by Dan Fagin
Even a reconfirmation of the cancer cluster did not shake the town out of its torpor. The state health department completed its promised update of the cancer registry in April of 1997, issuing a report confirming Michael Berry’s earlier findings and updating his statistics through 1995, instead of 1991. The new data seemed to show that the frequency of brain tumors and leukemias had peaked in the late 1980s and early 1990s and had been easing since then, though the decline was still too recent to be convincing. For the Ocean of Love families, the new data provided a vindication of sorts. “I think once and for all we can put to rest the theory that there isn’t a problem,” Gillick said.9 She was irritated that there had been little progress on the case-control study. Jerry Fagliano and his team were still designing it with the help of a group of outside experts, including several Woburn veterans. Fagliano was also consulting with Gillick’s advisory committee, which had many ideas for expanding the study’s scope.
The wheels of government were turning, but not fast enough for the Ocean of Love families. Frustrated by the apathy of the town, Gillick, Pascarella, and others wondered if there was anything else they could do to spur the investigation while also protecting the families’ rights in case there was a lawsuit. Perhaps, they thought, it was time to bring in a lawyer. Gillick called Jan Schlichtmann again, this time inviting him to come down to Toms River and meet with eight of the families at her home. The visit did not go well. When Schlichtmann began talking about his post-Woburn transformation, Michael Gillick stopped him. As Schlichtmann remembers it, Gillick said: “We’re dealing with wolves, and you need to be a wolf to deal with a wolf.” Schlichtmann argued back. “I know about wolves,” he said. “We have a whole mystique about wolves. But wolves don’t kill people. We can be a little more sophisticated about this instead of going back to our old paradigms.” Besides, he added, the mortal combat approach did not work. “If it worked,” he added, “you wouldn’t be talking to me.”
It was a deflating message. “You don’t want to hear from your lawyer that the other side has more money and you’re going to lose. You want to believe that we live in America and justice is going to prevail,” said Pascarella. He knew from his own experiences as a lawyer that the system was not always fair, but he was nonetheless irked by Schlichtmann’s approach. “He definitely was not very warmly received,” Pascarella recalled. The Gillicks also were not immediately sold—“I actually wanted my day in court,” Linda Gillick explained later—but she shared Schlichtmann’s cynical view of the legal system and agreed that his method could produce a faster result.10 She knew that many of the families were having money problems and did not have the emotional stamina to wait out a decade-long legal ordeal. Thanks to Woburn, Schlichtmann was experienced in cases involving cancer and groundwater, even if his knowledge had been gained through trial and error (or, perhaps more accurately, error at trial). Thanks to the fame of A Civil Action, the movie of which was already in production, he would be a magnet for media attention, which had been essential to the families’ success so far. Finally, Gillick saw in Schlichtmann’s Woburn odyssey a quality she valued dearly: loyalty. As she later told a reporter, “Here’s a man who ended up losing his practice and everything he’d worked for in life to make a commitment to these families.”11
Jan Schlichtmann was not the only lawyer Linda Gillick spoke to, but most of them wanted a large up-front retainer fee. They did not want to repeat Schlichtmann’s mistake of investing millions of dollars in a sprawling case and losing their shirts. (In Schlichtmann’s case, it was literally true: After Woburn, he had to sell his clothes.) But Schlichtmann did not demand a retainer. Neither did Mark Cuker, a Philadelphia attorney who had also been in touch. They were willing to be paid on a contingency basis; they would receive 25 percent of any money the families ultimately received.
Mark Cuker was a quietly intense, studious lawyer who took justifiable pride in his mastery of the details of his environmental cases. He was known in Ocean County for his representation of two hundred homeowners in Pine Lake Park, a development just north of the Ciba factory. Dozens of backyard wells there had been contaminated with solvents since the mid-1980s, but Ciba was not the cause because its pollution plumes flowed east toward Oak Ridge Estates, not north to Pine Lake Park. The case had languished for years until Cuker took it over and pursued it vigorously, targeting a nearby asphalt plant that used TCE. He later joked that he knew he had a winner when he visited the asphalt plant’s “laboratory,” a shed where the solvents were kept, and found a dead animal on the stoop.
