A Civil Action (57 page)

The jurors were silent.

“All right, ladies and gentlemen, would you recommence your deliberations.”

The judge’s clerk escorted the jurors back upstairs. The lawyers milled about in the courtroom, discussing among themselves the impasse, when the judge suddenly returned to the bench and beckoned to the lawyers.

Schlichtmann looked up at the judge in disbelief. “Another message?”

“This is from Mr. Vogel, the foreman,” said the judge. “He writes, ‘I would like to be excused from jury duty because I am scheduled for cardiac surgery on August 6, 1986.’ And here is a letter from the medical center. ‘We will arrange for your admission to the New England Medical Center on August 3.’

August third was ten days away. Keating said to the judge, “I suspect he thought you’d send everybody home and he would not have to write this note.”

“That’s right,” said the judge. “The first alternate is Mrs. Gilbern, Dina Gilbern. I’ll call her in for tomorrow.”

Facher did not want to change the composition of the jury at this point. To him, a hung jury was as good as a win, and any change might upset this delicate balance. Furthermore, Facher most certainly did not want Dina Gilbern, a retired social worker with two grown children, to deliberate. During the
voir dire
, Gilbern had said she was a member of the Audubon Society and a supporter of the Sierra Club. “I think we ought to wait until the end of tomorrow,” Facher told the judge.

“Why?”

“Mr. Vogel doesn’t have to go into the hospital until a week from Sunday. I don’t know if it’s elective or—”

“It’s cardiac surgery,” said the judge. “It doesn’t sound very elective to me. If he’s that close to going in the hospital, there’s something very seriously wrong with him.”

“Do you want to talk to him?” asked Schlichtmann.

“I suppose we have to,” said the judge.

When Vogel arrived at the bench a moment later, the judge said, “I have your message. I’m very sorry you have this problem. What’s your capacity to carry on until August third?”

“I have no qualms about continuing through next week,” replied Vogel. “The only thing I want to make clear is that this is coming up. After spending five months here, I’d like to see it through.” Vogel paused. “But if you want to put an alternate in my place, you could do it now.”

“Do you think there’s any likelihood of the questions being answered within the next couple of days?” asked the judge.

“No, I don’t,” replied Vogel.

“You’re going to have a heart bypass?”

“Yes. Quadruple.”

“I’m sorry this has come upon you,” said the judge again.

“No more than I am,” said Vogel with a sad smile.

“I’d appreciate it if you could stay with it through tomorrow,” continued the judge. “On Monday we’ll see where we are. Who knows? We may get lucky and something may break here. Well, the very best of luck to you.”

“Thank you,” said Vogel. He turned and nodded his head in a formal, almost courtly way, to the lawyers. “Gentlemen,” he said, and then he went back upstairs to the jury room.

That evening, Schlichtmann stood at the counter in the office kitchen, trying to open a bottle of apple juice. His palms were sweaty, his hands trembled, and he could not get the top off. He put the unopened bottle down and planted both hands on the counter, as if he were steadying himself on a storm-tossed sea. “Could I be wrong?” he wondered aloud. “Could there be only one holdout for me? I can’t believe that nightmare.”

The sheriff came to repossess Schlichtmann’s Porsche that weekend. It was an event of such little consequence to him that he failed to mention it to his partners until much later.

4

Monday morning, July 28. Judge Skinner took the bench and motioned for the lawyers to gather around. “My suggestion is to ask the jury foreman to come down and report the status of things. If they’re not ready with a verdict, I’ll excuse the foreman and put in Mrs. Gilbern, who is here, and we’ll have to start all over.”

The judge’s clerk went to bring Vogel down.

“Good morning, Mr. Vogel,” the judge said. “Can you tell us whether there is any likelihood of a prompt verdict?”

“Yes,” replied Vogel.

“There is?” said the judge.

“Yes. We are just finalizing it right now, Your Honor,” said Vogel. “Crossing the
t
’s and dotting the
i
’s.”

“That’s remarkable progress from last Thursday.”

“We’re all in one piece,” said Vogel, smiling. “There’s been no breaking of arms or legs or anything like that.”

