Extrapolation upheld

Daily Business Review

Julie Kay and Laurie Cunningham

Dispute over scientist's conclusions in Benlate case could have altered standard for admitting evidence

John Castillo, et al. v. E.I. du Pont Nemours & Co. Inc., et al., Case No. SC00-490

Ending a case that dragged on for a decade, the Florida Supreme Court in July reinstated a $4 million verdict awarded to a Kendall boy born without eyes after alleged exposure to the fungicide Benlate while in his mother's womb.

The 4-2 opinion reversed a 3rd District Court of Appeal ruling and affirmed the verdict of a Miami-Dade Circuit Court jury in 1996. That jury had assigned 99.5 percent to Pine Island Farms, which allegedly sprayed the fungicide on the mother.

The $6.8 million total award, which included $2.8 million in interest, has been paid by DuPont. The company lost its request for rehearing, said James Ferraro, the trial attorney in the case. Ferraro said his fee was about 25 percent. Appellate lawyers Joel Perwin and Elizabeth Russo received about 5 percent.

The case was closely watched by product liability lawyers because it could have changed the standards for admitting expert testimony in state court trials. But attorneys on both sides say it has not really affected that standard, called the Frye test.

"It clarifies and reaffirms that we are a Frye state," said Ferraro, of Ferraro & Associates of Miami. "This is going to govern science in the courtroom for the next 20 to 30 years."

The case, John Castillo v. E.I. du Pont de Nemours & Co., was brought in 1996 by Castillo's mother, Donna, who said she was sprayed with Benlate while strolling by the fields near her home in November 1989. She testified at trial that a tractor in a West Kendall "U-pick" farm field drenched her. Castillo was seven weeks pregnant at the time.

A Pine Island Farm foreman testified at trial that no Benlate had been sprayed on the fields that fall.

During the six-week trial, an associate professor from the University of Liverpool in England testified that Benlate has caused microphthalmia—a rare birth defect in which an animal is born without eyes – in newborn rats. He concluded that the chemical could cause the same birth defect in humans. The professor, Charles Howard, also based his conclusions on in vitro laboratory studies using human and rat cells.

The 3rd DCA, however, said Howard's extrapolation that the fungicide could cause the defect in humans was too speculative and that Miami-Dade Circuit Judge Amy Steele Donner erred by admitting Howard's testimony under Frye.

Frye is a four-step analysis used in Florida to decide whether expert conclusions are based on methods generally accepted among scientists.

The Supreme Court ruled that the 3rd DCA went too far in trying to interpret the study's results rather than simply ruling on whether the underlying science was acceptable.

"By considering the extrapolation of the data from the admittedly acceptable experiments, the 3rd District went beyond the requirements of Frye, which assesses only the validity of underlying science," Justice Peggy A. Quince wrote for the majority.

"The Castillos' experts relied upon commonly accepted scientific methodology and used the data generated from that methodology in a new or a novel way," the opinion said. "At least one other state, Illinois, has held that the method of extrapolation meets the Frye test."

Chief Justice Harry Lee Anstead and Justices Barbara J. Pariente and R. Fred Lewis concurred.

Judge Donner said she felt vindicated by the high court ruling. "I think we judges know a lot more than people give us credit for," she said in an interview. "People think we have to be scientists, but that is not the case. We just have to analyze it in the legal context."

Arthur England, a shareholder at Greenberg Traurig in Miami and DuPont's attorney, said he was most surprised by the fact that it took the high court two years to issue its ruling following oral arguments. "That was very unusual," he said. "We feel the district court got it exactly right."

The Castillos live outside Boston, where John, now 13, attends a school for the blind.