A Civil Action or A Civil Fiction: Hollywood Instructs America on Pollution and Greed

A Civil Action or A Civil Fiction: Hollywood Instructs America on Pollution and Greed

December 31, 1998

A Civil Action, starring John Travolta, was number one at the box office in its first week of nationwide release. The underlying story, chronicled in the best-selling book by Jonathan Harr, involves a multi-million dollar lawsuit against two large corporations for harm allegedly caused by environmental pollution in Woburn, Massachusetts. The picture’s most important themes, however, are not in the morality play Hollywood puts on the screen, which is a standard tale of little guys fighting "the interests," and pretty much losing. The moral meat, which lies beyond the awareness of the movie’s makers, concerns the corrosive effects of junk science on the legal system, and the presumptiousness of Hollywood, Inc., in assuming the role of national nanny to instruct us about truth, morality and greed. Now these, and not the movie’s well-worn plot, are worth serious attention.

Realities stripped out. The Hollywood theme, in particular, is full of irony. The movie is supposed to be a tale of the greed and amorality of both the plaintiffs’ lawyer (though he redeems himself) and the corporate defendants (they do not). To create its impact, the story is presented as true. The immense publicity accompanying the movie’s release hypes its aura of "here is what happened." As the movie opens the words "Based on a true story" appear on the screen, and there was, after all, a big toxic tort case in Woburn. But beyond the most superficial facts, the important realities have been stripped out and replaced with a Hollywood fiction. The events depicted bear little resemblance to what actually happened.

In the end, A Civil Action is indeed a tale of greed and amorality, but not the one Disney/ Touchstone thought it was making. It is a story of how Hollywood’s single-minded focus on commercial values eliminates any sense of obligation to truth, and of the effect of this on our national discussion about such issues as chemicals and public health. The ultimate moral is that money indeed corrupts, and Hollywood-sized money corrupts absolutely.

Background of the Woburn case. A Civil Action, the book, is based on events that occurred in Woburn, Massachusetts, between 1972 and 1986, when 12 cases of leukemia occurred, eight of them among children. This incidence rate is about four times the national average, so suspicions were raised that some special factor was responsible. Ultimately, concern focused on two wells that had been added to the Woburn water system in 1964 and 1967 which had triggered complaints about the quality of the water. Residents said it tasted funny and that they noticed a burning in the eyes during showers. (The book does not report the frequency of these complaints – whether all users of the water made them all of the time, some of the users some of the time, or something in between, isn’t made clear. The movie doesn’t address these details either.)

The history of these wells was odd. Woburn is an old industrial area, and, in accord with the permissive attitude towards pollution that characterized the nation until the 1970s, factories, especially tanneries, had been polluting the ground and the nearby Aberjona River since the seventeenth century. The city’s new wells were drilled in a boggy area in the midst of old and current industrial sites. In 1958, engineers tested the area and concluded that "the waters of this valley are . . . too polluted to be used for a public water supply."1 Why the city nonetheless drilled the wells six years later remains unexplained.

After complaints about the water started, city authorities tested the wells repeatedly and found nothing wrong with them. State health authorities expressed concern about chemicals in 1975 and about heavy metals in 1976, but the wells stayed open. Finally, in 1979, following the discovery of drums of industrial waste half a mile away, the wells were tested for trichloroethylene (TCE), a common industrial solvent. TCE concentrations of 267 and 183 parts per billion (ppb) were found.2 This level sounds scarier than it really is; Dr. Bruce Ames, Professor of Biochemistry and Molecular Biology at the University of California, estimates that any carcinogenic risk from drinking a liter of water containing 267 ppb of TCE is less than the risk presented by the caffeic acid contained in one carrot.3

In 1981, the families of the eight leukemic children came together with Jan Schlichtman, a young plaintiff’s trial lawyer who had won a couple of moderately big cases. Indeed, according to the book, he had never lost. Schlichtman was reluctant to take on a lawsuit because of the fundamental problem that no one could pin down the contaminator of the wells, even assuming that the wells were indeed responsible for the illness.

Deep pockets found. Schlichtman changed his mind when he discovered that giant W.R. Grace, Inc., had a machine shop, opened in 1960, a half a mile from the wells, and that the J.J. Riley Tannery just across the Aberjona River had been acquired by megacorp Beatrice Foods in 1978, which made Beatrice responsible for anything that had happened since the Tannery opened in 1909. Another possible defendant, UniFirst (omitted from the movie), was even closer. Having found a "deep pocket" well of money, Schlichtmann filed suit, contending that the companies had contaminated the wells with TCE, and that the TCE caused the leukemias. Presumably the city could have been another deep pocket. It, after all, drilled the wells despite the warnings from city engineers. But as is so often the case in environmental cases, government agencies with greater culpability for environmental harm are less attractive targets in court.

