A Civil Action (64 page)

“If they didn’t intend to do it, they should straighten it out, shouldn’t they?” asked the judge.

Keating’s argument for a new trial appeared to displease the judge, who took off his glasses and held his head in his hands. He seemed slightly more disposed to Schlichtmann’s analysis, which held that the Woburn families had been exposed to the Grace chemicals since at least September 1973, one of the dates the jury had given, and possibly even before then. “Good job,” the judge said after Schlichtmann’s rebuttal of Keating. “You may not be right, but good job.”

All the same, Skinner still wasn’t completely satisfied. “I don’t see how we can begin the second part of this case leaving those answers just as they are,” he told the lawyers. “I would be very unhappy with that.”

By then it was clear that the judge would follow one of two courses: either he would ask the jurors more questions or he would order a new trial. Skinner said he needed some time to think about his ruling. He would notify the lawyers of his decision early next week.

And then, at the end of the hearing, almost in passing, the judge seemed to reveal his own thoughts on the outcome of the second phase of the case. It happened when Schlichtmann mentioned a memo sent by W. R. Grace to its Woburn plant, ordering the plant to stop using TCE. “They said it can cause cancer,” Schlichtmann was saying, when the judge interrupted him.

“Causes cancer in people?” the judge asked.

“Yes,” said Schlichtmann. “That’s why they stopped using it in their plants.”

“I don’t think there’s anything in the evidence to show it causes cancer in people,” said the judge.

“Well,” began Schlichtmann, “in 1975, the memo said: ‘A carcinogen capable of causing cancer—’ ”

“Cancer in animals,” interrupted the judge again. “The state of knowledge at the time was that it caused cancer on the skins of animals. And that’s all there was—and still is—to this day. There’s no direct evidence that application of this product actually causes cancer.”

Schlichtmann took a deep breath. “If Your Honor is asking me, Was there evidence for people to conclude that it could cause cancer in humans? I would have to say, yes, there was evidence. If Your Honor is saying that most of the evidence is based on animal studies, that is correct.”

“The skins of rats and mice,” said the judge.

“Organs as well,” added Schlichtmann.

“Skins,” insisted Skinner.

“No,” replied Schlichtmann. “I think it was liver, liver tumors.”

“And it was in massive doses,” said the judge. “They don’t give those rats one part per billion. Nobody is surprised they die.”

My God, thought Schlichtmann, I’ll never win in front of this judge. I don’t have a prayer.

•     •     •

Schlichtmann left the courtroom and went directly to Patten’s Bar & Grill with Phillips and Conway. The three men stood at the bar and ordered whiskey.

“Well,” said Schlichtmann holding up his glass in a toast, “it’s been an enriching experience. Like having a loved one die.” He swirled the glass of whiskey and took a sip. “Do we take the money from Eustis and end it? Or do we go ahead? If life was black and white and a sign came out and said, ‘Okay, hero time,’ then everybody would do the right thing. But there’s never a sign. You never know when you’re being a hero or a fool.”

Phillips had already finished his first drink. “I’d much prefer to go to phase two and spend every penny I’ve got.”

Conway groaned.

“Self-immolation.” Schlichtmann laughed.

Phillips nodded. “The hardest thing to do is capitulate. It’s easier to spend every damn cent. I’ve learned more about myself in the last three weeks than I have in my entire life.”

Schlichtmann laughed again, a hearty laugh. “And they were things you never wanted to know.”

“Soooo much cowardice,” said Phillips, beginning to hum.

Schlichtmann talked about the imaginary speeches he found himself making to the judge. “I’ve got ten thousand speeches, every one of them I’ll never deliver. Instead I’ll go to the courtroom and the judge will say, Bend down a little more, Mr. Schlichtmann, and I’ll bend down right there in the courtroom while he gets out the broomstick and greases it. The trial will go six months and the jury will come back with no causation. The judge will call me over to the bench and say, ‘You didn’t win, kid, but you did a good job trying.’ And I’ll say to the judge, ‘Fuck you.’ And then I’ll turn to the jury and say, ‘Fuck you, too.’ And then I’ll say to Kevin, ‘C’mon, let’s get out of here.’ ”

“You’ll be living out of plastic garbage bags on the Boston Common,” said Conway.

“Rich and famous and doing good,” mused Schlichtmann. “Rich isn’t so difficult. Famous isn’t so difficult. Rich and famous together aren’t so difficult. Rich, famous, and doing good—now, that’s very difficult.”

