A Civil Action by Jonathan Harr

A Civil Action by Jonathan Harr - 296 A Civil Action son...

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Unformatted text preview: 296 A Civil Action son the Opening statements—the denials, as it Were—made on behalf of W: R. Grace and Beatrice Foods struck many observers in the gallery as anticlimactic. A lawyer named iMichael Keating, one of Cheeseman’s partners, gave the opening statement for Grace. Cheeseman sat at the Grace counsel table, but he was no longer in charge of the conduct of the case. The firm had turned that job over to Keating. Cheeseman didn’t mind . I Quite the contrary, he had welcomed Keating, a friend and fellow Har- vard Law graduate who was also the firm’s most experienced trial lawyer. Keating had a wonderful courtroom voice. It was strong and clear and resonant, a forthright, honest voice of the sort that seemed ' , incapable of whispering secrets or beating falsehoods. Standing before the jury, Keating frankly admitted that yes, some Grace employees had spread small amounts ofTCE on the ground to evaporate—hut it was just small amounts and it had never gotten to Wells G and H, and he, I Keating, promised he would prove that to them. And even if it had got— ten there, it could n0t possibly have caused anyone any harm, and he. " would prove that, too. There wasn’t much more that Keating could say, I except to reply to Schlichtmann’s accusation that Grace did, too, care. For those in the cramped seats of the gallery, Keating’s opening Statement was mercifully brief. Facher’s was not. Pacher Stood before» the jury and patted the pockets of his suit coat as if he’d just discovered. f” that he’d losr his keys. He fixed his gaze on the high vaulted ceiling of the courtroom and turned his head slowly as if he were following the flight of an inseCt. He often looked squarely at the judge as he spoke, but rarely at the jury. When he tried to erect a large map of Wobum on an easel, he almosr toppled it back onto Jacobs and Frederico. And when he finally got the map in place, Judge Skinner interrupted him. “Turn it so the jury can see it,” the judge ordered. “You’re talking to them, nor me.” It wasn’t that Facher had no points to make. Schlichtmann had no - proof, Facher told the jury, that die Beatrice tannery had ever usedTCE, or had ever dumped toxic waste of any kind on its fifteen acres. It was true, he acknowledged, that die land was contaminated today, but there was “not one single piece of scientific evidence” that it had been con— taminated in the 19605 and 1970s, when the wells G and H were pump— ing water into the homes of east Woburn. Moreover, no doctor had ever suggested that the chemicals in the well water could cause leukemia, not ' 1'36: Tit-12:! 297 until Mr. Schlichtmann fiaund an expert to say so, “a California donor, a professional expert” who had testified “dozens of times.” It appeared that Facher had said everything he intended to say. He had spoken for an hour and a half, but he seemed reluctant to sit. He had worked hard to prepare his opening. He had rehearsed on the way 7! to work for the past week, bundling himself in a heavy winter coat and 'a snap-brimmed cap with the earflaps pulled down, walking from his apartment in Arlington to Harvard Square, a distance of three miles— a small, gray, undistinguished-looking figure with a lugubrious face, talking to himself. It wasn’t a bad speech, but now, in the courtroom, as he said for the third time that the tannety had never even used TCE, the crowd in the gallery-shifted in their seats. Facher knew he was not a skilled orator. He did not even like the sound of his own voice, which he knew became more nasal and mumny the louder he tried to speak. But he had won most of his cases, more than sixty in all, in spite of his voice. He knew that sorne trial lawyers claimed a strong Opening Statement like Schlichtmann’s Could win a case outright. ln Facher’s experience, this was sometimes true, but only in short, uncomplicated cases. In the lengthy cases he’d ' known, openings didn’t matter that much. They were soon forgouen. ' Pitcher didn’t know how long Schlichtmann expecred this first phase, - the waterworks, to last. But he, Facher, had no intention of letting it ' be brief. I I I Schlichtmann figured it would take him four or five weeks to complete .. - the waterworks phase of the trial. In broad outline, his task w uite simple He had to prove that the Grace and Beatrice properties were contaminated with TCE and other toxic solvents, and that these sol- " .- vents had seeped into the groundwater and migrated to the city wells . _ the late 1960s. He would call as many as thirty witnesses, but he intended to rely chiefly on the tesrimony of two expert witnesses. The first, a geologist, would describe to the jury the extent of the TCE contamination in the soil of the Grace and Beatrice properties and the time at which, in his opinion, it had occurred. The second expert, a Princeton professor, an p.- .rf'. __._fl . _ - s . u "a—W'w ' ' I "sweeten-w...- FaeM-Mnflm‘ .km‘a' r-‘n inflate" [.A'hi‘ J: 298 A Civil Action authority on the subject of groundwater flow, would explain how the TCE had percolated into the aquifer and was then drawn by fire pump» Eng action into Wells G and H. The timing of these events was critical to Schlichtmann’s case. He had to show that TCE had gotten into the Wells 5991': the leukemias and assorted Other ailments began to show up. With Grace, that was easy. He would call Torn Barbas and his fellow employees to the wit— ness stand and have them testify about dumping TCE throughout the 19605. Beatrice was more difficult. Schlichtmann did not have eye- witnesses who could implicate John ]. Riley in the contamination of the fifteen acres. He would have to rely on circumstantial evidence and the testimony of his expert witness, the geologist, to date the con- tamination. “Facher thinks all expert witnesses are whores. He’ll say to you, ‘You'rc making it up, you’re a charlatan!’ ” “Can I laugh at him?” asde the geologist. They were in the conference room at Schlichtmann’s office. It was late in the evening. The geologist, a courtroom virgin, was getting a final lesson in witness-stand etiquette on the eve of his appearance; “Do you tend to get nervous?” Schlichtmann asked. “You will never—— ever!~—put your hands to your face.” The geologist smiled. “How about scratching my crotch?” Schlichtmann didn’t smile. “Just keep your hands clasped in front of you,” he said. “Don’t leave them free. Do you cross yourrarrns like this?” Schlichtmann folded his arms tightly across his chest and drew his shoulders forward. “Don’t do it. It looks hostile and withdrawu. Now you’re slouching! Don’t slouch.” “I’m a sloucher by nature,” said the lanky geologist, sitting more erect. “Sit on the edge of the chair. It keeps you alert. And keep your eyes on whoever is talking. When Facher and Keating start cross-examining you, never look at me.” Suddenly Schlichtmann jumped up and pointed an accusatory finger. “Ahhhaa! Your hands are in front of your month now! You just went from slouching to lip holding!” The geologist drew his shoulders back and sat erect, hands folded in front of him, as morionless as an artist’s model. He held the pose for a l‘ The rm: 299 moment and then he collapsed into laughter. He was punchy from long hours of work. . . Schlichtmann went on: “They're going to ask, (Are you being paid for your testimony?’ What do you say to that?” if y}. The geologist hesitated. “Yes . . . ?” he ventured cautiously. J.) “No, no, no! You’re being compensated for your time. By the way, do you man a burnt-orange sports coat? A puke-green tie? For God’s sake, don't wear it. I want you to wear a c0nsctvat1ve suit. The geologist’s name was john Drobinski. He and Schlichtmann had already spent many days before the start of trial going over the sub- stance of his tesrimony. During the past year Drobinski had led a team of other workers in mapping every foor of the Beatrice and Grace prop- erties. They had drilled more than two dozen test wells in the Aberjona marsh, conducted seismic refraction studies of the underlying bedrock contours, and collected samples of contaminated soil. On the fifteen acres owned by Beatrice, Drobinski had dug into piles of debris and rusted 55—gallon drums, piles saturated with TCE. He had found a Woburn campaign sticker from 1963, a prescription hortle dated 1967, and Budweiser beer cans with tab tops of the sort that Budweiser . said they had stopped making in 1970. He had chopped down a stunted tree growing out of one pile and sent cross-seetions to a botanist, who determined that the tree, eighteen years old now, ‘had started growing in 1967. Based on these discoveries, and especrally aerial photographs from the 19508 and I960s that clearly showed the I - piles of drums and debris, Drobinski would take the witness stand tomorrow and testify that the Beatrice property adjacent to the tannery had been contaminated for at leasr twenty-five years. Schlichtmann thought it would take him about three days to guide Drobinski through his testimony against! Beatrice. “A plaintiff’ 5 case depends on momentum,” Facher once told his Har- vard class. “The fewer objecrions you get, the better your case wrll " move along. Objections break up the rhythm of an examination.” And so Father objected, and kept on objecting. On the second day of trial, the morning Drobinski was supposed to take the stand, Facher demanded an audience at the judge’s bench. He objected to documents that Schlichttnann planned to put into evidence on the grounds of rel- .. . .‘.. _. .. - - . :. .- ._.-I l‘ -'-U'.J¢'-.'S;“—_..-. a.» s... Jaw”. w-W m...”- .au 302 ACivil Action The Trial 303 delicve? Do you know of any university in the world that grants oral . was?” ‘4 Then Facher showed Drobinski a copy of his application to the state I_ of Oregon, also made under oath, for certification as a geologist. “Did I you ssvear under penalties of perjury that you had a degree in 1976?” Drobinslri studied the application. “Yes, sir, that’s what it says.” “You were trying to get your license in the state of Oregon by filing :a paper that contained false information, isn’t that right?” “I would nor characterize it that way,” said Drobinski. “It was under oath, wasn’t it?” “Yes, sir.” “It says ‘1976’ opposite ‘master’s degree,’ doesn’t it?” “Yes, sir.” “You were trying to tell the state of Oregon you already had your masters degree when you didn’t, isn’t that right?" And so it went for a long while that dayllE-acher brandishing this small, but perhaps telling, inconsistency in an eflfort to cast doubt on I the veracity of everything Drobinski had saitL}. Schlichtmann sat quietly at the counsel table. He looked completely calm, his features bland and inscrutable, but he was seething inwardly. TH this were a deposition, he would have interrupted a dozen times and a - t bitterly with Facher. But now, in the courtroom, he rarely i-ehjected to any of Facher’s questions, even when he had legitimate [muse He disliked objecting in front of jurors. He didn’t want any juror an get the idea that he was trying to conceal something under the cloak (if a legal technicality. ' Schlichtmann had his head turned slightly to his right so that he problem with witnesses is that mom of them exaggerate.” In Drobinv _ sould see, out of the corner of his eye, Drobinski on the witness stand Ski’s deposition testimony, Facher had found an exaggeration, and new The geologist was lean and wiry, with a broad forehead and a thick mus: he drew it forth for the jury to see. Drobinski had claimed he’d gotten ache. He sat forward on the edge of his chair, just as Schlichtmann had his master’s degree in geology in 1976, but Facher, taking nothing for ‘ itctrucred, his hands clasped lightly together on the small wooden desk granted, had learned that the degree had actually been awarded in I - in front of him. Schlichtrnann thought Drobinski was holding up well 1979. “Didn’t you tell me under oath, at your deposition, that you had . things considered. Drobinski answered Facher politely, always callin ’ a degree in 1976?» Pacher asked. - Escher “sir,” and never once raising his voice or betraying any irritationg “Sir,” replied Drobinski, “I was told by my thesis committee and the Wichtmann could also see Facher Standing splayfooted before the geology department that I did have my degree.” 