Colvin used a technique for marking T cells with reagents to differentiate them, and then he counted them with a laser. But he had never heard of using T cell assays to document exposure to chemicals. Even if the tests did show something unusual, there would be no way of telling what had caused the abnormality. The assays would serve no diagnostic purpose, he told Levin.
Levin thought that Colvin might find an abnormality in the ratios of one set of T cells to another. He could not predict what sort of abnormality, however. The assays would be somewhat of a fishing expedition, Levin allowed.
Colvin did not like fishing expeditions. His lab was in great demand. It was hard enough for him to find time to fulfill all his colleagues’ requests. Yet the idea intrigued him, and in the end he agreed to do the tests. “But,” he added, “I don’t think you’re going to find anything.”
Colvin suggested they start by testing just one family. The protocol was rigid: the blood could not be refrigerated, and it had to arrive in Colvin’s lab on the morning it was drawn. It would take a full day to do one run of blood in the machine, to agglutinate out the red cells, to fix and stain the white cells, and to perform the cell counts. Schlichtmann would have to make the arrangements to have the blood drawn and transported to the lab. It would cost about ten thousand dollars to have all the families tested. Schlichtmann readily agreed to the price. After all, he had spent more than that for a conference room table in his new office.
The Zonas were the first to have their blood drawn. When the tubes arrived at Colvin’s lab, a technician prepared the blood, marked the T cells with reagents, and ran the assays on the Spectrum 3 cytometer, the machine that counted cells by laser.
As Colvin began plotting the results on a graph, he knew immediately something was awry. To begin with, he saw far more white cells than he expected, a condition known as lymphocytosis, a sign of an immune system in a heightened state of alert. As he calculated the ratio of helper T cells to killer T cells, it became apparent there was another abnormality. The killer cells peaked sharply in all of the family members, particularly in two of the adolescent children. Colvin rarely saw such distinct peaks. He was not certain precisely what this meant. Perhaps their systems were reacting to a carcinogen, as Levin suspected. Whatever its significance, Colvin found it very unusual.
Colvin called Levin and described what he’d found. As a scientist, Colvin trusted results only if they could be replicated. “I think we ought to do the Zonas again, to make sure that this is something that persists,” Colvin said.
Before performing a second assay on the Zonas, Colvin tested the accuracy of the Spectrum 3 cytometer. He regularly sampled his own blood and that of people who worked in his lab, and compared those results with the normal values reported by other labs. If the normals corresponded, Colvin felt confident that the machine was functioning accurately.
But when Colvin tested the new control group this time, he inadvertently included a lab employee who’d had skin cancer—a melanoma—several years earlier. Colvin saw at once that the killer T cell values for this employee were far outside the normal range, and he eliminated that individual from the control population. But those readings had looked, he thought, strikingly like the results for the Zonas.
Schlichtmann meanwhile got Cheeseman to agree to yet another thirty-day extension. In the weeks that followed, all twenty-eight living members of the Woburn families had blood drawn. Colvin tested the blood of each individual twice. By the time he finished he saw a distinct pattern. “The data are intriguing,” he wrote in a note to Levin on June 15, “because they suggest that there is an increased number of cells in these patients that have a phenotype compatible with killer cells. The implication is that this might be a compensatory response to resist the effects of a carcinogen.”
Levin flew in from California to meet with Schlichtmann. “Basically,” explained Levin, “Colvin thinks that these people might have a carcinogen on board and they’re constantly fighting it. The kids who developed leukemia have lost the fight.”
By now, Colvin felt he was onto something interesting and he wanted to keep pursuing it. He suggested to Levin that he run another series of tests—functional assays, more complicated and more expensive than the first. He and Levin came up with the idea of testing a control group of fifty Woburn residents who had not been exposed to the well water and comparing those results with the eight families. A study of that scope would cost at least fifty thousand dollars.
