On the Monday afternoon when Schlichtmann delivered his summation, the courtroom gallery was full. Everyone who worked at the office had come to watch. Schlichtmann’s banker had also come. The banker had lent the firm money for the Carney case and he was there, as he put it, “to keep an eye on the collateral.” There were many lawyers in the gallery, curious observers, but Cheeseman was not among them. Schlichtmann had forgotten—perhaps on purpose—to call him.
One of the lawyers in the gallery, a slender woman with fine, sculpted features and chestnut-colored hair, had flown back to Boston from Atlanta, where she was representing a drug smuggler, just to hear Schlichtmann’s summation. Her name was Rikki Klieman. At the moment, her career was ascendant. Time magazine, in an article entitled “The New Women in the Court: Five of the Best and Brightest,” had called her a “superstar.” She’d spent a year as Judge Skinner’s law clerk. She’d also worked briefly in the litigation department at Hale and Dorr, where Facher ruled. Some years ago Barry Reed had introduced her to Schlichtmann, and she’d found herself quite taken with him. Given the chance, she believed she could fall in love with him. She imagined they might marry someday and have children. “Somehow, in my fantasy life,” she once mused, “Jan and I will work hard and then we’ll end up together.” As it was, she and Schlichtmann were just good friends. They’d gone out to dinner several times, but to her dismay they had always talked about the law.
Rikki Klieman thought Schlichtmann looked thin, even gaunt. His suit jacket seemed to billow on him. Before court had convened, she’d gone up to him in the corridor and wished him luck. His eyes had appeared glazed and distant. He’d nodded his head but he’d seemed barely to notice her.
She knew the architecture of a summation well; she had given many final arguments herself. Schlichtmann was working toward the emotional climax, describing the young man’s helplessness, how his father aided him out of bed every morning and dressed him for the day. The summation was quite moving, the best Schlichtmann had ever given. In the gallery, some people brushed tears from their eyes. Although Rikki was practiced in the trial lawyer’s art, she felt, to her astonishment, on the verge of tears herself.
Schlichtmann waited in the courthouse corridor for the verdict. On the afternoon of the second day, the jury foreman sent a message to the judge, who summoned the lawyers up to his bench. The jurors wanted the judge to explain the legal concept of negligence again. It was not a good sign for the plaintiff. The judge knew that Schlichtmann had rejected a million-dollar offer. He looked directly at Schlichtmann. “I advise you to talk to one another and see if you can reach some sort of settlement.”
This was, word for word, almost exactly what the judge in the Eaton case had said. Schlichtmann had the eerie sense of history repeating itself, except that this time he felt a wingbeat of fear. This time the stakes were much higher.
That evening Schlichtmann went to the Parker House with Conway and Crowley and a group of friends, among them Rikki Klieman. Everyone was solemn and worried. Someone suggested that Schlichtmann go back to the insurance company and see if the million dollars was still on the table. Schlichtmann kept insisting there was no cause for alarm, as if saying so would make it true. It was merely a question that one juror wanted cleared up. “Don’t you think so?” he kept asking everyone in turn.
That night, Schlichtmann went home and lay in bed trying to sleep, but he could feel his heart thudding and he imagined he could feel his adrenal gland squeezing adrenaline into his system with each beat. He thought about his reputation and career, about the lawyers who’d said he was foolish to reject a million-dollar offer, about Paul Carney in his wheelchair awaiting the verdict.
He arose at dawn and went to his office. At six o’clock, as he watched the sun rise over Boston harbor, he called Rikki Klieman. The phone rang several times before she answered, her voice thick with sleep.
Should he take the million dollars? Schlichtmann asked her. Or should he wait for the jury’s verdict?
“You’ve made your choice,” Rikki said. “You’ve turned down the money.” She got out of bed and put on a robe, still cradling the phone to her ear. She brushed her teeth while she listened to him talk. She gave him no sympathy.
“What do you think the jury’s going to do?” he asked.
“Jan, I don’t read tea leaves,” she said. “The jury’s question is not good. But the only reason to be as crazy as you are is if you haven’t made up your mind. Have you made up your mind?”
