A Civil Action

by Jonathan Harr

  In a public presentation to the citizens of Woburn, the EPA unveiled a reclamation plan that would take fifty years to complete and would cost an estimated $69.4 million, the largest and most costly environmental cleanup in New England.

  The Boston Herald called Schlichtmann for a comment. “It’s about time,” Schlichtmann was quoted as saying.

  W. R. Grace was indicted by the U.S. Attorney for lying in its statements to the EPA, lies that Schlichtmann had brought to the Justice Department’s attention because of Al Love’s willingness to come forward. Grace pleaded guilty to two felony counts and was assessed the maximum fine, which at the time amounted to ten thousand dollars. Shortly after, W. R. Grace announced that it would close its Woburn plant, where ninety-five workers were employed. Most workers were offered jobs elsewhere. “It’s also possible that there will be some layoffs,” said a Grace spokesman.

  Kiley lent Schlichtmann the price of a round-trip plane ticket to Hawaii, and also gave him a little spending money. For a week or so Schlichtmann stayed in a grimy, dilapidated motel, twenty-seven dollars a night with the bathroom down the hall. Then he bought a backpack and a sleeping bag and set off hiking on the western island of Kauai. He walked over a mountain pass to a remote valley named Kalalau.

  He spent several days camping on the white sand beach, completely alone. He cooked over campfires. He swam and lay in the sun. He told himself that he was purging his mind, but in truth he kept wondering how one would know if one had wasted one’s life. He was afraid of finding the answer. He wasn’t sure from one moment to the next just what he intended to do. On his third day at the beach, right around dusk, he stripped off all his clothes and swam out into the open ocean. The sea was as smooth as glass, with only the gentlest of swells. He swam westward, toward the setting sun, for a long time, and when he finally turned to look back the island of Kauai was little more than a blur on the horizon. The water was warm and he was naked, and he felt completely at peace. He treaded water for a while, gazing back at the island. He thought of swimming on until he could no longer see land.

  But then this thought turned on itself, and he began swimming slowly back.

  Afterword to the Vintage Edition

  Jan Schlichtmann spent several years in Hawaii. He calls them his “Wilderness Years.” In 1993, he returned to Boston. The following year he married Claudia Barragan, a woman he’d met during the appeal of the Woburn case. They live in Beverly, Massachusetts, with their seven-month-old son; they are expecting another child in the fall. He currently works with Thomas Kiley and is also involved in several non-legal projects, all of which concern environmental and preservation issues. “I count myself among the most fortunate of men,” he said recently.

  Kevin Conway and Bill Crowley remain partners in the practice of law. After struggling for several years under the burden of debt from the Woburn case, their firm, Conway, Crowley & Homer, is now thriving. Ron Homer, a legal assistant for the firm during the Woburn case, went to law school and rejoined the firm as lawyer.

  Charles Nesson continues to teach at Harvard Law School, to lecture at judicial conferences, and to moderate seminars on law, government, and public policy. In the classroom he occasionally uses the Woburn case to illustrate a point. “I used to believe in the idea that justice would prevail if you worked hard enough at it,” he said recently. “I thought if judges saw cheating right in front of them, they’d do something about it. The Woburn case gave me a depressing dose of reality.”

  James Gordon lives in Pasadena, California, and works for The Investigative Group, a private investigation firm with offices throughout the country. As the national director of environmental investigation, his clients are all large corporations and their law firms. One of the companies he has worked for is W. R. Grace.

  Mark Phillips runs his own business, Phillips Consulting, Inc., in Boston. He advises his clients, most of whom are corporations, on ways to manage complex litigation.

  Teresa Padro is now happily married and the mother of a child.

  Rikki Klieman, who is also happily married, works in New York as anchor person for Court TV while still maintaining a private practice in Boston.

  Jerome Facher still practices law at Hale and Dorr. At age seventy, he has not reduced his caseload or trial work. Although he no longer teaches at Harvard Law School, he continues to act as mentor to young lawyers in the firm and to serve on judicial education committees. In his life outside of the law, he takes great pleasure in playing with his only grandchild, fifteen-month-old Sophie.

  William Cheeseman continues to practice law at Foley, Hoag & Eliot, and to represent W. R. Grace and other companies in environmental litigation. After the Woburn trial, he served as part of the legal team that represented Polaroid in its patent infringement suit against Kodak, which resulted in a judgment of nearly one billion dollars against Kodak.

