I Brought DuPont to Trial for its Toxic Pesticide
It was causing babies to be born without eyes.
Image: AFP / Stringer / Getty
"Tell me why you're here today," I said.
Donna spoke softly as she did her best to fight back tears. She told me that on approximately the first or second of November 1989, she had decided to take her young daughter for a walk in her stroller to get some fresh air. As they passed by Pine Island Farms, a typical "u-pick" field usually full of strawberries and tomatoes, she noticed that a tractor had become stuck in the mud. The sprayer attachment had a big wingspan, close to thirty-six feet end to end, and it was spraying a clear, odorless liquid as it thrashed uncontrollably about. She stopped for a brief moment and watched the driver of the tractor try unsuccessfully to maneuver the vehicle out of the soaked ground. It was a relatively windy day, and at one point the gusts shifted in such a way that Donna became wet from the spray. Since the liquid didn't have any noticeable color, smell, or taste, she assumed it was just water. She was eight or nine weeks pregnant, and though she wasn't terribly concerned at the time, she went home and shared her experience with her husband. He agreed that there was probably nothing to be worried about.
Just to be certain, she went to the obstetrician the next day. After listening to the details of her encounter, the doctor came to the same conclusion. The farmer must have been watering his crop, as there was no obvious evidence of any chemical use.
Seven months later, Donna gave birth to her son, John. She and Juan had expected a perfectly healthy child because there had been no sign of any problems throughout the pregnancy. The reality in the delivery room, however, was quite different. The couple was horrified to learn that John was born with no eyes. They had no idea what had caused this rare birth defect. In time, I would learn that when a child is born with no eyes, the condition is known as anophthalmia. Similarly, when a child is born with only residual tissue in place of his or her eyes or with abnormally small eyes, this sister condition to anophthalmia is called microphthalmia. Although Johnny had no eyes, he did have a tiny cyst where his eyes should have been; thus, his condition was classified as microphthalmia.
"The condition is incurable," Donna said, now sobbing as she pulled a small photo of the baby from her purse.
She told me that while Johnny could someday be fitted with glass prosthetic eyes, he would never be able to see. Not only would he be blind for life, he was permanently disfigured.
This discovery was shocking to the Castillos. They certainly weren't prepared for life with a blind child. The condition is so rare that they wanted to find answers. What could have caused this? Was it something Donna could have prevented? Was it genetic? She told me about a British support group she became involved with called Microphthalmia, Anophthalmia & Coloboma Support, also known as MACS. There were 165 other families enduring a similar journey, and she found great support and comfort through their mutual connection.
As I listened to Donna share her story, I couldn't help but think of my own son Andrew. He was the same age as little Johnny. I glanced at my boy's photo, which sat in a frame on my desk. There he was, a beautiful, healthy kid. I got to go home every day and see him, and by the grace of God, he got to see me, too. I couldn't fathom what life would be like if any of my children—Andrew; my oldest son James, who was then seven; or my daughter, Alexis, who had been born just months earlier in January—were suffering the way Johnny was. My heart was genuinely broken for the Castillo family. They were humble people. Good people. I could see the anguish this had caused them. And yet I still wasn't sure why they were sitting in my office that day.
I wanted to be compassionate and understanding, but I'm a trial lawyer, not a therapist.
That's when Donna told me about an investigation the London Observer and the BBC were both conducting. It was focused on a cluster of kids born without eyes in Fife, Scotland. They all lived in an agricultural area where farmers frequently used a chemical called carbendazim. Although sold under a different trade name, this chemical is similar to one made by DuPont called benomyl, the active ingredient in a product known as Benlate. At the time, Benlate was the best-selling and most profitable agricultural product DuPont was selling worldwide. Pregnant women working with these products—primarily migrant workers—were giving birth to children with Johnny's affliction. A 1993 documentary called Field of Dreams followed the stories of these women and their children. John Ashton, an investigative reporter from the Observer, was digging deeper into the subject, contacting farmers and families to see if he could connect the dots. He got in touch with Donna and asked if she had lived near any farms when she was pregnant with John.
He asked if she had ever been sprayed by a foreign substance near one of those farms.
Donna said that after she gave Ashton all the details of that fateful day, it suddenly occurred to her that she, too, may have been the victim of this type of chemical exposure.
