There were hundreds of studies that didn’t matter much. The two most significant studies, the ones that made a difference in the courtroom, were the critical studies I found in the Delaware document depository—Staples I and Staples II.
Naturally, there were others that helped, but those two studies were my whistleblowers. The fact that DuPont had fixed their own studies wouldn’t win the case for us, but it was a sexy-enough point to create some doubt in the jury’s minds about who we were dealing with and the nature of the science behind Benlate.
Even so, we still had to prove that Donna’s exposure at the time of her pregnancy was equally culpable. This was my reason for bringing in 13 different experts.
Often lawyers will argue in generalities, citing “generally accepted science.” This wasn’t one of those cases. Given the complexity of the case, there wasn’t a single person who could knowledgeably talk about everything we needed to prove in our case. For this reason, I sought individual experts to testify specifically and perfectly about what they knew best.
I had no room for opposing counsel to dispute such important details as the dermal transmission rate of the chemical in question. I couldn’t let the other side argue that the half-life was not 45 minutes, because it was. I couldn’t let the other side suggest that people don’t have three to four liters of blood in their bodies, because they do. I couldn’t let the other side argue that the placenta doesn’t absorb everything we consume or come into contact with through our skin, because there is no question that it does. I couldn’t let the other side dispute which stage the eyes develop during gestation. And I certainly couldn’t let them refute the fact that the brain is the most sensitive part of the developing embryo, or that it can be affected in a low-dose environment.
I needed witnesses who could unequivocally present the facts and shut down any falsehoods if and when they came up.
With the exception of some in-vitro studies that DuPont had performed itself, the bulk of the studies hadn’t been carried out on humans. As I mentioned earlier, we knew for sure that 80% of the time, a test conducted on a rat yields the same result as it would if the test were performed on a human. The law should probably allow that to be enough evidence to put in front of a jury, but it’s not always that simple. And this is what made Dr. Vyvyan Howard, our fetal pathologist expert, so vital to our case.
His testimony would have to convince the jury of just how small a chemical dose was needed to impact the embryo’s cell development based on the science we had.
He was the witness who could most easily and effectively explain, based on the level of Benlate one is exposed to, how much of the chemical would get through the skin, how much would then get into the bloodstream, and how much would pass through the placenta and ultimately to the embryo as a result. That link was the difference between winning and losing this case.
The bottom line was this: although the animal studies that resulted in eye malformations were very attention-grabbing, they clearly were not enough on their own for us to win, or even get to a jury. The animal studies showed “biological plausibility,” which means, in many situations, that when you get a result in an animal, you will get the same result in a human. We needed those studies, but we also needed additional science that tracked the chemical through the skin to the blood, through the blood to the placenta, and through the placenta to the embryo, into the embryo and into the cells.
In my next post, I will write about my final preparations for the case, and the illness of a trusted colleague at a crucial time.
You’ll find many more details about my preparations, as well as the narrative of the trial, in my book, Blindsided , from which this post is adapted.