The asphalt plant’s lawyer, Ellis Medoway, told Cuker that he should be suing Union Carbide, arguing that Reich Farm was the real source of the groundwater contamination at Pine Lake Park. Cuker thought that was very unlikely. Pine Lake Park was almost two miles west of Reich Farm and on the other side of the Toms River. Still, Cuker did not want the asphalt company to be able to blame someone else if there were a trial, so he added Union Carbide to the lawsuit and took sworn depositions from the key characters involved in the 1971 dumping at the egg farm, including Nick Fernicola and his brother, Frank. Cuker was both amused and appalled by the Fernicolas’ descriptions of their misadventures in the waste business. In 1996, when Reich Farm was back in the news because of the cluster investigation, Cuker thought that Linda Gillick would be interested in the Fernicola transcripts. He got her phone number from one of his Pine Lake Park clients, called her, and sent her the depositions. He figured that Gillick would want to read them, and he also thought that she might need a lawyer sometime soon.
Almost a year later, in the late summer of 1997, Gillick invited Cuker to a get-acquainted meeting similar to the one with Schlichtmann. Cuker brought one of his law partners, Esther Berezofsky, a gregarious trial specialist who would also work on the case if they were hired. A few months earlier, in May, Cuker had settled the Pine Lake Park case for an impressive $4 million. (The asphalt company paid; Union Carbide had already been dismissed from the case, as Cuker knew it would be.) Their meeting with the families went well, but Cuker was concerned when Gillick called a few weeks later and told him that she wanted to hire his firm and Jan Schlichtmann, the attorney from A Civil Action. Cuker knew about the Woburn case and Schlichtmann’s subsequent flameout; he wondered whether it would be possible to work with a person like that.
Cuker’s low-grade worry turned to high-grade anxiety after he, Berezofsky, and their third law partner, Gerald Williams, met with Schlichtmann to discuss the potential arrangement. Cuker was dubious when Schlichtmann explained his new passion for non-adversarial problem solving, and he found it ridiculous that Schlichtmann had told the families the case could be resolved in eighteen months. In essence, Schlichtmann was arguing that the families and the companies could arrive at a mutually satisfactory result if all of the lawyers involved, and their scientific experts, made a commitment to listen respectfully to each other’s arguments. “The difference between the Jan we met that day and the Jan of the book was really a shock to me,” Cuker remembered. “He seemed very idealistic about this nonlitigation process. It sounded very pie in the sky.”
Still, as crazy as some of Schlichtmann’s ideas sounded to Cuker and Berezofsky, they had to admit his new philosophy matched up well with the Toms River case, which would be difficult to win via a conventional lawsuit. The children would surely capture the hearts of a jury, but maybe not their minds. Proving that a company was liable for toxic dumping was only half the battle in a case like this—the easy half. The much tougher challenge was to prove that the dumping caused the plaintiffs’ injuries. Proving causation would be particularly difficult in Toms River, for at least four reasons: The childhood cancer rate in town was high but not extremely so, the pollutant concentrations detected in the water and air were relatively low, the worst exposures had occurred years earlier, and the health risks of some of the pollutants, including SAN trimer, were unknown.
To make a credible argument for causation in a case like this one, a lawyer
would have to hire a small army of scientific experts: chemists to identify the contaminants at issue, industrial hygienists to estimate how those contaminants were produced and used, hydro-geologists and atmospheric chemists to account for their movement through soil and air, toxicologists to assess their potency, epidemiologists to estimate the risk they posed to the exposed population, and physicians to explain the subsequent disease. The exorbitant cost of these experts (some charged $400 an hour) was a key reason why Woburn and similar cases sucked up millions of dollars and took so many years to litigate—and why most plaintiffs’ lawyers wanted nothing to do with them.
