Sitting at the DuPont defense table were Clem Glynn, Doug Chumbley, Brian Cella, and DuPont’s corporate representative, Dr. Judith Stadler. At the defense table for Pine Island Farms were Greg Gaebe and David Kleinberg, Lynn Chaffin, and Jack Wishart, who started Pine Island Farms in 1983. Sitting with me at our table were my appellate counsel Liz Russo, my associate (of only eight months) Ana Rivero, and the Castillo family, including Donna, Juan, Adrianna, and little Johnny.
Without much fanfare or ado, Judge Donner finished her explanations and said, “At this time the attorneys will have the opportunity to make their opening statements, in which they may explain to you, the jury, the issues in the case and give you a summary of the facts they expect the evidence to show. Is the plaintiff ready to proceed to trial?”
“Yes, Your Honor,” I replied.
“You may begin,” she said.
I stood up from behind the walnut-brown table that would become my home base in the courtroom for the next several weeks, straightened my suit jacket, turned to the jury—then turned to John Castillo, sitting in the front row just behind Liz and Ana, and took a short pause before turning around once again to face the jury.
“Good morning, ladies and gentlemen; thank you for serving on our jury. I’m going to give you a very brief introduction. If I had only forty-five seconds to tell you about this case and what the evidence will show, this is what I would tell you.
“In 1989, Donna Castillo lived in West Kendall. On approximately September nineteenth of 1989, she became pregnant with her young son, John, who is right over there, sitting on Mr. Castillo’s lap. About seven weeks into her pregnancy, she was walking by a farm in her neighborhood where they were spraying a product called Benlate. The farm is one of the defendants in the courtroom. The product is made by the other defendant.
“She was drenched with a spray of this product seven weeks into her pregnancy. The following June—June 15, 1990, to be exact—her son was born with no eyes.” Ironically, Johnny was born on the exact date of my and Diane’s tenth wedding anniversary. Something about that connection felt important and relevant as we began our battle.
I continued with my opening, staying very much on script and being deliberate with every word.
“This particular product has been tested through the years by scientists both inside of DuPont and outside of DuPont. They have performed a number of rat studies in which they intentionally exposed pregnant rats to doses of Benlate, and in almost all of those tests, a substantial number of rat fetuses were born without eyes, just like John Castillo was.
“Now, I want to tell you a little bit about the product Benlate. Benlate was first introduced in 1968 as an experimental fungicide. During the 1970s, it was marketed under the trade name Benlate 50 DF. That is the product at issue in this courtroom. The product is used to spray strawberries, tomatoes, and a variety of other types of fruits and vegetables.
“The active ingredient in Benlate is something called benomyl. Benlate is the product name, and benomyl is the active compound. This is the active ingredient that was tested on rats.
“The product is registered with the Environmental Protection Agency of the United States. In 1977, the EPA issued what is known as Position Paper Number One on Benlate. What this means is that the EPA, as part of its process, looks at data submitted by the manufacturer of a product for review, and they rely on the manufacturer’s representation of the product to decide whether it should be allowed to go on the market. Part of the reason it is done this way is that the manufacturer clearly has the most intimate knowledge about its product.
“In 1977, the EPA was concerned about skin exposure to Benlate—getting the product on one’s skin, also known as dermal exposure. They were also concerned about food ingestion and inhalation of the product. As a result of those concerns, the EPA working group—a panel that looks at products—issued what is known as a ‘Rebuttable Presumption Against Registration’ against DuPont.
Their position stated specifically that the amount of benomyl to which women of childbearing age might be exposed is too high relative to the dose that has produced birth defects in animals. The birth defect being looked at is microphthalmia, along with some others. The rebuttable presumption remained in effect after 1977.
“Our evidence will show that DuPont vigorously fought the rebuttable presumption that this product was dangerous to pregnant women such as Donna Castillo, even though it remained in effect until 1979, when the EPA issued yet another position paper that proposed some sort of protection for women like Donna Castillo. This position paper suggested that while the product needn’t be pulled from the market, word should be put out to the public that methods to reduce exposure, such as wearing protective masks, were necessary. And still, DuPont’s opposition remained persistent and vigorous. The rebuttable presumption remained in effect until 1982.
