“Tell her about four parts per billion,” said Phillips.
Schlichtmann tore up the message.
They sat in silence, waiting for Eustis to call. Phillips smoked cigarettes and watched the smoke curl around his finger. Schlichtmann looked out the window at tourists.
“Nobody calls here anymore?” said Schlichtmann. “Not even creditors? Do we have any other cases?”
That reminded Phillips of the Gallagher case, a woman crippled by a cerebral aneurysm. Phillips had worked on the case while the Woburn jury was deliberating. The case was not ready for trial, but Phillips hoped it might settle early and provide them with some cash. He asked Schlichtmann to call the defense lawyer.
Schlichtmann shook his head.
“It’ll only take one minute,” said Phillips.
“No. Later.”
Schlichtmann leaned back in his chair, cradled his head in his arms, and stared at the ceiling. “I remember going out to Woburn five years ago and telling them it couldn’t be done. It would cost too much, take too long, and the results were too uncertain. The file was less than half an inch thick. The only thing in it was the CDC report and Mulligan’s contingency fee agreements. Every time I looked at that fucking file I’d get nauseous.”
Conway came into Schlichtmann’s office and sat wearily on the couch, listening to this reminiscence.
Schlichtmann glanced at him. “Should I have talked to Eustis directly?”
“Absolutely,” said Conway. “You said you were coming to New York to resolve this.”
“Gordon told me we weren’t staying. Call him back, Gordon said. So I called him back.”
“That was incredibly weak and stupid,” said Conway, but his voice sounded sad, not angry.
“So I made another mistake. Aaaaaahhh.”
Conway fell silent, his brow deeply furrowed, his foot jiggling rapidly, his fingers twining around a lock of his thick, overgrown hair. Phillips played with the door handle, opening and closing the knob, the click of the mechanism the only sound in the room.
Eustis never did call that day.
The next morning, Schlichtmann arrived at the office with a new resolve. “This is war,” he said to Phillips. “I’m not going to grovel at Eustis’s feet for a few more bucks. I won’t survive that humiliation any better than going ahead with the trial. It’ll probably destroy us. But there is such a thing as honor. It comes with a big price. I’ll go to the families and make them understand there is no settlement to accept. I’ll tell the experts we can’t pay them anymore. I’ll call Eustis and reject his offer. On September fifth, we’ll go see the judge. He’ll either force a settlement, or we’ll lose some plaintiffs and go to trial.”
Phillips listened to this declaration, nodding his head as Schlichtmann spoke. “I want you to know I’m proud of you,” Phillips said. “The hardest decision you’ve ever made.” Phillips began humming as he talked. “Also absolutely insane”—hummm, hummm. “As insane as taking this case in the first place”—hummm, hummm. “Drag that bastard Eustis off his pedestal …”
Schlichtmann imagined how he’d begin the trial. He would pack the courtroom with Woburn families, their neighbors and friends, and members of the Woburn environmental group FACE. “If the judge won’t let them testify, we’ll have them in the corridor talking to the press. We’ll have a press conference with all the leukemics just before the trial begins.”
“The only horror is capitulation,” murmured Phillips. “Waiting for Eustis to call yesterday was the absolute pits. The most awful, degrading day. The last two weeks have been terrible, but yesterday was the worst.”
“The office can survive on fifty thousand dollars a month,” said Schlichtmann.
Phillips looked sardonically at him. “We can survive on thirty-five thousand. There’s fat upon fat upon fat in fifty. You’d be amazed at how well you can survive on the basics. Which, incidentally, is how most law firms work.”
“I just need my laundry, my suits.”
“Get them real clean in September and see how long you can go,” said Phillips. “Facher had a spot on his tie every day. Maybe you should try it.”
Schlichtmann, his mind made up now, dialed Eustis’s number. Phillips and Conway and Crowley sat across the desk from him, listening to his end of the conversation.
