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  • Jim Ferraro

Becoming an Expert Witness ‘Whisperer’

I spent the next week or so of the Castillo-DuPont trial calling every expert witness in our arsenal to testify about the scientific evidence we had gathered to prove that once Donna Castillo had been exposed to the Benlate spray, the effect was clear: her son was born with no eyes.

These testimonies were tedious, complicated, and very tough on the jury.

The jury had to endure hours of scientific explanations from our army of 13 different authorities, each of whom helped establish our case one piece at a time. We had enlisted a biologist, a chemist, an ocularist (a maker of artificial eyes), and a neuro-ophthalmologist, as well as multiple developmental toxicologists, spray-drift analysts, teratologists and, of course, a fetal pathologist—someone who could speak to the jury about what happened to Johnny while he was in the womb.

One of our key witnesses, Dr. Vyvyan Howard, had no prior experience testifying in our legal system, which made taking him into an American courtroom as an expert witness a great challenge.

In fact, Dr. Howard had little experience testifying anywhere at all. He was colorful but not flamboyant. The wire-rimmed glasses he wore on the end of his nose made him look like a long-lost relative of George Washington or a character I’d once seen in an old painting hanging in the bathroom of a British castle.

He looked, acted, and was the epitome of a highly educated man. When he walked into a room, you felt his intellect. You knew from the instant he opened his mouth that he spoke from a genuine wealth of knowledge. Without a doubt, I knew he could be a good witness. I believed he was honest, and I knew the jury would believe that, too. He was passionate about everything he said. He absolutely wanted to live in a better, safer world and had a deep desire to see that people weren’t unnecessarily exposed to unsafe toxins.

Dr. Howard’s educational background was indeed impressive. He was a medically qualified doctor from the United Kingdom. He held bachelor’s degrees in medicine and surgery, which are the equivalents of MDs in the United States. He also earned a PhD in philosophy, the thesis for which required him to study the development of the brain.

Furthermore, he was a member of the Royal College of Pathologists and of the British Society of Toxicological Pathologists. Dr. Howard had taught at the University of Liverpool School of Medicine since 1972; had been the general editor of the Journal of Microscopy, which is the journal of the Royal Microscopical Society, for seven years; and had been on the board of a number of other journals including Acta Stereologica.

He had published at least 67 papers on a number of topics centered around his studies and had an international reputation as a lecturer in the fields of quantitative microscopy and developmental toxicopathology. Regardless of his inexperience testifying in court, I really believed that with those kinds of credentials, Dr. Howard would be seen by the jury as a serious and extremely qualified witness.

As I mentioned in several earlier posts, however, the one big, overriding concern I had about Dr. Howard was his incessant use of the word “possible.”

Now was the moment of truth.

Would Dr. Howard be able to withstand cross-examination and maintain his newfound scientific vocabulary conversion, or would he fold under the pressure?

It was essential that Dr. Howard convert science’s language of possibilities (anything less than 95%) into the court’s language of probabilities (anything greater than 50%).

Essentially, Dr. Howard had to maintain his reprogramming in order to tell the truth in the court’s language. Now was the time to see whether all my efforts to break him of his annoying habit had paid off.

One thing was for sure: when he arrived to testify, he understood I was as serious as a heart attack when it came to this particular matter.

In my next post, I will begin describing Dr. Howard’s testimony.

I’d love to hear from you about your approach to working with experts, regardless of your line of work. How do you rely on them? Do you actually reach out to those with a different experience than you to help you in your work? Thank you for sharing.


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