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The question in the courtroom has shifted from whether the fungicide damaged plants to whether DuPont concealed evidence. Most likely, no one will ever know what really happened in the spring of 1991. After DuPont pulled its Benlate DF fungicide from the market suspecting contamination, the company received a flood of claims of plant damage. But whatever killed the plants of hundreds of growers, no matter what caused a boy to be born with underdeveloped eyes, the fungicide Benlate DF has cost DuPont close to $1 billion and has tangled the company in legal arguments. Since November 1992, when DuPont stopped paying out claims to growers voluntarily, Benlate DF has become a legal quagmire. DuPont has won five of the multi-million-dollar lawsuits and lost 10. Hundreds of crop damage law suits—and a handful of health damage claims—have been settled out of court or dismissed. DuPont is now awaiting judgment on its appeal in June of a 1995 $115 million court fine for discovery abuse. Also last month, a jury awarded $4 million to the family of a six-year-old boy who was born blind, a birth defect his mother blames on in utero exposure to Benlate. The family’s attorney says more than 30 potential cases world wide in which children were born with underdeveloped eyes—micropthalmia—or without eyes—anopthalmia— awaited that decision. And all of Du Pont7 s crop damage trial losses have been appealed. Benlate DF, the “dry flowable” version of DuPont’s benomyl-based fungicide, was introduced in 1987. The granular fungicide was intended as a more environmentally sound product than the decades-old “wettable powder” version. It produces less dust and hence, less exposure for workers, mixers, and applicators. Problems struck first in 1989. DuPont contracted with Terra Industries to mix the DF formula at Terra’s facilities. After farmers complained of plant dam age, atrazine, a potent herbicide that Terra had formulated at the same plant, was found in some batches. Terra paid out at least $60 million in dam age claims to growers at the time. Two years later, DuPont found at razine in unshipped boxes of Benlate during a quality inspection. Although the company said the tainted batch did not reach growers, it issued a total re call. Then claims began to pour in. Growers reported that plants were stunted, misshapen, yellowed, and dead. At the time, DuPont said the only common denominator appeared to be use of Benlate DF. About 1,600 growers filed claims with DuPont, says a DuPont spokesman; most were in Florida, most grew ornamental plants. After extensive research—and claim payments that totaled $500 million— DuPont Chairman Edgar S. Woolard Jr. declared in November 1992 that its scientists found that Benlate DF could not have caused the plant damage and that all voluntary payments would stop. Then the lawsuits began. A total of about 500 plaintiffs filed hundreds of suits against DuPont for crop damage. The first case—Bush Ranch—brought in 1993 by four growers, was settled on the second day of jury deliberations. DuPont declared victory, agreeing to pay $4.25 million to the plaintiffs, less than 1% of what they sought. Other crop damage suits followed with mixed results: another settlement, five wins for DuPont, 10 wins for growers. In June, a Florida jury decided against DuPont in the first suit to come to trial that alleged health damages. John Castillo, a six-year old boy, was born blind with micropthalmia. During her pregnancy, the boy’s mother had taken frequent walks along the edge of a farm that used the fungicide. At one time, says the family’s attorney, James L. Ferraro, Castillo was sprayed by a “misty cloud” that covered more than 50% of her body. She first linked her son’s birth defect to the nearby farm in 1993, when a television story reported a high number of similarly afflicted children in British farming areas where Benlate had been used. Ferraro says studies found that pregnant rats exposed to benomyl, the active ingredient in Benlate, gave birth to offspring that had no eyes. His expert witness, Charles V. Howard, a fetal and infant toxicologist at the University of Liverpool, in England, linked those studies and other tests of benomyl to John’s birth defects. Benlate at a glance. CONH(CH2)3CH3 N^/NHCOOCHg Ν Benomyl Common name: Benomyl Chemical name: Methyl Hbutylcar- bamoyl)-2-benzimidazolecarbamate Pests controlled: Phytopathogenic fungi Predominant uses: Rice, soybeans, wheat, tomatoes, citrus fruits Mode of action: Breaks down rapidly in soil and water to active com ponentmethyl 2-benzimidazolecarbamate, which attaches to specific protein-making chromosomal spindles during cell division to halt di vision, causing fungal cell death. 20 JULY 29, 1996 C&EN BUSINESS
