The Giant Slayer

A BOY WITH NO EYES.

A COMPANY WITH NO REMORSE.

A LAWYER WHO DOESN’T TAKE NO.

THE STORY OF HOW ONE MAN TOOK ON—AND BEAT—A CHEMICAL GIANT


EARLY NOVEMBER 1989, WEST KENDALL, FLORIDA.

Donna Castillo emerges into the day, pushing her two-year-old daughter in a stroller down Southwest 96th Street. A stiff wind buffets them as they go. They turn left at the car wash, onto Southwest 137th Avenue, and Donna notices something across the road, something a little odd. In the distance there are tall palms swaying in the wind and a few harmless clouds skating over them. Is that rain she feels—those droplets? Where’s it coming from? Across the road, a field of strawberries and tomatoes belonging to Pine Island Farms stretches away to the east—but the thing Donna notices is a tractor in the foreground, stuck among the muddy crops, bucking to and fro as it tries to lurch free. The tractor draws behind it a boom sprayer—thirty-six feet wide with little nozzles attached—that throws a dense cloud of mist into the air.

James L. Ferraro

Donna is a former schoolteacher married to Juan Castillo, an accountant in Miami. She’s seven weeks pregnant with their second child. To keep fit during her pregnancy she goes for twice-daily walks around the neighborhood, and that’s why she’s here on Southwest 137th, watching the mired tractor in its cloud of mist. The wind swirls, changes direction. The mist flies across the road and engulfs the two of them, Donna and her daughter. The liquid is odorless and colorless, and might easily be taken for water; in fact, it’s Benlate, a widely used fungicide manufactured by the American conglomerate DuPont.

On June 15, 1990, Donna gave birth to a beautiful baby boy named John. When the nurse went to put antibacterial drops in the newborn’s eyes, there was a hesitation. Something was wrong. John appeared to have no eyes at all—just two lumps of unformed tissue. In mild cases of this condition, called microphthalmia, one eye is a little smaller than the other with no loss of vision; but in severe cases, both eyeballs are so underdeveloped as to be completely useless: John Castillo would be forever blind.

The question was, what caused it? Genetic tests turned up nothing. But in 1993 a reporter for the British Observer, John Ashton, called Donna out of the blue. He had investigated a cluster of Scottish children born with microphthalmia and anophthalmia (without eyes altogether) and came to suspect Benlate. Did Donna live near a farm? Had she been sprayed by an unknown substance? Then she might well have a cause for John’s blindness—and a case.

This is not the kind of legal case, however, that excites most lawyers. The great cautionary tale up to that point was that of Boston lawyer Jan Schlichtmann, who in the 1980s dared to go up against corporate giants W. R. Grace and Beatrice Foods, accusing them of poisoning the groundwater in Woburn, Massachusetts, and causing a rash of fatal childhood leukemia cases. At the end of a nine-year war, chronicled in the book and movie A Civil Action, Schlichtmann won a partial victory for his clients—but lost his car, his house, and very nearly his sanity.

So when Miami lawyer and Greenwich native James L. Ferraro agreed to see Donna Castillo, he did so with reluctance. These sorts of cases were terribly hard to win; one had to prove exposure to the substance in question and then—the nearly impossible part—draw a precise, science-backed link between the exposure and the harm. It has taken lawyers four decades to prove tobacco harmful in a court of law. Benlate? It had come before the courts for damaging crops, but never for damaging humans.

In the previous couple of years, Ferraro had made his name litigating asbestos cases, first for pipefitters around Miami and then for union workers farther afield—Chicago, Boston, New York. He helped pioneer bundling asbestos cases together in a “rocket docket” that allowed judges to sweep out their backlogs and allowed clients suffering from mesothelioma and lung cancer to reach quick settlements. For Ferraro himself, the sheer number of his asbestos cases—it went from 100 to 4,000 in eighteen months—added up to enormous paydays. His first year doing asbestos cases, 1991, he made in the hundreds of thousands of dollars—and he never made less than $1 million thereafter.

KARMIC SUCCESS
“I considered myself very lucky by the time Mrs. Castillo came in,” says Ferraro. “If you had said to me when I was in law school, ‘Someday, dude, when you’re like really old, you’re gonna make a half million bucks a year,’ I would’ve thought, ‘That’s f—ing great.’ But here I was, thirty-two years old, the money flowing in.”

