The Battle Over So-Called Junk Science


I awoke on the morning of our initial day in court for the Castillo-DuPont case with a burst of energy, ready for my regular morning run.

 

I clocked six miles, took a swim, and was in my car by 7:30 a.m. to arrive at the courthouse well before 8:30.

 

I popped Bruce Springsteen’s Born to Run into the CD player and turned up the volume as loud as it would go. I banged my left hand on the burled-wood steering wheel and shifted gears with my right.

 

When I pulled into the parking lot of the courthouse, I decided to park my Porsche out of plain sight. Something told me I didn’t want anyone—especially a potential member of the jury—to know I drove a car like this while trying a case about such a sensitive issue. I was hyper-conscientious about not offending anyone on our jury. This would become my regular morning routine throughout the trial.

 

I entered the courtroom with so much energy and vigor that I’m sure opposing counsel questioned the source. I didn’t give a fuck. Let them think they were dealing with a hungry pit bull. I wasn’t there to make friends. I was there to win.

 

The first order of business on the docket that morning was what is known in Florida as a Frye hearing. Federal and state courts require a minimum threshold of reliability and acceptance in the scientific community of the medical and scientific evidence to be admitted at trial.

 

In Florida and some other states, the courts adhere to what is known as the Frye standard.

 

Most federal and other state courts follow the Daubert standard, which is very similar to Frye. While forensic pathologists are seldom, if ever, requested to participate in such hearings, their toxicological and basic scientific colleagues often must participate, because they are more involved in research, methodology and technical procedures.

 

During these proceedings, the proponent has to prove general acceptance of the methodology to be used in trial. The judge determines whether the proponent has met that burden. If the science proposed meets that burden, then the jury can consider it as evidence in the case.

 

DuPont’s strategy from the start was to take all the evidence we had submitted in the pretrial hearings, including the same evidence they submitted to the EPA, and claim it was all “junk science.” DuPont wanted the judge to say the science wasn’t reliable or generally accepted in the mainstream scientific community and therefore shouldn’t be allowed.

 

My chief complaint against DuPont was that it was claiming the exact same science it had submitted to the EPA to get its product licensed was now junk science simply because I was trying to use it against them.

 

They couldn’t have it both ways. Why the hell should they be allowed to submit scientific studies (many of them self-conducted!) to the EPA to get permission to sell their chemical products to the public, and then also be allowed to turn around and call it junk science when someone from the public sues them over the harm their lethal fungicide caused?

 

Someday this needs to be corrected. We need a federal statute that makes anything submitted to a governmental agency such as the EPA or FDA for licensing purposes admissible in a court of law, especially when scoundrels like DuPont get sued by someone like Donna Castillo. They can still call it junk science if they like, but they will have to do so directly to a jury, and they’ll also have to explain to that same jury why they chose to submit junk science to the EPA or FDA in the first place. This notion of junk science became a central theme of the trial, as it was the core of DuPont’s defense.

 

I didn’t know it at the time, but this case would become the prevailing standard for years to come in the state of Florida for what type of science is or is not admissible in court. As a lawyer, I found it so unfair to the public that DuPont took such a warped and contrary position on science only when it suited their needs. The prospect of knocking out DuPont on this matter would mean a victory for us right from the start. It would be like shooting the king in the head. And from their point of view, taking out my key witness—Dr. Vyvyan Howard, the fetal pathologist—would be like doing the same thing. We clearly met the Frye standard and proved the general acceptance of the underlying scientific principles and procedures. DuPont, though, raised four points in the motion that we were in front of the judge to prove pursuant to Frye.

 

First, they claimed Dr. Vyvyan Howard was not a teratologist.

 

Second, they claimed Dr. Vyvyan Howard’s opinion was not based on any epidemiological studies.

 

Third, they claimed Dr. Howard’s use of in-vitro studies (conducted by Dr. Dick Van Velzen, whom Dr. Howard had commissioned) was not acceptable.

 

And finally they claimed Dr. Howard could not rule out alternative causes of birth defects.

 

The attacks came hard, but we were ready. I talk more about this in my next post.

 

I’d love to hear from you. Have you ever been in a situation, perhaps a negotiation, where the other side did everything it could to undermine your position? How did you react, or what steps did you take to prevent this getting worse? Thank you for sharing.

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