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The Florida state court system recently closed its books on an important tort and federal preemption case, which was tried back in May through June of 1996. The litigation was first brought by the parents of John Castillo, a boy tragically born with a rare birth defect leaving him with microscopically sized eyes – a condition known as “microphthalmia.” Parts of the trial were broadcast on Court TV. Castillo’s parents alleged that the boy’s mother was exposed to a DuPont chemical during her pregnancy with John. Specifically, they alleged that while the pregnant Mrs. Castillo was walking her infant daughter past a “u-pick” agricultural field across from a shopping center in Miami, she became interested in a tractor on the edge of the field which she saw “bucking and jerking.” Testifying that she was somewhat fascinated by the sight, she eventually claimed to have voluntarily drawn closer until she became drenched with a clear spray from the tractor, as if she had been standing in the rain. The spray was alleged to have contained the DuPont fungicide Benlate – often applied to tomatoes and certain other crops after disease appears on the plants. 

The jury found for the plaintiffs and awarded $4 million in damages, which it apportioned in a ratio of 99.5% against DuPont and 0.5% against the farm owner. 

In addition to questioning the veracity of Mrs. Castillo’s version of events (whether the spray contained Benlate, and how the plaintiff could have been exposed to it), DuPont challenged the scientific testimony on which the tort case was based. Plaintiffs retained two experts, both of whom had spent most of their professional lives at the time in Liverpool, England. Dr. Richard van Velzen, a Dutch doctor, took the cells of humans and mice, placed them into petri dishes, and then added various concentrations of Benlate. He testified to have found that the lowest level at which cell damage occurred was 20 parts per billion (“ppb”). These studies were not published or peer-reviewed. Taking these findings several steps further, the plaintiffs’ other expert, Dr. Charles Howard, testified that together with peer-reviewed rat studies, van Velzen’s work showed that: (1) exposure to Benlate that resulted in maternal blood stream concentrations of 20 ppb could cause the birth defect microphthalmia; and (2) Mrs. Castillo’s blood levels would have achieved that level based on crediting her testimony about her exposure and making various assumptions about how much spray from the tractor got on her skin, and how much Benlate would typically have been included in a spray containing Benlate. 

DuPont attacked the qualifications of the two experts, and also assailed these conclusions on several grounds, including: (1) the petri cell experiments, being a completely artificial environment, could establish nothing about the human dosage levels needed to prove birth defect causation; (2) the rat studies involved exposure by the gavage method (force feeding of massive dosages down the rats’ throats and into their stomachs), where ingestional exposure at levels as low as 20 ppb produced no effect in the rats, and birth defects in the rats only at doses onethousand times greater or more. DuPont also defended on the ground that its product could not possibly have been deemed defective as a matter of products-liability tort law where it would have been misused if it was sprayed by the farm owner on Mrs. Castillo in the scenario alleged. The product’s federally approved warning label required it to be sprayed so as to minimize drift and required other precautions that were not taken by the farmer, if one credited Mrs. Castillo’s version of how she was exposed to Benlate. Finally, DuPont argued that a finding of liability was preempted by the Federal Insecticide, Fungicide, and Rodenticide Act. 

A three-judge panel of the intermediate Florida appeals court unanimously reversed on February 9, 2000. E.I. DuPont de Nemours & Co. v. Castillo ex rel. Castillo, 748 So. 2d 1108 (Fla. 3d DCA 2000). That court held that there was no admissible evidence against DuPont that Benlate was sprayed on Mrs. Castillo while she was pregnant, and that the methods used by the plaintiffs’ experts were not generally accepted in the scientific field of teratology (birth defect causation). 

After the intermediate appellate decision, Dupont offered information about the plaintiffs’ expert witnesses, especially about Dr. van Velzen. Dupont believed the information to be relevant because the ethical issues presented by it could be the basis for impeaching the qualifications of the experts.While both were colleagues at the Alder Hey Children’s Hospital in Liverpool (collaborating on research including many of the papers they offered as the basis for their qualifications to opine about birth defect causation at trial), Dr. van Velzen had retained thousands of body parts from children on whom he had performed autopsies, including severed heads, one of which he kept on his desk. He kept them in his personal offices in the basement of the hospital. All of the organs and other body parts were taken without parental consent. The British government convened an official inquiry, which condemned van Velzen’s conduct, as did several members of Parliament, from that body’s floor. The official report, entitled the Royal Liverpool Children’s Inquiry Report is available at http://www.rlcinquiry.org.uk/ [dead link, https://www.gov.uk/government/publications/the-royal-liverpool-childrens-inquiry-report] 

The British Report summarized its findings of wrongdoing by van Velzen as follows: “Professor van Velzen was guilty of the following activities: 

  • immediately upon his arrival, Professor van Velzen ordered the unethical and illegal retention of every organ in every case for the overriding purpose of research;
  • falsifying records, statistics and work output;
  • falsifying research applications;
  • falsifying post mortem reports;
  • lying to parents about his post mortem methods and findings;
  • causing an unnecessary excessive, illegal and unethical build up of organs following post mortem examination, ostensibly for research but with no likelihood that the bulk of the organs stored in containers would ever be used for research
  • absenting himself from clinical practice without any

or proper cause.”

 

Dr. van Velzen, who had left Liverpool for Nova Scotia in 1995, apparently brought his practices to Canada, where he ultimately pleaded guilty to the crime of committing an indignity against a human body. He had been caught storing human body parts in a private storage facility in Canada. See 2001 WL 2320795, 2001 WL 23429954.

The plaintiffs sought and obtained Florida Supreme Court review. DuPont provided information about the professional proceedings against van Velzen in Britain as supplemental evidence after the case was argued on February 5, 2001. A majority of the court held that there was sufficient evidence that Mrs. Castillo was sprayed with Benlate, upheld the admissibility of the scientific testimony of the Castillos’ experts, Drs. van Velzen and Howard, and rejected DuPont’s federal preemption argument. Castillo v. E.I. DuPont de Nemours & Co., 854 So. 2d 1264 (Fla. July 10, 2003).

The Chief Justice and one other justice dissented. The dissenters argued that the Florida Supreme Court had no jurisdiction to take the case. Unlike the United States Supreme Court, the Florida Constitution provided in relevant part that cases that did not pose legal splits of authority on some issue among lower Florida courts were not just a discretionary basis for denying state Supreme Court review, but an absolute jurisdictional prohibition on further review. The dissenters also argued that there was no competent evidence against DuPont that Mrs. Castillo was sprayed with Benlate.

The Florida Supreme Court later denied rehearing on September 4, 2003. None of the members of the Florida Supreme Court mentioned the supplemental evidence submitted regarding the plaintiffs’ scientists in reversing the intermediate appellate court and reinstating a $4 million jury verdict.

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