Day 16 – What Hypothetical? MR. JOHNSON Is The Hypothetical!!
Surprise! Neil Young and Daryl Hannah are in the house today. Young and Hannah are activists in the fight against Monsanto, and Young released the album The Monsanto Years in 2015.
As we all settle into the courtroom, the bailiff asks Young to remove his hat. I don’t think it is proper to ask “The Man in the Black Hat” to remove his hat. But Young takes it off, proving that no one but Monsanto is above the law in this room. The jury notices this couple, who are strikingly cooler than any of us. Hannah’s hair is a long, bright platinum set into loose braids. Perhaps yesterday’s Defendant witness Mr. Foster would like some tips for his mane.
I’m thrilled that they are here to help fight this fight and bring greater attention to Monsanto’s inexcusable behavior and toxic products. I wonder if the jurors who recognize these celebs, who are sitting on the Plaintiff side, are influenced in their decision. It’s easy to reject the opinions of lawyers and people with names like Glyphosate Girl, but Neil Young? I note even super serious Monsanto attorney Kirby Griffis smiling like a spellbound fan over at the Defendant table. I’m actually really happy to see him smile as it gives me a small bit of hope for the future of humanity.
On to the trial.
Monsanto and expert witness Dr. Timothy Kuzel plan to argue that Johnson had lymph nodes as early as Fall of 2013 in an attempt to make it appear that Johnson’s Non-Hodgkins Lymphoma started well before his large RangerPro exposure. There is a medical record following Johnson’s car crash in September 2013. In that record, a doctor determined what injuries Johnson sustained in the car crash, and happened to note a swollen lymph node. As we all know, one can have swollen lymph nodes from a number of mundane conditions, including a sore throat.
Monsanto seeks to turn this note in Johnson’s medical chart into an indication of cancer. Delightful Dickens argues that nowhere in Dr. Kuzel’s expert report is there a discussion of lymph nodes, and that it would be highly prejudicial to allow it into testimony now because the Plaintiff has not had an opportunity to prepare to address that claim.
Bolonos sides with the Plaintiff – win!
Speaking of sore throats and colds, the virus plaguing the jury has now spread to the outskirts of the jury panel, as those closest to patient zero are in recovery. Between the group of them, they have a large supply of cough suppressing lozenges. Down in the Mint Café, they are running low on chamomile tea.
THE TESTIMONY OF DR. TIMOTHY KUZEL
Mr. Griffis is up again, which means I will need to strain to hear the Direct. The jury has started to show up in thick fleece and chunky scarves due to the remarkable microtemperatures within the small courtroom. I wonder if the cryotherapy is a strategy to keep them awake, or simply taxpayer money not at work.
Mr. Griffis calls expert witness Dr. Timothy Kuzel. The backdoors open, and a man with gelled silver hair and an energetic gait walks into the courtroom. He seems smooth and calm, coifed and manicured.
Dr. Kuzel is a practicing hematologist and oncologist who specializes in NHL and specifically Mycosis Fungoides (MF), Johnson’s subtype of NHL. He received his MD at University of Michigan, completed his residency at Northwestern, and in 2016 became the chief of hematology, oncology and cell therapy at Rush University Medical Center.
Kuzel’s research interest has focused on novel cancer treatments and immunotherapy. He has authored or co-authored 50-75 peer-reviewed studies on T-Cell Lymphoma and MF. He has been a principal investigator for hundreds of clinical trials, including trials for therapies aiming to treat or slow down MF. In addition to clinical trials, Kuzel thinks about what genetics may make an individual more susceptible to MF.
When he worked more regularly in clinic, Kuzel saw only 50-100 MF patients per year because it is a rare disease.
Mr. Griffis offers Dr. Timothy Kuzel as an expert in MF, cutaneous T-Cell lymphoma, NHL and more that I can’t make out from Griffis’s library hush.
Dickens confirms that Kuzel is not offering opinions on the causes of NHL.
Judge Bolanos confirms Kuzel as an expert in MF, cutaneous T-Cell lymphoma, and NHL.
DIRECT TESTIMONY OF DR. TIMOTHY KUZEL
A large chunk of the morning is spent walking through the scientific description of Non-Hodgkins Lymphoma. Griffis very quietly mumbles questions, and Kuzel expands upon ideas as presented in slides that Kuzel later confirms “Monsanto created.”
- There are 3000 new MF cases in the US each year.
- Nearly all NHLs have no known cause. Viruses are known to cause specific forms of lymphoma.
- Kuzel uses Roundup regularly himself with no safety precautions.
- Kuzel was hottie babe Dr. Nabhan’s teacher. (!)
- Different NHL subtypes present different symptoms.
- We don’t know of any causes of MF. It is more common in males and African Americans.
- When he sees patients who are curious about whether any exposures could have caused their cancer, he responds: “We don’t know what causes MF.”
