I.

The City of Woburn, Massachusetts, wherein the factual antecedents of the case took place, is not very prosperous under American standards as compared to major American cities.1 The citys history may be said to be intertwined with the leather industry seeing as the first major commercial enterprise in the city was a tannery. Its local economy relied heavily on income derived from industrial companies engaged in the manufacture of leather goods and other allied industries. Most of the residents of the city are employed as workers in factories, most of which are tanneries. But the local leather industry, unable to cope up with foreign competitors, took a steady decline since the days of the Second World War. Around the time the events in the book took place, the only factories left in the city were the J. J. Riley Tannery, the W. R. Grace Chemical Factory, and the Unifirst Corp. Factory. On January 1966, Woburn was struck by a sudden epidemic of leukemia wherein most of those afflicted were children. This turn of events was alarming not only because leukemia had a very high mortality rate, but also because it was ordinarily a rare disease, wherein fewer than four out of one hundred thousand children were afflicted per year. Anne Anderson2, a 35-year-old mother whose son was also ailing from leukemia, was the first to notice the rampant spread of the disease among children in the area. She made a record of the children whom she knew were suffering from leukemia and she suspected that there was something in the water supply that caused the epidemic. At around 1965, it was common knowledge in the eastern part Woburn that there was something odd in the water. People often complained that there was a change in the way the water tasted and smelled. This change in the state of the water supply coincided with the drilling of a new well to augment the citys insufficient water supply. Another well was drilled three years later. These two wells, named Well G and Well H3, mainly served only the residents of the eastern part of Woburn. However, the two wells were shut down when findings of the health department revealed the poor bacterial quality of the water coming from the two wells. The citizens relented from this order and demanded that the wells be reopened and the water be treated with chlorine. It was as late as 1979 when Anne Andersons fears about the water supply were finally confirmed. Almost two hundred barrels of industrial waste were discovered in Woburn. These barrels were dumped by an, as yet, unknown individual. The Environmental Protection Agency4 deemed it prudent to analyze the water supply for possible contamination and it was revealed that the water supply, particularly Wells G and H, was heavily contaminated with trichloroethylene (TCE), an industrial solvent commonly used to dissolve grease and oil. The news soon spread that Woburns water supply were tested positive for trace amounts of arsenic, which was a known carcinogen (causes cancer). Several remains of animal hides, hair and slaughterhouse wastes, were unearthed.

According to the Woburn website, it had an estimated population of 31,214 (in the 1960s) and a median household income is $54,897 in 1999 dollars 2 Plaintiff in Anderson v. Cryovac (96 F.R.D. 431), the case on which the book was based 3 The eight wells supplying water to Woburn are named Wells A through H 4 The American counterpart of our Department of Environment and Natural Resources

A total of eight families affected by the incident planned to institute a class suit against who they thougt were the obvious culprits of the contamination: the companies operating the tanneries and chemical factories in Woburn, namely, Beatrice Foods, Inc. (who owned the J. J. Riley Tannery) and W.R. Grace & Co. (who owned the chemical factory)5 They engaged the services of Joseph Mulligan of the firm Reed & Mulligan as counsel. Considering the fact that the victims lived not far from each other, it was not difficult to establish causality between the contaminated water supply and the sudden outbreak of leukemia among children in eastern Woburn. Mulligan even commented that it was almost res ipsa loquitur. However, until the EPA concludes its investigation, it was very difficult to determine who caused the contamination of the water supply in the first place. In early 1981, Anne Andersons son finally succumbed to leukemia. Several days later, an EPA Report on the Woburn water supply contamination was released. It stated that although the contaminants were not known to cause leukemia, the fact that organic contaminants were found in the water supply must be emphasized. It was also stated in the report that the cause to the contamination was still unknown and that further investigation was needed to finally locate its source.

II. The Woburn water contamination case was ultimately assigned by the firm to Jan Schlichtmann; a selfproclaimed personal injury lawyer. Jonathan Harr paints the image of Schlichtmann, at least in the beginning, as flamboyant and opulent; the latter always well-dressed in signature suits and drives around in his most prized possession a black Porsche 928 sports car. Among the cases Schlichtmann handled early in his career was the Fairmont Copley Plaza Hotel fire case6, which (at the time) was the biggest wrongful death settlement in Massachusetts history. From the beginning, Schichtmann recognized the difficulty of proving the case. Leukemia, during those times, was a disease not yet clearly understood by medical science. He studied the EPA Report on the water contamination and found that the said agency did not directly attribute the incident to the two companies. Even the other lawyers who assisted him didnt like the Woburn case, calling it a black hole. But despite all its difficulties, the Woburn case piqued Schichtmanns interest. On 14 May 1982,only eight days before the lapse of the statute of limitations, a complaint was filed with the Boston Superior Court. III. A copy of the complaint was served in the office of Jerome Facher, counsel for defendant Beatrice Foods. Facher, who was also a Harvard Law professor, wasnt too worried about the complaint; he
5

