No More Heroes

No More Heroes

David Cassuto
A Civil Action
Jonathan Harr
New York: Random House, 1995/1996.

David Cassuto reviews Wild Ideas, a collection of ecocritical essays.

The subtitle to A Civil Action, “A Real-Life Legal Thriller,” offers readers a potentially conflicting set of expectations. On the one-hand, we anticipate an experience similar to reading a John Grisham novel (Grisham’s laudatory blurb appears above the title on the book’s front cover). We gird ourselves for something clumsily written and lacking in verisimilitude, but with an almost irresistible, law-based narrative drive. On the other hand, this is a true story of litigation and, as any O.J. veteran can attest, even the most compelling courtroom narrative frequently drags. Consequently, we prepare ourselves for the worst. Furthermore, since the courtroom drama involves the poisoning of the water table of a Massachusetts town and the rash of cancers that allegedly arose from it, and since “toxic torts” are one of the most difficult and complicated areas of law, the subject matter simultaneously raises the bar for accurate reportage while lowering the book’s appeal to general-interest readers. I’m happy to report, though, that A Civil Action succeeds on all levels ó it is a splendidly written page-turner offering a disturbing look at the realities of litigating environmental contamination. It also, almost by accident, asks important questions about the ecological ramifications of an adversarial judicial system.

[ Cassuto also reviews Wild Ideas, a collection of ecocritical essays, in ebr, eds. ]

Woburn, Massachusetts grew around the hide-tanning industry. The town’s first tannery began in 1648. By the Civil War, the town boasted 20 tanneries and was still growing. Tanning remained king until the middle of the twentieth century (Woburn’s high school football team called itself the Tanners) when foreign competition rendered it less profitable. By the 1970s only the J.J. Riley Tannery remained and even it had been bought out by Beatrice, the multinational corporation. In the interim, however, a number of other chemical industries settled in Woburn including one run by W.R. Grace, another corporate giant.

In 1964, Woburn drilled new water wells in order to deliver water to its expanding eastern part of town. While the old wells were grouped in the town’s center, the new wells sat some distance away and drew water from a different source. The new well water came from an ancient glacial aquifer that had long acted as a sump for the watershed.

Shortly after the new wells went on line, the water in eastern Woburn started running brown, brackish, and foul-smelling. It corroded pipes and faucets and made residents’ eyes sting and itch when they showered. Complaints poured in but city engineers insisted that all tests showed the water to be potable and completely safe. Over the next several years, children in east Woburn began developing leukemia. Ignored at first as an epiphenomenon, the Woburn “cancer cluster” slowly began attracting attention from scientists and government officials. In 1979, trichloroethylene (TCE), an industrial solvent and known carcinogen was found in the east Woburn wells. Circumstantial evidence pointed strongly to the Riley tannery and W.R. Grace as the primary culprits for the contamination. During the course of the lawsuit, it became chillingly clear that both Grace and the tannery had dumped large amounts of toxic chemicals and that they had actively tried to cover up their actions.

The stage was seemingly set for two deep-pocketed polluters to compensate the families of the children they poisoned. The families’ case was handled by Jan Schlictmann, a flashy, idealistic, young attorney who prided himself on his track record of large plaintiffs’ verdicts. The defendants were represented by two old-money Boston firms. If A Civil Action were a novel, the flashy young attorney defending the downtrodden and victimized would win a huge damage award while the toxic polluters would learn to rue the day they dumped illegally. But A Civil Action is not a novel. Rather than manufacturing a happy ending, Jonathan Harr tells the tale of a “black hole” of litigation that left Schlictmann and his partners bankrupt and their firm destroyed. The Woburn families gained little to show for their years of agony and their lost children. The defendants, Beatrice and Grace, remain enormous multinational corporations, now with valuable experience litigating toxic tort cases. The civil suit that was to teach corporate America a lesson instead serves as a cautionary tale to any lawyer or plaintiff considering a toxic tort action.

The reasons for this wariness are many, but they begin with the incompatibility of the legal system with the popular notion of truth. “Truth” derives from a shared set of unproven beliefs, or myths. Societies rely on these myths; we must assume that we share a similar world in order to function collectively. Without an agreement as to shared experience, human interaction could not occur. Following Kant, Ludwig von Bertalanffy suggests in Perspectives on General System Theory that such “moral concepts as Freedom, God, Immortality, and Human Dignity are fictions but nonetheless of immense importance: for we have to behave ‘as if’ they were reality…. The myths of tradition are fictions based on the mythical experiences of man and later invested in historical narratives.” Accepting this premise can prove terrifying. Without the assurance of a common reality, societal entropy hovers disturbingly nearby. Attaching objectivity and incontrovertibility to a given web of myths removes the burden of subjectivity from the need to obey social norms. As Neil Evernden argues in The Social Creation of Nature, this ruse of objectivity is all but inevitable: “The tendency to practice the subterfuge of mythmaking is very understandable. In practical terms, it may very well afford us some measure of comfort by legitimating a belief in the certainty of at least a few features of existence and a few behavioral norms.”

