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  • Jim Ferraro

Disputing the Expert Witnesses

The Castillo-DuPont case had begun, and DuPont had immediately sprung into attack, calling into question even its own research, labeling it junk science as well as trying to discredit our expert fetal pathologist witness, Dr. Vyvyan Howard.

In addition to those four specific attacks on Dr. Howard – that he was not a teratologist, that his opinion wasn’t based on epidemiological studies, that his use of in-vitro studies wasn’t acceptable and that he couldn’t rule out alternative cases of birth defects – DuPont also called into question and collaterally attacked the validity of the work of another scientist, Dr. Van Velzen’s in-vitro studies, by assailing his character.

Dr. Van Velzen comes from Holland and practices medicine in several countries, each of which has different rules and standards. For instance, Dr. Van Velzen had a habit of keeping preserved miscarried fetuses and embryos in his office for research purposes. In the United States, by law, you are not allowed to keep or preserve embryos and fetuses in this manner. As a result, DuPont launched a public relations smear campaign against Dr. Van Velzen, even referring to him as Dr. Frankenstein in one newspaper article.

In reality, Dr. Van Velzen had an off-the-chart IQ score and was one of the most brilliant scientists on the planet, even if he wasn’t the most personable individual around.

Nothing ever came of DuPont’s attack on Dr. Van Velzen, although, as usual, we expended a lot of effort and endured a lot of stress in protecting him, because his in-vitro tests were a critical element of our case. There was no doubt his tests were performed in accordance with sound and proper scientific procedures. In fact, his methodology was precisely the same methodology that DuPont had used in its own in-vitro tests.

Coming into the Frye hearing, we had taken the deposition of each and every expert, including Dr. Robert Brent, the supposed “King of Teratology.” Dr. Brent was considered the best expert witness money could buy at the time. In his sworn testimony, he said he found several flaws in our case, including:

• That this case did not rule out genetics as a cause of John Castillo’s condition before determining that another cause was probable;

• That the findings of the in vitro testing referred to in this case were not generally accepted in the scientific community (even though DuPont had conducted the tests itself!);

• That this case did not involve multiple malformations (it was DuPont’s contention that when embryonic cells are exposed to toxic substances, they are likely to produce multiple malformations—unlike Johnny’s single malformation, microphthalmia);

• That there were no epidemiological studies done; and

• That there was a lack of adequate evidence from animal studies.

Essentially, with the type of malformation that Johnny Castillo was born with, there were two general potential causes: either genetics or environment.

According to one of DuPont’s star witnesses, teratologist Dr. Lewis Holmes, 70% of microphthalmia cases are genetic, 15% are environmental, and 15% are due to unknown causes.

Yet despite these statistics, every genetic test known to mankind, including a karyotype test, had been performed on Johnny Castillo, and the results were now indisputable.

No test indicated genetics as the cause of his microphthalmia. In this regard, DuPont was left with nothing but pure speculation. Even the geneticist for the defense went so far as to testify that perhaps someday there might be a test to prove there could be a genetic cause in this type of case, but as of then, it did not exist.

This brought me to the grouping of potential environmental causes of microphthalmia that appeared on a list DuPont filed, including such teratogens as benomyl, rubella, and vitamin K, among others.

But as I mentioned earlier, in assessing all the environmental causes out there in the world, DuPont’s expert witnesses had unwittingly ruled out all of them at deposition, and were therefore stuck with having to take those same positions at trial.

In my next post, I continue to relate what happened regarding our efforts to confront the attacks of DuPont on the integrity of the science and the witnesses.

In the meantime, I’d love to hear from you. When you’re presented with a host of contradictory information, what do you do in order to sort things out and arrive at the reality of what you’re dealing with? Thank you for sharing.


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