The Woburn situation tied in nicely with the rising national concern about toxic waste disposal that had led to the 1980 passage of Superfund, the law requiring cleanup of hazardous waste disposal sites, and the Woburn case, with its images of dying children, became a cause celebre. In 1982, the Environmental Protection Agency added the area to its list of Superfund sites that should be cleaned up on a priority basis.

Difficult questions of proof were involved, and Schlichtman added to the trial team a Harvard Law School professor who was expert in evidence. The professor is omitted from the movie, but in the book he plays a crucial strategic role by urging the plaintiffs’ lawyers to think in terms of persuading a jury to grant hundreds of millions of dollars in punitive damages as a means of getting the attention of the big companies and punishing them for irresponsible handling of dangerous chemicals.

Beguiled by this potential pot of gold, Schlichtmann multiplied his estimates of the value of the case from a top of $25 million to $175 million. He settled with UniFirst for $1.1 million, but stood firm against Grace and Beatrice, dismissing overtures in the $8 to $10 million range. These defendants denied their liability, though they were willing to pay something to avoid the costs of defense and the hazards of trying a case involving dead children, but they would not pay Schlichtmann’s rate, and the matter rumbled on.

Hurdles faced. The case presented serious hurdles for the plaintiffs. Schlichtmann had selected the Riley Tannery as a defendant solely because it was now owned by a big corporation; he had no evidence that it had ever used TCE, disposed of it improperly, or that any waste of any sort from the tannery had ever reached the wells. (An important theme of both book and movie is that Riley’s denials were perjured. Riley does not agree, and recently filed a libel suit.)

With regard to Grace, it had used TCE to clean metal, so one hurdle was jumped. Employees also testified that they commonly tossed solvents out the back door, assuming they would evaporate. This was a common industrial practice at the time, but it helped overcome the second hurdle of proving poor disposal. The case was further boosted by discovery of six drums of paint waste and solvent that had been buried out back, and by rumors – later refuted by site investigation – that there were many more.

Even proving use and improper disposal would not get Schlichtmann home vis-a-vis Grace, though. He still needed to show that the TCE had reached the well, and that TCE is capable of causing leukemia. As a factual matter, this was actually the highest hurdle, though it receives short shrift in both book and movie.

Heartbreak beats logic. The plaintiffs’ strategy was to put the parents on the witness stand, let them tell their stories to the jury, and bet that sheer heartbreak would make up for any deficiencies in logic. This tactic was foiled, however, when the judge decided to try the case in two bites. The first focused on the technical question whether the defendants had contaminated the wells. Only if the answer was "yes" would the trial proceed on the remaining issues. This turned a show about dying children into a seminar on groundwater migration – not a good break for the plaintiffs.

The jury found for Beatrice/Riley in this initial round, since there was still no evidence on the use, let alone the improper disposal, of TCE. It found against Grace, and the trial would have gone on with Grace as the only defendant. By this point, however, Schlichtman’s firm was broke. It had devoted all its time to the Woburn case and had no income from other sources. It had spent $2.6 million on experts and research. Because of confusion over the jury’s findings, there was a serious chance that the judge would throw out the verdict against Grace and grant a new trial.

Later evidence has indicated that this would indeed have been the correct result, because Schlichtman’s theories as to groundwater movements were full of holes. His experts claimed the wells did not draw from the Aberjona River, for example. In fact, they get fully half their water from it, and the river is the source of most of the contaminating metals. W.R. Grace contends that the subsequent research also reinforces its contemporary contention that the company was a highly unlikely source for the contamination, and no one has convincingly contradicted this. Environmentalists cite the fact that Grace has spent millions on cleanup and was sanctioned by the EPA as proof of its culpability. But this money has gone to clean up its own property, and under Superfund rules Grace is liable for cleaning up the whole site if it contributed to contaminating any of it. Superfund liability says nothing about responsibility for the wells. In any event, the level of contamination on the Grace property is not particularly alarming.

The question of causation. Besides his problems in upholding the verdict that Grace’s TCE had contaminated the wells, Schlichtman faced a possibility that the judge would grant summary judgment to Grace on the issue of causation, finding no proof that the TCE had caused the leukemias. With total defeat possible, Schlichtman settled for $8 million, about $300,000 for each family after the lawyers’ multi-million-dollar expenses and fees. There is little doubt that this was substantially less than he could have gotten when the case started had he been willing to negotiate a settlement, but he didn’t. Schlichtman himself wound up with almost nothing, and eventually went bankrupt.

