By: Neil S. Witkes and John F. Gullace

Neil and John are attorneys with the environmental law firm of Manko, Gold, Katcher & Fox, LLP, where they concentrate their practice in the area of environmental litigation. After this article, they intend to return their full attention to the practice of environmental law.

He drove a flashy sports car, wore only the most expensive hand-tailored suits, lived in a top-floor condo with a view in the best part of Boston, surrounded himself with only the most exquisite office furniture and assembled a wardrobe based solely on the prestige of the labels. He stayed at only the swankiest hotels and dined at only the most popular restaurants. He would not stoop to carry anything less than a platinum credit card, and protested that anything less would rob him of his dignity. And he couldn't afford any of it. He is Jan Schlichtmann, the plaintiffs' lawyer at the center of Jonathan Harr's award winning work A Civil Action -- a chronicle of the wrongful death/personal injury claims brought by several families who were residents of Woburn, Massachusetts, who alleged that two local companies contaminated their drinking water with an industrial solvent and caused their deadly illnesses.

The self absorbed Jan Schlichtmann is an unlikely environmental whistle-blower and watchdog over industries' environmental compliance. Whether you see Schlichtmann as Don Quixoite tilting at windmills, or more akin to the maniacal Captain Ahab destroying everything and everyone in his path, including himself, may depend on whether you are a member of the plaintiffs bar or the defense bar. Regardless of one's view of Schlichtmann, A Civil Action reads like a modern-day parable of what's wrong with trying to redress historical environmental contamination and its impacts through protracted personal injury cases, and does it so convincingly that the average lawyer reading this book cannot help but think about what he or she should be doing back at the office.

In a sense, the case which becomes A Civil Action begins its tortuous history with the opening of a municipal water supply well called Well G in November of 1964. By 1967, the town of Woburn opened a second well in close proximity to Well G, logically named Well H. These production wells intermittently pumped water into the Woburn drinking water supply until sometime in 1979, despite constant complaints from the residents of East Woburn that the water had an odor and chemical taste when these wells were in operation. After the discovery of an illegal drum dump in 1979, the water from Wells G and H was tested and found to contain the industrial solvent trichloroethylene (TCE). Although TCE was not found in the drums that triggered the inquiry, it was known to have been widely used by industry throughout most of the 1960s and 1970s. Two neighboring manufacturing plants were identified as the suspected source of the TCE found in the wells. With the discovery of the TCE contamination and the closing of Wells G and H, the residents of East Woburn also realized that the children in their neighborhood were contracting leukemia at an abnormally high rate. Researchers also noticed the presence of other types of cancers, and thus were able to document a "cancer cluster" -- an area of unusually high incidences of cancer -- in the East Woburn area.

The combination of the cancer cluster and the TCE contamination raised two questions -- what (if anything) had caused this unusually high rate of cancer; and who (if anyone) was responsible. It was Jan Schlichtmann who spent millions of dollars, years in discovery and months at trial trying to prove that two local plants caused the TCE contamination of the wells, and that this TCE contamination caused the cancer afflicting the residents of East Woburn.

According to the book, after all was said and done, one of the corporate defendants in the Woburn case received a defense verdict after spending millions of dollars on the case, and the other corporate defendant settled after paying roughly $7 million in defense costs. The plaintiffs, for their part, received an $8 million settlement, which meant somewhat less than $500,000 per family after plaintiffs' counsel were paid their $2.6 million in expenses and received their contingency fee - a fee that was insufficient to cover the years of work put into the case, and brought about the financial ruin of Jan Schlichtmann and his firm. As it turned out, the issue of what caused the victims' cancer never even made it to trial. And for all of Schlichtmann's work and dedication, after the settlement, two of the families he represented hired an accountant and lawyer to look into whether Schlichtmann had stolen from them by inflating his expenses.

Personal injury environmental claims remain uniquely difficult claims to pursue. The claim at issue in A Civil Action is exemplary of these difficulties. To recover, plaintiffs first had to prove that the corporate defendants used TCE in their operations during the 1950s and 1960s, a matter that is in itself difficult to prove given the dearth of records available twenty and thirty years later for routine purchases of TCE. Typical corporate record retention policies may themselves prove to be a problem.

