A Civil Action

by Jonathan Harr

  After Pete’s call, Gordon loaded the Krugerrands into his suit-coat pocket and went over to the Bank of Boston. He walked downstairs to the Private Banking Group, to Uncle Pete’s office.

  Briggs looked suspiciously at Gordon’s bulging pocket. “Are you carrying a gun?” he asked.

  Gordon took the Krugerrands out one by one and stacked them on Pete’s desk.

  Pete shook his head ruefully.

  “Things are very bad,” said Gordon.

  This was Gordon’s act of contrition. He felt the need to repent, and the Krugerrands, so dear to him, seemed like a good way to start. Uncle Pete must have understood this. After a while his anger at Gordon waned. But Pete said again there could be no more overdrafts. Never again. There was no more credit.

  9

  Schlichtmann found himself without money for a cab one morning in late June. He walked to work, down Charles Street and across the Boston Common, under the tall, stately trees with their thick green canopies of leaves. The world flourished in the sweet spring air, but Schlichtmann barely noticed. Inside the office on Milk Street, the ficus trees and ferns had turned brown and died. Coming round the corner from the conference room, Schlichtmann passed the withered, decaying stumps of a large potted corn plant, but he didn’t notice that, either.

  In the courtroom, however, he made sure to keep up appearances. His hand-tailored suits were always perfectly pressed, his white shirts clean and crisp, his Bally shoes polished to a high gloss. Gordon knew that even if he could pay no one else, he had to pay Schlichtmann’s dry-cleaning bill on time.

  Schlichtmann’s spirits had been rising ever since his artful cross-examination of Facher’s soil chemist. Facher’s case in defense of Beatrice had taken less than a week, and even the Grace lawyers, who had no wish to see Schlichtmann succeed in any endeavor, agreed privately that it had not gone well for Facher. It was now the sixty-first day of trial, and the waterworks phase was nearing its conclusion. All that remained, aside from the closing arguments, was for Keating to call his witnesses in defense of Grace. Schlichtmann looked forward to this. To him, it seemed obvious that Keating could not mount much of a defense. Keating could not deny that the soil and groundwater under the Grace plant had been polluted in the early 1960s by the acts of its own employees. Nor could Keating deny that contaminated groundwater from Grace flowed downhill from the plant directly to the wells.

  But Keating was not without a plan. Like a good defense lawyer in a murder trial, Keating would try to steer the jury away from Grace and in the direction of other culprits—industries in north Woburn that for many years had dumped their wastes into the Aberjona River. He would suggest to the jury that the polluted river, not Grace’s groundwater, had contaminated the wells.

  This strategy, as it unfolded, appeared quite sound and well constructed. One witness, a sanitary engineer, told how he had followed a small brook, a tributary of the Aberjona, to a complex of industrial buildings two miles upriver from the wells. In a swampy area near those buildings, he’d found many 55-gallon drums and pails scattered about. “The closer I got to the industry, the more horrified I became,” the engineer told the jury. Coming from one of the buildings was a “white resiny scum” and a “bright orange-colored effluent” that stained the water and the banks.

  Keating’s next witness, a supervisor at the Division of Water Pollution Control, told a similar story. He had investigated one particular company, National Polychemical, for the past ten years. “We still had pollution coming from that site,” the supervisor said. “It wasn’t coming out of thin air. The only logical conclusion was that it was seeping out of that site.”

  On cross-examination, Schlichtmann said to the supervisor: “The company was still denying after ten years that they had a waterpollution problem?”

  “Yes,” replied the supervisor.

  “They were still saying it was somebody else’s fault, weren’t they?”

  “Yes, sir.”

  “You encounter that often when you’re investigating an industry, that attitude?”

  “Yes, I do,” said the supervisor.

  Schlichtmann nodded, as if to indicate he understood this perfectly.

  It took Keating four witnesses and a week of testimony to lay the foundation for his last and most important witness. This was a groundwater expert named John Guswa who, as it happened, knew George Pinder quite well. “I worked with George in the Geological Survey,” Guswa had said at his deposition. “I’ve had dinner with him. I respect him as a person and as a professional.” All the same, Guswa was certain that Pinder had been wrong about the river. The wells did draw water from the river, and that, Guswa would later assert, was how they had become contaminated.

