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In a closely followed product liability case, the Florida Supreme Court on Thursday reinstated a $4 million verdict awarded to a South Florida boy born without eyes after he was exposed to the fungicide Benlate while in his mother’s womb. The 4-2 opinion reverses a ruling of the state’s 3rd District Court of Appeal that threw out the verdict against Pine Island Farms and the DuPont Co., the fungicide’s manufacturer. After a six-week trial in Miami-Dade Circuit Court in 1996, the jury had assigned 99.5 percent liability to Wilmington, Del.-based DuPont and 0.5 percent to Pine Island. But the 3rd DCA had tossed the verdict in John Castillo v. E.I. Du Pont de Nemours & Co. in February 1999. The appellate court said the scientific testimony of the plaintiff’s expert was insufficient to prove that Benlate had caused the boy’s condition — a rare birth defect called microphthalmia. During the trial, a professor from the University of Liverpool in England testified that Benlate has caused microphthalmia in newborn rats and concluded that the chemical could cause the birth defect in humans. The professor, Dr. Charles Howard, also based his conclusions on in vitro laboratory studies using human and rat cells. Howard used the findings from those studies to extrapolate the effect on a human fetus. The 3rd DCA said Howard’s theory that Benlate could adversely affect humans was too speculative and that Miami-Dade Circuit Judge Amy Steele Donner had erred by admitting Howard’s testimony. The appellate court held that it did not satisfy the Frye test — a four-step analysis to decide whether expert conclusions are based on methods generally accepted among scientists. But the state Supreme Court ruled that the 3rd DCA had taken its own analysis too far. “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 the 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 novel way,” Quince wrote. “At least one other state, Illinois, has held that the method of extrapolation meets the Frye test.” Justices Harry Lee Anstead, Barbara J. Pariente and R. Fred Lewis concurred with the majority opinion. Judge Donner said she felt vindicated by the majority decision. “I think we judges know a lot more than people give us credit for,” Donner said. “People think we have to be scientists, but that’s not the case. We just have to analyze it in the legal context.” Justice Charles Wells and now-retired Justice Leander J. Shaw Jr., however, dissented on jurisdictional grounds. Wells and Shaw said the high court should not have heard the case because there was no direct conflict between the 3rd DCA’s ruling in Castillo and a 1998 1st DCA ruling that led to the high court’s decision to take the case. “The majority reaches this issue not because there is a legal principal about which the district court erred,” Wells wrote. “Rather, the majority reaches this issue to substitute its view of the record evidence for the view of the [3rd] District court.” Wells also stated that he agreed with the 3rd DCA’s opinion that there was insufficient evidence to prove that the boy’s mother, Donna Castillo, had been sprayed with Benlate when she was seven months pregnant in November 1989. Donna Castillo testified that she had been drenched by a mist being sprayed from a tractor in a “U-pick” farm while strolling by the fields near her home in the West Kendall area south of Miami. A Pine Island Farms officer had testified that no Benlate had been sprayed on the fields that fall. But the Supreme Court majority found the evidence was sufficient to support Castillo’s allegation that she had been sprayed with Benlate. The case was closely watched by the legal community, because the Florida Supreme Court’s ruling could have changed the standards for admitting expert testimony in state trials. When the 3rd DCA’s opinion first came out, many attorneys worried that it meant Florida’s judiciary was starting to adopt new criteria the U.S. Supreme Court established in 1993 for the admission of scientific evidence in federal cases. The decision in Daubert v. Merrell Dow Pharmaceuticals Inc. required federal judges to determine not only whether the expert’s methodology was sound, but also if the conclusion based on that methodology would likely become generally accepted in the relevant scientific community. Daubert was not binding on the states, however, because it interpreted a federal statute. Some states adopted the Daubert test, while the majority, including Florida, retained the Frye standard. Frye requires that an expert’s methodology is “generally accepted” in the scientific community, but doesn’t subject the expert’s conclusions to the same scrutiny. The 3rd DCA erred by focusing on Dr. Howard’s conclusion rather than his methodology and ruling that his theory was too novel, said the Castillos’ appellate lawyer, Joel Perwin. “You never apply the Frye test in the first place unless it’s novel,” said Perwin, a partner at Podhurst Orseck Josefsberg Eaton Meadow Olin & Perwin in Miami. “If it’s a well-accepted conclusion, there’s no need for the test.” DuPont’s attorney, former state Supreme Court Justice Arthur England, now a shareholder at Greenberg Traurig in Miami, was on vacation Thursday and could not be reached for comment. The state Supreme Court’s ruling was a welcomed victory in a protracted legal battle, said the Castillos’ trial lawyer, James Ferraro of Ferraro & Associates in Miami. “We put 10 years of our lives into this case,” Ferraro said. The Castillos now live outside Boston, where John, now 13, attends a school for the blind, Ferraro said. This past Mother’s Day, John was invited to sing the National Anthem at the beginning of a Boston Red Sox game at Fenway Park.

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