'logiSt, his arms crossed over his chest, his shoulders hunched a a “You were told? You’re saying you had a vernal degree in 1976?” . . .a p of a man with heavy-lidded eyes and thick glasses. His lips fir: Facher’s voice was full ofincredulity. “Is that what you want die ' gutted in a manner suggesting profound skepticism. Skinner retired to his chambers to ponder the matter. Upon his r - he told the lawyers diat his decision was “a very close one.” Drobi 2: opinion could not rightly be called “scientific”—“I-Ie eyeballs the sfl' the way anybody who has ever dug a hole eyeballs the soil,” said dn. judge. Nonetheless, on the basis of Nesson’s argument, the - _' decided he would permit Drobinski to State his opinion to the jury. ' Nesson had just earned his keep. He had single-handedly saved the: case against Beatrice. Back at the office that afternoon, Schlichtmann. was exultant. “Charlie, you get inside the judge’s perimeter!” SChllClWfi_ mann crowed gleefully, splaying his fingers out like a mystical masset-m _ “You were touching the old bastard’s brain!” ' ' But Drobinski’s time on the witness stand was not over. In facr, his true ordeal was jusr beginning. On Friday afternoon, at the end of the scan-7 ond week of trial, Facher began a cross—examination that would last the entire third week. He sought to portray Drobinski as a biased and unttuthfiil witness, handsomely paid for his testimony, who hai- looked only for information harmful to Beatrice. Wasn’t it true, demanded, that most of the fifteen acres was “pristine,” full of “pretty little blue wildflowers”? Wasn’t it true that only six of Drobinski’s " teen auger samples had contained TCE? Why hadn’t Drobinski told: the jury that facr? Wasn’t it true the highest levels of TCE occurred a} '- the surface of the soil? And that the levels declined the deeper Drobin-v ski dug? This meant the contamination had to be recent, not oven); years old, didn’t it? Wasn’t that plainly obvious to anyone? - “People are greedy,” Facher once told his Harvard Class. “The biggie: 304 A Civil Action The Trial 505 After a while Schlichtmann noticed something curious. .. n .' _ The dream was so vivid and unsettling that he felt compelled to tell 'I ‘_ Facher turned away from Drobinski to pace in the well of the u I... I' '. melee“ work 3130”: it the next_m°ming’ 3-5 if by China? 50 he Emile!" ': . room, Schlichtmann saw the geologist glance down at his “H. T amuse its apparent prophecy. His dreams were not always so richly hands. Drobinski quickly looked up when Facher turned back to . 'I mphe'ncal' To .1115 dlemay’ he usually dreamed about the end—tee ' '.-' " him. And then, when Facher asked Drobinski to approach thejury _ We“ the Juelge’ ‘ehe “messes—m pelefillly eeahsf'e elemL to explain an exhibit, Schlichmann saw the geologist slip win I __ .- awakening at the first light of dawn and feeling as if hed worked _» from his hand into his coat pocket. ' throngheue the nighe‘ I ‘ _ _; j . a It seemed peculiar to Schlichtmmn. After court that day, on k. The trial was moving more quickly now. Schlichtmann was still pre— - ._ I walk back to the office Schlichtmann asked Drobinski about - I .' seating evidence against Beatrice, leaving Keating and Cheeseman lit- ' It! Drobinski took from his coat Pocket a snapshot of his family 1- __ ' - tie to do for the time being. He called to the witness stand several . I wife his Dung Son and his dang,th The snapshm was creased J; . Woburn residents who told ofseeing piles ofdebris and dozens ofbar— .;. do jearedyand Smingd with sweat from the palm of Drobinskiis bani ' ._ leis strewn across the Beatrice land from the late 1950s to the 19705. . '_ 2i Echlichtmann smiled and shook his head sadly. ' _ I . Qne witness, now in his mid-thirties, described how he and others had I. Drobinski put the photo back into his pocket and apologized far I Played on eke ind as ehlldmn’. fa'eelonmg [1&5 by Whine" barrels :. mblem his degree had caused. _ ' - together. This Witness recalled seeing a constant spray of whitish, gray- - - 1.: P «Don’t wot about it u said Schlichtmn «The jury won»: w ' isll stufie being blown out the back door” of the tannery, and men ' about that n r}, l l I, . thumping “wheelbarrow loads of some sort of sludge” down the side of “ Schlichtmann believed this. After all, Drobinski did have the Ina-w" :- ehc hlu' ‘Afl us deS’ we {glued the? area Deetwh valley beee‘uee there he claimed to have earned. Schuchtmann thought that Fachefs M ' weredead trees covered Wlth a whitish powder. Another Witness told semi attack might even have won Dmbimki some sympathy = ‘ ofseeing flatbed trucks laden with barrels drive onto the land. “They found himself more worried about the effect of Facher’s interm' w 1- , did“: we?“ me to be around there’ said elm winess' Ail-my “Quid objections. Facher had managed to prevent Drobinski from I- -. throw [lungs at me’ scare me’ flee“ “110'” me e ere’ kfimeede’ 1e clear, crisp presentation. But had he succeeded in fragmenting the ' meldkjeedwefe and {e firmed sme ’ ‘00! 1 e [Bum eggs— I 0‘” 1‘ “’35 timony to the point where a jury of twelve average citizens co . . 'me n '3 ehemlc 5’ It had [9 have ‘ . reassemble the pieces? Schlichtmann had no way of knowing whee " . For the past several “5‘,” dueleg eraks m tee resumeny’ eehhehe‘ jury thought, but he could not afford to fall Prey to doubts now __ - I. mann had seen John j. Riley waiting in the corridor outside the court- told himself that the jurors had understood Drobinski. - mom doeee‘ The Old tanner had te'ed to take a seat m the “ear‘empey ' ___...—-—-—I-——‘ _ ;.gallery, but the judge had ordered all witnesses sequestered, and Riley 2 'had been banished to the corridor. Riley sat alone on the bench near 3 3' . the stenographer’s office, the fabric of his expensive dark blue suit ' . stretched tightly over his massive shoulders and meaty thighs. During Schlichtmann dreamed that his firm—he, Conway} and Crawl __ . .' . themorning recesses, when Schlichtrnann gathered with Conway, Nes- had purchased a sailboat. The sailboat was frozen in a sea of ice, " + I I ' mn’ and Kiley in the corridor’ Riley woulld rise {Tom his bemh and became, in the peculiar way of dreams, a vast glacier. In his dm- — balefillly at Schllchtmann from afar, his thin lips compressed and Schlichtmann fell from the deck of the boat and careened down a u: _ medeown m a 10"“ Ofelhefus ,hatred' I glacier’s icy surface. He could see looming before him a dark crevasse ' - seehcheme‘nn never met mleye eteee‘ ,He acted as If the Old tanner the blue ice. An instant before he tumbled down into the Cfmi I 7mm mere Bue he felt the he“ Of R‘leye anger’ and to Sehl‘eheman" awoke, the bedsheets knotted and wet with perspiration. T em like a sunny warmeh' He wanted Riley angry He wanted to “eke int-.tk‘a'o- I. ' -.|— 4-6-71} . ' 3 324 A Civil Action They would have to send Helen O’Connell to a second urologist, continued Phillips, and perhaps even another neurologist, for a new round of complete workups. “If that doesn’t convince them,” Phillips told Schlichtrnann, “we’ll have to put the case on the trial calendar for next fall and hope you’re finished with Woburn by then. We can't sell out. We’ve got to settle for fair value or we won’t sertle.” Gordon groaned again. After eight weeks of trial, the days in the courtroom had begun to blur into one another, like the countryside seen from a train window. A shaft of spring sunlight would find its way into the court and strike the brass lamp on the judge’s bench, a flash of brilliant yellow in the cav- ernous, gray, dismal room. The fluorescent lights overhead made every- one appear pale and sickly. Thick volumes of legal papers had grown on the counsel tables and more thick volumes lay underfoot in cardboard boxes on the floor. The lawyers’ overcoats, damp from a morning rain and smelling of wool, hung over the gallery railing. The radiators hissed gently. Distant, muted sounds of city traffic, a siren, an unmuf- flered truck, would float up into the courtroom from the streets fifteen stories below. The atmosphere felt heavy and dense. One of the alter- nate jurors regularly fell asleep. On particularly dull days, such as the one when Schlichtmann read Grace’s answers to interrogatories into evidence, judge Skinner himself seemed to doze at the bench, the flesh of his cheeks slack and his mouth slightly parted, his head rolling back onto his chair. Facher always used to warn his students at Harvard that if they fell asleep at the counsel table, upon awakening they should come to their feet objecting. “In the time it takes to reach your full height, think of a reason for your objecrion.” Fachcr was being facerious, of course. He never really expected any of his students to fall asleep at the counsel table. But one day, eight weeks into the trial, Facher himself fell into a doze during Sandra Lynch’s slow and methodical examination of a Grace executive. He awoke when the microphone on the witness stand emitted a harsh squeal. “Perhaps we can fix the microphone,” suggested Lynch. “Mr. Nesson seems to have the touch,” said the judge. The Trial 325 Facher came to his feet at the mention of Nesson’s name. “I object,” Facher said in a thick, cottony voice. Then he looked around, blinking his eyes, and sat back down. #— 5 On a morning in early May, Kathy Boyer opened the windows in the conference room for the first time since last fall, and there was fresh air in the offices of Schlichtmann, Conway 65 Crowley. Across {tom the court- house, in Post Office Square, the tulips had burst into flower and the swollen buds on the linden trees had split open into a lacy green filigree of new leaves. Schlichtmann noticed that it was spring, but that didn’t cheer him. This part of the trial should have ended long before tulips. On the other hand, he was making progress. He had one final wit— ness to call in this phase of the trial. This was his expert in hydrology and groundwater movement, one George F. Pinder, Ph.D. Pinder would testify against both Grace and Beatrice. He would, if all went well, make manifest the claim that TCE and other solvents on the properties of both defendants had indeed migrated to the city wells, and that the chemicals had gotten there before the leukemias and other illnesses began occurring. Schlichtmann felt fortunate to have Finder. Every geologist who knew anything about groundwater had heard of Finder. He was pre- eminent in his field, chairman of the civil engineering department at Princeton University and the person who, fifteen years ago, had devel— oped the first computer model of groundwater flow. Schlichtmann put him up at the Ritz-Carlton, in a suite of rooms. Pinder was in his late forties, a dapper, diminutive man, nearly a foot shorter than Schlichtmann. His thin brown hair, as soft and silky as a baby’s, had receded high on the dome of his head. He wore gold- rimmed spectacles that made his round face look owlish and cerebral. He had a precise, methodical manner, but he was nor in the least aloof or self-important. On the morning of his first day in court, he arrived at Schlichtmann’s office early and cordially greeted all the secretaries. Schlichtrnann saw that Finder was