‘Yes, there are other reported cases,’ retorted Martland.
‘There is only a stray case, one or two . . .’ Markley said, wafting a hand dismissively.
But Martland said firmly that the Waterbury cases did exist. His testimony was powerful; Backes even referred to the USRC paint itself as ‘radium poisoning’; something Markley pounced on indignantly: ‘This paint is anything but a radium poisoning!’ he exclaimed.
As the day drew towards a close, Berry stood up to redirect Martland. When Markley, predictably, objected, the judge once again overruled him. ‘You attempted to weaken [Martland’s] opinion,’ he told Markley. ‘Counsel [Berry] is now trying – if you succeeded – to restore it.’
He turned to Berry. ‘Proceed.’
Berry could not be happier with how the case was going – and tomorrow he would hammer home the final nail in the company’s coffin. Dr von Sochocky was going to take the stand, and Berry couldn’t wait to question him on the warning he had given the corporation about the paint being dangerous. That would seal the verdict once and for all – and surely in the girls’ favour.
The next morning, towards the end of von Sochocky’s testimony, Berry posed the killer question.
‘Isn’t it true,’ he said, his eyes bright as he turned to face the doctor, ‘that you said [you hadn’t stopped lip-pointing] because the matter was not in your jurisdiction but Mr Roeder’s?’
‘I object to this, Your Honour,’ interrupted Markley at once.
But before the judge could rule, the company’s founder answered.
‘Absolutely not.’
Markley and Berry both stared at him, open-mouthed. And then Markley confidently retook his seat, crossing his long legs. ‘All right,’ the corporate attorney said easily, gesticulating for the witness to continue.
‘Absolutely not,’ repeated von Sochocky.
Berry could not believe it. For not only had Grace and Quinta told him about this, Martland and Hoffman had too: and they had all heard it from the doctor’s own mouth. Why was he now backtracking? Perhaps he was concerned about how he would appear; or perhaps something else had happened. ‘We should get a line on what [von] Sochocky is doing and where he is,’ a USRC memo had noted back in July. Perhaps there had been a conversation behind closed doors that had led to the doctor’s change of tune.
Berry quizzed him on his warning to Grace, too. Perhaps here, at least, he could find some traction.
‘Well, Mr Berry,’ von Sochocky replied, ‘I don’t want to deny that, but I don’t recollect that very distinctly . . . There is a possibility I told her that, which would be the perfectly natural thing to do, passing by the plant, seeing the unusual thing of a girl putting a brush to her lips; of course I would say [“Do not do that”].’
That account sounded peculiar even to John Backes’s ears. ‘What reason had you for doing that?’ the judge asked.
‘Unsanitary conditions,’ replied von Sochocky promptly.
‘You cautioned this young lady not to put the brushes in her mouth,’ Backes said plainly. ‘I want to know whether at that time you were apprehensive that the paint with the radium in it might affect her deleteriously.’
But the doctor was unmoved. His choice of pronoun is notable. ‘Absolutely not,’ he replied to the judge. ‘[The danger] was unknown to us.’
Berry was bitterly disappointed. Publicly, in court, he denounced von Sochocky as a ‘hostile witness’. Grace Fryer, to whom the warning had been given, must have had a few choice adjectives of her own flying through her mind.
Berry gave her a chance to speak again. She was recalled to the stand immediately after von Sochocky’s testimony – ‘not to discredit [the doctor],’ Berry explained, ‘but to show actually what he did say.’ But Markley objected to her evidence at once, and the judge was forced to sustain it, seemingly against his will. ‘Strike out the answer,’ Backes commented. ‘These rules of evidence have been invented to prevent people from telling the truth.’
There were only a handful of other witnesses, including Katherine Wiley and Dr Flinn, who was there as a paid witness for USRC. And then, at 11.30 a.m. on 27 April 1928, Berry rested his case. Now, for the rest of the day and in subsequent days to follow, the United States Radium Corporation would have an opportunity to put their side of the story and then – then, the girls thought hopefully, wondering how they would feel when the time came – the verdict would be given.
Markley stood up, his long body sliding out of his chair effortlessly. ‘I was wondering,’ he said smoothly to John Backes, ‘we may be able to shorten this if we have time for a conference?’
There was a discussion off the record. Afterwards, as the judge’s gavel banged, Backes made a pronouncement.
‘The hearing is adjourned to September 24.’
September was five months away. Five months. To put it bluntly, it was time that the girls, in all likelihood, probably didn’t have.
The delay, cried Katherine Schaub, was ‘heartless and inhuman’.
But the law had spoken. Nothing further would be done until September.
30
The girls were devastated. Even Grace Fryer, who for so long had stayed incredibly strong, couldn’t bear it. She flung her body ‘down on the couch in her living room [and] gave herself up to the pent-up tears’.
Her mother tried to calm her, gently touching her daughter’s metal-bound back, trying not to bruise her thin skin. ‘Grace,’ she said, ‘this is the first time you have failed to smile.’
But the girls could not believe what had happened. Markley had said ‘it would hardly be worthwhile for him to begin his case with only half the day remaining’ and thus the case had been postponed until there was sufficient time in the court calendar – the company intended to present approximately thirty expert witnesses. The serial story in the Orange Daily Courier that week was ‘Girl Alone’; well, all five dial-painters truly felt that way.
But they were not alone: they had Raymond Berry. Immediately he fought the decision and, crucially, found two lawyers, Frank Bradner and Hervey Moore, who had a case scheduled for the end of May and were willing to give up their court slot so that the girls’ case could be heard instead. Backes agreed at once to the new timing and Berry let the women know the good news.
The United States Radium Corporation, however, was not best pleased at Berry’s intervention and said it would be ‘impossible’ for them to proceed in May; their experts were ‘going abroad for several months and will not be back until after the summer’.