A Civil Action (34 page)

The judge and Facher were of the same generation. They had gone to the same law school at virtually the same time. They had the same breeding in the law, and they had both risen to high positions in it. They even seemed to think alike. Schlichtmann had noticed that they
had a habit of finishing each other’s sentences. Sometimes Schlichtmann felt as if he were eavesdropping on a private conversation.

“These witnesses are not critical,” he’d heard Facher telling the judge at one hearing.

And the judge had said, “It doesn’t sound to me as if they’re critical.”

“They’re not critical in the least,” Facher said.

“Beatrice is a great big food company,” said the judge.

“Tropicana, LaChoy, and some other things,” said Facher.

“This rinky-dink tannery represented about what, one percent of their gross income,” said the judge.

“An absolutely insignificant acquisition,” agreed Facher.

Schlichtmann had suffered in silence through a number of conversations like that. “It’s like listening to Tweedledee and Tweedledum,” he told Conway. It had merely annoyed him at first, but now it worried him. He knew he couldn’t compete with Facher for the judge’s respect, especially not since the Woodshed Conference.

Billion-Dollar Charlie

1

A Harvard Law School professor named Charles Nesson had spent many years pondering the nature of judicial proof—proof in the courtroom—and its relationship to truth. Nesson taught evidence and criminal law at Harvard, and one particular riddle involving the use of statistics as evidence had absorbed him for some time. To solve it, he relied on a hypothetical case, which he called the Case of the Blue Bus.

The facts of Nesson’s imaginary case were simple: Mr. Smith is driving down a dark two-lane road late one night when he encounters the headlights of a vehicle speeding toward him in the center of the road. To avoid a head-on collision, Mr. Smith swerves off the road and his car hits a tree. In the darkness, he sees that the vehicle speeding by him is a bus. While recovering from his injuries, Mr. Smith learns that the Blue Bus Company owns and operates 80 percent of the buses that drive along the route where the accident occurred. Mr. Smith sues the Blue Bus Company for damages. During the trial, he proves the aforementioned facts but admits that he cannot identify the color of the bus that forced him off the road.

Given this evidence, Professor Nesson asked, can Mr. Smith win his case?

If the Blue Bus case were a criminal trial, where the state has to prove its case beyond a reasonable doubt, Mr. Smith obviously could not hope to win. There is, after all, at least a 20 percent chance that the Blue Bus Company is not guilty. But this is a civil action, where the aim is to resolve disputes in a just manner, and in civil cases the plaintiff’s burden of proof is not as onerous. Mr. Smith has to prove only that it is “more likely true than not”—a standard often taken to mean by 51 percent or better—that the Blue Bus Company caused the accident. By that standard, it would seem that Mr. Smith
should
win his case.

But Nesson believed that a verdict for Mr. Smith would be a grave error. “In this case and others like it,” Nesson wrote in the
Harvard Law Review
, “the plaintiff will lose; in fact, the case is unlikely even to reach the jury.” In the absence of a credible eyewitness or some other tangible piece of evidence—a scrape of blue paint on Mr. Smith’s car, for example—a jury could not hope to know the actual truth of the event. A jury might, of course, be willing to bet that the Blue Bus Company was liable, and the odds would greatly favor such a bet. But a verdict based simply on the odds, Nesson argued, even very good odds, has no moral or legal force, and sooner or later the public would find such verdicts and the judicial system that permitted them unacceptable.

Each trial is a drama in its own right, wrote Nesson, a morality play watched by a public audience. “Through trials, society seeks not only to discover the truth about a past event, but also to forge a link between crime and punishment, between wrong and liability.” The judgments of the courts are meant to reinforce social rules and values and, at the same time, to deter behavior contrary to those rules and values. To achieve this end, the public has to believe that jury verdicts are statements about the truth of actual events, not mere probabilities. If that belief is ever lost, a society based on the rule of law would ultimately collapse into anarchy. To find for the plaintiff against the Blue Bus Company would be, in this sense, to find for anarchy.

