- Jim Ferraro
The Defense Tries to Dismantle the Truth
Dr. Vyvyan Howard, a renowned expert on toxicology and pathology who had testified for us on the effects of certain fungicides on the body, had finished his testimony, and he was then subject to the cross-examination from the opposing side, representing DuPont.
The DuPont lawyer, Clem Glynn, came out with both guns loaded.
His first order of business was to try to get Dr. Howard stricken as a witness.
He argued that the doctor’s entire testimony should be tossed out because it was based on assumptions that there was no possibility of a genetic cause for Johnny Castillo’s birth defect.
While that had not been an issue when Dr. Howard’s deposition was taken, a defense witness later stated under oath that an underlying genetic factor was a “possibility.”
Despite that testimony, Dr. Howard still believed the cause of Johnny’s microphthalmia was environmental (that is, benomyl) and not genetic. He stood firmly behind his testimony, his calculations, and the lack of scientific evidence indicating a genetic cause.
The judge agreed and wouldn’t allow Glynn to strike Dr. Howard as a witness.
There simply was no evidence of a genetic link to Johnny’s microphthalmia. DuPont took the position that science had not yet developed to the point where a genetic cause could be established. In other words, DuPont’s position was that we should be forced to prove a negative.
Part of DuPont’s defense was that the cause of microphthalmia was either genetics or environment, but never both.
Dr. Howard’s position, which today is generally accepted science, was that most birth defects are a combination of genetics and environment, or “genetic susceptibility.” Some people are simply more genetically susceptible to environmental factors.
This opinion not only made scientific sense, it also made common sense.
Unable to win that battle with his first strategy, Glynn had to dismantle Dr. Howard’s testimony piece by piece in front of the jury. It was apparent that he would stop at nothing in his attempt to do so.
The first fault he found in Dr. Howard’s testimony was his insistence that inhalation was not a real factor. When Glynn questioned Dr. Howard about why he thought it might have been a possibility during his deposition but no longer seemed to think it was during his court testimony, Dr. Howard explained that the testimony of spray expert William Hunt gave him pause. Hunt had testified about the wind conditions on the day Donna Castillo was exposed. That testimony changed Dr. Howard’s opinion post-deposition.
While that might have satisfied a less savvy or experienced attorney, Glynn was just getting started.
He confronted Dr. Howard with an error he had made on some of the work he did for this case. He specifically cited an overestimation based on a DuPont document known as the Waritz Memorandum. This document was not a scientific study, but rather a calculation estimating two things: how far a spray could carry benomyl to a person who would then inhale it, and, once that happened, how much benomyl would make it into the body’s tissues.
In the transposition from imperial units to metric units, Dr. Howard had made an error by a factor of 10, which increased the amount of spray mix Donna Castillo would have been able to inhale tenfold.
Glynn then introduced a document written in March 1996 into evidence, wherein Dr. Howard offered his opinion regarding the possibility that inhalation was the primary cause of Johnny’s microphthalmia.
It read, “As has been described in detail before, the principle component of Mrs.
Castillo’s acute benomyl exposure was inhalational and could in my opinion have led to plasma levels in the range.”
Dr. Howard did his best to explain that there was some discussion about the effect of wind speed and he was going to work on some new calculations, but this document certainly contradicted two days of testimony.
We had our work cut out for us. I will write about how Dr. Howard responded to the relentless grilling from the defense attorney.
I’d love to hear from you. In your work, how often have you been up against a formidable opponent who would stop at nothing to block your efforts to move ahead? Thank you for sharing!