The movie simply assumes that TCE causes leukemia and presents the defeat as the artifact of a retrograde legal system. At the time the lawsuit was brought, TCE was indeed listed by the EPA as a probable carcinogen, but this proves little. The EPA, with its strong institutional interest in exaggerating carcinogenic threats, is prone to find carcinogens at every turn. A substance reaches the status of "probable" if it shows a carcinogenic effect in animal species when administered at high dosages. This does not mean that it will cause cancer in humans, since species differ greatly in their reactions to substances. Also, cancer is not one simple disease; it is many different ones. That a substance causes one type of cancer in some animals tells you little about its possible role in causing a different type of cancer in humans. The animal tumors that caused the EPA to label TCE as a probable carcinogen did not include leukemia, and some 35 such studies have found no such a link.4

Another important problem with rodent studies has come to the fore in the past decade. Over 50 percent of all substances tested on rodents turn out to be carcinogenic. Researchers now think the most likely explanation for this is a theory called "cell proliferation." As Dr. Daniel Byrd, head of the firm CTRAPS (Consultants on Toxicology, Risk Assessment, and Product Safety) explains it: "The high doses used in rodent tests directly damage tissues, which subsequently require repair. As new cells are created, cell division can go haywire. When this happens, new mutations that normally accompany cell divisions is some tissues can generate a cancer cell."5 A paper prepared for the American Council on Science and Health elaborates: "Instead of restoring themselves at a normal rate, cells proliferate at a frightening pace. It is believed that the galloping cell division caused by MTD testing – not the unique properties of the tested chemical – opens a potentially lethal window of opportunity for cancer to slither in and mark its victim. Thus mitogenesis [cell division] promotes mutagenesis, the induction of change in gene structure."6

Even if one does not accept this theory of cell proliferation, and some experts do not, extrapolating from high doses in animals to low doses in humans is problematical. The EPA and other government agencies take the view that there is no threshold, that a substance that is carcinogenic on high doses will be carcinogenic in low doses as well, and that there is no "safe" dose that a human can absorb. This theory remains unproven, and most independent researchers are skeptical.

If the rodent data is defective, then the problems of pinning the blame on TCE become overwhelming. Clearly, it is not a good idea to ingest industrial chemicals, pesticides, or other such substances. Many of them are acutely toxic. Ingest enough, and you die. For a few, but the number is surprisingly small, there is reasonable epidemiological evidence that long term exposure can cause cancer in some people. For the overwhelming majority, the carcinogenic connection cannot be shown. If the effect exists at all, it is lost in the noise of all the natural substances that have similar effects, such as peanut butter, natural pesticides, or the multitude of other substances labeled "probable carcinogens" that permeate our everyday lives. Roasted coffee, for example, contains 19 chemicals that test positive as carcinogens in rodents.

Dr. Ames, who is one of the most eminent and persistent debunkers of contemporary chemophobia, has put together an interesting chart. It rank orders the potential risks to humans from substances found to be rodent carcinogens, judging them by their potency in rodents. Some of the rankings are listed in the chart below.

Substance Relative Risk Carcinogen 1 sleeping pill (phonobarbital) 16 Phonobarbital 1 glass beer 2.8 Ethyl alcohol 1 apple 0.1 Caffeic acid 1 peanut butter sandwich 0.03 Aflatoxin 2 slices white bread 0.002 Furfural 1 liter tapwater (U.S. average) 0.001 Choloroform 1 liter Woburn well water (267 ppb TCE) 0.0006 TCE

Source: Bruce N. Ames & Lois Swirsky Gold, "The Causes and Prevention of Cancer: The Role of the Environment," in Ronald Bailey, ed., The True State of the Planet (New York: The Free Press, 1995)

At least four human studies have looked at occupational exposures to TCE without finding any statistically significant increase in any type of cancer. Schlichtman also also faced a problem that he did not even know about. Some subsequent, preliminary work by Dr. Byrd and his colleagues raises a strong likelihood that the induction of the leukemias in Woburn actually occured before any exposures to TCE.7

In general, despite the general alarm over toxic chemicals, the heavy-duty tools of medicine and epidemiology have never linked any human harm to long-term exposure to chemicals discarded into the environment. Not at Times Beach, not at Love Canal, not at the Valley of the Drums, and not at Woburn. The Superfund program is part disaster and part joke, pouring hundreds of billions of dollars into cleaning up sites that present no discernible risk to humans as long as some elementary, and cheap, methods of containment are practiced.

