- Jim Ferraro
Finding the Perfect Expert Witness
As my preparations for the Castillo-DuPont hearing progressed, I assembled a team of 13 scientists to establish our case. I had to make sure that the team included a fetal pathologist, who could speak to the jury about what had happened to Johnny Castillo while he was in his mother Donna’s womb.
Finding a fetal pathologist who could speak to the issues was no easy task. We literally had to trace the path the chemical took from its point of contact with Donna Castillo’s skin through her dermal layer, into her bloodstream, through the placenta, and right down to the embryo’s cells.
I was on a business trip to London when Alan Care, a British solicitor who I knew and who I sometimes worked with on chemical cases in Great Britain, suggested I meet with a professor at the University of Liverpool by the name of Dr. Vyvyan Howard. I would later find out that Dr. Howard was a developmental toxicologist, also called a teratologist, who is someone who studies birth defects. His training was in fetal pathology, which made him an ideal witness for the case because of his specialty in breaking every detail down into molecules. He was obviously extremely smart, and appeared to be quite good-natured despite being a bit socially awkward.
If you were to conjure up an image of the quintessential scientist, Dr. Howard would fit the description. He was a stout man with a big belly, frizzy red hair, and wire-rimmed glasses that fell to the tip of his nose. If he wasn’t studying in a lab, I’d almost expect to find him drinking in an Irish pub and sounding off on the latest scientific theory. He just struck me as one of those guys.
We became very good friends during the discovery phase of the case. Unfortunately, he had little to no experience in a courtroom. I spent days doing my best to prepare him, but despite all that preparation, I had a bit of a scare the night before one of his depositions. I made the mistake of sending my associate Ana Rivero to meet with Dr. Howard for a final review the day before one of his depositions. I flew to London that night to join Dr. Howard and Ana at the Ritz for dinner and one last conference. When I arrived, the first words out of Ana’s mouth were, “We have a problem.”
“What’s the problem?” I asked.
“Dr. Howard can’t testify to the exposure.”
“What do you mean he can’t testify to the exposure?”
“He can’t give us a number; he can’t do it.” Ana was in an absolute panic.
“What do you mean he can’t give us a number? He can’t say it’s, like, fifty-seven parts per billion or something, based on the exposure?”
“No, he can’t say that for sure.” She was terrified that we had no case without him. After a very brief but powerful head rush, I asked Dr. Howard if he could forget about providing a specific number. We knew for a fact that when the exposure is twenty-two parts per billion, the cells die. We also knew that at three parts per billion, neurite retraction occurs, and cells lose their ability to communicate with one another. What we really needed Dr. Howard to do was show that, based on the exposure the plaintiff had to the chemical, the amount that reached the embryo was in excess of twenty-two parts per billion—or at least three parts per billion.
“If you can’t give us a precise number, can you say that the exposure described by Donna was in the hundreds of parts per billion?” I asked.
“Oh, absolutely, absolutely. Oh, yeah. No, clearly it was in the hundreds of parts per billion.” He said this with great conviction.
Perhaps we were getting somewhere.
“Could it have been in the thousands of parts per billion—which is parts per million?” I asked.
“Absolutely,” he replied.
“So when I give you the hypothetical scenario, could your answer be that it’s ‘in the hundreds of parts per billion, if not thousands of parts per billion’?”
Then that is what we will use. That’s it. It doesn’t have to be an exact number, like twenty-seven parts per billion.
“It’s not rocket science here, is it, Ana?” I quipped.
Given his professorial ways, I wasn’t sure how Dr. Howard would come across in a courtroom, but I was positive he knew his field of study, and that the jurors would absolutely recognize his expertise.
Alan Care had definitely brought me to the right guy.
In my next post, I recount my preparation work with Dr. Howard, to get him ready as an expert witness.
You can find a lot more about the story of this case in my book, Blindsided, from which this blog post is adapted.