The following “Don’t Quote Me” column appeared in the August 18, 1995, edition of the Boston Phoenix. Copyright © 1995 by the Boston Phoenix, Inc. All rights reserved.
By Dan Kennedy
For four years we would meet periodically in US District Judge Walter Jay Skinner’s overheated courtroom, high above Post Office Square. I was a reporter for the Woburn Daily Times Chronicle, covering a seemingly endless legal case involving toxic waste and dead children. He was a writer on leave from New England Monthly, doing research for a book: unfailingly polite, studious, and slightly preppy.
Between 1986 and ’89, I wrote perhaps 200 articles about the case, then put it behind me. But Jonathan Harr kept plugging away, re-interviewing the principals, poring over the 27 linear feet of transcripts, depositions, and legal filings that lined the bookcases in his Northampton house, and commiserating with his friend and neighbor Tracy Kidder.
“I regretted getting into this thing more times than I can tell you,” says Harr, 45, who used up his nearly six-figure advance in 1988 and struggled in penury for years. He recalls the advice Dan Okrent, then the editor of New England Monthly, now a top editor at Sports Illustrated, once gave him: “He told me, ‘Don’t do this book. You’ll be digging out quarters from behind the car seat.’ And he was right.”
The result, though, was worth the wait. A Civil Action (Random House, 492 pages, $25), to be published on September 8, is a magnificent achievement, a nonfiction novel of the first order. Though Harr never loses sight of the Woburn families who were stricken by illness and death, A Civil Action is primarily a legal thriller. The star: Jan Richard Schlichtmann, a young, brilliant, deeply flawed personal-injury lawyer with a passion for social justice who thought the case would establish him as one of the luminaries of his profession; instead it left him bankrupt and spiritually broken.
A Civil Action has garnered blurbs from J. Anthony Lukas (“wildly funny and unspeakably sad”) and Kidder (“the weight and range of a tragicomic epic”).
The book set off a bidding war for the movie rights when it was still in proofs. Last April, Harr sold the rights to Robert Redford and Disney for $1.25 million, more than enough to allow him to leave the car seats alone. Movie producers Fred Zollo and Nick Paleologos (Mississippi Burning, Quiz Show), who are from Woburn and who’d hoped to buy the rights themselves, have vowed to make their own film about the case.
With a first printing of 100,000 copies, Harr’s book has placed him on the brink of stardom.
Contaminated wells
In May 1979, state investigators discovered that two municipal wells in Woburn were contaminated with industrial solvents. Residents of the neighborhood served by those 15-year-old wells had long complained that the water was malodorous and foul-tasting, and that it ruined their clothes.
Later that year, the discovery of huge toxic-waste sites fueled suspicions that local industries had polluted the wells. And when researchers from the Harvard School of Public Health learned that families who received most of their water from those two wells suffered far more than the normal number of leukemia cases and immune-system disorders, Woburn entered the public consciousness alongside Love Canal and Times Beach. Anne Anderson, a Woburn mother whose son Jimmy died of leukemia, and who goaded authorities into investigating the water, became a national symbol of the fight against corporate carelessness.
The US Environmental Protection Agency identified three properties from which it believed most of the pollutants in the wells had been drawn: a machine-tool plant operated by W.R. Grace, then as now an international conglomerate; a vacant 15-acre site that was part of a tannery owned by Beatrice Foods, another mega-corporation; and an industrial dry-cleaning operation owned by UniFirst, a regular user of the one of the solvents found in the wells.
Thus it was Grace, Beatrice, and UniFirst that Schlichtmann sued on behalf of the eight Woburn families who retained him. UniFirst settled quickly, paying $1.1 million. That sum was immediately applied to the several million dollars’ worth of expenses Schlichtmann ran up during a pretrial discovery period that, by Harr’s account, can only be described as manic.
Schlichtmann made his first serious error on the eve of the 1986 trial, when he essentially walked away from negotiations with Beatrice that seemed likely to result in a settlement of $8 million. By forcing Beatrice into the courtroom, Schlichtmann diluted his strong case against Grace with his much weaker case against Beatrice, thus confusing the jury. More important, he had to tangle with Beatrice’s extraordinarily able trial lawyer, Jerome Facher, chief of litigation for the Boston law firm of Hale and Dorr, an avuncular pit bull who chewed up and spat out one after another of Schlichtmann’s witnesses.
I winced as I read Harr’s account of the breakdown in settlement negotiations, wanting to reach into the book, cuff Schlichtmann about the ears, and demand that he close the deal. Harr, though, points out that even Judge Skinner had mused that the case might be worth several hundred million dollars. In light of that, the $8 million that Facher’s associate Neil Jacobs told Schlichtmann he would “try” to get Beatrice to agree to must have looked like mere walking-around money.
“Jan was certainly a risk-taker,” Harr says. “It’s part of what made him successful, and it’s part of what made him self-destructive, too.”
