Pinder smiled indulgently. “This jury looks like a pretty attentive group,” he said.
Pinder made his first mistake the next morning. It was a small mistake, but Schlichtmann caught it in an instant. It happened when he asked Pinder how long it would take, in his opinion, for TCE and the three other solvents to migrate from the Beatrice and Grace sites to the wells. Schlichtmann had gone over these calculations with Pinder the night before, but that morning, Pinder gave different times for the solvents, different by a matter of days for one, a few weeks for another, and a year for the third.
Schlichtmann wondered for a moment if he himself was wrong, if he had remembered the times incorrectly. He felt confused, but he had no chance to find out at that moment why Pinder had changed the times. And when the recess finally came, Schlichtmann decided not to broach the subject. He did not want to shake Pinder’s confidence in the middle of the day.
That evening, in Pinder’s room at the Ritz-Carlton, Schlichtmann found out what had gone wrong. Pinder, feeling overly confident, redid the calculations in his head and forgot to factor in the porosity of the soil. The mistake made no difference to the substance of Pinder’s opinion. The solvents had still reached Wells G and H long before the leukemias began occurring. But Schlichtmann knew that Facher and Keating would not miss this mistake, and that they would use it on cross-examination to attack Pinder’s credibility.
Schlichtmann decided to wait until the closing minutes of the next day, a Friday, to have Pinder correct the mistake. He’d make it appear as almost an afterthought, of small consequence but requiring mention nonetheless. That would give the jurors the entire weekend to digest the substance of Pinder’s opinion before cross-examination could begin on Monday morning.
The next day all went as planned for a while. When only twenty minutes remained before court adjourned for the weekend, Schlichtmann brought up the travel times, and Pinder explained that yesterday, on the witness stand, he had done the calculations in his head. “I was just contemplating my testimony,” continued Pinder in a pleasant, untroubled voice, “and it suddenly occurred to me that I’d made a mistake. I’d be very pleased to try and correct that mistake.”
“What was the mistake you made?” asked Schlichtmann.
“I left off the constant for the porosity of the soil when I was doing the multiplication in my head.”
“Does that affect the travel times in some way?”
“It affects the travel times,” said Pinder, nodding. “Not catastrophically but, I think, significantly.”
Schlichtmann asked Pinder to tell the jury the new figures. When Pinder finished doing so, Schlichtmann glanced at the clock on the back wall of the courtroom, above the gallery. He still had twelve minutes to occupy until court recessed for the weekend. He planned to end the day by bringing out the fact that the research done in east Woburn—twelve thousand pages of data, 157 monitoring wells, and dozens of volumes from technical consultants—made the Aberjona aquifer one of the most thoroughly studied aquifers in history. He asked Pinder to compare the east Woburn research with other projects that Pinder had worked on, but both Facher and Keating objected. “Sustained,” said the judge. Schlichtmann rephrased his question, but again the judge sustained the objections.
“May I have a moment, Your Honor?” Schlichtmann asked.
The judge nodded. Schlichtmann took a deep breath. He studied his notes. He needed another question but he couldn’t think of one. He went to the counsel table and bent down to consult with Nesson, who hurriedly scribbled out a question. Schlichtmann turned and asked the question, but Facher objected, the judge sustained the objection, and Schlichtmann gave up. There were only seven minutes remaining. He said, “No more questions, Your Honor.”
The judge peered at the clock. “This is probably a good place to stop, since we will begin cross-examination on Monday morning.”
The little skirmishes of lawyers are sometimes consequential. Schlichtmann’s strategy was obvious enough, and Facher had no intention of letting him get away with it. Facher stood and said to the judge, “Would you give me the seven minutes?”
“You want to start your cross-examination now?” said the judge, looking surprised and not particularly happy.
“Yes,” said Facher, his eyes on Pinder as he walked across the well of the courtroom.
