I should have known. The day started with my car suddenly shutting off in the middle of a busy street as I drove my daughter to school. When I dropped my son off at the train, I saw and videoed a mid-twenties white man in goth-ish clothes with a big black backpack and a stick with which he pantomimed firing a gun into the crowd. Yikes. After a call to the police, I thought “well problems strike in threes.” I hope that the hearing is not #3.
Well…it was. I’m actually so crestfallen right now that writing is somewhat torturous.
SETTING THE STAGE
Last Friday, Judge Bolanos filed an order for Supplemental Briefing, in which she attached an article about Brent Wisner from the legal publication Daily Journal. Winning Wisner was named a Top 100 Lawyer in California. The article discusses Wisner’s achievements and controversies, including (very legally) releasing the Monsanto Papers and winning the Johnson trial. In the article, Wisner says: “Our view is that our job is not just to win the case, but also to see if we can improve the world.” Apparently, Monsanto thinks it unlawful that Wisner enthusiastically called upon the jury to “make history” or “change the world.”
In her order, Bolanos states:
The parties are ordered to review the attached article from the Daily Journal, dated September 18, 2018, and provide supplemental regarding whether any of Mr. Brent Wisner’s representations and statements in the article are relevant to the proceedings pending before this court.
Alright, I think we can all conclude that Bolanos doesn’t think too positively of Wisner. He is colorful, unafraid and boisterous, which is imperative and critical in the fight against Monsanto. We need a Winning Wisner on our side.
TODAY
As I approach the courtroom where I spent my entire summer, I’m super pumped to see several jurors (whom I can now talk to)! They have shown up for this hearing, concerned that their hard, lengthy work is going to be undone. They really are an intelligent, lovely bunch of people. It’s funny to hear Monsanto argue that the jury was so naively swayed by Wisner’s exuberance, because this group is so incredibly level-headed and not the types to be easily persuaded by dramatics or antics.
The room becomes standing room only, with overflow bleeding into the jury box. Media is around, but it’s not quite the madhouse that it was during the summer. I see a man holding the book Thimerosal by Robert Kennedy, likely looking for an autograph. He will be disappointed that Kennedy is not in the courtroom today.
It’s five minutes before the hearing starts, and the room is absolutely silent. The TEN jurors in attendance had been chatty, but now the energy from the shared nerves in the room is palpable and we are all mute. I must type softly.
I had been waiting for Wisner to enter, but he is not present. Instead, attorney Mike Miller stands in front next to Delightful Dickens. Surrounding the Plaintiff table is a bevy of lawyers – Michael Baum, Pedram Esfandiary, and Mark Burton. Mike Miller was supposed to be the lead on this case, but then suffered a life-threatening kite-boarding accident just before the trial. Wisner and Baum Hedlund were asked to step in.
So, where is Wisner? A juror told me that Wisner is traveling in Iceland. He may be. Given Judge Bolanos’s clear dislike for him, I think it was probably a wisely timed trip on behalf of the verdict. I’m so confused, however, why Mike Miller would possibly be here to argue on behalf of the Plaintiff when he (quite tragically) wasn’t present a single day during the trial. It feels like a recipe for error. And he’s up against the ultimate professional orator, Mr. Lombardi.
I now realize why the Plaintiff attorneys are looking rather sullen. Judge Bolanos filed a tentative ruling today, stating that: “The Defendant’s Motion for a JNOV with regard to punitive damages is granted, and in the alternative, Defendant’s Motion for New Trial on punitive damages is granted.” She continues that: “The Court will hear arguments on Defendant’s Motion for JNOV and New Trial with regard to liability.”
Her reasoning for the tentative ruling is a script that we have all seen Monsanto use for years. It makes me so disgusted that it is challenging for me to keep quiet in the courtroom. Her ruling is so pro-Monsanto that it is almost as if they ghostwrote it (like they did so many pro-Monsanto “scientific” studies). Just some sampling:
“Apart from the IARC evaluation, all of the worldwide regulators continue to find that glyphosate-based herbicides are safe and not carcinogenic, including US EPA, EFSA, ECHA, Australia, New Zealand, and the German BfR authority.”
“Dr. Farmer and Dr. Goldstein both testified that they believed there was no causal link between Monsanto’s GBH products and Plaintiff’s cancer.”
“Plaintiff claims that Monsanto refused to conduct the studies recommended by Dr. Parry in the 1990s. The records shows [sic] Monsanto ultimately conducted all but one of those tests and publicly released the results.”
Readers, these are absolutely words from the Monsanto playbook.
As I see this tentative ruling, I share it with a juror near me. He said, “Then why did we sit here for weeks?”
HERE WE GO
Bolanos enters the courtroom, and I rise though I don’t feel like doing so. At the end of her filed tentative ruling, she posed 5 questions to both sides to be discussed today:
- Can the Court exclude Dr. Nabhan’s testimony on the basis that his differential diagnosis is legally insufficient to establish causation?