“The reason for the lift of the rebuttable presumption in 1982, after five years, will shed light on DuPont’s own methodology in its studies, as shared by their own head of toxicology, Dr. Robert Staples. Dr. Staples, who worked at DuPont, performed a rat study in 1980 at the request of the EPA, the result of which was not good for DuPont, because the low effect level at which bad results could be seen didn’t get DuPont off the hook as they had hoped. Dr. Staples will explain that he did another study in 1982 that yielded a lower effect level, and it was that study that got the EPA to give DuPont a pass. However, you will hear the reasons the results were different in 1982, and why they shouldn’t have been.
“In the meantime, DuPont continued to oppose alerting people like Donna Castillo because it was a competitive advantage not to do so. They didn’t feel that they should have to do something competitors with products that did not contain benomyl did not have to do.
“In 1987 and 1991 at the University of California, two scientists unrelated to DuPont conducted some additional studies on the effects of benomyl to determine whether it played a role in causing microphthalmia.
One scientist by the name of Hoogenboom tested benomyl at 62.5 milligrams per kilogram of body weight in order to analyze eye abnormalities, which included microphthalmia. Something very dramatic happened in this test. In Hoogenboom’s study, a shocking 43% of all the rat fetuses that were born had eye abnormalities. In Hoogenboom’s study, if the rats were given a protein-deficient diet in addition to benomyl, the rate went up to 60%.
“Since DuPont had conflicting results in their own studies, logically they should have done a third study after they were cleared in 1982, but they didn’t. They were so happy to be off the hook that they didn’t want to call more attention to a product they knew was harmful.
Finally, in 1985, DuPont did conduct another study, but this time they did it on rabbits. DuPont will claim they were told to do it on rabbits, but that’s garbage. As the manufacturer of a product, they can do whatever they want with regard to testing a product for safety, including more rat studies if they want to. But they didn’t. They chose rabbits for a reason.
The problem with rabbits is that they have what is known as a double-lined placenta, which means that, unlike in a rat, little if any of the chemical will get to the embryo or fetus in a rabbit. The human placenta is even more sensitive than a rat’s, which makes using a rabbit for this study almost totally irrelevant.
“You will be hearing the word ‘teratology’ a lot throughout this case, and it’s important to understand that it is the study of birth defects. In the United States, doctors who study birth defects can be pathologists, developmental toxicologists, and even pediatricians. As long as they look at birth defects, they are practicing teratology. There is no special training and no special degree required to call oneself a teratologist.
“When it comes to teratology, there will be two distinctions that come up. The battle will be between rats and humans and drugs and chemicals. DuPont will show more known teratogens in rats.
There is no question about that, because you can test a lot of things on rats—such as chemicals like benomyl—but you can’t test those things on humans. That has not been done since World War II. The interplay between chemicals and drugs is important, because the one area in which you get a lot of data with regard to humans is with drugs. There is no benefit to exposing humans to chemicals to see if they are teratogens. Drugs, however, have a lot of possible benefits for humans, so there can be clinical trials in which you give drugs to people to determine whether those drugs have benefits and whether there are potential downsides. That is why you will find there are more known teratogens for rats than for humans.
“Ladies and gentlemen, you will hear a lot of double-talk in this case from DuPont, because they believe rat studies are great when you are trying to get a product to market, but those same rat studies are useless and don’t mean a darn thing when you try to use the studies against them.” I went on to tell the jury about the day Donna Castillo came into contact with Benlate, describing Pine Island Farms in as much detail as possible to help give them a visual picture of the field to accompany the blown-up photographs of the area I used as evidence. About one-third of the field was used to grow tomatoes, and the other two-thirds were used for strawberries.
I then related the incidents of that day, and what happened to Donna afterward. I recount this in my next blog.
You will find a continuous narrative of the trial, as well as a lot of my personal story, in my book, Blindsided , from which this blog is adapted.