In Hostile Territory


The proceedings in the Scottish cases – we had started to vigorously pursue 29 cases on behalf of children in Scotland who were affected by Benlate – seemed stacked against us.

 

When we showed up in Delaware for our first hearing on the defense’s first motion (to kick the cases entirely out of the United States on the basis of forum non conveniens), we realized just what home-court advantage really looks like.

 

As we pulled up to our hotel in Wilmington—called what else but the DuPont—we were greeted by banners celebrating the company’s bicentennial. They were flying from every lamppost in the city—even the ones in front of the courthouse. 200 Years of DuPont! They were inescapable.

 

When we went into court for the hearing, we were greeted by yet another set of high-powered attorneys, including David Boies from Boies, Schiller & Flexner; Pat Leigh, the best defense litigator from Crowell & Moring; and three other unnamed gray-heads.

 

Their sole purpose was to oust these families from the courts of Delaware, and send them back to Scotland, which they succeeded in doing, at least temporarily. We appealed that ruling to the Delaware Supreme Court and got it reversed. This was the first of three appeals these plaintiffs had to endure.

 

The second involved the Delaware trial court dismissing the Scottish families’ suits on statute of limitations grounds. DuPont argued that the statute of limitations began at the birth of the children. We argued that it began when the children found out that the cause of their conditions was Benlate. We were right. Again, we got a trial court ruling in favor of DuPont reversed by the Delaware Supreme Court.

 

The last appeal involved the trial court excluding two of our scientists, which in effect gutted our case. This last appeal was a split decision (between three judges), which meant that we then had to go back in front of a full panel of five judges at the Delaware Supreme Court. And that was definitely not good for us.

 

As if that wasn’t enough to contend with, one of the Supreme Court judges on the full panel was named DuPont. Obviously, he had to recuse himself from the case. And yes, he was related to the family.

 

Before leaving, however, he did have the privilege of handpicking a chancellor to take his place, someone we guessed was a buddy of his from law school or some other close connection. After that, we knew we had no chance of winning the appeal in Delaware. I’m not saying the system was rigged, but there certainly was a lot of love for DuPont in the community. We were now on life support, but still alive.

 

I continue in my next post to recount what happened in this case.

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