Copyright © 1998 by the Boston Phoenix, Inc. All rights reserved.
 

A Civil Action: The Real Story

Hollywood is set to release its version of how toxic dumping devastated Woburn. Dan Kennedy, who's covered the story for 15 years, looks beyond the hype.

By Dan Kennedy

By outward appearances, Anne Anderson is ready for Christmas. In one corner of her living room is a brightly decorated tree. Scattered throughout are figurines that might have gathered for the finale of A Christmas Carol. And attached to the side of a bookcase is a jolly drawing of Santa Claus. "Merry Christmas to all of the Andersons," reads the childish scrawl over Santa's head.

Anderson does the best she can to keep the Christmas alive for her two children and six grandchildren. But it's just about all she can bear.

The drawing of Santa Claus, you see, was the handiwork of her third and youngest child, Jimmy. He was diagnosed with leukemia in 1972, when he was three and a half. His illness was caused, she believes, by contaminated drinking water, poisoned by corporations that have never truly been brought to justice. In January 1981, just a few weeks after Christmas, Jimmy died. Years of painful, debilitating treatments, relapses, and crises were over. He was 12.

"Jimmy was a big boy, ten and a half pounds when he was born," Anderson says proudly, showing me a portrait of him as a toddler, before he got sick. Her kids are tall, and she figures Jimmy would've been the tallest, maybe six-foot-six, if it hadn't been for the chemo. If he hadn't died.

This particular Christmas, Anne Anderson's name is associated with the glamour of Hollywood. A Civil Action, the fictionalized movie about the lawsuit she and seven other Woburn families brought against the three companies they believed had polluted their water, opens in New York and Los Angeles on Christmas Day; the national rollout is on January 8. Disney's hype machine has been turned up to 10. The billboards and television ads are inescapable. A gala premiere will be held at Boston's Wang Theatre on January 6, with money to be raised for the Jimmy Fund and the Ronald McDonald House. John Travolta and Robert Duvall will be there. So will Kathleen Quinlan, who plays Anderson in the movie. So, in all likelihood, will Anderson, steeling herself against her ambivalence about the film and the best-selling book by Jonathan Harr on which it was based. And against the decidedly mixed feelings she has for the man Travolta is portraying: Jan Schlichtmann, the ego-driven lawyer who doggedly -- and unsuccessfully -- sought justice, riches, and fame on the families' behalf and, ultimately, at their expense.

There is, in fact, nothing glamorous about Anderson's life, or about the lives of the seven other families involved in the suit. Anderson continues to live in the small home where her children grew up, in a modest, middle-class section of Woburn. Now 62, she appears about 10 years younger. She dresses well and keeps a neat home; she still bristles at the description of her house, in Harr's book, as "dilapidated." She has friends, family, and a job she likes, running the law library at Woburn District Court. But the sadness is never far below the surface.

"I can't let myself go and really enjoy it," Anderson says of the buzz over the film. "The movie people have treated us with great sensitivity. But I can't get past the reason that all this happened, and it's still painful. I come home from some of these events and I'm just spent, because it costs me so much."

 

I FIRST MET Anderson some 15 years ago, when I was a reporter for Woburn's Daily Times Chronicle. The city's toxic-waste tragedy had been a huge story since 1979, when state investigators discovered that the two municipal wells that supplied drinking water to Anderson's neighborhood were contaminated with industrial solvents. For years, the ongoing story was my main assignment: the various investigations by state and federal environmental agencies; the results of a study by the Harvard School of Public Health that showed a clear association between the contaminated water and Woburn's elevated leukemia rate; and an audacious proposal by a young lawyer named Jan Schlichtmann to make the companies presumed responsible for the contamination pay for their actions.

Until I left the Times Chronicle, in 1989, the city's toxic-waste legacy remained with me, and was intertwined with tragedies in my own life in ways that resonated with and magnified what I was watching unfold. My father died of lung cancer in 1985. My mother was diagnosed with cancer in 1986, the year the trial took place; she died two years later, just as the appeals process was heating up.

