Take two

Arrogance cost Jan Schlichtmann the victory he sought in the Woburn toxic-waste trial 11 years ago. But never mind. Now Hollywood's A Civil Action is turning him into a winner.

by Dan Kennedy

The set is supposed to be off-limits, and I've had no luck persuading the publicist to give me a press pass. So, with a book of maps open in the passenger seat of my ancient Corolla, I set off in search of the former Metropolitan State Hospital, where John Travolta, Robert Duvall, et al. are filming some of the most crucial scenes of A Civil Action.

It's nearly sunset, and the abandoned, sprawling Waltham facility has a spooky feel. Ahead of me, I see a brick building with a tall smokestack. I get out, walk around. This is standing in for the tannery that allegedly polluted Woburn's drinking water. Here and there are piles of greenish hides that, if this were an actual tannery, would later be transformed into leather.

I move around to the other side. Stacks of wooden pallets. A few rusted-out 55-gallon barrels. An old green truck with "J. Riley Co. Leather Manufacturers" emblazoned on the doors. I look up; and there, on the front of the smokestack, are the giant letters J. RILEY CO., commanding these empty grounds the way the real tannery's smokestack once rose imposingly -- and malodorously -- over East Woburn.

In truth, Hollywood's version of the Riley tannery doesn't look much like the real thing, from its hillside setting (the actual tannery was located on a flat expanse bordering a swamp) to the smokestack lettering itself (the original said J.J. RILEY CO.; the film crew inexplicably dropped a J).

The biggest difference, though, lies not in any physical misrepresentations but rather in what the movie means for the career and reputation of the lawyer who is the central figure of A Civil Action: Jan Richard Schlichtmann, who represented eight Woburn families afflicted by deadly leukemia and other health problems in a landmark 1986 federal-court trial.

Back then, Schlichtmann's arrogance and courtroom bumbling may have cost his clients millions of dollars, and it left him bankrupt and nearly destroyed professionally.

Today, he lives in an oceanfront home in an exclusive section of Beverly. The gossip columns of the Boston Globe and the Boston Herald track his -- and Travolta's -- every move. The National Law Journal recently published a front-page puff piece. He got a reported $250,000 for his cooperation with the film. He lectures. He appears in fashion ads. People suffering from pollution-caused illnesses seek him out.

In short, Schlichtmann, now 46, has managed to achieve through the cult of celebrity what eluded him in the courtroom. Never mind that the 1995 book by Jonathan Harr on which the movie is based is unstinting in exposing Schlichtmann's flaws. Never mind that, if the buzz is to be believed, the movie will treat Schlichtmann with a complexity and nuance that are rare for Hollywood. None of that matters, because Travolta's a star, baby. And so, at long last, is Jan Schlichtmann.

"He's flying pretty high because of the movie business," says Harr. "Jan loves to be in the limelight."

My own perspective comes from having covered the case for the Woburn Daily Times Chronicle from 1983, not long after Schlichtmann filed the suit, through 1989, by which time the appeals process had pretty much played itself out. Though I give Schlichtmann enormous credit for his tenacity in pursuing a case that many observers thought would never make it into the courtroom, that overwhelming drive had a dark side that hurt everyone he touched -- including the families whose cause he championed.

The Woburn story begins in the spring of 1979, when it was discovered that the two wells that supplied East Woburn's drinking water were contaminated with industrial solvents. Within months, the contamination was linked to huge plumes of polluted ground water. When investigators later found that neighborhoods receiving most of their water from those two wells also suffered from an unusually high number of leukemia cases, Woburn became a national symbol of environmental tragedy.

Schlichtmann, then a young medical-malpractice lawyer, sued three companies that had been identified by the US Environmental Protection Agency as being responsible for polluting the wells:

UniFirst, an industrial dry-cleaning operation that used solvents.

W.R. Grace, which operated a factory that manufactured food-processing equipment, and which used solvents to clean machinery and to thin paint.

Beatrice Foods, which owned the Riley tannery and an adjacent undeveloped property that, Schlichtmann claimed, had been used as a chemical dumping ground.

Schlichtmann quickly settled out of court with UniFirst for $1.1 million, but none of his clients saw any of it. Instead, it was folded into his ongoing investigation of Grace and Beatrice -- an investigation that he hoped would result in a court award of hundreds of millions of dollars.

Yet Schlichtmann blew it before the trial could even begin.

Not long before jury selection got under way, Schlichtmann and Beatrice's lawyers began talking about a settlement. It would have made perfect sense. For one thing, though Schlichtmann loved to talk about his quest for justice, the case against Beatrice had nothing to do with justice. Beatrice had merely assumed the liability of the tannery's previous owner, John Riley, when it bought the facility a few months before the pollution was discovered. For another, Schlichtmann's case against the tannery was weak. He had no evidence that the tannery had ever used trichloroethylene, the principal chemical at issue in the trial; and, as would later become clear, he had no convincing theory as to how chemicals on tannery property could ever wind up in the wells. Finally, he would have to go up against Beatrice's extraordinarily able trial lawyer, Jerome Facher, chief of litigation at the Boston law firm of Hale and Dorr.

