Day 4 – More From The Land Down Under
Over the past weekend, I forced myself to sit down and fill out the stack of overdue papers for my childrens’ summer camps. I had been ignoring the lengthy project because it feels inconsiderate for the camps to demand their completion in the depths of winter.
Not long ago, the children’s activity papers just required a standard physician’s report and injury release form. Today, I’m presented with food papers – new forms that I am pleased to see included in the packet. The forms allow parents to share every potential food sensitivity, reaction symptoms, and treatment recommendation. The paperwork continues with ample space to discuss chronic health and disease issues.
It occurs to me that camps must need to provide these lists because they are finding that the explosion of childhood allergy, sensitivity, and chronic disease is preventing many from attending camp at all. In my son’s case, he will need to carry a separate cookware set to make sure he is not exposed to to gluten by cross contamination. Lest he is “glutened” and experiences temporarily blindness with a severe ocular migraine. He will also need to pack allergen-free power bars for days when gluten is the only option.
WHAT IS WRONG WITH THIS PICTURE? WHY AREN’T MORE PHYSICIANS, PARENTS, TEACHERS, AND DECENTLY INTELLIGENT PEOPLE ASKING WHY?
Perhaps because Monsanto has done such a deceptively brilliant job making sure we stay baffled as to the cause. If only we knew why our children’s biomes are so screwed up and their “leaky guts” so severe that foods of all kinds are causing massive, painful, life-altering inflammatory reactions in their tiny, growing bodies.
Non-coincidentally, I’m once again experiencing my familiar nightmare in which I’m trying to make an emergency call on the yellow breakfast room phone in my childhood home, but can’t push the numbers correctly despite how hard I try. I had that same nightmare as a child, but at the time (mid-80s), it was because we were having bomb drills in elementary school because of the Cold War and all. Ironically, the Russians will comfortably win the long game, as they settle into going fully organic to – well – NOT die of chronic disease, NOT go bankrupt from unsustainably high healthcare costs, and instead grow healthy, disease-free children.
I’ve recently started following Bayer on Twitter, curious as to what they are promoting during the trial. It’s a bit masochistic, really. My questionable sanity aside, I came across this goodie:
Bayer should fact-check – life expectancy is actually going down because of their products. GMOs are not securing our future food supply, and in fact are doing quite the opposite. To answer Bayer’s question, we indeed CAN live better by eliminating Roundup and similar herbicides/pesticides, and sticking to seeds that nature gifted to life.
And that’s why I’m here.
Now on to Day 4 of the trial.
TRIAL DAY 4
The attorneys and Chhabria begin with a bit of housekeeping to better define the trial schedule going forward. The Plaintiff decided that they will not call Oncologist Dr. Nabhan for Phase 1, but will for Phase 2. The remaining two live witnesses for the Plaintiff are Pathologist Dr. Weisenberger and Plaintiff Ed Hardeman.
We will see who the final list of witnesses are for Monsanto next week.
DR. PORTIER CROSS
Dr. Portier still looks remarkably fresh despite the intense glyphosate-science quiz bowl questioning. Even on the video, he projects such a sense of life, humor, and intelligence. I also think they must have some professional lighting going on because everyone looks good – very different from the horror I see of myself when Facetiming.
Attorney Paul Schmidt is conducting the cross-examination on behalf of Monsanto. I haven’t seen Schmidt before the video today, so I do a little research. Schmidt has been highly successful and widely applauded for his work in Pharma litigation. Most concerning, “His wins have been recognized by American Lawyer (Product Liability Litigation Department of the Year and “Covington Lawyers Kill on Cross-Exams in Cymbalta Case.”)
Schmidt launches in to a highly rapid-fire line of questioning. The cross-examination is a bit hard to follow, particularly when the video editing carefully omits any qualifiers on Portier’s answers. The benefit of having a live witness is that the jury will hear considerably more context in the answers. In this video testimony, the jury is effectively left hearing single, selectively edited responses.
During the cross, Monsanto tries different techniques than those used in the Johnson trial in an attempt to impeach Portier.