Even when a facility can be shown to have used TCE, the prospective plaintiff still has to show that the TCE was dumped or otherwise released into the environment. This is also very difficult to prove because, most of the time, no manifests of disposals are kept. People dumped just about anything into their trash. Many companies recycled their dirty or used TCE to save money. Simply because a plant used TCE does not mean that the TCE found its way into the environment.

These initial proof hurdles were a major obstacle to Jan Schlichtmann's case, and consumed a great deal of his discovery efforts. Ultimately, he resorted to interviewing every old plant employee he could find, and having his clients keep their ears to the ground for anyone who might know anything. That is how Schlichtmann located the plant employee who knew about the dumping of TCE onto the ground in back of the plant, and the witness who recalled playing behind the plant as a child where all the vegetation was dead. Clearly, locating these types of crucial witnesses is difficult, time consuming and, of course, expensive. Once you have found these witnesses, often retirees, getting them to testify at deposition or trial about what they saw is in itself difficult because they do not want to get involved, and fear being implicated for their role in the waste disposal.

Ultimately, you may not be able to find any proof that TCE or any other hazardous substance was physically dumped on the ground or into the water by plant employees. You may have to determine whether the machinery and equipment in use when TCE was used at the plant would, through normal operation, cause a release by, for example, venting TCE to the outdoors or by carrying TCE in pipes that leaked or any number of other possible scenarios that may require expert testimony. Once you have established that there has been a release to the environment (or think you have enough evidence to survive a directed verdict), now comes the expensive part - you have to prove that the TCE got from the plant to the victims and that the TCE caused the plaintiffs' injuries. This is no easy matter, and ultimately involves a battle of experts, if not a war. This is where Jan Schlichtmann spent his real money.

Schlichtmann hired an army of consultants to drill monitoring wells throughout the affected area to determine the ground water flow and whether the plants where the TCE was allegedly released were hydrogeologically connected to Wells G and H. There were so many variables affecting the movement of TCE through ground water, not the least of which would be the rate of pumping at Wells G and H, that the conclusions drawn from such testing was hotly disputed. Neither side's experts were able to fully explain the complex factors that determined the movement of the groundwater. In the end, the jury was left to ponder conflicting expert testimony that did not adequately answer the central issue at trial - did TCE move from the industrial facilities to the wells in time to cause the plaintiffs' injuries. Although the science of groundwater modeling has advanced significantly since the early 1980s when Jan Schlichtmann and his team were trying to prove their case, it still remains a difficult proof issue. To prepare a case involving these types of issues cost effectively, the attorneys involved really have to understand the scientific principles and issues involved, or they may end up spending far more than is necessary on experts and tests.

Schlichtmann's case was trifurcated, with the first portion of the trial dedicated to resolving the question whether the defendants released TCE into the environment which ultimately reached Wells G and H. There is also always the question of how to prove (or disprove the proffer by the defense) that the TCE could have just as easily come from one of the many other local plants using TCE during the relevant period, or even from residents' use of household chemical products. As is all too possible in such complicated technical cases, the jury's verdict on this issue indicated, according to the author of A Civil Action, that the jury did not understand the evidence or the issues, although they did keep the case alive - just barely, and against only one of the two corporate defendants. In fairness to the jury, their apparently inconsistent verdict may have been an expression of their uncertainty over the conflicting expert testimony. In the end, however, it appeared to reflect compromises that are unique to the give and take of jury deliberations.

Assuming Schlichtmann and his clients had elected to proceed to the next stage of trial rather than settling, they would have had an opportunity to use their next wave of experts. The experts who were going to explain how the TCE in the well water found its way into the victims, in quantities that were meaningful, by using calculations of the exposure from drinking the water, the vapors created by taking hot showers and the like.

Once Schlichtmann had quantified each plaintiff's exposure, it would have been time to prove that the victim's exposure to the TCE caused each victim's cancer. Given the number of other possible causes of cancer, and the uncertain connection between TCE and cancer in the mid-1980s, this too would have been a difficult task. Each of Schlichtmann's clients needed routine physical examinations. An expert had to review each exam result. Doctors and scientists had to state that TCE caused the victim's cancer and then explain away other possible causes. This again will always be an uncertain area of testimony, subject to differing expert opinions. Ultimately, Schlichtmann spent freely on his consultants and experts, probably because he didn't know enough about these areas to feel comfortable limiting himself to only a few experts and he was one of the first to bring such a case.

