Authors: William Bernhardt
“Okay,” Ben said, “that’s frightening. But how does it link up to your stories?”
“Here’s another paper,” Cecily said, “from a week later.” This time she didn’t wait for Ben to read it. “The first article kicked up quite a stink in little Blackwood. The city council ordered the city engineer, one John Schultz, to test the city’s water supply. As the article explains, the city of Blackwood is serviced by four water wells. Three of them tested fine. But one of them was contaminated due to underground seepage from the poison pool. That was Well B. And guess where the water from Well B goes.” She paused, her jaw set. “North Blackwood. Our neighborhood.”
Ben scanned the article now in his hands. Everything Cecily had said seemed to be correct. The city engineer determined that the well’s water was tainted by several undesirable chemicals, including trichloroethylene, also known as TCE, an industrial solvent used principally to dissolve oil and grease. He had ordered the well shut down immediately.
“Wow,” Ben said quietly. He knew it sounded stupid, but it was all he could think to say. “That’s amazing. And … horrifying.”
“I always thought the water tasted funny,” Barry said. “But what can you do about it? Water’s water.”
“I thought it was gross,” Margaret said. “We bought bottled water for drinking. But you can’t use bottled water for everything. We couldn’t afford it.”
“All our children were exposed to this water,” Cecily said. “They drank it, they bathed and showered in it. It was unavoidable.”
“You may have grounds for a suit against the city,” Ben said. “The city engineer may have been negligent in the performance of his duties. But what would it get you? I can guarantee you the city coffers aren’t large enough to pay off any big judgment. A town that size probably doesn’t even have insurance.”
“We don’t want the city,” Cecily answered. “We want the bastards who poisoned the water in the first place.” Once more her hand dipped into her oversized purse, this time retrieving a report bound in a clear binder. “I started researching this as soon as I read the first article in the paper. I studied to be a biologist, back at OU, so I wasn’t totally in the dark on this. I started reading about TCE and how it’s been linked to tumors in laboratory animals. I also found out I wasn’t the only person concerned about the Blackwood aquifer.”
What Cecily handed Ben was a report by the Environmental Protection Agency. After the preliminary discovery of the poison pool, they had placed the Blackwood aquifer on the National Priorities List—which put it in line for cleanup via Superfund dollars. The EPA ranked all the sites on its list, based upon the chemicals involved, their concentrations, and the proximity to residential areas. The EPA ranked the Blackwood aquifer seventh out of over five hundred sites. Like the city engineer, they found TCE in Well B—280 parts per billion, an extremely significant contamination. They also found lesser amounts of other foreign substances, including tetrachloroethylene, better known as perc, another industrial solvent. The EPA considered both TCE and perc to be “possible carcinogens.”
Ben flipped the pages, passing quickly over dense paragraphs of jargon, which he frankly didn’t understand, long academic sentences, and charts and graphs dealing with groundwater contours and well logs and such. But there was a short paragraph at the end of the report that he definitely understood.
It was in a section labeled Contaminant Origination. It explained that Well B had been polluted by the underwater pool recently discovered in Blackwood. And it explained that the most likely cause of the contamination was dumping by the H. P. Blaylock Industrial Machinery Corporation, which owned the land and operated a manufacturing plant and headquarters not far from the poisoned pool.
Ben closed the report. “You want to go after Blaylock Industrial?”
“Of course,” Cecily responded. “They’re the ones responsible for this. Isn’t it obvious?”
Ben and Christina exchanged a sharp look.
“So,” Cecily said eagerly. “What do you think?”
Ben bit down on his lower lip. “I think we should take a break.”
Ben called for a fifteen-minute recess before the meeting proceeded. He needed to think about what he was going to say, and how he was going to say it. He wanted to be honest with these people, and that meant telling them many things they would not want to hear.
Christina followed him to the kitchen while he poured himself a restorative Coke. “What are you going to do?”
Ben shrugged. “Tell them the truth.”
Christina nodded. “So you’re not going to take the case?”
“It would be suicide, Christina. You know that.”
She did not disagree. “These people have been through an awful lot, Ben. More than you or I can imagine.”
“I understand that. But encouraging them to file a kamikaze lawsuit wouldn’t be doing them any favors.”
