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?”