Anderson v. W.R. Grace

Background / About the Case

This story begins in 1972, as a lone woman's search for answers in Woburn, Massachusetts, a working class city with a population just under 40,000. Located twelve miles north of Boston, Woburn is a legacy of being a center of industrial and chemical production since its founding in 1642. In the 1850's, it became a central place for leather-tanning factories. In the early 1900's, chemical factories producing arsenic-based insecticides, textiles, paper and animal based glues moved to Woburn.

Jimmy Anderson was four years old when doctors told his mother Anne that Jimmy had a rare form of childhood cancer -- acute lymphocytic leukemia. After Jimmy's diagnosis, Anne began to hear about other children in her neighborhood who had also contracted this rare disease. Donna Robbins, who belonged to the same church as Anne, her son Robbie, also had leukemia. The Zona's son Michael, living down the block from Anne - The Toomey's son, Patrick; all these children had the same rare form of leukemia. Twelve children had leukemia, eight of them within a 1⁄2 mile radius, six of them living almost next door to each other. These eight families in the same neighborhood in Woburn discovered that they all had something in common -- that their children were afflicted with this rare and fatal illness.

Suspicions about the Woburn Water

However, Anne Anderson believed that they had something else in common. The water. The water in Woburn had long been suspect for its color and bad taste, and Anne thought that it might be the cause of the children's illnesses. But her questions about the water were met with disbelief by doctors, city officials, and even some friends who doubted that such a thing was possible. Then other health problems of family members surfaced-skin rashes, vision difficulties, miscarriages, headaches. Anne Anderson persisted in her claim that it was the water. The idea that Anne Anderson had about the water no longer seemed so crazy. From a lone voice of one, Anne persuaded others-until there was a united voice of the Woburn families who also wanted answers. Could the drinking water be the cause of the children's leukemia?

Five years went by. City, state and federal officials ignored them. Then a breakthrough -- In 1979, the Woburn Times, a local newspaper, reported that 184 buried barrels that had contained chemicals had been discovered near to the site where the City of Woburn had drilled two wells, G and H for drinking water. This area was in proximity to industry and close to the Aberjona River.

The wells were tested. But the chemical in the barrels didn't match. However, the officials did find something else -- dangerous levels of Trichloroethylene, TCE, and other chemical solvents. TCE is a common groundwater pollutant, known to cause neurological disorders, cell mutations, liver damage and cancer in laboratory animals.

How did TCE get into these drinking water wells? Who was responsible? Was TCE the leukemia causing agent in the children? Could the wells supplying the drinking water to the East Woburn neighborhood be spawning a leukemia cluster?

The Woburn wells G and H closed in 1979.

But the leakage and damage already had been done.

Enter State environment officials and the EPA. Further water testing. The EPA began drilling test wells into the aquifer. The EPA issued a preliminary report that confirmed that there was widespread contamination northeast of the wells G & H, close to where three companies were located - W.R. Grace, Beatrice Corporation, and the Unifirst Corporation - they all had industrial plants in proximity to the Woburn wells. But the EPA at this time did not identify these companies as being the wrongdoers.

The Anderson Case

Anne Anderson and the Woburn families still had no answers. Sixteen children would die before any action was to take place. The Woburn family stories became submerged in the bureaucratic workings of governmental agencies.

Frustrated, Anne Anderson and the other families in 1980 turned to a young lawyer named Jan Schlichtmann. Jan Schlichtmann, just 30 years old who specialized in medical malpractice and product liability cases was hesitant to take the case. Schlichtmann, in a five lawyer firm, was concerned with the difficulty of scientific proof both in the pollution of the land and groundwater. The difficulty with scientifically linking the chemicals to the cause of leukemia and other diseases was daunting. Schlichtmann associated a public interest law firm, Trial Lawyers for Public Justice. Finally, Schlichtmann, with the assistance of this public interest firm, agreed to take the case. Later, Professor Charles Nesson, of Harvard Law School, a specialist in Evidence joined Schlichtmann's trial team.

