I asked Clem Glynn how he came to know about the jurors, especially that one nasty juror who wanted to sabotage everything, and who worked to make sure the damages were nowhere near the $25 million we had sought.
I wondered if he had interviewed them after the trial, and he told me he had. I was surprised to hear that, but then again, it isn’t uncommon to go back and look for something—anything—that could be used to overturn the verdict down the road. It could be something as simple as a juror reading a newspaper during the trial or talking to her spouse, who had some kind of relevant knowledge. These kinds of actions have the potential to sway a juror’s opinion, and therefore the outcome of a case.
Glynn and I hung up, and I didn’t hear from him again for well over a year. Our next communication—or, at least, attempt at communication—came just a few hours after the opinion came out on the appeal.
The appeal took place in Miami in the Third District Court of Appeals before a panel of three judges randomly selected out of the total court of nine. I asked Liz Russo to be my appellate attorney for the appeal, as she was very capable and very prepared to do so. She had a great deal of experience going into the case, so I thought she would do a fine job. Although we both prepared the brief together, Liz’s main career focus was arguing appeals, so she took on that role here as well.
Unfortunately for us, DuPont got extremely lucky with the draw, getting the best three judges they could have hoped for—a trio of very conservative, blue-suited, like-minded, corporate-oriented individuals who could easily have fit into the DuPont camp. They may as well have been part of the DuPont team.
For the appeal, it was just me and my very capable appellate counsel against what seemed like half of Washington, D.C.
Lead counsel for DuPont was Ed Warren, the managing partner of the appellate division of Kirkland & Ellis, the biggest and most renowned appellate practice in the United States. Ed Warren was Ken Starr’s replacement at Kirkland & Ellis when Starr left to lead President Clinton’s impeachment proceedings. DuPont was so lawyered up for this oral argument they hired Arthur England, the former Chief Justice of the Florida Supreme Court to sit as third chair. He basically sat there for show.
As the appellant, DuPont argued first. Right out of the box, the panel’s questions for DuPont were very friendly. It seemed that the court was favorable to its position, but it wasn’t until Liz began arguing that we really felt the dagger to the heart.
At one point, astonishingly, a jurist on the panel asked Liz, “Ms. Russo, this is the ’90s; don’t you think $4 million dollars is a lot of money to give to a kid with no eyes who is essentially going to live a normal life?”
That’s when we knew we had a real problem.
When someone thinks it’s normal to live life with no eyes—or, worse, wants to attach a low dollar value to the pain, suffering, and hardship associated with such a condition simply because he can’t fathom what it would be like, I get angry. Really angry. I also knew we were fucked. Clearly, these judges were biased toward DuPont.
While we were awaiting the decision on the appeal, we had started to vigorously pursue 29 cases on behalf of children in Scotland who were affected by Benlate.
As it turned out, we were doing so right on DuPont’s home turf. We had originally attempted to get these cases tried in West Virginia because we had local counsel who believed we could get a fair shake in their state, since DuPont had a large plant there that manufactured Benlate. But unfortunately, after we filed suit there, we were kicked out and sent packing to Delaware. We had no choice in the matter.
Since these children were not from the United States, we had to file in the defendant’s state of incorporation, and so we did.
In my next post, I continue to recount the proceedings for the appeal.
I have adapted this post from my book, Blindsided, a detailed narrative of the events leading up to and surrounding the landmark Castillo-DuPont trial.