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A Civil Action ()

Westchester Women's Book Club

This interesting, but badly flawed, book provides an in-depth look at one "civil action"; a lawsuit by citizens of Woburn, MA against W.R. Grace and Beatrice Foods, which alleged that TCE (trichloroethylene) dumping at sites owned by the companies contaminated two town wells and caused leukemia in local children.

The entire nation has spent the past decade gripped by one blockbuster case after another (OJ, the Nanny, Monicagate) and having read hundreds of cases in Law School & dozens of legal thrillers & watched numerous trials on Court TV, I can confidently state that the legal system is a unique generator of human drama. There are always good guys and bad guys, victims & perpetrators, oddball
lawyers, brilliant jurists, arcane legal machinations, big bucks prizes or maybe a death sentence, and so on. So what A Civil Action cried out for was something to separate it from the pack. Why should this one case interest us?  What lessons can it teach?

Sadly, Jonathan Harr does not step up to the plate & accept this challenge. He has provided an excellent narrative of the events in a complex case, filled with human drama, but he conspicuously fails to put it all in context. Here are some of the issues he should have analyzed:

1) The Big Enchilada: should the case ever have been allowed to go forward in the first place?

Let me just start by saying that the behavior of the corporations in Woburn was reprehensible & they should be subject to criminal & civil prosecution for dumping & for attempting to cover up their dumping. However, the case that Schlichtmann & Co. brought alleged that the dumping had specifically caused leukemia.

As Dan Kennedy, a journalist who has written extensively about the case & been quite sympathetic to the plaintiffs, said in a 1998 story for the Boston Phoenix: "The scientific state of the art was (and still is) probably too primitive to allow him to prove, by a preponderance of the evidence, that Beatrice and Grace were at least partly responsible for contaminating Wells G and H, and that the contaminants, in turn, caused leukemia and other illnesses."

Or, as renowned quack-science debunker Michael Fumento stated in Forbes: "In 1982, when Schlichtmann sued Grace, information on the solvent TCE was relatively sketchy. Now we
have the results of numerous rodent studies in which the animals were dosed with thousands of times the amount of chemical that humans might receive in their drinking water. Of the 35 rodent studies in the Carcinogenic Potency Database developed by U.C. Berkeley biologist Lois Swirsky Gold, none has found a TCE-leukemia connection."

In light of the impossibility of establishing a link between TCE and the leukemia cases, it seems obvious that Judge Skinner should have granted the Rule 11 motion that Beatrice Foods brought & should have sanctioned Schlichtmann for bringing a frivolous suit.

This case was simply not the appropriate vehicle for punishing Grace & Beatrice & vindicating justice.

2) Is a jury capable of dealing with the technical issues raised in such a case & is it appropriate to have a jury deal with the emotional issues raised?

The section of the book on the jury deliberations was especially troubling.  The level of confusion displayed throughout the trial by even expert witnesses raises the question whether anyone actually understood what was going on, but the jury clearly had no idea what they were supposed to be doing & ended up rendering a thoroughly confusing verdict in the first stage of the trial.  If civil cases this complex are to be brought to trial, which they surely will be, it seems that it would make more sense to have them be bench trials or to appoint Special Masters with the technical background to decide the fact issues.

Luckily we were spared the spectacle of the second portion of the trial, where Schlichtmann would have paraded "victims" before the jury in an attempt to win a big money judgment. Of course, it is a horrible thing when any child develops leukemia. And if there's a local polluter, it's tempting to want to make them pay, but it may not, & in this case would not, be in the best interests of justice to do so.

3) How can we tolerate a legal system which allows the contemptible behavior of virtually every character involved in this trial?

To give just a few examples, & assuming Harr's portrayals are accurate:

Beyond the issue of their continual time-wasting objections and unwarranted motions, it seems clear that the defense parties & attorneys hid evidence from Schlichtmann during discovery.

Schlichtmann appears to have been completely irresponsible in ending pre-trial settlement negotiations with Beatrice Foods.

The judge appears to have allowed his personal feelings about the genuinely annoying Schlichtmann to influence how he handled motions and objections.

Anne Anderson, and a couple other plaintiffs, appear to have been petty, greedy & ungrateful in challenging Schlichtmann's billing after the settlement.

Then there's the attorney who sought a referral fee & Trial Lawyers for Public Justice which sought 800k after bailing from the case.

& people ask me why I don't choose to practice law?

Finally, I have one major problem with the manner in which Harr produced his story. At the end of the book he reveals to the reader that he had virtually continual access to Schlichtmann & company during the trial & only afterward assembled the defense's side. As an initial matter, it seems to me that he
should have told us this at the outset. And the reason for this brings up the larger issue; in a case that was as emotionally compelling as this one was, dead kids, bankrupt plaintiff's lawyers, etc.., is it even reasonable to believe that Harr's account is impartial. Shouldn't we assume that someone who was that
close to the plaintiff's side throughout would develop some emotional investment in their case?

Ultimately, while I enjoyed the book, I found it's lack of analysis a major flaw and I think that it's greatest value lies in it's exposure of the pathologies that plague the American legal system.


Grade: (C+)