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CONSIDERING A CIVIL ACTION
The View from the Bottomless Pit: Truth, Myth, and
Irony in A Civil Action
Jerome P. Facher*
I. INTRODUCTION
A. Prelude to A Civil Action-Court Proceedings in Anderson
For almost
nine years, Anderson v. Cryovac, Inc. occupied some
or all of my attention as counsel for Beatrice Foods Company. Ander-
son was a personal injury tort case brought by thirty-three
plaintiffs
against two "deep pocket" defendants, W.R. Grace & Company
(Grace) and Beatrice Foods Company (Beatrice). It was said to be the
first "toxic tort" suit for
personal injury and deaths allegedly caused
by consuming water from contaminated town wells. Anderson was
filed in the Massachusetts Superior Court in May 1982 and was
removed to federal district court in
June 1982, where it was assigned
to Judge Walter Jay Skinner. Reading the complaint in 1982 and the
material that accompanied it gave me a glimpse
of the tangle of scien-
tific, technical,
industrial, medical, and legal issues that the case pre-
sented, but in no way foreshadowed the magnitude and
complexity of
the litigation which ensued. No one could have foreseen that there
would be a book,
A Civil Action, about the litigation, a movie of the
same title, numerous television documentaries about the case, a text-
book about the court materials, and widespread academic interest in
- Jerome P. Facher is a senior partner and former Chairman of the Litigation Department
of the Boston law firm of Hale and Dorr LLP. Mr. Facher taught Trial Practice at Harvard Law
School for twenty-nine years and is a Fellow of the American College of Trial Lawyers. He rep-
resented Beatrice Foods in the Anderson case and has written and lectured extensively on
the
case, on civil procedure and trial advocacy, and on the book, A Civil Action.
244 Seattle University Law Review [Vol. 23:
using A Civil Action and the Anderson case as a tool for teaching civil
procedure, or as the basis for a new law school course.
The Anderson complaint alleged certain chemicals disposed of or
deposited on each of the properties owned by Grace and Beatrice had
contaminated the groundwater, which thereafter traveled to the Wo-
burn town wells (which had closed in May 1979), causing deaths and
various injuries to the plaintiffs who had consumed the well water.'
The Beatrice property consisted of two separate parcels Beatrice had
purchased in 1979 and owned until 1983. Both parcels were west of
the town wells and separated from them by the Aberjona River.
2
One
parcel consisted of fifteen acres of heavily contaminated vacant land
that was a superfund site ("the fifteen acres"). The other was a nearby
parcel to the southwest of the fifteen acres on which the buildings and
facilities of the John J. Riley tannery were located ("tannery pro-
perty"). The fifteen acres, and not the tannery property, was the focus
of the plaintiffs' complaint and the trial. However, the complaint did
not allege that Beatrice had used or disposed of TCE (as was alleged
against Grace), but only that chemicals "deposited" on the fifteen
acres (by unidentified companies) had contaminated the groundwater
and been drawn to the wells when they were pumping.'
After an enormous amount of pretrial discovery, trial began in
March 1986. The case was to be tried in three phases. The first phase
would determine whether each defendant had used and disposed of
the chemicals and whether contaminated groundwater from each
defendant's property had traveled to the wells before they closed in
If the jury determined that these two essential prerequisites
were present, the next phases of the case would try the issues of injury,
medical causation, and damages.
- The case involved five or more specific chemicals. For purposes of this Article (as it was
in the case), the principal chemical is trichloroethylene (TCE).
- The Grace property was northeast of the wells and on the same side of the Aberiona
River as the town wells.
- Plaintiff's Second Amended Complaint for Injury, Wrongful Death and Injunction
(filed Mar. 7, 1983), Anderson v. Cryovac, Inc., Civ. A. No. 82-1672-S (D. Mass. filed June 3,
1982), reprinted in LEWIS A. GROSSMAN & ROBERT G. VAUGHN, A DOCUMENTARY COM-
PANION TO A CIVIL ACTION 62, 72 (1999). Many of the court papers in Anderson have now
been collected in this new and valuable textbook authored by Professors Lewis Grossman and
Robert Vaughn of American University's Washington School of Law. [Please note: The actions
that form the basis of A Civil Action were brought by the plaintiffs against multiple defendants.
These actions were consolidated in federal district court and brought under a single docket num-
ber (Civ. A. No. 82-1672-S). Although it is Bluebook practice to provide only the first of multi-
ple case names in a consolidated action, the editors have provided the names of the specific
parties involved in the litigation matters referred to by Mr. Facher, to aid our readers in their
research. - Eds.]
Seattle
University Law Review
whether the nonproduction of the Yankee Report had substantially
interfered with a possible plaintiffs' case based on the theory that the
contamination of the wells had come from the tannery property as
opposed
to the
fifteen
acres.