wearing a blue blazer, a woolly brown tie, brown pants and argyle socks. Schlichtrnann always asked his experts to dress conservatively, in dark suits. To his eyes, Finder was 326 ACivil Action ' ' The Trial 327 a sartorial nightmare, but he took it calmly. “George is the world‘s I . I '- other solvents to migrate from the Beatrice and Grace sites to the wells. ing expert on groundwater,” he told Conway privater before they - Schlichtmann had gone over these calculations with Pinder the night for court. “He can get away with dressing like that.” - - before, but that morning, Pinder gave different times for the solvents, Pinder performed ably on his first day, under direct examination - =' ; different by a matter of days for one, a few weeks for another, and a Schlichtrnann. He came to the courtroom equipped with charts and - - -=? . year for the third. grams to educate the jury in the science of hydrogeology. He sa up afifié . . Schlichtrnann wondered for a moment if he himself was wrong, if he tank filled with kitchen sponges and placed drops of ink on the spo . - had remembered the times incorrectly. He felt confused, but he had no “Just think of each drop as being some event of contamination on - . chance to find out at that moment why Pinder had changed the times. ground, entering our aquifer,” Pinder told the jury. He talked about I And when the recess finally came, Schlichtmann decided not to broach urated and unsaturated zones, capillary fringes, cones of depression. '--' the subject. He did nor want to shake Pindet’s confidence in the mid- held forth for the entire morning, confident, jaunty, and full of I dle of the day. A That evening, in Finder’s room at the Ritz-Carlton, Schlichtmann humor, as if he were lecruring to a freshman class at Princeton. Both Fachet and Cheeseman knew Finder’s reputation. Two -- found out what had gone wrong. Finder, feeling overly confident, ago, Cheeseman himself had tried to recruit Pinder as an expert wi m. {' - redid the calculations in his head and forgot to factor in the porosity of for Grace, but he found that Schlichtmann had gOtten to Princeton; :' the soil. The misrake made no difference to the substance of Pinder’s and to Pinder, first. Father wasn’t worried, though. “They tell me ' __ opinion. The solvents had still reached Wells G and H long before the der’s the leading expert on this subject,” remarked Father out in - leukemias began occurring. But Schlichtmann knew that Father and corridor, during the morning break. “They say he's a home-run _. Keating would not miss this mistake, and that they would use it on in any ballpark. But he’s in my ballpark now.” ' cross-examination to attack Finder’s credibility. Indeed, things did nor go quite so smoothly after the ---— v' « Schlichtmann decided to wait until the closing minutes of the next although that was no fault of Pinder’s. The closer Schlichtnnfl: - day, a Friday, to have Pinder correct the misrake. He’d make it appear brought Finder to implicating Beatrice and Grace, the more ..-: .--. ' asalmost an afterthOught, of small consequence but requiring mention and Keating began to object. Nevertheless, by the end of the nonetheless. That would give the jurors the entire weekend to digest Schlichtmann had gotten into evidence the firSt part of Finder’s - the substance of Pinder’s opinion before cross-examination could begin ion—that both Beatrice and Grace were responsible for the contam’v‘ .. on Monday morning. nation of Wells G and H. The second part, the arrival times of -' - The next day all went as planned for a while. When only twenty and the other solvents, would have to wait until tomorrow. 7' minutes remained before court adjourned for the weekend, Schlicht- In the office that afternoon, Schlichtmann clapped his hands .a- " mann br0ught up the travel times, and Pinder explained that yesterday, danced on his toes in glee. “You got the opinion in, George!” _' ' on the witness stand, he had done the calculations in his head. “I was shouted. “They tried to stop you, but it didn’t happen. It was a m just contemplating my testimony,” continued Pinder in a pleasant, day, today, George! It could not have gone berter!” - _' untroubled voice, “and it suddenly occurred to me that I’d made a mis- Finder smiled indulgently. “This jury looks like a pretty att 4- take. I’d be very pleased to try and correct that mistake.” group,” he said. " - “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.” Pinder made his first mistake the next morning. It was a small In. _ “Does that affect the travel times in some waY?” but Schlichtmann caught it in an instant. It happened when he .r -. I “It affecrs the travel times," said Pinder, nodding. “Nor catasrrophi» Pinder h0w long it would take, in his opinion, for TCE and the -- .-, - tally but, I think, significantly." 523 A Civil Action ‘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 min- utes 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 I‘ 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 hisrory. He asked l’inder to compare the east Woburn research with other projects .1 that Pinder had worked on, but both Facher and Keating objected. “Sustained,” said die judge. Schlichtmann rephrased his question, but again the judge sustained the objections. “Mayl have a moment, Your Honor?” Schlichtmann asked. The judge nodded. Schlichtmann took a deep breath. He studiedhis netes. 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 quesrion. 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 inten- tion 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. I Pinder flew home to Princeton that Friday evening. After his seven minutes With Facher, he didn’t relish the prospecr of returning to Boston on Monday. Facher had treated him in a most contemptibIe I 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 PhD. and the chairman The Tr:in 329 .Ldia department, and made a little mistake in an opinion you’ve been I preparing for the last year and a half?” Facher had said. “You’re telling ' us, as a professor of geology, that you finger to take into account poros- Didn’t you lecrure in front of this jury for an hour about making ' .tthC calcularions? 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. Finder's wife, Phyllis, took an interest in her husband’s work. She knew about _ Facher from reading the trial transcripts ofDrobinski’s testimony, which Schlichtmann had sent down for Pinder to peruse. “Watch out for - Father,” 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 live days and amounted to almost a thousand pages. He didn’t borher " 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 remem- ber 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 contami- '. nants 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 I what I said, I’ll accept that.” “You don’t consider that a change from eighteen months?” I 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 suggesred that Pinder had formed his opinion before even seeing any data from the pump tesr. Pinder denied this. “But you had a hyp0thesis as to the source of the contamination, right?” asked Facher. l Pinder, thinking that he might have said something like that at his " deposition, replied, “I think that is not an unreasonable statement. I .. thinkI probably would be prepared to say that I may have said that.” 330 A Civil Action “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 Finder. “Very cautious,” said Facher. “You use words carefully, right?” “I try to be as precise and accurate as I can,” said Finder. Finder’s attempt to be precise and accurate led to dense thickets of confusion and imprecision. Finder was wary of Faéher. He looked for a trap in every question Father 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, Finder 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 your question, he went back,” replied Finder. “1 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 said Pinder with certitude. “We had talked together many times.” Father picked up Finder’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 Finder. “What was your answer?” Facher asked, pointing to the line he wanted Finder to read. Finder leaned over his deposition and adjusted his spectacles. Father gazed at the ceiling. It took Finder a long time to an5wer. He was read- ing, it seemed, the entire page. “ ‘No,’ ” Finder 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 Finder. “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?” Finder soon abandoned “the spirit” and adopted new phrases. Every- thing became “in the contexr 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 Mina! 531 I put any sense in the question,” he told Finder. “I just asked a simple l- question.” The judge called the lawyers up to his bench. He said to Schlicht- - man, “I’m beginning to get the impression that this fellow has either git a very loose grasp of the language, or he will say anyfl'iing 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 Schlichtrnann 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. Schlichtrnann lifted his arm from his eyes and glanced up at Con- way. “This is going to be the worsr fucking week of my life.” _ Conway nodded. “What the judge said about Finder was very dis- turbing.” “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.” Con- way 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 ' s u t n the sort of person who can move others. Its Just not the way he 18. Gordon and Phillips walked into Schlichtmann's office. Gordon set— tled 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 Schlichtrnann. “Facher’s little clinic today was great for lawyers, but it doesn't mean shit with the jury.” The Trial 333 332 ACivil Action Jan, the biggest victoritsi I :iThis all seemed reasonable to Schlichtmann. But one detail How A -- him. He and Pinder had both seen the ice on the river} surface mane seemed to Ponder this bit?" --.- December. After the wells began pumping, the rivers surface of wisdom. Finally Gordon said, “ - What exacrly does that mean, Mack?” ._.. steadily lower, leaving shards of ice along the bank. Obviously Phillips hummed nervously. “Just remember, are won by the slimmest margins.” There was a moment of silence. Eve Schlichtmann departed for might have tarnished Pinder’s credibility, damaging the substance of could make Pinder shine again on redirect. Meanwhile, Schlichtmann had oth would try to use the Aberjona Rive theory, the pumping action of the Wells would draw water ing the flow of contaminated groundwater from Beatrice. This theory had some meri had warned Schlichtmann that the river mi barrier,” although Pinder personally doubted His computer model of the east Woburn aquifer wells would, in point of fact, under Beatrice, rock that lay u mann, 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 dJe city wells and started the .pump test, itoring well on the Beatrice draw contaminated groundwater from amount his computer model had predicted. As far as Pinder was concerned other monitoring wells proved b Beatrice was drawn under the , this and similar measurements from eyond a doubt that groundwater from the Ritz-Carlton and an evening of work ' with Pinder. He consoled himself by reasoning that although Pacher' I Facher had not succeeded in ,- Pinder’s opinion. Schlichtrnann felt he- er concerns. He knew that Facile: I r, which flowed between the Bea- - - trice property and the city wells, as a defense. According to Fachcr’s _ directly out - of the river, satisfying the wells’ demand while at the same time biochv. ' t. A year ago last spring, Pinder himself . ght be “a very profound '- this would prove true. -. predicted that the city { ; along a highly permeable stratum of sand and coarse nder the riverbed. Nonetheless, Pinder told Schlicht— ' Pinder stationed himself at a