First day of Pretrial conference, Judge Skinner announces intent to divide the trial into separate phases, the first phase requiring demonstration of the defendants contamination of the Wells.
Judge Skinner provides jurors a wordy questionnaire regarding the timing of contamination and specific contaminants that affected wells G and H. Jurors reach verdict: Beatrice acquitted, Grace found potentially liable for contamination of Wells. Phase 1 of the trial ends. The next phase, demonstrating cause of injury by the defendant Grace is scheduled to begin in September.
Second, Skinner ruled Beatrice could not be held to the strict-liability standard because the plaintiffs' evidence did not demonstrate "a purposeful placing of material on the acre property.
Third, he ruled the jury would not be allowed to consider any evidence of dumping at the 15 acres before August 27, That was when Riley received a letter from Denis Maher, a Woburn well driller, stating the level of Riley's industrial well on the 15 acres was dropping, probably because of the action of nearby municipal wells.
Skinner said that, prior to receiving the letter, there was no way that Riley could have foreseen that groundwater on his property flowed toward wells G and H, because the property was downstream from the wells and on the opposite side of the Aberjona River. Unfortunately for the plaintiffs, most of the evidence Schlichtmann had presented concerning dumping at the 15 acres dated from the early and mids. A year later, in a brief filed with the US Court of Appeals for the First Circuit, Schlichtmann and Nesson said Skinner's ruling "cut the heart out" of their case against Beatrice and "left but a remnant of the plaintiffs' case to go to the jury.
Although Facher's and Keating's strategy was to rely principally on cross-examination of Schlichtmann's witnesses, they each presented witnesses of their own following Skinner's rulings on their motions for a directed verdict.
Facher presented three witnesses, all of whom were ineffective. Fortunately for him, Pinder had already virtually guaranteed that the families would not win their case against Beatrice. The first witness, Dr. Olin C. He said that any PCE dumped at the Beatrice site would break down into vinyl chloride in no more than six years -- meaning that the property must have become contaminated at least several years after wells G and H were shut down.
Schlichtmann offered a perfunctory cross-examination, but Braids's testimony was so esoteric that it didn't appear to influence the jury one way or the other. Beatrice's next witness was Thomas Mernin, Woburn's city engineer. As one of the top officials responsible for water in the city, Mernin said the water was tested regularly for bacteria and minerals.
He added he believed the water was safe and both he and state officials assumed groundwater beneath the Beatrice property would drain into the Aberjona River, downstream from the wells. Therefore, Mernin testified, officials never considered the Beatrice property to be a potential threat to the wells. But on cross-examination, Schlichtmann pointed out that city and state officials were concerned enough about the May barrel-dumping incident -- 3, feet north of the wells -- to test the well water immediately.
Schlichtmann suggested that, if Beatrice or Grace had informed city and state agencies there were chemicals on their properties, tests of the wells would have been ordered and the contaminants might have been found sooner. To counter Pinder's testimony, Koch stated that when wells G and H were turned on, the water in the Aberjona River formed a ridge that acted as a barrier.
In other words, the river water was higher than the surrounding groundwater, rather than lower, as Pinder had testified. Groundwater west of the ridge -- including that beneath the Beatrice property -- flowed from east to west, away from the wells, when the wells were pumping, Koch said.
On cross-examination, Schlichtmann quickly showed that Koch was talking only about groundwater pressure gradients in that portion of the water table nearest the surface. Further down, near bedrock, those gradients reversed, according to USGS pumping data.
Schlichtmann said that allowed groundwater to flow from west to east, beneath the river and into the wells. Koch angrily -- but ineptly -- defended his theory. Later on, Grace's own hydrogeological witness would rebut Koch's testimony. Keating presented a more impressive case than Facher had, which reflected the fact that he was pursuing a different strategy. Keating and his associates were content to let Facher take the lead in bashing Schlichtmann's witnesses on cross-examination.
But Keating, in making his own case, presented an alternate theory of how wells G and H became contaminated. On June 16 Stephen P. Maslansky, president of Geo Environmental Consultants Inc. Maslansky was retained by Grace to study the extent of contamination at the Cryovac site. Maslansky testified that between five and gallons of organic chemicals, including TCE, were present in groundwater beneath the property, and that the chemicals were flowing off the site, to the southwest -- in the direction of wells G and H -- at the rate of one to five gallons a year.