Schlichtmann’s approach offered a cheaper, faster route to a more certain destination. The pot of gold at the end of the road was likely to be smaller than what a sympathetic jury might award. But it was unlikely to be nothing at all, which was always a possibility in the high-risk world of trial litigation. Keeping the case out of court also would eliminate the blizzard of extraneous legal filings that stretched complex cases to absurd lengths. The three likely defendants, Ciba, Union Carbide, and United Water, were big companies with vast resources; if the case ever devolved into a contest to see who could file more motions over a longer period of time, the families would surely lose.
The Toms River case was challenging, but it did have some attractions for the lawyers. Government investigators were already doing some of the work that would otherwise have to be undertaken by experts-for-hire. Both Superfund sites had already been thoroughly assessed, and the state had tested the water, soil, and air all over town. Of course, Jerry Fagliano and the rest of the government researchers were not in thrall to either side; no one knew how their case-control study would turn out, or even when they would finish it. But that uncertainty was just as big a problem for the potential defendants as it was for the plaintiffs. With the famous Jan Schlichtmann involved, the case would generate a stream of bad publicity for United Water, Ciba, and Union Carbide, each of which had strong incentives to avoid negative attention. United Water and Ciba (thanks to its Superfund cleanup) were still active in Toms River, and Union Carbide’s reputation had been battered by Bhopal and other accidents. They would not be eager to go to war against grieving families, especially with the assertive Linda Gillick in the forefront.
“It boiled down to a couple of things,” Berezofsky remembered. The companies “had a public relations nightmare on their hands, and we had real causation issues. We thought we could prevail, but it was a real risk.” Schlichtmann’s offbeat ideas held out the hope of at least partially reducing the risks. After some internal debate, Cuker and Berezofsky told Gillick that they would take the case, in collaboration with Schlichtmann. They would start with his conciliatory approach. If it did not work, they would sue.
The lawyers’ first task was to figure out whom they were representing. The Ocean of Love of families wanted only children with cancer to be included in the legal case, and the lawyers readily agreed; the sympathy those children evoked was their strongest asset. Besides, the only evidence of cancer clustering in Toms River was for children—the state had not analyzed adult cancer rates in the town. In that sense, Michael Berry of the state health department had already set the parameters of the potential lawsuit. Berry’s 1995 incidence study had focused on all forms of childhood cancer, but not adult cases, because that is what nurse Lisa Boornazian had asked for. His study had stretched back to 1979 because that happened to be the first year of reasonably complete records from the cancer registry. Those decidedly unscientific criteria defined the Toms River cluster as a kids-only, all-cancers, post-1978 phenomenon. The lawyers and families together decided to follow the same criteria.12 There was a geographic restriction, too, again thanks to the health department. Its latest data showed that cancer rates were higher in Toms River than anywhere else in Ocean County, so the lawyers and Gillick decided that only children who had lived at least part-time in the town before they were diagnosed would be in the case—a wrenching decision since Ocean of Love helped families all over the county. In all, about one hundred children met the case criteria. The lawyers quickly signed up the families of thirty-eight. Sixty-nine would join eventually.
With his clients in place, Cuker picked up the phone and called Vincent Gentile, the Union Carbide lawyer he knew from the Pine Lake Park case. Trying hard to set the nonconfrontational tone Schlichtmann wanted, Cuker called in the late afternoon, when he thought Gentile would be more relaxed. “I’ve been contacted by people in Toms River, New Jersey, who have kids with cancer,” Cuker told him. “I’m investigating, and I don’t know if it’s a case. We don’t want to file suit, but we do want to meet with you.” Another lawyer at Gentile’s firm, which was one of the largest in Philadelphia, joined them on the line. “You’d better watch out,” he told Cuker. “You’d better be sure you don’t lose your shirt like that guy from Massachusetts, the one in the book.”
Cuker didn’t know what to say to that, so he said nothing.
