In the book, A Civil Action, by Jonathan Harr, a plaintiff’s attorney is called upon to prove that a cluster of cancer deaths in a town called Woburn were caused by the pollution of city water wells by factories owed by two corporate entities, Beatrice, and Grace.
The liability phase of the trial, separate from the proximate cause trial entailed testimony presented to prove or disprove that the factories in question were responsible for the presence of carcinogenic chemicals in the city’s well water. Thus, the witnesses were all presented to prove or disprove this allegation.
The tannery owned by Beatrice and the factory owned by Grace both were in proximity to the wells, and both are alleged to have illegally and irresponsibly dumped a dangerous chemical, TCE on the premises, leading to the contamination of the wells.
While the plaintiff’s witnesses were not entirely convincing, they, along with the cross-examination of the defendants witnesses, provided sufficient proof by preponderance of the evidence to find both companies liable.
The plaintiff began by establishing the fact of illegal dumping on both sites. He called numerous long-time residents of Woburn, who testified to witnessing the dumping or venting of whitish-grey powder, barrels, and foul-smelling sludge on the grounds around the city by the factories.
(305) Coupled with photographs of abandoned barrels and waste piles on the land in question, the plaintiff established to a reasonable degree of certainty that the tannery was dumping chemicals on the land. As a hostile witness, the plaintiff also called John Reiley, the manager of the Tannery.(306)
He vehemently denied any dumping, but was unable to explain the destruction of records for a 10-year period relevant to the case.(313) Despite documentation that proved otherwise, he denied being warned about dumping by the state health agent, A.C. Bolde. (306).
Riley’s demeanor and denial of evidence before him made him extremely hard to believe. It was his testimony, in the manner rendered, that most hurt Beatrice.
The Plaintiff also called several experts on soil and groundwater behavior. The first of these was a soil expert named Mr. Drobinski. (303) He testified to the presence of the TCE in the soil.
The defense established on cross-examination that Drobinski had misreported the date his Masters Degree was conferred. (304)Since they did not attack the substance of his testimony, only his credibility in an oblique manner, his word that the TCE did enter the soil stood undisputed.
The second expert that the plaintiff called, a hydrologist named Dr. Pinder (325) fared less well in the area of credibility. He did testify to the manner in which the toxins got from the factories’ property to the city’s wells, but was caught out as incorrect on his theory as to why the Aberjona River did not cause the contamination.
The substance of his testimony was rendered neutral by the constant back-and-forth on cross examination. (327-337) Only his testimony that the contamination could have reached the wells from the factory properties survived intact. Given what the other witnesses had to say, this assertion went largely unchallenged in any case.
In their case against Grace in particular, the plaintiff called Frank McCann, an employee who admitted that the Grace factory used TCE in quantities of about a half-gallon a day. (317) Though he vehemently denied dumping the waste, he could provide no alternative explanation for its disappearance.
Tom Barbas, another Grace employee, admitted to “placing” waste on the ground outside the factory (318). He further admitted witnessing other employees dumping buckets of unknown material on the land. These witnesses effectively established that Grace was dumping waste on the land, and that it was probable that TCE was part of that waste.
Despite the plaintiff’s witnesses, they were still left with a weak case in terms of connecting the poisoned well water to the factories in question. Having established that both companies dumped the waste, the plaintiffs did not satisfactorily explain the transfer of the toxins from the land to the City’s wells.
Cross-examination of the defenses witnesses brought that issue to light, and strengthened the Plaintiff’s case more than that of the defendants. Beatrice called Thomas Mernin, the Wobern City engineer, to dispute the presence of toxins in the wells. (342)
He ended up convincing the jury that he had incompetently left the wells open despite their danger, and even recommending a new well in the same area. His testimony did nothing to ease the allegation that the wells were poisoned. (343)