The Elephant in the Blog

A Note from GG:

My family is not one to hold back opinions, and all-hands interventions are not unusual. In the 80s, an intervention pried me from my beloved new Nintendo. Mario had begun to visit me in my dreams, which my mom deemed unhealthy.  In the 90s, the family convened to express their disgust in my sweatpants with my sorority letters embroidered across my rear. Apparently, that didn’t “represent the family” well. The 00s delivered an intervention to stay in graduate school, despite a million misgivings – fortunately, I did. The next quarter, I made an important pivot towards a Public Health & Ethics track of study. 

Given we were nearing the end of the ‘10s decade, it is of little surprise that my family sat me down over the holidays (in the nick of time) to tell me that I am going to need to relax on the food/chemical front, because I was going to go insane. 

What started as an exploration of Roundup’s impact on my personal health struggle has evolved into a journey of learning about the truly stunning corruption of our regulators and elected officials, and the emergency we have created in our US heartland soils. On a roadtrip through Iowa, I stared in disbelief that the health of our soil has been entirely decimated. It isn’t even soil anymore – it is seemingly infinite MILES and MILES of chemically-destroyed clay. We are in an agricultural apocalypse. It isn’t fictional, this is actually happening; I put my hands in the clay myself. It is not surprising that farmer suicides have skyrocketed. The US will not be able to grow sufficient food without dramatic, extremely rapid de-chemicalization and regeneration of our farmlands. 

Now the good news – I have spent the last six months meeting scientists, farmers, journalists, physicians, and simply inspiring people who have joined together to make this terrifying situation more visible. It’s a large team full of intelligent, quirky personalities. I am so excited to share more news on this front in the near future! 

You probably aren’t here to read about GG’s experience with early-era video games, so I am happy to announce that AOJ popped over to the Caballero v Monsanto trial which began jury selection today. I also have some litigation/Roundup/Monsanto/Bayer juice to share in upcoming posts that will interest investors.

Enjoy, and thank you AOJ!!! (Preview: He has some excellent commentary on settlement speculation.)

And good luck getting Kenny Rogers out of your head.

The Elephant in the Blog

By AOJ

You would think that by now I would be used to packing my lunch and heading off to a courtroom somewhere in the San Francisco Bay Area. I wish. Going to Roundup trials, which began when I was a juror for Lee Johnson v Monsanto in the summer of 2018, still makes me nervous. My anxiety level is somewhere between going to the doctor, which isn’t too bad until we get to the prostate exam, and going to the dentist, where I have the added stress of having telling my dentist that I refuse to have x-rays taken. (Try it sometime.)

Why am I nervous? I can think of lots of possible reasons, like finding out that Johnson jurors were allegedly followed by Monsanto spies, or a creepy Twitter smear, or ACSH trolls, or Bayer leaking personal information of the Johnson juror letter writers. Or maybe this is all just one big bummer. My hats off to all you activists, claimants, and lawyers who have been fighting this battle for decades, and keep fighting. I’m new to activism, for the most part, but my sense is I’ve gotten off easy so far. In any case the past 19 months are kind of a blur—I’ll have to take it up with my therapist.

Appropriately, I drive in and out of a thick tule fog on the beautiful drive from San Francisco up to Martinez to the Contra Costa County Superior Court for first day of jury selection in the trial of Kathleen Caballero v Monsanto. (Geographical note: Benicia, where Lee Johnson worked for the school district, is just across the Carquinez Straight.) I know almost nothing about Ms. Caballero, but I look forward to learning about her at this trial.

When I get up to the courtroom my entry is blocked by the bailiff who tells me to wait outside because jury selection is under way. WTF? “The public is barred from watching jury selection?” I ask. The bailiff sees the error in his ways and lets me in, telling me to sit off to the side so as not to confuse the judge. Come on, judges don’t confuse that easily, do they?

My old friends Sandra Edwards (still has the mussed up hair in back) and George Lombardi (I know that grey suit), both of Winston and Strawn, are up at the defense table with a couple attorneys I have never seen. (It’s nice to see Sandra in the lead chair this time around. Several of my fellow jurors agreed that she was underutilized at the Johnson trial.) Over at the plaintiff’s table is the plaintiff’s lead, Steven Brady of the Brady Law Group along with Curtis Hoke of the Miller Firm. 

The judge, The Hon. Barry P. Goode, sporting a bow tie, is in the process of excusing jurors who have various hardships, some of which appear to be quite serious, as His Honor sincerely expresses his condolences with each excusal. Another juror thinks he can be excused because he is involved in asbestos litigation, insisting that Monsanto is also involved. Judge Goode says Monsanto is not involved in asbestos, but lets him off for economic hardship after he says he would have to shut down his store and live on his ranch and eat his horses if chosen.

The fraught language issue comes up with a gentleman who was born in Bulgaria who says he cannot understand English well enough to be a juror. The judge quizzes him on his TV and movie watching habits, and what language is spoken at his job. (All are English.) The juror speaks English very well, well enough to explain that his problem is understanding complex ideas. (Heck, I don’t need a language issue to have that problem.) Judge Goode explains that it is the job of the lawyers to be sure jurors understand the proceedings during a trial, but after the juror randomly tells the judge that Google translate is too slow, Goode says using Google is no-no, and excuses him. It was a valiant try by Goode to include the prospective juror, but I’ve seen this situation before and the ESL people never get on the jury. My guess is that naturalized citizens want to be on juries more than other citizens, which is why this type of excusal is always painful to watch. 