“Hello, Al?” Schlichtmann said, swiveling his chair around and looking down onto Milk Street. “I’m just wondering what progress you’ve made … Yeah, right, uh huh … Sure, they’re good attorneys.” He listened for a long while. Then he said, “Sounds like you got a great case there, Al. I assume you’re withdrawing your offer. You’re certainly entitled to do that.”
Schlichtmann hung up the phone and turned his chair around to face Conway and Phillips and Crowley. “Good. It’s over. Eustis said he got a memorandum from Keating and he found out some interesting things. Jarrod Aufiero died of salmonella. Roland Gamache drank bottled water since 1974. He said, ‘Maybe I should just wait until September fifth and see what the judge does.’ ”
Schlichtmann took a deep breath. “So, we go forward.” He looked at Crowley and smiled. “Crowley, you’re the new trial lawyer in this firm. You should hear the stories they told about the old one.” He laughed.
Phillips laughed, too, patting Crowley on the shoulder. “You’ll have a few brilliant successes and then you’ll go straight down.”
Schlichtmann sighed. “This could be fun,” he said, his voice tentative.
Phillips began humming. “It will be. You’re not expected to win. You’ve got nothing to lose.”
“Another six months of misery,” groaned Conway. “What will I tell my wife?” No one answered. Conway supplied the answer himself. “I think I’ll tell her we settled. She won’t know the truth until she hears on the news that we’ve started phase two.”
6
The computers hadn’t been repossessed yet, as Gordon had feared, but everyone in the office expected that to happen at any moment. Just yesterday, a man from the electric company had come to shut off the electricity. A secretary had asked the man to wait while she called Gordon, who had come over with a check.
Gordon moaned incessantly about the debt, the threatening calls from angry creditors, the growing number of lawsuits. Phillips listened to him with barely concealed irritation. “We’re going to lose the computer system,” Gordon was saying. “We can’t stop that. We haven’t paid since last November.”
“We’ve been operating in a fool’s fantasy world,” said Phillips. “It serves us right.”
Gordon complained about not being able to pay the excise tax on his Mercedes, his beloved Mercedes. Nor could he pay the parking garage, which was about to evict the Mercedes from its space. Then the city would tow the car for unpaid back taxes, if the bank did not repossess it first.
Phillips had no patience with this. “You won’t be able to buy your fucking yacht and park it in Palm Beach. So what?”
Gordon proclaimed that doom was just around the corner.
“Shut up, Gordon,” said Phillips. “You and Schlichtmann are the ones who got us into this trouble in the first place. We have a star quarterback, why worry about the overweight center? That’s the attitude that’s caused this trouble. The rules of the game are going to change.”
“Mark,” said Gordon, attempting to placate his partner. “It makes no difference whether the expenses are two million or two and a half million. Either way, we’re in deep shit.”
“Of course it does. It makes all the difference.”
• • •
Conway left his home in Wellesley for work on Thursday morning, August 28, a rainy, gray morning with the barest hint of autumn in the air. He had one dollar and seventy-five cents in his pocket, exactly enough money to pay for the commuter train ticket to Boston. He had given up driving into the city because he could no longer afford to park in the lot on Milk Street. He and his wife had argued about money. Conway had told her the truth—the case wasn’t going to settle,
they were going to trial. She was furious, mostly at Schlichtmann, whom she held responsible for their penurious state, but also at her husband for having risked their home. Conway left for work beset by images of crushing debt, the law firm in collapse, his house repossessed by the bank, his wife and children on the street.
All of that could be averted by settling for what Eustis had offered. They could get rid of the case and start life anew. They’d made millions in the last five years from other cases, and they could do it again. But Conway knew that it wouldn’t be that easy. To Schlichtmann, the idea of accepting Eustis’s offer was humiliating. He’d rather go ahead and risk losing everything. It was easy for Schlichtmann to take that risk, Conway thought. He didn’t have a family depending on him. And what about the Woburn families? They were the ones who should really be making this decision, not Schlichtmann.