Judge Skinner was a regular reader of his alma mater’s famous
Law Review
. So it was, perhaps, not so strange that the Case of the Blue Bus should enter the Woburn case.

The lawyers were gathered for another conference, the first since the Woodshed Conference, two weeks ago. Outside the tall windows of Judge Skinner’s courtroom, the slanting afternoon sunlight cast a golden glow on the city. It was unmistakably autumn light, and it reminded Schlichtmann of how little time remained before the trial, and how much he still had to do.

“I have a question about this case,” Judge Skinner said at the end of the conference, apropos of nothing he and the lawyers had been discussing. “I was put in mind of it by reading an article by Professor Nesson at the Harvard Law School about the use of statistics in proof. Mr. Schlichtmann, perhaps you can help us out on this.”

Schlichtmann rose from the counsel table and listened in an attentive but wary manner, one that evoked memories of schooldays.

“It has to do with the trial itself,” continued the judge. “It occurred to me that you may intend to use a statistical analysis to prove causation by showing us the unlikelihood of so many instances of disease in a particular area. The question is whether evidence which would not be the proper basis for a verdict becomes proper because an expert blesses it and says, ‘I, as an expert, would be willing to take this bet.’ If that’s going to be the case, I’d like to have some advance briefing on exactly how it’s going to work.”

Schlichtmann knew nothing about Professor Nesson or his
Law Review
article, but he surmised that the judge was probably asking about the Harvard Health Study. Schlichtmann certainly hoped to use that study during the trial—it was a valuable piece of the evidentiary puzzle—but he could tell that the judge took a dim view of it. Schlichtmann didn’t feel prepared to debate this issue yet. He had to be careful about what he said. A moment passed, and then another as he considered how to answer the judge.

“Is that going to be part of your case?” the judge asked again.

“Obviously—” began Schlichtmann, and then he suddenly changed his mind. “Our case will be proven on clinical grounds, Your Honor.” He had almost said, yes, the Harvard study would play an important role, but he decided it was safer to speak about the hard, clinical evidence—Feldman’s tests, Colvin’s studies, the cardiology results, the physical examinations and medical histories of the families.

The judge did not seem satisfied. “Well, specifically, are you going to use the—”

“I will not use statistics to prove causation,” said Schlichtmann.

“Okay, fine. Then my problems for the time being are resolved.”

“May I say,” Schlichtmann hastened to add, “that epidemiology and statistics will be important in the case.”

Facher wasn’t present at this hearing, but Cheeseman and Neil Jacobs were both there. Jacobs arose to address the judge. “The more direct question is whether the Harvard Health Study, which is this type of statistical analysis, will be offered as evidence in the case. I can’t tell from what Mr. Schlichtmann said how that question will be answered.”

Cheeseman was also standing. “Your Honor, we do expect to challenge the admissibility of that study.”

But by then the judge had risen from his chair, too. It was getting late and he had already spent a long day presiding over another case. “I’m not inviting a pretrial conference,” he said to Cheeseman. “I just wanted to find out if I was going to have to worry about that particular issue, and I wanted to get prepared to worry about it intelligently.”

2

Schlichtmann felt exhausted as he left the courthouse that afternoon. He had expected Cheeseman and Jacobs to challenge the Harvard study, and it appeared to him that Judge Skinner was already disposed to rule in their favor. Researching and writing a brief that might change the judge’s mind would take him dozens of hours. Imagining the work, he felt as if he’d already been up all night doing it. He had a hundred other things to do—fieldwork in Woburn to oversee, experts to prepare, interrogatories to answer—before actually attending to that problem. On top of everything else, the Woburn families were scheduled to return to Boston that week for a second round of depositions.

Schlichtmann felt it necessary to attend all of those depositions to defend his clients. There were nineteen of them—they included all of the parents and five of the oldest children—and most of them took an entire day. For three weeks Facher and Cheeseman and their assistants questioned the families closely about their use of more than five hundred brand-name household products—cleaning agents and detergents, rug shampoos, cosmetics, nail-polish removers, insect repellents,
paints, lawn fertilizers, cold remedies, cough syrups, herbal teas, coffee, even peanut butter.

