A Woburn FAQ

On A Civil Action, skepticism is overdue.

"Lawyer Errs on the Side of Angels": That's the newsy headline atop Janet Maslin's New York Times review of A Civil Action, the Hollywood release, based on the book by Jonathan Harr, in which attorney Jan Schlichtmann sues two large corporations on behalf of leukemia-stricken children in Woburn, Massachusetts. "Fighting the good fight," reads a nearby photo caption. Maslin describes the children as "casualties of a poisoned river," though the real-world legal proceedings never reached the issue of whether they were in fact casualties of anything.

Already a best-selling book, A Civil Action is now moving into the curriculum, which means captive schoolchildren are going to spend a lot of time watching John Travolta and being exposed to what Boston Globe columnist Alex Beam describes as the "unmistakable message of the movie and, to a lesser extent, the book": "Big corporations poured poison into the drinking water of a tiny, woe-begotten town, killed children," and "got away with it" because of our defective civil justice system. Salon reviewer Charles Taylor has even charged the movie with being too evenhanded, making it look as if there were somehow two sides to the story when in fact the corporate defendants were "demonstrably guilty," the evidence against them "overwhelming."

But in reality, writes the Globe's Beam, "Everyone familiar with the Woburn trial knows that Schlichtmann had a terribly weak case." Here's a primer on why, to bring to class and startle your teacher with:

Q: What did the jury decide?

A: First, it ruled that Beatrice Foods was not responsible for polluting the wells, rejecting Schlichtmann's case outright. Second, it ruled that W.R. Grace had contributed to the wells' contamination beginning in September 1973. This second ruling was much less helpful to Schlichtmann than it may appear, since the date was midway through the leukemia "cluster" that gave rise to the suit. It's not easy to pin your epidemic on Typhoid Mary if she arrived in town well after the outbreak started.

Grace ponied up $8 million to settle, which meant the case never proceeded to its next phase, in which the jury would have considered whether the company's contribution to the wells' contamination had actually caused the leukemia and other illnesses. On the Beatrice side, it emerged that employees of the company had withheld from Schlichtmann an old geology report that he argued would have helped his case. This led to years of further litigation, culminating in a fairly thorough defeat for Schlichtmann, basically on the grounds that the report would not have saved his case no matter when he obtained it.

Q: Schlichtmann claims this was because the judge in the case, Walter Skinner, was biased against him. Is that true?

A: Not many others on the scene agree. The U.S. Court of Appeals for the 1st Circuit upheld Skinner on all but one transitory issue; its final denial of rehearing was signed by then-Chief Judge Stephen Breyer, later named by President Clinton to the Supreme Court and considered nobody's stooge. Harr now says he was "distressed" to learn that Skinner came off as a villain to readers of his book: "He's a good judge and a smart man," he told Alex Beam, "and he's a credit to federal judges."

Q:What about Schlichtmann's other complaints that the judge was picking on him? Time says it was a "questionable ruling" for Skinner to have divided the trial into stages.

A: Such divisions are routine in tort litigation. They save the participants the expense of preparing for full-dress trial on later issues if a case may lose on preliminary grounds. Schlichtmann wanted to skip past the tiresome questions of who polluted what and get straight to putting client families on the stand to testify about the anguish of losing a child. Either he was banking on the emotional appeal, or he imagined the family testimony would somehow help resolve the hydrogeology issues.

Q: How did Schlichtmann manage to lose the contamination case against Beatrice, when its tannery was relatively near the wells and there was evidence of pollution on its land?

A: Two tactical decisions undercut his chances. The first was to fix on the theory that the cause of the leukemia cluster in east Woburn was trichloroethylene (TCE) and related industrial solvents. The second was to propose models of water flow that the jury correctly dismissed as incredible.

The TCE theory fit the headlines of the case, since it was the finding of solvents in the wells that led to their emergency closure. But as reporter Dan Kennedy, who covered the trial and aftermath for the Woburn newspaper and the Boston Phoenix, observes, Schlichtmann "had no evidence that the tannery had ever used" TCE. Nor was he ever able to come up with such evidence. Rather an important gap to leave in one's case, no?

Entangling himself further, Schlichtmann proceeded to call an expert witness who claimed that the wells, though alongside the heavily polluted Aberjona River, drew none of their water from that river. This was mighty convenient for his case, since it diverted attention from the likelihood that the many dumpers or polluters to be found upstream had something to do with the wells' contents. But it had the disadvantage of being false: As the U.S. Geological Survey soon established, nearly half the water in the wells came from the Aberjona. And the argument painted Schlichtmann into a hopeless corner regarding Beatrice, whose tannery was across the river from the wells, which meant the runoff from its land would hit the river before it got to the wells.

The jury, and virtually everyone else, rejected Schlichtmann's better-than-nothing theory that the never-seen TCE (which, it will be recalled, there was no evidence the company ever used or dumped) sank down under the Beatrice property, passed under the river without intermingling in any way with its waters, then came back up to taint the wells. No wonder Kennedy concludes that "the case against Beatrice had nothing to do with justice."

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    The Beatrice owned tannery was later found to be the most saturated with TCE, and this information has been available for a number of years. I'm surprised both that Olson neglected to include it, and that he opened up with exactly that false premise that Beatrice was not to blame for any contamination.

    I've looked at Woburn from different angles, and I am typically very critical of environmental law suits, (and Olson's blog is even my homepage - really) but there's enough data on Woburn now that it cannot be dismissed as another irresponsible lawsuit.

    As always there's a lack of balance instead of a search for truth it seems.

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