- Both parties agree that the epidemiological evidence is insufficient to sustain a finding of liability. Can the Court grant a new trial based on the lack of epidemiological evidence to support the verdict?
- Is the exclusion of the EPA reports sufficiently prejudicial to warrant a new trial? If so, how?
- Were Mr. Wisner’s comments during closing argument regarding “changing the world,” comparisons to the tobacco industry, and champagne in the boardroom at Monsanto, sufficiently prejudicial to warrant a new trial?
- Is the $33 million award for future non-economic damages based on Plaintiff’s argument to award $1 million for each year of lost life expectancy? If so, is this award improper as a matter of law?
MONSANTO
Lombardi is given the floor first, because the Defendants filed the motions for JNOV and New Trial. He proceeds in the order of the questions. Note that throughout Lombardi’s argument, Bolanos has a pleasant, neutral expression on her face.
Question 1
In an unsurprisingly persuasive monologue, Lombardi discusses the outrageousness of Dr. Nabhan omitting a highly likely “idiopathic” cause of Johnson’s MF. He gives supporting arguments from case law. He says the omission is wrong as a matter of law. Lombardi continues that because the world experts in MF at Stanford say that there is no known cause of MF, ignoring the “idiopathic” possibility is like not considering the elephant in the room. (GG SIDEBAR – Stanford specialist physicians also told me that I’d need to be on a bunch of medication for my nerve and stomach issues because my discomfort was “idiopathic.” I cured myself with clean food. Stop with the be-all, end-all of Stanford physicians.)
During Nabhan’s testimony, he told Lombardi upon cross examination that consideration of idiopathic causes was implied. Because of the omission, Lombardi concludes that Nabhan’s evaluation was “fatally flawed” and therefore is grounds to exclude his testimony entirely.
Question 2
Lombardi says that both parties agree that the epidemiological evidence is insufficient to establish causation. Further, that Dr. Neugut, Plaintiff’s expert epidemiologist, concluded that there is only a 1.3-1.5 risk ratio range in those studies supporting the Plaintiff position, not the 2.0 necessary to meet the burden of proof.
In concluding that the epidemiology was insufficient, Lombardi argues that the animal data can’t compensate for the lacking epidemiology. Lombardi throws major shade on Dr. Portier, downplaying his professional and educational pedigree, and says that redoing a statistical analysis is “something we don’t do in science.” To do it afterwards is cherrypicking. Furthermore, Lombardi claims that Dr. Portier did not connect the animal or cell studies to a human being, and couldn’t even get the same result between mice and rats.
Question 3
Lombardi stresses the importance of the EPA to the case as a counter to IARC. He says that Plaintiff claimed IARC to be “the greatest thing ever in science,” and that IARC should not dictate the result in this case. Against Monsanto’s wishes, a 2017 EPA document was not admitted into evidence. Lombardi is upset that Wisner mischaracterized the omission of the 2017 EPA document as something that Monsanto wanted excluded because there was something to hide. In fact, Lombardi argues, it was Plaintiff that got the 2017 document excluded from evidence.
Bolanos says that she does recall Wisner’s misrepresentation on the EPA report “quite distinctly,” and asks if that is “sufficiently prejudicial to warrant a new trial?”
Lombardi responds with quotes from Wisner’s closing arguments. Calls the whole thing: “Classic new trial material.”
Question 4
Lombardi claims that during closing, Wisner should not have spoken about being part of history and changing the world, “an approach he has confirmed to the press.” He says that the article in the Daily Journal is important because it shows that the Plaintiff attorneys are congratulating themselves on not just the case of Mr. Johnson, but also the impact on the world.
Lombardi proposes that the language has an effect on punitive damages, because it sent a message that jurors can look beyond the courtroom and do things that society would like to hear about. He claims that: “None of that is proper.”
Regarding Wisner’s fabulously notorious “champagne” comment, Lombardi finds that prejudice was compounded. Lombardi claims that it was objected to at the time, but then Wisner continued, effectively “thumbing his nose.”
Lombardi concludes that Wisner’s comments at closing are sufficient for a new trial.
Question 5
Lombardi argues that it is unlawful to award $1 million/year for future non-economic damages for each year of lost life expectancy. The number was calculated based upon Johnson’s 33 years of lost life. Lombardi says that $33 million is an extraordinary number and that you are not entitled to get damages that extend 33 years in the future if your life expectancy is 2 years.
Bolanos asks if Lombardi would suggest the award of $2 million for the two years of expected life remaining, and he stands strong that while that would be better, it still seems rich. Bolanos ponders out loud whether a verdict of around $9 million might ultimately make sense.
