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  • Jim Ferraro

Asking Damages, and Dealing with Defense Badmouthing

The total damages we were pursuing in the Castillo-DuPont case were in the general range of $20 to $30 million.

Based on our assessment, that was a fair number to award the Castillos. This general range was what I refer to as my playing field. Whenever I win a case, the award usually falls somewhere in that playing field.

I told the jury that, according to our calculations, $25 million was the amount that took into account all the aforementioned considerations, but they could go higher or lower, or choose their own formula if it was better than the formula I had proposed.

Further, I challenged my opponents to present a better formula than mine. If they did, I told the jury they should use that formula over mine. I am not a lawyer who just picks numbers out of thin air. I understand that without a meaningful explanation, the jury is less likely to accept your numbers. I answer all the questions and concerns I can possibly anticipate when I lay out a formula the way I do.

Although I thought I had done a really good job throughout the trial, there was still that one juror – the real-estate agent – who left a seed of doubt that we would take this all the way home. I knew the other jurors got it, but I had my concerns about him. Still, I had no regrets, no fear that I had missed something along the way. I was prepared to live with the result. Now all I had to do was wait and see what DuPont and Pine Island Farms were going to say in their closing arguments.

Counsel for Pine Island Farms spent the bulk of their allotted time talking about when they spray their fields and what their planting patterns are, and overstating how they primarily bought chemicals such as Benlate from a different supplier than the one we had records for.

Of course, they liked the supplier whose records had all been destroyed by Hurricane Andrew, because with no records it’s hard to prove anything had been bought in the time frame in question.

As expected, DuPont attacked the science and the caliber of our witnesses.

I did what I could in my rebuttal to combat the positions both defendants had taken not only throughout the trial but also now in their last-ditch efforts during closing arguments.

I made a point of saying to the jury that no one came in for the defense and did any testing the way we had done with Dr. Van Velzen. The defense could have done the same thing we did, but chose not to. Instead, they relied on previous studies, most of which weren’t necessarily in their favor.

We finished closing arguments in time to meet Judge Donner’s request to adjourn by 5:30 p.m. that Wednesday night. It had been a long haul for everyone.

And now it would become a nail-biting waiting game to see who won the credibility war with the jury.

In my next post, I recount the judge’s instruction to the jury.

This post is adapted from my book, Blindsided, which presents in great detail the case, the people involved and the groundbreaking outcome.


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