A Civil Action (49 page)

“All right,” said Facher, “tell His Honor, tell the jury, tell us all—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 and walked toward the jury box, to an easel that held a diagram of the aquifer.

Schlichtmann stood, too, and went slowly to one wall of the courtroom, between a filing cabinet and the jury box, where he could see Pinder at the diagram. Schlichtmann had his hands in pockets, an informal pose he normally disapproved of in the courtroom, and his head was down, bent at the neck, his eyes intently studying his shoes. Without raising his head, his eyes glanced up occasionally at Facher and Pinder, but mostly he stared at his shoes. He imagined, he said later, Facher holding a knife up to the light to study its edge, Facher testing the keenness of the blade on his thumb, Facher vigorously stropping the knife, Facher testing the blade again. He imagined Facher whistling pleasantly at his work.

Facher interrupted Pinder’s explanation several times to ask questions. And when Pinder finally finished, Facher said, “Your view, then, is that the river is not losing any water, it’s just not gaining from the usual sources. It’s not that you’re losing any money, it’s just that you 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 add to that? This is going to be memorialized and I’m going to be looking at it tonight.”

“I’m sure you will,” said Pinder.

“Goddamn, George, you kept him at bay!” exulted Schlichtmann on the walk back to the office. “I could kiss that little bald head of yours!”

Pinder had looked quite pleased with himself until this comment, which caused him to frown.

But Schlichtmann still felt worried, the worry of a person who knows something is wrong but can’t put his finger on it. That evening, when he settled down to work with Pinder in the conference room, he said, “George, about this cockamamie theory of yours—”

“I beg your pardon,” said Pinder.

“We’ve got to talk about it.”

“It’s very simple, Jan.”

“I know it’s simple, but is it right?”

By the end of the evening Schlichtmann knew that it was not right. The proof of Pinder’s error lay in measurements taken by the U.S. Geological Survey. The Survey had measured the Aberjona’s flow at two spots—at a bridge that crossed the river north of the city wells and, a thousand yards downstream, at another bridge south of the wells. If, as Pinder claimed, the river was not really losing water but was simply not gaining any from the aquifer, then one would expect the flow at the upstream measuring device to equal the flow at the downstream device.

But that, Schlichtmann discovered, was not the case. The two measurements were not equal. They showed that the river’s flow did indeed decline by six hundred gallons a minute.

Schlichtmann blamed himself. He had sent Pinder the U.S. Geological Survey’s measurements along with several boxes of other documents. He’d been too busy with the medical part of the case to pay close attention to Pinder’s work, and Pinder had simply overlooked the measurements.

Pinder was trapped. He could not admit to Facher that he’d been wrong on such a fundamental point without calling into question his entire opinion. And he still believed that his opinion was basically sound—the wells
did
draw contaminated groundwater from Beatrice. Nothing else could account for the one-foot drop in the water table that he had seen with his own eyes.

All Pinder could do was bob and weave, and hope for the best.

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
anymore. It doesn’t mean it’s
leaving
the river, it just means it’s not going in.’ Do you remember that?”

“Yes, sir, I think that’s a fair statement. There’s going to be a signal to the water molecule that says, ‘Stop! Don’t go into the river, think about going back to the well.’ And that was the spirit in which I answered that.”

“Well, the spirit and the words in which you answered it were, ‘Water that would normally go into the river is not going into the river anymore.’ Could anything be clearer than that? Is that plain English?”

“Yes,” replied Pinder. “In the context of what I said, that is what I meant to say.”

Pinder bobbed and weaved tirelessly all morning long, a numbing, hypnotic exercise. To one of Facher’s questions he shook his head ruefully. “I’m sorry, sir,” he said. “The things you’re saying are awfully difficult for me to come to grips with because, in many ways, they’re contradictory.”

Facher looked at the judge and sighed. “I guess I’ll have to start all over again.”

The judge looked disgusted. “We’re approaching hopeless confusion. I’m going to call a recess and suggest very strongly to Dr. Pinder that he take the transcript of his testimony yesterday and read it.”

As that day wore on, Judge Skinner had a few more observations to make about Pinder. “You have a hopeless witness who changes from A to B,” the judge told Schlichtmann at one bench conference. “The spirit of his answers doesn’t change from day to day, but the form certainly does.”

“Expert witnesses are born, not made,” Schlichtmann said in a low voice, 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 few feet away at the side of the judge’s bench for these whispered conferences. Pinder wasn’t privy to the comments the judge was making about him, and Schlichtmann, worried about Pinder’s already fragile self-confidence, certainly wasn’t about to tell him. By now, the fourth day of Facher’s cross-examination, Pinder had lost his appetite and developed insomnia. He felt the burden of the case—the Woburn families, all the other experts, Schlichtmann and his partners and their financial investment—entirely on his shoulders. At night he would lie awake in his bed at the Ritz-Carlton thinking about Facher and plotting
escapes from Facher’s traps. He felt lucky if he got four hours’ sleep. He called home to Princeton every evening and talked to his wife. “You can’t imagine the pressure,” he told her. “There’s no relief from 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 cross-examination, when the judge summoned Facher up to the bench and told him enough was enough. “You and the professor are a pair,” the judge said wearily. “I detect signs of incipient coma on the part of the jury.”

Pinder 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 dark circles under his eyes.