12
Pursuant to the mandate
of the court of appeals, Judge Skinner
held
a twenty-three day evidentiary inquiry over a ten month period in
1989 and fully investigated
the circumstances surrounding the non-
production of the Yankee Report and other matters. Judge Skinner
issued findings
and decisions in July and December 1989. In his Final
Report, Judge
Skinner concluded that there had been no substantial
interference with any "tannery case" and that no "tannery case" had
ever existed. Judge Skinner
recommended that there be no new trial,
and that plaintiffs' counsel be sanctioned
for violating Rule 11 and 28
U.S.C. § 1927 by bringing and continuing to prosecute a claim against
the tannery knowing that there had been no evidence
of any use or
disposal of TCE by the tannery.'" In 1990
the First Circuit accepted
Judge Skinner's Final Report and recommendations, upheld the denial
of the motion to vacate, and affirmed
the judgment for Beatrice.
4
B. The
Book, the Movie, and Beyond
In 1995,
the best selling book, A Civil Action, by Jonathan Harr
was published, followed about a year later by the paperback edition.
In 1998, the movie, A Civil Action, was released. The book was writ-
ten from the author's vantage
point inside the plaintiffs' camp, where
he was privy to the plans, secrets,
conversations, and confidences of
plaintiffs and their counsel.'" The book was not intended, nor was it
written, as a neutral or impartial portrayal of the merits of the litiga-
tion, the litigants, or their counsel. Sympathetic to the plaintiffs, the
book's
account of the Anderson case is told almost entirely from the
plaintiffs' viewpoint with the plaintiffs' counsel as the main character
(if not the flawed "hero"), whose words, thoughts, actions, reactions,
and imaginings are central to the narrative
and to the book's implicit
advocacy of the plaintiffs' viewpoint and the impression that the civil
justice system operated to thwart their claims.
Anderson v. Cryovac, Inc., 862 F.2d at 932-33 (lst Cir. 1988). The district court later
referred to this claim or theory as the "tannery case" to distinguish it from the "fifteen acres
case," which had already been tried and finally disposed of by the court of appeals. See Ander-
son v. Beatrice Foods Co., 129 F.R.D. 394, 397, 402 (D. Mass. 1989).
- See infra Part III.G.
- Anderson v. Beatrice Foods Co., 900 F.2d 388 (1st Cir. 1990).
- JONATHAN HARR, A CIVIL ACTION 493 (1995). All citations to A Civil Action are
from the hardcover edition published by Random House in September 1995. References to the
movie are to the version released in 1998 and available on video in July 1999.
[Vol. 23:
Truth, Myth, and Irony in A Civil Action
Although the movie has not achieved any enduring fame, the
book itself has become recommended or required reading at more than
fifty law schools and, in some schools, is the basis of a specialized
course in civil procedure. However, this carries with it the twin dan-
gers of using the book for a purpose for which it was not intended and
of encumbering an outstanding work of nonfiction with an academic
mission it has not sought and cannot achieve. Taken alone, A Civil
Action, although excellent reading, offers no independent legal schol-
arship, nor can its subject, the Anderson case, serve as a learning model
for civil litigation. Moreover, A Civil Action provides no valuable
insights into how complex cases are tried, how federal judges manage
such cases, or how the civil justice system works, nor does it reflect an
understanding of the significance of the important procedural events
that shaped the Anderson case. This lack of understanding and litiga-
tion insight, and the author's close association with the plaintiffs' case
(including the sympathetic reaction from the public), may well explain
some of the book's important omissions which, if corrected, would
have made A Civil Action and the overall impression it creates some-
what less one-sided, and somewhat more accurate.
This Article offers the observations, analysis, and commentary of
Beatrice's chief trial counsel about some of the important issues and
rulings in Anderson, the accuracy of the events reported in A Civil
Action, and the misimpressions created by the book's undoubted tilt in
the plaintiffs' direction. Wherever possible, this Article's effort to
balance the scales relies on court records, trial and hearing transcripts,
and on other actual trial materials in Anderson to present the relevant
facts and events in the context in which they arose.
With these facts and the materials in the record, the student,
professor, or practitioner can, in a lawyerly way, reach his or her own
conclusions about the important issues of the case, the viewpoint of
the book, and the operation of the civil justice system. Contrary to the
erroneous impression of justice gone astray created by the book and
movie, a complete and balanced view of the Anderson case reveals a
properly working civil justice system that afforded the plaintiffs, at
both the trial and appellate levels, with a full and fair opportunity for a
trial before a jury and full and fair appellate review of the jury's ver-
dict in Beatrice's favor.
1999]
1999] Truth, Myth, and Irony in A Civil Action 249
when viewed as a whole and in the context of the adversary system,
shows that the plaintiffs were treated fairly, that the trial was con-
ducted competently, and that Judge Skinner's rulings were even-
handed and often generous to the plaintiffs.
Even if the entire record is not reviewed, the same conclusion can
be demonstrated by reviewing Judge Skinner's rulings on key proce-
dural and evidentiary challenges in Anderson, especially those which
sought to prevent the plaintiffs' case from reaching the jury. These
rulings reflected not only Judge Skinner's understanding of the issues
and his knowledge of the plaintiffs' case, but his inclination to permit
the case to be considered by the jury.
