Before we get to the coverage of the first Hardeman v Monsanto jury selection hearing, I need to update readers on the controversial claim made by Judge Chhabria at the hearing last Wednesday. As you may recall in my last post, Chhabria explained that lawyers effectively write the expert witness reports, with some editing performed by the expert. Well, one of the expert witnesses from this trial reached out to me with this comment:
“Bullshit. I have written every line of every expert report I have done over many years.”
So there you go. I have to believe that those who take great pride in their academic or professional expertise would insist that the work to which they stand by in court is her/his own. At least, that’s how I’d feel if I were the expert.
As promised, we have a special guest contributor. Introducing none other than Johnson Juror #4, Robert (Bob) Howard. Bob wrote one of the influential letters to Judge Bolanos following the JNOV hearing, and has continued to closely follow and eloquently write about the ongoing Monsanto story.
In an effort to keep things light with regards to this exceedingly dark Monsanto topic, Bob generated many amusingly creative possibilities for his nom de plume:
- Cideshow Bob
- Non-GMO Bro
- Roundup Ready Boy
- Weed Whacktivist
Ultimately, Agent OJ felt most comfortable.
Please enjoy Agent OJ’s recap of last Friday’s hearing, as all parties sorted through potential juror questionaires.
Friday February 15, 2019 Federal Courthouse, San Francisco
By Agent OJ
I am nervous to be in a courtroom again, maybe because the last two times were pretty stressful. Last August 10th, it was the reading of our verdict in the Johnson v Monsanto trial. Last October was the shocking JNOV hearing that ten Johnson jurors attended.
Judge Vince Chhabria’s courtroom has no windows, just like Judge Bolanos’. The federal courts apparently go for much higher ceilings than state court, hence a lot more wood paneling to cover the twenty-foot-high walls. Unfortunately, I am not here to review early sixties architecture. I am attending a pretrial hearing for Hardeman v Monsanto, which is the second Roundup lawsuit of an estimated 9,300 to go to trial.
I am relieved to see at least a couple familiar faces at the plaintiff’s table—Mark Burton and a woman I recognize as a voir dire specialist from the Johnson trial. A new face, Jennifer Moore, is leading the plaintiff legal team. She seems so young to me, but so does pretty much everyone these days. Monsanto has brought in their backup team to replace the trio of Sandra Edwards, George Lombardi and the sinister Kirby Griffis. I am told they are still working on the case as part of the Monsanto army of eleven law firms. A man who seems, again, much too young, takes the lead for Monsanto.
All rise. The rangy Chhabria comes in and says how happy he is to be back in his regular courtroom. At least somebody is happy. Today, the Plaintiff, Monsanto, and Judge Chhabria will go through a few dozen juror questionnaires (no jurors are present) deciding whom to excuse for hardship or cause. Those that make this cut will appear for the final jury selection on February 20th. Chhabria goes through his list of excusals first, starting with hardship.
One juror’s long drive to San Francisco is brought up as a hardship. The Northern California District Federal Court covers a large geography – San Mateo up to Sonoma county. Chhabria dives into his list of excusals for cause, all based on the questionnaire jurors have filled out earlier.
Juror #66 – Excused because her/his husband had NHL.
Juror #4 – Chabbria wants to excuse her because her father used lots of pesticides on their garden and farm. Ms. Moore jumps right in and cites a capital murder case which led to a ruling that a juror cannot be excused on the basis of the questionnaire alone. She is gently admonished by Chhabria that she should have learned from Monsanto’s example not to bring up criminal cases in civil court. She is not daunted in the least. I am happy to see we have another lead litigator who is willing to fight a judge at every turn.
Juror #53 – The questionnaire asks for each potential juror’s opinion about large damage awards. Chhabria tosses juror #53 who wrote: “Just pay the man,” and “Treble damages please” in response to this question. I am sensing that there is a lot of animosity towards Monsanto up and down the NorCal coast.
Ms. Moore objects to another excusal because the juror has a close relative that had cancer. She points out to Chhabria that if that was a valid reason for excusal, nobody could be a juror. I am rooting for her because she wants to bring the juror in and ask her/him whether or not she/he can be fair and impartial. My experience as a juror led me to believe that practically anyone can be fair and impartial when instructed to be by a judge.
Juror #67 – Uh oh, she is an epidemiologist. Chhabria is concerned that she might bring in “outside knowledge.” Also, #67’s husband was exposed to Agent Orange in Vietnam and had a nodule on his lung recently. Moore points out that #67 said she could be fair and impartial, but Chhabria emphasizes: #67 said Roundup is like Agent Orange, and maybe led to her son’s disability. Chhabria is incredulous that Moore thinks this juror should not be excused, and adds that #67’s ex-husband had something to do with a PBS documentary called “Silent Spring.”
Chhabria asks the court if we can assume that a documentary on PBS would not favor Monsanto, especially one called “Silent Spring.” I hear only a couple of laughs—tough (court)room, but I appreciate that Chhabria has the [redacted] to mix in some humor from the bench into such a serious proceeding.
Juror #84 – Chhabria’s favorite questionnaire answer comes from juror #84, a molecular biologist in an immunology lab. The question: “Have you or has anyone close to you experienced side effects from exposure to a chemical?” The biologist’s answer: “Bad question. Everything is a chemical.” Ah, those molecular biologists crack me up too. He also says cancer is very difficult to prove. Chhabria decides not to excuse him. Will we get another “highly educated” jury?
Monsanto has been pretty quiet, probably because they are in favor of the judge’s excusals thus far. Now they are up to present their proposed excusals.