The Woburn families soon learned that the legal system also did not provide quick answers. Another two years went by before the suit was filed. It was then 1982, and by the time that Schlichtmann filed a complaint, both Jimmy Anderson and Robbie Robbins had died.

The families' lawsuit alleged that two companies in Woburn had improperly disposed of chemicals, contaminating two municipal wells, and causing the deaths of the children. One company, W.R. Grace & Company, of New York, owned and operated the Cryovac Division manufacturing plant which produces equipment for the food-packing industry and used chemical solvents to clean tools and dilute paint. The Cryovac plant is just 2,400 feet northeast of the Woburn wells G & H. Attorney William Cheeseman and Michael Keating, senior partners in the 110 member law firm, Foley, Hoag and Eliot represented Grace. Both Harvard Law school graduates were used to managing complex cases. Cheeseman, a specialist in pretrial, oversaw this part of the case; Michael Keating became the chief trial attorney.

The other company, a tannery called the John J. Riley Tannery, was owned by Beatrice Foods. Beatrice Foods Company from Chicago, in 1978, had purchased the John J. Riley Company tannery and an adjacent 15 acre unoccupied property from John J. Riley Jr. In 1983 Beatrice sold the tannery and 15 acres back to Riley while Beatrice retained legal liability for environmental matters. Schlichtmann charged that the 15 acres were contaminated by the tannery by dumping chemicals that flowed about 700 feet northeast into wells G & H. Beatrice was represented by Jerome Facher, an experienced partner who specialized in litigation in the distinguished 244 lawyer Boston firm, Hale and Dorr.

The Anderson case was assigned to United States District Judge Walter Jay Skinner; also a Harvard Law School alumnus. Judge Skinner had been in private practice but was best known for his role as a prosecutor in the State of Massachusetts Attorney General's office fighting political corruption. He was used to being in the throes of attack and controversy. However, as a judge, he had a reputation for being fair and honest. Nevertheless, the war between the parties, seemed to intrude into the courtroom; often, pulling the Judge into the controversy.

Pretrial Phase of Anderson

Discovery in the lawsuit occupied the next four years. Dozens of pretrial motions filed and argued beat a zigzag course of wins and loses for each side in the lawsuit. They were time consuming, costly and combative. The case was a paper war fought out in the courtroom, press, and TV. The pages of discovery multiplied beyond the imagination of most seasoned lawyers. During the four years, 130 witnesses were examined, yielding 24,000 pages of documents. According to Mr. Facher, they were 60 feet high, equal to a three story building. Not only was the suit hard fought, but the lawyers had differing styles and philosophy of the civil justice system.

The case was now immensely complex. The Judge wanted the case streamlined. With the defendants urging, Judge Skinner decided to "bifurcate" the case. This meant that the case was to be tried in three parts. First was the hydrological part of the case, which became known as "the waterworks". Next would be the medical part: did the chemicals cause the injuries to the plaintiffs; followed by the remedy phase-damage assessment.

The Trial: Phase I

Phase one of the trial began in March, 1986. A jury of six with two alternates was selected. Among the jurors was Jean Coulsey, a nurse, and part-time fork lift operator. No one on the jury had expertise with the scientific issues that were in Phase I.

Plaintiffs in this first phase had to prove that Grace and Beatrice were responsible for the pollution -- did the companies dump the chemicals onto the ground? If they did dump, were the chemicals the same as those chemicals found in the wells? What amounts of chemicals were found on the defendants' property? Could these toxic chemicals have traveled from the defendants' property through the groundwater to the Woburn city wells? The proof at trial was a battle between the hydrology experts. None of the plaintiff families would testify during this part of the case. In fact, no plaintiffs were present in the courtroom. At the end of the testimony, as part of their verdict, the jury was given questions to answer as to their findings. If they responded consistently and affirmatively, then the trial would proceed to the second phase: whether the chemicals caused the cancer and the other health problems of the plaintiffs.