But Schlichtmann, visions of unimaginable riches dancing in his head, walked away from Beatrice's proposed $8 million settlement -- $1 million per family. And he reportedly never told his clients about it, apparently because he cut off negotiations before a firm offer could be placed on the table.

The trial itself was a comedy of errors, with the soft-spoken Facher undermining the credibility of Schlichtmann's witnesses so effectively that he not only destroyed Schlichtmann's case against Beatrice, but seriously damaged the case against Grace as well -- even though Grace employees and ex-employees admitted they had used trichloroethylene and dumped it out in back of the plant.

Schlichtmann's shortcomings were never more obvious than in the testimony of his poorly prepared lead witness, George Pinder, a nationally recognized hydrogeologist whose role was to explain how contaminated ground water beneath the Beatrice and Grace properties flowed into the drinking-water wells.

Pinder put forth a bizarre theory that the wells couldn't have drawn water from the heavily polluted Aberjona River, on whose banks they had been drilled, yet could readily pull water from the Beatrice property, on the other side of the river and some distance away. Facher easily -- and brutally -- exposed Pinder's testimony as erroneous. Harr, in A Civil Action, describes Pinder's mistake as an honest one, and I believe him. But at the time, Pinder came off as someone who had been caught concocting a tale to benefit his client. (Government tests later revealed that the wells pulled about 40 percent of their water from the river, but that a considerable quantity of toxins from beneath the Grace and Beatrice properties had nevertheless found their way into the wells.)

With Schlichtmann's case thus damaged, the denouement came with an air of inevitability. Following a 78-day trial, the jury exonerated Beatrice, but found that Grace had negligently polluted the wells. However, because the verdict showed that the jury failed to understand Judge Walter Jay Skinner's highly technical, confusingly worded written instructions, Skinner threw it out and ordered a new trial. Schlichtmann and Grace's lawyers instead reached a settlement for the same $8 million he presumably could have gotten from Beatrice before the trial even began. Schlichtmann included in the settlement five additional families he was representing separately in state court. After legal expenses, each family received an average of about $300,000.

Schlichtmann's partisans, including to some extent Jon Harr, point to the conduct of Judge Skinner and to misconduct on the part of John Riley's lawyer as the key elements in the trial's unsatisfactory conclusion. That's not how I saw it. Though Skinner clearly made a mistake with his instructions to the jury, and though he obviously lost patience with Schlichtmann from time to time, what happened in court had much to do with Schlichtmann and very little to do with Skinner.

And though it was later proved that Riley and his lawyer (but not Beatrice's lawyers) had improperly withheld from Schlichtmann reports about tests that had been conducted on the tannery property, those reports were of dubious value. That's because Skinner, in a post-trial decision, had ruled Pinder's testimony was so lacking in credibility that it couldn't be considered as evidence -- and that ruling was upheld by the appeals court. Since Schlichtmann, because of Pinder, had missed his one chance to show that ground water beneath the tannery property flowed into the wells, what good could it possibly have done him to show how the ground water had become polluted in the first place?

"The system worked just the way it was supposed to. Frankly, I don't think there's one moral lesson to be gained from this case," says Jerry Facher, now 72 and still working. Facher's been out to the set several times and has had dinner at the Four Seasons with Robert Duvall, who's portraying him in the movie. Facher also stood with Schlichtmann for a joint interview that will be included in a promotional film. Sparks reportedly flew, especially from Facher, who's never forgiven Schlichtmann for once having publicly (and spuriously) accused him of misconduct; but Facher says that "we managed to be civil."

Ironically, though most of the families whom Schlichtmann represented have remained close to him, Anne Anderson, the most public symbol of the Woburn tragedy, has not. Anderson, whose son Jimmy died of leukemia, fell out with Schlichtmann many years ago, accusing him of failing to keep the families fully informed and of pursuing the case primarily for his own aggrandizement.

"He's so enamored of himself that he forgot the cause," says Anderson. "It had to be his victory -- not ours, his. That's the ego in him. I'm just saying it took hold of him that way, and he lost sight of what it was all about. It was about the suffering of children."

Schlichtmann himself was not interviewed for this article. He declined to call even after I dropped by his house and handed a business card to his wife. Nor did he return a follow-up call to his Andover law office before deadline.

Back at Metropolitan State Hospital, four kids are walking a dog.

"Do you know when John's coming?" one of them asks.

"John who?" I reply; then the light goes on: "John Travolta?"

"Yeah."

Jon Harr recalls that Jerry Facher once called the movie "the fourth degree of separation." First there were the actual events; then the trial; then the book; and, soon, the film. It will be by far the most important element in establishing Jan Schlichtmann's public persona, Harr says: even though the book has been on bestseller lists for more than a year, it's still sold fewer than a million copies. By contrast, the filmmakers expect some 20 million people to see the movie.

"He's going to be captured on celluloid," says Harr. "And that will be the truth."

Except for those of us who know better.

For more information, Dan Kennedy maintains an archive of resources on the Woburn toxic-waste tragedy at http://www.shore.net/~dkennedy/woburn.html.

---

Dan Kennedy's work can be accessed from his Web site: http://www1.shore.net/~dkennedy/

---

Dan Kennedy can be reached at dkennedy[a]phx.com

---

Articles from July 24, 1997 & before can be accessed here

---