"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."
Q: The case against Grace was stronger, then?
A: Marginally so, but it still had plenty of problems. To begin with, TCE had not and still hasn't been found to cause leukemia, and fears of such a linkage have lessened since the trial. Furthermore, the concentrations of TCE in the well water were far below the levels that would cause the wide range of other health effects alleged (which included such common complaints as "rashes, sore throats, and chronic earaches" in children). Finally, the amounts of TCE used for metal cleaning in Grace's machine shop were not large.
Q: Meaning that?
A: Had the trial continued, Grace would have had a chance to call attention to the numerous other local sources of pollution. One was an industrial dry cleaner--a type of business that, unlike Grace's machine shop, uses solvents in large quantities--which was located closer to the wells than Grace but had already paid a settlement to be let out of the case. Other nearby businesses included an auto junkyard and what Harr describes as "a refurbisher of used 55-gallon drums and underground oil tanks" from whose lot a visitor "could smell a strong chemical odor." "Midnight dumping" was also a problem in the blighted area, and indeed had fouled part of Beatrice's land with wastes which it was clear had not come from its own operations.
Q: How did Schlichtmann fix on Grace and Beatrice as the culprits?
A: Not for lack of other suspects. Between tanneries and insecticide plants, Woburn was a veritable showcase of environmental disamenity, featuring arsenic, chromium, and other heavy metals as well as discarded heaps of animal parts from old tanneries. But many of the businesses responsible were small, defunct, or locally owned, and most questions of who dumped what had been hopelessly obscured by the passage of time. Also left unsued was Woburn's town government, almost certainly the most negligent party in sight: It had sunk the wells despite a vigorously worded engineering report saying the ground water was far too polluted to drink. After all, who wanted their taxes to go up if the city were made to pay a judgment?
Q: How solid was the Woburn leukemia cluster?
A: As recent press coverage has pointed out, big scares over purported residential clusters of cancers and other noncontagious ailments generally do not pan out when subjected to scientific analysis. See, for example, the articles by Atul Gawande in the February 8 New Yorker ("The Cancer-Cluster Myth") and by Gina Kolata in the January 31 New York Times. (Incidentally, why isn't the press more upset about the smear campaign against Kolata? Since she exposed the flimsy scientific basis of the breast implant litigation in the Times, a P.R. firm for trial lawyers has been sending out press kits attacking her, and several hatchet jobs have resulted in publications such as the Columbia Journalism Review, The Nation, and Brill's Content. How many other journalists would be willing to take on the litigation lobby if such intimidation campaigns came to be accepted as normal?)
The Woburn cluster was more impressive than most; some respectable sources found that it reached the realm of beyond-chance distributions, while others disagreed. To judge from Harr's book, it was so close to the border line that a recalculation of the town's population figures was enough to make it statistically significant. (Schlichtmann is now working on a case in Toms River, New Jersey, involving childhood cancers that occurred at a rate 30 percent higher than would be expected by chance--not an impressive figure in a small population.) On the broader point, we've had decades in which to look for a pattern of higher childhood leukemia rates in places where chemicals are manufactured. If such a pattern were there, you would have heard about it, but it isn't: Childhood leukemia occurs broadly and evenly across many populations.
Q: Why do so many readers and reviewers misunderstand the facts of the case?
A: One reason is the way the book is set up. Harr trailed Schlichtmann around like Johnson's Boswell, recording his every gripe and speculation. He interviewed the defense lawyers after the fact, and the judge not at all. The result, though full of illuminating detail about what it's like to live through a lawsuit, is also comically one-sided, making little effort to develop defense arguments at any greater length than is needed for Schlichtmann to come up with his response.
Q: So Harr is a fiendishly clever advocate for the enviros and trial lawyers?
A: No. Part of the book's charm is that he's too disorganized, or too honest, or too something, to stack the deck with any efficiency. The careful reader will notice that he keeps recording little details that a simple partisan for the plaintiffs' side would have taken pains to omit, from the scene on page 219 where Schlichtmann is shown coaching his medical experts--the first few experts he tried had turned him down, telling him he had no case--to the passage on page 417 where, very late in the proceedings, Schlichtmann's law partner is depicted as having no idea whether his side has a scientific case or not on the question of whether the chemicals had caused illness. Harr seldom makes anything of these details, but they're in there.
Q: Any parting lessons?
A: Some otherwise sensible libertarians have been strangely tempted by the "invisible fist" theory that depicts litigation as somehow optimal in its outcomes: The more cases judges decide, supposedly, the more perfectly costs will be internalized and the better off the rest of us will be. This was not in fact the view of judges in the now-idealized heyday of the common law. Despite Harr's shaky grasp of the scientific issues raised by the case, he does get one big lesson right: The Woburn litigation was a disaster for nearly everyone who came near it; an abundance of legal process is no guarantee of either efficiency or justice. For those whose reflexive answer to all spillover problems is "let the common law take care of it," it's at least something to think about.