  Judge Walter J. Skinner has taken “senior status,” a form of partial retirement available to federal judges. He specializes in mediating disputes and, in his spare time, he paints portraits and landscapes.

  Seven of the eight Woburn families still live in Woburn, most of them in the same houses. Asked by a television reporter after the Grace settlement if he would leave Woburn, Richard Toomey said: “As far as I can tell, these kinds of problems with toxic waste are all around us. Why would we want to move? At least we know what we’re facing here.”

  Richard Toomey died of cancer, a malignant melanoma, in 1990.

  The clean-up of the Wells G and H site, now in its sixth year, proceeds under the supervision of the Environmental Protection Agency. Two groundwater treatment systems have pumped seventy-four million gallons of contaminated water out of the Aberjona aquifer. The treatment systems, which consist of ultraviolet radiation and chemical oxidation, have extracted approximately seventy-one gallons of contaminants, mostly TCE and perc, from the groundwater. In addition, sixteen hundred tons of contaminated soil have been removed from the Beatrice property and incinerated.

  The ultimate aim, of course, is to clean up the Aberjona River and its surroundings to a degree that makes the area safe for human recreational activities. Given the nature of the contaminants, however, all parties agree that it will prove impossible to rid the site of TCE and perc completely, especially in the deepest reaches of the aquifer. Only nature can accomplish that, and it will take nature many thousands of years to do so.

  April 1996

  Northampton, Massachusetts

  A Note on Sources

  I began working on this project in February 1986, before the start of trial, at the suggestion of a friend, Tracy Kidder, who knew I was looking for a book topic. After some initial research that consisted largely of reading news accounts, I met with Jan Schlichtmann and his partners in their office on Milk Street. Schlichtmann agreed to let me follow the events of a major lawsuit as an observer from within, with complete access to his preparation of witnesses and the daily strategy sessions with his partners. The Woburn families also graciously gave their consent to my presence and allowed me to sit in on their meetings with Schlichtmann. During the five months of trial, I was excluded only from one early meeting, in April 1986, concerning the firm’s dire financial straits. Thereafter, during the summer of the harrowing settlement negotiation and the ensuing four years of the Beatrice appeal, I was permitted unrestricted access to the firm’s operation.

  Schlichtmann and his partners imposed no conditions or limitations upon me. It was understood from the outset that they would not have the right to read and revise the manuscript before publication. I, however, imposed one condition upon myself: I decided that during the trial and the settlement negotiation I would not attempt to seek equivalent access to the lawyers for Grace and Beatrice. I did not want to put myself in the position of wittingly or unwittingly becoming a conduit of information for one side or the other.

  Throughout the course of the lengthy trial I would occasionally speak with Jerome Facher and, to a lesser extent, Willia
m Cheeseman, but I did not begin the process of in-depth interviewing until after the settlement. With Facher’s invitation, I attended his trial practice class at Harvard Law School during the spring semester of 1987, and again in 1988, although with less regularity. After class he and I would often eat dinner at the Harvard Law School cafeteria and talk about the case, the practice of law, and his life and career. In the fall of 1986 I spent several days watching him try another case in New Hampshire and he gave me valuable insight into his methods and strategy during that time. William Cheeseman spent many hours with me in his office, occasionally over lunch, and on the telephone, answering my questions and explaining his view of the early development of the case.

  I have not changed any names except in those two instances (one concerning a potential witness and his family, the other a client of Schlichtmann’s unrelated to the Woburn case) that are noted in the text. Any similarity between the fictitious names and persons living or dead is of course purely coincidental.

  I relied on the official record—primarily 196 volumes of sworn deposition testimony, seventy-eight days of trial testimony, and fifty-seven volumes of pre- and post-trial hearings—as well as my own interviews to reconstruct events that I myself did not witness. The thoughts and feelings of the characters as described in the narrative are based on what they told me they thought and felt, or what they described as their thoughts and feelings in transcribed court proceedings. I attempted whenever possible to verify one person’s recollection of an event with another’s, and where memories diverged I chose what I believed to be the most plausible and trustworthy account.