After the last juror is excused, Judge Goode asks who the guy over on the side is. I am looking down, getting all this down on paper, when the bailiff gets my attention. Judge Goode asks, “Sir, are you here for jury duty?” Who me? I respond, “God, I hope not.” Oh look mommy! I made a judge laugh!

According to Judge Goode, 23 jurors have survived the first cut due to hardships, a very good showing. From here the jurors go elsewhere to fill out their juror questionnaire. (Hardship excusals and voir dire will continue next week, and the three week trial is slated to start on January 27.)

With jury selection concluded for the day, we take a short recess. Upon returning Judge Goode comments on the “shifting cast of characters” over at the defense table. George Lombardi has moved back to the gallery and Lee Marshall, of Brian, Cave, Leighton and Paisner, takes his place. For the rest of the day the judge will hear last minute concerns and argument on motions in limine. Sandra Edwards kicks it off by asking where the jurors will hang out during recesses. She is concerned that if they hang out in the hall they will be exposed to lots of people chatting, explaining that many people attend these trials and some people attend all these trials. Uh huh, ok. Even celebrities, she tells the judge, like Hannah, Daryl Hannah, and Neil, Neil Young, attend. Sandra wants the court to do what Judge Chhabria did at the Hardeman trial and have  everyone wait 5 minutes until the jury has exited. Steve Brady jumps in and suggests that an admonition from the judge for the jurors to avoid contact with people should suffice. Judge Goode agrees, but is going to think it over.

The remainder of the session is devoted to Monsanto’s blanket objections to the potential testimony of Dr. Charles Benbrook, based on his expert report. (Way to go Chuck, you are feared!) Lee Marshall calls any testimony by Benbrook “hearsay” and “gratuitous opinion.” Judge Goode is skeptical, calling the doctor a “percipient witness,” having been involved with “exposing the IBT problem to the public” while working with a congressional subcommittee, for example.

Steve Brady is having none of it either, and launches into a passionate defense of Benbrook, accusing the defense of trashing Benbrook at the Pilliod trial and trashing him here—acts which bring Monsanto counsel’s credibility into doubt, or which could even be “fraud on the court.” Brady objects to Monsanto describing Benbrook as an “economist.” He goes on to explain that Benbrook was a young man at those congressional hearings and has been working on pesticide risk and regulation ever since (for 40 years).

After the lunch recess, Judge Goode decides he wants a do-over on the Benbrook discussion, and asks Brady to just give him a list of topics the doctor will testify on. It will be the IBT scandal, the Bio/Dynamics scandal (AKA Magic Mouse Scandal), EPA actions after Magic Mouse, generally about pesticide registration, and lastly, about how the EPA reconciled the IARC findings with its own glyphosate findings.

Judge Goode throws it back to Lee Marshall for Monsanto, “and please don’t tell me he is an agricultural economist!” (I like Goode, but he had me at “Sir, are you here for jury duty?”) Lee Marshall goes through his litany of Benbrookian shortcomings: 

• That Benbrook spoke to IBT investigators is “classic hearsay, they want to say the glyphosate registration was born in fraud.” (Wow, I could not have said that last part any better.)
• He is going to “narrate” the Magic Mouse story. (Fun for jurors of all ages!)
• Benbrook’s experience with EPA registration process: “Its just his perspective,” Marshall likens Benbrook to a birdwatcher, as opposed to an expert ornithologist.

Judge Goode pushes back, telling Marshall that Benbrook can make certain observations, he has 40 peer reviewed articles. “It is not like he is writing for the Journal of Astrology.” Marshall is concerned that Benbrook “is just gonna go.” I would love that, but Brady says the doctor’s testimony will be three and half hours, four tops.

Benbrook’s testimony at the Johnson and Pilliod trials vis a vis Bad Bad Brent Wisner is the last exchange of the day:

All parties agreed that the case is fully briefed, leaving only a few rulings for Judge Goode to finish up, and the rest of jury selection, and this trial is ready to go. 

That brings us to The Elephant In the Blog

Yup, its about time we discussed all the speculation (mostly) about a global Roundup settlement. As reported by several outlets including USRTK and Reuters, there are at least 75,000 Roundup cases in the pipeline, and possibly as many as 100,000. USRTK reported on January 17 that the Miller Firm is “unwilling to accept the terms of settlement offers discussed in [the] mediation talks,” ostensibly holding out for a better deal.

Take a deep breath _______(your breath here)_________ because there is some very big time gambling going on here. Okay. Now, relax, this has been a high-stakes high-wire act for quite some time now, so not much has really changed. Had the plaintiffs lost a trail, the calculus would have changed dramatically. If they go on to lose a trial, or lose an appeal, same, settlement negotiations or not. And if Miller keeps winning, early settlers could miss out on a bigger settlement. Yeah, it would have been nice if everybody had kept up a united front, but that would be like herding 75,000 cats.

For me, what it come down to is what is best for the victims. Obvious, right?So I did a quick calculation: Let’s say only two thirds of those 75,000 claims are legit. $10B has been bandied about as a possible settlement for months. That works out to $200K per claim. Take at least half for legal fees and taxes = $100,000. But wait, the stipulated economic damages (that means both sides agreed) for Lee Johnson are $2.2M. I don’t see how that is best for Lee. Please, someone tell me I have these numbers wrong! I tried drastically changing all the parts of the equation and I don’t see how this can ever add up to a fair and reasonable  settlement. $20 billion doesn’t work. $40 billion doesn’t work. Shit. And shit.

I can see one thing though, I can see why the  Miller Firm is still in this fight. 

Go Mike! Scared money loses!

By AOJ ©️2020