He added that virtually no PCE could be detected on the property. Under cross-examination, Maslansky told Schlichtmann he couldn't say whether the chemicals that left the site had arrived at the wells because he hadn't been hired to answer that question.
Keating next presented documents and witnesses in an attempt to prove that the Aberjona valley had been heavily polluted for decades by a number of industries north -- upstream -- of the wells.
Alfred DeFeo, an engineer who studied the river as part of a master's degree project at Tufts University, testified that, in , National Polychemical Company later renamed Olin Chemical Company , in Wilmington, was regularly dumping into a swamp a malodorous, highly acidic, reddish-orange waste product with floating "sludgy black scum. Other sources of contamination identified in the study, he added, were E. Although there is a family connection, E. Whitney, Olin Chemical, Woburn Barrel, and the city dump were continuing to discharge waste into the ditch.
Robert Cady, a supervising sanitary engineer with the Massachusetts Division of Water Pollution Control, studied sources of pollution to the river in and conducted follow-up studies through Under questioning by attorney Sandra Lynch, Keating's principal assistant, Cady identified two additional sources of pollution to the river -- Anderson Foreign Motors, of Woburn, and the Industri-Plex hazardous-waste site, in North Woburn.
The Industri-Plex property, fifth on the EPA's national priority cleanup list, is contaminated with lead, arsenic, and chromium lagoons and by gas-emitting hide piles.
Groundwater at the site is polluted with benzene and toluene. Benzene is a proven leukemia-causing agent. Although EPA officials believe there is no connection between the Industri-Plex site and the East Woburn aquifer, Cady said that during the s waste may have flowed into Mishawum Lake which has since been drained and from there made its way into Hall's Brook.
The testimony by Maslansky and the engineers who had studied the Aberjona valley set the stage for Keating's most important witness -- Dr. John H. Guswa, vice-president of Geo Trans, of Boxborough, a hydrogeologist retained by Grace to counter Pinder's testimony.
On his first day on the witness stand, June 23, Guswa directly contradicted Pinder. Guswa said the nature of glacial rock deposits in East Woburn made it impossible for chemicals at the Cryovac plant to have contaminated wells G and H.
The rocky deposits, crushed beneath the weight of a 6,foot-high glacier during the Ice Age, are so impermeable that contaminated groundwater moves through it very slowly, he said. The next day, Guswa went after the weakest part of Pinder's testimony by asserting that 50 percent of the water in wells G and H would be drawn directly from the Aberjona River after several months of continuous pumping.
When Judge Skinner pointed out that only well G was used during much of the year period at issue, Guswa replied that would change his calculations by no more than a few weeks. Guswa said the layer of peat at the bottom of the river, which Pinder testified acted as a barrier, was "probably more permeable than the silty sand that lies beneath the river. The jurors had no way of objectively deciding whether Pinder or Guswa was right. But in October , as has already been mentioned, the EPA announced that the USGS believed 40 percent of the water in the wells was drawn directly from the river, basically confirming Guswa's findings.
Guswa pointed to several possible sources of contamination to the wells: 1 industrial contaminants dumped into a drainage ditch that flowed into the Aberjona River, as described by previous witnesses; 2 groundwater flowing parallel to the river, which could have been polluted by the same industries that polluted the river water; 3 flooding of the sewer system, which he said had occurred on several occasions; 4 severe flooding of the Aberjona River that occurred in January , which could have washed chemicals from drainage ditches and lagoons into the wells; 5 sources of contaminated groundwater near the wells, such as the former Hemingway Transportation property, directly north of the Beatrice site, and several other industries in the area.
Under cross-examination by Schlichtmann, Guswa readily agreed that groundwater west of the Aberjona River would flow east, toward the wells, when the wells were pumping. That directly contradicted the testimony of Ellis Koch, Beatrice's hydrogeologist, who said the river would act as a groundwater divide. But Guswa added he could not say specifically whether groundwater beneath the Beatrice property would flow into wells G and H. He explained that, since his client was Grace, he did not take sufficient measurements to show whether groundwater at the Beatrice site would flow northeast toward wells G and H or southeast toward the industrial well at the southern end of the property.
By using Guswa to discredit Koch, Schlichtmann had drawn blood, and he followed it up with his most effective cross-examination of the trial.
