A Civil Action

by Jonathan Harr

  Schlichtmann read that not just some but all of the seventeen individuals tested by Cohen experienced irregular heartbeats. The results, Cohen told Schlichtmann, had surprised him—“quite striking” were his exact words. Schlichtmann asked Cohen to review Conibear’s physical exams and the index of past medical complaints that she had assembled. “That, in addition to my own findings, really stunned me,” Cohen would testify later at his deposition. “I was very impressed with the consistency of these findings and the similarity of complaints in this particular cohort of patients.”

  Compared with the arrhythmias and the leukemias, and even with the rashes, many of the recurring health problems that the Woburn families had reported to their family doctors over the years were vague and hard to quantify. Headaches, fatigue, and depression, for example, could be caused by any number of things. They might simply be manifestations of stress or of psychological problems, without any underlying biological cause. But the scientific literature on TCE showed that the solvent had a potent effect on the central nervous system. It acted as a depressant, and it could have caused those sorts of symptoms. Conibear believed that the frequency of those symptoms pointed to neurological damage.

  So Schlichtmann called a prominent Boston neurologist—Dr. Robert G. Feldman, the chairman of the Department of Neurology at the Boston University School of Medicine. Schlichtmann had met Feldman during the Carney case. He had asked Feldman to review Carney’s file, and the neurologist had gone on to become Schlichtmann’s star expert witness in that case.

  Feldman was skeptical. He told Schlichtmann that he could give the families the same battery of neurological tests that he gave to workers who had been exposed to TCE. Cohen’s results, Feldman admitted, were impressive. But even so, Feldman thought that the concentrations of TCE in the Woburn water were very small. The neurological tests were time-consuming and expensive—a thousand dollars for each person—and they might not show any nerve damage.

  To Schlichtmann it seemed that everything was falling neatly into place, including Feldman’s skepticism. Cohen had been skeptical, too, and then he’d discovered even more arrhythmias than Conibear. Schlichtmann wasn’t worried. He had come to believe, at this point, that he had already discovered the truth of this case. Now it was just a matter of everyone else catching up with him, bringing along the details of proof that he would need in a courtroom. He arranged for the neurological examinations of the Woburn families.

  Feldman had written several articles on the neurological effects of TCE, including a landmark case study published in 1970 in the journal Neurology. Alone in the conference room one night, Schlichtmann read all of Feldman’s papers. The 1970 case study told the story of a twenty-six-year-old worker who had attempted to fix a leak in a large industrial degreasing machine filled with TCE. The worker had worn a faulty gas mask. After an hour and a half of exposure to the fumes, the man had emerged feeling slightly giddy. Twelve hours later he was suffering waves of nausea and vomiting, blurred vision, numbness of his face, mouth, and pharynx. On presentation, Feldman saw a lethargic, confused individual who had difficulty speaking and could not follow even the simplest commands.

  Feldman’s article cited two dozen other studies of exposure to TCE. Schlichtmann read one early account that told of a British shipworker who had swabbed the boilers of a frigate with TCE. This worker had emerged after four hours with a severe headache and complaining of dizziness. The next day, he was overwhelmed by nausea, unable to cough, swallow, or speak. The area around his mouth and nose was completely numb. His heart rate was greatly elevated. Until his death from a respiratory infection several weeks after his exposure, he was unable to retain any food. An autopsy revealed extensive damage to the fifth cranial nerve, also known as the trigeminal nerve. The myelin sheath, the fatty layer of tissue that insulates nerve fibers, had dissolved into “irregular globules.” The TCE had literally degreased the man’s nerve fibers.