  Dialogue and scene play an important role in the telling of this story. In some instances, such as the scene in which Teresa Padro first meets Schlichtmann, I was the beneficiary of Teresa’s verbatim recall of what was said. In others, such as the lengthy discussion between Schlichtmann and his partners at the Helmsley Palace after the negotiation with Grace, I was present and taking notes. The reader might notice that a character speaks aloud from time to time when it appears that no one else is present, as Kevin Conway did at the Helmsley Palace when he said he would follow Schlichtmann. I, of course, was present, and it was to me that Conway was speaking. In other instances—when John J. Riley spoke in the elevator with a “member of the gallery,” for example, or when Schlichtmann, dining with an “acquaintance,” encountered Teresa for the last time—I was the unnamed party.

  A number of published sources in addition to the official record of the case proved helpful to me. In the Woburn Daily Times, the work of Charles C. Ryan provided valuable details of events leading up to the investigation by the Massachusetts Department of Public Health and the Centers for Disease Control. My thanks also to Dan Kennedy, a reporter for the Daily Times, who covered the trial and its aftermath. In the December 1986 issue of The American Lawyer, Mitchell Pacelle wrote “Contaminated Verdict,” a lucid account of the jurors’ attempt to answer Judge Skinner’s confusing questions.

  The interested reader should note that two other books about Woburn have been published. Cluster Mystery: Epidemic and the Children of Woburn, Mass. (C. V. Mosby Company, St. Louis, 1985), by Paula DiPerna, came out several months before the start of trial. No Safe Place: Toxic Waste, Leukemia, and Community Action (University of California Press, Berkeley, 1990), was written by Phil Brown, a sociologist at Brown University, and Edwin Mikkelson, a psychiatrist, who served as an expert witness for the plaintiffs.

  In the field of leukemia research and clustering, I found the following articles useful to my understanding of what happened in Woburn:

  Evatt, B. L.; Chase, G. A.; and Heath, C. W., Jr. “Clustering in Two Georgia Counties.” Blood, February 1973.

  Fagliano, Jerald; Berry, Michael; Bove, Frank; and Burke, Thomas. “Drinking Water Contamination and the Incidence of Leukemia.” Division of Occupational and Environmental Health, New Jersey Dept. of Health, December 1987.

  Glass, A. G.; Hill, J. A.; and Miller, R. W. “Significance of Leukemia Clusters.” Journal of Pediatrics. July 1968.

  Heath, Clark W., Jr. “The Leukemias.” Chapter 41 in Cancer Epidemiology and Prevention, eds. David Schottenfeld and Joseph F. Fraumeni, Jr. Philadelphia: W. B. Saunders Company, 1982.

  Heath, Clark W., Jr., and Hasterlik, Robert J. “Leukemia Among Children in a Suburban Community.” American Journal of Medicine, June 1963.

  Janerich, Dwight T., et al. “Increased Leukemia, Lymphoma, and Spontaneous Abortion in Western New York Following a Flood Disaster.” Public Health Reports, July–August 1981.

  Lagakos, S.; Wessen, B.; and Zelen, M. “An Analysis of Contaminated Well Water and Health Effects in Woburn, Massachusetts.” Journal of the American Statistical Association. 81:583–596.

  Levine, Rick. “Cancer Town.” New Times, August 7, 1978.

  Mantel, N. “Does Leukemia Cluster?” Biometrics. vol. 20, 1964.

  ________. “Leukaemia Clustering in the Liverpool Area?” Lancet. 1:1058, 1967b.

  Meighan, S. S., and Knox, G. “Leukemia in Childhood: Epidemiology in Oregon.” Cancer. 18:811, 1965.

  Pinkel, Donald, and Nefzger, Dean. “Some Epidemiological Features of Childhood Leukemia in the Buffalo, N.Y., Area.” Cancer, March–April 1959.

  Simone, Joseph. “Acute Lymphocytic Leukemia in Childhood.” Seminars in Hematology, January 1974.

  Smith, P. G. “Spatial and Temporal Clustering.” Chapter 21 in Cancer Epidemiology and Prevention, eds. David Schottenfeld and Joseph Fraumeni, Jr. Philadelphia: W. B. Saunders Company, 1982.

  The depositions of the expert witnesses for both the plaintiffs and the defendants were essential to my understanding of the medical aspects of the case. I also found the following articles on the toxicological properties of trichloroethylene helpful.

  Agency for Toxic Substances and Disease Registry. Toxicological Profile for Trichloroethylene. U. S. Department of Health and Human Services, U. S. Public Health Service, Atlanta, 1989.

  Andelman, J. B. “Human Exposures to Volatile Halogenated Organic Chemicals in Indoor and Outdoor Air.” Environmental Health Perspectives, vol. 62, 1985.