These thoughts preoccupied Conway while he waited for the train. Out of habit, he bought a newspaper, which left him with $1.40. Not until he boarded the train and saw the conductor coming down the aisle, collecting money, did he realize his mistake in buying the paper. Embarrassed, apologizing profusely, he offered the conductor what money he had. The conductor regarded him with pity and then, to Conway’s chagrin, offered to loan him a few dollars. Conway felt grateful for the conductor’s solicitude and at the same time a sense of horror at the state to which he had sunk. He declined the conductor’s offer and assured him that he would pay his debt tomorrow.
On that same morning, Gordon searched the drawers of his desk and filing cabinet for any Krugerrands or stray hundred-dollar bills that he might have overlooked in earlier forays. In the back of one drawer he found a tattered blue savings account book from Brookline Savings. The last entry, a deposit, had been made in May 1962, when Gordon was eight years old. The account balance read $39.42. Immediately Gordon called the bank to withdraw the balance, which he discovered now amounted, with accrued interest, to $177. Gordon’s spirits began to rise.
The mail, along with the usual pile of overdue bills and threats of legal action, brought good tidings, too—another new credit card. Gordon quickly arranged to convert the three-thousand-dollar credit line into cash so that he could pay some bills, among them the bank loan for his Mercedes. Then he called the bank that held the car loan. “Ron! It’s your favorite delinquent!” he said jovially.
He spent the next hour calling creditors, attempting to forestall legal actions. He started with the small accounts and would work his way up to the larger ones as the morning progressed. He no longer bothered calling the hopeless cases—American Express, which had already filed a lawsuit, and Heller Financial, the Chicago-based company from which the firm leased its computer system and other office equipment.
“We’re having a serious cash-flow problem,” Gordon explained to a clerk at West Publishing in St. Paul, Minnesota, where the bill, seven months overdue, came to $3,049.66. “What sort of deal can we work out?”
“Well, how much can you send us?” asked the clerk.
“Nothing right now.”
This seemed to give the clerk pause. “When will you be able to?”
Gordon said he hoped to know more by mid-September. The clerk agreed to forestall legal action until then.
Gordon was feeling better. When his secretary told him that Conway was on the telephone, Gordon switched on his speakerphone and answered with boisterous good humor. His fine mood disappeared the instant he heard Conway’s voice.
“I’m really scared,” said Conway in a hesitant and tremulous voice. “I came in scared this morning. We’re working on this motion for the conference with the judge next week and I just don’t know if we have any direction.”
Hearing Conway, the realist, always levelheaded, in such a state of alarm frightened Gordon. He tried to calm Conway. “Why don’t we sit down and get some direction?” he said. “When’s Charlie coming back?” (Nesson had gone to Montana with his family and was due back late in the week.) Finally Gordon told Conway, “I’ll be right over.” He spent some of his newfound wealth on a taxi to Milk Street instead of taking the subway.
The source of Conway’s anxiety was the September 5 hearing with Judge Skinner. Now that the settlement talks had failed, everything depended on the judge. He would probably dismiss the three leukemia death claims, but he could do even more.
Conway had just finished reading Keating’s brief, in which Keating asked the judge to declare a mistrial and order a new trial. The case could not go forward, Keating argued, because the jurors had failed to determine when Grace’s chemicals had first contaminated the wells. For Grace to be held liable for causing injury in Woburn, Schlichtmann had to prove that his clients had been exposed to Grace’s chemicals before those injuries had occurred. And he could not do so with this verdict. The only solution, asserted Keating, was to have the judge order a new trial.
Conway thought that Keating’s brief might well persuade Judge Skinner to order a new trial. Schlichtmann thought this was unlikely. If Skinner did so, he would in effect be admitting that his own questions had been hopelessly confusing and that they had just wasted five months of trial. Besides, Skinner would automatically preside over a new trial, and this case had already tied up his courtroom for a very long time.