  As for his own patient, Feldman could do little to treat the symptoms, but he could measure the severity of the damage. He began with a series of nerve conduction studies, computing the speed and amplitude with which the worker’s nerve fibers conducted electrical impulses. Feldman found that the young man’s nerves functioned at the same rate as someone suffering from early-stage multiple sclerosis. Feldman also gave the man a wide range of psychological tests designed to measure memory and motor control. Over the next sixteen years, he followed his patient’s progress closely. The numbness of the worker’s face abated slowly during the first year, and nerve-conduction velocities gradually increased, but they never returned to normal. And the worker had lingering neuropsychological problems. Although he scored in the “bright-normal” range when tested for verbal intelligence, his short-term memory, his attention span, and his ability to think sequentially were all impaired. Psychological tests indicated a lingering depression, which Feldman attributed to the physical damage of his patient’s central nervous system. “The affective disorder observed in this patient after 16 years is particularly disturbing,” wrote Feldman in March 1985, in his second report on the worker. “[M]easurements indicate the likelihood of permanent neurological deficit following a single acute exposure to trichloroethylene.”

  Over a period of weeks, the Woburn families came to University Hospital to be tested by Feldman and his team of doctors. They sniffed vials of a dark liquid—it was coffee—and were asked to identify it, a test of olfaction, of the first cranial nerve. They stuck out their tongues on command and wagged them back and forth, a test of the twelfth cranial nerve. They listened to tuning forks. They had lights shined in their eyes. They had their skins pricked with a pin and then stroked with wool. They interpreted inkblots and tried to memorize long sequences of numbers. They took the Milner Facial Recognition test, the Wisconsin Card Sorting test, the Santa Anna Form Board test, the Albert Famous Faces test, the Benton Visual Retention test. In the electromyography lab, a darkened room where they reclined on a contoured chair, electrodes were attached to their faces, legs, ankles, and wrists. One of Feldman’s assistants administered mild electrical stimuli and measured the amplitude, latency, and speed of their reactions.

  The results of this entire battery of tests were not as dramatic as Feldman had seen in cases of industrial exposure. But in his judgment, they were not normal. Most of the Woburn people had problems with short-term memory and motor control. Many showed particular difficulty in tasks involving visual and spatial organization. And all but four ranked high on the scale for depression. Feldman deemed several of them to be “severely” depressed.

  The most telling results came from the “blink reflex” tests, which measure in milliseconds how quickly a subject’s eyelids react to an electrical stimulus. This test measures the functioning of the trigeminal nerve, the nerve that TCE seems to affect most directly. Feldman found that the blink reflex of every family member, of both children and adults, was either slower than normal or fell barely within the normal range. Feldman was impressed not so much by the degree of individual impairment but by the uniformity of the group. He told Schlichtmann that the results were “highly significant,” that the odds of a group of twenty or more people all testing out at the slow end of normal were “a million to one.”

  The doctor who had actually administered the blink reflex tests, an expert in electromyography, had known nothing about the history of the Woburn families. This doctor had been concerned about the number of slow blink reflexes she was seeing among this group. She had wondered about the accuracy of her TECA-4 machine. To test the machine, she’d rounded up seven technicians from the hospital corridors. Their blink reflexes had all been textbook-normal.

  Schlichtmann heard this story for the first time during that doctor’s deposition. Feldman had not thought it important enough to mention, but it delighted Schlichtmann. He planned to use it during trial, to let a jury know that these tests had truly been impartial.

  Almost every medical expert Schlichtmann talked to knew ano
ther expert that Schlichtmann might want to talk to. In this way, he heard of a biochemist named Beverly Paigen who had investigated the health problems of people living near Love Canal. Paigen worked out of a lab at Children’s Hospital in Oakland, California, and Schlichtmann flew out to see her on one of his medical reconnaissance trips. She told him the history of a case she’d investigated in the small town of Gray, Maine: twenty-three households, their tap water contaminated for five years by small amounts of TCE and perc—it sounded a lot like east Woburn. In the first year, said Paigen, the residents had complained of rashes and burning eyes after showering. In the second year, rashes again and also headaches. By the third year, dizziness, fainting, nausea, and abdominal pains. Among the twenty-three households, five women had become pregnant during the years the wells were contaminated. Two of those women had miscarriages and two others had lost their babies within four months of birth. Only one child had survived.