Pinder flew home to Princeton that Friday evening. After his seven minutes with Facher, he didn’t relish the prospect of returning to Boston on Monday. Facher had treated him in a most contemptible manner, addressing him in an insulting and scornful tone that Pinder, for one, had never before experienced in his adult life. “Are you telling this jury that you came in here yesterday, as a Ph.D. and the chairman of a department, and made a little mistake in an opinion you’ve been preparing for the last year and a half?” Facher had said. “You’re telling us, as a professor of geology, that you forgot to take into account porosity? Didn’t you lecture in front of this jury for an hour about making these calculations? Today is true and yesterday was not? That is what you want this jury to believe?”
Pinder felt he’d kept his wits and replied calmly, but the brief ordeal had shaken him. He had testified before, in the Love Canal and Velsicol cases, but on those occasions he’d been on the witness stand for only a short time and his opinions had gone virtually unchallenged. Pinder’s wife, Phyllis, took an interest in her husband’s work. She knew about Facher from reading the trial transcripts of Drobinski’s testimony, which Schlichtmann had sent down for Pinder to peruse. “Watch out for Facher,” she warned her husband before he returned to Boston. “You should read your deposition so you won’t contradict yourself.”
Pinder didn’t take his wife’s advice. His deposition had gone on for five days and amounted to almost a thousand pages. He didn’t bother to read it, but Facher did. Facher read every page.
On Monday morning Facher asked Pinder if he recalled saying at his deposition that the contaminants from Beatrice would have reached the wells within eighteen months. Pinder replied that he didn’t remember exactly what he’d said. “But I think that is reasonable, and what I was likely to have said.”
“When you testified here in court last week, you said the contaminants had reached the well field within a year. Do you remember that?”
“I don’t remember the details,” said Pinder. “But if you say that’s what I said, I’ll accept that.”
“You don’t consider that a change from eighteen months?”
Pinder replied slowly, choosing his words with care. “It depends on what context I was thinking of the word ‘contaminants’ when you were using it. That is why it’s a little difficult for me to try to be more precise.”
Facher suggested that Pinder had formed his opinion before even seeing any data from the pump test. Pinder denied this.
“But you had a hypothesis as to the source of the contamination, right?” asked Facher.
Pinder, thinking that he might have said something like that at his deposition, replied, “I think that is not an unreasonable statement. I think I probably would be prepared to say that I may have said that.”
“You may be prepared to say that you may have said that?” repeated Facher in an incredulous voice.
“Well, I’m a cautious man,” said Pinder.
“Very cautious,” said Facher. “You use words carefully, right?”
“I try to be as precise and accurate as I can,” said Pinder.
Pinder’s attempt to be precise and accurate led to dense thickets of confusion and imprecision. Pinder was wary of Facher. He looked for a trap in every question Facher asked. To avoid being trapped, he refused to answer even the simplest questions in a simple way. When Facher asked him about Drobinski’s work on the fifteen acres, Pinder said, “I’m not really familiar with what he did in detail. I think in spirit he went back and found some additional things.”
“In spirit he went back?” said Facher in a mocking voice.
“In the spirit of you
r question, he went back,” replied Pinder. “I have no particular, precise knowledge of the whole matter.”
“You didn’t even know who Mr. Drobinski was back in December of 1985, did you?”
“Oh, yes, I knew who he was,” said Pinder with certitude. “We had talked together many times.”
Facher picked up Pinder’s deposition. He opened it and flipped through the pages until he found what he was looking for. “At your deposition on December tenth, I asked if you had worked directly with any Weston geologist, and you said yes. I asked, ‘Can you identify them by name?’ ” Facher, standing near the witness stand now, placed the deposition in front of Pinder. “What was your answer?” Facher asked, pointing to the line he wanted Pinder to read.
Pinder leaned over his deposition and adjusted his spectacles. Facher gazed at the ceiling. It took Pinder a long time to answer. He was reading, it seemed, the entire page. “ ‘No,’ ” Pinder read aloud at last.
“You wouldn’t have known Mr. Drobinski unless he stood in front of you with one of those little ‘Hello, I’m Mr. Drobinski’ tags on him?”