  But first Guswa had to explain why, in his scientific opinion, W. R. Grace could not have contaminated the wells. As a graduate student, Guswa had specialized in the study of glaciers, and he brought that specialty to bear on the Woburn case. The terrain of east Woburn, he explained to the jury, had been shaped twelve thousand years ago, at the end of the last Ice Age, when an immense glacier more than a mile thick had covered the New England landscape. In its advance and retreat, the glacier had deposited a layer of soil fifty feet deep on the bedrock ridge where the Grace plant was now located. Soil of that type, compressed under the glacier’s enormous weight, was known to geologists as ground moraine, or hardpan. It was densely compacted and groundwater seeped through it very slowly, like water trickling through a pipe stuffed with sediment.

  Like “a stuffed pipe”—that was how Guswa told the jury to imagine the subterranean path from Grace to the wells. Guswa had an infectious, almost boyish enthusiasm for the subject of glacial morphology. He was forty-one years old, clean-shaven with a shock of thick brown hair that often fell down over his forehead. He had constructed a sophisticated three-dimensional computer model of the east Woburn groundwater system, using hundreds of data points. He explained how rain falling on the Grace property seeped into the earth, carrying with it the TCE and other solvents dumped on the ground by workers. The contaminated groundwater from Grace was indeed moving down toward the wells, Guswa admitted, but the “pipe,” clogged with ground moraine that had the “permeability of concrete,” had backed everything up. His computer model proved this, he said. “It’s my conclusion that even if the chemicals were released to the groundwater system on the day the plant opened in 1960, they could not have reached Wells G and H by May of 1979.”

  All of this information was new to Schlichtmann. He had deposed Guswa six months ago, and the geologist had said then that he had not determined how quickly groundwater moved from Grace to the wells. If Guswa was right, then Schlichtmann had just lost his case against W. R. Grace.

  But Schlichtmann knew that Guswa had to be wrong. The bare facts—contamination at Grace, the same contamination in the city wells, and a direct path from Grace to the wells—should have made Guswa’s opinion look as ridiculous as Olin Braids’s soil bugs testimony. So Schlichtmann thought. But even Schlichtmann could see that Guswa was not Braids. Guswa had used accepted scientific methods. He was an engaging and credible witness. And, quite unlike Braids, his explanation at least sounded plausible.

  At the office that evening, Schlichtmann and Nesson spent several hours going over Guswa’s testimony. Pinder had gone to Europe for a conference of geologists and groundwater specialists, so they couldn’t consult him. They worked late that evening, but they couldn’t come up with anything. Keating would have Guswa on the stand for two more days. They had to figure out how to prove Guswa wrong by then. When Nesson left the office, he took with him several of Pinder’s hydrogeology textbooks.

  The next morning, Schlichtmann watched Guswa take the witness stand again and reiterate his assertions of yesterday. Then Guswa added a new calculation: The wells, running at full capacity, pumped eleven hundred gallons a minute. Even if all the contaminated Grace groundwater did get to the wells—and Guswa was not admitting that any did, given the density of ground
moraine, but assuming for a moment that it did—Grace’s contribution would amount to only five gallons a minute. In this hypothetical scenario, the groundwater from Grace would amount to less than one half of 1 percent, the proverbial drop in the bucket.

  Nesson, seated next to Schlichtmann at the counsel table, listened to all of this attentively. When Guswa began demonstrating his point on the portable blackboard, Nesson scribbled notes on his legal pad. Standing before the jury, Guswa estimated that an average of twelve inches of rainfall would seep into the earth and become groundwater in any given year. He multiplied those twelve inches, or one cubic foot, by the area of the Grace property, which occupied a square approximately six hundred feet on each side. This gave him an annual total of 2.7 million gallons of water entering the ground, a seemingly large amount, Guswa admitted, but not once he reduced it to gallons per minute and compared that with the amount pumped by the wells.

  When Guswa finished presenting this calculation, Nesson stuffed his notes into his briefcase and hurriedly left the courtroom, pushing his way out the heavy swinging doors.