  “Any leukemias?” asked Schlichtmann.

  “No,” said Paigen. “You can’t expect to find cancer in small populations. Leukemia is too rare a disease. You need large populations—thousands of people—to look for cancer.”

  Like Schlichtmann’s Woburn experts, Paigen had initially thought the concentration of solvents in the Gray well water too small to cause dramatic health problems. But the problems were undeniably there. Paigen and another scientist, Robert Harris of Princeton University, developed a hypothesis. They proposed testing the air in a bathroom while the shower was running. They reasoned that TCE, which was highly volatile, would turn into a cloud of vapor in the hot, running water.

  And indeed, the test showed that as water flowed out of the shower head at the rate of six gallons a minute, TCE did vaporize, accumulating in the confined space of a bathroom at concentrations two to three times higher than in the tap water.

  This seemed to explain why Richard Toomey and several other Woburn people had complained of a burning sensation in their eyes while bathing. Schlichtmann had always assumed that the primary route of exposure had come from drinking the water. That would have meant that the families had consumed only the TCE contained in a quart or so of water each day. But every ten-minute shower they had taken would release to the air most of the TCE contained in sixty gallons of water, which would have found its way inside their bodies through inhalation.

  Another expert, a toxicologist at the University of California at Berkeley, confirmed this finding. The toxicologist also told Schlichtmann about another important route of exposure—absorption through the skin. A new study in the American Journal of Public Health, explained the toxicologist, demonstrated that the amount of TCE absorbed during bathing, when warm water dilated the pores of the skin, equaled or surpassed the dose one would get from drinking contaminated water. Absorption occurred most readily where the skin was sensitive—the inner thighs, the underarms—and was further increased if one had a sunburn, a cut, or a rash. And rashes had been common among the children of east Woburn.

  The families would have gotten dosed with TCE in all three ways—by drinking the water, by breathing the vapor, and by absorbing the molecules. All this, it seemed, might account for the apparent discrepancy between the severity of their symptoms and the low levels of exposure. Those levels of exposure, it turned out, were not so low after all.

  Schlichtmann learned around this time that the problem of TCE in drinking water was not limited to Woburn and Gray, Maine. In a document published by the U.S. Public Health Service, he read that “between 9 and 34 percent of the water supply sources in the United States may be contaminated with trichloroethylene.” Even more astounding, the same document estimated that if a population of ten million people were to breathe air containing one part per million of TCE over a lifetime, as many as 93,000 would be “at risk of developing cancer.” Schlichtmann vowed never again to take a drink of regular tap water.

  He had come a long way. The case, he told himself, did not depend on the leukemia claim alone. He now had compelling evidence of chronic solvent poisoning. And even if the scientific evidence that TCE caused leukemia was weak, there could be no doubt now that exposure to the contaminated water had exacerbated the leukemias. The disease would not have run the same course. He could argue that more of the children would have survived if Grace and Beatrice had not contaminated the wells.

  2

  Schlichtmann’s medical experts now numbered twelve, enough doctors to staff a small but elite hospital. But most of these men and women did not know each other or the work each had done on the Woburn case. Schlichtmann decided to bring them all together for a conference, a round-table discussion. He rented the Grand Ballroom at the Ritz-Carlton and paid the plane fare for the experts from California, Chicago, and Washington, D.C. He paid for their hotel rooms at the Ritz, their meals and, of course, their time. Most of them billed around two hundred dollars an hour. The conference began with dinner and drinks on a Friday evening and continued throughout Saturday. It went so well that Schlichtmann arranged for a second one, out in Chicago.

