists, three neurologists, a molecular biologist, a pediatric hematologist, a cardiologist, a psychiatrist, and several immunologists, chemists, and pathologists. Schlichtmann had no time to take leisurely six-day-long depositions, as Facher and Cheeseman had. One day during the last week of discovery he took eight depositions, walking into conference rooms to confront expert witnesses whose specialties—whose very names—he did not know.
He found that several of these doctors knew his own experts, sometimes personally, sometimes only by reputation. One physician, a specialist in occupational medicine, told Schlichtmann that he had often referred patients to Dr. Robert Feldman’s clinic.
“What’s your opinion of Dr. Feldman?” Schlichtmann asked this expert.
“He strikes me as a good neurologist,” replied the doctor. “I depend on his judgment considerably.”
Schlichtmann planned to use this in front of the jury, even though this same doctor stated that he did not believe the Woburn families had suffered any ill health from exposure to TCE. “I’ve seen individuals working with levels of exposure a thousand—ten thousand—times the levels you have quoted without suffering any ill effect,” the doctor said.
A neurologist, a professor at Harvard, agreed that Feldman was, in his words, a “competent” neurologist, but he, too, disagreed with Feldman’s conclusions. He thought Feldman had completely misinterpreted the results of the blink reflex tests. “I think the normal ranges, as construed by Dr. Feldman, were excessively low,” said this neurologist. Another Harvard professor, a pediatrician, said much the same thing about Colvin’s T cell tests. This expert acknowledged that Colvin had an “impeccable” reputation, but he thought Colvin had used “rather low” laboratory normals in assessing the Woburn families’ T cell values.
The cardiologist hired by Facher and Cheeseman was an eminent doctor by any measure. His name was Gilbert Horton Mudge, Jr., a professor at Harvard and director of the heart transplant program at Brigham & Women’s Hospital. Schlichtmann asked Dr. Mudge if he had reviewed the cardiological exams of the Woburn families. Mudge said that he had.
“Were any of those people suffering from cardiac arrhythmia?” asked Schlichtmann.
“I believe all those patients were normal,” replied the doctor.
“Are any of them suffering from cardiac arrhythmia?” Schlichtmann asked again.
“Their rhythm disturbances are within normal limits,” said Mudge.
Mudge still had not answered the question. Schlichtmann asked it again, for a third time: “Are any of these people suffering from cardiac arrhythmia?”
“Yes,” said Mudge.
“How many of them are suffering from cardiac arrhythmia?”
“As I remember, virtually all of them had some cardiac arrhythmia. But it’s my opinion that such rhythm disturbances are entirely consistent with a normal patient population.”
Near the end of the deposition, which lasted less than an hour, Mudge said he would like to take echocardiograms of the Woburn people. “I’d like to look at their echocardiograms to see if there’s any objective evidence to suggest a structural abnormality of the heart.”
“Why would that be important?” asked Schlichtmann.
“To make absolutely sure that there’s no reason to be concerned about these extra heartbeats.”
Schlichtmann liked Dr. Mudge. He looked forward to seeing him again, in front of a jury. Schlichtmann smiled at him. “We’re all done, Doctor. Go forth and heal.”
None of the six toxicologists hired by Cheeseman and Facher believed that the small amounts of TCE found in Woburn wells could have affected the health of the plaintiffs. One of them, from the University of California at Berkeley, agreed that TCE could damage the heart, the central nervous system, and the immune system, but not at the “infinitesimally small levels” reported in Woburn.
Schlichtmann asked how much TCE it would take to cause such damage, and the toxicologist said, “Very, very high levels.”
“How high?”
“I don’t think people would drink the water
at levels high enough to cause toxicity,” said the toxicologist.
Schlichtmann asked the toxicologist if he would consider the levels in the Woburn water to be safe.
“There is no such thing as complete safety,” replied the toxicologist. “Everything poses a risk. Walking down the street is not safe. Sitting here in this room, being bombarded by cosmic rays, is not safe. What I’m saying is, the risk is acceptable to the human population because it is so infinitesimally small.”