The fundamental goal of every plaintiffs case is to reach the
jury, overcoming along the way all motions potentially fatal to the
case. In Anderson, that goal was particularly difficult because of the
legal, scientific, and factual obstacles the plaintiffs faced. Nonetheless,
on every attempt by the defendants to prevent the plaintiffs' case from
being decided by the jury, Judge Skinner's decisions were in the
plaintiffs' favor and preserved the plaintiffs' goal of reaching the jury.
Specifically, a Rule 11 motion was denied,
6
a summary judgment
motion was denied in substantial part,
17
and a directed verdict was
substantially denied.
8
None of these motions presented easy issues,
nor were they routine decisions made on routinely filed motions.
C. Other Crucial Rulings on Evidence and Procedure
Two other rulings, without which the plaintiffs' case against
Beatrice could not have reached the jury, were also decided in the
plaintiffs' favor. The first involved a highly suspect opinion attempt-
ing to establish the time period when TCE, found on the fifteen acres
in 1985, had first been introduced at that site. Because of the sub-
stantial time required for the groundwater to have reached the wells
before they closed in May 1979 and for sufficient consumption of the
well water to have allegedly caused the various injuries and deaths,
plaintiffs had to show that this time period was in the mid-1960s to
early 1970s. The necessary time period was supplied by plaintiffs'
expert, who, relying on little more than his observations of the fifteen
acres in 1985, transformed (and in effect backdated) those observa-
tions into an opinion as to the period of time that certain activities had
- Anderson v. Cryovac, Inc., 96 F.R.D. 431 (D. Mass. 1983). See infra Part III. A.
- Anderson v. W.R. Grace & Co., 628 F. Supp. 1219 (D. Mass. 1986).
- See Memorandum and Order on Defendants' Motions for Directed Verdict (dated June
9, 1986), Anderson v. W.R. Grace & Co., Civ. A. No. 82-1672-S (D. Mass. filed June 3, 1982),
reprinted in GROSSMAN & VAUGHN, supra note 3, at 612.
Seattle University Law Review
taken place, namely the mid-1960s and early 1970s, which supposedly
resulted in TCE contamination in that period.
1 9
This speculative and unscientific opinion-admitted over
strong
objection and a motion to strike-was provided by an engineer who
had few, if any, relevant qualifications to perform the task of "back-
dating" TCE contamination of groundwater. He followed no estab-
lished scientific
principles and, as Judge Skinner said, did little more
than "eyeball" the property. Although Judge Skinner was plagued
with doubt at his "hairbreadth decision," in which he had no particu-
lar confidence,
2
1 and characterized his ruling as a "very close one," he
nevertheless exercised his discretion in the plaintiffs'
favor and
admitted the "expert" opinion despite the fact that it could not cor-
rectly be called "scientific".21 This decision prevented the entry of a
directed verdict against the
plaintiffs, much to the jubilation of plain-
tiffs' counsel.
22
The other key ruling Judge Skinner made in the plaintiffs' favor
dealt with the issue of foreseeability, an essential element of the plain-
tiffs' negligence
claim. In order to reach the jury, plaintiffs had to
prove that the tannery's alleged disposal of TCE in the mid-1960s cre-
ated a foreseeable risk of harm to the plaintiffs.
23
To prove this critical
element, the plaintiffs
had to show that the tannery knew or should
have known, twenty years before the trial, that the groundwater under
the fifteen acres would travel easterly toward the town wells that pro-
vided water to the plaintiffs. Obviously, no duty existed prior to
19. Trial Transcript Vol. 8 at 116-17, Anderson v. W.R. Grace & Co., Civ. A. No. 82-
1672-S (D. Mass. filed June 3, 1982) [hereinafter Transcript].
- Transcript, Vol. 74 at 67.
- HARR, supra note 15, at 302. See Memorandum and Order on Defendant Beatrice
Foods Co.'s Motion for Immediate Entry of Final Judgment Under Rule 54(b)
(dated Sept. 17,
1986), Anderson v. W.R. Grace & Co., Civ. A. No. 82-1672-S (D. Mass.
filed June 3, 1982),
posted at http://www.law.fsu.edu/library/faculty/gore/index.html. In this posttrial order
entering judgment for Beatrice on the jury's Special Verdict, Judge Skinner stated that he had
admitted the opinion "very reluctantly because [he] could see no foundation for the opinion."
He added that, even if the jury had found against Beatrice, he would have been obliged to grant a
judgment notwithstanding the verdict. In fact, the opinion was nonscientific, speculative, and
basically unreliable. Today it would be clearly excluded by Daubert
v. Merrill Dow Pharma-
ceuticals, Inc., 509 U.S. 579 (1993), and Kumho Tire Co. v. Callahan, 526 U.S. 137 (1999), and
a verdict would be directed for Beatrice.