But despite testimony from Robert L. Brent, an expert in birth defects and professor and former chairman of the pediatrics department at Jefferson Medical College of Thomas Jefferson University, Philadelphia, that the Ben- late exposure could not have caused the birth defect—that genetic abnormality was a more likely cause—the jury found in favor of the family. DuPont says the verdict was “a blow to science and to our jury system/’ The case “is another example of a useful product unfairly victimized by junk science,” wrote Diana Culp Bork, president of the newly created Center for Civil Justice Studies in Arlington, Va., in a Wall Street Journal op-ed article. The Environmental Protection Agency, which oversees pesticide registration, also looked into health effects of Benlate, says Kathryn S. Bouvé, who coordinates EPA’s response to information on adverse effects of pesticides. “Anopthalmia is a known effect at high doses in test animals,” says Bouvé. Three years ago, she explains, EPA examined the human birth defects registry maintained by the Centers for Dis- ease Control & Prevention. “We didn’t see any correlations. We didn’t see a geographical correlation, nor did we see a higher incidence correlated with Benlate’s registration or its use.” Bouvé says a study of flower growers in South America who used numerous chemicals including benomyl showed no incidence of anopthalmia among their children. “The [Castillo family’s] attorney claims that there are a lot more cases,” she says. “We’ve asked for more de- tails about those cases. We’ve also asked for more information on the Castillo case.” Other lawsuits have been filed alleging health damage to growers and neighbors. Some of those, including a suit by a group of farmers in Puerto Rico, have been dismissed. Symptoms that growers reported include head- aches, stiff or swollen joints, shortness of breath, fatigue, rashes, and nausea. When the first allegations of health effects were made, says Bouvé, Honda’s Department of Health & Rehabilitative Services went to the National Institute for Occupational Safety & Health (NIOSH), which conducted health hazard evaluations at nurseries in Horida from August through September 1993. A metabolite of benomyl was found Benlate DF brought DuPont a litany of troubles 1968—DuPont patents its Benlate fungicide. 1987—Benlate DF introduced as alter- native to wettable formula. Spring 1989—Atrazine-contaminated Benlate DF recalled. March 1991—Atrazine found again, second recall. June 1991—DuPont withdraws Benlate DF registration. Spring 1992—Growers attribute health problems to Benlate. November 1992—DuPont says its re- search exonerates Benlate, halts settlements that totaled $500 million. July-August 1993—First crop dam- age suit—Bush Ranch—goes to trial, is settled during jury deliberations. August 1995—Judge fines DuPont $115 million for Alta Analytical Laboratories discovery abuse, prompts grand jury investigation. November 1995—ACS files friend- of-the-court brief regarding scientific evidence. June 1996—First health-related trial, $4 million awarded to boy born with underdeveloped eyes. —DuPont fined $20,000 for Costa Rica evidence delay. —Appeal heard on $115 million fine; judgment pending. in blood samples from a group of ex- posed greenhouse workers, but the number of workers who participated in the study was very small. “We can prove that exposure occurred, but can we tell if these people have more health problems than unexposed people?” asks Bouvé. “[NIOSH] just didn’t have a big enough cohort to go for- ward. So that’s where it stopped.” Research into health effects is continuing as Benlate is reregistered with EPA, a process that is required for all pesticides that were originally registered before 1974. “I don’t know that reregistration is turning up anything startling/’says Bouvé. Although the reregistration research is dictated by EPA, it is performed by the registrant, in this case DuPont. Du- Pont also performed most of the re- search used in plant damage cases. Al- though the company supplied millions of documents to plaintiffs’ attorneys, it argued against releasing certain others and was slapped with millions of dollars in fines for withholding evidence. After claims came in from the farmers, DuPont brought the full weight of its research operations to bear on the problem. Hundreds of researchers looked for clues to the cause of the damage. DuPont’s research effort “was a very thorough and genuine attempt” says Peter R. Day, director of the Center for Agricultural Molecular Biology at Rutgers University in New Jersey. Day, a plant