Toms River (65 page)

More frustration awaited when Fagliano and his colleagues tried to extend their analysis to the long-ago contamination of the riverside Holly Street wells in the 1960s, when Toms River Chemical had dumped billions of gallons of diluted dye waste into the Toms—enough to tint the river brown, give it a repulsive odor, and contaminate dozens of private and public wells. More than thirty years had passed, but until Fagliano’s effort, no one had ever tried to assess the health consequences of the Holly Street well contamination, which had been hushed up at the time. Fagliano soon learned that his attempt had
come too late to supply meaningful answers. The wells had been polluted so long ago that the health department could find only a few exposed survivors to include in the studies. Fatal cases were even harder to find, since there was no cancer registry at the time. As a result, there were just three case children in the interview study known to have been highly exposed to Holly Street water between 1962 and 1975—too few to calculate a credible odds ratio. The numbers were slightly better for the birth record study: seven highly exposed cases, with a worrisome odds ratio of 2.73 and an alarming ratio of 10.00 for girls only. But the girls’ odds ratio was based on just two cases, generating an absurd confidence interval spanning all the way from 0.03 to 372.00. With so few cases, it was impossible to draw any conclusions.
⁴
The toll from Toms River Chemical’s secret fouling of the riverside wells all those years ago would forever remain a mystery.

That left just one major hypothesis to test as a potential cause of the cluster: air pollution, which had always taken a backseat to drinking water as a source of public anxiety in Toms River. The air dispersion model built at Rutgers University was intricate but relied heavily on guesswork, including its dependence on historic wind direction records from almost fifty miles away in Atlantic City. Fagliano doubted that the air model would turn up anything interesting, and his prediction was borne out when he analyzed windborne radiation dispersion patterns from the Oyster Creek nuclear plant ten miles south of town: Case families were not, on average, exposed more heavily to radiation than cancer-free control families.

When Fagliano ran the numbers for airborne emissions from the Ciba plant, however, he saw something surprising: The data lined up in another dose-response pattern.
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For example, when he looked at downwind prenatal exposure to Ciba air emissions as a risk factor for leukemia and nervous system cancers, in interview study children under age five, the odds ratio for high-exposed children was 1.59, with a confidence interval that ranged from 0.80 to 14.90. When he homed in further, the odds ratios grew, just as they did with the Parkway wells. When he looked at air exposure as a risk factor for just leukemia, and only in girls under age five, he got these results:

Those odds ratios were very high, and higher exposures to Ciba air generated higher ratios. Furthermore, the lower bound of the confidence interval for high exposure was very close to 1.00, which meant that living directly downwind from the chemical plant very likely increased leukemia risk in young girls. On the other hand, there were just two highly exposed cases, and the confidence interval was extremely wide, suggesting extreme uncertainty. Still, it was a pattern, and it showed up not only in the interview study but also in the birth record study, unlike the Parkway results. For prenatally exposed girls in the birth record study diagnosed with leukemia before age five, for example, the results for Ciba air emissions displayed this dose-response pattern:

All in all, the computer printouts in Fagliano’s office carried a historic if bewildering message. Neighborhood cancer clusters had been an object of scientific fascination and public dread for a century, spawning hundreds of investigations around the world. Yet only once before, in Woburn, had a credible epidemiological study identified a likely environmental cause of a cancer cluster outside of the workplace. Now Fagliano thought that he had found
two
causes: air pollution from the chemical plant, and contaminated water from the Parkway wells. But had he really? The pattern of elevated odds ratios was strong, but the confidence intervals were wide and mostly dipped below 1.00, suggesting that there was still a nontrivial chance—unlikely, but certainly possible—that the associations he had uncovered were caused by nothing but random circumstance.

“In a way, it was the worst possible result because we thought we had found something, but we couldn’t be sure,” Fagliano remembered. “We knew right away that this was going to be controversial. We knew it was something we would want to check forward and backwards.” Back in 1995, the health department had reacted to similarly disturbing results in Michael Berry’s incidence analysis by keeping quiet—with disastrous consequences. This time, staying quiet was not an option, not after six years of high anxiety and intense anticipation. This time, the State of New Jersey would eventually have to disclose everything it knew and everything it did not know.

For the lawyers on the Toms River case, negotiating a potential settlement in the first months of 2001 was like playing high-stakes poker without being able to look at your cards. Thanks to the expert presentations they had heard at the meetings with mediator Eric Green, both sides had a sense of the strengths and weaknesses of their arguments. But the most important, make-or-break information would not be available until the results of the case-control studies were released—and Jerry Fagliano was not divulging anything yet.