- The success of the argument that resulted in the admission of
the expert opinion (and
later the denial of the directed verdict motion) prompted plaintiffs'
counsel to congratulate his
co-counsel, Professor Charles Nesson of Harvard Law School, on getting the opinion in evi-
dence, "crowing gleefully" to him, "You were touching the old bastard's (Judge
Skinner's)
brain." HARR, supra note 15, at 302. By contrast, however, A Civil Action mentions nothing
about Judge Skinner's Memorandum and Order, described in note 21, supra, stating that he had
erred in allowing the expert opinion in evidence and had been misled by one aspect of the
expert's testimony about conditions on the fifteen
acres.
23. See, e.g., Palsgrafv. Long Island R.R. Co., 248 N.Y. 339, 341-43 (1928).
[Vol. 23:
Seattle
University Law Review
judicial discretion in his favor,
it was in connection with this motion
for continuance.
In a chapter entitled "Facher's
Plea," A Civil Action describes the
efforts I made to obtain the continuance,
the explanation for its neces-
sity, the opposition by plaintiffs, their
insistence on keeping the trial
date, and my importunings before Judge Skinner.
2
' Nevertheless,
Judge Skinner (whom A Civil Action
implies was guilty of favoritism
toward me) ignored "Facher's
Plea," took heed of the plaintiffs' coun-
sel's
opposition and the brave bluff that plaintiffs were
ready for trial,
and denied my request for a continuance.
2
7
As A Civil Action reports it
(and the author was undoubtedly
present), Judge Skinner's decision
resulted
in glee and gloating in the plaintiffs'
camp,
28
even though, as
later events showed, they
were in fact unready for trial themselves, but
desperate
to maintain the trial date because
of their financial circum-
stances. 29
E. Lessons to Be Taught
by A Civil Action: Part One
In the
areas that mattered most to the plaintiffs, and
at every
important stage where the plaintiffs' case
could have been dismissed,
Judge Skinner's fair, impartial, and even
generous rulings kept the
plaintiffs "in the ballgame," kept
the plaintiffs' case in court, kept the
trial
date on track, and ultimately permitted
a highly sympathetic
plaintiffs' case to be presented to the
jury, which is where the plaintiffs
wanted it decided. A Civil Action
neither appreciates this important
point, which would be instantly apparent
to trial lawyers and trial
judges, nor makes any comment or observation
that illustrates or even
- HARR, supra note 15, at 269-72.
- A Civil Action also
incorrectly states that my "plea" for a continuance was
made for the
purpose of putting financial
pressure on the plaintiffs' counsel in the hopes that a
long post-
ponement
would leave plaintiffs' counsel in too much debt to proceed.
Id. at 286. Nothing
could have been
further from the facts. See infra note 29. The author acknowledged
this error at
the time A Civil Action was published, knowing that I
made the motion and affidavit solely
because of my
need for a continuance in the interest of adequate preparation.
- Id. at 273.
- At this time, I was completely unaware that
the plaintiffs were in serious financial
straits and might have been adversely affected by the
continuance. In fact, both defendants had
been wholly deluded by the illusion, carefully
created and nurtured by the plaintiffs' attorneys,
that the plaintiffs were well financed and able to match the
defendants motion for motion, expert
for expert, test for test, and tactic for tactic. Indeed,
they did so throughout the pretrial and trial
period. Not until A Civil Action
was published was I aware that (according to the book) the
plaintiffs' attorneys had been preparing and
trying the case on borrowed money and had been led
to the brink of financial disaster by
unrestrained expenditures. Id. at 209-10, 320-22, 347-50,
417-18. See also infra note 87.
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Truth, Myth, and Irony in A Civil Action
recognizes the significance of Judge Skinner's key rulings favorable to
the plaintiffs that allowed the case to reach the jury.
3
Once given the case, the jury was free to decide in the plaintiffs'
favor, aided by the evidence and arguments marshalled by plaintiffs'
counsel. The jury deliberated for eight and one-half days, and
returned a Special Verdict for Beatrice based on the law and the evi-
dence. Although A Civil Action has the right to suggest disagreement
with that verdict and with the court of appeals' ultimate affirmance of
the judgment for Beatrice, there is no basis to suggest any judicial
unfairness or partisanship at the trial, nor did the plaintiffs ever make
any such claim on appeal.
1
Moreover, the unstated but clearly implied charge of judicial
partisanship is contradicted by the record of Judge Skinner's published
and unpublished decisions and rulings in Anderson, his outstanding
judicial record, his unchallenged reputation for competence and integ-
rity, and the court of appeals' recognition of his "incisiveness and
vigor" in carrying out the "thankless task" that had been assigned to
him, all of which demonstrate his fair and able handling of the case."
As the court of appeals stated in its final opinion affirming the judg-
ment for Beatrice, his findings were "sound, well-substantiated and
free from observable legal error.""