Jan Schlichtmann's clients steadfastly maintained that they were not "in it for the money." However, the crushing cost of preparing and putting on the case eventually drove the decision to settle. Despite the lofty ideals of the plaintiffs that all they sought was a jury verdict finding the defendants responsible for causing the cancer in their community, that was the one thing they did not get. One defendant received a defense verdict after the first stage of the trial, and the second defendant settled on condition that the jury's verdict from phase one be thrown out by the Court, which was done. Four years of post-verdict review failed to upset the defense verdict, even though Schlichtmann brought forth evidence that had not been disclosed to him in discovery, and a strong suggestion that relevant documents and witnesses had been intentionally withheld from him. Schlichtmann's obsession with the case disabled him from recognizing that neither the participants, nor the judicial system, could tolerate a retrial of what had been five months of testimony on phase one. The book itself describes the case as a devastating setback for Schlichtmann and his firm, and at best a mediocre result for the plaintiff families.

A Civil Action is the story of a complex environmental personal injury/wrongful death case and the characters involved in that saga. The roles of the government agencies in cleaning up the area and performing the necessary environmental investigations receive only passing mention in the book, although the author credits EPA's conclusions over the jury's verdict. The book strongly suggests that a private wrongful death action is not the way to redress the social ills created by industry's past pollution of the environment, if for no other reason than the costs of such actions and the uncertain message such trials send. Time and money were expended at alarming rates by Schlichtmann and the defendants, with very little to show for the greater social issue that originally motivated the plaintiffs. In recent years, industry has engaged in an increasingly cooperative effort with federal and state environmental regulators, to prevent environmental contamination before it happens and to cleanup contamination when it is found. This increasingly cooperative spirit is apparent here in Pennsylvania, where regulators and industry have tried to move away from the "good guy-bad guy" posturing on environmental issues exemplified by the portrayal of clear cut "victims" and "villains" in Harr's A Civil Action.

Schlichtmann believed, as do others, that he could change corporate behavior and force progressive environmental policy, through tort litigation. He embraced the mantra that "the only language that corporations understand is money." By making the corporate defendants pay for their irresponsible behavior, he would force other corporations to alter their behavior and act in an environmentally responsible manner. The Court saw the lawsuit differently - a private dispute between parties seeking compensation for injuries. Just another case, albeit more complex and time consuming than most, that needed to be moved through the judicial system. In the Court's view, "if the boardrooms of America happen to notice what's going on, that's an incidental consequence of the process. It's not the purpose of it."

The truth, to the extent it can be discerned, probably lies somewhere in between these two philosophies. Some cases do shape social policy and alter corporate behavior. However, often times, the perceived social gains are accompanied by (or perhaps even eclipsed by) social costs. Even in A Civil Action, the closing of one corporate defendant's plant - a plant that the jury (and later EPA) determined had contaminated the Woburn drinking water - was coupled with the author's observation that "some layoffs" were also possible.

In the end, it appears to be EPA's determination, and not the jury's, that the author credits as "truth." The jury's search for truth was obstructed by the very process designed to determine truth "by a preponderance of the evidence." Witnesses lied. Defense lawyers sought to obstruct the search for truth by their admitted use of courtroom tactics designed to upset the presentation of plaintiffs' case. Left unresolved is Schlichtmann's charge that the defense did worse - actively concealing documents. Experts argued over difficult scientific principles that jurors struggled to comprehend. And the Court asked the jury to answer incomprehensible special interrogatories that the scientific community had not yet answered.

Thus, the book almost screams out that there must be a better way. Old command and control policies don't always work. The federal Superfund program has been criticized by many as accomplishing too little to clean up polluted sites. Congress continues to struggle with reauthorization and how best to minimize the role of lawyers in that process, sometimes forgetting that the parties compelled to clean up these sites may have legitimate differences of opinion concerning their liability for the millions of dollars in cleanup cost - legitimate differences of opinion that will invariably spawn litigation. The future, many believe, lies in the formation of public and private partnerships. Rather than treat industry with distrust, corporate ingenuity and know how can be called upon to create solutions to the most difficult environmental problems. With proper incentives, corporations can be encouraged to go beyond compliance. If, as Schlichtmann believed, "money talks," then business can find ways to conduct their operations to serve the dual goals of profitability and improved environmental quality.