PLAINTIFF
So, we now meet Mike Miller, David Dickens’s boss and Senior Partner of the law firm The Miller Firm in Virginia. Miller has a long history of successful litigation in medical negligence and pharmaceutical litigation. He has an aww-shucks quality about him, and a strong Southern accent.
It’s odd that Miller is entering the picture right now, even though I recognize his voice from the video depositions. This case was carefully constructed through his law firm’s diligent effort, and the misfortune of his accident is tragic. All the same, I am nervous that he is taking over the Plaintiff’s argument at this late date. I’m not sure why Dickens isn’t doing it, given his active role during the trial itself, and his relatively low level of controversy.
Miller introduces himself with an opening statement of sorts, pointing out that twenty-seven times Judge Bolanos excused a juror during jury selection because she felt they had a passion or prejudice against Monsanto. “Monsanto got what they wanted.”
He continues describing the attentive jury, who submitted excellent questions, deliberated three days, studied expert testimonies and ultimately delivered a unanimous verdict.
As we move into the finer details of the trial, it becomes apparent that the attorney speaking for the Plaintiff today should have most definitely been someone present at the trial. I wanted to go make a personal request to get Delightful Dickens to take over, just to give Bolanos confidence in sound arguments from someone who knows the ins-and-outs and nuances of the trial. Heck, I wanted to go up and argue it!
Question 1
Miller argues that Dr. Nabhan was credible and reliable. He also argues that Plaintiff was at a significant disadvantage that the jury couldn’t hear that the State of California concluded that glyphosate is a carcinogen.
Bolanos interrupts Miller and says that Prop 65 is a completely different issue.
Miller says that it was incredulous that Monsanto could talk about the fact that Czechoslovakia doesn’t think Roundup causes cancer but California was not permissible.
Oh no – I don’t remember any mention of Czechoslovakia in the trial. It hasn’t been a country for fifteen years. Why is he mentioning Czechoslovakia?
With this, Bolanos’s tone becomes impatient and annoyed. She informs Miller that Czechoslovakia was never brought up. She further discusses that the IARC report was brought into evidence to no objection and there were lengthy discussions about which other international reports were coming in. Bolanos is exceptionally harsh with Miller on the Prop 65 issue. I don’t think because of the issue itself, but rather that Miller wasn’t around for the hours that everyone put in debating the Prop 65 process. And now he’s bringing it up as a point of contention. I don’t think Miller knows that that ship sailed some time ago.
In a testy tone, Bolanos asks Miller to stick to the question on Dr. Nabhan’s differential diagnosis.
Lee Johnson and his wife walk into the courtroom. I continue to be amazed at Johnson’s resilience and willingness to be a highly public figure at this point. They look worried and take a seat up by the Plaintiff’s table.
Miller continues that if there are unknown causes of NHL, it is not Plaintiff’s job to go out and find them and that Dr. Nabhan was not required to follow up on every detail.
He frequently thanks Judge Bolanos for her patience and time. It’s an amusing juxtaposition to Wisner’s approach, and so very Southern.
Question 2
Miller argues that expert witnesses in epidemiology should look at all relevant scientific data on the subject, not just epidemiological studies as per Dr. Mucci. He claims that case law says that even with no epidemiology, one can still rely on mechanistic and animal data to determine causation. He says: “Monsanto doesn’t like it, but we have it [animal data].” He reminds Bolanos that the independent scientists at IARC found it a certainty that the animal data was the strongest data presented in support of glyphosate carcinogenicity.
In defense of Dr. Neugut, Miller reminds Bolanos of Neugut’s extraordinary expertise in cancer epidemiology. He also restates the successes that Roundup litigation has had along the way –the judgements of Judge Chhabria and Judge Karnow that trials could move forward based on the presented evidence.
Question 3 & Question 4
These questions were uncomfortable. Miller said that the EPA reports came into evidence. Bolanos immediately corrects, with an annoyed expression and tone, “They weren’t admitted into evidence.” Miller looks a bit flustered and apologizes.
They continue to discuss several more arguments, but things get a little murky and confusing, a stark contrast to Lombardi’s shiny, refined arguments that were crystal clear.
Question 5
Regarding the future non-economic damages, Miller seems confused about what she is asking. Bolanos loses her patience big time. Miller is earnestly trying hard, but Bolanos needs to explain exactly what question her question is, and what future non-economic damages are and why they were awarded.
WISNER CALLS
In the midst of all this, we hear a small voice coming from the speaker in front of Judge Bolanos. Wisner has decided to chime in remotely. He says: “I’ve been accused of lying” and that “A few things aren’t being properly described.” The voice is so quiet, that everyone in the room is cupping their ears and sitting at the edge of their seats to hear. It sounded juicy, but we were catching only every few words. So my recount is a little spotty.