men- -' .. property. He saw the water level at this = monitoring well decline more than a foot in four hours, exacrly the - river and into the city wells. It also __ - river had losr water. If it wasn’t going to the wells, then where was . hgoing? At the Ritz-Carlton, Schlichtmann tried to get an answer to this .pestion. Pinder had several explanations. Some water had been lost to . . ration. And some of it was being slowly drawn out of the river by it pumping action of the wells. But Pinder felt certain, based on the I river water to reach the wells. ‘ ‘ mltsdll didn’t make sense to Schlichtmann. The river, he pomted out, '- :----I declined by six inches. That seemed like a lor of water. Pinder’s cmlanations 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 nor come up l'fi‘l an explanation for the missing river water. He was tired and it was -hc. He insisted on going to bed. He wanted to have his wrts 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. - - » , ,Iitt’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: “ , I “If you don't leave me alone,” said Pinder angnly, I m gomg back to ‘ 3) Princeton tomorrow mornmg. Schlichtrnann departed, feeling very worried. Schlichtmann was waiting apprehensiver when Pinderlwalked into i fireflies: early the next morning. He saw at once that their spat of last ' fight had been forgotten. Pinder looked confident and happy. .In a fitment 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.” ess of the peat layer, that it would take ten to twenty years for .hl. uflwmvin-‘J-v .',. . m m1 335 334 ACivilficrion - ‘ Schlichtrnann listened carefiilly ous. Under normal conditions, discharges into a river, as his star expert explained the - " said Pinder, groundwater in an . i thereby increasing the river’s volume. N _ rivers, except those in deserts and on mountains, fiinction in this Indeed, groundwater discharge is what creates most rivers, and did not do fine that day. But he did not do badly, either. “In r spirit“ escaped his lips twice early that morning. Facher turned ’to at him. “Why do we have to keep talking about the spirit? Im asking you for a date.” And when Pinder embarked on a convo- - 2 a response to one of Facher’s questions, the judge abruptly cut the case With the Aberlon“ in east WObum' B“: When wells G 313* ' : off “Lisren, Professor, the question is very easy,” the judge said. began Pumping! the aquifer “’35 forced '50 satisfi’ the demand " "‘--'-- does net require any more dissection. Let‘s try talking in plain by the wells and could no longer discharge into the river. “You- .' 35”?“ h.» Jan?” “Claimed Pindcr- “The river’s not losing Water to the wellio A: the counsel table, Schlichtmann tried to make himself look calm. iUSt nor gaining What it normally WOUJd from the aquifer.” it wasn't until late morning when Facher finally got around to the “Are You Sure about this, George?” Schlichtmann asked. .-. and the subject of the missing water. How much water, Facher Pinder beamed. “I figured it out when I was raking a shower _ ,_ ... had been pumped out of the Aberjona River during the teat of morning.” G and H? “Georg?! don’t-say that 0“ the Witness Stand“ ‘ Finder had eagerly awaited this quesrion. “I think very little, if any “Well, that's what happened.” ' ' e. . aiL“ Peggy Vecchione poked her head around the conference room we - 42' .' 1, ‘Didn’t the river lose approximately six hundred gailons a minute, “Jan, it’s five minutes of nine. You’ve got to hurry.” ..... . 'ng to measurements taken by US. Geological Survey?” Facher Schlichtmann hovered over Pinder, indulging in a last moment - - .-.. frenetic activity, the sort of nervous energy that he expendfli ;‘.No, sir,” said Pinder. “You’re wrong about that. And I was puzzled morning before trial. Finder’s explanation seemed logical enough. * ,_. '1 until I started thinking carefully about it and I realized—” Schlichtmann had no time now to explore it for flaws. “You’ve got a ' '_ '- Bacher interrupted. “Before you answer a Cluesm’" I haven“ “Sked’” Well logs, George?” he asked. “The ones that are highlighted in --E =. "-‘i said. marker? You’ve got those, right?” - “i’m just so anxious to try and inform you,” said Pinder. Pinder compressed his lips and drew his shoulders up. He “you’re mxjous to help me?” said Fachet, amused- these chaotic moments just before court. They threw him off b n - : “I am, very much, sir,” smiled Finder. just when he wanted most to compose himself. ; _ "And I’m anxious to help you,” said Facher. “Now, you apparently Schlichtmarm brushed lint from the shoulders of Finder’s 3 " .. some phenomenon which the untrained eye might interpret as six blazer, and then he stood back and looked appraisineg at the 3601 ' it... -.. gallons 3 minute being pumped out of the river?” at the tie with a faint pink hue and the argyle socks. “You look '- '3 “That’s right,” said Pinder. . George.” SChliChtmanfl lied- “Are You feeling okay?” ‘ “But the trained eye who had been hired to give an opinion in this “I was feeling fine until I started talking with you,” muttered Finder _ _ had a ready explanation, right?” . “You’ll do just fine today,” said Schlichtmann in a soothing voice. .’ “Not then,” said Finder. “But I do now. I wasn’t actually working on Together they walked briskly up Milk Street to the courthouse, PB ' fig problem when I came up with a solution. It was more like the 501T for each of Schlichtmann’s long strides. '. 113mg you think about in the shower.” “ I ' ._ “Shower thoughts?” said Facher with a raised eye. “Before we get to ‘hc oceans but SChlichtmann was oblivious to the bean? of the I ,.... ._.'. ._-.-. shOwer thoughts . . .” Facher calculated that six hundred gallons a ing. He thought Finder ' j -.. ute amounted to 864,000 gallons a day. “Eight hundred and sixty- for this. But he feared what Facher might do to him today. 33b A lell Action The Trial 337 four thousand gallons a day, water that’s going somewhere, that’s ' ing the aquifer——” “No, sir, that's where you’re wrong, ” said Pinder. “Well, where did it go?” asked the judge impatiently. “That’s the question!” said Pinder happily. -. “All right,” said Facher, “tell His Honor, tell the jury, tell us a. 1'2; where did the eight hundred and siXty-four thousand gallons go?” _. “I’d be very pleased to do that.” Pinder got off the witness Stand 5 walked toward the jury box, to an easel that held a diagram of - -, aquifer. Schlichtrnann stood, too, and went slowly to one wall of the m room, between a filing cabinet and the jury box, where he could -_ Pinder at the diagram. Schlichtmann had his hands in pockets, informal pose he normally disapproved of in the courtroom, and. head was down, bent at the neck, his eyes intently studying his I \Without raising his head, his eyes glanced up occasionally at .. _ . and Finder, but mostly he stated at his shoes. He imagined, he -- ‘3 later, Facher holding a knife up to the light to Study its edge, ..- . mements were not equal. They showed that the river’s flow dld indeed r'o testing the keenness of the blade on his thumb, Facher vigo Mine by six hundred gallons a minute. ‘ l strep];ng the knife, Facher testing the blade 11. He ' .,3,. , _ Schlichtmann blamed himself. He had sent Pinder the US. Geo og- Facher whistling pleasantly at his work I Survey’s measurements along w1th several boxes of other docu- Facher interrupted Pinder’s explanation several times to ask a i '- " mus. He’d been too busy With the tnedlcal part Of thfi 6356 to pay tions. And when Pinder finally finished, Facher said, “Your view, it, dose attention to Pinder’s work, and Plnder had simply Overlooked the is that the river is not losing any water, it’s just not gaining from n '_ ' measurements- usual sources. It’s net that you’re losing any money, it’s just that " haven’t gotten paid this week, is that right?” '- “That, in essence, is what I’m trying to express,” agreed Pinder. “Well now, sir,” said Facher, “is there anything else you want to - a: -- to that? This is going to be memorialized and I’m going to be i a-w- at it tonight.” ' “I’m sure you will,” said Finder. 5 But Schlichtmann still felt worried, the worry of a person who something is wrong but can’t put his finger on it. That evening, . zm he settled down to work with Pinder in the conference room, he '-'Ilid, “George, about this cockamarnie theory of yours-3 ‘I beg your pardon,” said Pinder. “We've go: to talk about it.” :‘ “It's very simple, Jan.” ; _ “I know it’s simple, but is it right?” I I I 2 By the end of the evening Schlichtmann knew that it was not right. _ i proof of Pinder’s error lay in measurements taken by,the US. ' 7{inliologital Survey. The Survey had measured the Aberjonas flow at - .m spurs—at a bridge that crossed the river north of the City wells and, } 'jthousand yards downStream, at another bridge south of the wells. If, ~ Finder claimed, the river was nOt really losing water but was Simply I ' dint gaining any from the aquifer, then one would expecr the flow at the " " m- eam measuring device to equal the flow at the downstream device. a I But that, Schlichtmann discovered, was not the case. The two mea- n. '1... Ail-Lanna..- ‘ Finder was trapped. He could not admit to Facher that he’d been 1* I mug on such a fiindamental point without calling into question his “mt-ire opinion. And he still believed that his opinion was basically ‘ E sound—the wells did draw contaminated groundwater from Beatrice. . Nothing else could account for the one—foot drop in the water table I that he had seen with his own eyes. Y“ E‘, All Pinder could do was bob and weave, and hope for the best. i The next morning, when Facher asked if he recalled saying that no _ ' water left the river, Pinder replied, “No, sir, I don’t believe I said that, sir.” , Facher picked up a copy of the trial transcript. “You said yesterday, - “Water that would normally go into the river is not going into the river “Goddamn, George, you kept him at bayl” exulted Schlichtmann-an" the walk back to the office. “I could kiss that little bald head of' Pinder had looked quite pleased with himself until this commem- which caused him to frowu. ' no A um] Action ._ _ m rm: 339 anymore. It doesn’t mean it’s leaving the river, going in.’ Do you remember that?” . “Yes, sir, I think that’s a fair Statement. There’s going to be a signd- the water molecule that says, ‘Stop! Don’t go into the river, dunk . . going back to the well.’ And that was the spirit in which I answered I I “I ‘ “Well, the spirit and the words in which you answered it - ~- Water that would normally go into the river is not going into the ' - anymore.’ Could anything be clearer than that? Is that plain Englidfl I “Yes,” replied Pinder. “In the context of what I said, that is what "" meant to say.” I I“ .' esbapes from Facher’s traps. He felt lucky if he got four hours’ He called home to Princeton every evening and talked to his “You can’t imagine the pressure,” he told her. “There’s no relief it. I've never had anyone try to discredit me as a human being, which is what Facher is trying to do.” Relief finally did come for Pinder on Friday, the sixth day of Facher’s I tines-examination, when the judge summoned Facher up to the bench and told him enough was enough. “You and the professor are a pair,” ‘ me judge said wearily. “I detect signs of incipient coma on the part of _ Mm” it just means it's _' Pinder bobbed and weaved tirelessly all morning long, a numbig ' hypnotic exercise. To one of Facher’s questions he shook his head trier" fully. “I’m sorry, sir,” he said. “The things you’re saying are awfiilly .- ficult for me to come to grips with because, in many ways, n' contradictory.” I I Facher looked at the judge and sighed. “I guess I’ll have to start over again.” ‘ . The judge looked disgusted. “We’re approaching hopeless m . Sion. I’m going to call a recess and suggest very strongly to Dr. P .. . . that he take the transcript of his tesrimony yesterday and read it.