30. On the other hand, in addition to its overall unfavorable portrayal of the judge, A Civil
Action is not reluctant to criticize and editorialize about specific rulings by the judge thought to
be unfavorable to plaintiffs. See, e.g., HARR, supra note 15, at 369 (the judge's special inter-
rogatories "had the quality of a text that had been translated from English into Japanese and back
again... the answers were essentially unknowable"); id. at 477 ("Judge Skinner could have
challenged EPA policy... but he chose not to."); id. at 367 (proper exclusion of so-called (by
plaintiffs counsel) "killer document" and other irrelevant evidence). Nor is A Civil Action
reluctant to make its own inaccurate pronouncements about the law. See, e.g., id. at 192 ("legally
it did not matter who had contaminated the land"). A Civil Action also engages in criticism or
condemnation of the judge by the device of using the harsh words and thoughts of plaintiffs'
counsel, see infra at 265-66, a technique also applied to Beatrice's counsel or Beatrice's case. See
infra note 78.
31. In matters of evidence, Judge Skinner, on most occasions, showed patience, courtesy,
and fortitude in handling the plaintiffs' attempts to frame proper questions, lay proper founda-
tions, and introduce exhibits into evidence, and in permitting re-arguments. As Judge Skinner
noted during the trial, many of the frequent objections to plaintiffs' counsel's questions stemmed
from the fact that plaintiffs had insisted that they were ready for trial when in fact they were not.
HARR, supra note 15, at 301.
32. Seeinfraat260,266-67. 33. Anderson v. Beatrice Foods Co., 900 F.2d 388, 391-92 (1st Cir. 1990).
1999]
Truth, Myth, and Irony in A Civil Action
tions sufficient to meet the requirements of Rule 11 and denied
Grace's motion.
37
The first Rule 11 decision had no further signifi-
cance for the case and was of no further interest until the A Civil
Action book appeared in 1995 and the movie in 1998.
B. The Special EvidentiaryHearingInquiry
and the FinalRule 11 Finding
Judge Skinner's second Rule 11 decision came in December
1989, more than seven years after the case was filed (and more than six
years after Grace's Rule 11 motion had been denied). That decision
was part of Judge Skinner's Final Report and recommendations fol-
lowing a special evidentiary inquiry ordered by the First Circuit con-
cerning whether the nonproduction of the Yankee Report substantially
interfered with a so-called "tannery case" which, to that point, plain-
tiffs had not pursued.
a 9
In that Final Report, Judge Skinner found
that plaintiffs' counsel had violated both Rule 11 and 28 U.S.C. §
192740 by bringing and continuing a lawsuit against Beatrice, knowing
before suit, and at least by the end of discovery, that there were no
facts to justify any claim that the Riley tannery had used and disposed
of TCE and, thus, that there was no "tannery case." The legal and
factual significance of this important finding is ignored by A Civil
Action, which is one of the book's serious omissions.
The court of appeals opinion ordering the special evidentiary
inquiry arose out of plaintiffs' appeal of Judge Skinner's denial of the
Motion to Vacate Judgment under Rule 60(b)(3). In its opinion, the
court of appeals announced a never-before articulated interpretation of
37. Anderson v. Cryovac, Inc., 96 F.R.D. 431 (D. Mass. 1983).
- The book describes the first Rule 11 hearing fairly accurately, see HARR, supra note 15,
at 110-19, but the Rule 11 scene in the movie is wholly fictional except as to result. Judge Skin-
ner did not refer to Rule 11 as being so "arcane and obsolete" that he had to look it up. Nor did
he refer to the Rule II motion as a "no-brainer" and hear no argument. In fact, Judge Skinner,
like all federal judges, was fully familiar with the rule. At the hearing, he indicated that he had
taken an interest in the rule, suggesting that its lack of use had probably clogged the federal
courts. HARR, supra note 15, at 110-18.
- Because of privilege and work product objections, the report had not been produced as
part of the tannery's document production, nor at a January 1986 deposition of the tannery's rec-
ord keeper. The plaintiffs had been offered an opportunity to compel production, but the plain-
tiffs' counsel, in his zeal to maintain the trial date, told Judge Skinner that the problem with
respect to documents demanded at the tannery record keeper deposition had been resolved. See
Hearing, January 14, 1986, Anderson v. Cryovac Inc., Civ. A. No. 82-1672-S (D. Mass. filed
June 3, 1982). Despite this fact, neither the objections to the production of the report nor any
previous practice or understanding of the parties as to production of tannery documents was con-
sidered by Judge Skinner to be sufficient to have justified nonproduction of the report. Ander-
son v. Beatrice Foods Co., 127 F.R.D. 1, 5-6, 7-11 (D. Mass. 1989).
- 28 U.S.C. § 1927 (1994) provides that any person who so "multiplies the proceedings in
any case unreasonably and vexatiously" may be required to pay the additional costs generated.
1999]
Seattle University Law Review
[Vol. 23:
the term "misconduct"
as used in Rule 60(b)(3), and a somewhat more
elaborate standard
for vacating a judgment under that subsection of
the rule.