One of the principle myths underlying American society is that the legal system ferrets out a deeper, “objective” truth underlying societal myths. Given the opportunity to present one’s case, the twin forces of discovery and then the courtroom will theoretically expose the essence of reality. Yet, the legal system for the most part does not even pretend to be an engine of truth. It is an adversarial contest with rules designed to ensure fairness in reaching a verdict not to stack the deck in favor of the guilty or innocent. The greater one’s mastery of the rules the greater one’s chances of prevailing. This holds true irrespective of culpability or victimhood.

In civil litigation, the plaintiff must prove her case by demonstrating that a “preponderance of evidence” militates against the defendant. This standard is significantly less onerous than the “beyond a reasonable doubt” requirement that governs criminal trials. The lowered burden of proof for civil cases makes sense since criminal trials carry penalties ranging from incarceration to death while civil penalties deal solely with money damages. Nevertheless, the preponderance standard can lead to some troubling ontological dilemmas. One particularly vexing example, which would seem to compel a defendants’ verdict in the Woburn case, was explored in a law review article by Charles Nesson. Ironically, Nesson, in addition to being a renowned legal scholar and a professor of law at Harvard, also served as second chair for the plaintiffs in the Woburn case.

In Nesson’s hypothetical, Mr. Smith is driving down a dark two-lane road late at night when he sees the headlights of an oncoming vehicle speeding toward him in the center of the road. To avoid a head-on collision, Smith swerves off the road and hits a tree. Through the darkness he sees that the vehicle that almost killed him is a bus. Later, Mr. Smith learns that the Blue Bus Company owns and operates eighty percent of the buses that drive along the route where the accident occurred, and sues the Blue Bus Company for damages. Though Smith can prove the aforementioned facts, he cannot identify the color of the bus that drove him off the road. The question now becomes, can Smith win his case? Under the criminal standard of beyond a reasonable doubt, he has no chance since there is at least a twenty percent chance that the bus was not from the Blue Bus company. However, Smith must only prove that it was more likely a Blue bus than not. Since there is an eight out of ten chance that the offender was a Blue bus, Smith should win. Yet, Nesson argues that a finding for Smith would have no moral or legal force. The only way a jury could find for Smith would be if they made their best guess, based on probabilities. Not one shred of evidence implicates the Blue Bus Company. To hold them financially liable because they might have committed the tort would undermine the foundation of civil justice. Each trial, in Nesson’s view, is a public morality play. The public has to believe that jury verdicts are statements of truth, not guesses formed through playing the odds. If that belief eroded, the “subterfuge of mythmaking” would stand revealed and a society based on the rules of law would collapse.

Nesson’s hypothetical raises a host of disturbing implications for any tort suit, but particularly for toxic tort actions, which rely heavily on probabilities and percentages in trying to prove that a particular contaminant caused a particular injury. Harr dwells on Nesson’s hypothetical because the viscissitudes faced by the plaintiffs in Woburn were really those of the Blue Bus parable writ large. And all can be traced to one common origin: difficulty of proof.

Because contamination is often discovered years after the fact and the diseases it causes may lie latent for much longer, statutes of limitation often pose insurmountable obstacles to recovery. In Woburn, Schlictmann filed suit on behalf of the plaintiffs just days before the deadline. Schlictmann’s reluctance to file came out of the enormous expense that goes into proving that the harm suffered was actually caused by the defendants. Like most personal injury lawyers, he worked on a contingency basis, taking a percentage of any damage award in lieu of an hourly fee. If the plaintiffs lose, their attorney loses all out-of-pocket expenses incurred.

In Woburn, all anyone knew for certain was that the groundwater contained TCE. But because leukemia is not a signature disease (unlike, for example, radiation sickness), no one could say with utter certainty whether TCE actually caused the children’s leukemia. In addition, even if TCE could be proved responsible, the plaintiffs had the burden of proving that the particular TCE which triggered the leukemia travelled from the defendants’ facilities through a vast and spidery groundwater system into the plaintiffs’ homes. In legal terms, the plaintiffs had to show causation. To do this, they would have to spend (and Schlictmann did) staggering amounts of money on expert witnesses, groundwater studies, medical examinations and other scientific investigations. Schlictmann gambled that the dead children and common sense circumstantial evidence would lead to a large jury verdict which would enable him to recoup his expenses. He did so against his better judgment and that of his partners. Their caution was well-founded. A Civil Action opens with the trial in its final stages and Schlictmann watching hopelessly as U.S. Marshals repossess his car.

