Day 13 – Non-Suits and No-Suits
I advised myself incorrectly that the pre-jury meeting would start at 9am, but that gives me time to chat with the video guy. We discuss how the Plaintiff forgot to show the adorable video clip of Johnson and his son baking a cake on the day of Johnson’s testimony. Perhaps they will add that in Closing Statements. It’s so heartbreaking to know that Johnson will not have many birthdays more to celebrate with his family.
The Plaintiff lawyers enter at 9:30, all smiles and joviality. Perhaps they slept a bit this weekend after resting their case on Friday. Monsanto’s side is not as jovial, though Ms. Edwards has a bit of cheer. I know that she is representing Monsanto. I don’t offer up compliments to the defense because there are few to give. However, she really presents herself in a lovely, classy and non-aggressive way. I would like to convert her to the other side.
There are so many people sick with a cold in the jury and viewing audience today. It seems that there is a Patient Zero in the jury whom I saw coughing last week. Just like a CDC map of disease migration, the geography right around Patient Zero have also developed coughs. The clerk asks, “Do we have several people sick on the jury?” They nod their heads.
Monsanto submits a motion for nonsuit, claiming that the Plaintiff failed to bring sufficient evidence during testimony regarding general causation and failure to warn. Bolanos rejects that motion, but says that it is a close call on the evidence to support awarding punitive damages. She allows each side to state their opinions.
Monsanto attorney Mr. Hilmert stands to argue. This man pops in and out when defending motions or objections. He doesn’t sit at the lead table, which is surprising because he delivers highly convincing, energetic arguments. He may be the closest comparable to Wisner on the Monsanto side. Hilmert argues that there is insufficient evidence that Monsanto acted with a knowing disregard. He says that the Plaintiff provided no evidence that people working at Monsanto believed that Roundup causes cancer. The beliefs testified were consistent with worldwide regulators, so there is no submissible case on the issue of punitive damages. Further, Hilmert claims that ghostwriting, which he maintains they didn’t do, would not qualify as conduct that harmed the Plaintiff either.
Wisner warms up his engines. Among many strong points, he states that Plaintiff’s evidential claim is not just about ghostwriting. Wisner points to the studies that Monsanto dismissed and combatted, including the IARC decision. Monsanto also did not disclose to the EPA what Dr. Parry reported on likely genotoxicity, and then replaced Parry with a scientist who would provide more Roundup-friendly research. Or at least allow Monsanto to ghostwrite a study for him. Dr. Goldstein did not call Johnson back when he inquired to Monsanto about what could be causing his rash. Goldstein didn’t call him back even though he knew of studies that Roundup can cause NHL. He didn’t even tell him to stop using it.
After more back and forth, Bolanos holds her ruling to deny the motion for a nonsuit as to the issues of causation and failure to warn. She will take punitive damages under submission.
On another matter, Bolanos rules that while the Plaintiff may ask a defendant witness how much money they were paid for this specific case, he may not ask how much he has received from Monsanto in total, across all litgations.
THE TESTIMONY OF KASSIM AL-KHATIB
Dr. Kassim al-Khatib is a weed expert from University of California at Davis (UCD). He has on a rich purple tie and smile. His eyes go back and forth to the jury more often than previous witnesses, but I think that he is nervous and doesn’t know where to place them exactly. Davis is known for its strong agricultural and metabolic nutrition departments, likely because they are surrounded by farmlands. Deceptively, they are also only two hours away from world famous skiing in Lake Tahoe, so the college kids enjoy both farm and mountain.
I have read many papers written by the Davis agricultural department professors. While UCSF is on the forefront of the dangers of glyphosate research, UCD seems to be much more glyphosate and Roundup friendly. Dr. al-Khatib admits that Monsanto does contribute a small amount of money to USD for research.
Dr. al-Khatib was recently the director of the statewide UC Integrated Pest Management program. He earned his PhD in Crop Physiology at Kansas State University and joined the UCD faculty in 2009. His interests include reducing herbicide drift, researching all aspects of weed control, and advising on herbicide application safety.
Ms. Edwards notes that he says herbicide pronouncing the “H” at the beginning. She sweetly asks which is correct, a silent or pronounced “H”. and he replies that: “You have to follow me.” A little icky, but I’m probably over thinking it. I’m having trouble hearing him over the coughing and sniffling in the crowd and jury. al-Khatib is softspoken and his accent makes some words challenging to understand.
After Edwards requests the designation of al-Khatib as an expert, Wisner steps up to question him. He clarifies for the jury that al-Khatib has not studied whether herbicides or herbicidal drifts can cause cancer. He also cannot opine about the safety of herbicides generally.
