A Civil Action (52 page)

Nesson didn’t return to the courtroom that day. Nor did he show up at the office later that afternoon. Schlichtmann called Nesson’s office at Harvard, but his secretary hadn’t seen him. Then, in rising consternation, he called Nesson’s home in Cambridge, but there was no answer. Time was running out. Schlichtmann would have to begin cross-examining Guswa tomorrow. “Where the hell is Charlie?” Schlichtmann yelled from the conference room.

Nesson was still missing the next morning. When Keating finished his direct examination of Guswa, Facher got up to ask the Grace expert a few questions. As co-defendants, Facher and Keating had agreed not to help Schlichtmann by pointing fingers at each other during the trial. Facher knew that Guswa would not deliberately hurt Beatrice. In reply to Facher, Guswa told the jury there wasn’t enough information for
him, or any groundwater expert, to determine whether TCE from Beatrice had reached the wells. The groundwater flowed into an area that Guswa called “the zone of uncertainty.” This opinion seemed to satisfy Facher.

It was Schlichtmann’s turn to cross-examine. He and Nesson had already devised a line of questioning that had to do with Beatrice, not Grace. It didn’t deal with the real threat Guswa posed, but it looked promising, and Schlichtmann knew it would get him through the rest of the day. He hoped he could use Guswa to prove that Pinder had been right—that TCE from Beatrice would flow under the river to the wells.

Schlichtmann read aloud to Guswa the water-level measurements that had been taken during the pump test. Then he had Guswa calculate the direction of groundwater flow based on these measurements, using the simple method of triangulation. Guswa did so, and by the time he finished, he had groundwater from Beatrice flowing in the direction of the wells.

The judge listened intently to Schlichtmann’s examination. Then he interrupted Schlichtmann and began interrogating Guswa himself. Would the river form a barrier between the wells and the Beatrice property? the judge asked.

Guswa said, “There’s no barrier or wall of water under the river.”

“No barrier?” the judge said.

“No,” replied Guswa.

“So water could flow from the Beatrice site, under the river, to the area of the wells, as far as you’re concerned? That’s one of the possibilities?”

“It’s one of the possibilities, yes, sir,” Guswa admitted.

At the Beatrice counsel table, Facher grew visibly agitated. He objected to the judge’s questions, but the judge paid him no mind. When Schlichtmann resumed questioning Guswa, Facher stood and lurched forward to the witness stand, toward Guswa, interrupting Schlichtmann’s cross-examination, a loss of poise that was most unusual in Facher.

“Wait a minute, wait a minute,” the judge said to Facher, holding up his hand.

Facher looked up at the judge. “The measurements, he’s asking for all the measurements.”

“The witness seems able to understand the question,” said the judge. “I don’t think he needs any help.”

Guswa had not meant to implicate Beatrice, and he had not done so willingly. In the end, he said to Schlichtmann, in apparent frustration, “I have to direct our efforts at our problem. Beatrice has to take care of their problem. You have to take care of your problem.”

Schlichtmann had gotten what he’d wanted. He’d turned Guswa into a witness against Beatrice, and doing so had taken him to the end of the day. But he still hadn’t figured out how, in Guswa’s words, to take care of his problem with Grace. He had no plan for tomorrow. And Nesson was still missing. Kathy Boyer had called around all day looking for Nesson, to no avail.

Nesson had gone to the only place he knew he could work without interruption—the Harvard Law School faculty library, on the top floor of the Griswold Building. Like Schlichtmann, he had the sense that there was a simple and obvious way, just beyond his immediate grasp, to prove Guswa wrong. It was a riddle, and riddles of this sort had always appealed to Nesson.

He began with the premise that groundwater from Grace did get to the wells. He accepted that as a physical truth. Guswa’s ground moraine theory, therefore, had to be flawed. But Nesson couldn’t hope to find the flaw in Guswa’s computer model. Checking and verifying the hundred pieces of data that went into the model would take weeks and he had only hours.

