Outwitting the Wily Witness
As we prepared the depositions and discoveries for the Castillo-DuPont trial, one of the first things we did was nail down the November 1989 exposure incident as described by Donna Castillo.
It was clear from the outset that the farm was going to be incredibly uncooperative and obstructive at every turn. Tactically, I decided it would be best to take the deposition of Lynn Chaffin, the manager of the farm, without the benefit of any background interrogatories. Chaffin was a former high-end stockbroker who was hired in 1982 by Jack Wishart, the farm owner, because of his business knowledge and expertise. He became responsible for running the day-to-day operations at the fields, including the spraying program.
From looking at the John Ashton investigative reports for the Observer, I already knew there was a connection between the use of Benlate and ocular malformations. Ashton had called many farmers, including Chaffin, to see how many mothers had been exposed to Benlate.
Ashton gave me a copy of his notes before I met with Chaffin, who wasn’t your average farmer. He was a savvy businessman, who claimed he ran Pine Island Farms as a “hobby.” We’d soon learn that Chaffin took his hobby very seriously. This wasn’t someone who was in farming for the fun of it. It was a serious business—and, as it turned out, a family business, too, because Chaffin is Wishart’s son-in-law.
According to Ashton’s notes, the call between Chaffin and the reporter took place on a specific day at 4:40 p.m. in the U.K., where Ashton was calling from, which is 11:40 a.m. EST. The notes showed that the call lasted nine minutes. Chaffin’s cellular phone number was clearly written on the single page of notes taken by Ashton, along with the words, “used benomyl around November 1 or 2, 1989.”
I suspected that Chaffin might lie during the deposition, so I did what I could to pin him down on his answers. I started with a general conversation about his telephone numbers. I had his business, home, and cellular numbers and asked him about each one individually.
First I asked, “Is this your home number?”
“Who uses your home phone?”
“My wife, kids, or anyone else who is around the house,” he said.
“Is this your business number?”
“Who uses your business phone?”
“Sometimes my secretary, workers at the farm . . .”
I asked, “What about your cell phone? Is this your number?”
Chaffin paused. “Yes.”
“And can you tell me, Mr. Chaffin, who uses that number?”
“No one else uses it?”
“No, just me.”
I got him to admit that he was the only user of the number that Ashton called. I didn’t try to get this background information with interrogatories, because he would have had 30 days to think about his answers and their possible ramifications. Hitting him with it this way was far more productive.
I circled back to the day of the Ashton call.
“Do you recall getting a call from a reporter named John Ashton on this particular day? He had a heavy English accent and the call lasted nearly ten minutes,” I said.
“No, no recollection of that at all.”
Chaffin’s cell phone records clearly supported Ashton’s claim that he called at 11:40 a.m. EST and spoke with Chaffin for nine minutes. Unfortunately, Chaffin’s cell phone records only showed an incoming call without disclosing the number of the incoming caller—Ashton.
Hoping he’d admit that the call took place, I put the cell phone document in front of him and asked, “Does this refresh your memory? It shows a nine-minute incoming call at the exact time Ashton states he spoke to you. Are you sure you don’t remember that call?”
“Nope. No recollection.”
There’s no doubt that Chaffin understood that the document showed only an incoming call to his number. Since it didn’t state who it was from, he gambled—big-time—by continuing to deny that the call with Ashton ever took place. This meant I would have to get Ashton’s phone records to prove it.
Asking for phone records from the Observer would prove to be harder than I expected, because it’s an overseas newspaper. It would require a year of subpoenas and going through the Hague Convention to get prior approval. It wasn’t easy. It took time and effort, but I eventually obtained the records. A year later, with Ashton’s phone records in hand, I scheduled a continuation of Chaffin’s deposition. This time I could prove the identity of the incoming caller to Chaffin’s cell phone number. Chaffin was clearly unaware that I had obtained this critical information.
“A year ago I asked you about an English reporter. I know you’re worked up over this case—thinking about it all the time . . .”
“So I want to ask you again: do you remember taking this call?”
“Let me refresh your memory.”
I then gave Chaffin the same cell phone records I had given him the year before. This time, however, I also provided him with a copy of the detailed bill listing all the calls made from Ashton’s phone line at the Observer, provided to me by Centel, the Observer’s telephone company.
Obviously, Chaffin would now be forced to admit that the call took place.
“The records show the call the reporter has spoken about was made to your cell phone. Want to take a look?”
“Maybe I thought it was a sales call. Maybe I was misleading the guy,” Chaffin said.
Despite being cornered, Chaffin still didn’t want to give up.
“Let me get this straight, Mr. Chaffin. You thought it was a sales call and you stayed on the phone for nine minutes? Most people duck sales calls by hanging up. But you, you stayed on the phone to deliberately mislead and lie to this guy?”
Greg Gaebe, Chaffin’s lawyer who was present for the deposition, jumped in and exclaimed, “He never said ‘lied.’”
That was true, but then I asked Chaffin, “What is the difference between lying and misleading to you, Mr. Chaffin?”
“There is no difference.”
Basically, Chaffin was busted. The call clearly took place, and now everyone knew it.
At this point I thought any jury would see Chaffin for what he was: a liar. Furthermore, any jury would believe Benlate was used on the farm on November 1 or 2, 1989.
It was a victory. In my next post, I will continue writing about the deposition process, this time regarding the fungicide spray Benlate.
In my book, Blindsided, I write in great detail about the deposition process, and the efforts it took to arrive at the truth, in order to confront reluctant witnesses and have them own up to their actions.