Juror #9 – She is aware of studies that show Roundup is bad, either from the news or professional experience as a master gardener. Chhabria says he does not have a problem with people who follow the news. This news junkie silently cheers. #9 also says she has common sense. Yay! I think that is the very essence of a good juror, or a good anybody, for that matter. No excusal.
Juror #25 – He tried a hardship line that he had prepaid for work travel. Even though he has negative feelings about Monsanto, and says they are Goliath to a plaintiff’s David, Chhabria is not moved. He adds that he has no sympathy for corporate executives who travel for work. No excusal.
Juror #46 – He is aware of the Johnson verdict, but Chhabria explains that knowledge of the Johnson trial is not grounds for excusal. Bring him in!
We take a break, and out in the hall Ed walks up! Yay – a fellow Johnson juror! It has been a couple of months since I have seen any of my juror family. I also meet the voir dire specialist from our trial. That makes us her, what, creations? Flock? Disciples?
After a break, there is a discussion of how many jurors there will be. I think, twelve, right? Wrong. Federal trial can have as few as six jurors, and the discussion is whether there will be nine or ten. The plaintiffs tell me later that, obviously, they want nine. Fewer is better because the verdict in federal court has to be unanimous, so one less juror to convince. Chhabria is leaning towards nine.
Juror #56 – “Monsanto is EVIL.” Chhabria deadpans, looking at Monsanto, “Is there is any part of that you would dispute?” He continues to read from the questionnaire: “Boycott Monsanto,” and Roundup is “poison that KILLS.” Chhabria calls this an “obvious” excusal. I can’t disagree with him on this one.
Juror #62 – A cancer survivor who is aware of Johnson case. Chhabria, “Bring her in!”
Juror #63 – 100% against the use of Roundup, but no opinion on Monsanto. Excused.
Juror #75 – An avid gardener who won’t use Roundup and is aware of the Johnson trial. He thinks that the Johnson award was $1,000,000. Chhabria looks at Monsanto counsel again and says, ‘Wishful thinking, huh?”
The plaintiffs reboot and present their excusals for cause.
Juror #7 – He lost a child who was 4 years old and feels that a $250,000 cap on medical malpractice is not fair. Moore feels that juror must believe the system is unfair, but Chhabria says to bring him in. I am surprised at this one, I hadn’t thus far taken Chhabria to be a hard-ass.
Juror #8 – Excused for saying he/she would be hard-pressed to attribute cancer to any cause.
Juror #42 – Also thinks chemical exposure causing cancer would be hard to prove, but no excusal. (That jogs a memory that I felt roughly the same way. But I also felt that Monsanto would have a difficult time proving that the chemical exposure did not cause cancer. I agreed with one of my fellow jurors who said in voir dire that both sides had a heavy lift.)
Juror #70 – An interesting juror whose spouse had Hodgkin’s Lymphoma, which prompts Chhabria to ask Moore what the difference between Hodgkin’s and non-Hodgkin’s lymphoma is. Ms. Moore demurs and goes on to explain that #70 feels Monsanto is a “very honest company and helpful to society.” Chhabria says he didn’t think anybody in the entire Bay Area felt that way, but bring her in. He then goes into a short diatribe on jury selection. “Some jurors think all cops are crooked and some think all cops are good, and then we just have to work it out.” I chuckle at his because my first voir dire experience was just such a case. After I was asked to describe all the interactions me or my relatives ever had with law enforcement, I was peremptorily tossed.
SOME MORE JUICE
That’s it for the excusals, so it is decided that 45 jurors will be coming in on Wednesday. Next up is a discussion about separating the jurors who have heard of the Johnson case from those who haven’t. Chhabria implies that this is Monsanto’s idea and if that they want to stick with it, then so be it. On Wednesday, the “Johnson” jurors, will be questioned separately about their knowledge of that trial, so as not to contaminate the jurors who have not heard of the case. Moore objects: the separation will result in some jurors wondering why the other jurors are special, what do they know that we don’t? Chhabria is unmoved.
After discussion of how jury selection will proceed on Wednesday, and some housekeeping matters, I find out about “problem jurors.” These are jurors, who, well, talk too much. They raise their hand to answer every question during voir dire, which is difficult for counsel because they have very limited time. Chhabria explains that he will eventually excuse such jurors and Moore wonders how she will know to stop wasting her time with the juror. I think she wants a baseball style sign from the judge. And speaking of time, Chhabria predicts that voir dire will be completed by 1 pm on Wednesday. As a survivor of three days of voir dire, I will believe that when I see it and be very impressed if and when it happens.
As the hearing is winding down, Moore fires off a zinger. She wants Chhabria to issue a restraining order on Monsanto to stop “geo-fencing” prospective jurors, which means creating targeted ads on social media that Monsanto was accused of doing prior to our trial. Chhabria is almost as indignant as Monsanto, explaining cryptically that that sort of behavior would be “20th floor stuff,” pointing up to the floor in which the notorious holding room resides. Monsanto counsel explains that Monsanto would never do such a thing. Chhabria goes on to say that no action on his part is needed because everyone already knows that the kind of behavior alleged by the plaintiffs is obviously forbidden. On that note, we adjourn until Wednesday.
GG FINAL NOTES
Thanks again to Agent OJ for such detailed coverage! He will also be covering the in-person jury selection taking place TODAY, February 20th.
I’m still not over the geo-fencing issue. Bayer’s homepage is showing a lot of Roundup spirit right now – Apparently, Sri Lanka’s glyphosate ban was a “Mistake with Consequences.” Eye roll.
I will be back for Opening Statements on Monday, February 25th.
© 2019 Kelly Ryerson ALL RIGHTS RESERVED