“ .- As that day wore on, Judge Skinner had a few more observations - - make about Finder. “You have a hopeless witness who changes from to B,” the judge told Schlichtmann at one bench conference. ‘ l- - spirit of his ansWers doesn’t change from day to day, but the form I“ tainly docs.” i. « ' - I . Expert Witnesses are born, not made,“ Schlichtmann said in 3 lat " vorce, more to himself than anyone else. ' “But you made him an expert,” replied the judge. . Pinder sat at the witness stand while the lawyers huddled a 1%th away at the side of the judge’s bench for these whispered conferences-“- Prnder wasn’t privy to the comments the judge was making abouf him, and Schlichtmmm'wgtried about Pinder’s already fragile '- confidence, certainly wasn’t about to tell him. By now, the fourth dqr - of Facher's cross-examination, Pinder had losr his appetite and devoi- I oped insomnia. He felt the burden of the case—{he Woburn . - all the other experts, Schlichtmann and his partners and their u .. - cral investment—entirely on his shoulders. At night he would awake in his bed at the Ritz-Carlton thinking about Facher and r Finder flew home to Princeton that Friday evening. His wife met him at the airport. She was shocked by his appearance, by his pallor and the A dark circles under his eyes. Pinder returned to Bosron the following Monday, but the worst had “needed with Facher’s cross-examination. Keating spent two days inter- Iigating Finder, but Keating did not have much to work with. The - Grace plant was situated on a promontory northeast of the wells, and .: nativer intervened to complicate matters. Contaminated groundwater I' _ firm Grace clearly flowed down the bedrock contour the way a marble ‘. would roll down a slope, directly to the well field. " Schlichtmann believed that Pinder’s opinion was basically right, even if his shower epiphany was nor. “The defendants are trying to find ‘ dration in river water, as people have for centuries,” Schlichtmann told the judge near the end of Pinder’s testimony. “It has very little to '- dowith this He tried to rehabilitate Pinder on redireCt examina— tion, but he could nor erase the damage that Fachet had caused. Under <._ gtestioning from the judge, Pinder conceded that the wells would ' . draw water from the river after a few months of pumping. But Pinder . and: to his opinion that the wells also drew large quantities of con— ; laminated groundwater from the Beatrice land. . , As it later turned out, Pinder was generally right. In its final report, . mieased two years after the trial, the EPA concluded that the Beatrice ' ' poperty “contains the most extensive area of contaminated soil” and -' “represents the area of highest groundwater contamination at the Wells ' '- G «St H site.” The report may have vindicated Pinder, but it came out too late to do Schlichtmann any good. ‘. - I}. .Hha'..¢._. .-— fina- can - _n.-\u-.L--_.... .,.. ..-t. 340 A Civil Action The Trio! 341 The great legal scholar John Wigmore wrote in his treatise On i " dense that “cross—examination is beyond any doubt the greatest . engine ever invented for the discovery of truth. A lawyer can do : thing with a cross-examination. . . . He may, it is true, do more than . on t to do; he may make the truth appear like falsehood.” ' “The truth?” Father said, smiling, one day after court. “The truth is . at the bottom of a bortornless pit.” ' ' ' f Julianna thought this was sad. “He’s got no one to go home to at night,” she said. “What’ll happen to him when he retires?” But Schlichtmann’s mood changed abruptly. “Who cares a god- ' film?” he said sharply. ‘l - Schlichtmann arranged a meeting with the insurance adjusters in the - Helen O’Connell case for a Friday in late May, a day that the judge - announced there would be no court. Phillips had spent the past six " seeks working on O'Connell. He told Schlichtmann the case was _ ready to settle. Gordon reserved a conference room at the Embassy Suites and Phillips went out to buy a borrle of the finest single-malt Scorch whiskey. With these particular adjusters, it had become a tradi- . tion to toast each other and drink whiskey as the negotiation neared a . messfiil conclusion. _ 0n the appointed day Phillips brought out the whiskey bortle and _.' drew a line near the bottom of the label. “Jan, I guarantee you this case _I 'will be settled by the time we reach this line,” he said. -- Schlichtmann smiled. “Then I’ll have a drink right now.” ’ By late afternoon, the adjusters had increased their offer to half a ‘ : million dollars. Schlichtmann had-come down from eight hundred _ thousand to six hundred forty thousand. And there the negotiation ' _' stalled. They were all sipping whiskey, but it appeared that the case might net settle after all. The three adjusrers retired to a separate room .4] ' to talk among themselves. Alone with his partners, Schlichtmann pro- l ' posed reducing their demand to under six hundred thousand. “It’s a l' psychological threshold for them.” Phillips argued against it. “Going for the close too quickly is a big ‘_ ' mistake. Let’s wait until Monday and take their temperature then.” “Who’s Facher in that scenario? The nasty uncle?” ' ._‘ ' 7 When the insurance adjusters returned, everyone drank more Scotch. Schlichtmann laughed, and then he turned pensive. “Facher has 1h __ Schlichtmann talked about the Woburn case. He went on for forty-live strangest mannerisms,” he said. “You notice how he looks at the I . minutes, never once mentioning the case at hand. Phillips looked at the i when he’s asking quesrions? It’s fiinny he doesn’t talk to the jut-yr" Scotch horde and saw the whiskey level ominously close to his mark. Schlichtmann told Julianna about the time he’d gone to Fachet's office,- . . One of the insurance adjusters left the room to make a telephone ' how proudly Father had shown him the picture of his daughter. Under - call. When he returned, he took Schlichtmann aside and said the com— that pride, Schlichtmann thought he’d detected a certain wistfiilness in ‘ '. parry that made the anesthetic used in the operation had agreed to con- Facher. “He’s divorced, a lonely old man,” said Schlichtmann. “lfi' .' : tribute ninety thousand dollars to the settlement. The offer was now 30‘ naming bur the firm-’3 live hundred ninety thousand. Was that enough? 6 The jurors presented Judge Skinner with a gift in the nvelfth weekd. . trial, at the end of Finder’s testimony. They had apparently noriced s: judge, white-haired and looking somewhat frail, struggle with the .- ' leather-padded door that opened from his chambers onto the bench. So; the jurors gave him a doorstep made from a piece of polished granite an - keep the door propped open. The judge told the lawyers about the '. (“Perhaps it’s from the Aberjona,” he said, showing them the rock), no one suggested that anything improper had occurred. But Schlichtmann found the gift disturbing. That evening he out to dinner with Phillips and his wife, Julianna. After a bottle _ wine, the talk turned to the judge. “That gift shoWs the jury’s got alar: of respect for Skinner,” mused Schlichtmann. “But you don’t they’re looking at him as if they’re asking, Judge, what should we do!”- - “Sure they are,” said Phillips. “He’s an authority figure. The come- ' room is a whole different world for them, and Skinner is their A I “That frightens me, ” said Schlichtmann. “If the judge has becom‘ -' a father figure, what happens if they see me as the outcast, the wage ' ward son?” " -..,. _. _b' 344 ACivilAcrion ' - Thewa 345 WObum“—the irony W35 ‘00 striking—that he had getter! The "--'-.' I, The Woburn families may have been drinking well water laced from the water he himself had failed to shut off. Mernin entered -".'" 7: u. TCE but, according to Braids, that TCE could not have come hospital for an aggressive round of chemotherapy. That summer, " I I .Beatrice. Mernin’s first hospitalization, Reverend Bruce Young encountered _‘ ' I‘- This opinion caught Schlichtmann by surprise. He had deposed one morning at the Woburn post office. Reverend Young knew a: ' I; 4. four months earlier, and Braids had explicitly stated that he quite well, having served with him on several city committees. ‘3_. .e not deal with the question of when the chemicals had been touched me, too,” Mernin told the preacher. “There were an awfifi ' j’ : n u .. on the Beatrice property. of sick kids.” ' ‘ ' Up at the bench, Schlichtmann demanded that the judge strike Schlichtmann heard that Mernin’s decline was swift. The city -.;,.:_ ;-:.41 ’5 opinion and instruct the jury to disregard it. “Fundamental neet died several months after his diagnosis, at age forty-nine. ' _ - -..a|:a-. would dictate that they at least tell me he’s doing this sort of ' -'-i j _‘ wk. They never told me about it. They did it purposely to keep me W .2 idle In a trial, as in most every endeavor, it’s harder to build than it is to I '1 ‘2: was not done purposely,” said Father indignantly, keeping his down. Like most trial lawyers, Schlichtmann enjoyed the ties m to a low whisper so the jurors wouldn’t overhear. pleasures of cross-examination more than the plodding labor of o- .- '__;.- “It was,” Schlichtrnann whispered back heatedly. examination. He thought he demolished Facher’s second witnma' u ‘Stop it!” said the judge. “You have two problems, Mr. Schlicht- hydrogeologist, who said that contaminated groundwater from '-‘ ' —a tremendous sense of overentitlernent and an underlying trice had never reached the wells. And he did, in fact, expose f'. : 'wnoia." The judge refused to strike the Opinion. contradictions in this expert’s opinion, but it wasn’t at all clear - '— Asuxprise or not, Schlichtmann felt c0nvinced that this opinion was, rational juror would dismiss the testimony outright. ' J = his words, “a fraud.” His own chemists and geologists had told him Schlichtmann had greater success with Facher’s second expert ' _- there was no scientific way to determine how long TCE had been ness, a soil chemisr named Olin Braids. Under direct exami . n-- " the soil. If there had been, he would have USCCl it himself- And Facher, Braids told the court that he had been able to determineby ' .-—. the Opinion seemed to fit Facher’s needs too perfectly. How entific tests the earlieSt possible moment at which TCE could _ that Facher happened to End Dr. Olin Braids! How fortunate that been dumped on the Beatrice land. He had done this by examining u had determined with such precision that TCE could nOt have n‘ microorganisms in the soil—“It might be easier just to call them _ ,1- .. i a ed on Beatrice’s property until six months after the city Wells had bugs,” Braids said. Some of these soil bugs had a taste for u. ' lxbsed! atoms- They attaCl'ICCl themselves 1:0 mOlCCulcs OFTCE and bI‘Olié .- Schlichtmann had no time to prepare a cross-examination of Braids. TCE down to dichloroethylene, and then to vinyl chloride, a sou-sf. -."--'2- would have to play it by ear. Standing in the well of the courtroom, pound so stable that the bugs no longer had any use for it. This - -u -. him: a gallery of only half a dozen specrators, he asked if Braids had of “biodegradation,” said Braids, could take from three to six years, —- at old aerial photographs, old maps, or collected any tannery no longer than six years. Of that, Braids was absolutely certain. ' i jnmrds—any documentation at all—to determine the hiStory of the And here lay the significance of Braids’s opinion. Since tr 5 E'Bcatrice site. No, admitted Braids. Had Braids ever done this sort of ride had not been detected on the Beatrice prOperty until Novenfiup' _ before, with microbiology and the degradation of chemicals? No, 1985, that meant, said Braids, that TCE could nor possibly have a u ' hind not, but he had read “a few articles in professional journals” about dumped there more than six years ago, or 599?? November 1979. l '3“ .die subject. Did these articles say how long it would take for microor- import of this was obvious. The city wells had been shut down in .