•     •     •

Schlichtmann had asked the families to come into his office for a meeting the next morning, a Saturday. He had to inform them about Eustis’s offer and the status of the trial.

Kathy Boyer arrived early that morning and began clearing piles of documents from the conference room table. She washed the dishes and coffee cups in the kitchen sink, made two pots of fresh coffee, and when she finished those tasks, she went out to buy a box of breakfast pastries. By then, Donna Robbins, Kathryn Gamache, and Kevin and Patricia Kane had arrived. Donna went back to the kitchen and offered to help Kathy. The Aufieros, the Toomeys, Anne Anderson, and the Zonas gathered in the conference room, sipping coffee and chatting with Conway.

None of the families had seen the office since last February, on the eve of trial. Only a year ago it had seemed to sparkle with luxury and order. Now some of Schlichtmann’s clients noticed that it looked shabby. The potted plants had died and their bare stems gave the place a forlorn look. Behind the conference room door was a gaping hole in the plaster wall where Schlichtmann had flung the door open with such force that the knob had punched a ragged circle in the wall. In the kitchen alcove, a fluorescent light had dimmed and was blinking fitfully on and off. The vacuum cleaner had broken and the carpets, unvacuumed for weeks now, were stained by ground-in dirt.

In the conference room Schlichtmann stood before his clients, who had taken seats around the table. He was dressed in a short-sleeved shirt and chinos and looked gaunt, his hair almost completely gray.

“The lawyer’s perspective this morning is not very good,” he told the families. He talked about the risk of facing a divided jury in the next phase of the trial. It might be possible to win, he said, if the jury gave him the benefit of the doubt. But at every step along the way, the Grace defense would try to put doubt in the jury’s mind. “The most difficult thing we face is this jury asking themselves, How do I make a decision when there are doctors and scientists out there who can’t agree? They might decide to take the easy way out and not decide.”

Then he told the families that he had gone to New York to discuss settlement with a Grace executive. “He put some money on the table,” Schlichtmann said. “I’m going to tell you the figure, but I don’t want it to go outside this room.”

Schlichtmann looked around at his clients. Some of them nodded, others sat impassively.

“He offered six point six million dollars. He’s decided to stop negotiating until the judge rules on the motions. He’s hoping the judge will dismiss all—or at least some—of the claims.”

Everyone in the room knew which claims had been put in jeopardy by the jury’s date.

“When we start talking about money,” continued Schlichtmann, “people get emotionally involved. That’s a reality of life. In this case, that reality is backed up by a very personal claim. You’ll all have to agree that you will act as one unit. There’ll be no talk about this is for Toomey and not for Robbins or Zona, no talk about whose claim is more viable than someone else’s claim.”

Schlichtmann paused to gauge his clients’ reaction. They looked expectantly at him. No one said anything.

“If the eight families can’t do that,” Schlichtmann said, “then we’re in real trouble. If there’s a problem between families, then I won’t know who I’m representing. If there’s a problem, it means that each family will have to get its own attorney.”

Thirty seconds of silence ensued. Schlichtmann waited for a response. People looked cautiously at each other, wondering who would speak first.

Richard Toomey, whose dead son, Patrick, had the strongest of the remaining claims, sat directly across the table from where Schlichtmann stood. Toomey’s eyes were half closed, his hands folded across his large barrel chest. He was the first to break the silence, in a voice clear and strong. “We’re all in this together,” he said. “That’s how we started, and that’s how we’ll stay.”

Anne Anderson smiled in sudden relief, and everyone began to say, as if in chorus, “We’re unanimous, we’re together.”

At ease now, and with a sense of common purpose, they began to talk freely among themselves about the prospects of settling or going ahead with the trial. Again it was Toomey who spoke most forcefully. “A settlement is one thing,” he said, “but I’m not willing to throw out the verdict in order to settle. They’re guilty of polluting. My child died from their stupidity. I didn’t get into this for the money. I got into this because I want to find them guilty for what they did. I want the world to know that.”

Most seemed to agree with this. Pasquale Zona said, “A settlement without disclosure is no settlement at all.”

But Anne saw it differently. “I think you have to accept that Grace never, ever said they did anything. The world will come crashing down before they do that.”

Pasquale Zona’s son, Ron, who was twenty-five years old now, a strapping, husky youth, seemed affronted by this. “Saying they’re not guilty of any illness or death,” Ron Zona said with disgust. “That’s why we’re in this thing to begin with.”