- Nabhan said that the majority of NHL is idiopathic (i.e. we don’t know the cause). Dr. Kuzel says EVERY case of MF is idiopathic.
- AND — WAIT FOR IT — Dr. Kuzel says of MF that: “It may have been ‘bad luck’ that some of their cells changed.”
GG Sidebar: Excuse me while I go slam my head against the wall several times while screaming “Kelly Clarkson!” Shoot, I have to stay composed and professional-like, so I’ll just type with extra vigor. This statement of “bad luck” is antiquated thinking, yet so extremely common among physicians. The sentiment of dismissal clearly is what they are taught in medical school. Actually, anyone who has been told that your health condition is “bad luck” or “bad genes,” when you are certain or even vaguely suspicious otherwise, knows what I’m saying here. When someone has been drenched in a chemical that at least one group of very specialized, educated toxicologists says is a carcinogen, how could a doctor specializing in NHL/MF say that the cause is more likely “bad luck?”? It is just flat-out illogical.
THOUGHTS ON MF AND GENOTOXICITY AND OXIDATIVE STRESS
Dr. Kuzel says that MF has not yet been traced to a specific, single gene mutation. Kuzel suggests that DNA mutations from oxidative stress or genotoxicity are not involved in the process of developing MF. As an alternative, he suggests epigenetics – or the change in organisms caused by modification of gene expression, rather than alteration of the genetic code itself. This point tries to discredit Plaintiff’s and IARC’s claim of evidence of glyphosate’s genotoxic and oxidative stress effect.
TIME REQUIRED TO DEVELOP CANCER
Griffis quizzes Kuzel on how long it takes for a person to progress from having just a few cancer cells to something that is clinically diagnosable. Kuzel answers that one would: “Need to have enough cells to get to a single spot to biopsy. Probably takes years to develop from the first cell to when it becomes clinically diagnosable.” That one diagnosable cancer patch equals approximately one billion cancer cells, which requires 30 months to develop. Kuzel explains that it takes this long because the human immune system tries to fight it along the way, until the cancer cells “hit their stride.”
TREATMENT OPTION FOR A CURE
Dr. Kuzel shares that there is no easy cure for MF, but treatments can prolong life expectancy. The only potential cure for the disease is a stem cell transplant, which has shown to cure 50% of patients. The risks are high, however, with the other half dying of complications. Kuzel says that it would be hard to say if Johnson is a candidate. There are fewer stem cell donors that are African American.
REVIEW OF JOHNSON’S MEDICAL RECORDS
Alright folks, we know what is going to happen here. We are going to hear about how Johnson had signs of MF in 2013. Kuzel is actually pretty smooth in his delivery.
All facilitated by Mr. Griffis, we learn:
- Nowhere in the medical records does a doctor state that he/she thinks that glyphosate-based-herbicides (GBH) were the cause of Johnson’s cancer.
- He wouldn’t tell any patient to stop using any product if he wasn’t entirely certain it was causing the cancer. He says that even in the case of lung cancer in a smoker, he can’t be sure that the smoking actually caused the cancer and he might advise the patient to keep living their lives the same way. Why, hello there, echoes from 1950s.
- Large cell transformation doesn’t necessarily mean that the cancer is worse.
Griffis presents a timeline of Johnson’s MF progression from the view of Monsanto. It looks like this:
- Fall 2013 – First onset of rash
- August 2014 – T-Cell Lymphoma diagnosis
- November 2014 – Started UVB phototherapy
- March 2015 – Squamous cell diagnosis (skin cancer different from his NHL)
- November 2015 – Started Electron Beam Therapy
- November 2015 – Dr. Hoppe letter that Johnson can go back to work following treatment
- September 2016 – Started Brentuximab – a cancer treatment that consists of a targeted-therapy antibody alongside chemotherapy. Johnson had severe side effects
- November 2017 – Started Pralatrexate and had success, though the positive effects are only temporary and not a cure
- March 2018 – Complete remission (WHAT NOW!!!????!!! HAVE YOU SEEN OR TALKED TO THE MAN?? Oh no, that’s right, he hasn’t.)
With this timeline in mind, Kuzel makes commentary as follows:
- Monsanto continues to push the idea that evidence of Johnson’s cancer exists starting in 2013, not 2014, to make glyphosate exposure an unlikely cause of Johnson’s MF. Plaintiff expert witnesses have explained that not only was Johnson’s memory foggy, but also if any typo existed in a recount of Johnson’s story at any doctor visit, it is likely to show up in other files. Doctors tend to cut and paste patient information from one file to another.
- In opposition to all previous testimony of Johnson’s dermatologist Dr. Ofodile, Kuzel does not think that Johnson’s squamous cell carcinoma was from the intense UVB therapy used to treat his MF. He says that it would take years to develop and would not likely occur in someone with dark skin. Griffis points out that, in that case, the squamous cell cancer would have started to develop years before 2015.
