A Civil Action (28 page)

Schlichtmann listened to this fantastic story with growing dismay. In a matter of minutes, the perfect witness had turned into a trial lawyer’s nightmare. Yet Turner’s childhood recollections did have the ring of truth to Schlichtmann. He believed that Turner really had seen those drums, even if he was not about to become an assistant director at the EPA.

Schlichtmann knew he could not risk putting Turner on the witness stand. He could imagine the delight Facher would take in cross-examining this doctor. But he listed Turner as a witness anyway, one who would testify about the presence and contents, including TCE, of hundreds of drums on the Beatrice property from the 1950s to the 1970s. If nothing else, Schlichtmann figured, this would probably give Facher cause for alarm.

The appearance of Dr. Bernard Turner’s name on the witness list, and the description of Turner’s testimony, did worry Facher. He had already made plans to fly out to Chicago to meet with Beatrice’s assistant corporate counsel, and he decided that he would depose Turner while he was there.

Schlichtmann did not attend this deposition. He was too busy to go to Chicago. But he did read the transcript of Facher’s interrogation of the doctor.

MR. FACHER: You were eleven years old when you saw these barrels?

DR. TURNER: That’s correct. I saw the red hazard labels.

Q: What labels did you see?

A: I saw xylene, toluene, butanol. I saw trichloroethylene—

Q: This is as an eleven-year-old kid?

A: You are raising a little heat with me.

Q: As an eleven-year-old kid, you remember seeing labels with these long chemical names on them? More than thirty years ago?

A: That’s correct.

Q: You’re not taking names that you know today and putting them on sights and sounds that you saw thirty years ago?

A: I remember it today. Do you forget what your mother looks like?

Q: Do I forget what my mother looks like? My mother doesn’t look like a chemical drum with a label on it.

Stenographic transcripts do not record the demeanors of the participants or the tones of their voices, but Schlichtmann did not need such descriptions to imagine the sound of angry voices and shouting.

Near the end of the deposition, Facher had asked the doctor if he was married, and Turner had said he was divorced.

Q: What’s your former wife’s name?

A: Sharon Turner.

Q: Do you know where she’s located?

A: No.

Q: She remarried?

A: I don’t think so.

To Schlichtmann, these last few questions seemed aimless, just the routine toil of a lawyer attempting to dig up whatever information he could.

Four days after Turner’s deposition, a private investigator employed by Facher’s firm located Turner’s ex-wife at her home in Stark, New Hampshire, a tiny hamlet near the Canadian border. Over the phone, the investigator told Sharon Turner that he was calling about a case in which her ex-husband was to be a witness. He said that he’d come across a three-year-old
capias
for Bernard’s arrest, signed by Sharon. “You took Bernard to court for not paying child support?” the investigator asked.

Sharon Turner admitted that was true.

The investigator said he knew where Bernard was living, and he also knew that Bernard owned some real estate and could afford to pay child support. He offered to have Bernard arrested when he appeared in Massachusetts.

Sharon Turner declined this offer, but the investigator persisted. Again Sharon declined, more firmly this time, and finally the investigator thanked her and left his telephone number in the event she reconsidered.

Schlichtmann learned about this incident from Bernard Turner himself, who was understandably incensed and vowed he would have nothing more to do with this case. To Schlichtmann, that made little difference. Turner’s testimony had been stillborn from the moment of its arrival, and Schlichtmann couldn’t find it within himself to muster much sympathy for Dr. Turner.

Schlichtmann had meanwhile found several other, more credible, witnesses who had lived near the tannery. One man, the owner of a small electrical-repair business, told Schlichtmann that he had often played on the fifteen acres as a boy. He and his friends used to call one area near the tannery Death Valley because of the white, powdery dust coming from the tannery that had coated the hillside and killed everything in its path. This witness recalled the time he’d found an old railroad flare on the fifteen acres. He’d lit the flare and stuck it into a block of Styrofoam. The Styrofoam began to burn and he’d thrown the block into a small pond. The pond had erupted in flames, a burning pool that gave off a heavy black smoke. The conflagration had brought the neighbors running, and then the Woburn fire department, led by the chief.

Schlichtmann heard from the fire chief of his mortification upon seeing hundreds of leaking drums strewn all about the property. The day after the fire, said the chief, he had called Riley to complain about the condition of the property, and he had also urged the health department to inspect the area. A year later another small fire brought the chief back to the Beatrice land. “Nothing had changed,” the chief said.

It seemed that everyone but Riley recognized the fifteen acres as a toxic waste dump. Riley
must
have known about the condition of the
property. Perhaps, thought Schlichtmann, the tanner really had been running an unauthorized waste dump. Perhaps he had charged his neighbor, Whitney Barrel, a fee for the use of the land. Jack Whitney had been in the business of refurbishing used 55-gallon drums, and the back of his property abutted the fifteen acres.

Schlichtmann began looking into Whitney Barrel. The more he looked, the more apparent it became that Whitney had run a dirty business in the dirtiest possible way. Schlichtmann learned from a man who had worked at the barrel company in the late 1960s that Whitney would empty the residue of 55-gallon drums that had contained pesticides directly into the sewer line, which ran untreated to Boston Harbor. This former employee also said that Whitney had instructed him on a few occasions—“maybe half a dozen”—to empty the residue of drums containing an unidentified “poison” along the dirt road that led onto the fifteen acres. Furthermore, this worker recalled using TCE to wipe clean the heads of 55-gallon drums before he painted them.

