‘So many of the girls I know won’t own up,’ she went on, ‘they say they are alright. They’re afraid of losing their boyfriends and the good times. They know it isn’t rheumatism they’ve got – God, what fools, pathetic fools! They’re afraid of being ostracised.’
Grace Fryer was also telling truths. ‘I couldn’t say I’m happy,’ she admitted, ‘but at least I’m not utterly discouraged. I intend to make the most out of what life is left me.’ And, when the time came, she said she wanted to donate her body to science, so that doctors might be able to find a cure; the other girls would later follow suit. ‘My body means nothing but pain to me,’ Grace revealed, ‘and it might mean longer life or relief to the others, if science had it. It’s all I have to give.’ She gave a determined smile. ‘Can’t you understand why I’m offering it?’
The journalists almost swooned. ‘It is not a question of giving up hope,’ one reporter commented after Grace’s promise. ‘Grace has hope – not that selfish hope that perhaps you or I might have, but the hope for contributing betterment to humanity.’
With such a public platform – and public sympathy – the momentum in the case was definitely in the women’s favour; and it was at this point that Judge Backes came up with an inspired interpretation of the statute for Berry. He suggested that because the girls’ bones contained radium and the radium was still hurting them, they were still being injured; ‘therefore, the statute began tolling anew each moment of that injury’. It was brilliant.
Whether it was an argument that would stand up in court was, of course, still to be tested – but Berry found that, in the light of public pressure, the justice system was now willing to support him. No matter the response of the radium company, the trial was scheduled to go ahead. Towards the end of May 1928, Judge Mountain wrote to Berry: ‘I will set [the] cases down for trial on Thursday next. Counsel will accordingly prepare to proceed on that morning without fail.’
Nothing was going to stand in the way of justice – of that both Berry and the girls were sure. Carried along on a swell of public favour, it seemed they would soon be home and dry.
Berry was in his office, preparing for the case, when his telephone chimed.
‘Mr Berry?’ said his secretary Rose. ‘Judge Clark is on the line.’
31
Judge William Clark was a hugely respected man. Born with a silver spoon in his mouth – he was the grandson of a senator; the family estate was called Peachcroft – he was thirty-seven years old, with auburn hair, grey eyes and a large nose. He was also Berry’s old boss, back when Berry had been a clerk; for Clark had once been a partner in the law firm Lindabury, Depue & Faulks.
‘To Judge Clark’s office,’ read Berry’s diary for 23 May 1928, ‘and talk re: radium cases with him.’ His former boss had a suggestion to put to him.
‘Would it not be possible,’ Clark enquired lightly, ‘to settle the suits out of court . . .?’
Berry wasn’t the only party with whom the judge was conferring. On 29 May, Clark met with President Lee and the legal team of USRC; Berry was not asked to attend. When a reporter questioned Berry about the meeting, he commented, ‘I know nothing of any such arrangements. I am not even considering a settlement out of court.’
Though he professed to the reporter that he was ‘more determined than ever [that the case] will be fought now to [the] bitter end’, privately he was starting to have his doubts. It wasn’t that he didn’t think he could win; it was whether any verdict would come in time to benefit the girls. Every time he saw them, they seemed weaker than before; Humphries had already told him they were ‘not physically or mentally able’ to attend the upcoming trial. Even Grace Fryer, who was normally almost effervescent compared with her friends, seemed quieter and less demonstrative. ‘I don’t dare do much with my hands,’ she confided, ‘for fear of being scratched. The least scratch will not heal because of the radium.’ The girls were becoming like china dolls, wrapped up in the cotton wool of their medical care. Berry wanted them to get justice, but most of all he wanted them to be comfortable in their final days. Perhaps, he thought, he should give Clark’s suggestion due consideration, as long as any settlement was fair.
Berry’s musings were compounded just a day or so later, when Katherine Schaub collapsed in church. ‘Pains like streaks of fire through my whole body!’ she cried out. ‘I can’t go on this way. I wish I wasn’t going to live another month.’
It seems Berry made his mind up: it would be inhuman not to try to get the girls a settlement if an offer might be forthcoming. Any legal case could take years to fight and, as Berry well knew from the four sworn statements in his files, the women might not live until September.
On 30 May, Judge Clark was reported as an unofficial mediator. It was a move that provoked considerable comment within the legal profession, for the judge was intervening in a case over which he had no jurisdiction. Clark, however, said he resented criticism. ‘Just because I am a federal judge,’ he asked rhetorically, ‘does that mean that I cannot have a heart?’ His motives, he said, were entirely humanitarian.
The following day, USRC held a board meeting to discuss what possible terms it might offer in settlement. Vice President Barker now declared that ‘the directors wanted to do what was fair’. He added, however, ‘We absolutely deny any liability.’
The company had very good reason to want to settle. Thanks to what it called a ‘cleverly designed campaign of publicity’ (in which, it said – without any sense of irony – ‘the human aspect of live women doomed to die was played up in an appealing manner’), the groundswell of support for the women’s case was overwhelming. Settling this famous case out of court would not only make both it and all the negative publicity go away, but it meant the firm could choose when to fight its battles in court. Inevitably, there would be future lawsuits from other dial-painters, and the firm no doubt foresaw that they might get an easier ride in a few years’ time, when Grace Fryer and her friends were not still plastered all over the papers. A settlement suited the company just fine.
With USRC now happy for the cogs to turn quickly, a meeting between Berry and the firm’s lawyers was held the next day, Friday 1 June, at 4 p.m. in Judge Clark’s chambers. Two hours later, Clark made a quick statement to the excitable press waiting outside as he ran to catch his evening train: ‘There is no definite news but I am confident that the matter will be definitely settled at a conference [on] Monday.’