4
' Guided by this new interpretation and standard, the special
evidentiary inquiry
was to determine whether there had been "deliber-
ate
misconduct," as the court of appeals had newly defined it. If so,
the
court would determine whether the "deliberate misconduct" had
"substantially interfered" with the development of a possible "tannery
case"
based on the theory that there had been disposal of TCE on the
tannery property that had
contaminated the groundwater and reached
the town
wells
42
(as opposed to the plaintiffs earlier theory, now fore-
closed by the trial and the
dismissal of the first appeal, that the con-
tamination had come from
the fifteen acres).
43
The special evidentiary inquiry
consumed twenty-three trial days
over the period from January 1989
to October 1989, and was in two
parts. The first part
(January-July 1989), on the issue of "deliberate
misconduct" (as specially defined
by the court of appeals), took sev-
enteen days and involved twenty-two witnesses
and 236 exhibits. The
- As stated in the
opinion, the court of appeals put its own "gloss" on the term "miscon-
duct" as used in Rule 60(b)(3) and
on the standard for vacating a judgment, including new pre-
sumptions and burdens of proof if "deliberate
misconduct," a term of art, were found. The court
stated that "misconduct" must
be "deliberate" and that any nonproduction that was not acci-
dental would be considered as deliberate.
Misconduct that was deliberate then triggered a pre-
sumption of "substantial interference"
in favor of the moving party, which the opposing party
had the burden to overcome
by clear and convincing evidence. See Anderson v. Cryovac Inc.,
862 F.2d 910, 924-27 (1st Cir. 1988).
As articulated by the court of appeals, the concept of
deliberate misconduct would include
instances in which a lawyer had made a good faith judg-
ment about nonproduction which
thereafter was ruled to be in error. Judge Skinner later referred
to the court of appeals' definition of deliberate misconduct as a "term of art" or a specialized
term that had been "artificially sanitized" by the court of appeals, and did not connote
any bad
faith
but only the difference between purposeful and accidental conduct. See Hearing, Nov. 14,
1989, at 49, Anderson v. Beatrice Foods Co., Civ. A. No. 82-1672-S
(D. Mass. filed June 3,
1982).
- Anderson, 862 F.2d at
924-27, 930-32. In addition to the complex "gloss" the court of
appeals put on Rule
60(b)(3), the order to hold an evidentiary hearing was one of the most sur-
prising results reached
by the court. Evidentiary hearings on motions for new trial were and are
rare, especially where, as in Anderson,
there had already been three days on which oral argument
had been heard on the Motion to Vacate and a detailed written opinion by the trial judge. See
Memorandum and
Order on Plaintiffs Motion for a New Trial (dated Jan. 22, 1988), Anderson
v. Beatrice Foods Co., Civ. A. No. 82-1672-S (D. Mass. filed June 3, 1982),
reprinted in
GROSSMAN & VAUGHN, supra note 3, at 417.
- The report had been commissioned by John J. Riley
in 1983, without advising his
counsel. Anderson v. Beatrice Foods Co., 127 F.R.D. 1, 5 (1989). The report itself stated
that
its purpose was to determine the direction of groundwater flow on the tannery
property when
Riley's own well was pumping and also to determine whether groundwater contamination, if
present on the property, was contributing to the contamination of Riley's production wells.
See
Yankee Environmental Engineering and Research Services, Inc., Hydrogeologic
Investigation of
the John J. Riley Tanning Company, Inc. at 1.1, reprinted in GROSSMAN
& VAUGHN, supra note
3, at 763. Neither the work commissioned by Riley nor the report itself had anything to do
with
use or disposal of TCE.
Seattle University Law Review
removed material from the
fifteen acres without the tannery's knowl-
edge, thereafter retaining it until it could be used as "evidence" sup-
posedly favorable to plaintiffs, along
with the proffered testimony of
additional experts who had analyzed it.
4
C. The
Court's Conclusions About the Yankee Report
and the Removal Activities
In the course of both parts of the special
evidentiary inquiry,
Judge Skinner had reviewed all of the evidence about the nonproduc-
tion of the Yankee Report and the "removal" activities
by Riley and
all
of the strident accusations of alleged conspiracies and other charges
of misconduct
against Beatrice's counsel. In addition, he had heard
evidence
on the alleged significance of the report, including the plain-
tiffs' attempts to reopen the fifteen acres case. After the conclusion of
the first part of the inquiry, Judge Skinner issued his findings on
"deliberate misconduct" in July 198946 and, after hearings in October
on the issue of "substantial interference,"
he issued his Final Report in
December 1989, which contained his findings and recommendations.
47
As to Riley's "removal" activities, Judge Skinner found that they
had no consequences as far as the case was concerned and
were legiti-
mately connected to the drilling of test wells and other investigative
procedures.
4
" The evidence also showed that the removal had taken
place in the daytime (not secretly at night as the movie A Civil
Action
depicts them) and in the presence or vicinity of the EPA official in
charge of the property.
49
In addition, Judge Skinner found that the
material allegedly removed from the fifteen acres was not even tannery
waste, but another substance that had not
come from the tannery.