The defense, meanwhile, could fall back on the principles of pharmacokinetics. While toxicology measures the effect of a chemical on an animal, pharmacokinetics measures the effect of the animal on the chemical. In other words, it measures the ways that the human body copes with, acts on, and eventually disposes of foreign chemicals. Because the human body is a dynamic system with multiple inputs and outputs and constantly changing concentrations of substances, a good defense lawyer can cast doubt on any claim that a particular chemical is even present, much less the cause of a given injury. A particularly glaring example of pharmacokinetic obfuscation is the defense’s claim that the leukemic children could have contracted the disease from eating peanut butter because peanut butter contains trace amounts of aflatoxin B1, a carcinogen that occurs naturally in peanut mold.

The Woburn case, as with any trial, became more of a performance than a quest for justice. Even while supposedly questing for truth, all the actors in a given trial remain acutely aware of their roles, their lines, and their audience. And, like any theater, the theater of justice thrives on wealthy backers. In Woburn, both sides poured resources into the fray and threw experts onto the stand and studies into evidence. There were no bad performances. Whether justice was done depends on one’s vision of justice. Certainly the court system worked as well as one could expect under the circumstances, and that realization undergirds the book’s implicit critique of tort law as a regulatory mechanism.

Tort law serves three important social functions: compensation; deterrence; and motivation to legislative and administrative reform. Yet, limited access to courts and the difficulty of proof make the first two tasks dismayingly formidable. The third, motivation to reform, is hindered by the retrospective nature of tort law. Because they always seek to remediate past harms, tort suits have no mechanism for planning for the future. Though their stated goal is to restore plaintiffs to their pre-injury state, there is, of course, no way to do this. Money cannot resurrect children nor can it cleanse a water table.

In attempting to tell Woburn’s story, Harr faced two separate but parallel challenges born of the similar goals of tort litigation and non-fiction writing. Both seek to recreate the pastótorts through money damages, and literature through words. While tort awards attempt to restore the victim to a pre-injured state, descriptive writing strives to re-create an experience already past. Time, a crucial component of all experience, has marched on; the writer can only try to invoke through words that which can never come again. According to Lyotard in “Scapeland,” “in description, writing tries to meet the challenge of being equal to its momentary absence.” Furthermore, since language exists only through metaphor, its “truth” must always be once removed from experience.

Given these limitations, it seems unwise to set a standard of accuracy for any type of art, particularly art that seeks to function also as history. Seamus Heaney explored this dilemma in his speech accepting the 1995 Nobel Prize for literature. He first cites Archibald MacLeish’s maxim that “A poem should be equal to:/not true.” But then he acknowledges that:

There are times when a deeper need enters, when we want the poem to be not only pleasurably right but compellingly wise, not only a surprising variation played upon the world but a retuning of the world itself. We want the surprise to be transitive, like the impatient thump which unexpectedly restores the picture to the television set…. We want what the woman wanted in the prison queues in Leningrad, as she stood there blue with cold and whispering for fear, enduring terror of Stalin’s regime and asking the poet Anna Akhmatova if she could describe it all, if her art could be equal to it.

The misery of the woman in Leningrad demands a truth the writer cannot reach. Even as she asks the question, the woman knows that no words can ever convey her bone-wrenching cold. Like Lyotard, she understands that poems can only act as the staging ground for the power of language. Language cannot capture the human experience, it can only try to do it justice.

Perhaps the highest praise I can offer A Civil Action is that it does justice to Woburn. Children died, families suffered, and a water table lies forever poisoned. In telling the plaintiffs’ story, Jonathan Harr does an outstanding job of demonstrating the limitations of the tort process, the complexities of toxic torts, and within the inherent constraints of the medium, his own remarkable gifts as a storyteller.

Works Cited

Nesson, Charles. “The Evidence or The Event? On Judicial Proof and the Acceptability of Verdicts” Harvard Law Review (May 1985): 1357-1392.

Lyotard, Jean FranÁois. “Scapeland.” The Inhuman. Stanford: Stanford University Press, 1991.

Bertalanffy, Ludwig von. Perspectives on General System Theory. Ed. Edgar Taschdjian New York: George Braziller, 1975.

Evernden, Neil. The Social Creation of Nature. Baltimore: Johns Hopkins University Press, 1992.