- .- I to break down TCE? No, said Braids, they didn’t. Could Braids 1979, six months before the Beatrice land could have been u Lav-a r the exact mechanism by which these soil bugs broke Clown 3445 ACivil Action The Trial 347 TCE? Braids wasn’t sure of the mechanism. “It's not in my field. I’m u. . acquainted with it to the exrent that I’ve read papers about it.” I Well, then. said Schlichtrnann, did Braids know of anyone who ' " I ever used this method of dating contamination before? No, B r wasn‘t aware of anyone’s having done it. “In some ways,” said i u - he had used only sparingly before. m doing work at what is called ‘state of the art' in science. It may _ Gordon made it a point never to lie to Uncle Pete—or to any credi- the first time, but I have confidence in what I’ve done.” Was :3: In, for that matter. When a creditor called him, he never said he had method accepted by Other scientists in the field? “Since it’s newly - - _ I an a check when he had not. But he was not above sending checks in oping and has not been widely published, I guess I’d have to say it -' '_ envelopes with the wrong zip codes, or writing checks and attaching widely accepted. I’m not sure a lot of people kn0w about it.” _ _ 3 incorrect invoice numbers. When he received a bill from Citicorp Masv Schlichtmann halted his examination. Again the lawyers gathered; mm], he sent a check directly to Citicorp instead of the bank’s pro- thejudge’s bench. Again Schlichtrnann asked thejudge to strike B .. ' '_ cussing center in South Dakota. “I think this will take them about a opinion, this time because it was without any scientific foundation . “month to straighten out,” he said hopefully. “Xerox, they’re such a failed to meet the minimum Standards for an expert opinion under _ huge corporation I can tie them up for months with paperwork. Wang Rules of Evidence. ' Computer, We owe them thirty thousand dollars for service and main- Judge Skinner considered this motion seriously. “I think you’re make mace. They’re a typical bureaucracy. I can tie them up, too.” ing a strong point in terms of his credibility,” he told Schlichrmarm. ' , Gordon kept in his desk drawer a large collection of credit cards don't know whether I believe him.” ‘3 ' bound with a rubber band. These cards were all charged to the hilt and Facher grew agitated. Braids’s opinion was the heart of Beatriceh. useless. He had used them to get cash advances to pay operating defense. “He’s used scientific principles. It’s a lot more acceptable than: "£9655 and salaries. Wobutn had turned him into a prodigious con- Drobinski’s methodology,” insisted Facher. ' - _ i- 'mer of credit, and he often received invitations to apply for new Schlichtmann said, “Certainly Drobinski had a better foundations: : credit cards. These came from banks he had never heard of—in than this Witness." I _ _ Mada. Arizona, North Dakota, and California. Gordon called them “I don’t think so,” replied the judge slowly. “Braids has a much .' 'éyster cards.” The banks would charge 22.9 percent interest, but scientific approach than Drobinski, who said, ‘I eyeballed this smfl-‘afi _ Gordon didn’t mind that. He liked the cards because they required him it looked pretty old to me.’ Maybe the jury will find it’s a toss-Qt. I to pay only 1 or2 percent of the principal each month. He’d fill out the between Drobinski and soil bugs. I’m not going to strike it.” -_' __ application forms and send them back by Federal Express. Within a So Braids’s opinion survived on the record. Schlichtmann .1 month, each new credit card would be laden with several thousand dol- really mind. The jurors might decide that if this was the best defense" . _ hrs of debt. Facher could muster, then the case for Beatrice must be weak I ' Gordon imagined the Woburn debt as an immense pyramid. Each Besides, now that he and Facher had reversed their roles, Schlichtmam- block ofthe pyraflfid represented 3 “Editor. and the“? were hundreds 0‘: was having fun. I _ them. Keeping all the blocks in place, the pyramid intact, had become _ exhausting work. “The one day I don’t come in—-if I get sick or I don’t WT”— ' ‘ have the energy—that’s the point it could all come down,” moaned ' Gordon. Some mornings it seemed he could do nothing but sit in his . ofice on Newbury Street and add up the bills over and over again and ‘ Rh: calls from angry creditors. At night he would go home to his Bea- “ eon Hill apartment and lie on the living room couch, watching televi- ihnstof the creditors and paying off in Full only those who had begun 2% action. By Gordon’s reckoning, the cost of the Woburn case insulated to $2.4 million to date. Gordon saw no more income on the - horizon. He had no choice now but to rely on a variety of stratagems 8 By june Gordon had disbursed the last of the money from the O’ka nell settlement. He had spread the money thin, giving small sums as 'i- 350 A Civil Action end of the month. Murphy was still unsatisfied. Then Gordon had a: idea. He offered to give Schlichtmann’s Porsche to Murphy as a don' ’ payment. Murphy had seen the car in Woburn, and he had obviousk. coveted it. Murphy seemed momentarily tempted by this offer. But then lm‘ smiled and shook his head. “You don’t have to do that,” he said. “How :'- would Jan get around?” Gordon didn’t answer that question. Schlichtmann owed the W ' on Beacon Hill a thousand dollars in parking fees and the garage rm .. holding on to the car as collateral. Gordon didn’t want to tell Murplq' _ that Schlichtrnann was mostly walking. True to his promise, Gordon called Murphy at the end of the month _ . to say that he was mailing a check for twenty thousand dollars. Gordon didn’t have enough money in the various accounts at the Bank of Boston to cover the check, but he’d given his word. He figured it would : take four or five days for the check to work its way through the mail ‘ and banking system. Anything could happen during that time, '_ I thought Gordon. They might win the lortery. Schlichtmann - borrow money from Kiley or Neville. Or, most likely, he'd jusr have to. ._. persuade Uncle Pete to cover another overdraft. Gordon took Murphy’s check down to the mailbox on Newbuzy ‘ Street at six o’cloek. He knew from previous experience that the lam i mail pickup was at six, but he read the posted times again to make cc» '- tain, and then he put the check in the mail. It was a Thursday -_. in late June. Gordon figured Murphy wouldn’t receive the check untfl . Monday, and even if he deposited it in his company’s account that day; it would take another full day to get back to the Bank of Boston. The next morning, at two minutes after eleven o’clock, Gordon’s secretary said Pete Briggs was on the phone and he sounded angry “Oh, Jesus,” said Gordon. It was the check for Murphy. It had cleared in record time. Incredi-v I ble as it seemed, the check had gorten picked and delivered to Weston - Geophysical’s post office box that very morning. And then Murphy had taken it direcrly to the Bank of Boston. Gordon hadn’t even had a chance to inform Uncle Pete. “Thar fucking check went through the ' system like diarrhea,” Gordon said in wonderment. Gordon had his own personal Stashes of money, to be used only in. the most dire circumstances. Tucked into his sock drawer at home, he _ I either. The The! 551 "- hpt several tightly folded one-hundred-dollar bills. In the back of his . drawer at the office he kept two thousand dollars in American _ ' Express traveler’s checks. And he still had the ten gold Krugerrands in - one ofhis filing cabinets. After Pete’s call, Gordon loaded the Krugerrands into his suit-coat , packer 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 car— - tying a gun?” he asked. Gordon took the Krugerrands out one by one and stacked them on - ’s desk. Pete shook his head ruefully. I"fhings are very bad,” said Gordon. This was Gordon’s act of contrition. He felt the need to repent, and $3315 Krugetrands, so dear to him, seemed like a good way to start. Uncle -- Pete must have undetsrood 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. a; 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 I canopies of leaves. The world flourished in the sweet spring air, but Schlichtmann barely noriced. Inside the office on Milk Street, the flcus trees and ferns had turned bmwn and died. Corning round the corner from the conference room, Schlichtmann passed the withered, decay- stumps of a large potted corn plant, but he didn’t notice that, In the courtroom, however, he made sure to keep up appearances. His hand-tailored suits were always perfecrly 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 Bea- .34.”. .41 u-rI-nr Wig-C 352 ACivilAction ". new: 353 trice had taken less than a week, and even the Grace lawyers, who ::—- 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 clay ‘- 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 . I'm expert named John Guswa who, as it happened, knew George defense. Keating could not deny that the soil and groundwater under _ finder quite well. “I worked with George in the Geological Survey,” the Grace plant had been polluted in the early 19603 by the acrs of iw " :Guswa had said at his deposition. “I've had dinner with him. I respect own employees- Nor Cauld Keating deny that contaminated ground- '- as a person and as a professional.” All the same, Guswa was certain water from race flowed downhill from the Plant direCtly to the wells; fiat Pinder had been wrong about the river. The wells did draw water Bur Keatlflg was not Without a plan. Like a good defense laWyer in a ' firm the river, and that, Guswa would later assert, was how they had murder trial, Keating would try to steer the jury away from Grace and ' become contaminated. in the direction of Other culprits—industries in north Woburn that for I ll But first Guswa had to explain why, in his scientific opinion, W R. many years had dumped their wastes into the Aberjona River. He could not have contaminated the wells. As a graduate student, would sugar to the l1“? that the Poul-“Cd river, nor Grace’s ground-v . - had specialized in the study of glaciers, and he brought that spe- Water, had contaminated the wells. J ‘ dairy to bear on the Woburn case. The terrain of east Woburn, he Thls strategy, 35 it unfolded appeared quite sound and well co... ' .4 Awlained to the jury, had been shaped twelve thousand years ago, at Structed‘ one Witness: 3 Sanitary engineer, told how he had followed a a end of the lasr Ice Age, when an immense glacier more than a mile Smflllbrmk’ a tributary 0f the Aberjona, to a complex of industrial ' had covered the New England landscape. In its advance and budding? two miles upriver from the wells. In a swampy area near -, Inherit, the glacier had deposited a layer of soil fifty feet deep on the those bylldmgsi he’d found many 55'39-[lon drums and pails scattered .i ' hedka ridge where the Grace plant was now located. Soil of that type, about. _The closer I got to the industry, the more horrified I became,” ; eatnpressed under the glacier’s enormous weight, was known to geolo— f‘he an'nfe’ {Old :1“? lm'Y- Coming from one of the buildings was a . - as ground moraine, or hardpan. It was densely compacted and Whlte resmy 5mm and a “bright orange-colored effluent” that stained -.-I l gmundwater seeped through it very slowly, like water trickling through the Wt,“ find the bfmks‘ . '1 pipe stuffed with sediment. . Kean“? next Witnési a SUPCWESOI at the Division of Water Pollu- .