Schlichtmann was excited by the initial results. He was eager to do the big study, and he wasn’t daunted by the cost, but it would take months to set up, and he had no time for that now. The deadline for his reply to the summary judgment motion was only days away.
Levin had also been searching the scientific literature for studies of TCE. He’d found an epidemiological study of three hundred and thirty dry-cleaning workers, an occupation in which both TCE and perc, the other chemical in the Woburn wells, were commonly used. The study reported significant increases of several different cancers, among them kidney, bladder, and cervix, and also found five leukemia victims where, statistically, only two had been expected. The author of the study considered the leukemia finding only marginally significant, however. And since the workers had been exposed to several chemicals—TCE, perc, and carbon tetrachloride—the study was unable to draw conclusions about the carcinogenic capacity of any single chemical.
Schlichtmann was beginning to feel slightly more confident. He still did not have any definitive medical evidence to show that TCE could cause leukemia in humans. But he did have the Harvard study; he had Colvin’s blood tests; and Levin had found two more animal studies, overlooked by Cheeseman’s Harvard doctors, suggesting that TCE had damaged blood-forming cells in the bone marrow. He and Levin worked on an affidavit in which Levin stated his belief, “to a reasonable medical certainty,” that the TCE in the wells had “caused or substantially contributed to serious illnesses, including immune dysfunction and leukemia” among the families.
Schlichtmann sent copies of his brief by messenger to Judge Skinner and to Cheeseman. It was a Friday afternoon in late July. The judge always spent the month of August at his summer house on the Maine coast. Schlichtmann felt certain the judge would not schedule oral argument until September.
Cheeseman was unimpressed by Schlichtmann’s brief. He began outlining what he would say at oral argument. His hopes were still high when, four days after Schlichtmann filed his brief, he got a call from Judge Skinner’s clerk. “The judge has ruled on summary judgment,” said the clerk. “You can pick up the order this afternoon.”
Cheeseman thought he hadn’t heard the clerk correctly. “The judge has ruled? What about oral argument?”
“There’s no hearing scheduled,” replied the clerk.
Cheeseman knew he’d lost again. The judge had flatly ignored his request for a hearing. Cheeseman went across the street to the courthouse. The judge’s ruling was terse and it stung. “Since the complex factual issue of causation is a subject of heated dispute in this case, summary judgment is clearly inappropriate. Defendant’s motion is DENIED.”
Cheeseman felt convinced that the specter of Rule 11 had come back to haunt him. “Skinner thinks I jerked him around on that one,” he would remember thinking. “He’s got a bit of a temper.”
These thoughts worried Cheeseman. He’d have to live with this judge for a long time yet.
4
Twice Schlichtmann had gone up against Cheeseman, one of Boston’s best practitioners in pretrial maneuvers, and he had come out a winner both times. The case was two and a half years old now, and so far he had done nothing but respond to Cheeseman’s attacks. Many years later Schlichtmann would say that if it had not been for Cheeseman, especially the Rule 11 motion, he might have followed Conway’s advice and let Woburn slip away. But at the time, it seemed to Schlichtmann as if somebody were trying to tell him that Woburn really was his destiny.
He was summoned to Judge Skinner�
�s chambers, along with Cheeseman and Facher, when the judge returned from his vacation in Maine. “I’m putting this case on a tight leash,” the judge told the lawyers in a stern voice. He gave them nine months, until May, to complete discovery. He expected the lawyers to be prepared to select a jury shortly after that.
Conway reminded Schlichtmann that they were still just local counsel. The case really belonged to Roisman and Trial Lawyers for Public Justice, even though Schlichtmann had paid all the bills so far and done most of the work on summary judgment. That one motion, Conway calculated, had cost the firm twenty-five thousand dollars. If nothing else, it was by now perfectly clear that Woburn would require a true fortune to prepare. Levin recommended bringing in experts in half a dozen disciplines—neurology, cardiology, toxicology, internal medicine, among others—to perform complete medical workups on all twenty-eight plaintiffs. And then there was Colvin’s big blood study with fifty controls. Where was Trial Lawyers for Public Justice? wondered Conway. Since Roisman and his organization stood to collect two thirds of any fee that resulted from the case, they should at least be risking some of their own money.
