Day 10 – And So In Closing
If you’ve been a long-time reader, you know my issues with the medical term “idiopathic,” AKA “we don’t know what caused your illness.” Because I’ve had some truly horrible experiences with doctors dismissing or incorrectly treating a multitude of “idiopathic” symptoms (which actually were due to severe gluten intolerance), this term really annoys me. It is intellectually lazy, closed-minded, and completely unhelpful.
In the case of Hardeman, and all others who have been wounded similarly by glyphosate, what kind of fool WOULDN’T look at the quantities of a weed killer sprayed in our environment for decades, and think that might have something to do with the prevalence of NHL? For all glyphosate victims reading this blog, I can imagine your frustration if doctors are really telling you that they don’t know what could have caused your cancer. Just because no one taught them that Roundup can cause NHL during med school (and they don’t want to educate themselves about this pesticide), doesn’t mean that it can’t be carcinogenic.
Environmental toxins have forever been a contributor to fatal illnesses. It is not new news.
EXPERT WITNESS DR. ARBER CONTINUED
Dr. Arber retakes the witness stand, still sporting a natural, genuine smile. He doesn’t offer much that we don’t already know. Some highlights from direct and cross:
- Arber says: “I have never in my career received a specimen where Roundup was listed as a risk factor for a patient.”
- Hardeman’s tumor appeared “textbook” for DLBCL (Hardeman’s specific type of lymphoma)
- Arber agrees with Dr. Levine’s testimony that even if treated for Hep C, the damage to the cells could have taken place before treatment. AKA the “Hit and Run” variety of cell damage.
- Roundup is not accepted in the medical community as a cause of NHL.
- He likes and respects Plaintiff expert witness Dr. Weinsenburger.
None of his testimony is surprising, nor does it provide new information outside of the fact that Arber cannot tell what caused a patient’s NHL just in viewing the pathology slides.
Before launching Closing Arguments, Wagstaff calls for a “Rebuttal Witness” testimony, utilizing video cuts from Dr. Portier’s testimony.
Chhabria is as shocked as the rest of us. I had no idea that the Plaintiff was going to present a rebuttal witness testimony. Monsanto reviewed the proposed testimony last night and, unsurprisingly, objects to all of it. Chhabria takes an hour break to look over the Portier testimony, but ultimately decides that it won’t be shown for reasons excellently argued by Monsanto attorney Rakesh Kilaru.
The courtroom is overflowing with viewers. Chhabria takes note of the packed crowd, and states that If anyone is turned away due to space limitations, he will seat Monsanto’s army of lawyers up “here next to us to make more room for the galley. I want to make sure no member of the public is denied the ability to see this if they want to.“
Chhabria reads the multi-page set of jury instructions that he finalized this morning. The instructions are shared prior to closing in order to focus the jury’s attention on what questions will need to be answered in deliberations
PLAINTIFF – CLOSING STATEMENT
Plaintiff attorney Aimee Wagstaff sets up a few large visual aids on easels in front of the jury. She has pep in her step, and begins arguing points with a new confidence and an inspiring tone of voice. I haven’t heard this energetic tone from Wagstaff before, and it arrives just in time. I think the passion will serve the Plaintiff’s argument well, and the galley certainly appreciates the entertainment.
Wagstaff digs deeply into summary remarks and persuasive arguments to encourage the jury to view the facts from Plaintiff’s perspective. The jury is on high alert, sitting up straight in their seats and holding eye contact with Wagstaff throughout her one-hour Closing Statement. They may have grasped the importance of their decision, given the massive crowd of a diverse group of people attending to watch.
As my luck would have it, I happened to sit in front of someone who must have had a cold, because he smacked and smacked a cough drop or five throughout the closing. It was hard to ignore. I think I have a debilitating psychological condition in which one is especially grossed out by the sound of chewing.
Plaintiff’s Closing Argument Highlights:
- When asked if Roundup WAS a substantial factor in causing Mr. Hardeman’s NHL, the answer is YES. Wagstaff explains the term “preponderance of the evidence” using a slide with a picture of a scale with a feather on one side. She tells them that they only need to be 50.01% sure that Roundup was a substantial factor.
- Roundup does not have to be the ONLY cause of harm, and the jury can conclude that both Roundup and Hepatitis C had a role.
- Wagstaff runs through all of the witnesses that both sides utilized, highlighting why Plaintiff witnesses were more appropriate to speak to glyphosate toxicity than Monsanto witnesses.