Ferraro is sitting high above Manhattan in his Midtown penthouse. At sixty years old, he is obscenely fit—densely muscled, small-waisted—as though determined to live forever. There are incentives: He has a beautiful young wife, Megan, his third, and a one-year-old child, Mateo, his fifth: the other children are James, thirty-one, a lawyer in Ferraro’s firm; Andrew, twenty-seven; Alexis, twenty-four; and Dmitri, five. “It’s quite a collection,” he says with a contented smile.

Outside the wraparound windows you can see the Hudson River’s golden skin shine in the late afternoon sunlight, and beyond it—one imagines—the plains of Nebraska or Oklahoma rolling away to the western horizon. Central Park lies dizzyingly at one’s feet, down, down in a city whose streets have already gone dark as the sun flames over New Jersey. Ferraro spends only a few days a month here. His main residence is a penthouse on Fisher Island in Miami, purchased for $21.5 million in 2016. Then there’s the casually elegant Shingle-Style compound on Martha’s Vineyard, overlooking Nantucket Sound, which Ferraro built for $27 million in 2009.

“I knew he’d be successful—that was a given,” says Marc Eichberg, a financial planner whose friendship with Ferraro dates to their sophomore year at University of Miami. “He’s smart, he’s driven, he’s passionate. But who could have fathomed this?”

The first of Ferraro’s three rules for living is “There’s nothing wrong with having fun,” and certainly his toys are major league ones: He has owned jets, restaurants, and even an arena football team, the Cleveland Gladiators. The second rule is “Try not to hurt others,” though, try as he may, Ferraro is no stranger to controversy. He left his second wife at the altar—the papers called him “the runaway groom”—after being surprised by a change in the vows that he said slighted the children of his first marriage. (The two did end up married for a while.)

The third rule is “Help as many people as you can”—this being “the real scorecard of my time here on earth.” Ferraro gives millions to worthy causes. And, disturbed by a rightward shift in American politics that he thinks shortchanges regular people, this former Reagan-Bush voter switched sides. In his view, a great nation should provide a decent minimum wage and ready access to health care and higher education (“After that, you’re on your own”). But that’s not what he sees happening now. “Why do the great dynasties not exist anymore? Because the ones in power kept taking more and more and more.”

Ferraro has built his career on siding with the little guy against the behemoth. His first asbestos trial looked like a lost cause, since his client, a pipefitter named Joe Zabka who was dying of lung cancer, was a smoker. “I just liked him,” Ferraro explains. Though Zabka had died by the time the case came to trial, Ferraro demonstrated to the jury that his exposure to asbestos had increased his chance of contracting lung cancer by a factor of five. The jury awarded Zabka’s widow $850,000.

In due course a union leader who happened to be Zabka’s best friend asked to meet with Ferraro, ostensibly to express his gratitude. The man did so, and then opened the gate for Ferraro to represent union workers around the country. Karma? If you do the right thing, Ferraro believes, everything else falls into place.

But the Castillo matter was an extraordinary test of this philosophy. “Nobody is going to take her case, because you’re going against DuPont,” Ferraro says. Worse, he would soon find out, nobody had ever won a verdict against a chemical maker for causing a birth defect: Cancer and other ills, yes, but never a birth defect. Worse still, Ferraro’s firm would have to foot the entire bill, since most mortals can’t pay to challenge a Goliath like DuPont, which would surely draw out the process for years. And if he lost, as was likely, all that time and money would be down the drain.

Several larger firms had already turned the Castillos away. “I’m a very idealistic person, I really want to make a difference,” Ferraro says. “But sometimes the best thing you can do for people is to tell them to get over it and get on with their lives. Because the other side of the coin is, you take them into the case, you’ll be in it for years, going through all this emotional trauma, and lose at the end. And what’s the point of that?”

In Ferraro’s recent book about the case, Blindsided: The True Story of One Man’s Crusade Against Chemical Giant DuPont for a Boy with No Eyes, written with Laura Morton, he details his internal debate as a weary, sometimes teary, Donna Castillo sat across from him: “It was lunacy for me to take this on. This situation seemed to shout, ‘Run for the hills!’ but still I found myself running toward the Castillos instead of away from them.

”But was there really a case?

NO GOLDEN CHILD
Jim Ferraro grew up on Valleywood Road in Cos Cob, the eldest of Luella and the late Louis Ferraro’s three children.

