A David vs. Goliath Scenario


In my last post, I shared how the Castillo family, who had turned to me for help in perhaps taking on a case against the giant DuPont. Mrs. Castillo, who had been exposed to the fungicide Benlate during her pregnancy, had given birth to a son who was born without eyes. The family had come to me for help.

 

In 1991 Benlate was alleged to be contaminated with another DuPont product, a weed killer known as sulfonylurea, which was the most potent herbicide known to agriculture. More than 2,100 growers nationwide said that tainted Benlate ruined millions of dollars in plants and left thousands of acres of land unusable.

 

DuPont paid more than $510 million in damage claims until it abruptly stopped payments after it said its own tests showed Benlate could not have damaged plants. The grower’s lawyers said that DuPont had defrauded both growers and Federal regulators by hiding its knowledge about the product’s defects.

 

While this case showed their product caused harm to plants I had never heard of it doing damage to people—or, more specifically, causing harm to unborn embryos and fetuses.

 

At least, that was the case before the Castillos entered the picture.

 

There had never been a jury verdict rendered anywhere in the entire world against a chemical-producing corporate giant like DuPont for developing products that caused birth defects of any type.

 

It was now clear why every other lawyer the Castillos went to before me had turned them away.

 

They didn’t stand a chance of going the distance against a behemoth like that. They surely didn’t have the money or the stamina it would take to stare down DuPont, let alone win. They needed someone stupid enough to take the case and then finance it, too.

 

At the time, I was well on my way to becoming a wildly successful trial lawyer. But I was a bit of an oddity. I say that because all the successful trial lawyers I’ve ever known or heard of began their careers working under a mentor.

 

I didn’t.

 

I started my law firm two years out of law school and was never mentored by anyone. I would learn to prepare my witnesses, opening statements, and closing arguments by reading books and memoirs by the legendary trial lawyers of the past.

 

I would simply take what I liked from one, add it to what I liked from another, and then layer a little bit of my own insight on top.

 

Maybe not having a mentor to talk me out of it is what made me both naive and brazen enough to take on a case like the Castillos’. I was free to do it if I wanted. I didn’t have to answer to anyone else.

 

Besides, at the time I was also very idealistic—almost to a fault.

 

I consider myself very lucky to have represented so many people who didn’t stand a chance to win without me. I’ve not only helped change the lives of those people but I’ve also had the good fortune to make a lot of money doing it.

 

Naive or not, one thing was very clear after hearing Donna’s story: everybody on the street is a potential victim of chemical exposure like Donna endured that day. By not even thinking about the potential damage they were causing, DuPont—and the farmers using their products—were operating with a total disregard for the public. Worse, they didn’t seem to care. If the DuPonts of the world had their way, everyone would be considered human guinea pigs, much like the Castillos were. The biggest problem this beleaguered family faced was proving it.

 

Chemical cases involving birth defects are almost impossible to prove. While human test trials are done to determine whether a new drug is beneficial or harmful to people, there are no such trials for chemicals. The reason is very basic: no possible good can come from testing chemicals on humans, and in particular on pregnant women. It is simply unethical to perform such tests.

 

This is the challenge with Benlate and benomyl. You simply can’t spray potentially dangerous chemicals meant to kill weeds or enhance crop growth on pregnant women to see what will happen to their unborn children. There’s absolutely nothing positive that can result from a study like that. Because there is no possible benefit, human test trials—which would be the best indicators of potential birth defects—are not only unethical, they’re prohibited.

 

By comparison, when a pharmaceutical company screws up and damage to humans results from one of their drugs, it’s much easier to build a case against them, because data can be gathered from the controlled human test trials they typically run. It’s allowable to test new drugs on humans because it is generally understood that the possible benefits outweigh the risks. For example, when it comes to treating cancer, the prevailing view is that any new drug with the potential to kill the deadly cancer cells is well worth testing even if some people will be harmed in the process. Such trials are critical to moving medicine forward, which makes them invaluable.

 

That is very sound reasoning. With chemicals, however, the only allowable testing is on human cadaver skin and cells (not living people), and on animals.

 

This plays right into the hands of the DuPonts of the world. It makes it very easy for them to be irresponsible. This inherent limitation in testing makes it possible for companies with potentially toxic and harmful products to get away with selling them to the unsuspecting public.

 

Even when faced with living examples of severe human damage, companies such as DuPont are willing to sacrifice a thousand Johnny Castillos before they’ll toss in the towel. They believe they should be able to sell their products, toxic or not, with very little regulation.

 

In my next post, I explore the reasons the Castillo family wanted to pursue a suit against such a formidable corporate opponent.

 

You can read much more about this case, and the science behind the toxic fungicide from DuPont, in my book, Blindsided.

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