A Civil Action (21 page)

Schlichtmann sent copies of his brief by messenger to Judge Skinner and to Cheeseman. It was a Friday afternoon in late July. The judge always spent the month of August at his summer house on the Maine coast. Schlichtmann felt certain the judge would not schedule oral argument until September.

Cheeseman was unimpressed by Schlichtmann’s brief. He began outlining what he would say at oral argument. His hopes were still high when, four days after Schlichtmann filed his brief, he got a call from Judge Skinner’s clerk. “The judge has ruled on summary judgment,” said the clerk. “You can pick up the order this afternoon.”

Cheeseman thought he hadn’t heard the clerk correctly. “The judge has ruled? What about oral argument?”

“There’s no hearing scheduled,” replied the clerk.

Cheeseman knew he’d lost again. The judge had flatly ignored his request for a hearing. Cheeseman went across the street to the courthouse. The judge’s ruling was terse and it stung. “Since the complex factual issue of causation is a subject of heated dispute in this case,
summary judgment is clearly inappropriate. Defendant’s motion is DENIED.”

Cheeseman felt convinced that the specter of Rule 11 had come back to haunt him. “Skinner thinks I jerked him around on that one,” he would remember thinking. “He’s got a bit of a temper.”

These thoughts worried Cheeseman. He’d have to live with this judge for a long time yet.

4

Twice Schlichtmann had gone up against Cheeseman, one of Boston’s best practitioners in pretrial maneuvers, and he had come out a winner both times. The case was two and a half years old now, and so far he had done nothing but respond to Cheeseman’s attacks. Many years later Schlichtmann would say that if it had not been for Cheeseman, especially the Rule 11 motion, he might have followed Conway’s advice and let Woburn slip away. But at the time, it seemed to Schlichtmann as if somebody were trying to tell him that Woburn really was his destiny.

He was summoned to Judge Skinner’s chambers, along with Cheeseman and Facher, when the judge returned from his vacation in Maine. “I’m putting this case on a tight leash,” the judge told the lawyers in a stern voice. He gave them nine months, until May, to complete discovery. He expected the lawyers to be prepared to select a jury shortly after that.

Conway reminded Schlichtmann that they were still just local counsel. The case really belonged to Roisman and Trial Lawyers for Public Justice, even though Schlichtmann had paid all the bills so far and done most of the work on summary judgment. That one motion, Conway calculated, had cost the firm twenty-five thousand dollars. If nothing else, it was by now perfectly clear that Woburn would require a true fortune to prepare. Levin recommended bringing in experts in half a dozen disciplines—neurology, cardiology, toxicology, internal medicine, among others—to perform complete medical workups on all twenty-eight plaintiffs. And then there was Colvin’s big blood study with fifty controls. Where was Trial Lawyers for Public Justice? wondered
Conway. Since Roisman and his organization stood to collect two thirds of any fee that resulted from the case, they should at least be risking some of their own money.

That fall, Schlichtmann flew out to Milwaukee, where Trial Lawyers for Public Justice was having its annual board meeting. He laid out for the directors his plan for preparing the case, and he estimated that it would cost at least three hundred thousand dollars, maybe as much as half a million if it went to trial.

All of the board members were seasoned trial lawyers, older than Schlichtmann, and with many million-dollar verdicts to their credit. At the head of the table sat Ted Warshafsky, a Milwaukee lawyer who’d made his name suing drug companies. He was an excitable man in his late fifties, given to occasional explosive and profane outbursts. On the theory that a pet would have a calming effect, he had acquired a large boxer. The dog accompanied him everywhere. It took an instant dislike to Schlichtmann. When Warshafsky heard half a million dollars, he flew into an apoplectic rage, his face crimson as he shouted at Schlichtmann. Immediately the boxer’s ears went up. It leaped to its feet and put its paws on the table, a menacing eye on Schlichtmann, who half rose from his chair, prepared to bolt from the room.

Warshafsky got the dog under control. Still muttering at the far end of the table, he let Sal Liccardo, a California lawyer famous for his lawsuits against car manufacturers, take up where he’d left off. “When I had the Ford case,” Liccardo said angrily, “I only spent fifty thousand dollars on it, and that was a huge case. I never heard of anybody spending three hundred thousand on a case. It’s insane.”