PART IV
CAUSES
CHAPTER TWENTY
Outsiders
In 1854, when John Snow decided to investigate the cause of the cholera epidemic in the Soho section of London, he walked ten blocks from his office on Sackville Street to the heart of the outbreak zone and started knocking on doors. Within four days, he had pinpointed a likely cause and launched modern epidemiology. Jerry Fagliano could only dream of having that much freedom of action. He was the nominal chief investigator of a study that in reality had many masters: the state health department, the federal Agency for Toxic Substances and Disease Registry, and two review panels of outside scientists. Most especially, Fagliano had to be responsive to Linda Gillick’s advisory committee. His bosses in the health department were intent on avoiding any more bad headlines from Toms River because, for most of 1997, Governor Christie Whitman was enmeshed in a hard-fought reelection battle. She won in November by just twenty-five thousand votes, 1 percent of all votes cast.
By the time all those groups had signed off on the study protocol, it was January of 1998, twelve months after Fagliano had received his initial approval. By then, the case-control investigation had expanded far beyond his original vision of a Woburn-style study focused on the possible links between the Parkway well water and local cases of childhood leukemia and brain cancer. Everyone seemed to have an idea of what else should be covered, and few of those ideas were turned down (the state did draw the line at including adult cancers, as some town residents had requested). Now that the Toms River cluster had the full attention of the media and state politicians, money was no impediment. More than $2 million in federal, state, and county funds had already been spent, most of it on the emergency testing Governor Whitman had ordered in 1996. She had asked Congress for another $5 million, a request several New Jersey congressmen formalized by introducing the “Michael Gillick Childhood Cancer Research Act.” Whitman eventually got every penny she asked for, and the state kicked in millions more—all for a town that was home to just 1 percent of New Jersey’s population. All told, the Toms River investigation, including the case-control study, would cost well over $10 million, though no one ever tried to calculate the exact amount; too many people and agencies were involved to ever get an accurate total.
The discovery of SAN trimer in the Parkway wells made Union Carbide an obvious target of any investigation, but the Ocean of Love families were adamant that they wanted Ciba—the town’s chief source of environmental anxiety for two generations—included in the study too. That was not an easy call for the state. The health department had information about local cancer cases only since 1979, and the last time Ciba’s pollution was known to have reached the public water system was during the 1960s, when dye waste tainted the riverfront Holly Street wells. Because of this disparity in timing, Fagliano knew that very few children in the planned case-control study could have been exposed to the contaminated Holly water. With only a handful of exposed cases, any finding implicating Ciba as a cause of local cancer would
be statistically suspect. On the other hand, the ATSDR had already agreed to spend millions of dollars on a computer model of the town’s water system to find out which neighborhoods received polluted water from Parkway wells during the 1980s and 1990s. Extending the model back to the 1960s to look at the Holly contamination would not be much additional work. Fagliano thought it was worth trying.
He also supported studying the other way that many people in Toms River had been exposed to pollution from Ciba—from the air—even though an air pollution study would entail even more guesswork than a groundwater study. In groundwater, pollutants moved very slowly, perhaps four hundred feet in a year. In the air, they traveled that far in a few seconds. The groundwater beneath Pleasant Plains was a geological archive holding the evidence of past pollution at Reich Farm, but there was no such record of the airborne emissions from Ciba’s smokestacks during the years when the factory was running at full throttle. There was, however, a way to guess at the impact of those air emissions. Researchers could consult old weather records and see which neighborhoods tended to be downwind from the factory and thus bore the brunt of its air emissions. Then they could see if there were more childhood cancer cases in those downwind areas compared to other parts of town. It was a virtually identical strategy to the drinking water part of the study, in which Fagliano and his team would look to see whether cancer rates were highest in the neighborhoods that got the most Parkway water or Holly water during the critical years when the wells were known to be tainted with chemical waste. In all, there would be three windows of exposure to study: the Parkway wells from 1982 to 1996, the Holly wells from 1962 to 1975, and Ciba air emissions from 1962 to 1996.