I suddenly understood why the Castillos were in my office that day.
They wanted to go after DuPont.
There had never been a jury verdict rendered anywhere in the entire world against a chemical-producing corporate giant like DuPont for developing products that caused birth defects of any type.
It was now clear why every other lawyer the Castillos went to before me had turned them away.
They didn't stand a chance of going the distance against a behemoth like that. They surely didn't have the money or the stamina it would take to stare down DuPont, let alone win. They needed someone stupid enough to take the case and then finance it, too.
I started my law firm two years out of law school and was never mentored by anyone. I would learn to prepare my witnesses, opening statements, and closing arguments by reading books and memoirs by the legendary trial lawyers of the past.
I would simply take what I liked from one, add it to what I liked from another, and then layer a little bit of my own insight on top.
Maybe not having a mentor to talk me out of it is what made me both naive and brazen enough to take on a case like the Castillos'. I was free to do it if I wanted. I didn't have to answer to anyone else.
Besides, at the time I was also very idealistic—almost to a fault.
I consider myself very lucky to have represented so many people who didn't stand a chance to win without me. I've not only helped change the lives of those people but I've also had the good fortune to make a lot of money doing it.
Naive or not, one thing was very clear after hearing Donna's story: everybody on the street is a potential victim of chemical exposure like Donna endured that day. By not even thinking about the potential damage they were causing, DuPont—and the farmers using their products—were operating with a total disregard for the public. Worse, they didn't seem to care. If the DuPonts of the world had their way, everyone would be considered human guinea pigs, much like the Castillos were. The biggest problem this beleaguered family faced was proving it.
Chemical cases involving birth defects are almost impossible to prove. While human test trials are done to determine whether a new drug is beneficial or harmful to people, there are no such trials for chemicals. The reason is very basic: no possible good can come from testing chemicals on humans, and in particular on pregnant women. It is simply unethical to perform such tests.
This is the challenge with Benlate and benomyl. You simply can't spray potentially dangerous chemicals meant to kill weeds or enhance crop growth on pregnant women to see what will happen to their unborn children. There's absolutely nothing positive that can result from a study like that. Because there is no possible benefit, human test trials—which would be the best indicators of potential birth defects—are not only unethical, they're prohibited.
By comparison, when a pharmaceutical company screws up and damage to humans results from one of their drugs, it's much easier to build a case against them, because data can be gathered from the controlled human test trials they typically run. It's allowable to test new drugs on humans because it is generally understood that the possible benefits outweigh the risks. For example, when it comes to treating cancer, the prevailing view is that any new drug with the potential to kill the deadly cancer cells is well worth testing even if some people will be harmed in the process. Such trials are critical to moving medicine forward, which makes them invaluable.
That is very sound reasoning. With chemicals, however, the only allowable testing is on human cadaver skin and cells (not living people), and on animals. This plays right into the hands of the DuPonts of the world. It makes it very easy for them to be irresponsible. This inherent limitation in testing makes it possible for companies with potentially toxic and harmful products to get away with selling them to the unsuspecting public. Even when faced with living examples of severe human damage, companies such as DuPont are willing to sacrifice a thousand Johnny Castillos before they'll toss in the towel. They believe they should be able to sell their products, toxic or not, with very little regulation.
I was curious about how a victory against a behemoth like DuPont would impact this family. How would it make their lives different? Donna explained that if they won, Johnny could get the education, develop the skills, undergo the therapy, and secure the devices necessary to meet his special needs. This would make his life much more bearable.
"Juan doesn't make that much money, and our wish—our hope—is to send our son to the Perkins School for the Blind," she said.
I knew the Perkins School was very expensive. There was no shot of little Johnny going there unless they won this case.
As I held Johnny's photo in my hand, again I found myself thinking about my own children. I wondered what I would do if this were my son. I admit, this case represented everything I loved about being a lawyer.
I wasn't as humble as the Castillos.
I'd want vindication by proving this company had screwed up. I'd want to show the court that, without any question, it wasn't something my wife did that caused my child's condition. It wasn't her mistake, but rather the fault of someone who thought they could get away with causing this type of harm because they weren't being held accountable for it.
This family needed me.
This was a real-life David-and-Goliath battle we were about to wage.
It would take a miracle to win.
And it had my name written all over it.
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