All of this suggested that Whitney had played an important role in the contamination of the fifteen acres. But Schlichtmann found it hard to believe that a man of Riley’s temperament would allow anyone to use his property without getting paid for the privilege. Schlichtmann would have liked to question Whitney about the nature of his business relationship with Riley—if indeed there had been one—but Jack Whitney’s testimony was forever out of reach. He had died a year ago, and the barrel company had gone out of business.

This information changed the complexion of the case. Even so, in the eyes of the law, Beatrice Foods still bore responsibility for what had happened on its land, for keeping an “open and notorious” toxic waste dump. Legally, it did not matter who had contaminated the land, but Schlichtmann knew very well that it would matter to a jury. He still had a case, but it was a far weaker one if he could not prove that Riley had done the dumping himself.

He had not given up on that yet. His team of engineers and geologists had shifted their attention from the Grace plant to Beatrice’s fifteen acres. They were taking soil samples, mapping the location of each barrel, and probing into the piles of debris. Schlichtmann went out to visit them when he had time. They had found several small clumps of a greasy material that contained TCE. Lab analyses revealed that this material also contained high levels of hexavalent chromium,
which the tannery used in curing leather. The stuff even smelled like leather. And furthermore, it was composed largely of fats and oils. Schlichtmann believed that these clumps had to be tannery sludge, offal, and pieces of flesh that came from scraping the raw cow hides clean prior to tanning.

If this material was indeed tannery waste, then how had it become contaminated with TCE, which Riley claimed he had never used? It was, of course, possible that someone else—Whitney, perhaps—had dumped TCE on top of it. That was possible, but to Schlichtmann the most logical explanation was that it had all come from the same place. And if that was true, it meant that Riley had lied about TCE.

There was no obvious way for Schlichtmann to prove that. He hadn’t been able to find any tannery witnesses who could testify to using TCE. And Riley had testified under oath that there were no records of the chemicals the tannery had used before 1979. Those records had been routinely destroyed, if one could believe Riley’s sworn testimony. The paper trail did not seem to exist.

*
This name and the names of the other Turner family members are pseudonyms.

The Woodshed

1

Discovery had transformed the offices of Schlichtmann, Conway & Crowley. Crowley’s desk, books, chairs, and framed diploma had been moved into Conway’s office, now so crammed with furniture that Conway had to shuffle sideways, crablike, to get to his own desk. Crowley’s office had become what Schlichtmann called the War Room. Carpenters had built shelves along the length of one wall to hold the bound volumes of deposition transcripts. Eight gray metal filing cabinets occupied another wall. Overhead, jammed between the stout oak beams of the ceiling, were cardboard tubes containing dozens of rolled maps and charts from the EPA and the U.S. Geological Survey. Schlichtmann had aerial photographs of east Woburn, some dating back to the 1950s and 1960s, enlarged and pinned like the targets of a bombing mission on another wall. Beneath the windows that overlooked India Street, three computer workstations held the medical records for each of the thirty-three plaintiffs, along with hundreds of other documents in the case. Conway had recruited two new associates, both recent law school graduates, and a paralegal. From a temporary
personnel agency, Kathy Boyer had hired a receptionist, three secretaries, a messenger, and a part-time bookkeeper. The office had once worked efficiently with nine people. Now, the staff was doubled in size. Some days, Conway felt as if he’d walked into the wrong office.

Schlichtmann arrived at work at six-thirty every morning and usually did not leave for home until around midnight. If he was not in Woburn interviewing witnesses or checking up on his team of geologists, he was at the conference room table, amid piles of medical texts, documents from Grace and Beatrice, government reports, and depositions. From these protruded tattered strips of yellow paper, like entrails, marking vital information. They bore Schlichtmann’s nearly illegible scrawl. He, and he alone, seemed able to recall the precise location, volume and page number, of every piece of arcana related to the case. When, on occasion, a particular fact eluded him, he’d sit motionless, peering into space, a picture of industrious cogitation, until he summoned forth its location.

He held staff meetings every morning at eight o’clock for all office personnel. Attendance was mandatory, tardiness was punished by his wrath. He wanted the office to operate, he explained once, with the precision of a Swiss watch. Every pleading, every affidavit, every letter to a client or expert witness had to be flawless. A mistake, he used to tell them, even the most innocent one, could result in disaster—a motion lost, a witness unprepared, an opportunity overlooked.

The case had become Schlichtmann’s entire universe. He no longer took the time even for common courtesies. Encountering someone he had not seen in days or weeks, he’d start, as it were, in mid-sentence, describing the testimony of a new witness or the import of a newly uncovered document. More than once the secretaries had seen him come rushing out of the office shower with only a towel wrapped around him, shouting in excitement about some new revelation.

Kathy Boyer had hired a tall, willowy young woman of twenty-two, fresh from college, to answer the telephones. The woman, Patti D’Addieco, was alert and capable, and Schlichtmann soon put her in charge of collecting the complete medical records of all the Woburn family members. This was a formidable task. It involved thirty-three individuals, and Schlichtmann insisted on absolute thoroughness. He wanted her to find the report of every visit to a doctor, of every scraped knee, sore throat, and common cold. For those children with leukemia, the records consisted of thousands of pages—lab tests, chemotherapy protocols,
the notes of nurses, doctors, social workers, and psychiatrists. And for the adults, some records dated back to the 1930s.