The second serious error occurred about two-thirds of the way through the 78-day trial, in May 1986. That’s when George Pinder, an eminent hydrogeologist from Princeton University whom Schlichtmann had hired at great expense, ruined what was left of the case against Beatrice.
Between the polluted wells and the 15-acre Beatrice property flowed the Aberjona River, a small, muddy stream into which chemical wastes had been dumped for more than a century. Lawyers for Beatrice and Grace argued that the pollution in the wells was more likely to have come from the river than from their clients’ properties. But Pinder believed they were wrong, and asserted that the wells actually drew none of their water from the river. It was a theory that defied common sense, not to mention government test results that showed the water level of the river dropped when the wells were turned on. Pinder based his theory on a complex set of calculations concerning the flow of underground water.
“I figured it out when I was taking a shower this morning,” Harr records Pinder as telling Schlichtmann. “George,” Schlichtmann replied, “don’t say that on the witness stand.” He did. And he was wrong, which Facher saw immediately. Schlichtmann himself went over the data that night and realized Pinder had blown it. Pinder never admitted his error; instead, his defended his absurd theory in the teeth of Facher’s brutally effective cross-examination. Judge Skinner mocked Pinder’s “morning-shower epiphany” and called Pinder “a hopeless witness.” Schlichtmann could only be thankful that the jury was out of the room when Skinner made those remarks.
Federal investigators determined after the trial, too late to help Schlichtmann, that even though the wells drew 40 percent of their water from the river, the chemical solvents at issue in the trial were not present in the river water. Instead, investigators found that one of the prime sources of solvent contamination in the wells was, as Pinder had testified, a plume of underground water flowing from the Beatrice property.
“As it later turned out,” Harr writes, “Pinder was generally right.” Well, no. To reporters, to courtroom observers, and, most important, to Skinner, Pinder’s error concerning the river seemed not to be an honest, inconsequential mistake but rather an outlandish theory cooked up to rebut the notion that the Aberjona River, not Grace and Beatrice, was responsible for polluting the wells. Harr vigorously disagrees with that interpretation: “George Pinder was no whore. I think he’s honest as the day is long. I think he just made a mistake.”
What a mistake. Ultimately the jury, to no one’s surprise, cleared Beatrice of wrongdoing. Skinner wrote that if the jury hadn’t dropped the case against Beatrice, he would have done so himself, ruling that Pinder’s testimony was “seriously flawed.” An appeals court upheld that ruling, casting a pall over Schlichtmann’s three-year, post-trial effort to show that lawyers for Beatrice and for the previous tannery owner may have improperly withheld evidence of chemical dumping. After all, what good would it have done to show that the tannery had polluted its own property if Schlichtmann, because of Pinder’s error, was legally prohibited from presenting evidence that the contamination had reached the wells?
The jury did find Grace liable. Even Pinder’s blunder couldn’t negate the overwhelming evidence against that company. Schlichtmann, deeply in debt, settled out of court rather than proceed to the second phase of the trial, when his clients finally would have had a chance to testify about the illnesses and deaths their families had suffered. The amount of the settlement: $8 million, the same figure Schlichtmann presumably could have gotten out of Beatrice before he ever stepped into the courtroom. As a further indignity, Skinner, in announcing the settlement, said he had discarded the verdict against Grace because of technical problems with the way the jury had responded to his overly complicated instructions.
Parallel crises
Schlichtmann would have had a hard time proving his case even without these errors. Evidence that the chemicals at issue could cause leukemia and other human illnesses was sketchy, and would have been fiercely contested if the trial had continued.
“I think it was an exceedingly difficult case,” says Harr. “Was it doomed? I don’t know.”
Harr’s ordeal, in some ways paralleled Schlichtmann’s. What had started out as a three-year project dragged on for another two, when the appeals finally ran their course. Harr then fell into a crisis of his own, overwhelmed by the material he had gathered. “It was very bleak in 1989, ’90, and ’91,” he says. By June 1994, he’d nearly completed the book, only to suffer serious injuries in a bicycle accident, which cost him two months at the computer. Now that it’s finally over, he’s preparing for a five-city book tour, researching an article for the New Yorker, and thinking about another book project. “I hope it doesn’t take me nine years,” he says, laughing ruefully.
As for Schlichtmann, he’s returned to the Boston area to practice law, an impressive comeback following a declaration of bankruptcy and a move to Hawaii several years ago. “He seems to be doing quite well,” says Harr, although he adds: “I don’t know that he’s fully recovered. He’s not the same guy. He’s lost a step.”
In the end, it wasn’t greed that did Schlichtmann in, though he was greedy. Nor was it arrogance, though he had more than his share. Ironically, it was his passion for justice that was his undoing. Without that passion, he never would have taken on such an impossible case, and he never would have kept fighting long after his law firm had gone broke, long after his partners had begged him to stop. “Rich and famous and doing good,” Schlichtmann muses at one point in the book. “Rich isn’t so difficult. Famous isn’t so difficult. Rich and famous together aren’t difficult. Rich, famous, and doing good – now that’s very difficult.”