  Axelson, Olav, et al. “A Cohort Study on Trichloroethylene Exposure and Cancer Mortality.” Journal of Occupational Medicine, March 1978.

  Brown, H. S.; Bishop, D. R.; and Rowan, C. A. “The Role of Skin Absorption as a Route of Exposure for Volatile Organic Compounds in Drinking Water.” American Journal of Public Health, May 1984.

  Buxton, Peter H., and Hayward, Michael. “Polyneuritis Cranialis Associated with Industrial Trichloroethylene Poisoning.” J. Neurol. Neurosurg. Psychiat. vol. 30, 1967.

  Defalque, Ray J. “Pharmacology and Toxicology of Trichloroethylene: A Critical Review of the World Literature.” Clinical Pharmacology and Therapeutics, September–October 1961.

  Feldman, R. G.; Mayer, R. M.; and Taub, A. “Evidence for Peripheral Neurotoxic Effect of Trichloroethylene.” Neurology, June 1970.

  Feldman, Robert G. “Trichloroethylene.” Handbook of Clinical Neurology, eds. P. J. Vinken and G. W. Bruyn. New York: North-Holland Publishing Company, 1979.

  Feldman, Robert G.; Chirico-Post, Jeanette; and Proctor, Susan P. “Blink Reflex Latency after Exposure to Trichloroethylene in Well Water.” Archives of Environmental Health, March–April 1988.

  Feldman, Robert G., et al. “Long-Term Follow-Up After Single Toxic Exposure to Trichloroethylene.” American Journal of Industrial Medicine, vol. 8, 1985.

  ________. “Neurotoxic Effects of Trichloroethylene in Drinking Water.”

  Chapter 1 in The Vulnerable Brain and Environmental Risks, eds. Robert L. Issacson and Karl F. Jensen. New York: Plenum Press, 1994.

  ________. “Blink Reflex Measurement of Effects of Trichloroethylene Exposure on the Trigeminal Nerve.” Muscle & Nerve vol. 15, 1992.

  Huff, James Edward. “New Evidence on the Old Problems of Trichloroethylene.” Industrial Medicine, November 1971.

  McMichael, A. J.; Spirtas, R.; Kupper, L. L.; and Gamble, J
. F. “Solvent Exposure and Leukemia Among Rubber Workers: An Epidemiologic Study.” Journal of Occupational Medicine, April 1975.

  Smith, G. F. “Trichloroethylene: A Review.” British Journal of Industrial Medicine, vol. 23, 1966.

  The following books and articles all proved helpful on issues of the law. I spent a great deal of time learning about the history of tort law and personal injury lawyers, although in the end little of this research made its way into the narrative. Nonetheless, I believe it served me usefully as background. On the subject of legal history I especially commend the excellent volumes by Lawrence Friedman and Edward White.

  Calabresi, Guido. The Cost of Accidents: A Legal and Economic Analysis. New Haven: Yale University Press, 1970.

  Cockrill, Ashley. “The Shyster Lawyer.” Yale Law Journal, March 1912.

  Countryman, Vern A.; Finman, Ted; and Schneyer, Theodore J. The Lawyer in Modern Society. Boston: Little, Brown and Company, 1976.

  Danzon, Patricia M. Medical Malpractice: Theory, Evidence, and Public Policy. Cambridge: Harvard University Press, 1985.

  Friedman, Lawrence M. A History of American Law. New York: Simon & Schuster, 1985.

  Holmes, Oliver Wendell. The Common Law. Boston: Little, Brown and Company, 1963.

  Horowitz, Morton J. The Transformation of American Law. Cambridge: Harvard University Press, 1977.

  Huber, Peter W. Galileo’s Revenge: Junk Science in the Courtroom. New York: Basic Books, 1991.

  Mauet, Thomas A. Fundamentals of Trial Technique. Boston: Little, Brown and Company, 1980.

  Rosenberg, David. “The Causal Connection in Mass Exposure Cases: A ‘Public Law’ Vision of the Tort System.” Harvard Law Review, February 1984.

  Silverman, Robert A. Law and Urban Growth: Civil Litigation in the Boston Trial Courts, 1880–1900. Princeton, N.J.: Princeton University Press, 1981.

  Smith, L. G. “Evolution of the Ambulance Chaser.” The Green Bag. 14:264, 1902.