Changing the burden. Perhaps Schlichtman could not prove with science that TCEs lead to leukemia in anyone. But plaintiffs’ lawyers have developed some ingenious ways to deal with such inconvenient problems. He planned to use the common one mentioned before: Argue that even if plaintiff cannot prove that the substance did cause the disease, the defendant cannot prove to an absolute certainty that it did not. As a matter of formal law, this should not work, since a plaintiff has the burden of proving his case. As a matter of practical law, it works all the time. Causation is an issue of fact for the jury to decide, and sympathy for the plaintiff can trump logic.

Veteran lawyers know that sympathy is particularly likely to make up for holes in the science if plaintiffs can show that a defendant handled chemicals sloppily, without due respect for the possibility of harm. This will sway a jury to find for plaintiff on the causation issue. If, on the other hand, the defendant was careful, then the jury will buy the defense argument that causation has not been shown. Schlichtman was not crazy to think that if he could show sloppy practices by Grace or Beatrice and fuzz up the issues of groundwater migration and scientific causation in a cloud of contradictory experts, he could win.

A second device used by plaintiffs is a medical specialty called "clinical epidemiology." Not formally recognized by the medical establishment, this field has arisen to fill a niche in the legal food chain caused by the lack of scientific evidence linking low-level chemical exposure to cancers. Clinical epidemiologists testify as expert witnesses that Chemical X (fill in the blank) suppresses the immune system, thus leaving the body open to a multitude of disease processes. This theory, which is unsupported by any standard method of scientific research, has the handy characteristic of agglomerating totally different symptoms. Sore throat? It was chemical X. Cancer? Chemical X. Ulcers? Yep. Skin rash? To a medical certainty. And so on.

The essence of the technique is to find a population that might have been exposed, get medical histories, and then attribute every complaint of every description to Chemical X. One of the beauties of the approach is that it ties together plaintiffs who exhibit widely diverse symptoms. They do not have to claim that TCE caused leukemia or any other single disease, only that TCE suppressed their immune systems, and this led to leukemia, liver cancer, brain tumors, and whatever other complaints can be found in the population. All the natural ills to which the flesh is heir are attributed to the exposure.

Clinical epidemiology can lead to a reverse-placebo effect. Everyone is familiar with the idea that sick patients given a placebo often feel better. The opposite holds true, too; well people told that they have been exposed to a deadly substance are likely to start feeling poorly, and to notice minor symptoms that are usually ignored. A law suit, or even publicity alone, can set up self-reinforcing feedback loop that multiplies the apparent seriousness of the problem.

Clinical epidemiology was an important part of Schlichtman’s case. He spent piles of money on various medical experts, some reputable and some not so much so, in an effort to find common ailments that could be attributed to TCE even in the absence of a clear scientific link. He administered numerous tests, with results interpreted in diametrically opposed ways by experts for the two sides. He looked for almost any possible medical condition common to the exposed populations, designed to show that the well water was doing something, so why not leukemia?

The book is ambivalent about clinical epidemiology. The movie does not discuss the issue at all, simply assuming that the necessary proof of causation would be forthcoming if enough money were spent on medical tests. Neither notes that the continuing use of clinical epidemiology in product liability cases played a crucial role in recent appellate court decisions allowing trial courts to get tougher about excluding expert testimony that fails to meet the standards of scientific inquiry, what is otherwise known as "junk science." The movie re-trys the defendant corporations in front of a jury of junk scientists, and finds them guilty.

Who’s the greedy one? The movie promotes dramatic impact by portraying Schlichtman as a greedy materialist who scorns the deserving plaintiffs until he sees rich defendants, gets into it for the money, and gradually gets drawn into the justice of his clients’ cause. Schlichtmann, who has become a regular on the C-Span book show circuit, was once asked his view of this portrayal. His answer won my heart. He noted that John Travolta gave an interview describing his early reluctance to take on the role of the greedy lawyer; in fact, the studio had to pay him $20 million before he would agree to play such a distasteful character. Since this was $20 million more than Schlichtman would ever make out of the whole affair, and did not involve years out of Travolta’s life either, Schlichtman found Travolta’s assertion of moral superiority tough to take.

The case, he said, was about many things. The movie was much simpler – it was about drawing an audience and making money. Who were its makers to presume to judge him, especially when Hollywood personalities routinely collect sums beyond the dreams of ordinary avarice? He has a good point. The movie is a tale of the greed and arrogance of the both sides, the corporations and the plaintiffs’ lawyers, and their lack of interest in finding the truth. "Truth? I thought this was a court of law," is a sample manufactured quote put into the mouth of one character. The plaintiffs’ ultimate loss is depicted as due to the ability of deep pocket defendants to wear them down with litigation, plus a judge who favors the defendants, not to the more fundamental problem that their case could not be proven because it lacked factual merit. Only the families, who have always said that what they really wanted was not money but an explanation and an apology, are treated sympathetically.

