- Jim Ferraro
Countering a Witness for the Opposing Side
My primary objective with DuPont’s corporate representative Dr. Judith C.
Stadler was to completely dismantle the bullshit five-gallon theory that DuPont had touted. (Briefly, 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 – when it reality the amount that caused damage was quite small.)
Dr. Stadler presented very well and appeared quite poised as she sat in the courtroom each day awaiting her turn on the stand. I purposely joked with her every now and then by saying, “Today may be your day, Judy.”
I did my best to be kind and charming. I wanted to keep her both on edge and off guard for when she was actually called to the witness stand.
And then, on May 29, I finally called her.
Once Dr. Stadler was sworn in, I quickly got her to testify that she had spent more than 200 hours preparing for the trial by reviewing the Staples studies (both Staples I and Staples II), the Hoogenboom study, and a whole variety of other relevant studies, and that she had analyzed them, made comparisons, and reached certain determinations. But even with that level of preparation, she appeared a little unsure of herself at first.
I then questioned Dr. Stadler at length about how the compound enters the bloodstream of rats. She explained that when you gavage a rat (that is, directly introduce a chemical, drug, or food item through a tube into the stomach during a clinical trial), you’re going to get a lot of absorption into the bloodstream, which directly relates to the effects the study reveals.
“When doing a gavage study, the compound is placed right into a rat’s stomach or digestive tract, right?” I asked.
Dr. Stadler said yes, explaining that when it comes to humans, there are some things that pass right through the bloodstream unabsorbed and others that are absorbed, such as medications.
Next, since the studies were done using the metric system, I came up with 10 simple calculations that converted the metric units to units the jury could understand. My goal was to calculate the amount of benomyl it would take for enough to pass through the skin, enter the bloodstream, and impact a human embryo or fetus.
I put together a 10-step chart so the jury and Dr. Stadler could easily follow my simple math conversions. As soon as I began my line of questioning, Clem Glynn objected.
To my surprise, he suddenly proclaimed to the court, “Dr. Stadler isn’t an expert.” According to him, she had not been designated as an expert, and the fact that she was a corporate representative did not open the door to start eliciting expert opinions from her, let alone asking her to perform mathematical calculations.
Of course, my position was very different. I thought she was quite qualified, because she was listed as one of the three most knowledgeable people on earth about Benlate and had testified earlier that she had a substantial background in math.
All I was asking her to do was take some simple metric system numbers, apply them to the gavage doses used in the Staples studies to obtain a ratio, and then help apply that ratio to a 170-pound adult like Donna Castillo to see just how small the “big” dose DuPont said was required really was. I thought Dr. Stadler was more than capable and qualified to do that.
The judge agreed with me. She pointed out that, by definition, an expert witness is not a specialist—it’s a person whose testimony helps decide an ultimate issue for the jury. An expert is somebody who, by special skill, training, or experience, is allowed to testify in the form of opinions. Dr. Stadler had been designated a corporate representative by DuPont. Either she was just a body to make it look like corporations are people, or she was a person with knowledge.
In this case, she was a toxicologist, which meant I could ask her any questions of fact related to the case that only an expert witness could answer for the jury. I was totally within my bounds, especially since DuPont had identified her as the person within the company who, because of her vast knowledge, could address questions about the studies.
In my next post, I write about the gamesmanship lawyers either practice or undergo during a trial.
You’ll find more details, as well as a full narrative of the preparations for the case and the trial itself, in my book, Blindsided , from which this post is adapted.