Al-Khatib agrees and Bolanos designates him an Expert in Weeds. That wasn’t the whole designation, but that is the extent to which I have notes due to lack of speaking volume.
DR. AL-KHATIB DIRECT
Edwards launches into a series of questions. We learn the following:
- That glyphosate works chemically on the weed by way of disruption of the shikimate pathway, which is involved in the synthesis of essential aromatic amino acids. He effectively restates what is on the Monsanto website, stressing that the shikimate pathway exists in plant cells, but not in human or animal cells. What he doesn’t share is what GG knows – the shikimate pathway is enormously present in our gut bacteria. Scientists have recently identified the previously overlooked gut biome as playing a key role in human physiology.
- There are three ways that an applicator can control physical drift: 1) control the droplet size by using a lot of water, 2) pay attention to the weather and schedule accordingly, and 3) pay attention to the height of the applicant – distance to the target impacts the drift.
- We are shown the same slide with pictures of a truck sprayer and backpack sprayer that we saw during Johnson’s testimony. Al-Khatib argues that the truck sprayer motor does not generate a lot of power, and that the hoses and wands that are used with the truck mounted tank have nozzle shut off valves and are not sprayed continuously. This testimony is in direct contrast to what Johnson reported in his experience of using the truck mounted sprayer.
Amidst a coughing fit in one of the jurors, Ms. Edwards asks for a break so that the juror can do what she needs to do to quell the cough outside of the courtroom. The juror is highly apologetic. We reconvene 15 minutes later.
- Al-Khatib thinks that the previous comparison between a power washer and Johnson’s sprayer was innacurate. If a pesticide were sprayed with the strength of a power washer, the liquid would dig holes in the soil upon application. He also says that the claim that one spray would fill a courtroom with mist is wrong and unscientific. “Absurd,” even. When using this sprayer, it is small volume at low pressure.
- When he sprays or instructs students on spraying, he wears the same Tyvek 400 suit that Johnson wore. I never anticipated knowing so much about protective clothing.
CROSS-EXAMINATION OF DR. AL-KHATIB
I have never seen Wisner do a cross examination, and it is scary. So scary, in fact, that Judge Bolanos has to repeatedly ask him to stand away from the witness. She ultimately delivers something of a restraining order and tells him to either stand behind a podium or counsel table. I hope his intensity won’t change the jury’s opinion of the Plaintiff. That said, I’m glad he’s on the side that I’m supporting.
Wisner in an effective operator when trying to impeach a witness. We get some more zingers:
- Al-Khatib claims that the truck mounted sprayers can only spray 10-12 gallons/hour. Wisner points out that Mr. Johnson sprayed 50 gallons/hour. al-Khatib doesn’t imagine that possible, and Wisner asks if al-Khatib has spoken to Johnson or seen what equipment he actually used. He hasn’t. Wisner asks if he has reviewed Johnson’s testimony and depositions, and he replies that he has only read one of his depositions.
- Wisner asks al-Khatib if he ever spoke publically about the IARC decision when speaking on pesticides and weeds. Al-Khatib says he has not. Uh Oh. Wisner shows him an article that recounts al-Khatib speaking at a conference entitled: “Roundup on Roundup,” following the IARC decision. Al-Khatib claims, with an anxious tone, “I was talking about pesticides. Roundup use and application of Roundup.”
- Wisner questions how much he is paid. Al-Khatib states $350/hour, and 200 hours have been paid for a total of $70,000. Wisner says: “$70,000 to tell the jury that you didn’t think the drift from Johnson was significant.” He continues that in the 200 billed hours, he never physically looked at the sprayer, spoke to Johnson, or reviewed school records. Wisner claims that al-Khatib: “Looked at one deposition and one photograph” to build his report.
- When asked about alternatives to pesticides, al-Khatib shares that there are alternatives to spraying Roundup, but that using non-chemical solutions like steam has its own set of dangers. We hear of how steamer boilers can blow up and don’t ultimately kill the weed down to its roots.
It turns out that al-Khatib has two patents, which he first claims are: “not about herbicides, (instead) about sorghum.” Wisner asks: “Ok sir, you have a financial interest in the use of herbicides, don’t you?” Al-Khatib says that the patents are registered only because UCD requires any discoveries made at the university be patented. Wisner clarifies that one of the patents was licensed to DuPont. If they commercialize it, al-Khatib will make a great deal of money. The commercialization of the patent relies upon THE CONTINUED USE OF HERBICIDES. His patent description reads (1):
Acetyl-CoA carboxylase herbicide resistant sorghum
The present invention provides for compositions and methods for producing crop plants that are resistant to herbicides. In particular, the present invention provides for sorghum plants, plant tissues and plant seeds that contain altered acetyl-CoA carboxylase (ACC) genes and proteins that are resistant to inhibition by herbicides that normally inhibit the activity of the ACC protein.