Well, it is clear that Bolanos doesn’t want to hear anything that Wisner has to say. She rolls her eyes and has an expression of maximum annoyance. Wisner wants to defend himself on the champagne comment made during closing arguments. In a loud voice, Bolanos asks Wisner if his argument is that: “When you made the reference to champagne in the boardroom, and defense counsel objected, that you didn’t know why they were objecting?” Wisner says “Yes.”
Bolanos strictly says that at the sidebar after Monsanto’s objection, she made it clear that he shouldn’t make references to champagne, and then he disregarded her order. Wisner says, “respectfully,” that is not what occurred.
Wisner goes quiet. I mean, it is pretty crazy suddenly having that small quiet voice of such a huge player in this trial, piping in through that mini-speaker. Man, we need him here today.
Miller picks back up, apologizing for Wisner’s behavior, and suggesting that Wisner should listen to more of what the court says.
PUNITIVE DAMAGES
Lombardi kisses up and paints a lovely picture of support of Bolanos’s tentative ruling. He doesn’t argue much, because he sees this is already going his way. He does emphasize a few points:
- There was no despicable conduct on the part of Monsanto
- Roundup is highly regulated and has been on the market for decades
- Monsanto’s opinion on safety is firmly within the scientific norm
- Whatever the Plaintiff’s “grab bag of conduct” arguments are, they have to relate specifically to Johnson.
- The Monsanto employees involved in the trial were not proven to be managing agents, and that is a failure of proof.
Next, Miller makes several strong points, and he’s on a roll. He goes head-to-head with Bolanos, because she seems convinced that there are studies that show the Roundup formulation to be safe. Bolanos looks confused, and says that there were extensive tests run for the EPA and internally at Monsanto on glyphosate.
Miller explains what makes Roundup’s formulation different from just pure glyphosate, as he describes the added surfactants and how they make Roundup 10x more likely to absorb into the skin. Miller says that with this fact, the jury could definitely have been persuaded in that Monsanto refused to study the formulation. He continues that being defended by the EPA is not a defense from punitive damages.
Bolanos pauses, and she appears to be opening up a crack to hear what the Plaintiff is saying.
Miller once again says that he knows the plaintiff counsel was “a little hard to work with.”
I’m so confused – where has Judge Bolanos been during the trial? The whole point of the Dr. Parry evidence, and the significance of Donna Farmer saying she “cannot say that Roundup does not cause cancer,” is because they didn’t test the formulation! All of the days we spent learning about the chemical composition, and how the surfactant POEA is still legal in the United States but banned in Europe– how is this news to her?
Bolanos asks for evidence regarding whether any Monsanto Managing Agents were found at fault. Monsanto attorneys have been arguing that none of the Monsanto executives brought into the case were really Managing Agents. Quite clearly to all but Bolanos (and I am certain that Lombardi and team can’t believe their luck on this), Dr. Heydens and Dr. Goldstein were very senior at Monsanto, overseeing scientists and product safety. To think that they weren’t “Managing Agents” is really a very large stretch.
Miller says that Dr. Heydens is a Vice President, and I worry because at some point I remember a Monsanto employee saying that titles at Monsanto were not standard. Indeed, Dr. Heydens does not appear to have a VP title. Bolanos says “On what basis would you assume that [he is a VP]?” Miller explains the reasoning as Baum, Petram and Dickens send frantic notes up to Miller to help out. Dr. Goldstein’s role as Director of Medical Toxicology is used as an example of a Managing Agent.
Lombardi is given another chance to speak, reminding Bolanos that it is her duty to act as a 13thjuror, and given the insufficiency of evidence, she should grant a new trial.
Miller gives some closing hopeful words to uphold the verdict, and they seem to work for at least a postponement of ruling. Surprisingly, Bolanos asks both sides to submit a proposal under 20 pages – one for granting the JNOV and the other denying the JNOV, thus postponing ruling after further consideration of both sides.
Lombardi brown-noses and tells Bolanos that they can get that proposal to her by whatever date suits her. We don’t know when we will get her ruling.
People rush out of the courtroom once the session closes. Media is outside, waiting to conduct interviews. The jurors are all standing in a circle, and I get to meet more of them and share some hugs. One juror tells me that they all care so much about this verdict, and that is why they are here.
I see Johnson walk by, looking weary but still sharply dressed. Media comes to ask him questions, and I feel like pushing them away from him to leave him in peace. I think we can all imagine how he feels after this gut-wrenching session.
FINAL THOUGHTS
It’s really important that those of us who so desperately want change and an ultimate glyphosate ban not lose hope. Regardless of what Bolanos rules, I promise you that this jury of very smart, balanced people saw the truth. That means that the more we can individually spread the truth about the corruption in our food and environment, on behalf of Monsanto, the sooner we can return to a healthy society.
I will post once we hear a decision!
PS – I apologize for any typos – I’m going to proofread after I get some sleep!
© 2018 Kelly Ryerson ALL RIGHTS RESERVED
