- Jim Ferraro
The Suspicion of a Link Between a Fungicide and Microphthalmia
In my last several posts, I’ve recounted the testimony of Donna Castillo, in the case where I represented her and her family against DuPont.
According to her testimony in court, John Ashton told Donna Castillo that he was investigating a link between the fungicide Benlate and children born with microphthalmia. After three or four conversations, they were able to connect Donna’s walk near Pine Island’s strawberry and tomato fields on that November day with John’s birth defect. Ashton had spoken to the owner of the farm, who confirmed that they had used Benlate and were spraying it during the time of Donna’s pregnancy with John in November of 1989. This information was relayed to the Castillos in May of 1993.
Shortly after that revelation, Donna saw a television commercial touting the health benefits of organic farming. The commercial showed a tractor with a large sprayer attachment like the one that sprayed Donna that day in 1989. She suddenly realized in horror that this must have been how she was exposed to Benlate. She talked to her husband after her conversation with Ashton and again after seeing the commercial on TV. “Juan, this has to be it,” she said. “How else can you explain it?”
Although Donna Castillo was a very good and experienced schoolteacher, when she brought her son home from the hospital, she had no idea what to do. She had years of experience working with children, but not with children who couldn’t see.
Our plan was to show the jury an 18-minute, day-in-the-life video illustrating what the Castillos’ ongoing challenges looked like. It depicted the special assistance Johnny needed and the techniques he used to eat breakfast, brush his teeth, get ready for school, navigate the stairway in his home, and overcome countless other obstacles (including bumping into walls) during his daily routine, until finally going to bed.
From the start, opposing counsel was against showing the video. There was no other Florida case that had denied the use of a day-in-the-life video. The judge knew this and agreed that we should be able to show it to the jury. Just when I thought we had put the issue to bed, Doug Chumbley raised a new concern: the video showed John Castillo in the nude.
I could hardly believe what I was hearing. Chumbley made it appear as though we had filmed this 5-year-old boy running around stark naked; in fact, the cameraman had shot from a distance while Donna got her son dressed in the morning. This was simply what they did every day, and comprised less than five seconds of footage. We also wanted to show that while Johnny Castillo may not have had eyes, there was nothing wrong with the rest of his body. Johnny was at his most vulnerable when he walked into walls, fell on the floor, and couldn’t help himself up. It wasn’t when his mother dressed him. Chumbley’s argument was absurd, and the judge knew it.
Gaebe hadn’t seen the video—at least, not the edited, shortened version. He had been provided the original two-hour raw footage. “Your Honor, the original version is six to eight hours long,” he said.
“It’s two hours, Mr. Gaebe,” the judge replied.
“Well, it felt like it.”
Gaebe found many parts of the two-hour footage objectionable but hadn’t bothered to raise those issues until we stood in front of the judge moments before I wanted to show the video to the jury.
His claim not to have seen the shortened version didn’t sit well with the judge. If I had given him only the shorter version, he might have had a viable argument. But since he had seen everything in the longer one, there would be no surprises.
Therefore, I would be able to use the video.
In my next post, I recount the what Donna Castillo experienced during the first two years of her blind son’s life.
In the meantime, I’d love to hear from you about your thoughts of how trials work – and the tactics that corporate defense lawyers use. Thank you for sharing.