- Jim Ferraro
Dealing with Defeat
During the appellate process at the Third District Court of Appeals in Florida, DuPont did two notable and important things.
First, it took Benlate off the market permanently.
It did this despite Benlate’s being DuPont’s number-one-selling agricultural product in the world at the time, with sales over $1 billion.
Second, but actually taking place before Benlate’s removal from the market, DuPont finally undertook more realistic scientific studies on benomyl. The company performed a series of 10 pharmacokinetic studies intended to determine what exactly happens to benomyl when it gets into the body. One of these pharmacokinetic studies involved autoradiography, which is a process whereby radioactive isotopes are attached to molecules of the chemical in order to trace where it travels within the body.
At the same time DuPont was doing its studies, we commissioned our own study at TNO, the Netherlands Organization for Applied Scientific Research. Our study involved putting Benlate on the skin of the arms and hands of male subjects to determine how much got into the bloodstream. Of course, we couldn’t do this with pregnant women.
While these studies were in progress, the Third District Court of Appeals issued its opinion.
Unfortunately for us, it was not a good one.
The opinion reversed the decision of the trial court, with no opportunity for another trial. The decision was not a typical appellate decision, as the court undertook to determine its own facts when its job was solely to interpret the law. The appellate decision made no sense legally, and smelled of politics.
It was extremely disappointing, and, needless to say, the Castillos and I were devastated when we lost this appeal.
We were outgunned politically and otherwise. DuPont got a damn good draw, and there was nothing we could do about it but attempt to take the case to the next level if that’s what the Castillos wanted to do.
We were now on life support in both Delaware and Florida.
I wasn’t in my office when Glynn called the day the appellate opinion was handed down. I just received a message from my secretary that he had called. I was certain he wanted to gloat about the decision, with a great big boisterous “I told you so.” I was in no mood to deal with that kind of braggadocio—not then, and frankly not ever.
I didn’t bother to return the call.
In my next post, I recount the aftermath of the appellate decision.
I’ve adapted this post from my book, Blindsided, an insider’s blow-by-blow account of this landmark Castillo-DuPont trial.