geneticist, consulted for DuPont on its original investigation with a group of outside scientists from the fields of herbicide biochemistry, cell biology, plant physiology, and genetics. “Our purpose was to try and guess what might be going on, to suggest experiments and approaches, and to review with the DuPont team the results of their experiments,” he says. DuPont followed up every recommendation, Day says. Company re- searchers looked for changes in micro- flora, they looked at the difference in application procedures between the wettable powder and the dry flowable versions. DuPont says it never found atrazine in the Benlate that growers had used. Sulfonylureas, potent herbicides that were made at the same plant as Ben- late, were not found either. DuPont did find contamination by two other fungicides, clorothalonil and flusilazole, and by n-butyl isocyanate—a breakdown product of benomyl. But the company said, none of those could explain the plant injuries or the health claims. “They could never repeat the dam- age,” Day explains. “They took us to a nursery near Orlando where we saw damage and abnormal plants, but equally in the treated and the untreated controls. We reached the only conclusion that we could—that there was no explanation for the damage.” Out of the millions of pages of re- search documents DuPont supplied to the many plaintiffs’ attorneys, one page of raw data from Alta Analytical Laboratories, an independent lab in El Dora- do Hills, Calif., became crucial in the courtroom. Although it had not been released to the plaintiffs in the Bush Ranch case, the page came to light in a 1994 Hawaii crop damage trial. Armed with the unsealed information, the Bush Ranch lawyers hauled DuPont back into court. JULY 29, 1996 C&EN 21
BUSINESS The raw data showed that the Alta scientists had found sulfonylurea in the growers’ soil above 25 ppt. Plaintiffs’ attorneys argued that notes taken by one of the researchers appeared to show that Alta upped the threshold level to 50 ppt after a phone conversation with DuPont attorneys, thus leading to a finding of no sulfonylureas in the final report. Alta’s report was used by DuPont’s expert witness to deter- mine that sulfonylureas were not present in the growers’ soil. “I wouldn’t take on DuPont on the science,” says William Usher Nor- wood, senior partner for the firm Pope, McGlamry, Kilpatrick & Morrison, plaintiffs’ attorneys in the Bush Ranch case. “But it simply was not the issue in this case. We [were arguing] their interpretation of the science.” “No DuPont employees nor any of the company’s attorneys ever concealed or withheld any data illegally or inappropriately,” Woolard said in a statement issued in August 1995. The company was required to hand over documents that the expert witness used, a DuPont spokesman explains, and the raw data were unconfirmed and were not used by the expert witness. Unconvinced, Judge J. Robert Elliott of the U.S. District Court for the Middle District of Georgia fined DuPont $115 million for allegedly concealing test data and misrepresenting test results in the original case. “DuPont, in light of the hundreds of claims and lawsuits which had arisen out of the use of its product Benlate 50 DF, decided that it would not reveal the potentially damaging evidence generated by the Alta tests,” Elliott wrote in his order. “DuPont consciously and deliberately withheld the Alta data and documents from the plaintiffs and the court, and perhaps even from the witness. “Put in layperson’s terms, DuPont cheated. And it cheated consciously, deliberately, and with purpose. Du- Pont has committed a fraud on this court, and this court concludes that DuPont should be, indeed must be, severely sanctioned if the integrity of the court system is to be preserved.” In DuPont’s appeal of Elliott’s decision, the American Chemical Society filed a friend-of-the-court brief, arguing that only confirmed results, not raw data, were acceptable in a court of law (C&EN, Dec. 18,1995, page 7). The ACS brief was not admitted. “It wasn’t relevant to the argument,” says Norwood. Other documents have also been used by plaintiffs’ lawyers to suggest that DuPont may have ignored adverse data. Lawyers in a June case in Miami sought expense reports that they hoped would prove that DuPont had attempt- ed a field test of Benlate in Costa Rica and that it ended with diseased and dead plants. Amy Steele Dormer, circuit judge for Dade County, Fla., struck down Du- Pont’s pleadings based on its failure to hand over the documents on time. Donner also heard the birth defects case. DuPont argued that no field trials were conducted in Costa Rica, but that the company merely used the Costa Rica farm to grow