  Schlichtmann hardly noticed Nesson’s sudden departure. Nesson, alone among the lawyers, came and went from the courtroom as he pleased. Besides, Schlichtmann was pondering Guswa’s new calculation. Each element of it made sense, but why had Keating thought it necessary? After all, Guswa had made a convincing argument yesterday that nothing had ever gotten from Grace to the wells. Schlichtmann wondered if Guswa had come up with this calculation last night, brainstorming with the lawyers. He could imagine Keating and Cheeseman saying to each other, “Hey, that’s great! Let’s put it in.” Schlichtmann felt there was something peculiar about it all, but he couldn’t put his finger on the problem. He’d talk it over with Nesson as soon as Nesson returned.

  Nesson didn’t return to the courtroom that day. Nor did he show up at the office later that afternoon. Schlichtmann called Nesson’s office at Harvard, but his secretary hadn’t seen him. Then, in rising consternation, he called Nesson’s home in Cambridge, but there was no answer. Time was running out. Schlichtmann would have to begin cross-examining Guswa tomorrow. “Where the hell is Charlie?” Schlichtmann yelled from the conference room.

  Nesson was still missing the next morning. When Keating finished his direct examination of Guswa, Facher got up to ask the Grace expert a few questions. As co-defendants, Facher and Keating had agreed not to help Schlichtmann by pointing fingers at each other during the trial. Facher knew that Guswa would not deliberately hurt Beatrice. In reply to Facher, Guswa told the jury there wasn’t enough information for him, or any groundwater expert, to determine whether TCE from Beatrice had reached the wells. The groundwater flowed into an area that Guswa called “the zone of uncertainty.” This opinion seemed to satisfy Facher.

  It was Schlichtmann’s turn to cross-examine. He and Nesson had already devised a line of questioning that had to do with Beatrice, not Grace. It didn’t deal with the real threat Guswa posed, but it looked promising, and Schlichtmann knew it would get him through the rest of the day. He hoped he could use Guswa to prove that Pinder had been right—that TCE from Beatrice would flow under the river to the wells.

  Schlichtmann read aloud to Guswa the water-level measurements that had been taken during the pump test. Then he had Guswa calculate the direction of groundwater flow based on these measurements, using the simple method of triangulation. Guswa did so, and by the time he finished, he had groundwater from Beatrice flowing in the direction of the wells.

  The judge listened intently to Schlichtmann’s examination. Then he interrupted Schlichtmann and began interrogating Guswa himself. Would the river form a barrier between the wells and the Beatrice property? the judge asked.

  Guswa said, “There’s no barrier or wall of water under the river.”

  “No barrier?” the judge said.

  “No,” replied Guswa.

  “So water could flow from the Beatrice site, under the river, to the area of the wells, as far as you’re concerned? That’s one of the possibilities?”

  “It’s one of the possibilities, yes, sir,” Guswa admitted.

  At the Beatrice counsel table, Facher grew visibly agitated. He objected to the judge’s questions, but the judge paid him no mind. When Schlichtmann resumed questioning Guswa, Facher stood and lurched forward to the witness stand, toward Guswa, interrupting Schlichtmann’s cross-examination, a loss of poise that was most unusual in Facher.

  “Wait a minute, wait a minute,” the judge said to Facher, holding up his hand.

  Facher looked up at the judge. “The measurements, he’s asking for all the measurements.”

  “The witness seems able to understand the question,” said the judge. “I don’t think he needs any help.”

  Guswa had not meant to implicate Beatrice, and he had not done so willingly. In the end, he said to Schlichtmann, in apparent frustration, “I have to direct our efforts at our problem. Beatrice has to take care of their problem. You have to take care of your problem.”

  Schlichtmann had gotten what he’d wanted. He’d turned Guswa into a witness against Beatrice, and doing so had taken him to the end of the day. But he still hadn’t figured out how, in Guswa’s words, to take care of his problem with Grace. He had no plan for tomorrow. And Nesson was still missing. Kathy Boyer had called around all day looking for Nesson, to no avail.