Ben returned to his office early. He found all the parents waiting for him. They had never left. They were too anxious to hear what he had to say.
“First of all,” Ben began, “I want you to understand that you have my utmost sympathy. I really mean that. What you’ve been through was a living nightmare, something no one—no parent—should have to endure. But you also have to understand one simple reality. The courts cannot right all wrongs. In fact, I would say they can’t right most wrongs. They can handle locking up crooks, and they’re pretty good at resolving disputes that are simply squabbles over money. But this case is about more than money. A lot more. And frankly, I don’t think the courts can help you.”
He saw Cecily stiffen. “Couldn’t we file a lawsuit for negligence? Or for wrongful death?”
“Yeah,” Ben answered, “you could file it. The question is, could you win it?”
“But the EPA report says that—”
“The EPA report won’t get you anywhere,” Ben said flatly. “It probably isn’t admissible, but even if it is, it won’t help. It’s full of the usual cautious academic language. Possibly this. Most likely that. When you’re in court, you have to be able to prove your case. To
prove
it. By a preponderance of the evidence.”
“But surely when the jury sees the map—when they see all the leukemia victims clustered together in one neighborhood—”
“I admit, the map is very compelling. Common sense tells us this cancer cluster can’t be just a coincidence. But common sense isn’t evidence. In court, we have to be able to prove that Blaylock poisoned the water, and moreover, that the water caused the cancer. If we can’t do that, we won’t even get to the jury. The judge will shut us down before it ever goes to trial.”
Ben scanned the circle of sober, unhappy faces surrounding him. He was not telling them what they wanted to hear; he knew that. But it was what needed to be said.
“To even attempt to prove a case like this, we would need expert testimony—by the barrelful. And that is very expensive. We’ll need geologists, toxicologists, engineers, hydrologists, not to mention doctors. They’ll all be billing hundreds of dollars an hour for their time—plus expenses. We’ll have to conduct studies of our own, with our own researchers, so we can get them in as evidence. And we’ll need to somehow prove that Blaylock contaminated the site, something I can guarantee they won’t admit.”
Ralph Foley cleared his throat. “Isn’t it possible Blaylock might agree to settle? You know, to avoid the expense and bad publicity of a trial.”
“Is that what you were hoping for? Well, you can put that pipe dream to rest. Blaylock will never settle. Because if they did, every citizen of north Blackwood would turn around and sue them. They can’t afford to let that happen. They’ll fight this tooth and nail.”
“That’s fine,” Cecily said defiantly. “We’ll fight back. Hard.”
“With what?” Ben asked. “Let me tell you something. I know for a fact that the Blaylock Corporation is represented by Raven, Tucker & Tubb, the largest firm in Tulsa. I know this because I used to work there. I also know the Raven litigators are some of the best in the business. They know all the tricks. They’ll try to delay, to protract this and make it as miserable and expensive for us as possible. They’ll file frivolous motions, ask for hearings, demand pointless discovery, all to run down the clock—and run up the tab. This litigation will cost thousands of dollars—probably hundreds of thousands of dollars. Who’s got that kind of money? I certainly don’t. Do you?”
Again Ben peered out at the sea of faces. No one was nodding. He didn’t need to be a financial whiz to know there were no billionaires in the room. None was rich to begin with—and all had just suffered debilitating medical expenses.
“So basically, what you’re asking me to do is file a high-profile lawsuit that we can’t afford and can’t win. To run up expenses with no hope of recovering them. That’s why you haven’t been able to get anyone to represent you.” He paused, drawing in his breath. “And that’s why I can’t represent you, either.”
The room was blanketed with silence. None of the parents spoke, or even moved. They all looked as if they’d been slapped in the face by a baseball bat.
Christina had a pensive expression on her face. She was biting her knuckle, a sure sign that she was troubled. But she, too, held her tongue.
At last Cecily broke the silence. “May I ask you a question, Mr. Kincaid?”
He shrugged. “Sure.”
“Have you raised any children?”
“No.” He frowned. “Well, I helped raise my nephew for several months, but—”
“Did you love your nephew?”
“Of course I did. Do. But—”
“How do you suppose you’d feel about this if your nephew had been one of the youngsters who died?”