“Yes,” he said.
“Then you’ve got to live with it.”
The jurors returned their verdict that afternoon. They found the doctor and hospital negligent and they awarded Paul Carney $4.7 million.
Outside the courthouse in Pemberton Square, Schlichtmann danced. He jumped onto a park bench and did a soft-shoe, long arms akimbo, pirouetting with joy in his dark blue suit. Conway, looking rumpled, his shirttails emergent, his tie coming undone, stood and watched his partner. People stopped to stare. “He’s just won a big case,” Conway explained. The Boston Herald, a tabloid given to sensationalism, put the story on the front page with a headline that looked as if war had been declared. “The award is the largest in Bay State history,” asserted the Herald, which had rounded the verdict to an even five million dollars.
Schlichtmann had taken five cases to trial, each one bigger than the last, and he had not lost once. The Carney case had given him plenty of money. And it had also given him a new measure of confidence. Any other malpractice case would now look pitifully small compared with Carney. He felt he was ready for something bigger. He felt he was ready for Woburn.
2
As it happened, events had conspired to bring Woburn back into the news without any help from Schlichtmann. He had been immersed in frantic preparations for the Carney trial when two professors at the Harvard School of Public Health announced that they had completed a three-year study of leukemia in Woburn. Schlichtmann had known that the study was going on, but he had played no role in it. On the evening of February 8, 1984, he was just one of three hundred people who gathered at Trinity Episcopal Church to hear the findings of what would come to be called the Harvard Health Study.
The project had started back in the spring of 1981, when Reverend Young and Anne Anderson were invited to speak at a seminar at the School of Public Health. A professor at the school, a statistician in his mid-fifties named Marvin Zelen, had been intrigued by their talk. Woburn seemed to him like an interesting riddle. Was there or was there not a link between the well water and the cluster of leukemias? By the end of the seminar, Zelen thought he knew a way to solve this riddle.
Statistical studies of the sort Zelen specialized in had proved, for example, an irrefutable link between cigarette smoking and lung cancer, but those studies had been based on an analysis of tens of thousands of cases of lung cancer. Statistical studies rely upon large numbers, and Zelen had only twelve cases of leukemia to work with in Woburn. But Zelen thought he saw a way to get larger numbers. He reasoned that if the well water had, in fact, caused leukemia, it might also have caused a variety of other childhood health problems. If an unusual pattern of birth defects and reproductive disorders emerged among families that had gotten their water from wells G and H, that would tend to support the theory that the cluster of leukemia cases was not simply a coincidence, a statistical fluke.
Zelen and a colleague undertook an ambitious study. They began collecting information on the outcome of every pregnancy and childbirth in Woburn between 1960 and 1982. Although the most reliable health data came from house-to-house interviews, that method was expensive and time-consuming. Zelen and his team at Harvard settled on a telephone survey, a task that volunteers in Woburn could be trained to do. By the end of the survey, the volunteers (they numbered several hundred, among them Anne Anderson and Donna Robbins) had made seven thousand phone calls and collected health data on more than five thousand children.
“The combined weight of evidence,”
wrote Zelen and his colleagues in the completed 153-page study, “strongly suggests that water from wells G and H is linked to a variety of adverse health effects.” The Harvard scientists found an increased rate of fetal and newborn deaths among pregnant women whose homes had gotten the largest quantities of the water. Among children in the Pine Street neighborhood, an area of high exposure, they found increased rates of allergies, skin afflictions such as eczema, and respiratory disorders—chronic bronchitis, asthma, and pneumonia. They also found a “significant excess” of congenital defects to the eye and ear, of kidney and urinary tract disorders, and of “environmental” birth defects, a grouping that included cleft palate, spina bifida, Down’s syndrome, and other chromosomal aberrations.
And finally, the study determined that there was indeed a positive link between exposure to the well water and the high rate of childhood leukemia. On average, children with leukemia received 21.2 percent of their annual water supply from the wells, compared with 9.5 percent for children without leukemia.