To Schlichtmann, the strategy behind this exhaustive list was obvious. These five hundred items all allegedly contained a known or suspected carcinogen. Peanut butter, for example, ranked high on the list, right up with cigarettes. The reason: all peanut butter contains trace amounts of aflatoxin B1, a natural but potent liver carcinogen produced by a common peanut mold. Cheeseman and Facher would try to suggest to a jury that inasmuch as the cause of childhood leukemia was largely a mystery to medical science, dozens of substances used by the families might just as likely have caused the Woburn illnesses as the contaminated water.

“Do you eat peanut butter?” one of Facher’s young associates asked Anne Anderson.

“No,” said Anne.

“Did you
ever
eat peanut butter?”

“I guess everybody living has probably tried it,” replied Anne. “I’ve eaten it, but I’m not a peanut butter fan.”

“Do your kids eat peanut butter?”

“Well, the same jar has been sitting there an awfully long time, so I guess we don’t eat much.”

“What kind is it, plain or chunky?”

“Plain, smooth,” said Anne.

“You made your children peanut butter sandwiches?”

“They ate some, when they were small.”

“When you say, ‘some,’ could you quantify that? One or two sandwiches a week for the children?”

Schlichtmann listened to questions of this sort for hours on end, all the while thinking about the other things he had to do. Memories of the Woodshed Conference were fresh, and he acted with greater restraint now. But he sometimes could not resist giving vent to his impatience. “It’s now five o’clock,” he told Facher’s associate. “You’re squandering time on absolutely ridiculous questions. The witness is exhausted and I’m exhausted. I urge you to finish your examination by six o’clock.”

His complaints had no effect. Do you eat bacon? one of Facher’s associates asked yet another of Schlichtmann’s clients. (Bacon contains dimethylnitrosamine, a carcinogen.) How often? How many slices? Do
you fry it or bake it? Do you have Teflon pans? (Teflon is made of a resin containing acrylonitrile, a carcinogen.) How often do you use them? Do you chew sugarless gum? (Saccharin, a carcinogen in mice.) How often? Do you pump your own gas? (Benzene, a leukemogen.) How often do you bathe? Do you have plastic shower curtains? (Vinyl chloride, a liver carcinogen.) Have you ever owned a cat? (Feline leukemia virus.) Do you drink beer? (Nitrosamines.) Do you use a deodorant? (Aluminum chlorohydrate.) “Of course,” said Mary Toomey to that query, mildly indignant. “Since I came of age, I’ve always used deodorant.”

Roland Gamache was dying of leukemia by the time his second deposition began. Neither he nor his wife could admit this to each other. But the lawyers all knew. In early October, Gamache did not have strength enough to get out of bed. His bone marrow had stopped producing red blood cells and, as a result, every cell in his body was slowly asphyxiating. He received a blood transfusion and began a new round of chemotherapy, and he felt well enough to travel to Boston for his deposition. “The last three months have been very difficult,” he told his examiner, one of Cheeseman’s assistants.

“Are you and your wife able to talk about the situation candidly?” asked the associate.

“It’s difficult for her, very difficult,” said Roland. “Every time we talk, there’s tears in her eyes.”

On a Friday afternoon, after a week of these depositions, Schlichtmann left his office early and went downstairs to Patten’s Bar & Grill. He found an empty booth in a dark corner of the bar and sat alone in the gloom, drinking a double Scotch. He had finished his first drink and ordered a second when his friend Tom Kiley arrived. He had met Kiley, who was himself a personal injury lawyer, six years ago at the Essex County courthouse, on the day Schlichtmann began the Eaton trial. After the verdict, Kiley had called to congratulate him. Over the years, a mutual regard grew into a friendship. In time, they developed a ritual of getting together on Friday afternoons for a drink.