Taking rainfall measurements and Guswa's calculations of soil permeability and groundwater flow, Schlichtmann asserted that Guswa's permeability figure must be two to three times too low -- otherwise, Schlichtmann said, the Cryovac property would lie under 10 feet of water.
Guswa replied that Schlichtmann had made a mistake by assuming that all the groundwater would be contained in layers of soil above the bedrock. Some of it, Guswa explained, was actually in the bedrock.
Schlichtmann retorted that, if that were true, contaminated water could flow along cracks in the bedrock much faster than it could through the compacted soil above the bedrock. Guswa disagreed, but Schlichtmann appeared to have gotten the better of that exchange. Schlichtmann also presented data that he said showed the river was not a likely source of contamination to wells G and H.
He said studies showed TCE concentrations were greater in deeper portions of the aquifer than they were in shallow portions, which would be impossible if the river were the source. He added that TCE concentrations were greater near wells G and H than they were farther to the north, where the industries Guswa and others had identified were located. Guswa was visibly angered by Schlichtmann's line of questioning.
He told the lawyer that he was oversimplifying the problem, and that there were clearly numerous sources of contamination in the valley. Even using solvents to clean guns at a nearby rifle range or pouring TCE into septic systems a common practice during the s in a neighborhood between the Cryovac property and the wells could have polluted the aquifer, he said. Although Guswa performed far better on the stand than his counterpart, Pinder, Schlichtmann was able to cast at least some doubt on his testimony.
That may have been a key to the plaintiffs winning a partial victory against Grace. On July 1 the six jurors and five alternates one of the jurors had dropped out halfway through the testimony, and an alternate was promoted to take her place finally were given the opportunity to view the properties that lawyers, scientists and witnesses had been discussing for 71 days.
The jury departed from the federal courthouse by bus on that hot, sunny morning, accompanied by Judge Skinner and lawyers for the three parties. At Keating's insistence, the two reporters who were covering the trial on a daily basis were not allowed to travel with the jurors.
The reporters followed -- and at one point lost -- the jurors as they were bused around the area. The day was uneventful. The jurors looked at what remained of wells G and H, the acre Beatrice property, the Riley tannery property, the Cryovac manufacturing plant, and several sites north of the wells, including the Olin Chemical plant, in Wilmington. The biggest controversy was an attempt by Schlichtmann to persuade Skinner to require the jurors to wear protective gear on the 15 acres.
Skinner refused, and Jerome Facher and Neil Jacobs, the Beatrice attorneys, grumbled that Schlichtmann was trying to instill fear in the minds of the jurors. Schlichtmann and his colleagues accused Grace officials of playing their own psychological games. The Cryovac property was lavishly landscaped, and the jurors were shown employees' vegetable gardens behind the factory. Grace's lawyers said the land had merely been restored to the appearance it had had before the extensive digging that had taken place in order to test soil and groundwater.
During the tour, an action that Mayor John W. Rabbitt had taken several months earlier came back to haunt the plaintiffs. With national media attention focusing on Woburn because of the trial, Rabbitt ordered city workers to knock down the well houses at wells G and H to dramatize the fact that the city no longer used contaminated drinking water. But Skinner had ruled that in order for Beatrice to be held negligent, the plaintiffs would have to show that the owners of the acre property should have foreseen that dumping chemicals on the ground could pollute the wells.
Central to deciding that issue was whether the well houses could be seen from the 15 acres. Because of Rabbitt's action, that question could not be answered. Judge Skinner's courtroom was steamy and packed the morning of July 14, when the lawyers were scheduled to make their closing arguments. Facher, Keating, and Schlichtmann -- in that order -- said nothing that was new to the jurors, but they took seriously their final chance to put their own spin on what had happened during the preceding five months.
For instance, Grace attorney Michael Keating compared George Pinder's testimony on the Aberjona River to "a bad piece of meat at the top of a can of beef stew -- you are under no obligation to fish around any further. Schlichtmann ended his argument on a literary note. Some months earlier, State Representative Nicholas A.
Paleologos, a Woburn Democrat and a part-time theatrical producer, had shown Schlichtmann a year-old play by Henrik Ibsen called Enemy of the People , about a fictional tannery that pollutes a village's water supply.
Schlichtmann read from that play: "Expediency turns justice and morality upside down until life here just isn't worth living. If the eloquence of Facher, Keating, and Schlichtmann had been somewhat entertaining for the jurors, Judge Skinner's charge, delivered the next day, came like a slap in the face. Because the judge gave them a task that several jurors later said was impossible.