  Not long after that meeting, Conway discovered that Saul Cohen, the cardiologist, had charged a hundred dollars an hour for the night he’d spent sleeping at the Chicago Hilton. This was only half of Cohen’s regular hourly rate, his sleeping rate, as it were. It infuriated Conway, but Schlichtmann said calmly, “No, he’s worth it.”

  The steadily mounting bills alarmed Conway, but they didn’t surprise him. He had known that Schlichtmann would spend every cent the firm had on Woburn, and then borrow more. Three years ago, Conway had predicted that the case would become a “black hole.” Now, eight months into discovery, that prediction seemed on the verge of coming true. The nerve-conduction studies, the cardiology tests, physical exams, lab reports, and toxicology data jammed the filing cabinets. The large copying machine outside the war room ran from dawn until dusk, churning out copies of the experts’ reports and the families’ medical records. Deposition transcripts and files and reports seemed to multiply overnight and spread like a living organism, like a fungus, covering the conference-room table and spilling onto the floor and into the reception area.

  From Woburn, where Schlichtmann had a team of engineers, geologists, and hydrogeologists digging holes and taking soil samples, came more reports. This fieldwork was crucial to the case—Schlichtmann had to prove that the chemicals from Grace and Beatrice had actually gotten to the wells—and it was very expensive. The engineers had drilled thirty new monitoring wells around the Aberjona marsh to plot the underground flow of contaminants. They had set off small explosives—seismic refraction devices—to map the bedrock contours of the area. They were combing every square foot of the Grace and Beatrice properties, followed by a video crew and a photographer whom Schlichtmann had hired to record every detail of their search. The videos alone would cost $19,021, a pittance compared with the estimated cost—more than a quarter of a million dollars—of the geological investigation.

  Even the small items, such as the aerial photographs of east Woburn, along with an expert to interpret them, added up to almost fifteen thousand dollars. And as the piles of deposition transcripts mounted, so, of course, did the costs. The stenographers charged $3.50 a page for “expedited” overnight delivery, which meant that Schlichtmann had to pay, for instance, $1,256 just for his daylong interrogation of Tom Barbas. And there were many lengthy depositions of expert witnesses yet to come.

  By the fall of 1985 Schlichtmann, Conway & Crowley had spent almost a million dollars on the Woburn case. The costs could only increase as the trial date, now scheduled for February, five months away, drew closer. The firm needed more money. Schlichtmann would have to visit their banker. He never went to see the banker alone. He always took Conway and James Gordon, their financial adviser, along with him.

  Gordon was a wizard with figures. The fingers of his right hand would fly over the keys of his calculator like a maestro playing a piano, ending in a delicate looping flourish as he tapped the “Total” key. Gordon had
a special talent for calculating the future value of a sum of money, as if he’d been born with compound-interest tables in his head.

  Schlichtmann had met Gordon soon after he had moved down to Boston from Newburyport. He had just won the Eaton case and he was about to settle the Piper Arrow case for almost a million dollars. But his financial affairs were in terrible disarray. Gordon and his partner, Mark Phillips, had recently started their own business, called the Economic Planning Group. They had opened an office on Newbury Street, next to the Ritz-Carlton, in the fashionable Back Bay section of Boston. They had sat in their new office, waiting for wealthy Bostonians in need of estate planning to arrive. They found that they had a lot of time on their hands. Then Schlichtmann showed up, asking them to straighten out his finances. He’d just bought his first Porsche. He took Gordon to the window and pointed down to Newbury Street at his new car. Gordon saw that it was double-parked. A meter maid stood next to it, writing out a ticket.

  Two months later, Schlichtmann called on Gordon and Phillips again. An insurance company had offered him a complicated settlement, to be paid out over forty years, which they said was worth $1.5 million. It sounded like a lot, but Schlichtmann was wary. He didn’t have a good head for figures. He showed the offer to Gordon, who told him that the insurance company was actually putting up only $330,000; the rest was interest earned on an annuity.

  “He understands money,” Schlichtmann often said of Gordon. “It’s just something he was born with.”