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DuPont Responsible for Birth Defects 

A US court has awarded damages to John Castillo, who was born in June 1990 with no discernable eyes. The chemical company DuPont, who markets the product, was held responsible. Similar cases have occurred in heavily sprayed areas in the UK. Alan Care provides the background. 

In 1993, the Observer, a UK national newspaper, published the first in a series of articles on children being born without eyes or with related syndromes1. The largest group of nine children was born over 12 years in a 40-mile radius in North Lincolnshire, an intensively farmed area.

The Observer suggested a possible link between the exposure of mothers during pregnancy to the pesticide Benlate (active ingredient benomyl) manufactured by DuPont and the development of microphthalmia and anophthalmia, conditions where children are born either with poorly developed eyes or without eyes. The Observer reported a 1991 Californian research study where pregnant rats given benomyl gave birth to offspring with no eyes. The eyes in the foetus develop during the early stages of pregnancy, ‘the window of vulnerability’, unless a toxic or other interruption takes place (known as an ‘insult’)2.

In January 1993, the Observer arranged a meeting for parents of affected children which led to the foundation of a charitable self-help group known as the Micro and Anophthalmic Children’s Society (MACS)3

DuPont responded to press coverage by stating that4: ‘Any substance, whether naturally occurring or manufactured, can produce adverse effects in laboratory animals if administered at high enough rates. The British Medical Journal has stated that experiments on animals have shown that X-rays, anoxia and many chemicals can cause anophthalmia or microphthalmia. Unlike many potentially harmful substances to which we are all exposed everyday, pesticides are subjected to detailed tests to establish the dose at which such effects occur. This enables the government registration authority to evaluate possible risks from their use. Maximum use levels can then be set to ensure a wide safety margin. The safety level for benomyl could never be reached through accidental exposure to the chemical, spray mist or treated fruit and vegetables. The Ministry of Agriculture have stated that, in the light of the wide margin of safety that has been set for benomyl, it is difficult to see how the defects could be linked to benomyl exposure … DuPont will of course provide any help we can to any independent investigation into possible external links with this tragic condition. However on the basis of over 20 years of research with the product we are confident that benomyl is not involved.’ 

Benomyl concerns mount
Benomyl is a systemic fungicide which is used pre-harvest and post-harvest as a dip or dust to combat a wide range of fungal diseases in arable and vegetable crops. Adverse effects such as eye birth defects occur after exposing experimental animals to high doses of pesticide. Two questions arise: is there a safe level of exposure, and is the timing of the exposure during pregnancy critical5

In 1997, DuPont funded a scientific study by an independent laboratory in Yorkshire. The internal report, details of which emerged in 20026, indicated that in rat studies a ‘high’ proportion of benomyl was drawn to the eyes. The report showed that after two hours, a third of the benomyl was concentrated in the eyes, rising to two-thirds after 24 hours. After 10 days, 80% of the benomyl was pooled around the eyes. 

US legal victory
On a hot day in 1989 Mrs Castillo was walking in the country with her small daughter. She was drenched by a cloud of spray drift from a passing farm tractor. At the time she was unaware that she was pregnant, or that the spray may be hazardous. James Ferraro, a lawyer from Miami with experience of claims for damages arising from chemical exposure, investigated the case. Ferraro had taken on the claims of the UK children, but legal aid funding had been withdrawn by the Legal Aid Board following written representations by DuPont’s London based lawyers who stated there was no case to answer.

In June 1996, a jury in the Castillo case awarded damages of $4 million against the defendants, DuPont and Pine Island Farms. This verdict was subsequently over-ruled by an Appeal Court. The original trial verdict was reinstated and upheld by the final Court of Appeal in Florida, the Supreme Court, in July 20037, after considering the case in depth and handing down a 60-page judgment. DuPont was found 99.5 percent responsible and Pine Island Farms 0.5 percent responsible and the damages had to be paid proportionately. It is understood that DuPont has now paid the damages with substantial interest. 