- Like “a stuffed pipe”—-that was how Guswa told the jury to imagine “on control’ lo“ a 3mm“ “017- He had i1'1""“‘-5tigated one particular 3' subterranean path from Grace to the wells. Guswa had an infec- Compi‘my’ Natfonal POIYChcmical, for the past ten years. “We still had - _ ' lions, almost boyish enthusiasm for the subject of glacial morphology. POH‘mOfl Coming from that site,” the supervisor said. “It wasn’t coming .'_" i _' Iii was forty—one years old, clean—shaven with a shock of thick brown ' isn't that often fell down over his forehead. He had constructed a ¥_ sophisticated three-dimensional computer model of the easr Woburn - gmmdwater system, using hundreds of data points. He explained how - 'm'n falling on the Grace property seeped into the earth, carrying with ' it the TCE and other solvents dumped on the ground by workers. The :mtarninated groundwater from Grace was indeed moving down _--mard the wells, Guswa admitted, but the “pipe,” clogged with wund moraine that had the “permeability of concrete,” had backed '.'-‘You encounter that often when you’re investigating an industry, attitude?” a ‘Yes, I do,” said the supervisor. Schlichtmann nodded, as if to indicate he undersrood this perfecrly. it took Keating four witnesses and a week of teStirnony to lay the '- kndation for his last and most important witness. This was a ground- On cross-examination, Schlichtmann said to the supervisor: “The _ company was still denying after ten years that they had a water-v pollution problem?” ‘ “Yes,” replied the supervisor. :Ehey-were Still saying it was somebody else’s fault, weren’t they?” r es, sir.” 1 354 A Civil Action The Trial 355 everything up. His computer model proved this, he said. “It’s my u :- clusion that even if the chemicals were released to the groundwater ’- tem on the day the plant opened in 1960, they could not have at... I Wells G and H by May of 1979.” All of this information was new to Schlichtmann. He had dc r: ;- Guswa six months ago, and the geologist had said then that he had _ determined how quickly groundwater moved from Grace to the -=-- . If Guswa was right, then Schlichtmann had just lost his case . 3w- _' W R. Grace. -- But Schlichtmann knew that Guswa lied to be wrong. The u- factsacontamination at Grace, the same contamination in the @' wells, and a ditecr path from Grace to the wells—should have M Guswa’s opinion look as ridiculous as Olin Braids’s soil bugs testi t : = '_ So Schlichtmann thought. But even Schlichtmann could see _- Guswa was not Braids. Guswa had used accepted scientific m m as- ‘- '.{ He was an engaging and credible witness. And, quite unlike Braids, - explanation at least sounded plausible. ‘13 At the office that evening, Schlichtmann and Nesson spent «r - r.- hours going over Guswa’s testimony. Finder had gone to Europe for , , v , ,, . conference of geologists and groundwater specialists, so they f IO cad! Other, “Hey! an.” great! Ififls Put It In‘ SChhfhmflii consult him. They worked late that evening, but they couldn’t come- ‘- " I -- 1111151”?- WaS something P5011159" about If all! bl“ he mum“ 9"" 15 with anything. Keating would have Guswa on the stand for two a -. -_ .' ' ' 011 the Pmblem- He’d talk 1‘ 0"“ “"Fh N55501: as soon 3'5 Nassau i da . The had to fi tire out how to rove Guswa wron b .. ' returned. '- Wh:n Neison left t1: office, he tookpwith him several (ng Iain " i Nfison didn’t return to the courtroom that daY- Nor did ha Show up ‘ hydrogeology textbooks. ‘ tithe oH-ice later that afternoon. Schlichtmann called Nesson’s Office at The next morning, Schlichtmann watched Guswa take the witnmt ‘_ Harvard. but his secretary hadn’t seen him- The”! 1“ “5mg congenia— stand again and reiterate his assertions of yesterday. Then Guswa added - jun, he called Nesson’s home in Cambridge, but there was no answer. a new calculation: The wells, running at full capacity, pumped elem . fine was running out. SchliChtmafln woujd have ‘0. gig“ cfoss' hundred gallons a minute. Even if all the contaminated Grace ground» ' imining Gma tomorrow “when the hell is Chm-116' SCI-111cm- water did get to the wells—and Guswa was not admitting that any did, i. mun yelled 1cme the conference mom' given the density of ground moraine, but assuming for a moment m' ' it did—Grace’s contribution would amount to only fiVe gallons a " minute. In this hypothetical scenario, the groundwater from Game r would amount to less than one half of I percent, the proverbial . ' the bucket. -' Nesson, seated next to Schlichtmann at the counsel table, listenedn- _ all of this attentively. When Guswa began demonstrating his point - I the portable blackboard, Nesson scribbled notes on his legal padr f an; before the jury, Guswa estimated that an average of twelve - um of rainfall would seep into the earth and become groundwater in given year. He multiplied those twelve inches, or one cubic feet, by . .' - area of the Grace property, which occupied a square approxtmately hundred feet on each side. This gave him an annual t0tal of 2.7 mil- . gallons of water entering the ground, a seemingly large. amount, ‘ Gma admitted, but not once he reduced it to gallons per minute and a .=-.---. d that with the amount pumped by the wells. ' I= I'When Guswa finished presenting this calculation, Nesson stuffed : nores into his briefcase and hurriedly left the courtroom, pushing his way out the heavy swinging doors. «- Schlichttnann hardly noticed Nesson’s sudden departure. Nesson, among the lawyers, came and went from the courtroom as he W. Besides, Schlichtmann was pondering Guswa’s new calcula- --= Each element of it made sense, but why had Keating thought It i ' am: ? After all, Guswa had made a convincing argument yesterday ' fiat norhing had ever gorten from Grace to the wells. Schiichtmann u if Guswa had come up with this calculation last night, bram- with the lawyers. He could imagine Keating and Cheeseman \ . Nissan was still missing the next morning. When Keating finished his ghost examination of Guswa, Facher gor up to ask the Grace expert a _ HEW quesrions. As co-defendants, Facher and Keating had agreed not to , W Sehlichtmann by WWW during the tn . Tithe: knew that Guswa would not deliberately hurt Beatrice. In reply fm-Facher, Guswa told the jury there wasn’t enough information for 356 A can Action ." m m; 357 him, or any groundwater expert, to determine whether TCE :. ' " a witness seems able to understand the question,” said thejudge. Beatrice had reached the wells. The groundwater flowed into an -- " _ "'_’t think he needs any help.” that Guswa called “the zone of uncertainty.” This opinion seemed ' v . had not meant to implicate Beatrice, and he had not done so 5365f? FaCheE ' ' " ' - . In the end, he said to Schlichtmann, in apparent frustration, It was Schlichtmann’s turn to cross—examine. He and Nesson. I i- to direcr our efforts at our problem. Beatrice has to take care of already devised a line of questioning that had to do with Beatrice, : ._ :l' problem. You have to take care of your problem.” Grace. It didn’t deal with the real threat Guswa posed, but it] ,. _- - a: ’cth had gotten what he’d wanted. Hed turned Guswa promising, and Schiichtmann knew it would get him through awitness against Beatrice, and doing so had takenhim to the end resr of the day. He hoped he could use Guswa to prove that 'm: I . day. But he still hadn’t figured out how, in Guswas words, to take had been right—that TCE from Beatrice would flow under the ' a ‘_ ':" of his problem with Grace. He had no plan for tomorrow. And to the wells. .5 n was still missing. Kathy Boyer had called around all day look- Schlichtrnann read aloud to Guswa the water-level -- ....... ._-' _firNesson, to no avail. that had been taken during the pump test. Then he had Guswa v- i- late the direCtion of groundwater flow based on these meas ' }.-l'.'.-' “Sing the SimPle methOd OF triangulation. Guswa did so, and by - 2:;- we had gone to the only place he knew he could work without time he finished, he had groundwater from Beatrice flowing in _ -I “l - ption—the Harvard Law School faculty Library, on the top floor direction of the wells. ‘ I . _ the Griswold Building. Like Schlichtrnann, he had the sense that The judge listened intently to Schiichtmann’s examination. a... '. was a simple and obvious way, just beyond his immediate grasp, interrupted Schlichtmann and began interrogating Guswa m ' I _. prove Guswa wrong. It was a riddle, and riddles of this sort had Would the river form a barrier between the wells and the Beatrice ma _ : ___ appealed to Nesson. I erty? the judge asked. s '1- '. tl'le began with the premise that groundwater from Grace did get to Guswa said, “There’s no barrier or wall of water under the river.” 4' ;i - wells. He accepted that as a physical truth. Guswas ground “No barrier?” the judge said. - 3 3‘. , ..= ' e theory, therefore, had to be flawed. But Nesson couldn I. hope “No,” replied Guswa. a; I' : find the flaw in Guswa’s computer model. Checking and verifying “80 water could flow from the Beatrice site, under the river, to the r _ I _ hundred pieces of data that went into the model would take weeks of the wells, as far as you’re concerned? That’s one of the possibilities? z: -' he had only hours- _ “It’s one of the possibilities, yes, sir,” Guswa admitte . - _' - The way to solve this riddle had eluded Nesson until Guswa began At the Beatrice counsel table, Facher grew visibly agitated, ' l -" " 'e ; his five-gallon-a-minute calculation. Even then, Nesson hadn-t objecth to the judge’s questions, but the judge paid him no u n the solution, but he felt certain he had enough information to When Schliehtmann resumed questioning Guswa, Facher stood -- -' .. -: with. And that was why he’d left the courtroom so. suddenly. lurched Forward to the witness stand, toward Guswa, interru_' _ “ fi this time Nesson was familiar With the basrc princ1ples of hydro- Schlichtmann’s cross-examination, a loss of poise that was ' - -- . From Pinder he’d learned about Darcys Law, the basis for vir— unusual in Fad'lcr- . . every calculation in hydrogeology. It was a simple madiematical “Wait a minute, wait a minute,” the judge said to Facher, holdiq - ' . --- - devised by a nineteenth-century Frenchman, to compute till? his hand- ofwater through porous media. The law stated that the quantity of Facher looked up at the judge. “The measurements, he’s asking. .-. i (Q) flowing through a given area is equal to the hydraulic con- all the measurements.” .. ;-. '-'v-"'- (K) of the material through which it flows, multiplied by the .i Q 1: \Q’V’; 358 A Civil Action The Trial 359 ._. 4-: the hydraulic conducrivity of ground moraine, the area of the plant, the amount of rainfall entering the system. This took 'Sthlichtmann longer than he’d anticipated, and by the close of the day '-. hid set Nesson’s trap but he hadn’t sprung it. .- -- “Is this a place you want to stop?” the judge asked in consternation. must be something that follows from all this. It seems to me I. there’s a question missing.” I ‘ “I can go further,” said Schlichtmann. “Can you give us fifteen min- ,.- mes?” .- Keating suspected that Schlichtrnann was about to do something he .j .-'wouldn’t like. He made a halfhearted protesr, but the judge brushed ' I ' in: aside. “Fifteen minutes,” said thejudge, “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. ' l“Yes,” said Guswa. “You take the hydraulic conducrivity—that’s the permeability of a -’ material—and you multiply that by the opening the water has to pass ' - fizz-ugh, right? And then you multiply that by the incline d0wn which .3 ,. 