When Zelen announced these findings at Trinity Episcopal on that night in February, a hush fell over the crowd. Then someone said, in a voice audible to all, “Thank God for Marvin Zelen,” and the crowd broke into applause.
Some experts said that the Harvard Health Study was a good study. Dr. John Truman, who was in the audience at Trinity Episcopal, stated at his deposition a year later: “It’s a very well-done study. It clearly shows that ingestion—drinking of that water—is associated with a higher incidence of leukemia. Prior to it, I didn’t think childhood leukemia was caused by external factors, but now I think we have to consider external factors as a real possibility.”
Others, however, maintained that the study was seriously flawed. “This report is characterized by … an ignorance of epidemiological issues,” wrote one reviewer at the federal Centers for Disease Control. The American Industrial Health Council, an industry research group, denounced the study as biased, and even one of Zelen’s colleagues at Harvard stated, “It was an incredible mistake to use as interviewers people who have a self-interest in the outcome. To my mind, that just destroys the credibility of it right there.”
Whatever its true merits or failings, the study created an immediate public sensation. The headline on the front page of The Boston Globe—WOBURN LEUKEMIA LINKED TO TAINTED WATER—delighted Schlichtmann. As he saw it, the study confirmed to the world at large the legitimacy of the Woburn case, and it came with the imprimatur of Harvard upon it.
He wasn’t disturbed by the critics, but he also understood that as a piece of evidence the study had limitations. It had not addressed the biological causes of leukemia. It did not prove that the contaminated well water had caused the leukemias. It showed only that those children who drank water from Wells G and H were more likely to get leukemia than those who did not. Schlichtmann knew that he and Roisman would need more than this study to prove that TCE had caused leukemia in Jimmy Anderson and the other children.
3
The Harvard Health Study also provoked response from another quarter—from Cheeseman. He had planned, in his methodical way, a longrange strategy for the Woburn case. After his disappointment with Rule 11, his strategy called for him to wait until Schlichtmann made the next move. Months had passed, and then a year, and Schlichtmann had done nothing. By then, Cheeseman felt he might have reason to hope that Woburn had become an orphan.
But the Harvard study dashed that hope. The day after its release Cheeseman started to prepare his next move, a motion for summary judgment. It took him several months. He had been working on it—had almost finished it, in fact—when he had that chance encounter on Milk Street with Schlichtmann. He was glad he’d gotten the tour of Schlichtmann’s office and seen the Carney exhibits. If Woburn ever went to trial, Cheeseman told himself, at least he’d know what to expect.
Cheeseman’s summary judgment motion asked Judge Skinner to dismiss the Woburn case on the grounds that Schlichtmann would be unable to present any competent scientific evidence showing that TCE caused leukemia. Without such evidence, Cheeseman argued in his brief, the case, as a matter of law, could not go to a jury.
At first Cheeseman had figured his motion didn’t stand much of a chance. He’d regarded it mostly as a means of educating Judge Skinner to the real scientific issues in the case. But he’d found himself growing more optimistic as he worked on the motion. At the Harvard Medical School he visited the labs of two doctors, both world-renowned experts in the study of blood disorders. Between them, they had treated more than two thousand leukemia patients. One of the doctors, Dr. James Jandl, had just written a chapter on leukemic diseases for his latest book, Blood: Textbook of Hematology. Jandl had reviewed all of the medical and scientific literature on leukemogenesis and had found nothing at all to suggest that TCE played a role in the disease. He regarded the Woburn lawsuit with thinly veiled contempt.
The Environmental Protection Agency, it was true, had listed TCE as a “probable” carcinogen. But it had done so on the basis of animal tests—lab experiments in which mice, rats, and hamsters were fed enormous quantities of TCE over long periods. In one experiment, white mice had developed cancers of the lymph system, which manufactures white blood cells. But that particular strain of laboratory mouse, Jandl pointed out, was known to have a high incidence of “spontaneous” lymphosarcoma, and even the authors of the study had discounted the results. Furthermore, both Harvard doctors told Cheeseman they had little faith in extrapolating the results of animal studies to human beings. The life spans of animals, their chromosomal structures, and their metabolism were just too different.
