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  • Jim Ferraro

Opinions vs. Evidence

Greg Gaebe’s opening argument in the Castillo-DuPont case began to get very opinionated. He was representing Pine Island Farms.

He talked about his thoughts on the case instead of what the evidence might show. I finally got so fed up with his tactics that I objected. “Your Honor, Mr. Gaebe has been doing a lot of arguing, but we need to make sure he gets his facts right.”

The judge had previously warned each of the attorneys against doing what Gaebe was doing, as she sensed this might be the way we were all going to operate. When it got to the point where she could no longer take it, she would call for a sidebar and tell us to stop arguing points.

The danger in what Gaebe was doing is that it risks swaying the jury toward what you believe to be true instead of what the evidence actually shows. When counsel is talking about “his efforts” in discovery over certain evidence, it can potentially be very damaging.

As a result of Gaebe’s longwinded approach, Judge Donner put a limit on the time he had left to finish his opening statement, which concluded with his efforts to discredit John Ashton and the call Ashton had with Chaffin.

It had been a drawn-out and draining morning, but I thought we did great, at least in comparison to Gaebe. The judge excused everyone for lunch before we returned for the opening statement from Clem Glynn, one of DuPont’s lawyers.

From the moment Glynn began to speak, I knew I was watching a great lawyer. In a way, he reminded me a little of Clint Eastwood. He had presence, oozed believability, and was ruggedly polished. In many ways, he was the ideal opponent. Glynn knew exactly how to work the courtroom—to speak to the jury and address them in a manner that is gained only through experience and expertise. He was smug and arrogant, and wasn’t going to be easy to match on any level.

David had finally come eye-to-eye with Goliath.

“Ladies and gentleman, whatever weight you choose to give to Mrs. Castillo’s description of the events that occurred,” Glynn said, “one thing is clear: she does not say and cannot say that whatever it was she felt or thinks she felt on that day was Benlate.”

He finessed every word, pause, and breath with deliberate intent to create doubt. Glynn’s argument was to portray John’s birth defect as a genetic defect, stating that the experts in this case would explain why this was the only probable cause.

Worse, in my opinion, was that Glynn chose to bring up personal (make that very personal) history about Donna Castillo’s troubled pregnancy with John. Glynn shared with the jury that Donna had had infertility problems in 1986 and went to Boston to be seen by a specialist who diagnosed her with various kinds of internal scarring in her reproductive system. He also brought up a possible miscarriage in 1987, along with her irregular period cycle and reported spontaneous abortions or miscarriages.

A 1987 ultrasound revealed that she had a two-month-old fetus inside her that was dead and needed to be removed via a medical procedure. It was all very embarrassing for Donna, and very irrelevant and unnecessary.

Glynn’s explanation for raising this history was that often in miscarriages there can be accidents in which people get banged around, and it’s nature’s way of ridding the body of a grossly defective child. According to Glynn, however, John’s defect was “less gross, and Mrs. Castillo’s body was able to bring him to term.”

Listening to Glynn go down this trail infuriated me, and I knew it crushed my clients. It was totally irrelevant, but not something the judge would block in the opening statement because Glynn would simply say the evidence would later show it, even though it wouldn’t. Therefore, I just had to live with it.

As we expected, Glynn began to discuss Benlate and the rat studies and all the reasons the DuPont studies were appropriate. He also relied on the premise that even if Benlate had been a factor, the most likely cause of Johnny’s birth defect was genetic and that there would be testimony to support that probability over and over again.

This was the stance DuPont was taking. And it was enough to create doubt, that was for sure. I had my work cut out for me, but it wasn’t an impossible task. It would take better evidence and witnesses that were more believable than theirs—starting with Donna Castillo.

In my next post, I recount Donna Castillo’s testimony on the stand.

I’d love to hear from you. Have you ever been in a negotiation – or even, if you’re a lawyer, in a trial – where you’ve had to sweep aside mountains of phony statements to make sure that things were clearly presented? Thank you for sharing.


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