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 ' thevalues 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 '- muld rearrange the equation to find that out.” size of the opening (A), multiplied again by the gradient, or . " incline (I). Thus: Q: K x A X I. Once one knew what values to put the formula, it was quite easy to work out. Unlike Guswa's sp three-dimensional computer model, it required only a pencil and Nesson began working out the equation, using the values Guswa supplied on the morning of his five-gallon-a—minute calculation. . ur- discovered immediately that the equation did not balance. He .\ u _ for the moment that Guswa was right about twelve inches of . a r 5, rainfall entering the groundwater system through Grace. I-Ie .'\ further that Guswa was right about the angle of incline toward the '- and also the low conducrivity of ground moraine. How big, then,- son asked himself, would the opening—the pipe, as it were—have In to accommodate the volume of water that flowed through the m _ Using X to represent the size of the opening, Nesson performed m " simple algebra and reworked the equation so that it looked like dlis: F "" The moment he completed the math, he knew he’d found the ' ' to prove Guswa wrong. It was simple to understand and elegant, . m ' u had the singular virtue of using Guswa’s own values to provide a u .m '-, mg answer. ‘- Schlichtmann sat in the conference room with Conway and Kiley, - .. dering what he would do with Guswa the next day. It was early -- as ' l _ . “Yes,” agreed Guswa, “we have to go back to basic math.” when Nesson walked in, smiling broadly. Schlichtrnann up -. - -. l “ . , I Schlichtmann rewr0te the equation to find X. Then he asked Guswa . shouted. For Christs sake, Charlie, where the hell have you been?” . to do the math and calculate the height of the opening. Nesson smiled. “I’ve figured out how to nail Guswa.” -‘* 1 Guswa worked in silence, punching numbers into his calculator. Everyone gathered around to watch as Nesson wrore Darcy’s "Fifty-nine feet,” he said at last. the blackboard. “Go slow, Charlie,” warned Schlichtmann when 1. “Fifty—nine feet,” repeated Schlichtmann. He asked Guswa to mea- saw the equation. “You're talking to someone who can’t balance I sure off that height, beginning at the bedrock, which Guswa himself Own checkbook.” _'- htl said would carry away only a small amount of water. “- Guswa, looking grim, did so. “It’s about ten feet above the land sur- - face,” he said. I_ This had been Nesson’s discovery. Assuming that Guswa’s figures. I which formed the basis for his opinion, were correct, then Darcy’s Law . red—.4. . . The next morning, Schlichtmann began obliquely, without me we ‘ ing Darcy’s Law, by getting Guswa to agree to his own previously rm. . I. i. 360 A Civil Action '- ‘ r)» Trisz 361 dicrated that the Grace plant would be submerged under a lake w' water ten feet deep. . 9 .. -- beta] component in some direction burn” Back at the office late that afternoon, Schlichtmann heard the dis- ‘ “But you don’t know where it’s going?” said the judge. tanr sound of a jackhammer from up the street, from the direction of ,- ' “No, sir,” admitted Guswa. the courthouse. The faint noise drifted in the open windows of Guswa looked drawn and very tired, his boyish enthusiasm gone conference room. Schlichtmann cupped his ear to the sound. “Liste1:l" i Schlichtmann turned to the one remaining element of Keating’s he cried. “You hear that? It’s Guswa trying to get water through the 3 -" Hensm—the theory that the river had ttansportedTCE and other con- "That's correcr,” said Guswa again. “It’s going down and picking up bedrock” - minants from industries in north Woburn down to the wells. He invited Guswa up to the chalkboard again. Guswa took a deep breath ‘ '. 'mdsighed. “LaSI night there was a wall of water ten feet high sweeping down the 3 'I Schlichtmann asked him if TCE had been detected in the river Aberjona Valley,” Judge Skinner said the next morning, after the ': " had taken their Seats- - - ithad not. If the TCE in the wells had in fact been drawn from out of Schlichtmann abandoned the traditional form of cross-examination _» . the river, continued Schlichtmann, wouldn’t you expect to find traces that morning. He did what every seasoned trial lawyer and every hand-a " efTCE in the riverbed? And in the sandy soil directly under the rivet? book on trial practice preached against. He gave control of the court- - : Yes, said Guswa, you would expect to find traces. room to Guswa, confident that Guswa could not have devised any _ "_. . . “But when we look directly under the river, we don’t find anything, escape. “Why don’t you jusr explain your position to the jury nowg' ; : I" right?” asked Schlichtmann. Schlichtmann said in an agreeable tone of voice. “Would you like to do 7:" Gum agreed that was true. it on the board?” I. “When we look deeper under the river, we still don’t find anything. This offer seemed to surprise Keating. “Do you want Dr. Guswato -' .. « We keep looking deeper, and then We find TCE in the hundreds 01: say what he’s doing?” : '. parts per billion, don’t we?” “Sure,” said Schlichtmann cheerfuily. 3 "That’s the pattern we see,” replied Guswa. Guswa labored at the chalkboard that morning. True to Schlieht- " ._ “That pattern is consistent with the fact that no contamination mann’s prediction, Guswa had groundwater flowing deep into the - came from the Aberjona River, isn’t it?” bedrock, a hundred feet down, three hundred feet, a thousand feet, in “It is not the only explanation,” said Guswa, “but it is consistent, yes.” all directions along cracks and fissures that existed only in hypotheSis. ‘ “Let me ask you this,” continued Schlichtmann. “Is it possible that He culled dozens 01" numbers: changing gradients and Permeabilitfi , 'l . the contamination could have come from an area to the northeast and multiplying and divjding numbers in an effort to salvage his them?- HB to the west of the wells? Is that at least possible?” stood at the board in front of the jury box and muttered numbers to This question had enormous import. The Grace plant lay to the himself, punching them into his calculator. “Now, how am I going 50 - i" northeast and Beatrice to the west. The EPA, in its preliminary report, do this here?” he said under his breath at one point Md identified those areas as likely sources of the contamination, ‘, although it had nor named either Grace or Beatrice. The judge had Schlichtmann let Guswa go on for a while, watching silently from a 1 spot near the jury box. After a time, the judge asked Guswa. “The ' refused to let Schlichtmann show this report to the jury, but Guswa, of bedrock, I take it, has a saturation point? It’ll only hold so much water? i I" course, had read it. “That’s correct,” said Guswa. “So,” continued the judge, “if water is coming into the bedrock on a daily basis, the same amount is leaving?” _ met or in the river's banks, adjacent to the wells. No, replied Guswa, _ Guswa considered Schlichtmann’s question for a long moment, - perhaps thinking about the EPA report. At last he said slowly, “That’s . mists.” 562 A Civil Action Schlichtmann seemed satisfied with this admission, but Judge _"- ner was not. “Well,” said the judge, “that type of question has to be "- followed up. Is it probable, yes or no?” “Probable?” said Guswa, looking up at the judge. “I think it’s a prob I. able possibility—” “No, no,” said the judge. “I’m asking you flat out: Is the explanation. -- .Mr. Schiichtmann presented to you a probable explanation?” “Flat out?” repeated Guswa. “Yes,” nodded the judge. “Yes, that’s a probabie source.” Schlichtmann had broken Guswa, in large part thanks to Nessonh '- ingenuity and dormant gift for mathematics. It could not have pened at a more telling moment—during the cross-examination ofthe "_ last witness at the end of a long trial. That evening, everyone in the office, secretaries, paralegals, and " receptionists included, went downstairs to celebrate at Patten’s Bar 5; ‘_ Grill, where nine months ago Rikki Klieman had first mentioned Nes- '- . son's name. Schlichtmann had a long—standing tab at the bar, and owner, who knew all about the Woburn case, didn’t press for paymem._ Schlichtrnann drank martinis and toasted Nesson. Spirits were " high all around. Sehlichtmann was too happy with his vicrory to k'.‘ . gracious. “Guswa gave up his soul today,” he said. “What little W left of it. ” ...—--"-"" 10 On the first day of July, a sunny, cloudless morning, the lawyers, the judge, and the jurors boarded a yellow school bus in Post Office Squaw heard so much about. The six jurors and six alternates sat togetherin the first several roWs of the bus. The lawyers and the judge sat toward. .' the back, separated from the jurors by four empty rows. The had told the jurors to wear casual clothes and old, sturdy shoes. “I’ll wear ' something like a bush outfit, myself,” he’d said. So Schlichtmann ._ :27» m: 363 ,1 a - shopping for an outfit suitable for a safari. Phillips had accompa- slied Schlichtmann on the shopping trip and treated him to a pair of - new pleated khakis, a green twill shirt, a belt, and hiking shoes. Schlichtrnann had wanted a safari jacket and a wide-brimmed desert I I lint, too, but Phillips had refused him those. Only Facher came wearing his regular courtroom apparel. “You’re , ready to sacrifice a suit,” the judge said to Facher. I‘It’s like walking through your own backyard,” said Facher. ‘‘I’ll take ' mytie off. I’ll make that concession.” ' The expedition visited most of the pertinent spots. At the \W. R. I Grace plant, two flagpoles, one flying an American flag and the other : aGrace fla , flanked the glass entryway. The plain red-brick facade of .' Was clean and neatly. landscaped. On this clear blue day, 'with .- theGrace logo gleaming silver in the sun and the flags fluttering in the miner breeze, the scene could have served as a photograph in \W. R. _ Grace’s annual report. -- The jurors and the lawyers began a tour of the plant, Cheeseman the way. They walked through the produCtion and assembly '_ .ms, which were clean-swept and immaculate, the machinery shining .as ifit had just been polished. No one seemed to be working that day. I The employees stood apart From the group of visitors, eyeing them sinrily. The entourage was about to go out the back door, past the paint I drop where Barbas had worked, when a juror, Jean Coulsey, the forklift lady, halted abruptly and said, “No, no. Mr. Schlichtmann, I want to see the paint booth.” Schlichtmann had felt uncertain about Coulsey, . - But suddenly he thought better of her. Schlichtmann had heard from the families that the Grace plant had been recently landscaped, with new picnic tables and newly planted _' vegetable gardens, in preparation for the jury’s visit. He asked the judge and set out for Woburn. The jurors had asked the judge some months .7' ‘ ago, near the start of trial, if they would be allowed to see the Wobum .' city wells and the Aberjona River. Now, all the witnesses having come - : and gone, the judge decided that they should see the places thqr’d j'_ ._ alct him inform the jury of this, but the judge denied his request. As - ' the group went out the back door of the plant, where Barbas and Joe Meola and the other Grace workers had gone our daily to dump sol- " tents, they came upon several large, meticulously cultivated vegetable " Frdens. The tomato plants were nearly staked and already tall and fly. “Joe Meola’s own homegrown toxic tomatoes,” said Patti D’Ad- ' disco softly to Schlichtmann. I I The school bus drove through the woods up a narrow, pitted black- .I' .mp road to the edge of the Aberjona marsh, to the remnants of Wells ...
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This note was uploaded on 05/15/2010 for the course CEE 3510 taught by Professor Lion during the Spring '10 term at Cornell.

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A Civil Action by Jonathan Harr - 296 A Civil Action son...

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