A Lawsuit Toxic to Justice
Jimmy Anderson was only 3 in 1972 when he came down with what his parents thought was a cold: he had a fever that waxed and waned, odd bruises on his torso and limbs and a pronounced pallor to his thin, sad face. But multiple tests produced a diagnosis out of every parent's nightmare: Jimmy had leukemia. When 12 other children in working-class Woburn, Mass., were also stricken, it launched one of the most tortuous and scientifically complex civil suits in the history of American law. Eight families blamed two municipal wells, laced with carcinogenic trichloro-ethylene (TCE), for their tragedies, and hired Jan Schlichtmann, a Boston attorney famed for taking big gambles. In one negligence case, he spurned a settlement offer of $1 million, to the groans of his friends, only to get $4.7 million from the jury.
(500 pages. Random House. $25) tells the gripping tale of the landmark Woburn lawsuit. Journalist Jonathan Harr was granted unprecedented access to Schlichtmann's strategy sessions, witness preparation, meetings with the families, settlement negotiations and the 1986 trial. The result is a page turner as filled with greed, duplicity, heartache and bare-knuckle legal brinkmanship as any Grisham thriller (the movie rights went to Robert Redford), But unlike the justice-prevails endings of most legal fiction, "A Civil Action" portrays a system that one lawyer aptly describes as "Dante's ninth circle."
The evidence that Woburn's wells were polluted was compelling. The U.S. Environmental Protection Agency identified a W.R. Grace factory and a Beatrice Foods-owned tannery as the sources of TCE in the wells. Whistle-blowers testified that Grace workers dumped TCE into the ground above the aquifer. Experts for the plaintiffs conducted endless medical and geological tests--even seismic explosions to map the bedrock under the contaminated land and thus prove that dumped TCE could have made its way to the wells. But for every expert who testified that the TCE came from Grace and Beatrice, defense lawyers found one who denied it. The judge set the bar high. He ruled that if the jury could not determine exactly when TCE reached the wells--a scientifically unknowable question--the panel had to acquit Grace and Beatrice. After rancorous deliberations, the jury did absolve Beatrice. It found Grace guilty of dumping TCE. As for when the dumping occurred, the exhausted panel chose a date almost by caprice--one after three of the children had gotten leukemia. Seeing daylight, Grace settled for $8 million, a fraction of what law professors said the case was "worth." The families got about half. Schlichtmann, who had spent $2.6 million on the case, wound up with $30,000 and went bankrupt.
Schlichtmann emerges not as a novelistic hero, but a Greek one, flawed by hubris, willing to bring down everyone in his firm as he rejects settlement offers. (In fact, he would have had a hard time convincing the skeptical judge and jury that the TCE caused the leukemias.) It's no small trick to make us feel sorry for a lawyer, but Hart does--though not as sorry as for a legal system where, he writes, truth is "often a mere shadowland." After the settlement, the EPA concluded that Grace and, mostly, Beatrice had contaminated the Woburn wells. Beatrice lawyers were censured for misconduct; they had suppressed a report damning to their case. The EPA filed suit and got $69.4 million from Beatrice and Grace to dean up the aquifer. Grace pleaded guilty to lying to the EPA about the toxic dumping. Even if you long ago shed the illusion that trials are about something as quaint as truth, Harr makes you grimace at the mismatch between science and justice. "Perhaps the case was one that the judicial system was not equipped to handle," he writes. "Perhaps it should never have been brought to trial." But it was. The polluters batted it away like a pesky fly, and justice was as much a casualty as the Woburn children.