In my last post, I recounted how I had been questioning the DuPont toxicology expert Dr. Judith C. Stadler, and how we had, little by little, arrived at a moment where she admitted certain numbers that proved an exposure level that would be detrimental to a body.
At that point, I went back through each step of the calculations that Dr. Stadler had just verified as mathematically correct, following them one by one to the conclusion that it would take only one-fortieth of an ounce of Benlate to seep into the skin and then the bloodstream to impact the fetus of Donna Castillo—not five gallons, as had been suggested over and over. I absolutely needed to make this point clear to the jury through one of the defendants’ own witnesses.
Once Dr. Stadler had said yes to the math, she had no option but to say yes to the premise that I was attempting to prove, even if she said it kicking and screaming.
I continued my questioning for several more hours, refusing to let up on Dr. Stadler. I asked her to comment on the possibility of a bystander being exposed to Benlate mist as opposed to a user of the product, such as a farm worker.
“Your Honor, I object on the grounds it is improper use of testimony,” DuPont attorney Clem Glynn jumped in.
Dr. Stadler replied, “I would say that certainly that would not be what you would expect if the material is being used according to the label, but it would certainly be possible. If there was some kind of drift, then a bystander could possibly be exposed.”
“Doctor,” I continued, “are you aware of recent statements made by DuPont in which the corporation has stated or put out information that one would have to drink two pints of Benlate mix to get the conditions microphthalmia and anophthalmia in humans?”
“I object to the form of the question,” Glynn said. “It mischaracterizes the evidence.”
Dr. Stadler answered, “I am aware of a number of estimates of how much you might have to drink that would be similar to a gavage dose. I’m not specifically aware of two pints being one of the numbers. I think a number of different people have made estimates. I’ve heard many different statements by many different people.”
This was a typical non-answer by the defense’s own corporate representative. After a long and grueling testimony, it boiled down to one last question: “Doctor, after benomyl gets through the skin of a human, where does it go?”
“Where does it go?” she repeated.
“Yes, through the skin of a human; where would it go?” I asked once more.
“It’s going to slowly—very slowly—get into the bloodstream,” she softly replied. Bingo. I had her.
“No further questions,” I said and turned to the jury, smiled, and walked back to my desk. I was slowly dismantling DuPont’s proverbial house, and after Dr. Stadler’s testimony, I believed DuPont knew it.
I think the whole “five-gallon” propaganda tactic by DuPont and its lawyers was a foolish approach. It hurt their case.
I think the better practice for defense attorneys is to be surgical in their approach. They should be willing to focus on only one or two solid issues that they completely believe are right.
Those who take a more surgical approach to the facts are far more persuasive than defense attorneys who say everything about the case is wrong. The real surgeons admit many facts yet pounce on the few flaws they’re certain are fatal.
To be challenged by such an opponent is rare. It definitely ups your game as a plaintiff attorney.
There’s no doubt that those lawyers are harder to beat.
In my next post, I muse about the kinds of clients some lawyers work for, and why. You’ll find much more about the Castillo-DuPont trial, as well as information on my background and my thoughts on aspects of the judicial process, in my book, Blindsided.