The way to solve this riddle had eluded Nesson until Guswa began making his five-gallon-a-minute calculation. Even then, Nesson hadn’t known the solution, but he felt certain he had enough information to work with. And that was why he’d left the courtroom so suddenly.

By this time Nesson was familiar with the basic principles of hydrogeology. From Pinder he’d learned about Darcy’s Law, the basis for virtually every calculation in hydrogeology. It was a simple mathematical formula, devised by a nineteenth-century Frenchman, to compute the flow of water through porous media. The law stated that the quantity of water (Q) flowing through a given area is equal to the hydraulic conductivity (K) of the material through which it flows, multiplied by the
size of the opening (A), multiplied again by the gradient, or angle of incline (I). Thus: Q = K × A × I. Once one knew what values to put into the formula, it was quite easy to work out. Unlike Guswa’s splendid three-dimensional computer model, it required only a pencil and paper.

Nesson began working out the equation, using the values Guswa had supplied on the morning of his five-gallon-a-minute calculation. Nesson discovered immediately that the equation did not balance. He assumed for the moment that Guswa was right about twelve inches of annual rainfall entering the groundwater system through Grace. He assumed further that Guswa was right about the angle of incline toward the wells and also the low conductivity of ground moraine. How big, then, Nesson asked himself, would the opening—the pipe, as it were—have to be to accommodate the volume of water that flowed through the system? Using X to represent the size of the opening, Nesson performed some simple algebra and reworked the equation so that it looked like this:

The moment he completed the math, he knew he’d found the way to prove Guswa wrong. It was simple to understand and elegant, and it had the singular virtue of using Guswa’s own values to provide a damning answer.

Schlichtmann sat in the conference room with Conway and Kiley, wondering what he would do with Guswa the next day. It was early evening when Nesson walked in, smiling broadly. Schlichtmann jumped up and shouted. “For Christ’s sake, Charlie, where the hell have you been?”

Nesson smiled. “I’ve figured out how to nail Guswa.”

Everyone gathered around to watch as Nesson wrote Darcy’s Law on the blackboard. “Go slow, Charlie,” warned Schlichtmann when he saw the equation. “You’re talking to someone who can’t balance his own checkbook.”

The next morning, Schlichtmann began obliquely, without mentioning Darcy’s Law, by getting Guswa to agree to his own previously stated
values—the hydraulic conductivity of ground moraine, the area of the Grace plant, the amount of rainfall entering the system. This took Schlichtmann longer than he’d anticipated, and by the close of the day he’d set Nesson’s trap but he hadn’t sprung it.

“Is this a place you want to stop?” the judge asked in consternation. “There must be something that follows from all this. It seems to me there’s a question missing.”

“I can go further,” said Schlichtmann. “Can you give us fifteen minutes?”

Keating suspected that Schlichtmann was about to do something he wouldn’t like. He made a halfhearted protest, but the judge brushed that aside.

“Fifteen minutes,” said the judge, “so we won’t have to be in suspense.”

Schlichtmann wrote the formula for Darcy’s Law on the board. “Darcy’s Law states that what goes in has to come out, or is left behind, is that right?” he asked Guswa.

“Yes,” said Guswa.

“You take the hydraulic conductivity—that’s the permeability of a material—and you multiply that by the opening the water has to pass through, right? And then you multiply that by the incline down which the water travels.”

Guswa agreed with all this. Schlichtmann had Guswa come up to the chalkboard in front of the jury box and write out the formula using the values for the Grace property. “Now,” continued Schlichtmann, “if we didn’t know how big the opening was, if we were to call that X, we could rearrange the equation to find that out.”

“Yes,” agreed Guswa, “we have to go back to basic math.”

Schlichtmann rewrote the equation to find X. Then he asked Guswa to do the math and calculate the height of the opening.

Guswa worked in silence, punching numbers into his calculator. “Fifty-nine feet,” he said at last.

