- Jim Ferraro
Battling the Claims of Junk Science
With the exposure issue now firmly behind us, the next fight we had to endure in the Castillo-DuPont case was the battle of science.
Since the very start of the trial, DuPont had been disseminating all sorts of propaganda about their product and the case itself. The company primarily used press releases to send a message that this case was a bunch of crap. DuPont even went so far as to say its own rat studies weren’t indicative of anything relevant.
In addition to the press releases, DuPont had witnesses testify that a person would have to drink at least five gallons of the chemical benomyl, to replicate the amount the rats were given in the studies, to cause any real damage to a human embryo or fetus.
This was downright absurd, if not insulting, to Johnny and to every other victim.
The defense went so far as to say that anything in excess—including drinking too much water—could potentially kill people—which it can, but you have to drink enormous amounts for it to be dangerous. Yeah, that’s how down and dirty they got, which wasn’t all that unusual in high-stakes cases such as this one, but these kinds of tactics certainly didn’t make our position any easier.
This overt attempt to discredit the rat studies by continually calling them junk science throughout discovery and now during the trial kept me up many nights. Why were these studies great science when they needed them to get approved by the EPA, but were considered junk science when we wanted to use the results against them? Tactically, I understood the attempt DuPont was making, but it didn’t have an ethical leg to stand on.
No company would put so much effort or money into such studies if they meant nothing to them. They certainly weren’t testing Benlate or benomyl at certain specific dose levels to prove nothing. The big question plaguing my thoughts at this point was: Where in the world was this five-gallon analogy coming from, and how does it possibly make any sense? In my mind, it was absolutely absurd, and I needed to prove that to the jury. That was critical.
I started doing the math. First I converted gallons to milligrams. Since all the scientific measurements had been taken using the metric system, I thought it would be tougher for the jury to follow along without this initial conversion. Because it was going to be difficult enough for them to understand the complexity of the math at hand, I had to make it as easy to comprehend as possible. Next, I took the weights of the rats that were used in the study and compared them to the amounts of benomyl they were given to find a weight-to-dosage ratio.
Then I plugged in Donna Castillo’s weight at the time she was sprayed to get the comparable amount of the chemical for a person of her size.
As it turned out, the amount of benomyl needed wasn’t five gallons at all, but merely one-fortieth of an ounce!
In my next post, I begin to recount how I presented these findings during the trial.
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I’d love to hear from you. Have you ever encountered a negotiating opponent who tried to block you at every point, using phony information? What did you do? Thank you for sharing.