A Civil Action (51 page)

By June, Gordon had set off many alarm bells. He had overdrawn the Bank of Boston accounts eighty-seven times. Usually Gordon notified Pete in advance of an overdraft, and usually Pete approved it. “I guess it’s my style to allow such things,” the banker reflected later. “Maybe I shouldn’t.” Those times when Gordon failed to notify him, Pete would get angry. Gordon was always contrite. “I meant to call you,” he’d tell Pete. “I didn’t think you’d get the check until tomorrow. I shouldn’t have done it.”

Pete’s superiors had already summoned him upstairs and asked what was going on with these accounts. Pete had explained about the trial, about the collateral covering the loans, but the bouncing checks made him look bad. After his last summons by the senior committee, Pete called Gordon. “No more overdrafts,” he said. “I’m not going to approve another one. It makes me look foolish.

Gordon really meant to keep his word to Uncle Pete. For weeks he refrained from bouncing any checks. Then, in early June, he got a visit from Vincent Murphy, head of Weston Geophysical, the environmental consulting company that had drilled forty monitoring wells in Woburn and performed seismic refraction tests and soil and groundwater analysis. The bill for Murphy’s work amounted to $598,483.76, the largest single account in the entire case. Gordon had already paid more than half of Murphy’s bill, and moreover, he’d become friendly with Murphy during the time they’d spent in Woburn last year. But on this morning Murphy was sharp-tempered and impatient. He wanted to know when Gordon was going to pay the outstanding balance. Gordon showed Murphy the lottery tickets he’d bought. “If we win, you’ll be the first one to get paid,” Gordon said.

Murphy wasn’t amused. “Tell me how bad things really are,” he said.

Gordon showed Murphy the computer printout of all the Woburn bills, forty-four pages, neatly bound and arranged alphabetically and chronologically by creditor. “Here’s Weston Geophysical, right next to Winchester Hospital.”

Murphy knew he was the largest creditor. He demanded a small payment, just a token one. Gordon promised to send a check by the
end of the month. Murphy was still unsatisfied. Then Gordon had an idea. He offered to give Schlichtmann’s Porsche to Murphy as a down payment. Murphy had seen the car in Woburn, and he had obviously coveted it.

Murphy seemed momentarily tempted by this offer. But then he smiled and shook his head. “You don’t have to do that,” he said. “How would Jan get around?”

Gordon didn’t answer that question. Schlichtmann owed the garage on Beacon Hill a thousand dollars in parking fees and the garage was holding on to the car as collateral. Gordon didn’t want to tell Murphy that Schlichtmann was mostly walking.

True to his promise, Gordon called Murphy at the end of the month to say that he was mailing a check for twenty thousand dollars. Gordon didn’t have enough money in the various accounts at the Bank of Boston to cover the check, but he’d given his word. He figured it would take four or five days for the check to work its way through the mail and banking system. Anything could happen during that time, thought Gordon. They might win the lottery. Schlichtmann might borrow money from Kiley or Neville. Or, most likely, he’d just have to persuade Uncle Pete to cover another overdraft.

Gordon took Murphy’s check down to the mailbox on Newbury Street at six o’clock. He knew from previous experience that the last mail pickup was at six, but he read the posted times again to make certain, and then he put the check in the mail. It was a Thursday evening in late June. Gordon figured Murphy wouldn’t receive the check until Monday, and even if he deposited it in his company’s account that day, it would take another full day to get back to the Bank of Boston.

The next morning, at two minutes after eleven o’clock, Gordon’s secretary said Pete Briggs was on the phone and he sounded angry. “Oh, Jesus,” said Gordon.

It was the check for Murphy. It had cleared in record time. Incredible as it seemed, the check had gotten picked and delivered to Weston Geophysical’s post office box that very morning. And then Murphy had taken it directly to the Bank of Boston. Gordon hadn’t even had a chance to inform Uncle Pete. “That fucking check went through the system like diarrhea,” Gordon said in wonderment.

Gordon had his own personal stashes of money, to be used only in the most dire circumstances. Tucked into his sock drawer at home, he
kept several tightly folded one-hundred-dollar bills. In the back of his desk drawer at the office he kept two thousand dollars in American Express traveler’s checks. And he still had the ten gold Krugerrands in one of his filing cabinets.

After Pete’s call, Gordon loaded the Krugerrands into his suit-coat pocket and went over to the Bank of Boston. He walked downstairs to the Private Banking Group, to Uncle Pete’s office.