By way of illustration, continued this expert, the risk of getting cancer from the Woburn water would be roughly equivalent to spending thirteen minutes in a canoe on a placid lake, or to smoking three cigarettes.
“Three cigarettes a day?” said Schlichtmann.
“Three cigarettes in a lifetime,” said the expert. “Absolutely negligible risk, insignificant.”
Schlichtmann deposed a pediatric hematologist from Chicago, a renowned specialist who had treated hundreds of children with leukemia. The hematologist agreed that there was indeed a high incidence of leukemia in Woburn, but he also stated that “all previous clusters of childhood leukemia were related to statistical coincidence and not to any specific exposures.” In his opinion, the Woburn water had nothing to do with the Woburn leukemias. Both animal and epidemiological studies, he said, indicated that TCE was not a carcinogen in man.
If that was so, asked Schlichtmann, then what did cause the Woburn leukemias?
“I don’t think anyone in the world knows what causes acute lymphocytic leukemia in children,” said the hematologist. “It’s evolving. The molecular biologists are going to tell us the answers, but no one knows the answers yet.”
The molecular biologist, a professor at Tufts University School of Medicine named Dr. John Coffin, admitted at his deposition that he did not know the answers yet. But he had a theory. He had spent much of his professional life studying tumor viruses, and he believed that a virus was most likely responsible for many cases of acute lymphocytic leukemia in children. That was, at least, a “plausible” explanation, Coffin maintained, more plausible than the contaminated well water. “My opinion,” Coffin told Schlichtmann, “is that the compounds in this case are not at all likely to be human carcinogens.”
“Are you aware,” asked Schlichtmann, “that the EPA has determined that trichloroethylene is a probable human carcinogen?”
“Is that their exact phrasing?” replied Coffin. “My memory is that the EPA did not conclude that it was a probable human carcinogen.”
In this instance, Coffin’s memory was wrong. “If I told you they had,” continued Schlichtmann, “would that be news to you?”
“It is a question of phrasing,” said Coffin. “I don’t remember the phrasing.”
Schlichtmann sensed that he had Coffin in retreat. He decided to push him further. “In your opinion, Doctor, does trichloroethylene pose a health hazard in the domestic water supply?”
This was a tricky question to answer. If Coffin answered yes, the rational, sane reply, then Schlichtmann would turn this admission to his benefit. He would, in effect, turn Coffin into his own witness. And if Coffin answered no, he would make the doctor look biased and untrustworthy.
Coffin considered the question for a moment. Then he said, “I am not an expert in domestic water supplies, so I don’t think I can answer that question.”
This was the rehearsed answer that Schlichtmann had expected. “Well,” continued Schlichtmann, “based on your study of the toxicological effects of trichloroethylene, do you consider that it poses a potential health hazard and should not be allowed in a community’s domestic water supply?”
“The question is very broad. I’m not an expert on water supplies.”
“Are you an expert on trichloroethylene?”
“I’ve reviewed the literature on trichloroethylene relative to its carcinogenesis.”
“Based on your review, does trichloroethylene pose a potential health hazard? And for that reason, should it be not allowed in a community water supply?”
Coffin finally relented. “I don’t believe any foreign material of that sort should be allowed in a community’s water supply.”
Schlichtmann had him now. “Why?” he asked.
Prolonged silence. Schlichtmann looked intently at Coffin. At last Coffin said, “You are now getting into an area which is my personal opinion rather than my expert opinion. My personal opinion is that foreign compounds do not belong in the domestic water.”
“Why?” asked Schlichtmann again.
“Where does one draw the line?” said Coffin. “If one allows one foreign compound into a public water supply, they would be allowing others. But this is getting very far afield from areas of my expertise. I don’t feel comfortable talking along these lines.”
Schlichtmann believed that most of the experts hired by the defense were able, even distinguished, doctors who simply happened to disagree with his own able, distinguished doctors. “Most of their experts concede that TCE can cause cardiac, neurological, and immunological problems,” said Schlichtmann late one evening, after taking five depositions in one day. “The only difference between their experts and my experts is that theirs don’t think there was enough TCE in the water to cause problems.”
