• Jim Ferraro

Narrowing the Field of Toxins

Despite the milestone success in busting Chaffin – you may recall that in my last post I wrote about how I managed to clarify that a conversation took place between him and a reporter who was investigating the fungicide Benlate’s link to birth defects – there was still a huge problem: Benlate is an odorless, tasteless, and colorless spray.

We still needed to prove that the liquid that came out of the big sprayer attachment with the 36-foot wingspan described by Donna Castillo in my office and in her depositions was, in fact, Benlate.

Strategically, I needed to show that the farm not only had Benlate at the time but also that workers actually used it in the manner Donna had described. It was important to know what chemicals the farm then had on hand and was using. This meant that we had to get the farm’s purchase records through a request for production.

I was able to narrow my search to two suppliers that sold the farm its chemicals during that period of time. Unfortunately, one of them had lost all its records during Hurricane Andrew in 1992, the strongest hurricane to ever hit south Florida. Andrew wiped out communities south of Miami, killing 15 people when it struck. Dozens more died from injuries stemming from the storm and its aftermath.

The other supplier had provided Benlate to the farm in May 1989. It was reasonable to believe that the farm still had a supply of it in November. Unfortunately, records showed that the farm also had a total of 64 other chemicals on hand then, too, including herbicides, insecticides, fungicides, nutrients, and water.

The task at hand now was to determine how many of the 65 chemicals, if any, were odorless, tasteless, and colorless and would have been applied with the 36-foot sprayer attachment.

We had already ruled out water because when I deposed Chaffin, I asked him how they watered the crops. He explained that it was done with a water cannon, which shoots water at the crops. It doesn’t come from a tractor with a sprayer attachment. So with that admission, we immediately knew whatever Donna had been soaked in wasn’t water.

We had also ruled out nutrients, because I had asked Chaffin about how the farm provided nutrients to its crops. He explained that the nutrients were put into a planned water irrigation system, then applied directly to the root zone of the plants by means of applicators (orifices, emitters, porous tubing, perforated pipes, etc.) placed either on or below the surface of the ground and operated under low pressure.

Furthermore, we were able to eliminate all herbicides from our list of possibilities, because based on Chaffin’s deposition, the farm used a special tractor with a twelve-foot wingspan for spraying them.

That left us with about 20 insecticides and fungicides to focus on. Most of those had an odor or some kind of taste, but there were five that were odorless, tasteless, and colorless and appeared to be just like water.

The good news was that we had narrowed the list of 65 chemicals to only five possible culprits.

The bad news was that we had to prove Benlate, as opposed to the other agents, was the cause.

We were about a year away from our scheduled trial date, and I still needed to figure out how I was going to solve this problem. While I had eliminated the bulk of the possibilities, there were still five potential fungicides or insecticides the farmer could have been using the day Donna was sprayed. If the farm simply said they were using all five, we were fucked. Game over. Case closed.

There would be no way for us to say which one of the five she had been hit with, because the burden of proof was on us. It was incumbent on me to prove by the greater weight of the evidence that it was Benlate. What I mean by proving the greater weight of the evidence is that it has to be a greater-than-50% chance it was Benlate, or we could never get in front of the jury. A one-in-five shot is only 20%, and not enough to win the case.

It felt as though the whole case was about to go down the tubes.

I explore this dilemma, and how I approached it, in my next post.

You can find a lot more about the science and the story of this case, in my book, Blindsided, from which this blog post is adapted.