Jockeying for Position in the Court


I was about to make my final plea to the court on behalf of our expert witness, fetal pathologist Dr. Vyvyan Howard and his qualifications as a teratologist, when I was interrupted by opposing counsel.

 

Brian Cella was in the courtroom that morning along with Clem Glynn, both representing DuPont. Cella was incensed by my representation of Dr. Howard’s credentials, which had been in question by the defense from the moment I introduced him as a witness. My contention was that during his deposition, Dr. Brent—DuPont’s own witness—testified under oath that Dr. Howard was qualified to be a witness. Cella said, “Your Honor, Dr. Howard is not qualified. Would you like me to make clear once again our position?”

 

I asked the judge if I could read from Dr. Brent’s deposition to remind counsel of what their own witness had said. The question had been “So you believe he is qualified; you just disagree with his opinion?”

 

“The answer from their expert witness, Your Honor: ‘He’s qualified and wrong.’”

 

Cella had a different point of view. He began reading from his deposition: “Dr. Brent, in your opinion, is Dr. Howard a qualified teratologist?”

 

“He’s not a teratologist.”

 

“And teratology is the specific discipline that studies birth defects as induced by environmental agents?”

 

“Among other things, yes; many of us are also geneticists as well. But certainly teratology is the study of environmental causes of birth defects in both animals and humans.”

 

“Looking at the substance of his other opinions, you feel that he is not qualified to give these types of opinions?”

 

“I really try not to judge other experts. That is for the jury and the judge to decide. He certainly has had very little experience in the field of teratology, and this is not his field of expertise . . .”

 

Dr. Howard was known as a developmental toxicologist. A teratologist is a physician of almost any specialty who looks at birth defects. That could include pediatricians, pathologists, or any other type of medical professional, because there is no special training for teratology. That fact came from the King of Teratology himself.

 

Cella was getting pissed off at my use of the term “King of Teratology.”

 

“Your Honor, may I make a personal observation?” he asked.

 

“No. I don’t think so,” Judge Donner said.

 

“It’s the reference to the King of Teratology, Your Honor . . .”

 

“Excuse me?” The judge wasn’t happy that Cella had continued with his “observation.”

 

“Okay, I’m sorry,” Cella quickly acquiesced.

 

“Mr. Cella, just let Mr. Ferraro finish. Every statement he makes, there is no question in my mind and heart that you disagree. So I’ll keep that in my heart as he’s speaking. Then, when it’s your turn, you’ll tell me why you think he’s wrong.”

 

I actually didn’t believe Dr. Brent was the King of Teratology any more than Cella did, but they had stated it in court, and I used the term in jest. After all, he was the self-proclaimed king in his own deposition, given under oath.

 

As you can see, this type of testy back-and-forth is a common courtroom ploy, as each side lobbies for position.

 

In my next post, I will recount the process of jury selection in this trial.

 

I’d love to hear from you. Have you ever been in a situation where someone disputes everything you say just to throw you off guard? What do you do in response? Thank you for sharing.

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