In reality, Schlichtmann could not show causation because such evidence did not exist, but he was bedazzled either by dreams of true riches or by a determination to force the companies to admit their fault. (In the book, it is never clear which motive dominated; in the movie, it is clearly a quest for justice.) He could have settled early for more than he got in the end, but in pursuit of a chimera he threw millions of dollars into a bottomless pit, led his clients on to disappointment, and bankrupted himself.

The real motivations of the defendants are also less nefarious than they appear in the movie. They had strong reason to deny guilt because the overwhelming odds are that they were in fact not guilty. And they would fight not solely out of fear of financial liability but because corporate officials do not like to believe that they cause leukemia in children, and they are not going to believe it without convincing evidence and credible scientific theory.

A real tragedy in the situation is that the families never had any chance of getting what they wanted. Their first desire, for an explanation, is not within the ken of science; no one knows what, if anything other than chance, caused the Woburn cluster. Hundreds of cancer clusters have been examined over the years, and, while researchers remain uncertain, the dominant view is that they are due to chance. As the book makes clear, Woburn is not the only leukemia cluster of recent times, and the others are also unexplained. A jury decision for the families could have provided them with a scapegoat, but not with a valid explanation.

The families’ desire for an apology was also unmeetable. Given the companies’ extreme reluctance to believe that they were responsible, the proof would have needed to be much more convincing than anything available at Woburn. Again, a jury verdict based on emotion and junk science would have not have produced an apology any more than it would have provided a true explanation.

But messy realities create problems for Hollywood. The story of a lawyer seduced by his own hopes into overplaying his hand against a couple of companies defending themselves against charges that are not true lacks commercial appeal. Commercial is a story of a redeemed sinner battling corporate callousness. So the story had to be changed and simplified.

The need to morph the story into a Hollywood fable did not mean that the story should be portrayed as fiction. To purport to provide the inside scoop on a newsworthy event is a sure method of hyping interest and selling tickets. No doubt the movie attracted greater interest because it purports to be "true." Real villains and victims, not fictional ones, are needed for the talk shows, which further enhances the buzz. So now we have the story as put on the big screen, with the commercial advantage of Hollywood dictating that the families be portrayed victims of cynical lawyers, a stacked legal system and corporate rapacity. Perhaps this will make them feel better than if they saw themselves as victims of chance and fate, but it seems doubtful.

More victims. Beyond reopening the families’ wounds and slurring the companies, the movie will add some new victims, such as historical truth, hopes for legal reform of products liability law, public understanding of the hazards (or lack thereof) presented by chemicals and waste sites, and any chance for a badly-needed revamping of Superfund. Environmentalists, seeing a chance to further their own agenda, are piggy-backing onto the misleading features of the movie to stoke the fires of chemophobia, despite the lack of evidence that waste disposal is worth much concern.

But the Hollywood players will exploit the historical distortion and societal damage to get richer. So the movie does indeed tell us something about the workings of greed and the consequences of a lack of interest in the truth, though perhaps not quite what its makers intended.

James V. DeLong is the author of Property Matters: How Property Rights Are under Assault – and Why You Should Care (Free Press, 1997) and an Adjunct Scholar with the Competitive Enterprise Institute. He is a graduate of the Harvard Law School, and a former editor of the Harvard Law Review. His website is http://www.regpolicy.com.

For more critical commentary on A Civil Action, check out the Civil Action Skeptic's page: http://members.tripod.com/OlsonW/civilact.html

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1Excerpts from "Report on Improvements to the Woburn, Massachusetts Water System," by Whitman & Howard, Inc., August 1958 (available on the W.R. Grace website, http://www.civil-action.com/facts/keydocuments). 2Later studies have shown that the wells also pumped arsenic, chromium, and other toxic metals released by many industries, beginning in the early 1900s and peaking in the 1920s and again in the early 1960s. These are more worrisome than the TCE, but they had nothing to do with the defendants in this case. 3Bruce N. Ames & Lois Swirsky Gold, "The Causes and Prevention of Cancer: The Role of the Environment," in Ronald Bailey, ed., The True State of the Planet (New York: The Free Press, 1995), pp. 141, 161-63. 4Michael Fumento, "Disney Pollutes," Forbes, December 28, 1998. 5Dr. Daniel Byrd, Personal Communication. 6Joan Greenberg, "When Rodents Rule," Priorities, Vol. 3, No. 1 (1991) (available at http://www.asch.org/ publications/priorities). 7Dr. Daniel Byrd, Personal Communication.