MOVIEGOERS CAN BE excused if they come away from A Civil Action thinking that no one cared about the Anderson family's, and Woburn's, problems before Jan Schlichtmann swooped onto the scene. In fact, Schlichtmann arrived near the end, not the beginning, of the story. Woburn and Love Canal were already synonymous with toxic waste. For years, elected officials and federal investigators had tromped through the city to express concern and to promise change. Although Schlichtmann decided to sue three industrial giants -- W.R. Grace & Company, Beatrice Foods Company, and the UniFirst Corporation -- in part because he knew they had deep pockets, he also singled them out because that's where the government's investigation was leading.
Grace owned a plant that manufactured food-packaging equipment under the Cryovac brand name, and used TCE to clean tools and thin paint. Employees testified during the trial that they disposed of used TCE by dumping barrels and chemicals out back. Beatrice purchased the John J. Riley Company tannery -- and Riley's legal liability -- just a few months before the wells were shut down. A 15-acre undeveloped property adjacent to and owned by the tannery was heavily contaminated, and Schlichtmann tried -- with little success -- to show that the tannery itself (and thus Beatrice) was responsible. UniFirst operated a dry-cleaning plant that used PCE; it settled out of court for $1.05 million before the trial began.
The sad truth is that the 1986 trial, in federal district court, may never have been Schlichtmann's to win. The scientific state of the art was (and still is) probably too primitive to allow him to prove, by a preponderance of the evidence, that Beatrice and Grace were at least partly responsible for contaminating Wells G and H, and that the contaminants, in turn, caused leukemia and other illnesses. By way of analogy, consider the difficulty lawyers have in suing tobacco companies on behalf of clients who have contracted lung cancer -- a cause-and-effect relationship that is far better established than the one linking TCE and leukemia. Then, too, the adversarial system of justice is peculiarly ill-suited to deciding a case as complex as this one (see "Civil Reforms," below).
Still, there's no doubt that Schlichtmann and his principal witness, renowned Princeton hydrogeologist George Pinder, made things worse -- much worse.
First, as Harr recounts in his book, Schlichtmann walked away from pretrial negotiations just as it appeared that Beatrice was getting ready to offer $8 million. Not only was Schlichtmann's case against Beatrice weaker than the one against Grace, but Beatrice was represented by Hale and Dorr's formidable chief of litigation, Jerome Facher -- an avuncular-seeming courtroom assassin who would humiliate Schlichtmann's witnesses and exploit Schlichtmann's own inexperience. Keeping Facher out of the courtroom would have made Schlichtmann's job immeasurably easier.
Second, Pinder completely botched his explanation of how contaminated groundwater beneath the 15-acre tannery property flowed into Wells G and H -- a failure to which Harr's book gives insufficient weight, and that the movie script dramatizes without explaining. To oversimplify, Pinder testified that even though groundwater beneath the 15 acres readily moved under the Aberjona River and then into the wells, he claimed that the river itself contributed no water to the wells. It was bad enough that Facher showed Pinder to be wrong (the US Geological Survey later confirmed that the wells drew about half their water from the river). Even worse, it appeared to me -- and, it seemed clear, to Judge Walter Jay Skinner as well -- that Pinder had deliberately slanted his testimony to knock down a defense theory that the river, not Beatrice and Grace, had polluted the wells. Pinder's testimony was so damaging that several years later, when Schlichtmann argued on appeal that Beatrice's and Riley's lawyers improperly withheld evidence of possible chemical dumping on the tannery property, Skinner ruled that it was irrelevant. Skinner reasoned -- logically -- that Pinder had not presented a credible theory as to how groundwater beneath the Beatrice property could make its way into the wells in the first place.
Following a 78-day trial, the jury dismissed the case against Beatrice in July 1986, but ruled that Grace was indeed responsible for polluting the wells. Skinner threw out the verdict on the grounds that the jury's written verdict was confusing and contradictory. (The jurors reached their verdict by filling out a questionnaire, drafted by the judge, that was itself confusing, if not contradictory.) At that point, Schlichtmann and Grace settled for about $8 million, with Grace declining to admit any wrongdoing. The families got a few hundred thousand dollars apiece -- little compensation for the pain they had suffered, and a long way from the hundreds of millions of dollars Schlichtmann had talked about when he first took their case.
Schlichtmann himself, financially and emotionally drained, declared bankruptcy, moved to Hawaii for a time, and slowly tried to rebuild his career -- until Harr's book and Travolta's star appeal brought the fame his courtroom failures had denied him. Today Schlichtmann lives in a seaside mansion in tony Beverly Farms and has achieved, through the cult of celebrity, the riches and acclaim he had always craved. But his former clients are not rich, and their fame is based on experiencing the worst thing that can ever happen to a parent.
"The trial about destroyed me," says Anne Anderson. "I know it about destroyed Jan. But I didn't have any place to go and recover."