Verdict and Decision on Phase I

The jury returned a verdict in July, 1986. They responded that there was insufficient evidence against Beatrice; that W.R. Grace had negligently contaminated the wells. However, the jury could not determine when W.R. Grace chemicals had contaminated the wells.

Judge Skinner then dismissed the case against Beatrice. As to W.R. Grace, the Judge suggested that he more than likely would grant a new trial because the verdict was inconsistent with the answers to the interrogatories as to when the wells became contaminated. With this split verdict and the potential ruling by Judge Skinner, there was an incentive for the plaintiffs and defendant W.R. Grace to settle.

Eventually, Grace settled with the plaintiffs for approximately 8 million, although the company denied any wrongdoing. Phase one had lasted 78 days. The trial never proceeded beyond this phase. But the case was not over.

Subsequent Proceedings

In 1987, Schlichtmann filed an appeal. He discovered that a drilling report, known as the Yankee report, had not been given to him by Beatrice attorneys during the discovery part of the case. Schlichtmann argued that the outcome against Beatrice might have been different. This subsequent development occupied two more years in litigation before Judge Skinner and the Court of Appeals. Ultimately, the Court of Appeals ruled against the plaintiffs on this issue.

A Civil Action

While the case was moving through its slow paces, at Professor Nesson's suggestion, Schlichtmann, with the plaintiffs consent, allowed Jonathan Harr to follow the plaintiffs' team throughout the proceedings. Jonathan Harr, an experienced journalist-writer, for five long years, shadowed the plaintiffs' attorney Schlichtmann, read the entire pretrial record, and generally was a fly on the wall at Schlichtmann's law firm. After the trial, Harr interviewed everyone and anyone who would talk to him. Then Harr sat down to write. "A Civil Action" was Harr's nine year journey. This best selling book established the Anderson case as a noteworthy civil case in academic circles. When Anne Anderson refused to accept that her son Jimmy and other children living in Woburn, Massachusetts had been stricken with leukemia purely by chance, she set in motion a process that is still unfolding.

That chain of events according to a number of educators changed the landscape of environmental law, changed Americans' view of their legal system and changed the way that law and other disciplines are taught to students around the country. The story of the trial, at least one version of it, has been told through the legal system. The best-selling book, A Civil Action by Jonathan Harr tells the plaintiffs' story. A Hollywood movie (by the same name) is a shorter version about the Woburn story and runs the gamut from tragedy to Travolta. (John Travolta plays the role of Jan Schlichtmann, and Robert Duvall stars as Jerome Facher in the Hollywood movie.)

Despite the coverage in the media of many aspects of the story, and the retelling by individuals, many of whom are closely connected with the case, there are stories that have yet not been told.

The Video Series: Lessons From Woburn

In 1998-1999 Marilyn Berger and Henry Wigglesworth, both from Seattle University Law School, interviewed the central participants in the Anderson case: The judge, the plaintiffs' and defense attorneys, the parties, the jurors, the witnesses, and the author of the book. They spoke frankly about their experiences, perceptions, and insights. Collected items included documents, artist sketches of the trial, and photographs. With the permission of the participants, the interviews were videotaped. Over the next few years, the 35 hours of videotaped interviews were edited. Three well known educators agreed to narrate the three videotapes.

The purpose of this project was for the participants to comment in their own words about the Anderson case; some speak about the Anderson case for the first time. And we now can hear these untold stories. The participants express remarkably different views of the judicial system. We hope that their views will spawn discussion of the legal and moral questions about the case and the trial. We believe there are lessons to be learned from this complex litigation about the adversary system, procedural rules, and rules of conduct. This reinforces the notion that each of us must decide what purpose the judicial system should serve, and whether that purpose was served in the Anderson case.