A Civil Action -- both the book and the movie -- is a lawyers' story. From Perry Mason to The Verdict, the public has always loved a good lawyers' story, and the unfolding, and unraveling, of Anderson et al. v. W.R. Grace et al. is more compelling than most. Harr's 1995 book is a first-rate nonfiction account, fully deserving of the accolades that have come its way. I haven't seen the movie, but I've read what is purported to be the final version of the script; and though the screenwriters take considerable liberties with the facts, what they have come up with strikes me as high-toned entertainment with a social conscience, which is no small accomplishment.

But perhaps because I knew the people involved, perhaps because cancer was an ever-present apparition in my own life, it always seemed to me that Anne Anderson's story was considerably more important than Jan Schlichtmann's. She unearthed the mystery behind her son's illness and forced the nation to take notice. Eventually, investigators would report that the 28 leukemia cases diagnosed in Woburn between 1964 and the mid-1980s were four times more than should be expected for a community of its size. Anderson's tenacity -- and that of other Woburn activists -- led to a new understanding of the environment, to new laws, to stricter standards of accountability for companies that handle toxic chemicals. Schlichtmann's story, by contrast, is one of failure.

 

NO ONE DESERVES more blame for what happened in Woburn than its city government. A middle- and lower-middle-class community 12 miles north of Boston, Woburn is one of the birthplaces of the Industrial Revolution. A toxic brew of chemicals has been floating through the Aberjona River valley, which bisects Woburn, for more than 150 years. City officials first started talking about drilling wells in East Woburn in the 1950s to alleviate the chronic shortage of drinking water. In 1958 they hired an outside consultant to conduct an engineering study. The conclusion: the groundwater was far too heavily polluted even to consider letting people drink it. Yet in 1964 the city committed the original sin in this multigenerational tragedy. Well G was installed on the east bank of the Aberjona. Three years later, Well H was built a few hundred feet to the north.

It was this highly contaminated water that Jimmy Anderson was exposed to in utero, was bathed in, drank, and played in. His mother always had her doubts -- it smelled bad, it tasted bad, it corroded the pipes in her and her then-husband, Charlie's, home. Those doubts grew into fear and then into conviction after Jimmy was diagnosed with leukemia, in 1972, and she began meeting other Woburn families when she'd bring Jimmy to Boston for treatment.

But Anderson's belief that the water had made her son sick was mainly a private one until May 1979, when several barrels of chemicals were found dumped near the Aberjona River. State investigators tested Wells G and H. They found no evidence that the contents of the barrels had made their way into the wells. What they did find, though, was even worse: drinking water contaminated with trichloroethylene (TCE), tetrachloroethylene (also known as perchloroethylene, or PCE), and other industrial solvents. The wells were closed and have not been used since.

The discovery provided Anne Anderson with the resolve she needed to act. But few wanted to listen. She fought an unresponsive City Hall. She fought whispers that she was just a hysterical mother, that she was an outsider (she'd grown up in Somerville), that she didn't know what she was talking about. She even fought Charlie, who believed she was chasing a chimera. He asked their minister, the Reverend Bruce Young, rector of Trinity Episcopal Church, to intervene -- to talk to her, to try to bring her some sense of peace over what had befallen their family.

"He said to me, 'She won't let go of it, Bruce,' " recalls Young, who'll retire from Trinity next June. Young says he tried to reason with her -- and agreed to help her when she got the idea of holding a meeting at the church in September 1979 for families who'd been affected by leukemia and other cancers. The response was overwhelming, far larger than he had expected. A map was put together, with colored pins marking homes where someone had been diagnosed with leukemia; a cluster became visible in East Woburn. And instead of trying to talk her out of her theory, Young became an advocate, knocking on doors and demanding answers where she couldn't.

"It became clear to me that we had a real bias here against a mother and a woman," Young says. "I was a priest. I brought to it a clerical collar. Whenever I called various agencies and offices, I would introduce myself as 'Father Young.' It was helpful in getting through to them. Maybe they said, 'It's that crazy priest again,' but on the surface it was at least an entrée."

The third key player in those early days was a newspaper reporter -- Charlie Ryan, who covered the city for the Daily Times Chronicle. He'd reported on the discovery of the barrels, on the contamination of the wells, and on the unearthing of an enormous toxic-waste site in North Woburn called the Industri-Plex that, as it turned out, was unrelated to the problems of Wells G and H. But Ryan's most important story came in December 1979, on a development he thought he'd been beaten on. The state's Department of Public Health was about to release the results of a study on Woburn's leukemia rate, and Ryan arranged to interview DPH officials. That morning, the Boston Herald American published a front-page story reporting that the leukemia rate was within the normal range for a city of Woburn's size.

