- Jim Ferraro
Meeting the True Victim of Corporate Malfeasance
While Donna Castillo showed me pictures of her son during our first meeting, it wasn’t until the third time I met with the Castillos that I really saw the photos of Johnny.
He was a cute kid, with blond hair and an infectious smile. He looked totally normal except that his eyelids were closed—and there was nothing behind them. They weren’t rounded like my son’s lids are when he’s sleeping. Johnny was born with microphthalmia, a severe anatomic malfunction of the eye. At the time, only 1 in 10,000 babies worldwide was born with microphthalmia.
In the courtroom, you can use various types of scientific findings to back your claim. Animal studies and human studies are the major types of cited research. The reality, however, is that animal studies aren’t always predictive of what the impact will be on a human.
What we do know, though, is that the reactions of rats and primates to most chemicals and drugs are closer to human reactions than any other animals’ reactions. For instance, a reaction found in a rat will appear in humans 80% of the time.
Animal studies are significant in cases like the Castillos’, and yet when it comes to presenting them as evidence during the trial, they aren’t weighed nearly as strongly as they should be. Courts won’t allow a case to be built solely on animal studies. Through the years, the courts—and in some places, legislatures—have cut back significantly on what is admissible science in the courtroom.
The DuPonts of the world have expended enormous sums of money to protect themselves in the courtroom by having a lot of science excluded from the courtroom. On one hand, to get a product licensed a company like DuPont will submit these kinds of studies to the EPA. But when they get sued over the product’s safety and the injured party seeks to admit into evidence the same study that the manufacturer presented earlier to the EPA, the study is suddenly called “junk science.”
As for human studies, in a chemical exposure case such as Donna Castillo’s, we were severely limited because of the ethical implications of exposing humans to chemicals for testing purposes. The only acceptable human tests in these cases were dermal skin transmission tests and in-vitro tests done at the cellular level. Because of the risk, dermal skin transmission tests are performed on human cadaver skin to calculate how much of a chemical travels through the skin.
The bottom line was this: we would have to make our case with animal studies, dermal transmission studies, in-vitro studies, chemistry, basic anatomy and biology and, finally, with something called a differential diagnosis—the ruling out of other possible causes, if any, by process of elimination. It’s standard operating procedure in medicine and science.
Once we proved that Benlate could cause microphthalmia, we would have to rule out other possible causes. As part of the differential diagnosis with Donna, we had to consider genetics and other environmental causes besides Benlate, such as an overdose of vitamin K or hyperthermia.
It was going to be a challenge.
In my next post, I look at the discovery process for a trial such as this.
You can find a great deal more about this case, and the science behind the fungicide, in my book, Blindsided, from which this and other of my blog posts are drawn.