- While Portier was working at the National Toxicology Program (NTP) in 1992, the NTP published a report on glyphosate. Portier did not work on that paper, but nonetheless Schmidt utilizes it to show what Portier’s own employer NTP thought of glyphosate. Schmidt spends time on the report’s “mechanistic data” study, that showed glyphosate was not mutagenic in salmonella and did not induce micronuclei in mice. The NTP study also concluded that there was no evidence of genetic or reproductive toxicity of glyphosate. Portier reiterates that he did not work on glyphosate in 1992 nor work on the study. I’m sure he said a lot more than that, but the editing cut it out.
- Schmidt presents another paper that Portier co-authored with David Resnik and published in Environmental Health Perspectives in 2005: Pesticide Testing on Human Subjects: Weighing Benefits and Risks. The recommendation that emerges from the paper is that in some types of studies, and with safety measures in place, the ultimate benefits of testing pesticide exposure on humans could outweigh risks. Schmidt points out that the article mentions McDuffie 2001, which Plaintiff has used in their testimony. Portier replies that the article was not looking at the carcinogenicity of any particular pesticide – that was not the purpose of the paper.
- Schmidt and video editing team imply that when IARC called the epidemiology of glyphosate “limited”, it meant insufficient. As we have heard before, the IARC version of the word “limited” is still quite significant in terms of evidence of carcinogenicity.
- Portier signed a contract with the Plaintiff’s lawyers right after the IARC decision. Schmidt makes this very clear, and attempts to make the timing seem suspicious to the jury.
- Schmidt walks through the open letter that Portier sent to EFSA in 2016 disagreeing with their decision to uphold glyphosate as non-carcinogenic In fact, Schmidt says: “Safe to say you disagreed with EFSA and they disagreed with you.”
- To make sure the jury also knows what the EPA believes, Schmidt discusses Portier’s public comments to the EPA on their faulty review process of glyphosate. Portier reiterates that the issue he has with the EPA is the method (or lack thereof) they used in evaluating the glyphosate data. Schmidt asks Portier if he read the EPA report from December 12, 2017, in which the EPA doubles down in its support of the safety of glyphosoate.
- The mouse and rat studies are discussed in such a choppy, confusing way that it is really hard to follow. My biggest takeaways are that 1) there is a chance that the tumor findings are all “false positives,” but Portier says that such a finding would be extremely rare; 2) the rules of statistical significance still seems like an arbitrary limitation on what could be helpful evidence; 3) Monsanto does an excellent job creating an alternative visual exhibit on the incidence of mouse and rat tumors. It makes glyphosate appear to indeed be as safe as water.
- The two discuss the same epidemiology reports that we’ve heard thus far, with the bulk of time spent on the AHS Andreotti paper.
I look around the courtroom, and wow are all of the attorneys exhausted. Between the prep, brief writing, and intensity, they all look like they need a long sleep. Strangely, I feel the same way. Perhaps the doldrom of video testimony is getting to me.
Wisner returns to the podium to rebut Schmidt’s efforts. A sampling:
- Portier explains that he is passionate on the glyphosate topic because he spent his entire career studying and recommending ways in which we evaluate and understand these types of data in a regulatory framework. “They weren’t following the guidelines.” He’s angry that all of his effort is being ignored.
- Wisner challenges the visual aid that Schmidt presented, correcting it to once again reflect the tumors the mice and rat studies show.
- Portier describes a method to work around the limitations of statistical significance. A p-value of .1 is actually considered “Marginally Significant,” but Monsanto claims anything above .05 statistical significance is out of the range of statistical applicability.
One more round of cross and re-direct later, Dr. Portier’s testimony is complete. If I were the jury, my conclusion would be that there is a lot of squabble around the tumors and AHS, but Portier seems so convincingly competent that I’d go with his opinion. Furthermore, anyone can see that when a video is made to be so choppy, and thoughts are clearly cut off, there must be several things that Portier said that Monsanto doesn’t want them to hear.
The jury looks thrilled to see the testimonies of the treating physicians. While not experiencing riveting entertainment, they have become highly engaged, taking many more notes than the first day. I think that as the week progresses, they realize that the details are so dense that every note will be valuable for deliberations.
We first hear from the Hardeman’s family physician. At first, he has a bit of a nervous smile, but settles into the deposition calmly. The details collected are mundane but important – we learn about Hardeman’s Hepatitis C and his schedule of treatment.