"I was a little pissed," Ryan remembers, "but I went in there anyway." He sat down with a DPH statistician, who explained the results to him: essentially, the DPH had taken the number of leukemia cases and divided it by the total population of Woburn, based on the 1970 census. Ryan stopped him. 1970? The population of Woburn, Ryan knew, had fallen from 40,000 to around 36,000. Ryan asked a simple question: What would happen if the lower figure were used? The statistician recalculated the numbers -- and, all of a sudden, the number of leukemia cases appeared to be "statistically significant," the bland-sounding phrase used to describe what was obviously a very real problem.

"That story drastically changed everything," says Ryan, who got out of journalism a few years ago and now helps run the computers for Essex County Newspapers. "To that point, everyone had considered Anne Anderson to be just a hysterical mom. I think without that story, the Centers for Disease Control, the Environmental Protection Agency, and the state never would have pushed that hard."

Ryan's personal story is itself emblematic of Woburn and how it has changed from an insular, working-class city into a bedroom community with a well-educated middle class. Ryan was part of a large Catholic family; his late father had been head of the Woburn Redevelopment Authority and, on the surface at least, a well-entrenched member of the city's parochial political culture. But Ryan, influenced by the Vietnam War and the protest movements of the 1960s, traveled to India as a Peace Corps volunteer after graduating from Boston College, and married an Indian woman.

Thus, when career and family drew him back, he brought with him both an intimate familiarity with his hometown and a broader world-view. In one of his first stories, he made it clear that he would not practice journalism-as-usual: he reported on how local public-housing officials discriminated against the city's burgeoning Latino community. Not long after he began reporting on the toxic-waste story, Ryan recalls, an old friend of his father's told him, "Your father would be turning over in his grave if he knew what you were doing to his city." Ryan's response: "That means you didn't know my father very well."

 

MOVIEGOERS CAN BE excused if they come away from A Civil Action thinking that no one cared about the Anderson family's, and Woburn's, problems before Jan Schlichtmann swooped onto the scene. In fact, Schlichtmann arrived near the end, not the beginning, of the story. Woburn and Love Canal were already synonymous with toxic waste. For years, elected officials and federal investigators had tromped through the city to express concern and to promise change. Although Schlichtmann decided to sue three industrial giants -- W.R. Grace & Company, Beatrice Foods Company, and the UniFirst Corporation -- in part because he knew they had deep pockets, he also singled them out because that's where the government's investigation was leading.

Grace owned a plant that manufactured food-packaging equipment under the Cryovac brand name, and used TCE to clean tools and thin paint. Employees testified during the trial that they disposed of used TCE by dumping barrels and chemicals out back. Beatrice purchased the John J. Riley Company tannery -- and Riley's legal liability -- just a few months before the wells were shut down. A 15-acre undeveloped property adjacent to and owned by the tannery was heavily contaminated, and Schlichtmann tried -- with little success -- to show that the tannery itself (and thus Beatrice) was responsible. UniFirst operated a dry-cleaning plant that used PCE; it settled out of court for $1.05 million before the trial began.

The sad truth is that the 1986 trial, in federal district court, may never have been Schlichtmann's to win. 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. By way of analogy, consider the difficulty lawyers have in suing tobacco companies on behalf of clients who have contracted lung cancer -- a cause-and-effect relationship that is far better established than the one linking TCE and leukemia. Then, too, the adversarial system of justice is peculiarly ill-suited to deciding a case as complex as this one (see "Civil Reforms," below).

Still, there's no doubt that Schlichtmann and his principal witness, renowned Princeton hydrogeologist George Pinder, made things worse -- much worse.

First, as Harr recounts in his book, Schlichtmann walked away from pretrial negotiations just as it appeared that Beatrice was getting ready to offer $8 million. Not only was Schlichtmann's case against Beatrice weaker than the one against Grace, but Beatrice was represented by Hale and Dorr's formidable chief of litigation, Jerome Facher -- an avuncular-seeming courtroom assassin who would humiliate Schlichtmann's witnesses and exploit Schlichtmann's own inexperience. Keeping Facher out of the courtroom would have made Schlichtmann's job immeasurably easier.