Briggs looked suspiciously at Gordon’s bulging pocket. “Are you carrying a gun?” he asked.

Gordon took the Krugerrands out one by one and stacked them on Pete’s desk.

Pete shook his head ruefully.

“Things are very bad,” said Gordon.

This was Gordon’s act of contrition. He felt the need to repent, and the Krugerrands, so dear to him, seemed like a good way to start. Uncle Pete must have understood this. After a while his anger at Gordon waned. But Pete said again there could be no more overdrafts. Never again. There was no more credit.

9

Schlichtmann found himself without money for a cab one morning in late June. He walked to work, down Charles Street and across the Boston Common, under the tall, stately trees with their thick green canopies of leaves. The world flourished in the sweet spring air, but Schlichtmann barely noticed. Inside the office on Milk Street, the ficus trees and ferns had turned brown and died. Coming round the corner from the conference room, Schlichtmann passed the withered, decaying stumps of a large potted corn plant, but he didn’t notice that, either.

In the courtroom, however, he made sure to keep up appearances. His hand-tailored suits were always perfectly pressed, his white shirts clean and crisp, his Bally shoes polished to a high gloss. Gordon knew that even if he could pay no one else, he had to pay Schlichtmann’s dry-cleaning bill on time.

Schlichtmann’s spirits had been rising ever since his artful cross-examination of Facher’s soil chemist. Facher’s case in defense of Beatrice
had taken less than a week, and even the Grace lawyers, who had no wish to see Schlichtmann succeed in any endeavor, agreed privately that it had not gone well for Facher. It was now the sixty-first day of trial, and the waterworks phase was nearing its conclusion. All that remained, aside from the closing arguments, was for Keating to call his witnesses in defense of Grace. Schlichtmann looked forward to this. To him, it seemed obvious that Keating could not mount much of a defense. Keating could not deny that the soil and groundwater under the Grace plant had been polluted in the early 1960s by the acts of its own employees. Nor could Keating deny that contaminated groundwater from Grace flowed downhill from the plant directly to the wells.

But Keating was not without a plan. Like a good defense lawyer in a murder trial, Keating would try to steer the jury away from Grace and in the direction of other culprits—industries in north Woburn that for many years had dumped their wastes into the Aberjona River. He would suggest to the jury that the polluted river, not Grace’s groundwater, had contaminated the wells.

This strategy, as it unfolded, appeared quite sound and well constructed. One witness, a sanitary engineer, told how he had followed a small brook, a tributary of the Aberjona, to a complex of industrial buildings two miles upriver from the wells. In a swampy area near those buildings, he’d found many 55-gallon drums and pails scattered about. “The closer I got to the industry, the more horrified I became,” the engineer told the jury. Coming from one of the buildings was a “white resiny scum” and a “bright orange-colored effluent” that stained the water and the banks.

Keating’s next witness, a supervisor at the Division of Water Pollution Control, told a similar story. He had investigated one particular company, National Polychemical, for the past ten years. “We still had pollution coming from that site,” the supervisor said. “It wasn’t coming out of thin air. The only logical conclusion was that it was seeping out of that site.”

On cross-examination, Schlichtmann said to the supervisor: “The company was still denying after ten years that they had a waterpollution problem?”

“Yes,” replied the supervisor.

“They were still saying it was somebody else’s fault, weren’t they?”

“Yes, sir.”

“You encounter that often when you’re investigating an industry, that attitude?”

“Yes, I do,” said the supervisor.

Schlichtmann nodded, as if to indicate he understood this perfectly.

It took Keating four witnesses and a week of testimony to lay the foundation for his last and most important witness. This was a groundwater expert named John Guswa who, as it happened, knew George Pinder quite well. “I worked with George in the Geological Survey,” Guswa had said at his deposition. “I’ve had dinner with him. I respect him as a person and as a professional.” All the same, Guswa was certain that Pinder had been wrong about the river. The wells did draw water from the river, and that, Guswa would later assert, was how they had become contaminated.