It had been the judge’s standard instructions to the jury, and the news of Vogel’s operation, that had broken the deadlock. On Friday morning, Vogel had taken charge. He’d drawn up two charts, one for Grace and one for Beatrice. With the help of the others, he had listed all the evidence for and against each company. The judge had said, “Don’t hesitate to change your views,” and Vogel had asked his fellow jurors to change their views, if only for the moment, and try to see the opposite side.

It had worked. Robert Fox and Harriet Clarke agreed that the Grace chart clearly showed a preponderance of the evidence against the company. And Coulsey, in turn, had to concede that Beatrice, with only two items against the company after the judge’s 1968 cutoff date, could not be held liable by the preponderance standard.

Beatrice was out of the case now. The jurors had to deal with only the remaining questions for Grace. The second question, once they unraveled the language, seemed to ask for the month and year that the chemicals from Grace had arrived at the wells in “substantial” amounts. They agreed that they didn’t know the answer to that. They put in “ND” for “Not Determined.” The third question read like the first
one, the only difference being that it asked if Grace had failed “to fulfill any duty of due care to the plaintiffs.” To this they answered “Yes.”

The fourth question stumped them for a while. Like the second question, it asked them for a date, but what date they couldn’t begin to fathom. They were about to put in “Not Determined” again when they decided to adjourn for the weekend and consider the matter again on Monday before reporting to the judge. On Monday morning, Fox came up with a date—September 1973. That, Fox told the others, was when Grace had closed a storm drain at the plant into which workers had poured waste solvents. Everyone quickly accepted this date, even though they had no idea what relation it bore to the question.

They had finished their job. Each of them had some misgivings, but on balance they felt they had done the best they could.

Word that the jury had reached a verdict traveled quickly. A crowd of spectators and journalists began to assemble in the corridor. Schlichtmann stood with his head bowed, his hands tightly clasped under his chin in an attitude of prayer. Kathy Boyer hovered close by, separating him from the crowd. He chanted over and over again, in a low voice, as if the words were a mantra, “Come on, come on, come on, come on.…”

When the jurors filed down and took their seats in the courtroom, Judge Skinner’s clerk asked the foreman to rise. “Mr. Foreman, members of the jury, have you agreed on a verdict?”

“Yes, we have,” replied Vogel, who handed the jury slip to the clerk.

The judge unfolded the slip and read in silence. Then, in a formal voice, he announced: “With respect to the special interrogatories as to Beatrice Foods, they have answered all parts of question one in the negative. That is determinative of the case with regard to Beatrice.”

Schlichtmann buried his face in his hands. His body seemed to go limp. Next to him, Nesson put his arms on the counsel table and laid his head down.

The judge continued reading. “As to W. R. Grace, with respect to the same question, the jury has answered ‘yes’ as to trichloroethylene.…”

When the judge finished reading the jury’s answers, he said, “With respect to Grace, the answers to these questions require that we proceed
further. I will see counsel at the bench to determine the date for commencing the second stage of this trial.”

Facher, smiling, rose to come up to the bench, too. The judge saw him and said, “I will not need your assistance, Mr. Facher. You are excused.”

Facher stopped in his tracks, in the middle of the courtroom, and watched Schlichtmann and his partners and Keating and his partners gather at the judge’s bench. Facher’s smile turned to a frown. He appeared unhappy at being excluded, unhappy at the way the judge had ended his role in this long trial without any ceremony. He stood there for a moment, then he sighed and went back to the counsel table and began packing his battered litigation bag.

The jurors remained in their seats. Up at the bench, Judge Skinner leaned forward toward Schlichtmann. He’d seen Schlichtmann’s gesture of despair. “Well, half a loaf is better than none at all, isn’t it?” he said in a low voice.

“Yes,” replied Schlichtmann with no conviction.

“So we will go forward.”

The jury’s answers, continued the judge, were puzzling and raised some problems, especially the September 1973 date. “I think you’ll probably want to file some motions,” the judge said to Keating. “We ought to consider those before we start the second stage.” The judge told the lawyers that he intended to spend the month of August on vacation in Maine. “I’d like to look at your briefs when I come back after Labor Day, on September fifth. If there’s going to be further trial of the case—which I rather think there will be—I suggest September fifteenth is an appropriate day to start.”