Although the removal activities suggested
some "deviousness on
Riley's part" or his "secretive disposition,
'
"50 they provided no evi-
dence of conspiracy nor of use of TCE by the tannery.
5
' Nor was
- See Anderson v. Beatrice Foods Co., 129 F.R.D. 394, 400 (D. Mass.
1989); Hearing
Oct. 24, 1989, at 4-5, Anderson v. Beatrice Foods Co., Civ. A. No. 82-1672-S
(D. Mass. filed
June 3, 1982).
- Anderson v. Beatrice Foods Co., 127 F.R.D. 1 (D. Mass. 1989).
- Anderson
v. Beatrice Foods Co., 129 F.R.D. 394 (D. Mass. 1989).
- Anderson, 127 F.R.D. at 4.
- The court noted the use
of "a diesel front end loader and a dump truck in broad day-
light, with representatives of the EPA present on the property." Id. at 3.
- Id. at 4.
- Riley's "removal activities" were not only outside the scope of the inquiry ordered by
the court of appeals, but were of dubious relevance coming, as they did, two to four years after
the wells were closed in 1979 and having no relation to alleged TCE contamination which,
according to the plaintiffs' own expert opinion, was supposed to have resulted
from "activities"
twenty years earlier. See supra at 249. In addition, the removal
of materials from the surface of
the fifteen acres in 1983 provided no proof that the tannery had disposed of TCE in the mid-
[Vol. 23:
Truth, Myth, and Irony
in A Civil Action
there any evidence that the tannery had disposed of tannery waste on
the fifteen acres or engaged in any alleged conspiracy to conceal
it.
Furthermore, as to the material obtained illicitly
by plaintiffs'
counsel,
it was not found to be tannery waste, nor did it constitute any
reliable or persuasive evidence that the tannery ever used or disposed
of TCE" Finally, no evidence was found at the tannery site of the
existence of vinyl chloride, a breakdown product
of TCE, thereby
demonstrating that TCE had not been introduced into the tannery
property.
Thus,
the charges and accusations about the alleged significance
of Riley's so-called removal activities, the alleged
"tannery waste"
found on the fifteen acres, and the numerous alleged
conspiracies in
which Beatrice had supposedly engaged were all found to have no
merit whatsoever. In fact, the trial judge found that much of the tes-
timony given at the first part of the special evidentiary
inquiry about
these matters was not credible.
3
Concerning the Yankee Report, Judge Skinner
found that it
might have been helpful to the plaintiffs if they
had any case against
the
tannery, but that, based on plaintiffs' counsel's own pretrial inves-
tigations and discovery, there was never any tannery
case to begin
with. These
and other facts supported the finding that plaintiffs'
counsel had violated Rule 11 in continuing to prosecute a nonexistent
tannery
case.
5 4
D. Lessons to Be Taught by A Civil Action: Part Two
A Civil Action's partisan viewpoint is especially evident in its dis-
cussion and reportage about the special evidentiary inquiry held by
Judge Skinner.
55
The significance of many of the important facts and
conclusions about the special evidentiary inquiry are not explained,
commented on, or even described in A Civil Action. Although much
is
made of plaintiffs' counsel's efforts to find witnesses and evidence for
the inquiry,
56
no commentary emerges emphasizing the fact that the
plaintiffs charges about Riley's "removal" activities and the reckless
accusations of conspiracy were totally rejected
even with the heavy
1960s as the plaintiffs' alleged expert had opined. Furthermore, any chemical contamination
found in the soil on or near the surface of the
fifteen acres would have demonstrated recent con-
tamination, which conclusion would have been favorable to the defendants, not the plaintiffs.
- Anderson, 129 F.R.D. at 400-01.
- See Anderson v. Beatrice Foods Co. 129 F.R.D. 394 (D. Mass. 1989); Anderson v.
Beatrice Foods Co., 127 F.R.D. 1, 3-4 (D. Mass. 1989).
- See infra Part 11I.G.
- See HARR, supra note 15, at 469-89.
- Id.
1999]
Truth, Myth, and Irony in A Civil Action
Overall, A Civil Action wholly fails to recognize or credit
Judge
Skinner's competence and fairness in conducting the special eviden-
tiary inquiry, his careful consideration of the evidence, his well-sup-
ported findings of fact, and his carefully written and detailed Final
Report, which was affirmed by the court of appeals. Moreover, Judge
Skinner's conduct of the special evidentiary inquiry reflects the com-
petence, restraint, and thoroughness with which he handled the
entire
case. His findings and decisions at the special evidentiary
inquiry not
only revealed that the plaintiffs had no evidence that the
tannery used
or disposed of TCE, but served to reaffirm the correctness of the
jury's Special Verdict rendered three and one-half years earlier to
exactly the same effect.