“At that time I didn’t know who he was,” said Pinder. “I’d spoken to him. There were several people, and I couldn’t distinguish one from the other. That is the spirit of my answer.”
“That’s the spirit and the fact of your answer?”
Pinder soon abandoned “the spirit” and adopted new phrases. Everything became “in the context of what you’re talking about,” or “in the sense of what you’re asking me.” Facher didn’t let these slip by. “I didn’t put any sense in the question,” he told Pinder. “I just asked a simple question.”
The judge called the lawyers up to his bench. He said to Schlichtmann, “I’m beginning to get the impression that this fellow has either got a very loose grasp of the language, or he will say anything that comes into his head.”
“I don’t think that’s a fair characterization of his testimony,” said Schlichtmann, who knew perfectly well that it was going very badly.
After court that day, Conway saw Schlichtmann alone in his office, sprawled on the couch. Schlichtmann’s arm covered his face as if he were shielding his eyes from a bright light.
“Boy, you look like shit,” Conway said, standing in the doorway.
Schlichtmann lifted his arm from his eyes and glanced up at Conway. “This is going to be the worst fucking week of my life.”
Conway nodded. “What the judge said about Pinder was very disturbing.”
“That arthritic old bastard,” murmured Schlichtmann.
“There’s nothing worse than watching your witness being raped,” said Conway. “It’s awful to sit there and not be able to do anything.”
“Are we going to survive the week?” asked Schlichtmann. “Four more days of this?” He gave a weak, dispirited laugh.
“We’ll survive, Jan,” Conway said, playing his part once again. He hitched up his pants. “George is the guru, the world’s main expert. He knows more about that aquifer than anyone else in the world.” Conway paused, and then he added, “Besides, I don’t think anything could be worse than today.”
At this, Schlichtmann sat up. He looked soberly at Conway. “Do you think it was really that bad?” Schlichtmann laughed again, the same weak laugh. “George actually told me he felt good today. Can you believe it? Ah, it’s not George’s fault. He’s a brilliant guy, but he’s not the sort of person who can move others. It’s just not the way he is.”
Gordon and Phillips walked into Schlichtmann’s office. Gordon settled his heavy frame in the chair behind Schlichtmann’s desk, put his feet up and lit a cigarette. Phillips sat in the armchair next to the couch and tried his hand at cheering up Schlichtmann. “Facher’s little clinic today was great for lawyers, but it doesn’t mean shit with the jury.” Phillips hummed nervously. “Just remember, Jan, the biggest victories are won by the slimmest margins.”
There was a moment of silence. Everyone seemed to ponder this bit of wisdom. Finally Gordon said, “What exactly does that mean, Mark?”
Schlichtmann departed for the Ritz-Carlton and an evening of work with Pinder. He consoled himself by reasoning that although Facher might have tarnished Pinder’s credibility, Facher had not succeeded in damaging the substance of Pinder’s opinion. Schlichtmann felt he could make Pinder shine again on redirect.
Meanwhile, Schlichtmann had other concerns. He knew that Facher would try to use the Aberjona River, which flowed between the Beatrice property and the city wells, as a defense. According to Facher’s theory, the pumping action of the wells would draw water directly out of the river, satisfying the wells’ demand while at the same time blocking the flow of contaminated groundwater from Beatrice.
This theory had some merit. A year ago last spring, Pinder himself had warned Schlichtmann that the river might be “a very profound barrier,” although Pinder personally doubted this would prove true. His computer model of the east Woburn aquifer predicted that the city wells would, in point of fact, draw contaminated groundwater from under Beatrice, along a highly permeable stratum of sand and coarse rock that lay under the riverbed. Nonetheless, Pinder told Schlichtmann, he wouldn’t know for certain until he saw the field data from the EPA pump test. Then, on December 4, when the EPA activated the city wells and started the pump test, Pinder stationed himself at a monitoring well on the Beatrice property. He saw the water level at this monitoring well decline more than a foot in four hours, exactly the amount his computer model had predicted.