The young Ferraro was a rebellious student who once merited a D in conduct; he was far more interested in golf, baseball and football. Ferraro’s friend Steve Gordon—they met on St. Catherine’s Midget League baseball team—says, “We had similar personalities: very competitive, very athletic, very annoying to our families.” Ferraro later played inside linebacker on the undefeated 1974 Greenwich High School football team; Gordon was the starting quarterback. “Jim is extremely bright,” Gordon says, “but I will say, none of us saw that in the early days. Back then, we just saw a guy who would not be denied. Worked harder than anybody. He was a tough, tough kid, not to be messed with.

”No doubt playing football under head coach Mike Ornato helped instill a robust work ethic. But the greater influence on Ferraro was his father. Lou would have Jim do chores and more chores, over and over, until they could scarcely be done better—and, to Jim’s dismay, never offer praise. (It was Luella who calmed him and “helped me keep my sanity.”) Only later did Ferraro learn that Lou’s pride in him overflowed when he talked to others. Though Gordon and Ferraro lost touch for a while when they were young professionals, Gordon happened to have a locker near Lou’s at the Greenwich YMCA. Lou would regale Gordon with news of Jim’s successes. Gordon thought, “Yeah, yeah,” until he saw Jim on TV one day after winning a big case.

Once he got to the University of Miami, Ferraro overindulged in his First Rule for Living. All fun, no work. His roommate, Scott McConnell, a friend from Greenwich who later served as a Greenwich police detective and now works as an investigator for Ferraro’s firm, says, “You read the book, right? So you’ve ‘seen’ me and him in the dorm room, setting up the bar? He was a little bit on the wild side.” After sophomore year, Ferraro paused to assess his future. It was time to get serious, to let his native intelligence shine.

All these years later, according to McConnell, success has not spoiled Ferraro; the two still joke and shove each other around like schoolkids, especially when on vacation up in the Vineyard. “He’s got a heart of gold, that guy, he really does,” McConnell says. “But when he puts on his trial hat, things change. He wants justice—he wants justice.”

DAVID VS. GOLIATH
Ferraro conceived the DuPont case as “confronting a bully.” But his firm was small and only newly flush, and therefore vulnerable to the wily tactics of the veteran DuPont legal team. Immediately DuPont drew up a witness list of more than 300 people in several countries. It would have taken Ferraro over a year, working every weekday, to depose them all. Even when the judge prodded DuPont to trim the list, the company made scheduling depositions difficult.

Meanwhile, DuPont’s co-defendant, Pine Island Farms, tried to show that Donna hadn’t been exposed to Benlate in the first place. Pine Island had bought the fungicide in May 1989 and used it that month, farm manager Lynn Chaffin suggested. If that statement was completely true, the case was over: Whatever liquid wetted Donna and her daughter would have been something else.

But Ferraro then produced John Ashton, the reporter, who detailed an eight-minute phone conversation in which Chaffin admitted to him that Benlate was used on the field around November 1, 1989, soon after new tomato plants were put in the ground. Chaffin denied any memory of the call. It took Ferraro “a year of subpoenas” to secure, but in the end he presented Chaffin with the stark evidence of the Observer’s phone records. (Even so, Chaffin insisted in court proceedings that the farm had not used Benlate that early November.)

“He has a touch of aggression and a first-rate mind,” says Stuart Z. Grossman, a top Florida trial lawyer who knows Ferraro well. “It’s very difficult to trip him up. He looks you straight in the eye, he has a strong physical presence, and he ropes you in and corners you—that’s what he does with witnesses.”

Having cut through Pine Island’s obfuscations, Ferraro went up against DuPont’s science—a much taller order. Before the trial, he discovered a University of California study showing that benomyl, the active ingredient in Benlate, had caused eye defects in 43 percent of lab rats tested. When pregnant rats were fed a protein deficient diet, eye defects jumped to 61 percent. The study convinced Ferraro of the case’s merit. He learned too that benomyl specifically attacks the eyes—it’s drawn there by a substance in the cells—and can destroy them in the delicate early phases of pregnancy.