Cheeseman called Facher to tell him of his work on summary judgment. He would have liked Facher to join the motion, but once again, as with Rule 11, Facher expressed no interest.
Cheeseman went on by himself. He asked the two doctors to sign lengthy affidavits stating that there existed no medically accepted evidence to support the opinion that TCE could cause leukemia in humans. In the absence of such evidence, Cheeseman wrote in his brief to Judge Skinner, Schlichtmann could not make out a prima facie case on causation. “Summary judgment should therefore be entered, dismissing the claims.”
Cheeseman felt confident the judge would schedule a hearing for oral argument in a motion of this importance, but he wanted to make certain of that. He ended his motion by saying, “Grace believes that oral argument with respect to this matter may be of assistance to the Court and therefore requests such argument, and estimates one hour will be necessary for both sides to be heard.”
The arrival of Cheeseman’s summary judgment motion—only a week after the Carney verdict—dampened Schlichtmann’s spirits considerably. It was an excellent motion, well argued and supported by two illustrious doctors. Schlichtmann had hoped to take a vacation after the Carney trial, but now he and Roisman had only ten days in which to respond. They could ask Cheeseman for a thirty-day extension, but even so, that still wouldn’t allow much time to reply to a motion of this caliber. Because of the shortness of time, they agreed that Schlichtmann would handle the reply largely by himself.
Schlichtmann called Cheeseman to ask for an extension. “It’s a very good motion,” he added. “I think you’ve got a chance of winning.”
By now, Cheeseman thought so too, although it surprised him to hear Schlichtmann admit it. He didn’t object to a thirty-day extension.
Schlichtmann went to work. He met with an immunologist from California who had been recommended by Roisman. The immunologist, Dr. Alan Levin, was experienced in legal matters. He had served as an expert witness many times before in cases involving toxic substances. He told Schlichtmann that he regarded lawsuits as a useful vehicle for social change. Schlichtmann found this attitude most unusual in a doctor. The medical community, Levin explained, was far too slow in recognizing the perils of environmental toxins. “Twenty years ago we were using X rays to see if our shoes fit, and zapping our gonads in the process,” Levin said. “If you talk to any intell
igent twenty-year-old today, he’d say nobody could be that stupid. Your children are going to ask you, ‘Did they really spray insecticides from airplanes?’ ”
Levin had a theory about the Woburn case. He believed that constant low-level exposure to TCE had damaged the immune systems of all the members of the Woburn families. “These chemicals always do something,” he told Schlichtmann. “Most of the time they don’t do enough damage for us to notice. You might lose a few cells, but you won’t notice it because we’ve got a lot of extra cells.” A healthy, vigilant immune system will attack and kill aberrant cells. But if the immune system has been damaged, as Levin speculated, a malignant cell stands a far greater chance of surviving and proliferating.
All this made sense to Schlichtmann. But was there an objective way of testing for this damage? Levin said he knew of an immunopathologist at Harvard whose lab specialized in monitoring the immune systems of patients after organ transplant surgery. But the tests would be expensive, warned Levin, and he could not be certain what they would show.
Schlichtmann decided to go ahead anyway. Levin called the pathologist, whose name was Dr. Robert Colvin, and explained his interest in a series of blood tests. The working hypothesis, Levin told Colvin, was that exposure to chemicals in the drinking water had caused abnormalities in the immune systems of all the family members, not just those who had gotten leukemia.
Colvin had heard about the Harvard Health Study and the Woburn cluster. An interesting subject, he said to Levin. He asked what tests Levin wanted. A lymphocyte count, replied Levin, And a series of T cell assays.
The lymphocyte count—a simple count of white blood cells—was easy enough. Any lab could do that. The T cell assays were somewhat more difficult. All T cells look alike, but they perform different functions, and distinguishing one from another was a tricky business. The helper T cell, for instance, identifies foreign organisms—viruses, bacteria, cancerous cells—and summons killer T cells, which are equipped with cytotoxic enzymes. Another type of T cell, the suppressor, stops the attack of the killer T cells when the invading organism has been conquered.
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