In the Shadow of Woburn

By Paul Kix | Boston Magazine |

This redemption benefited from fortuitous timing. Jonathan Harr’s A Civil Action came out in 1995, and became a bestseller. When the story was optioned, Disney paid Schlichtmann $250,000 for the right to portray him in the film. (After John Travolta accepted the role, Schlichtmann said, "John Travolta made more money playing me than I ever did playing me.") The book was soon required reading in law schools across the country, and Schlichtmann began lecturing about the case. The fame, and the money accompanying it, allowed the Schlichtmanns to put a down payment on their Beverly home, now valued at $1.9 million.

But what the book really allowed Schlichtmann to do was put his epiphany into practice. At the center of civil law is the need to resolve differences. And yet the system seeks resolution through conflict: one side suing the other, saying everything the opposition claims is a lie. This does not engender goodwill, let alone resolution. Schlichtmann thought to have the sides meet before a lawsuit was filed. They could then understand each other’s differences, rather than simply try to undermine them. Without the threat of a lawsuit, Schlichtmann thought, the supposed parties would be more interested in resolution.

One of the first cases to test Schlichtmann’s theory was Toms River, which was Woburn writ large: a cancer cluster in a bucolic New Jersey town where, between 1979 and 1995, 90 children developed various forms of the disease, a rate that was 74 percent higher than in other towns its size. Many of the children died. The fault appeared to lie with the nearby dye manufacturing plant Ciba-Geigy. Or Union Carbide, which had dumped waste on the site. Or the local water company, which had mishandled the contaminated water.

Linda Gillick, whose son had cancer, organized the aching families. She’d read A Civil Action, and picked Schlichtmann and a firm from Philadelphia to represent the families.

Schlichtmann had to first convince his legal team and his clients of his plan. Mark Cuker, his co-counsel, knew the case would be tough. Woburn was now a precedent—notorious both for its failings and its pioneering spirit—and it had dealt with contaminants in parts per billion. Toms River was parts per trillion. Cuker called the Union Carbide attorney very early on, when Cuker’s firm began its own discovery of Toms River. "You better watch yourself," the attorney said, "or you’ll end up like that guy from A Civil Action." Cuker didn’t tell him that that guy was now his co-counsel.

But the words stuck with Cuker, and so he was willing to try Schlichtmann’s plan: mediation before litigation. The families weren’t as convinced. "I actually wanted my day in court," Gillick says. Yet as Schlichtmann sat one evening with eight of the 69 families affected, Gillick scanned the room. Some of these people can’t afford to buy milk, she thought. They need the money now. She ultimately changed her position, and the families decided to follow Schlichtmann’s novel method for settlement.

It took four years—four years, and scientific experts with competing claims similar to those in Woburn. But this time they shared their expertise in conference rooms, over PowerPoint presentations. The process was not as adversarial. The lawyers weren’t looking to one-up each other. At the end, in 2002, the attorneys reached a nondisclosed settlement. All 69 families agreed to it. The judge approved it.

So, it took four years. But Woburn had taken nine. The difference was, after those four years, Schlichtmann’s clients were happy, and he was sane. Through its methods, the case pushed the limits of mediation just as much as Woburn had expanded the reach of environmental law. Schlichtmann was a pioneer once more. "Jan and I thought we might be nominated for the Nobel Peace Prize," Cuker says, with a laugh.