Next Case

By ADAM COHEN

Nineteen-year-old Michael Gillick was diagnosed with neuroblastoma at the age of 3 1/2 months. His cancer--which has spread to his face, bones and heart, filling much of his body cavity--could kill him at any time. Michael is just one of more than 100 children with cancer in or near the small town of Toms River, N.J. (pop. 7,524). It's the kind of disproportionate grouping that epidemiologists call a "cancer cluster." Residents put the blame on local companies that allegedly discharged cancer-causing chemicals into the water supply. Determined to get the situation investigated and their community cleaned up, the families have called in a tall, forceful lawyer from Massachusetts named Jan Schlichtmann. He's helping Toms River fight for justice in a real-life drama brimming with heartbreak, courage and mystery.

Sound familiar? Didn't you see this on the screen just last weekend at your local multiplex? Toms River could easily be a sequel to A Civil Action, the new movie based on the best-selling nonfiction book by the same name. Starring John Travolta as Schlichtmann, A Civil Action is a compelling tale of how the federal courts chewed up and spat out the cocky lawyer and the working-class families he represented in a suit that charged large industrial polluters with contaminating the water supply of Woburn, Mass. Expenses mounted so fast that Schlichtmann lost his Porsche and condo and filed for personal bankruptcy. The judge, in a questionable ruling, barred the parents of the leukemia-stricken children from testifying at trial. And the jury, its hands tied by the judge's instructions and denied access to important evidence, ended up ruling against the families on key parts of their suit. (The Environmental Protection Agency later found the companies liable for improper disposal of toxic chemicals and ordered them to help pay for a $70 million cleanup.)

Following the events depicted in A Civil Action, a devastated Schlichtmann moved to Hawaii, opened a lighting business and vowed to give up the practice of law. After the tortures of the Woburn case, which wiped out nine years of his life, escaping to sunnier shores seemed like a reasonable response. But Hawaii held him for only three years. Now he's back East with new clients in polluted communities in New York and Massachusetts as well as in Toms River. Has he forgotten the lesson he learned? Is he hunting for another monster lawsuit that will crush him into the ground? Schlichtmann--now married with two children, and seemingly more stable than in his frenetic Woburn days--says no. He claims to have become an apostle for a completely different approach to environmental law. "I don't have another Woburn left in me," he says today. "We need to come up with another way."

Schlichtmann found that other way in Lowell, Mass. He represented eight families whose homes were built on land where toxic wastes had been dumped by the Colonial Gas Co. The residents were already suffering from heart and lung trouble caused by cyanide and other chemicals, according to a state public health study, and they were worried about more serious health effects from long-term exposure. The old Schlichtmann would have rushed to file a multimillion-dollar lawsuit, commissioning elaborate expert studies and taking scores of depositions. But the battle-scarred Schlichtmann instead entered into a three-way mediation with Colonial Gas and state regulators. After only six months of negotiation, the parties worked out a $2.75 million settlement in which Colonial, without admitting liability, agreed to buy the families' homes, pay damages and clean up the site.

Schlichtmann is hoping to apply similar techniques--lawyers call it "alternative dispute resolution"--in the area around the Brookhaven National Laboratory on Long Island, N.Y. Residents charge that the high cancer rate in nearby neighborhoods--including as many as 19 cases of rhabdomyosarcoma, a very rare and usually fatal childhood cancer--has been caused by radiation leaks from the lab. When Schlichtmann was brought in, he advised the community to try to work with Brookhaven. "He steered us away from the aggressive litigation model from the beginning and urged us to open a dialogue," says Scott Cullen, a lawyer for Standing for Truth About Litigation (STAR), an East Hampton-based environmental group that has been leading the charge against Brookhaven. "He taught us that the result of all the litigation in Woburn was that more money was spent on the lawsuit than on resolving the problem." STAR has commissioned expert studies, which it hopes will pressure Brookhaven to undertake a more thorough investigation of its environmental impact on the area. It's too soon to tell what the results of these efforts will be. Brookhaven denies the charges, and some scientists have already expressed skepticism that there is any link at all between the laboratory and the local cancer rate. But so far, no one is arguing that going to court would settle the matter any faster.

Schlichtmann's greatest challenge may come in Toms River. The community says its 100 cases of childhood cancer are about 30% more than would be expected by chance. As in Woburn, the families of the affected children charge that their cancer is a result of chemical waste that two companies--in this case, Union Carbide and Ciba Specialty Chemicals--allowed to seep into the water supply.

When Schlichtmann became involved with the Toms River situation about a year ago, he once again advised the families to adopt nonconfrontational tactics. The parties agreed to an 18-month legal moratorium while the problem is investigated. During this period, federal and state officials have been taking water samples and analyzing data. Government toxicologists will work cooperatively with a Union Carbide scientist and one hired by the community. And parents have been talking directly with Union Carbide and Ciba Chemicals.

Linda Gillick, Michael's mother, says it has taken an emotional toll on her to sit down with the companies she believes may be responsible for her son's condition. But after reading A Civil Action, she was convinced that litigation would be worse. "I don't want a judge to sit up there and decide testimony can't be given by the families that were affected," she says. Gillick believes the negotiations have already given the families more facts about the situation in Toms River than they would have gleaned from years of court proceedings. "The cooperative approach means everything," she says. "Shouting and screaming doesn't do a thing." Ciba and Union Carbide dispute the allegations against them. "We see no evidence that the groundwater on this site is associated with the childhood cancers," says Donna Jakubowski, director of external affairs for Ciba. But they too may be better off talking with the families than defending a high-stakes lawsuit.

It's tempting to trace Schlichtmann's redemption to a particularly painful scene in the movie version of A Civil Action. While the jury is deliberating, a defense lawyer takes a $20 bill out of his pocket and asks Schlichtmann how he would feel about settling the case for that bill plus six zeros, or $20,000,000. Schlichtmann spurns the offer--and then the jury comes back with a verdict exonerating that defendant. Schlichtmann insists the scene did not happen that way in real life, and that the defendants never would have paid $20 million to settle the case. True or not, the vignette drives home an important point: settlement is usually simpler, less costly and certainly far more predictable than taking an environmental-law case to a jury.

The hard part about negotiation is that all parties need to agree for it to work. Toms River and Brookhaven are still in the easy stage: talking and exchanging information. If negotiations break down, Schlichtmann could find himself back in federal court. The prospect of reliving the case that made him famous is not something he looks forward to. "Woburn was a war, a nine-year war, and like all wars it was wasteful and destructive," says Schlichtmann. "Like any veteran, you come out saying 'Why war?'"