Second, Pinder completely botched his explanation of how contaminated groundwater beneath the 15-acre tannery property flowed into Wells G and H -- a failure to which Harr's book gives insufficient weight, and that the movie script dramatizes without explaining. To oversimplify, Pinder testified that even though groundwater beneath the 15 acres readily moved under the Aberjona River and then into the wells, he claimed that the river itself contributed no water to the wells. It was bad enough that Facher showed Pinder to be wrong (the US Geological Survey later confirmed that the wells drew about half their water from the river). Even worse, it appeared to me -- and, it seemed clear, to Judge Walter Jay Skinner as well -- that Pinder had deliberately slanted his testimony to knock down a defense theory that the river, not Beatrice and Grace, had polluted the wells. Pinder's testimony was so damaging that several years later, when Schlichtmann argued on appeal that Beatrice's and Riley's lawyers improperly withheld evidence of possible chemical dumping on the tannery property, Skinner ruled that it was irrelevant. Skinner reasoned -- logically -- that Pinder had not presented a credible theory as to how groundwater beneath the Beatrice property could make its way into the wells in the first place.

Following a 78-day trial, the jury dismissed the case against Beatrice in July 1986, but ruled that Grace was indeed responsible for polluting the wells. Skinner threw out the verdict on the grounds that the jury's written verdict was confusing and contradictory. (The jurors reached their verdict by filling out a questionnaire, drafted by the judge, that was itself confusing, if not contradictory.) At that point, Schlichtmann and Grace settled for about $8 million, with Grace declining to admit any wrongdoing. The families got a few hundred thousand dollars apiece -- little compensation for the pain they had suffered, and a long way from the hundreds of millions of dollars Schlichtmann had talked about when he first took their case.

Schlichtmann himself, financially and emotionally drained, declared bankruptcy, moved to Hawaii for a time, and slowly tried to rebuild his career -- until Harr's book and Travolta's star appeal brought the fame his courtroom failures had denied him. Today Schlichtmann lives in a seaside mansion in tony Beverly Farms and has achieved, through the cult of celebrity, the riches and acclaim he had always craved. But his former clients are not rich, and their fame is based on experiencing the worst thing that can ever happen to a parent.

"The trial about destroyed me," says Anne Anderson. "I know it about destroyed Jan. But I didn't have any place to go and recover."

 

OVER LUNCH IN a dark corner of Spuds, hard by Interstate 93, Nick Paleologos reminds me of something I had completely forgotten -- that at an earlier lunch, in 1991, I first told him about Harr's book-in-progress. Paleologos, a state-rep-turned-movie-producer (he and his business partner, Fred Zollo, have made such films as Mississippi Burning and Quiz Show), was thinking about making a Woburn movie, and I suggested that Harr's book -- if he could ever finish writing it -- might make a good starting point.

Paleologos stayed in touch with Harr for several years, but in the end he lost out to Robert Redford and Disney. The next time Paleologos was heard from was in 1997. Disney was refusing to pay the families for their life stories, and Paleologos filed a bill with the state legislature that would have forced the company's hand. Paleologos took some heat -- in some quarters, he was denounced as a money-grubbing enemy of free speech who was bitter over being cut out of the action -- but in the end, Disney settled. Paleologos isn't allowed to say how much the families got, except to say the payments were in keeping with movie-industry standards. "They weren't numbers I'd picked out of a hat," he says, chuckling.

Paleologos is hardly a newcomer to the story of Woburn's toxic-waste problems. He remembers reading in the Daily Times Chronicle way back in 1979 about a community meeting that Anne Anderson and Bruce Young were organizing. He knew Young because the priest had allowed him and Zollo to hold theatrical rehearsals at Trinity Church when they were still high-school students. "My attitude was, if Bruce Young says there's something wrong, there's something wrong. He had instant credibility with me," Paleologos says. Over the next few years, Paleologos, Anderson, and Young worked together to pass legislation creating a state "Superfund" to clean up toxic-waste sites (mimicking a previously passed federal law) and a state cancer registry so tragedies such as Woburn's could be detected and documented more easily.