E. The Refusal of Plaintiffs' Counsel to Testify at the Inquiry
The special evidentiary inquiry ordered by the First Circuit
envisaged that the district court would receive
evidence from the
defendants' counsel about their contacts with the
Yankee Report and
that there would be
evidence from the plaintiffs on how and why the
nonproduction of the
report had substantially interfered with an
alleged "tannery case."
Consistent with this expectation, my partner
and I each took the stand during the first part of the special
eviden-
tiary inquiry (dealing with nonproduction) and testified fully under
oath
about our contacts with the report. In addition, I had previously
filed
a lengthy and detailed response to the court's order for a state-
ment of position concerning the nondisclosure of the report
and any
knowledge of materials removed from the fifteen acres.
1
After my
testimony at
the inquiry was completed, plaintiffs' counsel never
attempted any cross-examination about the report, the sworn state-
ment previously filed, the so-called removal
activities by Riley, the
various "conspiracies" alleged by plaintiffs' counsel, nor any other
issue concerning the fifteen acres or the tannery.
Not only did plaintiffs' counsel fail to challenge any part of my
testimony, but when the special evidentiary inquiry reached the cru-
cial issue of "substantial interference," namely, how
or why the non-
production of the Yankee Report had substantially interfered
with
plaintiffs' alleged "tannery
case," plaintiffs' counsel refused to take the
stand to testify on this issue or
to substantiate the accusations of mis-
conduct that had been made against
Beatrice's counsel.
62
Claiming
- Statement of Jerome P. Facher in Response to Court Order of December 22, 1988
(dated January 26, 1989), Anderson
v. Beatrice Foods Co., Civ. A. No. 82-1672-S (D. Mass.
filed June
3, 1982), reprinted in GROSSMAN & VAUGHN, supra note 3, at 440.
- Throughout the entire Special Inquiry, the plaintiffs made 31 motions, most of them
1999]
Seattle University Law Review [Vol. 23:
lawyer-client privilege as the basis for his refusal, no such testimony
was ever given by plaintiffs' counsel.
6
F. Lessons to Be Taught by A Civil Action: Part Three
The failure to challenge or rebut the testimony of Beatrice's
counsel at the special evidentiary inquiry and the failure of plaintiff to
testify might well have justified an inference as to the invalidity of the
claims and accusations that the plaintiffs' counsel had made. Based on
such an inference and the limited credible evidence from plaintiffs,
Judge Skinner could have reached the conclusion that plaintiffs had
failed to sustain their ultimate burden, which was to prove that the
nonproduction of the Report had "substantially interfered" with an
alleged "tannery case." Nonetheless, A Civil Action never explains or
even comments on plaintiffs' counsel's failure to cross-examine or to
testify, although it finds space to suggest an adverse impression about
the expected and necessary testimony from Beatrice's trial counsel by
employing the trivial observation of one of plaintiffs' attorneys that
the procedure
was somehow
"surreal"
or otherwise
inappropriate.
64
Finally, regardless of the inference, if any, to be drawn from the
plaintiffs' counsel's refusal to testify and his failure to cross examine
Beatrice's trial counsel, the fact remained that Judge Skinner had
received no sworn evidence from plaintiffs' counsel-a highly impor-
tant witness with supposed first-hand knowledge-to support the
filled with rhetorical excess and indignation, alleging all manner of conspiracies and seeking
extreme sanctions, including three motions seeking general default, five motions seeking inquir-
ies or investigations, two motions to disqualify Beatrice's counsel, and a variety of others for
sanctions, for Fed. R. Civ. P. 60(b) relief, for estoppel, for directed findings and for a restraining
order. The opportunity to prove these allegations and to provide evidence instead of rhetoric and
testimony instead of accusations was afforded to plaintiffs' counsel (if not expected by the court
of appeals and the district court) at the twenty-three day Special Inquiry, but such testimony was
never forthcoming even though the trial judge had suggested, but not required, that it should be
given as part of plaintiffs' counsel's burden. See Hearing Oct. 27, 1989, at 6-9, Anderson v.
Beatrice Foods Co., Civ. A. No. 82-1672-S (D. Mass. filed June 3, 1982).
- Any such privilege had likely been waived because the plaintiffs had put in issue the
alleged interference with their case and could not assert privilege to foreclose inquiry about that
issue. See Connell v. Bernstein-Macaulay, Inc., 407 F. Supp. 420, 422-23 (S.D.N.Y. 1976)
(holding privileged communications waived where plaintiff injected issue about his claimed rea-
sons for not filing suit). In any event, there is no doubt that any lawyer-client privilege had
clearly been waived by the plaintiffs' permitting and encouraging the author of A Civil Action to
sit in on and to share their plans, strategy, and confidences. See HARR, supra note 15, at 493.
Nevertheless, A Civil Action takes no note of this unusual decision which might have had serious
legal and tactical consequences.
- See HARR, supra note 15, at 483. In addition to its general partisan viewpoint, A Civil
Action contains numerous cameo observations, characterizations or editorializations which are
unfavorable to Beatrice or favorable to plaintiffs. See, e.g., id. at 345, 357, 362. See also infra at
265-66.