That fall, Schlichtmann flew out to Milwaukee, where Trial Lawyers for Public Justice was having its annual board meeting. He laid out for the directors his plan for preparing the case, and he estimated that it would cost at least three hundred thousand dollars, maybe as much as half a million if it went to trial.
All of the board members were seasoned trial lawyers, older than Schlichtmann, and with many million-dollar verdicts to their credit. At the head of the table sat Ted Warshafsky, a Milwaukee lawyer who’d made his name suing drug companies. He was an excitable man in his late fifties, given to occasional explosive and profane outbursts. On the theory that a pet would have a calming effect, he had acquired a large boxer. The dog accompanied him everywhere. It took an instant dislike to Schlichtmann. When Warshafsky heard half a million dollars, he flew into an apoplectic rage, his face crimson as he shouted at Schlichtmann. Immediately the boxer’s ears went up. It leaped to its feet and put its paws on the table, a menacing eye on Schlichtmann, who half rose from his chair, prepared to bolt from the room.
Warshafsky got the dog under control. Still muttering at the far end of the table, he let Sal Liccardo, a California lawyer famous for his lawsuits against car manufacturers, take up where he’d left off. “When I had the Ford case,” Liccardo said angrily, “I only spent fifty thousand dollars on it, and that was a huge case. I never heard of anybody spending three hundred thousand on a case. It’s insane.”
Schlichtmann, of course, had spent nearly that much on the Carney case, but this didn’t seem like the time to bring that up. “It’s the only way I know how to do this case,” he told the directors, keeping a wary eye on the boxer. “But I’m happy to have you take it over. It’s all yours.”
That evening, Schlichtmann and Roisman went out for a drink. “The board’s made a decision,” Roisman said. “There can only be one captain of the ship. Since you’ve put so much time into the case already, we’ll let you run with it.”
Schlichtmann returned to Boston and told Conway the news. Trial Lawyers for Public Justice would still take 12 percent of any settlement or judgment as a fee for its early work, but all the strategy, and also all the risks, belonged to them now, and them alone.
5
Schlichtmann ran into Cheeseman again that fall, after returning from Milwaukee. He had just traded in his Porsche 911 for a new one, the top-of-the-line model 928. It was low-slung and it gleamed like a jewel. He was getting out of the car when he saw Cheeseman.
“Yours?” asked Cheeseman.
Schlichtmann nodded. “I just bought it.”
“Business must be good.”
Schlichtmann smiled and shrugged. “The Carney case,” he said simply.
Cheeseman stroked the flank of the car, peered in the cockpit, and then asked if he could sit in it. The car had only a few hundred miles on the odometer. Taking the driver’s seat, Cheeseman examined the controls. He dreamed about owning one of these. He asked about engine displacement, gear ratios, and torque.
Schlichtmann confessed he knew nothing about those things.
“This car is wasted on you,” said Cheeseman, laughing.
By now, Cheeseman had found out some sobering news about Grace’s Woburn operation. A search of the plant’s records revealed that it had used at least four 55-gallon drums of TCE, considerably more than the single drum that Grace had reported to the Environmental Protection Agency. Cheeseman also learned that the plant manager had ordered workers to bury six drums that had contained toxic waste solvents, including TCE, in a trench behind the plant more than a decade ago. The EPA had ordered Grace to dig those drums up. A photographer from the Woburn Daily Times had attended the exhumation. The paper had published a huge front-page photograph of a crane lifting a rusted, partially crushed drum from the trench.