"I felt a huge amount of frustration at not being able to move the bureaucracy as fast as I thought it ought to be moved," he says. "Now, looking back, I think it moved pretty quickly." Indeed, by 1985, before the trial even began, Paleologos's work on the toxic-waste problem was essentially done. The EPA's investigation was well under way. (The EPA officials who at the time moaned that Schlichtmann's lawsuit was impeding their progress will either laugh or cry at the close of the movie, when it's "revealed" that the EPA got involved in the case only as a result of Schlichtmann's work.) Today, Grace, Beatrice, and three other property owners are paying for a multimillion-dollar project to clean up East Woburn: the Superfund law makes property owners responsible whether or not they actually contaminated their land. (Beatrice, unlike Grace, has never even admitted to responsibility for pollution on its own site.)

Indeed, A Civil Action tells just a small part of the Woburn story, the leading characters of which aren't lawyers but ordinary people who showed courage, intelligence, and common sense in the face of extraordinary circumstances. The result has been a sea change in attitude from the insular 1970s and early '80s, when city officials simply insisted the water was fine and that Anderson, Young, Ryan, Paleologos, and the like were just troublemakers.

By contrast, Woburn's current mayor, Robert Dever, a retired airline pilot who's been in office since 1996, goes out of his way to convince the public of his environmental sensitivity. Last year, for instance, when routine testing revealed that one of the city wells contained trace amounts of TCE, Dever shut it down immediately -- even though the amounts were far below the threshold set by the EPA.

"The top priority to me is to make sure we have a clean and safe water supply," says Dever. Linda Olsson, an environmental activist, says such rapid action definitely shows a change in attitude, although she still wishes there were "more communication between the city and the community."

Yet, in some respects, Woburn has the feel of a place that has come full circle rather than moved forward.

In North Woburn, the home of the city's other toxic-waste site, city, state, and federal officials are moving ahead with plans to pave over the contaminated land with a train station and a parking lot. But Gretchen Latowsky, who was the director of Woburn FACE (For a Cleaner Environment) until its rather acrimonious demise several years ago, says nothing should be done until a system is in place to treat contaminated groundwater that's flowing off the property.

"What really bothers me the most about this is that everyone has lost sight of where we started," says Latowsky, who -- as project director for community technical assistance for the JSI Center for Environmental Health Sciences -- has lectured from Eastern Europe to the Alaskan wilderness on the lessons of Woburn. (Dever responds that the groundwater problem will be addressed in any construction plan.)

Then there are the companies that Schlichtmann sued, none of which has ever admitted to one iota of responsibility for Woburn's suffering. Former tannery owner John Riley has always insisted he never used any of the chemicals at issue in the suit. Beatrice, of course, never did anything other than cut a bad deal when it bought Riley's property. And even though Grace had to admit that its employees dumped TCE in back of the Cryovac plant, its official corporate position continues to be that none of that TCE ever made it into Wells G and H. The company has put together an entire Web site (http://www.civil-action.com) dedicated to putting its point across. Presumably it is no coincidence that the URL is almost identical to that of the official movie site, http://www.civilaction.com.

Ironically, Grace is now the subject of another toxic-waste controversy. Two weeks ago the Toxics Action Center released its second annual "dirty dozen" list of the state's worst environmental hazards. Among them: a Winchester dump site that allegedly contains contaminated materials from an old Grace chemical plant in Cambridge. A homeowner in the Winchester neighborhood, John Morgan, claims that TCE in the material leached north into the Woburn well that was shut down last year. Grace has emphatically denied all allegations. But Bruce Young says he can't help but observe that the denials sound exactly like those the company issued nearly two decades ago.

"I feel like Don Quixote a little bit," he says.

 

YOU'RE NOT SUPPOSED to walk along the dirt path that leads to what used to be Well G, but I do anyway, making my way through a wooded area until I come to a small clearing. Here are the remains of the well house. In 1986, then-mayor John Rabbitt ordered it knocked down, during the trial, as a way of dramatizing the fact that the contaminated well water was no longer being used. All that's left is a concrete base, some twisted shards of metal, a few wires. Ahead is the swamp that lies on either side of the Aberjona River, choked with eight-foot-tall reeds.

