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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY MATTHEW BOWEN, et al., Plaintiffs, v. E. I. DU PONT DE NEMOURS AND COMPANY, INC., Defendant. ) ) ) ) ) ) ) ) ) )

C.A. No. 97C-06-194 (CHT)

Opinion Regarding Defendant's Motions to Exclude Plaintiffs' Expert Witnesses and for Summary Judgment Submitted: May 21, 2004 Resubmitted: April 28, 2005 Order Entered: May 9, 2005 Opinion Filed: June 23, 2005 Corrected: August 5, 2005 (Footnote Numbering) Robert Jacobs, Esquire, Thomas C. Crumplar, Esquire, JACOBS & CRUMPLAR, P.A., 2 East 7th Street, Wilmington, DE 19801 and James L. Ferraro, Esquire, Lynn M. Holtzman, Esquire, FERRARO & ASSOCIATES, 4000 Ponce de Leon Boulevard, Suite 700, Miami, FL 33131, Attorneys for the Plaintiffs. James W. Semple, Esquire, MORRIS JAMES HITCHENS & WILLIAMS, 222 Delaware Avenue, P.O. Box 2306, Wilmington, DE 19899-2306 and Barry M. Parsons, Esquire, William L. Anderson, Esquire, Michael L. Martinez, Esquire, CROWELL & MORING, LLP, 1001 Pennsylvania Avenue, N.W., Washington, D.C. 20004-2595 and David B. Thomas, Esquire, ALLEN GUTHRIE MCHUGH & THOMAS, PLLC, 500 Lee Street East, Suite 800, Charleston, WV 25301, Attorneys for the Defendant. TOLIVER, JUDGE

STATEMENT OF FACTS AND NATURE OF THE PROCEEDINGS

Factual Background As noted in prior proceedings, the plaintiffs are eight minor children and their parents who have alleged that the children suffered injuries manifested at birth as a result of the exposure of the children's mothers to an agricultural product sold under the trade name of Benlate. Benlate was manufactured by the defendant, More specifically, the plaintiffs

the DuPont Company.

contend that the mothers of the children were dermally exposed to Benlate during the early stages of their pregnancies. Once deposited, the Benlate was alleged

to have passed thru the skin to the developing fetus via the placenta where it acted to retard fetal growth and cell development. The product, which the

plaintiffs allege is a human teratogen,1 was being used as directed at the time of the exposure. The exposure and births in question are alleged to

A teratogen is defined as "a drug or other agent that causes abnormal prenatal development." PDR Medical Dictionary, at 1796 (Lippencott, Williams and Wilkins, 2nd Ed. 2000).

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have taken place between 1984 and 1995.2

All but two of

the mothers were so exposed in a non-commercial setting while spraying plants or trees during gardening or were in the presence of someone who was engaged in such spraying. The remaining two were exposed during the The injuries the children

course of their employment.3

suffered which the plaintiffs attribute to Benlate include anophthalmia and microphthalmia4 as well as other forms of arrested development, physical, emotional and intellectual. Of the eight children, three were from Scotland, (Brown, Copeland and Johnstone), three were from

The dates of birth are as follows: Emily Bowen, August 9, 1994; Darren Griffin, November 23, 1995; Phillip Brown, February 15, 1984; Khalid Memom, June 24, 1985; Gary Copland, June 6, 1992; Blake Ison, November 13, 1993 and Jesse Hanham, November 10, 1990. The location of the spraying, inside versus outside, and who was spraying the Benlate mixture as well as the number of times the exposure took place and the conditions existing at the time, varied from mother to mother. For example, Darren Griffin's mother was exposed to Benlate on one occasion while her father-in-law was spraying trees and/or shrubbery and she was standing approximately fifteen feet away with her husband. Emily Bowen's mother, however, sprayed the plants in the garden in their residence herself on several occasions. She was also present at times when Emily Bowen's father sprayed the same plants. Ison and Hanham were the mothers who were alleged to have been exposed to Benlate while engaged in occupations away from their homes. Children afflicted with anophthalmia are born with no eyes and those suffering from microphthalmia are born with very small eyes. Page 2 of 48
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England and Wales (Bowen, Griffin and Memon) and two originated from New Zealand (Ison and Hanham). Two

separate lawsuits were filed on June 24, 1997 (Civil Action Nos. 97C-06-193 and 97C-06-194) by the Bowens, Griffins, Isons and Hanhams. On July 15, 1997, a third

suit was filed by the Browns, Copelands, Johnstones and Memons (Civil Action No. 97C-07-113). The defendant denies that Benlate is a human teratogen or that it otherwise was responsible for the problems experienced by the plaintiffs. Those

problems, the defendant contends, were caused by factors independent of the defendant and Benlate. addition, the defendant affirmatively raised other defenses in response to the plaintiffs' claims of liability. Benlate is described as a fungicide developed by the defendant primarily for commercial agricultural use and is designed to prevent and cure fungal infections in plants and crops. The defendant first placed the Although it In

product on the market for sale in 1970.

was only sold commercially in the United States, the
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product was available for purchase for home use outside the United States, and in particular, in the United Kingdom and New Zealand where the exposures complained about herein took place. The sale of Benlate was

halted and it was withdrawn from all markets in 1995.

Relevant Procedural History A. Pre-Trial Motions

The defendant moved to dismiss the litigation on grounds of forum non conveniens on August 18, 1997. This Court granted the defendant's motion on August 28, 1998. The plaintiffs appealed and the Delaware Supreme On remand, the Court

Court reversed on June 14, 1999.

directed that the prosecution of the matter continue in this jurisdiction. On July 24, 2001, the defendant again moved to dismiss the cases filed by the plaintiffs, this time on statute of limitation grounds. The matter was briefed On April 25,

and argument held on March 28, 2002.

2002, this Court ruled that six of the eight claims did run afoul of 10 Del. C.

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