Later on, defendant W.R. Grace & Co filed a motion to add Unifirst Corp as a third party in the civil case, because it was one of the companies being investigated by the EPA as a possible sources of the water contamination 6 This involved a fire which occurred on March 29, 1979, which was caused by a disgruntled former employee of the hotel. The fire caused the death of one person and burn injuries to thirty others. Schlichtmann managed to settle the case for $2.5M.

figured that the plaintiff has the burden of proving the allegations therein and it was very difficult to establish causation. In their Reply, they merely stated that the defendant lacked knowledge or information sufficient to form a belief as to the truth of the allegations stated in the complaint and merely admitted that the land consists, in part, of wooded fields and marshlands and that there was a dirt road next to the marshland along which are deposited numerous tanks and drums in various conditions. William Cheeseman, counsel for defendant W. R. Grace, on the other hand, regarded the complaint as a very serious matter. He specialized in pre-trial maneuvering, and as shown in the book, has employed several tactics to prevent or at least delay the litigation. The first move that he made was to send a letter to the plaintiffs counsel, which almost threatened the latter to withdraw the case or else he would seek an award of attorneys fees and expenses against them. Cheeseman also moved to removal of the case from the Massachusetts State court to the US federal court, which he believed was more lenient to corporations. It was also Cheeseman who tried to prevent the trial of the case through a motion to dismiss under Rule 11 of the Federal Rules of Court. At that time7, Rule 11 was yet amended to be amended since 1938; it was regarded as a neglected, poorly-worded rule. Under the 1938 version of Rule 11, a complaint may be stricken and an action dismissed upon motion if such complaints were filed without belief that there was good ground to support the allegations made against a defendant. The rule was intended to prevent the filing of frivolous and unsubstantiated lawsuits.8 The motion filed by Cheeseman also included serious allegations of client solicitation. Personal-injury lawyers are often referred to as ambulance chasers; a derogatory term. One of the most common allegations against lawyers in this particular practice is the charge of Barratry9, which is the unethical solicitation of cases, where lawyers take advantage of an event as a way to find clients. It is synonymous to ambulance chasing the name of which was derived from the stereotypical and often comical practice of some lawyers that follow ambulances to the emergency room in order to solicit clients. Cheesemans charge of barratry was based on the co-defendants communication that Schlichtmann

It must be noted that Rule 11 had since been amended twice; in 1983 and in 1993. It is somewhat a controversial Rule; tort reform advocates in the US contend that the latest version had a chilling effect i.e., it discourages the legitimate exercise of a constitutional right under pain of legal sanction. 8 Probably, the closest counterpart of Rule 11 under Philippine Law are (a) Rule 7, Section 3 [par. 2]: The signature of counsel constitutes a certificate by him that he has read the pleading; that to the best of his knowledge, information, and belief there is good ground to support it; and that it is not interposed for delay; and (b) Rule 8, Section 12: Upon motion made by a party before responding to a pleading or, if no responsive pleading is permitted by these Rules, upon motion made by a party within twenty (20) days after the service of the pleading upon him, or upon the court's own initiative at any time, the court may order any pleading to be stricken out or that any sham or false, redundant, immaterial, impertinent, or scandalous matter be stricken out therefrom. 9 It should be noted that barratry is subject to multiple legal meanings; under Maritime Law it may also pertain to gross misconduct of the crew which causes damage to the vessel and/or its cargo.

collected plaintiffs to join the class suit. Cheeseman attempted to submit an in camera10 affidavit in order to substantiate the charge of barratry. Judge Walter Jay Skinner, who handled the case in the US Federal Court, was unimpressed by Cheesemans attempt to submit an in camera affidavit to prove the commission of barratry by the plaintiffs counsel; and refused to admit such evidence. The hearing on the Rule 11 motion, however, proceeded accordingly. And in a surprising turn of events, Schlichtmann, counsel for the plaintiffs, was asked to take the stand and to testify as to the grounds which supports the filing of the complaint11. He was able to establish sufficient proof, in the form of the EPA reports and CDC studies, and the Rule 11 Motion was accordingly denied. Upon the denial of the Rule 11 Motion, Schlichtmann felt that the Woburn case was already in the bag and for a period of one and a half years, the case was neglected in the files. IV.

References: I a. The Official Website of the City of Woburn, Massachusetts. http: //www. cityofwoburn.com. accessed 26 Aug 2012 b. Knight, Michael. 2,000 Flee 2 Boston Hotel Fires; 64 Hurt; Ex-Busboy Arrested on Arson Charge. http://query.nytimes.com/gst/abstract.html?res=FB0615F6355D12728DDDA90B94DB405B898B F1D3. via Wikipedia Article. http://en.wikipedia.org/wiki/The_Fairmont_Copley_Plaza_Hotel., accessed 26 Aug 2012

c. Anderson v. Cryovac, Inc., 96 F.R.D. 431(D. Mass. 1983)

10

Meaning, a secret or private affidavit, used to protect secrets such as matters of national security or trade secrets, or in this case, attorney-client privilege 11 It submitted that it is highly unlikely, close to impossible, for this to happen in our jurisdiction.

d.