Anne glanced at him. “Look at how many experts say that smoking causes lung cancer, but the tobacco companies still deny it. I don’t know about you people,” she continued, “but I don’t think I’m any match for their lawyers. I don’t feel strong. I find myself crying a lot. They’ll tear us apart, make mincemeat of us.”

“They put their socks on the same way you do,” said Ron Zona. “If we don’t go to the second phase, what was the sense of this trial? That’s what we got into this for, to prove that it causes illness.”

Some voiced their fear that if they went ahead with the trial, they risked losing everything. Others maintained that was the chance they’d taken when they began this odyssey. Donna Robbins was of two minds about whether they could prevail in the second phase. “But six point six million,” she said, “I don’t think that hurts them enough.”

Schlichtmann listened to his clients for a while, and then he intervened. He asked for a show of hands—how many people thought they could win in the second phase? The Toomeys, the Zonas, Kevin Kane, and Donna Robbins raised their hands. How many thought they’d lose? Seven people, among them Patricia Kane and Anne, raised their hands. “Anybody who’s studied this will realize the second phase is weaker than the first,” said Anne.

The group was divided, but with the exception of young Ron Zona, no one hewed adamantly to their position. Donna Robbins asked Schlichtmann what would happen if he advised them to accept a settlement and they said no.

“I’ll keep going,” replied Schlichtmann. “I’m representing you, not controlling you.”

It was Patricia Kane who, near the end, seemed to speak for everyone. “I think we’d all love to settle as long as we don’t have to compromise
the verdict,” she said. “I don’t think it’s a matter of money. But we all want the jury’s verdict to stand against Grace.”

The families, in a somber mood, left the office shortly before one o’clock. Schlichtmann said good-bye to them in the conference room and he remained there after they had gone, deep in thought, his long legs up on the table.

Conway came in and sat across from him. “Well, what do you think?”

Schlichtmann cocked his head and gave Conway a wry look. “I think I’d have trouble winning this case in front of my own clients.”

“They’re a reflection of you,” said Conway.

“They’re good people. If you have to die, they’re good people to die for.” Schlichtmann paused. “Goddamn it, I wish it had turned out differently.”

“You’ve got to start with Anne,” said Conway. “You can’t begin this phase with another expert.”

“She’s a powerful individual, no doubt about it. She’ll be devastated by the cross-examination, but her power will come through.”

Schlichtmann went out to dinner with Teresa that evening. Afterward they saw a movie, a science fiction thriller called
Aliens
. On Sunday morning Schlichtmann sat out on the rooftop deck of his condominium and basked in the sun.
Aliens
raced through his mind. He felt as if he were in the movie, as if he’d gone out to destroy the alien and instead the alien had come after him. He felt trapped. He had no more doors to lock, no more room to run.

On Monday morning he awoke in a spasm of fear. He felt certain beyond all doubt that the judge would rule that morning, and that he would not like the ruling. The judge would declare a new trial. Schlichtmann would lose the verdict, and he would have to start all over again, penniless and bankrupt.

He arose, dressed hurriedly, and sprinted across the Boston Common. At the courthouse, he went upstairs to see Judge Skinner’s court clerk. He told the clerk he wanted the judge to meet with him and Keating to discuss settlement. They had been negotiating all summer, Schlichtmann explained, and any ruling by the judge now could upset the negotiation.

The clerk said he would convey this message to the judge. He would also call Keating and ask him if he, too, wanted the judge involved in a settlement discussion. The clerk added that Judge Skinner had come into his office yesterday, on Sunday—a rare event—to work on his ruling.

Back at the office, Schlichtmann stood in the middle of the floor. He exhaled deeply, walked to the window, and looked down on Milk Street. Skinner had come to work on a Sunday. What did that mean? He’s not coming in to help me, thought Schlichtmann. He went over to his desk, picked up the summary of Patrick Toomey’s leukemia treatments, folded it thoughtfully, and pressed it to his lips. Then he tossed it in the air. It landed at his feet, the pages fluttering open. He walked out of his office and went to the war room. He looked around, as if in a daze, at the computer terminals, the dozen filing cabinets, the volumes of trial transcripts, the maps rolled and tucked overhead between the oak beams of the ceiling. Then he turned around and walked out. In the library, he opened the file of a new case, a baby boy with brain damage, referred to him by a neurologist. He sat down and began to read the file.