Cheeseman realized now that almost any jury would probably find his client guilty of contaminating the city wells, although he emphatically did not believe that such low levels of TCE had caused any harm. Yet he could imagine Schlichtmann calling the Woburn mothers to the witness stand. He could see them weeping, just as he’d seen that young woman weep on the witness stand fifteen years ago, when he’d been a law student. More than ever, it looked as if this case was becoming the sort of public relations nightmare that every big company feared. Cheeseman had no trouble imagining a huge verdict—tens of millions of dollars—against his client.
He had already lost two motions, but he wasn’t out of motions yet. The EPA’s preliminary report had implicated a third company north of the city wells. This company, a thriving family-run business named Unifirst, supplied work clothes to industries from Florida to Maine, and it used large quantities of tetrachloroethylene to clean those clothes. The company had admitted to an accidental spill of the solvent, but it claimed that the spill had been contained. Cheeseman didn’t believe this, and he suspected there had been other spills, too. One way of shielding his own client from a huge verdict would be to drag Unifirst into the case and make it a defendant, a joint “tortfeasor,” along with Grace and Beatrice.
Cheeseman prepared a motion to implead Unifirst. It was, on the face of it, a purely defensive maneuver, but Cheeseman also foresaw one other benefit—it would make life more difficult for Schlichtmann. He would have to deal with three separate defendants, each with its own big corporate law firm, and that would surely tax his resources.
As Cheeseman drew up the motion, he considered calling Facher to inform him, but Facher had refused to help with the earlier motions. So Cheeseman didn’t bother to call the old lawyer, and that would turn out to be a costly mistake.
Judge Skinner approved Cheeseman’s Unifirst motion, the first by Cheeseman the judge had approved. For his part, Schlichtmann had no objection to Unifirst’s presence in the case. He might have sued the company himself had he not considered it to be a minor player. The city wells had contained only small quantities of tetrachloroethylene, and Unifirst had never used TCE, the main culprit in the case. As for making his task more complicated, Schlichtmann laughed in delight when he received Cheeseman’s motion. “Listen to this,” he said to Conway, reading aloud: “ ‘Unifirst breached its duty to plaintiffs by carrying out the manufacture, use, control and disposal of the chemicals in reckless disregard for the health, safety and economic interests of plaintiffs.’ ”
Schlichtmann laughed again. “My God, look at what Cheeseman’s saying! It’s exactly what we said about Grace!”
The next morning, Schlichtmann called the lawyer at Goodwin, Proctor & Hoar who represented Unifirst. “I see you got an invitation to the party,” Schlichtmann said.
“It’s very odd that you should call,” replied the lawyer. “I was just thinking about calling you.”
“When can we get together?” said Schlichtmann.
“How about right now?”
At their first meeting the Unifir
st lawyer told Schlichtmann that he hoped they could work out an amicable settlement that would result in his client being dismissed from the case. Money would change hands, of course, but as he saw it, his client’s real adversary was Cheeseman and W. R. Grace. Schlichtmann, after all, had not been the one to sue Unifirst.
Facher wasn’t laughing. Up until this motion, Facher had rather liked Cheeseman, although he thought Cheeseman had shown bad judgment with the Rule 11 motion, and poor execution when he’d let Schlichtmann outmaneuver him at that hearing. Rule 11 had been bad enough, thought Facher, but this impleader of Unifirst was a more serious blunder. Unifirst would create havoc in the courtroom. The company would never cooperate in a joint defense, not after being dragged into the case by Cheeseman. They’d start pointing fingers. In no time, all three companies would be fighting among themselves about who had contaminated the wells. Facher had spoken briefly with Cheeseman about this before, and he thought they had agreed that such tactics would only help Schlichtmann.
Facher called up Cheeseman. The conversation, as Facher later remembered it, began with his saying, “What the hell is the point of this? You’re claiming Unifirst dumped this crap and poisoned these people. It’s the same thing Schlichtmann’s saying. You can always blame Unifirst, even if they’re not there. In fact, it’s better that way because they can’t respond.”
Cheeseman said Unifirst would come to its senses. The company might be angry now, but it would soon realize that it was in its best interest to cooperate.
A Civil Action Page 16