There were obvious advantages to settling now. Jan Schlichtmann had learned the perils of all-or-nothing brinkmanship in the Woburn case the 1980s: His insistence on pursuing it to the bitter end—spurning several settlement offers along the way—left him homeless and bankrupt. This time, against their initial instincts, Linda Gillick and the TEACH families had bought into Schlichtmann’s new strategy of staying out of court and seeking a negotiated solution. If it failed to bear fruit now, they would essentially have to start over or just give up. The companies, too, had good reasons to settle. Dow Chemical, the new owner of Union Carbide, was eager to move on. So was Ciba, which was focused on cleaning up the factory site and then leaving Toms River for good. William Warren, the Union Carbide lawyer who was leaving the case now that Dow was in charge, still believed that the companies would win if there were a trial, but the case-control study was a looming unresolved risk. “I often tell clients that they may look at what’s being put on the table [as a settlement offer] and find it horribly offensive and unacceptable, but you can’t compare that with what
may happen” at a trial, Warren would later explain. “You can stand on principle, but there are potential costs to standing on principle.”

The families’ three principal lawyers—Mark Cuker, Esther Berezofsky, and Schlichtmann—were trying to present a united front to Warren and the other company lawyers. That was not easy. Schlichtmann felt disrespected and underappreciated, while Cuker and Berezofsky thought Schlichtmann was too eager to settle. They admired his creativity and persuasive skills, but he had done much less work on the case than they had, in part because he was distracted by the seemingly endless repercussions of his Woburn-related financial meltdown ten years earlier and also by an unfriendly split from his most recent law firm, San Francisco–based Lieff, Cabraser, Heimann, and Bernstein, to which he had handed off some of his Toms River work. Cuker and Berezofsky had visited Toms River dozens of times to meet with Linda Gillick and other leaders of the families; Schlichtmann had made only a few trips and was not close to the families. Yet Schlichtmann was the lawyer who received most of the press coverage associated with the case, thanks to his celebrity status as the flawed hero of
A Civil Action
. As the negotiations began, the three lawyers’ uneasy partnership was fraying.

Settling the case would require assigning dollar figures to human lives, a fraught process that would be especially challenging in Toms River because of the heterogeneity of the sixty-nine children. The heart of their legal claim was that pollution from Ciba or Union Carbide, conveyed by United Water’s pipes, had triggered their cancers. But that argument was much stronger for certain children than for others. Some were exposed to tainted water for only a few months; others, for their whole lives. Some were diagnosed as infants; others, as teenagers. Some suffered through years of agonizing treatments; others recovered faster. For fifteen children, the suffering was over; cancer had killed them.

The most difficult distinctions were by cancer type. There were more than a dozen kinds of cancer among the Toms River children, from acute lymphoblastic leukemias (the most common) to a single case of rhabdomyosarcoma, a rare soft-tissue tumor. Since cancer is not one disease but more than 150 unique conditions, it made little
sense to treat them all the same. Leukemia victims, for example, had relatively strong claims because there was credible evidence of a leukemia cluster, thanks to the state’s 1995 incidence analysis. There was also a large, if controversial, body of scientific research associating leukemia with industrial chemicals—especially trichloroethylene, which was known to have been present in Parkway water. A young child with leukemia would have an even stronger claim because prenatal chemical exposure would be one of the few credible explanations for what might have caused the disease. For other kinds of cancers, however, there was nothing at all in the medical literature to suggest pollutants might be to blame and no evidence of an unusually high number of cases in Toms River.

As they devised their opening proposal in the settlement negotiations, the lawyers for the families had to consider all of these subtleties. There was little to guide them; the Toms River case was unique because so many children with so many types of cancer were involved, and also because the state had already identified a cluster. Settlements in past lawsuits suggested that a nonfatal cancer in a young child might be worth about $1 million if there was strong evidence of causation. In Toms River, $1 million per child would mean almost $70 million—or maybe more, if siblings and parents got awards, too. But how strong was the evidence, really? Eric Green had heard all of it at the presentations and had given both sides his confidential assessment. Now that negotiations were starting, he was a very aggressive go-between. Under the terms of their mediation agreement, the two sides could negotiate only through Green, who made it clear that he would only pass along proposals he regarded as reasonable.

Green relayed the families’ first settlement proposal to the companies in February of 2001; a few weeks later, a counterproposal came back. “We were braced for something insulting, but it was much higher than I expected,” Cuker remembered. The companies were offering a little more than one-third of what the families’ lawyers had proposed. They were still tens of millions of dollars apart (the specific amounts have never been divulged), but they were closer than had ever seemed possible. Eric Green was one of the most esteemed mediators in America; he knew an opportunity when he saw one. He
stepped up the pressure, wringing concessions from each side. But after a few more rounds, negotiations stalled. By then it was May, and the prospects for a deal were fading; the study results could be announced any time, and then all bets would be off. The lawyers returned to the work of building a court case, looking for evidence wherever they could. Cuker even asked Bruce Anderson to tear up some old, disconnected pipes in Anderson’s basement floor, hoping to find standing water from the 1980s that he could test for pollutants. Anderson, who loved handyman projects, plunged into this one with gusto but found that the pipes were dry. As he was relaying this disappointing news to Cuker, who was in a conference room in Newark, Eric Green walked into the room smiling. The companies had raised their offer significantly; the two sides were less than $1 million apart. A few weeks later, they had a deal. To the shock of almost everyone involved, Jan Schlichtmann’s idealistic dream of a resolution without a lawsuit was coming true.