Skinner told the jurors that, after extensive negotiations with the lawyers, he had put together a questionnaire they would be required to answer. Rather than simply finding whether Beatrice and Grace had contaminated wells G and H, the jurors were to decide whether specific chemicals had been dumped, when the chemicals had been dumped, and when they contaminated the wells. The jurors trudged off to begin their deliberations on Tuesday, July 15, with orders to deliberate from 9 a.
They were not sequestered, although Skinner reminded them of their obligation to not read or or talk about the case with anyone. The deliberations, as observers later learned, broke down almost immediately. On the eighth day, Thursday, July 24, the three-man, three-woman jury reported it could not reach a unanimous verdict on the first of the four questions. Skinner told the jurors he would not declare a mistrial and instructed them to consult with their fellow jurors and to take their opinions into account, as long as doing so would not violate their own beliefs.
A short time later the foreman, Quincy resident William Vogel, a Nynex supervisor, asked to be excused because of pending coronary-bypass surgery. Skinner said he would grant Vogel's request if the jury had not reached a verdict or was not close to one by Monday, July The deadlock was apparently broken quickly, because the jurors walked into the courtroom Monday morning to announce they had reached a verdict.
To the surprise of virtually no one, the jurors dismissed the case against Beatrice, answering "no" as to whether the defendant was responsible for any of the four chemicals mentioned in the first question of the interrogatory polluting the wells. The jurors' answer regarding Grace was more complicated. They answered "not determined" to the second question, which concerned when Grace first began making a "substantial contribution" to the contamination of wells G and H.
The third question, whether Grace had acted negligently, was answered in the affirmative. And the fourth question, which asked when Grace first began making a "substantial contribution" to the contamination as a result of its negligence, was answered "September " for TCE and "not determined" for PCE. While Facher was delighted, lawyers for Grace and for the families were in a quandary.
Schlichtmann told reporters he was "bitterly disappointed," and well he might have been -- three of the eight leukemia cases, including two that ended in death, were diagnosed before September Keating, speaking for Grace, said he was "not necessarily surprised but a little disappointed.
Perhaps the biggest problem was that the lawyers had to prepare for a second phase of the trial without really knowing what the jury was saying. The jury said it didn't know when water contaminated by Grace first reached wells G and H, but it did know when water contaminated by Grace's negligence first reached the wells -- September In complicated lawsuits, it is not uncommon for the legal process to span several years from submission of the original complaint to completion of the trial.
The lawsuit filed by the eight families in Woburn extended from , past the trial held in , through appeals that lasted into Many of the key issues related to the Woburn Toxic Trial are shown on the time table shown below. Your Account. Related Links Search all resource collections.
Massachusetts closes Woburn wells G and H because of measured contamination of organic solvents is well above U. Public Health Standards. Bruce Young begins organizing local families that have one or more family members diagnosed with leukemia. 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. The defense, however, took one glance at the settlement that day and walked out of the room.
After Woburn, Schlichtmann blamed his problems with the case on Judge Skinner. And not just by Judge Skinner, either. In Schlichtmann appealed his evidentiary findings all the way to the U. Supreme Court. Schlichtmann said he was done with the law. A friend loaned him money so that he could escape to Hawaii, where he began selling energy-efficient light bulbs.
Not surprisingly, Schlichtmann views his own story in terms of extreme, dichotomous themes. He sensed that the rest of his life would offer nothing but pain and failure. He hiked a lot, thinking that might help. He enjoyed hiking. It had rained that afternoon, and the leaves around him were a surrealist green, heavy now with water, spilling droplets one at a time. Or rather, he thought that he should be thinking this.
And so he cried right there along the bank. He was a lawyer at heart. For all the pain, this was what he enjoyed doing—even if it caused more pain. But he was a different lawyer.
Schlichtmann felt like a sucker. He felt lost. That is, until he had the good sense to marry Claudia Barragan. He can go on like that all day. The way he tells it, Claudia was a woman of unending forbearance and grace, gently healing all the chaotic and ultimately destructive elements in the house of Schlichtmann.
A lot of the time, Schlichtmann pissed her off. By suddenly moving to Hawaii with little warning and no regard for the four years the couple had spent together. Or by, after they later got back together in Massachusetts, suddenly moving his things out again while she was at the hair salon. Pages: 1 2.
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