But the verdict, like the questions themselves, had perplexed everyone. The judge had told the lawyers that he did not see how he could begin the second phase of the trial without knowing the date of contamination. That left open the possibility that Skinner would ask the jurors to clarify their answers. The jury, after all, was still empaneled. Schlichtmann felt uneasy about these jurors. If the judge began asking them questions, there was no telling what they might do. Once back in the courtroom, where the jurors had already spent half a year, they might decide just to end it all.
“It could be the end of the world on Friday,” said Schlichtmann grimly as he prepared for the hearing.
Phillips read aloud an account in The Wall Street Journal about a lawsuit concerning a woman who had died of toxic shock syndrome. The jury had returned a verdict of ten million dollars, which the trial judge reduced to $1.3 million. On appeal, the verdict was overturned. The woman’s survivors had gotten nothing.
“Jesus,” exclaimed Schlichtmann. “Six point six million sounds better every day.”
7
Schlichtmann saw Al Eustis sitting in the front row of the courtroom gallery on Friday, reading The New York Times. Eustis glanced up as Schlichtmann walked past, but didn’t offer any greeting. Schlichtmann put his trial bag on the counsel table, then he turned and went toward the gallery. Again Eustis glanced up, but he remained seated when Schlichtmann offered his hand, and neither of them spoke or smiled.
Judge Skinner shuffled out onto the bench. He looked at the lawyers and said, “Welcome back. I hope you had a pleasant vacation.”
If the judge intended this as irony, no one seemed to appreciate it.
The hearing went on for more than three hours that afternoon. At one point, the judge interrupted Keating and suggested asking the jurors to clarify their answers. It became apparent to Schlichtmann that Keating was just as frightened of this as he was. “I think that’s dangerous,” Keating told the judge. “There’s been a lot of publicity. The press conference Mr. Schlichtmann had in Woburn after the verdict was totally inappropriate. Any juror may have heard it—goodness knows how they could have avoided it if they kept their ears opened. The jury may think, Gee whiz, we did those people in, and we hadn’t intended to do that.”
“If they didn’t intend to do it, they should straighten it out, shouldn’t they?” asked the judge.
Keating’s argument for a new trial appeared to displease the judge, who took off his glasses and held his head in his hands. He seemed slightly more disposed to Schlichtmann’s analysis, which held that the Woburn families had been exposed to the Grace chemicals since at least September 1973, one of the dates the jury had given, and possibly even before then. “Good job,” the judge sai
d after Schlichtmann’s rebuttal of Keating. “You may not be right, but good job.”
All the same, Skinner still wasn’t completely satisfied. “I don’t see how we can begin the second part of this case leaving those answers just as they are,” he told the lawyers. “I would be very unhappy with that.”
By then it was clear that the judge would follow one of two courses: either he would ask the jurors more questions or he would order a new trial. Skinner said he needed some time to think about his ruling. He would notify the lawyers of his decision early next week.
And then, at the end of the hearing, almost in passing, the judge seemed to reveal his own thoughts on the outcome of the second phase of the case. It happened when Schlichtmann mentioned a memo sent by W. R. Grace to its Woburn plant, ordering the plant to stop using TCE. “They said it can cause cancer,” Schlichtmann was saying, when the judge interrupted him.
“Causes cancer in people?” the judge asked.
“Yes,” said Schlichtmann. “That’s why they stopped using it in their plants.”
“I don’t think there’s anything in the evidence to show it causes cancer in people,” said the judge.
“Well,” began Schlichtmann, “in 1975, the memo said: ‘A carcinogen capable of causing cancer—’ ”
“Cancer in animals,” interrupted the judge again. “The state of knowledge at the time was that it caused cancer on the skins of animals. And that’s all there was—and still is—to this day. There’s no direct evidence that application of this product actually causes cancer.”
Schlichtmann took a deep breath. “If Your Honor is asking me, Was there evidence for people to conclude that it could cause cancer in humans? I would have to say, yes, there was evidence. If Your Honor is saying that most of the evidence is based on animal studies, that is correct.”
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