In the Shadow of Woburn

By Paul Kix | Boston Magazine |

This sort of change does not come easily, though. In the Woburn case, the opposing counsel, Jerome Facher, a senior partner at the Boston law firm Hale and Dorr and a lecturer at Harvard Law School, convinced Judge Walter Skinner to break the immensely complicated trial into two parts. Officially, it was Skinner’s decision; such was the case’s complexity, he reasoned. But the bifurcation benefited Facher and the defense attorneys for W. R. Grace in two ways.

First, it gave the defense teams two trials, which put an added burden of proof on Schlichtmann. The first phase of the trial would test the scientific validity of the plaintiffs’ claims. Were the tannery and W. R. Grace responsible for the wells’ contamination? If the jury believed that, the case would move on to the next question: Were the chemicals in the water responsible for giving the children cancer?

Second, delaying the medical portion meant Schlichtmann couldn’t put the Woburn families on the stand until the trial’s latter phase. Their tragic losses were his most compelling pieces of evidence. And now, if he wasn’t successful in the first phase, the families wouldn’t take the stand at all.

Facher worked to ensure that. The trial opened in March 1986 and lasted until late July—79 days of testimony, evidence, and Facher’s objections and ruthless cross-examinations. Already Facher had succeeded in taking a case about dying children and turning it into one of soil samples and river flow, with academics making competing, esoteric claims. But during Schlichtmann’s closing argument, Facher also broke the gentlemen’s agreement among the lawyers, and objected throughout. Schlichtmann had stayed up all night writing and rewriting and muttering into memory his speech. Facher’s objections threw him off. He lost focus, kept losing his place. What was clear and convincing the night before became like so much in this trial: muddied by Jerry Facher’s deft hands.

The jury found the tannery that Facher represented not guilty. The W. R. Grace chemical company, however, was guilty. But with little money and almost no chance of success in a second phase of the trial, Schlichtmann’s firm settled with W. R. Grace for $8 million. This infuriated lead plaintiff Anne Anderson, who had just wanted an apology. Now, because of a stipulation in the settlement agreement, Grace would admit no wrongdoing. She came to believe that Schlichtmann took the case only to advance his career and his bottom line. How else to explain the firm’s $2.2 million in legal fees—40 percent of the settlement, after expenses?

The low point for Schlichtmann was not his lead plaintiff calling him greedy, though. It wasn’t, after the threat of a lawsuit, repaying Anderson and another family $80,000 in legal expenses that an accountant believed to be frivolous. It wasn’t, after all the other lawyers had been paid, making only $30,000 from the case, which wasn’t enough ultimately to pay his debtors. It wasn’t seeing his Porsche repossessed, or even his furniture, too, and living like a squatter, making his bed at night with two chair cushions the repo men hadn’t taken. No, the low point, he realizes now, came when he found that Facher’s firm seemed to have withheld evidence, a revelation that essentially allowed him to retry the case. Only in hindsight would Schlichtmann see that another shot at Anderson would prove as toxic as the Woburn water itself.

In appealing the decision in favor of the tannery, Facher’s client, a lawyer working with Schlichtmann came across a report that showed the company had dumped waste down a nearby hill. The waste then sifted its way into the groundwater, where it looked a lot like a contaminant that one of Schlichtmann’s experts found there years later. The report was the keystone of Schlichtmann’s argument.

He took the charge of withholding evidence, ultimately, to the U.S. Court of Appeals. In December 1988, more than two years after the initial verdict, the court agreed with Schlichtmann. The case went back to Judge Skinner, who was instructed to issue a legally binding report of his findings for the Court of Appeals.

Schlichtmann produced new witnesses: people who worked at the tannery and saw the dumping. He would also reveal that the tannery’s in-house attorney, Mary Ryan, had withheld the report. Ryan alleged in an affidavit that Facher’s firm knew about the report, too, and knowingly withheld it. Meanwhile, John J. Riley, the tannery’s former owner, had admitted lying under oath during trial.

Skinner’s hearings lasted from January through October in 1989, longer than the trial itself. It took him two months more to issue his findings. Schlichtmann walked to the courthouse with Bill Crowley that December morning, jumpy with nerves. Skinner wrote that Ryan had, in fact, concealed the report. Yet, using logic that Schlichtmann still finds circular, Skinner said Schlichtmann had brought a frivolous case to trial because he worked without all the evidence available: namely, the report that had been kept from him. The case was over.

Michael Keating, an attorney at Foley Hoag, part of the legal team that represented W. R. Grace, says Schlichtmann’s fatal flaw is his inability to separate a cause from the case before him. "When you are so imbued with a cause," Keating says, "you forget what you’re really representing. I felt that the clients didn’t have the priority in his mind that they should have had." What Keating is referring to is a settlement Schlichtmann had offered the defense before the Woburn trial: a $175 million deal, one that would serve as a political milestone and, Schlichtmann surmised, deter any other corporation that thought of acting similarly. The defense, however, took one glance at the settlement that day and walked out of the room. But what Schlichtmann didn’t know then, according to one defense attorney from Anderson, was that he could have had a huge victory that afternoon. The defense had been ready to hand the eight blue-collar families from Woburn perhaps as much as $40 million.