- Regarding epidemiology, Wagstaff stresses the dose-response to glyphosate that is exhibited in the presented studies. She reminds the jury that Dr. Ritz said: “The dose makes the poison.” She also encourages the jury to reference the Zhang 2019 meta-analysis on glyphosate epidemiology.
- In the animal data, significant findings included: dose response, rare tumors, replication, cross species and strains, significant increases in tumors. Every mouse study found lymphoma, providing evidence that glyphosate causes lymphoma in mammals.
- We hear the timeline and details of the “magic tumor.” Amusingly, even Monsanto now refers to the study as the “magic tumor” study because the lengthy name of study authors “Knezevich & Hogan” is tedious to cite.
- Wagstaff claims that the whole basis of Monsanto’s argument is just the AHS study, which is riddled with flaws. Those flaws were even pointed out by Monsanto’s own scientists in 1997.
- In defense against Hep C, Wagstaff points to the fact that Hardeman was cured in 2006, and that during chemotherapy for his NHL, he was only treated with medication to control the Hep B, NOT Hep C. Even under the intense chemotherapy, Hep C never resurfaced in Hardeman’s bloodwork.
- “The evidence is astounding.”
DEFENSE – CLOSING STATEMENT
Monsanto attorney Brian Stekloff stands for his turn to persuade the jury that Hep C, Hep B or something idiopathic caused Hardeman’s NHL. Stekloff’s tone seems a bit pedantic, but that criticism could merely be a reflection of my personal bias. He does an excellent job outlining both facts supporting Monsanto’s case, and spots of weakness within the Plaintiff’s testimony.
Monsanto’s Closing Argument Highlights:
- Stekloff claims that the question posed to the jury isn’t just one of Hep C vs Roundup, because the cause could merely be idiopathic.
- None of the three treating doctors said that they knew Roundup to be a cause of NHL, nor did they note it in his medical records.
- Stekloff rips into Dr. Weisenburger for a large chunk of the argument. It is interesting that Monsanto decided to try and tear down Weisenburger considerably more than the other expert witnesses. They must have found Dr. Portier and Dr. Ritz more impenetrable.
- Stekloff clarifies that the “Hit and Run” descriptor (for a type of DNA mutation caused by Hep C) isn’t a catchy phrase as Wagstaff made it sound. It is a scientific phrase used in literature.
- “To be clear” (to coin a new phrase) – the antiviral treatment of the Hep C doesn’t matter. The treatment doesn’t get rid of the mutation in the cell.
- Regarding Wagstaff’s description of the magic tumor study, Stekloff tries to shut down any further controversy by highlighting the EPA’s 1991 decision that approved glyphosate and even stated that there were adequate studies in two animal species. Shame on you, EPA.
- Stekloff highlights that EFSA disagreed with Dr. Portier’s opinion that glyphosate is genotoxic.
- Monsanto makes love to AHS, the one study they always refer back to.
Because the Plaintiff gets the final word, Wagstaff returns to the jury to make a final push for her case. She rapidly lists Monsanto’s questionable arguments and actions:
- Plaintiff doesn’t rely on only one piece of evidence. All causation pieces must be considered together.
- Monsanto truncated one of Dr. Weisenburger’s quotes to serve their purposes.
- The treating physicians did not think that Roundup COULDN’T cause NHL, they just had not read the literature to form an opinion.
- Monsanto experts read from premade powerpoints during testimony! Wagstaff asks the jury to take that into account when considering the authenticity of Monsanto expert witness opinions.
- Wagstaff urges the jury to read and refer to the Zhang meta-analysis study when considering human studies. The paper even incorporates the faulty AHS in its analysis, yet still finds that exposure to glyphosate increases the risk of NHL by as much as 41%.
With that, the jury departs and we are camping out until 4pm, when they are scheduled to go home. The lack of power outlets around this courthouse makes it challenging to stay charged. By the end of the day, there is no news. and I wonder what the chances are that this jury can come to a unanimous decision.
Both sides delivered compelling closing arguments.
If I were a juror presented with this particular set of evidence, I would conclude that Hep C caused Hardeman’s NHL, but that Roundup is also capable of causing NHL. In either case, what a horrible road Hardeman has had to travel to regain his health.
Agent OJ on call tomorrow in case of a verdict!!!
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