  Nesson had gone to the only place he knew he could work without interruption—the Harvard Law School faculty library, on the top floor of the Griswold Building. Like Schlichtmann, he had the sense that there was a simple and obvious way, just beyond his immediate grasp, to prove Guswa wrong. It was a riddle, and riddles of this sort had always appealed to Nesson.

  He began with the premise that groundwater from Grace did get to the wells. He accepted that as a physical truth. Guswa’s ground moraine theory, therefore, had to be flawed. But Nesson couldn’t hope to find the flaw in Guswa’s computer model. Checking and verifying the hundred pieces of data that went into the model would take weeks and he had only hours.

  The way to solve this riddle had eluded Nesson until Guswa began making his five-gallon-a-minute calculation. Even then, Nesson hadn’t known the solution, but he felt certain he had enough information to work with. And that was why he’d left the courtroom so suddenly.

  By this time Nesson was familiar with the basic principles of hydrogeology. From Pinder he’d learned about Darcy’s Law, the basis for virtually every calculation in hydrogeology. It was a simple mathematical formula, devised by a nineteenth-century Frenchman, to compute the flow of water through porous media. The law stated that the quantity of water (Q) flowing through a given area is equal to the hydraulic conductivity (K) of the material through which it flows, multiplied by the size of the opening (A), multiplied again by the gradient, or angle of incline (I). Thus: Q = K × A × I. Once one knew what values to put into the formula, it was quite easy to work out. Unlike Guswa’s splendid three-dimensional computer model, it required only a pencil and paper.

  Nesson began working out the equation, using the values Guswa had supplied on the morning of his five-gallon-a-minute calculation. Nesson discovered immediately that the equation did not balance. He assumed for the moment that Guswa was right about twelve inches of annual rainfall entering the groundwater system through Grace. He assumed further that Guswa was right about the angle of incline toward the wells and also the low conductivity of ground moraine. How big, then, Nesson asked himself, would the opening—the pipe, as it were—have to be to accommodate the volume of water that flowed through the system? Using X to represent the size of the opening, Nesson performed some simple algebra and reworked the equation so that it looked like this:

  The moment he completed the math, he knew he’d found the way to prove Guswa wrong. It was simple to understand and elegant, and it had the singular virtue of using Guswa’s own values to provide a damning answer.

  Schlichtmann sat in the conference room with Conway and Kiley, wondering w
hat he would do with Guswa the next day. It was early evening when Nesson walked in, smiling broadly. Schlichtmann jumped up and shouted. “For Christ’s sake, Charlie, where the hell have you been?”

  Nesson smiled. “I’ve figured out how to nail Guswa.”

  Everyone gathered around to watch as Nesson wrote Darcy’s Law on the blackboard. “Go slow, Charlie,” warned Schlichtmann when he saw the equation. “You’re talking to someone who can’t balance his own checkbook.”

  The next morning, Schlichtmann began obliquely, without mentioning Darcy’s Law, by getting Guswa to agree to his own previously stated values—the hydraulic conductivity of ground moraine, the area of the Grace plant, the amount of rainfall entering the system. This took Schlichtmann longer than he’d anticipated, and by the close of the day he’d set Nesson’s trap but he hadn’t sprung it.

  “Is this a place you want to stop?” the judge asked in consternation. “There must be something that follows from all this. It seems to me there’s a question missing.”

  “I can go further,” said Schlichtmann. “Can you give us fifteen minutes?”

  Keating suspected that Schlichtmann was about to do something he wouldn’t like. He made a halfhearted protest, but the judge brushed that aside.

  “Fifteen minutes,” said the judge, “so we won’t have to be in suspense.”

  Schlichtmann wrote the formula for Darcy’s Law on the board. “Darcy’s Law states that what goes in has to come out, or is left behind, is that right?” he asked Guswa.

  “Yes,” said Guswa.

  “You take the hydraulic conductivity—that’s the permeability of a material—and you multiply that by the opening the water has to pass through, right? And then you multiply that by the incline down which the water travels.”

  Guswa agreed with all this. Schlichtmann had Guswa come up to the chalkboard in front of the jury box and write out the formula using the values for the Grace property. “Now,” continued Schlichtmann, “if we didn’t know how big the opening was, if we were to call that X, we could rearrange the equation to find that out.”