Hardeman’s Hepatitis C is going to be a key point of contention, as it is a known risk factor to the development of NHL. Monsanto’s best chance of throwing the jury off the trail of Roundup as the cause of Hardeman’s NHL is his Hep C.
All of Hardeman’s Hep C viral loading tests are were negative between 2006-2015, when he developed the NHL. Hardeman was also diagnosed with cirrohsis of the liver in 2005 as a result of his Hep C. He also suffered from skin cancer in 2005, but I don’t think anyone will contend that there is a relationship between the skin cancer and NHL.
Dr. Richard Turley, ENT, is up next. He’s preppy in his blue checked shirt and bright yellow tie. Turley diagnosed the lymphoma.
Dr. Jeffrey Yee treated Hardeman’s NHL. He expresses that he was concerned about Hardeman’s Hep C because chemo can reactiveate the disease. However, as shown in his medical files, as of March 2006, Hardeman had a negative viral load for Hep C, and was in remission.
In combination, the depositions successfully established that Hardeman had Hep C but all medical evidence indicates that it went into remission by 2006. We’ll see next week how Monsanto works to reopen the door of skepticism.
Two important debates arise today when the jury has been dismissed.
- Plaintiff believes that Monsanto opened the door to allow them to tell the Dr. Parry story, in which Monsanto didn’t like his research conclusions and replaced him with a different “independent” scientist who would agree with their corporate opinions on what the research should say. Plaintiff believes that Monsanto spent an excessive amount of time discussing EFSA’s conclusions, despite the Motion En Limine that sought to limit how much EFSA was discussed during Phase 1. Chhabria agrees to consider permitting the cuts of deposition of Dr. Martens that describe the Parry story, and subsequent briefs may be filed.
- Monsanto shocks Judge Chhabria and Plaintiff in casually announcing that they want their pathologist to present some new information. Last week, Monsanto requested Hardeman’s NHL pathology slides, which puzzled the Plaintiff because the doctors had all testified that no one can tell the cause of NHL. Now, Monsanto argues that their expert will be able to testify that he can determine the likely cause of Hardeman’s NHL based on pathology. The room is stunned – this information is new to everyone, and counters the working shared opinion that pathology cannot determine cause. Apparently, some genetic mutations are shared by both Hep C and NHL, and the Monsanto expert pathologist intends to talk about it based on the pathology slides. Chhabria says he isn’t sure that this opinion was adequately disclosed in the lead up to the trial. Moore says that Monsanto didn’t present this science or opinion during the pre-trial hearings, and it is new information to Plaintiff counsel.
We will see what Chhabria decides to be fair.
Now that I’ve sat with Chhabria for a full week, I have some impressions for those of us who wonder if he is bent towards Monsanto.
The Monsanto attorneys are absolute masters at playing the courtroom game. They have pushed the line recently during trial, but otherwise have made it easy for Chhabria to agree with them. The Plaintiff counsel, on the other hand, has the challenge of proving something controversial. The evidence is on the side of the Plaintiff, and in my opinion Roundup clearly causes cancer, but Monsanto has 40 years of experience in pulling the wool over eyes of governments, regulators, and people in general. The attorneys on the Plaintiff side are incredibly earnest do-gooders who are fighting the corruption best they can while trying to stay within the limits of pre-determined orders of law which, in some cases, prevent them from telling the whole story.
Chhabria is a lot like my brother-in-law who is a law professor, debate champion, and ten years older than me. When 26-year-old me met him for the first time, we sat down at his kitchen table and he asked me to solve a case question in economics. It was rather intimidating because I wondered if he would give me the intellectual boot if I didn’t pass, making future Christmas celebrations quite awkward.
Conversations with my brother-in-law are exactly how I would imagine conversations with Chhabria would be. Both men intellectualize, intellectualize, and then pontificate some more. Chhabria pontificates so much that I’ve seen him tell Plaintiff counsel what their arguments *should* be to help their case – so I am quite thankful for that. Also, the mental exercise is good for brain health – like Lumosity live.
Today, he mentioned that there were several Monsanto objections that he sustained based on the law, but personally wanted to overrule them.
With that, I think Chhabria is a philosophy-loving academic. I don’t think he’s bent, but he certainly could be exhausting to be married to.
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