Surely, DuPont must have done its own studies en route to gaining EPA certification. Ferraro and an associate traveled to DuPont’s document depository in Delaware—a huge, dim warehouse packed with paper but lacking any semblance of order, “which I suspected was very much by design.” A poker-faced librarian watched over their search, misdirecting them all the while, Ferraro believes. They quickly learned to use her as a reverse barometer. If she waved them one way, they went the other; if she directed them upward, they looked downward. From those endless drifts of paper, the two lawyers extracted a couple of gems: “dermal transmission” studies showing that benomyl permeates the skin and gets into the bloodstream; and “in vitro” tests showing that human cells die with very small doses of the chemical.

But the eureka find, deviously filed under “Special Luncheon Memo(s),” was two rat studies conducted by Robert Staples, DuPont’s head of toxicology. The first, from 1980, delivered bad news about benomyl: Eye defects occurred at low levels of exposure. The second study, from 1982, offered a much rosier picture. A baffled Ferraro pored through thousands of pages of documentation, trying to figure out what had changed. After deposing Staples, Ferraro had his answer: The methodology had changed. Having been reprimanded for producing the 1980 report without the input of higher-ups—who disparaged Staples as “a lone wolf” despite his authoritative standing—Staples conducted a less rigorous study in 1982. It gave DuPont the safety all-clear it needed.

Now Ferraro was convinced he had enough scientific evidence to sway a jury. But astonishingly, during pretrial hearings, DuPont moved to have its own studies—studies it had done to get Benlate certified as safe—stricken as “junk science.” That brazenly hypocritical tactic irks Ferraro to this day. “That’s the reason for the book,” he says, voice rising. “It’s crazy how they do that. They want to get the product on the market, so they’ll put anything in front of the EPA, but when you use the same submissions against them—all of a sudden it’s junk science.” (He’s intent on bringing about a federal law to redress the situation, but knows he’ll have to wait until the regulation-hostile Trump Administration leaves power.)

On June 7, 1996, three years after Donna Castillo first walked into Ferraro’s office, the jury rendered its verdict: DuPont and Pine Island were negligent to the tune of $4 million. (DuPont bore 99.5 percent of that penalty.) For the first time ever, Big Chem had been held responsible for causing a birth defect in a child. The award would allow John Castillo to attend the Perkins School for the Blind near Boston, the oldest and most esteemed such school in the country.

But the verdict did not hold. A Florida appeals court overturned it in 1999, claiming the trial judge should have excluded Ferraro’s science experts—the bedrock of his case. The appeals judges singled out the rat and in vitro testimony: For the scientists to extrapolate the dire results of those tests to humans was a bridge too far, they held. And didn’t the EPA certify Benlate as safe for pregnant women? (Well, yes, but it did so based on that dubious 1982 study.)

Ferraro and his cocounsel, Liz Russo, had known they were in trouble when one of the judges asked, “Don’t you think $4 million is a lot of money to give to a kid with no eyes who is essentially going to live a normal life?”

All was in ruins. But as Ferraro’s friend Marc Eichberg says, “He will not give up, he will not give up, he will not give up.” The problem was, he had only one option: go to the Florida Supreme Court, and the odds of it agreeing to even hear the case were as bad as 100 to one, Ferraro estimated. As for reversing the appeals court? A pipe dream. But the court did hear the case—and in July of 2003, by a four-to-two vote, it reinstated the Castillos’ $4 million verdict. The ten-year battle was over.

Ferraro achieved a second victory in representing the families of the Scottish children found years prior by the Observer reporter who set the case in motion. After yet more bruising battle in the courts (in Delaware, DuPont’s home court, as it were, where the streets of Wilmington were festooned with DuPont banners), he worked out a settlement worth millions, if “hardly the hundreds of millions I had hoped for.” Meanwhile, DuPont, tired of defending Benlate against the claims of blind children, removed the billion-dollar product from the market without ever admitting its harmful effects.

Today Ferraro hopes to shepherd Blindsided to major motion picturedom, in the tradition of A Civil Action and Erin Brockovich. “I think our story is better than either one of those,” he says with good-natured swagger. Done correctly, he believes, the movie would shed light on the shady (though not necessarily illegal) ways and practices of corporate power—an old theme that cases like Castillo vs. DuPont makes new again and again.

And what of John Castillo? A YouTube video from several years ago shows him in Boston’s Old South Church, age twelve, singing the hymn “One Small Child” with the Perkins School for the Blind bell choir.

Denied his sight, he was given the voice of an angel.


Find out more: projectblindsided.com

 

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