Impeachment doesn’t get much better than that.
Ms. Edwards explains that al-Khatib did review Johnson’s testimonies and he was just nervous during the cross-examination. I believe it, because as I said, Wisner is scary when attacking. It would be unusual not to be nervous.
THE TESTIMONY OF DR. MATT ROSS
Monsanto calls the witness Dr. Matt Ross by video testimony. Dr. Ross has a PhD in Molecular Biology and studies the impact of environmental toxins on cells. He was also part of the mechanistic section of the IARC working group. In this video, we hear from both Defendant and Plaintiff.
I can’t say why Monsanto opted to show this testimony. It seems redundant – at this point, everyone in this courtroom could recite the details of the IARC process five tequila shots in. I’m not sure that I’ve seen the preamble to the US Constitution as many times as the preamble to the IARC monograph. In fact, without referring to my notes, I’m guessing that Ross spoke about:
- IARC Meeting in Lyon in 2015. The research leading up to the meeting was done over many months prior to the meeting in Lyon.
- There were subcommittees that concentrated on certain aspects of the review.
- IARC found significant evidence on glyphosate causing genotoxicity and oxidative stress in mechanistic studies.
- For goodness sake, the IARC only relies on published research. Who at this point doesn’t realize this?
- IARC focuses on hazard identification.
- It is an honor to be asked to join the IARC committee.
I’m correct! My notes tell me that Monsanto also questioned Ross about a coffee that he grabbed with his IARC colleagues while in Lyon, during which they discussed if the mechanistic data is strong enough to consider suggesting an upgrade to the overall evaluation of carcinogenicity. No upgrade was ultimately suggested.
Ross is wearing a really cute blue gingham buttondown shirt with a patterned brown tie. He looks completely unconcerned about anything at all throughout the testimony. He has a swagger a bit similar to that of Dr. Portier.
THE TESTIMONY OF DR. AARON BLAIR
Monsanto calls the witness Dr. Aaron Blair by video testimony. Dr. Blair is a leading cancer epidemiologist and was chair of the IARC Working Group 112. He has a PhD in genetics from North Carolina State and a Masters of Public Health. Blair has served as the Chief of the Division of Cancer Epidemiology and Genetics at the National Cancer Institute.
Dr. Blair has very little animation at all. He has gray hair. His glasses are silver. He wears a gray jacket on a gray polo shirt. His expression is the same slight frown and he uses a monotonous, gray voice throughout the testimony. My eyes are feeling heavy, so I reach for my dark chocolate stash to keep going. Security knows I have that stash now, but they seem willing to let me indulge a bit despite the no-food policy of the courtroom. In terms of transgressions, I pale in comparison to the foul body odor from someone on the Monsanto side. I mean.
While it is Monsanto that called for this testimony, the video is edited to play more like the Plaintiff is doing the direct and Monsanto is doing the cross. So I’ll designate it as such.
I kid you not that the testimony begins with the first page of the IARC preamble. I can’t even.
After discussing some aspects about IARC study guidelines, we hear that at the IARC meeting, there were several observers. The observers included Jess Rowland from the EPA and Thomas Sorahan, an epidemiology consultant hired by Monsanto.
The jury learns the following:
- Epidemiological studies showed an increase in NHL in farmers before glyphosate was on the market.
- The Agricultural Health Study (AHS) was formed to address issues that epidemiologists were having in their case control studies and related recall bias.
- Blair was contacted by and met with attorneys in December 2015. They asked if he could provide advice regarding litigations such as Johnson’s. Blair said no.
Most notably, Monsanto questions Blair about whether he intentionally delayed sharing data with IARC from the Agricultural Health Study (AHS) that showed no statistically significant association between glyphosate and NHL. Monsanto attempts to show that Blair, head of the IARC WG112, was biased in what data he did or didn’t share with the working group panelists. Blair responds that the study wasn’t published at the time, and that is why it was not under consideration under IARC rules.
Monsanto shows emails in which Blair initially offers help to try to get the study published by the IARC deadline. Monsanto suggests that Blair then saw preliminary, unfavorable data that showed non-carcinogenicity, and delayed the publication as to not qualify for consideration at IARC. Blair agrees that if that study were incorporated into the IARC review, it would have impacted their epidemiological conclusions.
More Monsanto witnesses!
I wrote down “Lionel Richie” is the next witness, but I must have been losing my mind. That would be quite a happy surprise though.
8/1/18 Edited to correct – Monsanto asks whether Blair tried to delay sharing data from the AHS study, not the NAPP study that was previously written.
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