A Civil Action Mediation: Materials for Mediators and Students
In May 2010, Jan Schlichtmann filed suit on behalf of eight families against Beatrice Foods and
W.R. Grace. Beatrice was represented by Jerome Facher, and W.R. Grace was represented by
Bill Cheeseman. The complaint alleged that the defendants had contaminated the city of
Woburn’s drinking water wells with TCE and other toxic chemicals, that the contamination had
caused one child in each family to get leukemia, that five of the eight children with leukemia had
died of that disease, and that other family members had become sick on account of the
contaminated water.
Both sides hired experts. Plaintiffs’ experts built a strong case that the defendants had
contaminated the wells and that the contamination had caused the deaths and illnesses. On the
other hand, defendants’ experts correctly pointed out that much of the plaintiffs’ evidence was
speculative and that there was no scientific consensus that TCE or other relevant chemicals cause
leukemia or other illnesses.
W.R. Grace impleaded Unifirst. The plaintiffs amended their complaint to add Unifirst as a
defendant and then settled with Unifirst.
The parties have now agreed to go to mediation to see if the case can be resolved. There are
many “pressure points” that the parties are likely to raise at mediation. Among them are the
following:
• The plaintiffs are expected to make very sympathetic witnesses at trial. The stories that
they will tell at trial are truly tragic. In contrast, large W.R. Grace is a large corporation
with little goodwill among potential jurors.
• Although plaintiffs’ counsel would like a large monetary award, the plaintiffs
themselves are more interested in having the defendant accept responsibility and prevent
future harm.
• W.R. Grace is also being investigated by the E.P.A. It is concerned that Schlichtmann’s
experts, if allowed to testify at trial, will give the E.P.A. new legal and scientific theories
that it could use against Grace.
• Although the plaintiffs’ experts have documented a link between TCE and leukemia,
that link is not widely accepted among scientists.
You should assume the facts and law as described in Jonathan Harr, A Civil Action, except:
You should assume that the mediation is taking place around p. 264 of the book. That is,
discovery is over, but trial is about a month away. Students and mediator should assume
that they do not know anything that happens later in the book – how well witnesses
testify at trial, how much the real case settled for, how the judge managed the trial, etc. In
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fact, for reasons discussed below, if the trial occurs, it might turn out very differently than
described in the book.
28 years should be added to all dates in the book. So the lawsuit was filed in 2010 and is
scheduled to go to trial in 2014.
All negotiations should be in 2014 dollars. $1 in 1986 is worth $2 in 2014. For the same
reason, all dollar figures in the book should be doubled. For example, Unifirst’s
settlement should be assumed to have been $2,100,000 rather than $1,050,000. See p.
146.
The plaintiffs and W.R. Grace became dissatisfied with their lawyers and decided to fire
Jan Schlichtmann, Bill Cheeseman, and their law firms. The plaintiffs and W.R. Grace
have chosen new legal teams. These new legal teams have worked very hard and have
mastered the facts of the case in a remarkably short period of time.
The new plaintiffs’ lawyers successfully negotiated a settlement with Beatrice. Beatrice
agreed to pay the plaintiffs 16 million dollars. The plaintiffs paid Jan Schlichtmann and
his law firm 4 million dollars in exchange for an agreement from him not to claim any
further reimbursement, compensation, or fees in the case, other than twenty-five percent
of any additional settlement or judgment. The plaintiffs put 6 million dollars in a bank
account that their lawyers could use to pay their litigation expenses, and they distributed
the remaining 6 million dollars equally among the plaintiff families.
You should assume that Massachusetts applies the “pro-tanto” settlement setoff rule. That
is, if the case goes to trial and plaintiffs prevail at trial against Grace, the settlements that
the plaintiffs received from other defendants will be subtracted from the amount that the
jury awards in damages. For example, if the jury awards the plaintiffs 20 million dollars,
Grace would only have to pay $1,900,000 = $20,000,000 – $16,000,000 (settlement with
Beatrice) – $2,100,000 (settlement with Unifirst). If the jury awards the plaintiffs 30
million dollars, Grace would have to pay $11,900,000 = $30,000,000 – $16,000,000
(settlement with Beatrice) – $2,100,000 (settlement with Unifirst). If the plaintiffs settle
with Grace, there is no setoff and Grace would have to pay the entirety of the settlement
amount to the plaintiffs and their lawyers.
Judge Skinner was hit by lightning at a Red Sox game and died. He was replaced by
Judge Armer. Judge Armer is a USC graduate who spent most of her pre-judicial career
as a criminal prosecutor. Since joining the federal bench, she has developed a reputation
for fairness in civil cases. Neither the plaintiffs’ bar nor the defense bar view her as
biased in favor or against them, although both complain that she is sometimes
unpredictable in her rulings.
The new defense team has requested that the trial be divided into three phases. The first
phase would decide whether Grace was responsible for contaminating the wells. If the
jury decided that Grace was responsible for the contamination, then the case would
proceed to the second phase. The second phrase would determine whether the
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contamination caused the plaintiffs and their families to become sick and die. If the jury
decided that the contamination caused the sickness and death, the case would proceed to
the third phase. The third phase would determine the damages. The plaintiffs would be
allowed to testify only in the third phase. Judge Armer has not ruled on this request.
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