Pinder returned to Boston the following Monday, but the worst had ended with Facher’s cross-examination. Keating spent two days interrogating Pinder, but Keating did not have much to work with. The Grace plant was situated on a promontory northeast of the wells, and no river intervened to complicate matters. Contaminated groundwater from 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 not. “The defendants are trying to find salvation in river water, as people have for centuries,” Schlichtmann told the judge near the end of Pinder’s testimony. “It has very little to do with this case.” He tried to rehabilitate Pinder on redirect examination, but he could not erase the damage that Facher had caused. Under questioning from the judge, Pinder conceded that the wells would draw water from the river after a few months of pumping. But Pinder stuck to his opinion that the wells also drew large quantities of contaminated groundwater from the Beatrice land.

As it later turned out, Pinder was generally right. In its final report, released two years after the trial, the EPA concluded that the Beatrice property “contains the most extensive area of contaminated soil” and “represents the area of highest groundwater contamination at the Wells G & H site.” The report may have vindicated Pinder, but it came out too late to do Schlichtmann any good.

The great legal scholar John Wigmore wrote in his treatise
On Evidence
that “cross-examination is beyond any doubt the greatest legal engine ever invented for the discovery of truth. A lawyer can do anything with a cross-examination.… He may, it is true, do more than he ought to do; he may make the truth appear like falsehood.”

“The truth?” Facher said, smiling, one day after court. “The truth is at the bottom of a bottomless pit.”

6

The jurors presented Judge Skinner with a gift in the twelfth week of trial, at the end of Pinder’s testimony. They had apparently noticed the judge, white-haired and looking somewhat frail, struggle with the heavy leather-padded door that opened from his chambers onto the bench. So the jurors gave him a doorstop made from a piece of polished granite to keep the door propped open. The judge told the lawyers about the gift (“Perhaps it’s from the Aberjona,” he said, showing them the rock), and no one suggested that anything improper had occurred.

But Schlichtmann found the gift disturbing. That evening he went out to dinner with Phillips and his wife, Julianna. After a bottle of wine, the talk turned to the judge. “That gift shows the jury’s got a lot of respect for Skinner,” mused Schlichtmann. “But you don’t think 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 courtroom is a whole different world for them, and Skinner is their guide.”

“That frightens me,” said Schlichtmann. “If the judge has become a father figure, what happens if they see me as the outcast, the wayward son?”

“Who’s Facher in that scenario? The nasty uncle?”

Schlichtmann laughed, and then he turned pensive. “Facher has the strangest mannerisms,” he said. “You notice how he looks at the judge when he’s asking questions? It’s funny he doesn’t talk to the jury.” Schlichtmann told Julianna about the time he’d gone to Facher’s office, how proudly Facher had shown him the picture of his daughter. Under that pride, Schlichtmann thought he’d detected a certain wistfulness in Facher. “He’s divorced, a lonely old man,” said Schlichtmann. “He’s got nothing but the firm.”

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 goddamn?” he said sharply.

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 weeks 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 bottle of the finest single-malt Scotch whiskey. With these particular adjusters, it had become a tradition to toast each other and drink whiskey as the negotiation neared a successful conclusion.

On the appointed day Phillips brought out the whiskey bottle and drew a line near the bottom of the label. “Jan, I guarantee you this case 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 not settle after all. The three adjusters retired to a separate room to talk among themselves. Alone with his partners, Schlichtmann proposed reducing their demand to under six hundred thousand. “It’s a 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.”

When the insurance adjusters returned, everyone drank more Scotch. Schlichtmann talked about the Woburn case. He went on for forty-five minutes, never once mentioning the case at hand. Phillips looked at the Scotch bottle and saw the whiskey level ominously close to his mark.

One of the insurance adjusters left the room to make a telephone call. When he returned, he took Schlichtmann aside and said the company that made the anesthetic used in the operation had agreed to contribute ninety thousand dollars to the settlement. The offer was now five hundred ninety thousand. Was that enough?

This time, Schlichtmann and his partners left the room to consult in private. When they came back, Schlichtmann poured a glass of whiskey and proposed a toast.

Schlichtmann’s firm received 40 percent of the settlement. In the past, a payday of this sort would have been cause for celebration, dinner out for the entire staff at an expensive restaurant, bonuses all around, and a night of drinking and revelry. But there was no party that night. The entire fee would have to go directly to Gordon, who would use it to pay Woburn bills. The money would disappear as soon as it arrived.

7

Facher began presenting his case in defense of Beatrice on Wednesday morning, June 4, the fifty-fourth day of trial. He called only three witnesses. One of them was Thomas Mernin, the Woburn city engineer. Mernin had lived for thirteen years on Wood Street in east Woburn, right next door to Richard Toomey and his family. It had been Mernin who, many years ago, had insisted that the well water was perfectly safe when Toomey had complained about its odor and taste. As city engineer, Mernin could have done something about the water. He could have ordered the wells shut down.

Facher called Mernin as a witness for the defense precisely because he had not shut the wells. In his capacity as city engineer, Mernin had inspected the entire well field many times in the past fifteen years. He had walked on the Beatrice land. “There were barrels standing around throughout the whole area,” Mernin told the court. “But it didn’t look any different than any other low area I’d visited. In my mind, it wasn’t a problem. I didn’t see anything wrong there.”