Jerome Facher, a Boston lawyer who successfully defended a plaintiff's water pollution tannery linked to a set of childhood leukemia deaths – a case that became the basis of a bestselling book and a Hollywood movie – died in September 19th at his in Arlington, Massachusetts. He was 93 years old.
His death was confirmed by his daughter Gillian Facher.
The case, retold in Jonathan Harr's book, "A Civil Action" (1995) and in a 1998 film of the same name, centered on a lawsuit filed in 1982 by eight families in Woburn, Massachusetts, a suburb of Boston. The families accused the tannery parent company, the Chicago conglomerate Beatrice Foods and the chemical company W.R. Grace, who had a nearby factory, dumped toxic chemicals that from the 1950s to the 1970s had seeped into the neighborhood's groundwater.
Facher (pronounced fasher) was in contact with Beatrice, his largest corporate client, who had recruited him because of his reputation as a fierce litigant. By the early 1980s, he had tried about 60 cases and lost very few.
But Facher feared Beatrice would be convicted of Woburn litigation if families testified in court about her agonizing struggles with cancer and other diseases that afflicted up to a dozen neighborhood children exposed to water from two contaminated cities. wells. The wells were finally closed in 1979.
"Facher believed this case was one he could not win," Harr wrote, "not before a jury."
Beatrice decided to make a deal offer of $ 4 million. Jan Schlichtmann, the plaintiff's lawyer, believes he has a solid case and refused to sell his families short. (In the movie, directed by Steven Zaillian, Facher was played by Robert Duvall and Schlichtmann by John Travolta.)
In setting up the company's defense, Facher combined the staging with cunning strategy.
He planned a ploy to stop the families of the witness victims by focusing the first phase of the trial on a scientific question: whether any of the poisons had actually migrated from the tannery to the city pits. He stressed the fact that the 15-acre tannery was separated from the city's wells by a river. He subjected an expert witness to the perpetrators to six days of offensive interrogation and challenged the credibility of another geologist for testifying that he received his master's degree in 1976 when he declared in pre-trial testimony that he was granted in 1979.
"My thesis committee and the geology department told me I had my degree," the witness said.
"Were you informed?" Mr. Facher answered incredulously. "Are you saying you had a verbal degree in 1976? Is that what you want the jury to believe? Do you know any universities in the world that award oral degrees?"
During the trial, Facher interrupted his opponent's court case by repeatedly interrupting him with objections.
Facher can be equally brutal out of court. In "A Civil Action," Harr described him as "both humble and modest, but also tyrannical and demanding for his acolytes."
He reminded Mr. Facher writing in the margins of a writing by a young lawyer, “English is your first language?” And asking a Harvard student, where he taught right, “What are you going to do next? Give up? Make a living selling cheeseburgers?
His tactics, however severe, are successful. In July 1986, after a 78-day trial, the jury acquitted Beatrice of responsibility. This meant that in the next phase of the trial, where families would probably testify, Beatrice would no longer be a defendant.
W.R. Grace, however, was found responsible, and the company offered families $ 8 million. Until then, the plaintiffs' lawyers, who had spent a tremendous amount on their case, were practically broke and Schlichtmann would be forced into bankruptcy. Declaring a sort of pyrrhic victory, the plaintiffs accepted the settlement the day after the start of Phase 2 of the trial.
(Several attorneys representing Beatrice – Facher was not among them – were found later for hiding evidence.)
After the trial, a separate investigation by the Federal Environmental Protection Agency found that Beatrice and Grace had been complicit in the deadly pollution and covered a $ 68 million bill to decontaminate the sites. The agency concluded that toxic chemicals had penetrated an aquifer that fed the city's wells, the source of the neighborhood's drinking water.
Armed with the agency's new findings and other evidence, Schlichtmann tried to revive the case against Beatrice. He was unsuccessful.
Schlichtmann, who later became an environmental lawyer, recalled Facher as "fiercely dedicated to his client" and "the most formidable lawyer I have ever faced."
"As annoying and frustrating as it was," Schlichtmann said in a telephone interview, "it was a constant learning experience."
Jerome Paul Facher was born on December 9, 1925 in Wilkes-Barre, Pennsylvania, son of Morris and Gussie (Levy) Facher. Her mother owned a clothing store and her father sold various types of goods – from pots and pans to encyclopedias – door to door.
The young Mr. Facher studied chemistry at Bucknell University Junior College (now Wilkes University), but was transferred to what is now Penn State University and graduated in 1946 with a degree in journalism.
After joining the Army, he enrolled at Harvard Law School, where he felt inadequate compared to his classmates, many of whom were undergraduate Ivy League students, Harr wrote. Facher, he added, "lived every day for fear that a teacher would call him."
However, he became editor of The Harvard Law Review and graduated magna cum laude in 1951.
After graduating, Facher returned to the Army to join his legal arm and served with the US NATO delegation before returning to Boston in 1955. He joined Hale & Dorr in Boston, where he became chairman of the litigation department. . (A colleague in the department was Joseph N. Welch, who had been the Army's chief advisor and challenged Senator Joseph McCarthy in 1954 with the challenge "Did you leave no sense of decency?" Another was James D. St. Clair. became chief advisor to President Richard M. Nixon during the Watergate scandal.) Facher remained with the company until his retirement in 2013.
He married Vivien C. Gattie. In addition to her daughter Gillian, she survives him, as does another daughter, Marise Facher, and a granddaughter.
Harr, who was a reporter for The New England Monthly, wrote "A Civil Action" after getting involved with the complainants' lawyers. His research included attending Facher's practical class at Harvard Law for two years. The book won the National Book Critics Circle Award.
"In the end," Civil Action "shows that the compensation Woburn families received was mainly determined by random legal peculiarities and the personalities of the lawyers and judges involved," wrote Gregg Easterbrook, contributing editor of The Atlantic Monthly in The New York Times Book Review.
"Does the book leave us wondering," Easterbrook asked, "Is this how society settles its disputes?"
After four decades of advocacy, Mr. Facher has also expressed reservations about the effectiveness and fairness of the judicial system.
"The truth?" Mr. Harr quoted him saying. "The truth is at the bottom of a bottomless pit."