Jerome Facher, a Boston lawyer who successfully defended a tannery accused of water pollution that plaintiffs linked to a cluster of childhood leukemia deaths — a case that became the basis of a best-selling book and a Hollywood movie — died on Sept. 19 at his home in Arlington, Mass. He was 93.
His death was confirmed by his daughter Gillian Facher.
The case, recounted in Jonathan Harr’s book “A Civil Action” (1995) and in a 1998 film by the same name, centered on a liability suit filed in 1982 by eight families in Woburn, Mass., a Boston suburb. The families accused the tannery’s parent company, the Chicago conglomerate Beatrice Foods, and the chemical company W.R. Grace, which had a manufacturing plant nearby, of dumping toxic chemicals that from the 1950s to the ’70s had seeped into the neighborhood’s groundwater.
Mr. Facher (pronounced fasher) was on retainer to Beatrice, his biggest corporate client, which had recruited him because of his reputation as a ferocious litigator. By the early 1980s he had tried some 60 cases and lost very few.
But Mr. Facher feared that Beatrice would be doomed in the Woburn litigation if the families testified in court about their agonizing struggles with the cancer and other ailments that afflicted as many as a dozen neighborhood children, who had been exposed to water from two contaminated city wells. The wells were finally shut in 1979.
“Facher believed that this case was one he could not win,” Mr. Harr wrote, “not in front of a jury.”
Beatrice decided to dangle a $4 million settlement offer. But Jan Schlichtmann, the plaintiffs’ lawyer, believed he had a solid case and refused to sell the families short. (In the movie, directed by Steven Zaillian, Mr. Facher was played by Robert Duvall and Mr. Schlichtmann by John Travolta.)
In mounting the company’s defense, Mr. Facher combined stagecraft with cunning strategy.
He devised a maneuver to keep the victims’ families from testifying by focusing the first phase of the trial on a scientific question: whether any of the poisons had actually migrated from the tannery to city wells. He underscored the fact that the 15-acre tannery site was separated from the city wells by a river. He subjected one expert witness for the plaintiffs to six days of withering cross-examination and impugned the credibility of another, a geologist, for testifying that he had received his master’s degree in 1976 when he had said in a pretrial deposition that it was granted in 1979.
“I was told by my thesis committee and the geology department that I did have my degree,” the witness said.
“You were told?” Mr. Facher replied incredulously. “You’re saying you had a verbal degree in 1976? Is that what you want the jury to believe? Do you know of any university in the world that grants oral degrees?”
Throughout the trial, Mr. Facher disrupted his adversary’s courtroom momentum by repeatedly interrupting him with objections.
Mr. Facher could be just as brutal out of the courtroom. In “A Civil Action,” Mr. Harr described him as “at once humble and self-effacing, but also tyrannical and demanding to his acolytes.”
He recalled Mr. Facher writing in the margins of a brief drafted by a young lawyer, “Is English your first language?” and asking a student at Harvard, where he taught law: “What are you going to do next? Give up? Make a living selling cheeseburgers?”
His tactics, however harsh, often succeeded. In July 1986, after a 78-day trial, the jury absolved Beatrice of liability. That meant that in the next phase of the trial, in which the families were likely to testify, Beatrice would no longer be a defendant.
W.R. Grace, however, was found liable, and the company offered the families $8 million. By then, the plaintiffs’ lawyers, who had spent a tremendous amount to pursue their case, were virtually broke, and Mr. Schlichtmann would be forced into bankruptcy. Declaring a Pyrrhic victory of sorts, the plaintiffs accepted the settlement the day after Phase 2 of the trial began.
(Several lawyers representing Beatrice — Mr. Facher was not among them — were later found to have withheld evidence.)
After the trial, a separate investigation by the federal Environmental Protection Agency found that both Beatrice and Grace had been complicit in the deadly pollution and socked them with a $68 million bill to decontaminate the sites. The agency concluded that toxic chemicals had leeched into an aquifer that fed the city wells, the source of the neighborhood’s drinking water.
Armed with the new findings from the agency and other evidence, Mr. Schlichtmann tried to revive the case against Beatrice. He was unsuccessful.
Mr. Schlichtmann, who subsequently became an environmental lawyer, recalled Mr. Facher as “fiercely devoted to his client” and “the most formidable lawyer I ever went up against.”
“As infuriating and frustrating as it was,” Mr. Schlichtmann said in a phone interview, “it was a constant learning experience.”
Jerome Paul Facher was born on Dec. 9, 1925, in Wilkes-Barre, Pa., to Morris and Gussie (Levy) Facher. His mother owned a dress shop, and his father sold various sorts of merchandise — from pots and pans to encyclopedias — door to door.
The younger Mr. Facher studied chemistry at Bucknell University Junior College (now Wilkes University), but transferred to what is now Penn State University and graduated in 1946 with a degree in journalism.
After enlisting in the Army and serving in the Korean War, he enrolled in Harvard Law School, where he felt inadequate compared with his classmates, many of whom had been Ivy League undergraduates, Mr. Harr wrote. Mr. Facher, he added, “lived each day in fear that a professor would call on him.”
He nevertheless became an editor of The Harvard Law Review and graduated magna cum laude in 1951.
After graduating, Mr. Facher returned to the Army to join its legal arm and served with the American delegation to NATO before returning to Boston in 1955. He then joined the firm Hale & Dorr in Boston, where he became chairman of the litigation department. (One colleague in the department was Joseph N. Welch, who had been chief counsel for the Army and had famously defied Senator Joseph McCarthy in 1954 with his “have you left no sense of decency?” challenge; another was James D. St. Clair, who became chief counsel to President Richard M. Nixon during the Watergate scandal.) Mr. Facher remained with the firm until he retired in 2013.
He married Vivien C. Gattie. In addition to his daughter Gillian, she survives him, as does another daughter, Marise Facher, and a granddaughter.
Mr. Harr, who had been a reporter for The New England Monthly, wrote “A Civil Action” after he embedded himself with the plaintiffs’ lawyers. His research included attending Mr. Facher’s trial practice class at Harvard Law for two years. The book won the National Book Critics Circle Award.
“By the end, ‘A Civil Action’ shows that the compensation the Woburn families received was determined mainly by random legal quirks and the personalities of the lawyers and judges involved,” Gregg Easterbrook, a contributing editor at The Atlantic Monthly, wrote in The New York Times Book Review.
“The book leaves one wondering,” Mr. Easterbrook asked: “Is this any way for society to settle its disputes?”
After four decades of practicing law, Mr. Facher also expressed reservations about the efficacy and fairness of the judicial system.
“The truth?” Mr. Harr quoted him as saying. “The truth is at the bottom of a bottomless pit.”
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