plants that were to have been used in tests in Florida. There were no controls, no notes, no testing, no analysis, DuPont says. The plaintiffs’ attorneys argued that DuPont had used varying levels of Benlate on the plants in Costa Rica and the plants had died. They argued that ft compositiq extent of j{ moistujj 0 so ci amines UOP, the industry leader in near infrared analyzers, fiber optic cable, sampling probes, software and support. We offer complete solutions for laboratory and process MR applications. yop GUIDED WAVE Process Analytical Systems UOP, a Union Carbide and AlliedSignal owned company 5190 Golden Foothill Parkway El Dorado Hills, CA 95762 916.939.4300 916.939.4307 (fax) 22 JULY 29,1996 C&EN CIRCLE 4 ON READER SERVICE CARD
DuPont’s attorneys used semantics to delay the release of documents. Judge Donner seemed to agree that use of Benlate could constitute a test. “Are you saying to me that because it wasn’t rigorous or because it wasn’t a textbook field trial that it didn’t take place, or are you saying to me we can’t use these terms and, if they did some- thing, it wasn’t really a field trial even if they used Benlate?” she asked, ac- cording to the court transcripts. And when the documents were finally turned over, the plaintiffs’ lawyer says, they were unreadable. “DuPont gives to the plaintiffs documents that no one, not even with a magnifying glass, could possibly read, and the court is aware that DuPont has the ability to provide clear and concise copies,” Donner said in the order. “It is apparent to this court that Du- Pont and its lawyers have participated and continue to participate in utter dis- regard for orders of court and for the rules of evidence and ethics, that this is a pattern, it is willful, it is deliberate, and it is intended to thwart orders of this court and discovery.” Donner fined DuPont $20,000 for the two-day delay in delivering the documents. She struck DuPont’s pleadings, finding for the plaintiffs. DuPont is willing to talk about Ben- late, but those who could provide other sides of the issues don’t appear to be as forthcoming. The ACS Division of Agrochemicals tried to organize a symposium on the chemistry of Benlate and issues relating to its use for an ACS national meeting. DuPont offered to provide two scientists, says F. Mark Lee of the California Department of Food & Agriculture, who worked on developing the symposium. “We wanted to get the facts on what happened, how it can be prevented. We wanted to consider follow-up chemistry and analysis—can something else be done?— and to simply learn what happened.” Lee invited scientists from industry, academia, government, and private parties. But “nobody’s talking,” Lee says. “We’re not able to do the symposium. The division is very much interested, but we could not have the appropriate individuals.” It is not DuPont scientists, he explains, but “the other side,” some mired in litigation, who are reluctant to participate. Meanwhile, DuPont, which long ago removed Benlate DF from its product line and ornamental uses from the Ben- late label, continues to sell the wettable powder version of Benlate. The company declines to release sales figures. The DuPont spokesman who handles Benlate issues part time says the scientists have nothing more to add, that the story has become a legal one. “I don’t really think that we’re dealing with science,” he says. The Castillo case “clearly wasn’t going to be what the science would or wouldn’t show. It’s passion. It’s law. It’s legal maneuvering.” The spokeswoman who had worked full time and exclusively on Benlate for years left DuPont in March to become a public affairs consultant specializing in strategic and litigation communication. “Every once in a while,” says EPA’s Bouvé, Ί contact the folks down in Florida at the agriculture department and say, Well, are you getting any Benlate incidents? Has it happened again?’ and the answer is no. Whatever happened in 1991 hasn’t happened since.” Π CIRCLE 10 ON READER SERVICE CARD Its more than chemistry Solutions that work lor our customers. People who provide service unlike any other in the industry. Making quality our highest priority. Bayer is a leading manufacturer and supplier of intermediates for just these reasons. Our worldwide presence, advanced R&D and, most of all, our people ensure that when you deal with Bayer, you’re dealing with a world leader. You flhvfly.s know what you’re getting from Bayer, because we know… It’s more than chemistry. Bayer φ BAYER CORPORATION, FIBERS, ORGANICS AND RUBBER DIVISION 100 BAYER ROAD, PITTSBURGH, PA 15205 · PHONE: 800 -662 -2927 EXT. 2858 BUSINESS DuPont Faces Recent Benlate Losses On Health And Plant Damage Claims