Schlichtmann, of course, had spent nearly that much on the Carney case, but this didn’t seem like the time to bring that up. “It’s the only way I know how to do this case,” he told the directors, keeping a wary eye on the boxer. “But I’m happy to have you take it over. It’s all yours.”

That evening, Schlichtmann and Roisman went out for a drink. “The board’s made a decision,” Roisman said. “There can only be one captain of the ship. Since you’ve put so much time into the case already, we’ll let you run with it.”

Schlichtmann returned to Boston and told Conway the news. Trial Lawyers for Public Justice would still take 12 percent of any settlement
or judgment as a fee for its early work, but all the strategy, and also all the risks, belonged to them now, and them alone.

5

Schlichtmann ran into Cheeseman again that fall, after returning from Milwaukee. He had just traded in his Porsche 911 for a new one, the top-of-the-line model 928. It was low-slung and it gleamed like a jewel. He was getting out of the car when he saw Cheeseman.

“Yours?” asked Cheeseman.

Schlichtmann nodded. “I just bought it.”

“Business must be good.”

Schlichtmann smiled and shrugged. “The Carney case,” he said simply.

Cheeseman stroked the flank of the car, peered in the cockpit, and then asked if he could sit in it. The car had only a few hundred miles on the odometer. Taking the driver’s seat, Cheeseman examined the controls. He dreamed about owning one of these. He asked about engine displacement, gear ratios, and torque.

Schlichtmann confessed he knew nothing about those things.

“This car is wasted on you,” said Cheeseman, laughing.

By now, Cheeseman had found out some sobering news about Grace’s Woburn operation. A search of the plant’s records revealed that it had used at least four 55-gallon drums of TCE, considerably more than the single drum that Grace had reported to the Environmental Protection Agency. Cheeseman also learned that the plant manager had ordered workers to bury six drums that had contained toxic waste solvents, including TCE, in a trench behind the plant more than a decade ago. The EPA had ordered Grace to dig those drums up. A photographer from the
Woburn Daily Times
had attended the exhumation. The paper had published a huge front-page photograph of a crane lifting a rusted, partially crushed drum from the trench.

Cheeseman realized now that almost any jury would probably find his client guilty of contaminating the city wells, although he emphatically did not believe that such low levels of TCE had caused any harm. Yet he could imagine Schlichtmann calling the Woburn mothers to the
witness stand. He could see them weeping, just as he’d seen that young woman weep on the witness stand fifteen years ago, when he’d been a law student. More than ever, it looked as if this case was becoming the sort of public relations nightmare that every big company feared. Cheeseman had no trouble imagining a huge verdict—tens of millions of dollars—against his client.

He had already lost two motions, but he wasn’t out of motions yet. The EPA’s preliminary report had implicated a third company north of the city wells. This company, a thriving family-run business named Unifirst, supplied work clothes to industries from Florida to Maine, and it used large quantities of tetrachloroethylene to clean those clothes. The company had admitted to an accidental spill of the solvent, but it claimed that the spill had been contained. Cheeseman didn’t believe this, and he suspected there had been other spills, too. One way of shielding his own client from a huge verdict would be to drag Unifirst into the case and make it a defendant, a joint “tortfeasor,” along with Grace and Beatrice.

Cheeseman prepared a motion to implead Unifirst. It was, on the face of it, a purely defensive maneuver, but Cheeseman also foresaw one other benefit—it would make life more difficult for Schlichtmann. He would have to deal with three separate defendants, each with its own big corporate law firm, and that would surely tax his resources.

As Cheeseman drew up the motion, he considered calling Facher to inform him, but Facher had refused to help with the earlier motions. So Cheeseman didn’t bother to call the old lawyer, and that would turn out to be a costly mistake.