The judge turned to the jurors. He thanked them for their service and reminded them that they should not talk to anyone about their deliberations. “The case is still going on,” he said. “We are just going to take a breather. With that admonition, I now excuse you until September fifteenth and hope you have a very pleasant remainder of the summer.”

Schlichtmann called Donna Robbins from the pay phone in the corridor, holding his hand to his ear so that he could hear above the noise of the crowd. He told her about the verdict and asked her to notify the other families. He wanted to meet with the families at one o’clock that
afternoon at Trinity Episcopal Church, after which they would all talk to the press together.

Downstairs, in the lobby of the federal building, a group of reporters and four television cameras waited in front of the elevators. Facher was the first to arrive. He stepped off the elevator and the bright lights of the minicams came on, immediately attracting a swarm of curious spectators. In front of a jury Facher always felt completely at ease, but in front of the cameras he became wooden and glassy-eyed. He drew his neck stiffly back and shifted his litigation bag from one hand to the other, finally setting it down. Yes, he was very pleased with the verdict. “The jury system itself is vindicated,” he said, and then he managed a smile. “I’ll be following the second phase of the trial from a seat in Fenway Park.”

A few minutes later Keating stepped out to face the cameras. He, too, looked ill at ease. “They decided it the way they decided it,” he told the reporters. “The process will go on. We’re looking forward to the second phase.”

Then Schlichtmann arrived. Of all the parties in this case he had always used the media to his best advantage. But now he made no effort to conceal his despair. “I am bitterly disappointed,” he said, looking down at the floor and shaking his head. “We needed a clear message and we didn’t get one. It makes our job much harder. But we will go on.”

Schlichtmann knew that going on would be very hard indeed. Losing Beatrice was bad enough. What made the verdict even worse, however, was the September 1973 date the jurors had given for Grace. Three of the Woburn children—Jimmy Anderson, Michael Zona, and Kevin Kane, Jr.—had gotten leukemia before that date. Were they out of the case now? Schlichtmann expected Keating to make a strong argument in September to exclude them. If Keating was successful, nearly half the case would have turned to dust. How would that affect the remaining claims? And how would it affect the families? Would they start fighting among themselves?

Schlichtmann didn’t have the time or presence of mind to think through these questions right now. He had to get out to Woburn and meet with his clients. At the office, a small caravan assembled to make the trip. Schlichtmann went with Kiley in Kiley’s Mercedes. On the drive out, he sat in the passenger seat, staring rigidly ahead and saying nothing. Kiley gave him a worried glance.

“This ‘bitterly disappointed’ shit has got to stop, Jan,” said Kiley.

Schlichtmann managed a wan smile. “No self-pity, huh?”

“You don’t think Keating is celebrating, do you?” Kiley continued. “W. R. Grace is damn sorry they ever ran into you. They’ve just been found guilty of polluting the water in a town where there’s a fucking cancer cluster! You’ve got to turn the screw, Jan. You can’t let up now.”

Schlichtmann drew a breath that sounded like a sob. “I’m sorry,” he said, his voice hoarse. “I’m filled with pain. Month after month, nothing has ever been clear. I needed those jurors. I needed those six people. They kicked me in the fucking belly. They think I’m wrong.”

Kiley looked grim. “Jan, you’ve got to get hold of yourself. You can’t let your clients see you this way.”

In the meeting hall at Trinity Episcopal Church, the families gathered around on folding chairs. Overhead, the high ceiling fans turned slowly but gave no relief from the oppressive midsummer heat. People fanned themselves with pieces of paper and mopped their brows with handkerchiefs.

Schlichtmann looked hollow-eyed and he spoke in a dull, uninflected voice, but he did manage to keep hold of himself. He told the families he would appeal the Beatrice verdict. As for Grace, the jury’s answer was puzzling. He did not understand how they had arrived at the date, and he needed time to study it. But he assured the families that they were still all in the case together. He would try to find a way around the date. And if that failed, he could still prove that exposure to the solvent had aggravated the illnesses of Jimmy Anderson and the others and hastened their deaths. These words of assurance relieved those families whose claims were in jeopardy. But even so, they all knew that this argument looked weak compared with what they had started with.