The adversarial policies of the past had two unwanted social repercussions. First, contaminated sites in urban areas were abandoned at increasing rates. Second, pristine land was developed, reducing the amount of open space and exposing these uncontaminated properties to the threat of environmental degradation from industrial operations. Thus, new development was increasingly occurring away from areas with existing infrastructure and work force. Former industrial properties remained unused and unremediated, contributing to urban decay. All because industry sought to avoid the environmental liabilities associated with old industrial sites in favor of undeveloped properties that did not have the same environmental "baggage."

Recent legislation in Pennsylvania is designed to provide business with the necessary incentives to reuse abandoned industrial sites, commonly referred to as "brownfields," rather than punish industry for its now abandoned practices that had contributed to the pollution of the environment in the past. Pennsylvania's Land Recycling and Environmental remediation Standards Act (Act 2) allows "brownfields" to be remediated to standards that encourages their reuse. Rather than commanding and controlling cleanups to pristine conditions, Act 2 allows remediation to site specific standards that consider the environmental and health risks associated with the intended use of the property. In exchange, Act 2 provides for a release of liability for further cleanup. Thus, former industrial sites are reclaimed, existing infrastructure and labor forces are retained, and undeveloped properties (called "greenfields") are preserved. In essence, Act 2 is a recycling scheme on a grand scale; industry is encouraged to recycle old, abandoned, polluted properties, instead of buying and developing the state's forests and farm lands. The former Publicker Site on the Delaware River, abandoned for many years and now reclaimed as an active port facility, stands as a clear example of the environmental improvements that can be achieved through such public/private partnerships.

This more cooperative spirit between government and industry has continued with the work of Pennsylvania's 21st Century Environment Commission. By Executive Order, Governor Ridge formed Pennsylvania's 40-member 21st Century Environment Commission. In its draft report to the Governor, the Commission emphasized that "environmental policy in the 21st Century must find ways to promote alliances rather than antagonisms between property ownership and environmental stewardship. The search for the common ground will require informed debate, experimentation, patience, restraint, and public and private cooperation."

Schlichtmann was right that corporations understand money. However, rather than using the threat of a substantial money judgments as a hammer to compel accountability, innovative legislation such as Act 2's flexible approach to cleanups and financial incentives encourages industry and developers to clean up and recycle contaminated properties and return them to productive use, without the attendant social costs of the blatantly adversarial model scrutinized in A Civil Action.

This is not to say that environmental litigation has no place in our more environmentally aware society. Clearly, it does. Increasingly, however, environmental litigation is focused on disputes among business entities as to who should pay the substantial costs of remediating contaminated property. For example, businesses that broke no laws and complied with standard practices of a different era, increasingly look to their insurers to pay the costs associated with environmental remediation.

In these environmental insurance cases, manufacturers and other insureds find themselves in a role akin to Schlichtmann's plaintiffs, attempting to prove their groundwater contamination occurred at a time when coverage was available. Groundwater modeling has further evolved to the point where experts are able to answer the questions that so troubled Schlichtmann's jury - when did the contamination occur and when did it reach the groundwater. In one such case, groundwater contamination was discovered from a manufacturing facility when a neighbor's cow refused to drink the spring water. The contamination was traced back to a previously closed underground storage tank which apparently leaked for an undetermined period of time. Dating the commencement of the leak was critical to triggering insurance coverage to pay for the cleanup that the business had voluntarily undertaken, and to cover damages sought by the affected public water company. Since there was no direct evidence of the date on which the leak began, experts were hired to date the commencement of the leak. Darcy's Law, which Schlichtmann used to discredit his defendant's expert, was used to date the commencement of the leak. Although the case settled before the jury could pass on the expert's analysis, the court did find it sufficiently credible to withstand summary judgment.

Thus, it is clear that environmental litigators will continue to grapple with the same issues that consumed Schlichtmann. Nearly every case presents one or more of these issues. How they are managed, and whether counsel understands the limits of scientific analysis, will determine whether litigation is the frustrating process that left Schlichtmann and his clients unfulfilled, or a useful tool to resolve disputes and facilitate the remediation of industrial properties.

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