As far as Pinder was concerned, this and similar measurements from other monitoring wells proved beyond a doubt that groundwater from Beatrice was drawn under the river and into the city wells. It also proved that the Aberjona River played almost no role in satisfying the demand of the wells for water. Pinder reasoned that the thick layer of peat that formed the riverbed—twenty or more feet of decomposed leaves, roots, and branches—acted as a nearly impermeable lining. The river, in other words, was not a barrier. It wasn’t even relevant.
This all seemed reasonable to Schlichtmann. But one detail troubled him. He and Pinder had both seen the ice on the river’s surface that December. After the wells began pumping, the river’s surface grew steadily lower, leaving shards of ice along the bank. Obviously the river had lost water. If it wasn’t going to the wells, then where was it going?
At the Ritz-Carlton, Schlichtmann tried to get an answer to this question. Pinder had several explanations. Some water had been lost to evaporation. And some of it was being slowly drawn out of the river by the pumping action of the wells. But Pinder felt certain, based on the thickness of the peat layer, that it would take ten to twenty years for any river water to reach the wells.
It still didn’t make sense to Schlichtmann. The river, he pointed out, had declined by six inches. That seemed like a lot of water. Pinder’s explanations would not account for that much water.
Pinder, himself troubled now, agreed that this was true.
So where had the water gone? Schlichtmann asked.
Pinder didn’t know.
They worked until after midnight, but Pinder could not come up with an explanation for the missing river water. He was tired and it was late. He insisted on going to bed. He wanted to have his wits about him tomorrow. He didn’t want to face Facher without getting a good night’s sleep.
Schlichtmann wouldn’t leave. “We’ve got to figure this out, George. Let’s go over it one more time.”
“No,” said Pinder stubbornly. “I’m going to sleep right now.”
Schlichtmann, just as stubborn, refused to go.
“If you don’t leave me alone,” said Pinder angrily, “I’m going back to Princeton tomorrow morning.”
Schlichtmann departed, feeling very worried.
Schlichtmann was waiting apprehensively when Pinder walked into the office early the next morning. He saw at once that their spat of last night had been forgotten. Pinder looked confident and happy. “In a moment of brilliance this morning
, Jan, I figured out the river,” Pinder said. “I don’t know why it didn’t occur to me before. It’s really very obvious.”
Schlichtmann listened carefully as his star expert explained the obvious. Under normal conditions, said Pinder, groundwater in an aquifer discharges into a river, thereby increasing the river’s volume. Nearly all rivers, except those in deserts and on mountains, function in this way. Indeed, groundwater discharge is what creates most rivers, and this was the case with the Aberjona in east Woburn. But when Wells G and H began pumping, the aquifer was forced to satisfy the demand created by the wells and could no longer discharge into the river. “You see, Jan?” exclaimed Pinder. “The river’s not losing water to the wells. It’s just not gaining what it normally would from the aquifer.”
“Are you sure about this, George?” Schlichtmann asked.
Pinder beamed. “I figured it out when I was taking a shower this morning.”
“George, don’t say that on the witness stand.”
“Well, that’s what happened.”
Peggy Vecchione poked her head around the conference room door. “Jan, it’s five minutes of nine. You’ve got to hurry.”
Schlichtmann hovered over Pinder, indulging in a last moment of frenetic activity, the sort of nervous energy that he expended every morning before trial. Pinder’s explanation seemed logical enough, but Schlichtmann had no time now to explore it for flaws. “You’ve got the well logs, George?” he asked. “The ones that are highlighted in yellow marker? You’ve got those, right?”
Pinder compressed his lips and drew his shoulders up. He hated these chaotic moments just before court. They threw him off balance just when he wanted most to compose himself.
Schlichtmann brushed lint from the shoulders of Pinder’s blue blazer, and then he stood back and looked appraisingly at the geologist, at the tie with a faint pink hue and the argyle socks. “You look great, George,” Schlichtmann lied. “Are you feeling okay?”
“I was feeling fine until I started talking with you,” muttered Pinder.
A Civil Action Page 37