Judge Skinner approved Cheeseman’s Unifirst motion, the first by Cheeseman the judge had approved. For his part, Schlichtmann had no objection to Unifirst’s presence in the case. He might have sued the company himself had he not considered it to be a minor player. The city wells had contained only small quantities of tetrachloroethylene, and Unifirst had never used TCE, the main culprit in the case. As for making his task more complicated, Schlichtmann laughed in delight when he received Cheeseman’s motion. “Listen to this,” he said to Conway, reading aloud: “ ‘Unifirst breached its duty to plaintiffs by carrying out
the manufacture, use, control and disposal of the chemicals in reckless disregard for the health, safety and economic interests of plaintiffs.’ ”

Schlichtmann laughed again. “My God, look at what Cheeseman’s saying! It’s exactly what we said about Grace!”

The next morning, Schlichtmann called the lawyer at Goodwin, Proctor & Hoar who represented Unifirst. “I see you got an invitation to the party,” Schlichtmann said.

“It’s very odd that you should call,” replied the lawyer. “I was just thinking about calling you.”

“When can we get together?” said Schlichtmann.

“How about right now?”

At their first meeting the Unifirst lawyer told Schlichtmann that he hoped they could work out an amicable settlement that would result in his client being dismissed from the case. Money would change hands, of course, but as he saw it, his client’s real adversary was Cheeseman and W. R. Grace. Schlichtmann, after all, had not been the one to sue Unifirst.

Facher wasn’t laughing. Up until this motion, Facher had rather liked Cheeseman, although he thought Cheeseman had shown bad judgment with the Rule 11 motion, and poor execution when he’d let Schlichtmann outmaneuver him at that hearing. Rule 11 had been bad enough, thought Facher, but this impleader of Unifirst was a more serious blunder. Unifirst would create havoc in the courtroom. The company would never cooperate in a joint defense, not after being dragged into the case by Cheeseman. They’d start pointing fingers. In no time, all three companies would be fighting among themselves about who had contaminated the wells. Facher had spoken briefly with Cheeseman about this before, and he thought they had agreed that such tactics would only help Schlichtmann.

Facher called up Cheeseman. The conversation, as Facher later remembered it, began with his saying, “What the hell is the point of this? You’re claiming Unifirst dumped this crap and poisoned these people. It’s the same thing Schlichtmann’s saying. You can always blame Unifirst, even if they’re not there. In fact, it’s better that way because they can’t respond.”

Cheeseman said Unifirst would come to its senses. The company might be angry now, but it would soon realize that it was in its best interest to cooperate.

“Bullshit,” said Facher. “They’re not going to cooperate. You’ll have to dismiss against them.”

Facher was right. In the months that followed, Unifirst’s lawyers filed countersuits against both Grace and Beatrice. Cheeseman still wanted to keep Unifirst in the case, but Grace’s in-house corporate counsel finally overruled him. Unifirst was causing too much trouble and it did not look as if the company would ever cooperate in a joint defense. Against his will, Cheeseman was forced to dismiss all claims against the company.

Schlichtmann, meanwhile, had been negotiating with Unifirst. At the first meeting the company’s lawyer offered a hundred thousand dollars. Schlichtmann set up a meeting at the Ritz-Carlton, just as he had done in the hotel fire case, and he brought in a groundwater expert from Princeton University. Unifirst’s lawyer increased his offer to six hundred thousand. Schlichtmann wanted more. The negotiation stalled for a while, and then Schlichtmann organized another meeting at the Ritz. In the end, Unifirst offered to settle all claims for one million and fifty thousand dollars. The company would pay four hundred thousand in cash immediately, and the balance in five years.

Schlichtmann called the families together. On a Saturday morning at his office, they readily approved the Unifirst settlement, and they further agreed, at Schlichtmann’s suggestion, to use the first cash payment to finance the Woburn case. This money was important. Schlichtmann and his partners had made a million dollars from the Carney case, but they’d already spent most of that. Everyone in the office, from Kathy Boyer down to the cleaning lady, had gotten a big bonus. Schlichtmann had renovated his apartment and bought the new Porsche, and Conway and Crowley had each bought large houses in the suburbs. But all of that was petty cash compared with the real expense facing the firm. The Woburn case, Schlichtmann knew, had begun in earnest.

Discovery