“Ms. Elkins—”
“For that matter, you’re still young. You might have children of your own. How would you feel if your own flesh and blood had died—for no reason? Because some corporation didn’t have the decency to keep their poison out of the water well?”
Ben drew in his breath. “I’m sure I’d feel just as you do. Devastated. But these are all emotional appeals. They won’t get us past a summary judgment motion.”
One last time Cecily’s hand dipped inside her purse. “This is a picture of my boy. Billy. He was such an angel. He never did anything wrong. He never hurt anybody. He liked soccer and Robert Louis Stevenson. When he grew up, he wanted to be a doctor. But not to get rich, he told me, time and again. He wasn’t going to be a "swimming-pool doctor." He wanted to help people who really needed help, maybe go to a third-world country or something. And you know what? He would’ve done it. He would’ve made a difference.…” Her lips began to tremble. “He would’ve done some real good in this world. But all that potential is gone now. It’s all been wiped away by an act of corporate callousness. Is that right? Is that acceptable?”
Before Ben could respond, Ralph opened his wallet and withdrew a photo. “This is my Roger.” He laughed slightly. “He wanted to be an astronaut.”
“My Donald,” Margaret said, laying her photo atop the stack. “He talked about being an architect.”
One after another, the tattered photographs fell into place. Jay Kinyon. Brian Bailey. Tracy Hamilton. Kevin Blum. Colin Koelshe. Finally, Ben saw eleven sets of eyes looking up at him, eleven youthful faces that passed from the world well before their time.
And above those, all around him, Ben saw many more eyes staring at him. Waiting to hear what he would say next.
He found Harvey hidden in the clothes closet behind some fishing gear and a lifetime supply of shoes, just where his wife had said he would be. It was a walk-in closet, very spacious, with more clothes than a man could wear in a year. Harvey always had been obsessed with his appearance. He pushed the clothes to either side and found a hidden inner closet door. When he opened that, he found a private hidey-hole, just big enough for one. Harvey was cowering inside.
Harvey, a fiftyish balding man with a speckled turnip of a nose, was crouched in a near-fetal position, his hands covering his face. “Don’t hurt me. Please don’t hurt me.”
He stared at Harvey with undisguised contempt. “Jesus Christ, Harvey. You ran off and left your wife to face the executioner?”
“She’s crippled,” he said, his voice quivering. “She had an accident last year. She couldn’t move fast enough to get away.”
He shook his head with disgust. “Pathetic.” He grabbed Harvey by the scruff of his neck.
“Please don’t hurt me!” Harvey screamed again. “I can’t help you. I don’t have what you want!”
“I wish I could believe you, Harvey. But of course, there’s only one way to know for certain.” He dragged Harvey forcibly back into the bedroom.
Upon arrival, Harvey saw his wife lying motionless in their bed. There was a red circle in the center of her forehead, and a pool of blood around her right leg. Her arms and legs were grotesquely splayed. “Oh, my God!” he screamed. “You didn’t—you didn’t—”
“Heck, no, Harvey. I didn’t do anything bad. I just killed her.” He threw Harvey onto the bed beside his wife’s corpse. “What did you think, that I’d become some sort of rapist? Geez, Harvey. I haven’t changed that much.” He reached into his coat and pulled out a roll of duct tape. “Not that there was any need, anyway. Didn’t you know, Harvey? I had your wife years ago.”
Harvey’s eyes widened, but just before he could shout, the man plastered a strip of duct tape right over his mouth.
“Oh, yeah, Harvey, it’s true. It’s been … what? Ten, eleven years now. We did it several times. Tried many different positions. Some pretty kinky stuff. One time you were in the house, sleeping. We did it right under your nose.” He grabbed Harvey’s arms and held them together, then wrapped tape around them and tied them to the bedpost above his head. “Not that it was any great thrill for me, if you want to know the truth. She was a bit pedestrian in the sack, wasn’t she, Harvey? Too conservative for my taste.” He smiled. “Although I did like that thing she did with her tongue. You know, during foreplay? Ooh-la-la.”
He wrapped tape around Harvey’s ankles, binding his legs together. Once Harvey was motionless, he clapped his hands together, as if celebrating a job well done.
“One last chance, Harvey.” He ripped the duct tape off the man’s face, taking bits of skin with it. “Where’s the merchandise?”