It's a beautiful afternoon, and the surroundings are so serene you might think you were in a nature preserve. But looks can be deceptive. Here and there are pipes -- wells drilled into the groundwater to test for contamination. Across the way, on the 15 acres Schlichtmann alleged was contaminated by the Riley tannery, an immense expanse of rocks has been spread out, dotted with manholes and bright-orange cones, part of a cleanup project that will, in all likelihood, take decades to complete.

Jimmy Anderson would be 30 if he were alive. It is a simple, unavoidable truth that haunts Anne Anderson every day. She gives her big old golden retriever, Charlie, a pat. "There are a lot of positive things that came out of this," she says. "I think the two things I'm most conscious of are Superfund and the Mass Cancer Registry. I'm real proud that I had an opportunity to be a part of that. I also think there's a greater awareness of the effects of toxic waste. I think companies are more careful now -- they're not going to be as arrogantly careless as they were in the past, because they know they might be the next one on the docket."

But Anderson's is an unwanted celebrity, suffused with sadness. She's always shocked that when she tells people about participating in some publicity event for the movie, all they're interested in is the glitz and the glimmer. "Some people think it's a big lark -- 'Oh, you met John Travolta,' " she says, shaking her head. "I haven't felt stability in so long that I wouldn't know it if it hit me. My family and friends from back then who went through this with me, we never talk about it. It's hurtful to talk about it. We really don't."


Civil reforms

William Thilly, an MIT scientist who's studying the relationship between chemical exposure and chromosomal damage, once told a Woburn citizens' group why he would never want to testify in a toxic-waste case such as the one brought by Jan Schlichtmann. "For every PhD," he quipped, "there is an equal and opposite anti-PhD."

In fact, the adversarial system of justice is ill-suited to deciding the kinds of highly complex issues in cases such as the Woburn toxic-waste suit. Each legal team -- the families', W.R. Grace's, and Beatrice's -- hired highly credentialed scientists who presented mind-bogglingly technical testimony about groundwater flow, pressure gradients, and even, for one memorably arcane afternoon, how tetrachloroethylene biodegrades into vinyl chloride. After many months of this, six ordinary men and women were herded into a little room and forced to decide whose theory was the most convincing. Thus was the fatally confused verdict virtually guaranteed.

After sitting through all but five of the 78 days of trial, I have some qualifications for observing what went wrong, and how similar trials could be made better. What follows are a few modest proposals.

  • He, the jury: The judge, rather than lay jurors, should be the sole arbiter of facts in a case as complex and technical as Woburn's. The only role for a jury in such a case should be to determine the level of damages. Granted, Judge Walter Jay Skinner was no more technically adept than the postal clerks and retired nurses who made up the jury. But if he had had to make the final decision himself, the families -- and, ultimately, the public -- would have been spared the travesty of the verdict against Grace having to be thrown out because the jurors didn't understand what they were doing.
  • Just the facts: Once a judge has ruled that a lawsuit meets some minimal standard for moving forward, the court itself, rather than the lawyers, should investigate the facts. Admittedly, this would present some problems, mainly over who would pay for an expensive, drawn-out investigation. But the benefits of a neutral, objective investigation headed by a court-appointed master would far outweigh any possible objections. The parties to the suit, of course, would be able to challenge the court's findings of fact, and the judge would be required to take those challenges into account.
  • Government work: Early in the Woburn trial, Schlichtmann attempted to introduce data compiled by the US Environmental Protection Agency. He was unsuccessful, because the EPA had a court-approved exemption from having to testify in private lawsuits. (Schlichtmann gets some revenge-by-proxy in the movie: the screenwriters have rewritten history by claiming that the EPA got involved only after Schlichtmann's suit lit a fire under the agency.) As EPA officials put it during the trial, take away their exemption and they would end up spending more time testifying than working. But there should be some way of balancing the concerns of government agencies with the need for unbiased, authoritative information. In fact, government agencies clearly identified Beatrice's 15-acre property as a source of contamination to Wells G and H, the very issue that Schlichtmann's hydrogeological consultant, George Pinder, botched so badly. Schlichtmann still would have had to show that the property's previous owner, the Riley tannery, was responsible for the contamination. But at least the entire case wouldn't have come undone because of one witness from hell.

-- DK


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