Judgment links exposure
The evidence of University of Liverpool based toxicologist Dr C V Howard was influential in establishing that benomyl exposure during pregnancy had caused John Castillo’s eye condition. The Court’s judgment states:

The Castillos’ expert’s methodology for reaching his opinion that benomyl is a human teratogen at 20 ppb, involved the following considerations:

1. animal studies, including DuPont’s own rat studies, which showed that Benlate is teratogenic and that it specifically causes microphthalmia and anophthalmia

2. in vitro tests performed by DuPont, Dr. Van Velzen, and Dr. Howard, which showed the levels at which Benlate can impair neurite growth and functioning and induce cell death – either of which could impair or prevent development of the eyes

3. clinical epidemiological studies are not available because Benlate is a toxic chemical and thus not suitable for human experiment

4. geneticists had conducted every conceivable genetic test and could find no known genetic cause of John Castillo’s microphthalmia

5. there was no evidence of any other environmental cause.

More cases pending
Claims for damages for personal injuries have been filed in the United States on behalf of a number of British families. The first case to be heard at a preliminary hearing in 2001 was that of Andrew Bourne in the US Court, Southern District of West Virginia, Charleston, before a single judge, Judge Copenhaver. The Judge supported a DuPont motion to strike the expert causation testimony of Drs Howard and Tackett, on the grounds of lack of attention to epidemiology. This case decision is now subject to an appeal. The Bournes’ legal team, led by James Ferraro, believe their case will be helped by the 1997 study carried out for DuPont which reveals how the eyes act as a powerful ‘magnet’ to attract benomyl and explains how the chemical destroys the eyes of the foetus (see above). 

Further cases have been lodged with the Delaware Court on behalf of other British parents and parents of children from New Zealand. A decision in the preliminary hearing will be handed down by the Delaware Court shortly.

Benomyl withdrawn on ‘economic’ grounds
Although DuPont has been involved in litigation over Benlate for several years, previous cases involved claims that the fungicide caused damage to crops and soil. In April 2001 DuPont announced it would discontinue the manufacture of benomyl and phase out sales globally after 33 years on the market. The company has faced a vast number of claims for damage to crops and soil, and announced that ‘it is no longer willing to bear the high and continuing costs of defending the product in the US legal system.’8 

The decision of the Florida Supreme Court will be highly influential and will have bearing upon any other decisions in the US courts involving Benlate and related exposure cases. The UK regulatory authorities and particularly the Advisory Committee on Pesticides (ACP) may well wish to revisit benomyl. Of particular interest is the Court’s ruling on the importance of the evidence of a toxico-pathologist. The next US Delaware court decisions affecting UK parent’s claims are awaited with much interest.

1. Paduano M, McGhie J, Boulton A, ‘Mystery of Babies with no eyes’, Observer, 17 January 1993.
2. Hoogenboom et al, Effects on the fetal rat eye of maternal benomyl exposure and protein malnutrition, Current Eye Research, 10.601-12, 1991.
4. DuPont press release, Alleged Benomyl Link With Anophthalmia, 11 February 1993.
5. Benomyl fact sheet, Pesticides News 35, March 1997.
6. The unpublished study was seen by the Guardian newspaper, who reported on the details: Evans R, Hencke D, ‘Boost for parents’ court fight over son born without eyes’, Guardian, 25 March 2002. 
7. John Castillo v. EI DuPont De Nemours & co. INC et al, No.SC00-490 p1-60, 10 July 2003
8. Borel JC, DuPont Crop Protection Products, 19 April 2001,

Alan Care is a litigation executive with Thomson Snell & Passmore, Tunbridge Wells representing UK clients bringing claims in the US courts with Ferraro & Associates of Miami. He specialises in personal injury claims involving chemical poisoning and is Co-ordinator of the APIL (Association of Personal Injury Lawyers) Environment Special Interest Group.



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