But first Guswa had to explain why, in his scientific opinion, W. R. Grace could not have contaminated the wells. As a graduate student, Guswa had specialized in the study of glaciers, and he brought that specialty to bear on the Woburn case. The terrain of east Woburn, he explained to the jury, had been shaped twelve thousand years ago, at the end of the last Ice Age, when an immense glacier more than a mile thick had covered the New England landscape. In its advance and retreat, the glacier had deposited a layer of soil fifty feet deep on the bedrock ridge where the Grace plant was now located. Soil of that type, compressed under the glacier’s enormous weight, was known to geologists as ground moraine, or hardpan. It was densely compacted and groundwater seeped through it very slowly, like water trickling through a pipe stuffed with sediment.

Like “a stuffed pipe”—that was how Guswa told the jury to imagine the subterranean path from Grace to the wells. Guswa had an infectious, almost boyish enthusiasm for the subject of glacial morphology. He was forty-one years old, clean-shaven with a shock of thick brown hair that often fell down over his forehead. He had constructed a sophisticated three-dimensional computer model of the east Woburn groundwater system, using hundreds of data points. He explained how rain falling on the Grace property seeped into the earth, carrying with it the TCE and other solvents dumped on the ground by workers. The contaminated groundwater from Grace was indeed moving down toward the wells, Guswa admitted, but the “pipe,” clogged with ground moraine that had the “permeability of concrete,” had backed
everything up. His computer model proved this, he said. “It’s my conclusion that even if the chemicals were released to the groundwater system on the day the plant opened in 1960, they could not have reached Wells G and H by May of 1979.”

All of this information was new to Schlichtmann. He had deposed Guswa six months ago, and the geologist had said then that he had not determined how quickly groundwater moved from Grace to the wells. If Guswa was right, then Schlichtmann had just lost his case against W. R. Grace.

But Schlichtmann knew that Guswa
had
to be wrong. The bare facts—contamination at Grace, the same contamination in the city wells, and a direct path from Grace to the wells—should have made Guswa’s opinion look as ridiculous as Olin Braids’s soil bugs testimony. So Schlichtmann thought. But even Schlichtmann could see that Guswa was not Braids. Guswa had used accepted scientific methods. He was an engaging and credible witness. And, quite unlike Braids, his explanation at least
sounded
plausible.

At the office that evening, Schlichtmann and Nesson spent several hours going over Guswa’s testimony. Pinder had gone to Europe for a conference of geologists and groundwater specialists, so they couldn’t consult him. They worked late that evening, but they couldn’t come up with anything. Keating would have Guswa on the stand for two more days. They had to figure out how to prove Guswa wrong by then. When Nesson left the office, he took with him several of Pinder’s hydrogeology textbooks.

The next morning, Schlichtmann watched Guswa take the witness stand again and reiterate his assertions of yesterday. Then Guswa added a new calculation: The wells, running at full capacity, pumped eleven hundred gallons a minute. Even if all the contaminated Grace groundwater did get to the wells—and Guswa was not admitting that any did, given the density of ground moraine, but assuming for a moment that it did—Grace’s contribution would amount to only five gallons a minute. In this hypothetical scenario, the groundwater from Grace would amount to less than one half of 1 percent, the proverbial drop in the bucket.

Nesson, seated next to Schlichtmann at the counsel table, listened to all of this attentively. When Guswa began demonstrating his point on the portable blackboard, Nesson scribbled notes on his legal pad.
Standing before the jury, Guswa estimated that an average of twelve inches of rainfall would seep into the earth and become groundwater in any given year. He multiplied those twelve inches, or one cubic foot, by the area of the Grace property, which occupied a square approximately six hundred feet on each side. This gave him an annual total of 2.7 million gallons of water entering the ground, a seemingly large amount, Guswa admitted, but not once he reduced it to gallons per minute and compared that with the amount pumped by the wells.

When Guswa finished presenting this calculation, Nesson stuffed his notes into his briefcase and hurriedly left the courtroom, pushing his way out the heavy swinging doors.

Schlichtmann hardly noticed Nesson’s sudden departure. Nesson, alone among the lawyers, came and went from the courtroom as he pleased. Besides, Schlichtmann was pondering Guswa’s new calculation. Each element of it made sense, but why had Keating thought it necessary? After all, Guswa had made a convincing argument yesterday that nothing had ever gotten from Grace to the wells. Schlichtmann wondered if Guswa had come up with this calculation last night, brainstorming with the lawyers. He could imagine Keating and Cheeseman saying to each other, “Hey, that’s great! Let’s put it in.” Schlichtmann felt there was something peculiar about it all, but he couldn’t put his finger on the problem. He’d talk it over with Nesson as soon as Nesson returned.