Schlichtmann also found among the defense experts some whom he regarded as charlatans, much in the way that Cheeseman regarded Levin. One doctor told of a study he’d done with workers exposed to TCE. “There was, in fact, less deaths from cancer than one would have expected,” this doctor explained at his deposition. “There were fewer deaths from heart disease. I would begin to entertain a serious hypothesis that trichloroethylene in these quantities, rather than being harmful, is quite beneficial with respect to heart disease.”
Conway had deposed this witness while Schlichtmann was busy at another deposition. The study, the doctor admitted under questioning from Conway, had been financed by the very same company that had exposed its workers to the solvent.
That evening, Schlichtmann asked Conway how the deposition had gone.
“He says TCE is good for you,” said Conway.
7
Out in Woburn, the Environmental Protection Agency began its long-delayed test of the Aberjona aquifer. Wells G and H were cleaned and oiled, and then started up for the first time in almost seven years. The test was designed to re-create groundwater conditions during the 1960s and 1970s, when the wells had pumped water into the city mains. Although it was widely believed that W. R. Grace and Beatrice Foods were responsible for contaminating the aquifer, this belief was based largely on circumstantial evidence and unproven theory. The EPA felt it necessary to test that theory in the field before filing its own lawsuit demanding that Grace and Beatrice pay the cleanup costs.
Schlichtmann had eagerly awaited the EPA test. He needed the results for his own case. He had no doubt that it would prove the two companies were responsible for contaminating the wells. On a frigid morning in early December, the day the wells were activated, he was out on the Aberjona marsh along with an army of a hundred geologists, engineers, hydrologists, well diggers, and lawyers from the EPA, the U.S. Geological Survey, and the environmental consulting firms hired by each of the three parties to the lawsuit.
The test was scheduled to last an entire month, until January. The workers had to keep track of the fluctuations of the groundwater in more than a hundred small monitoring wells that had been drilled into the aquifer. They set up shanties to shelter themselves from the snow and freezing rain during the cold winter days. Gordon organized a coffee brigade for these people, and extended his magnanimity even to the Grace and Beatrice consultants. He drove out to the Aberjona in the gray winter dawns, carrying a hundred cartons of coffee and two hundred doughnuts in the trunk of his Mercedes. From their stations at the test wells on the marsh, men and women bundled in parkas, looking like refugees from an Arctic expedition, would tramp across the wooden planks that spanned the ice-covered grassy tussocks and assemble at the trunk of the Merce
des for Gordon’s coffee and doughnuts. Gordon would return in the afternoon, the trunk filled this time with sandwiches and more coffee.
When an electrical cable connecting a trailer full of computer equipment was severed two days into the pumping test, it was Gordon who, suspecting sabotage, arranged for security. He hired the entire Woburn police force to patrol the area in shifts, during their off-duty hours. When a critical device, a capacitator, broke down on a Saturday and the EPA said it would take at least a week to replace it, Gordon had the part flown in from Denver on Sunday, on a specially leased jet. In his spare moments he stood on an outcropping of bedrock near the Beatrice property, surveying the icy scene with binoculars, keeping in touch with the EPA and Schlichtmann’s engineers by walkie-talkie.
The pump test was costly for everyone concerned. But for Schlichtmann, at least, the results were worth the money. His specialist in groundwater, a Princeton hydrogeologist of great renown in his field, studied the data and reported that the pump test had confirmed Schlichtmann’s fondest suspicion—Wells G and H were contaminated by groundwater coming from the Beatrice and Grace properties.
One evening in late December, after a day on the marsh, Gordon sat in his office and calculated how much money the firm was spending on Woburn each day. Only three months ago, he’d estimated that it would cost a quarter of a million dollars for the pump test and the groundwater consultants. The actual costs were now more than twice that, and the work still was not done.
Gordon spent the entire weekend in his office, adding up the bills. By the time he finished on Monday morning, he had a precise total of the cost to date: $1,803,195.84. Interest alone on the debt to the Bank of Boston and other creditors amounted to several hundred dollars a day. They were now half a million dollars over the budget he and Schlichtmann had given Uncle Pete three months ago. And the trial was still several weeks away.
A Civil Action Page 29