“Fifty-nine feet,” repeated Schlichtmann. He asked Guswa to measure off that height, beginning at the bedrock, which Guswa himself had said would carry away only a small amount of water.

Guswa, looking grim, did so. “It’s about ten feet above the land surface,” he said.

This had been Nesson’s discovery. Assuming that Guswa’s figures, which formed the basis for his opinion, were correct, then Darcy’s Law
dictated that the Grace plant would be submerged under a lake of water ten feet deep.

Back at the office late that afternoon, Schlichtmann heard the distant sound of a jackhammer from up the street, from the direction of the courthouse. The faint noise drifted in the open windows of the conference room. Schlichtmann cupped his ear to the sound. “Listen!” he cried. “You hear that? It’s Guswa trying to get water through the bedrock!”

“Last night there was a wall of water ten feet high sweeping down the Aberjona Valley,” Judge Skinner said the next morning, after the jurors had taken their seats.

Schlichtmann abandoned the traditional form of cross-examination that morning. He did what every seasoned trial lawyer and every handbook on trial practice preached against. He gave control of the courtroom to Guswa, confident that Guswa could not have devised any escape. “Why don’t you just explain your position to the jury now,” Schlichtmann said in an agreeable tone of voice. “Would you like to do it on the board?”

This offer seemed to surprise Keating. “Do you want Dr. Guswa to say what he’s doing?”

“Sure,” said Schlichtmann cheerfully.

Guswa labored at the chalkboard that morning. True to Schlichtmann’s prediction, Guswa had groundwater flowing deep into the bedrock, a hundred feet down, three hundred feet, a thousand feet, in all directions along cracks and fissures that existed only in hypothesis. He culled dozens of numbers, changing gradients and permeability, multiplying and dividing numbers in an effort to salvage his theory. He stood at the board in front of the jury box and muttered numbers to himself, punching them into his calculator. “Now, how am I going to do this here?” he said under his breath at one point.

Schlichtmann let Guswa go on for a while, watching silently from a spot near the jury box. After a time, the judge asked Guswa, “The bedrock, I take it, has a saturation point? It’ll only hold so much water?”

“That’s correct,” said Guswa.

“So,” continued the judge, “if water is coming into the bedrock on a daily basis, the same amount is leaving?”

“That’s correct,” said Guswa again. “It’s going down and picking up a lateral component in some direction but—”

“But you don’t know where it’s going?” said the judge.

“No, sir,” admitted Guswa.

Guswa looked drawn and very tired, his boyish enthusiasm gone now. Schlichtmann turned to the one remaining element of Keating’s defense—the theory that the river had transported TCE and other contaminants from industries in north Woburn down to the wells. He invited Guswa up to the chalkboard again. Guswa took a deep breath and sighed.

Schlichtmann asked him if TCE had been detected in the river water or in the river’s banks, adjacent to the wells. No, replied Guswa, it had not. If the TCE in the wells had in fact been drawn from out of the river, continued Schlichtmann, wouldn’t you expect to find traces of TCE in the riverbed? And in the sandy soil directly under the river?

Yes, said Guswa, you would expect to find traces.

“But when we look directly under the river, we don’t find anything, right?” asked Schlichtmann.

Guswa agreed that was true.

“When we look deeper under the river, we still don’t find anything. We keep looking deeper, and then we find TCE in the hundreds of parts per billion, don’t we?”

“That’s the pattern we see,” replied Guswa.

“That pattern is consistent with the fact that no contamination came from the Aberjona River, isn’t it?”

“It is not the only explanation,” said Guswa, “but it is consistent, yes.”

“Let me ask you this,” continued Schlichtmann. “Is it possible that the contamination could have come from an area to the northeast and to the west of the wells? Is that at least possible?”

This question had enormous import. The Grace plant lay to the northeast and Beatrice to the west. The EPA, in its preliminary report, had identified those areas as likely sources of the contamination, although it had not named either Grace or Beatrice. The judge had refused to let Schlichtmann show this report to the jury, but Guswa, of course, had read it.