- Most MF that he sees is diagnosed at an early stage of the disease. Despite plaintiff testimony that Johnson’s cancer is particularly aggressive, Kuzel says that Johnson’s case isn’t an outlier among other cases.
- When Kuzel states that Johnson is in full remission in March 2018, a lot of eyebrows raise among the jury. There is clear confusion, because we absolutely know that Johnson is not in complete remission. This claim is a egregious error, and I am loving it.
CROSS-EXAMINATION OF DR. TIMOTHY KUZEL
Deductive Dickens steps up to the plate and takes on the cross-examination today. He likely feels extra adrenaline because in nearly every objection he called during the direct, Bolanos rapidly overruled. Like an automated recording.
Dickens kicks things off by asking if Kuzel formed his opinion on glyphosate from any epidemiology studies. Kuzel answers that he didn’t look at the epidemiology generally, only in the setting of the recent AHS study, which we have heard more than enough about by this point. Any other information that he used to form his opinion comes from the textbook chapters that he himself wrote. Dickens hones in on the epidemiology, asking: “The only epidemiology with regard to glyphosate/Roundup came from Monsanto…The study that Monsanto claims is the biggest and best…Was that provided to you by Monsanto?” Dr. Kuzel says that is the only epidemiology study that he was provided by Monsanto.
Dickens asks about one of the slides that Kuzel presented when teaching the jury about NHL. One of the organizations Kuzel cites as a source of that information is the National Cancer Society (NCS). Dickens asks Kuzel if he is aware that the NCS lists glyphosate as a “probable carcinogen.” Kuzel answers that he did not know that or think to check it.
Dickens asks Kuzel if it has always been his opinion that cancer takes years to form into a clinically diagnosable state. Kuzel answers yes. Dickens offers up a deposition transcript in which Kuzel speaks of a former patient of his who suffered from melanoma. In that deposition, Kuzel stated that it typically takes six months to one year from when a cell first changes to forming into a detectible mole. In regard to Kuzel’s current opinion of 30 months minimum, Dickens claims: “Your opinion [changed] after Monsanto paid you.” Monsanto paid Kuzel $15K – $20K. It’s good that they didn’t pay him more, because if anything this testimony is seriously damaging their carefully curated case.
Dickens asks if Kuzel is familiar with the Precautionary Principle – when an activity raises threats of harm to human health or the environment, precautionary measures should be taken even if some cause and effect relationships are not fully established scientifically. Kuzel answers that he is aware of the principle. Dickens reminds Kuzel that he testified during the direct that he wouldn’t warn a smoking lung cancer patient to stop smoking. Kuzel responds that he would: “Continue to tell them to live their life.”
Dickens dives deeper into the same philosophy, asking Kuzel if “your patient came in with MF and said he was spraying 150 gallons of Ranger Pro, you’d tell them to continue doing so?” Kuzel responds: “That’s hypothetical,” and asks for more details of such a case. Dickens semi-shouts: “HYPOTHETICAL???!! The hypothetical is MR. JOHNSON!” Dickens asks again: “If he came to you, and said I’m getting this all over my face..” Kuzel responds: “If he said I’ll starve if I don’t do this job, then I would say there is not evidence that it will hurt you.”
Later during the cross, Kuzel changes his tune a bit, and says that in the example of a smoking lung cancer patient, he: “Will tell them that it was cigarette smoking…Won’t say it is 100% certain because it could have been something else [that caused the lung cancer].”
Dickens points out that there are NO contemporaneous medical records from 2013 that say Johnson had any kind of rash. Kuzel agrees, but says that in several records from later years, there is a note that the rash started in 2013. He admits that there is no record of a rash when Johnson saw a doctor following his 2013 car crash.
Dickens is curious why Kuzel’s exhibit recounting the timeline of Johnson’s illness ends in March of 2018 with the label, “Complete Remission.” Dickens asks if Dr. Kuzel has seen Johnson’s PET scan from June, and he replies that he has, but that he: “Wasn’t sure what that PET scan means.”
OH MY GOSH – did this just happen? This “expert” didn’t know how to read Johnson’s recent PET scan? The same PET scan that showed that Johnson’s cancer is tragically very much back? It is just so incredibly shady that Dickens wracks his mind as to what to ask at this point. Wisner makes an X with his arms and loudly whispers, “STOP!” Dickens concurs and reports that he has no further questions.
Monsanto rests their case.
Well, this expert testimony from the Defense could not have been more successful for the Plaintiff. Griffis says that he has no further questions either. I’m sure that after that performance, they just want to grab the hook and pull him off stage.
In defense of Kuzel, I am happy that he is working to find immunological treatments and cures for cancer, but am terribly disappointed that he would “misunderstand” Johnson’s cancer status. Really bummed.
Monday is off, except for lawyers and Bolanos. Tuesday is Closing Arguments! Verdict will hopefully be by Friday. Once again, pray to whomever/whatever you pray to that Johnson emerges the victor.
© 2018 Kelly Ryerson ALL RIGHTS RESERVED