It’s an eerie morning. The migrating smoke from wildfires north of San Francisco casts a sinister amber haze. As I drive north to San Francisco, it feels a bit like an ominous warzone. Wildfires are devastating communities in Mendocino and many other towns throughout California. I’m convincing myself that this can’t be any kind of superstitious sign about today’s Closing Statements. Perhaps we will have a metaphoric phoenix-rising situation.
San Francisco has a rather putrid combination of fog and light smoke filling the sky this morning. The courthouse is surrounded by a long line of people awaiting security screening. At first, I celebrate that word of this case has finally spread, and eagerly scan the crowd for signs and megaphones of protest against Monsanto. I soon realize that the crowd is just there for jury duty and that San Francisco is so much more Silicon Valley 2018 than Haight Ashbury 1968.
The original plan was to move the trial back to the gigantic courtroom in which we heard Opening Statements. However, the trial was mysteriously reassigned back downstairs to the small courtroom. Press get seats and any extras are distributed by lottery. By the time the trial starts, the chairs are all filled by media, friends of friends, actresses, big men, tiny men, hippies, lawyers, moms and activists. One amazing woman is getting the Roundup out of UC Berkeley. There are fancy suited people that I have never seen before at the trial – I think they must be Monsanto execs. The attendees who didn’t hit it big in the lottery are watching video streaming of the trial upstairs.
News channels film interviews of the lawyers in the hallways. There is not much blank wall space in the courthouse, so the interviews are filmed in front of a small stretch of white wall near the bathrooms by default.
Today is Brent Wisner’s championship match. He looks particularly handsome and charming, with charismatic eyes and a wide, warm smile. His parents have a prime seat in the audience. Wisner reminds me of a lot of fraternity guys that I’ve known – smart, fun and ever so slightly disheveled. His distinctive laugh is so boisterous that it can be heard down the hall. Before heading into the courtroom, I briefly chat with Lee Johnson and reaffirm what a warm, creative, and impressively level-headed man he is. This verdict just has to go his way.
PRE-JURY
Monsanto successfully convinces Bolanos to strike portions from the Dr. Sawyer and Dr. Benbrook testimonies.
Regarding Dr. Sawyer, Monsanto wants to strike all portions in which he suggested that there are other studies about which he couldn’t talk and that the surfactant POEA is banned in other countries. Sawyer also shared with the jury that Monsanto performed large in-house testing on farm worker exposure but did not provide the study results to the EPA. Bolanos decides that should be struck because it is not relevant and more prejudicial than not. (!) As per usual, Dickens delivers brilliant arguments that are dismissed.
Next issue: Monsanto objects to a few of Wisner’s slides that he prepared for closing. In the slides, Wisner draws comparisons between the science in this case and the science identifying tobacco as a carcinogen. Monsanto says that the slide implies that Monsanto chooses to keep the company of tobacco companies and is supportive of their behavior. I know that Monsanto attorney Mr. Lombardi DOES keep the company of tobacco companies and proudly represents them. I guess that doesn’t count.
Wisner lays in, pointing out that the comments on the slides are taken directly from Dr. Mucci’s testimony that was not objected to at the time. Dr. Mucci credited epidemiological studies for finding the association between tobacco and lung cancer. Monsanto’s argument that the epidemiology studies do not support glyphosate carcinogenicity happens to be the same line of attack that tobacco companies used to claim that smoking doesn’t cause cancer. Up until the very end.
After more debate, Wisner delivers an impromptu speech on the nature of trial law. When he prepares to launch into an argument, it is similar to chilling in an airplane waiting on the tarmac, and then feeling the engines roar for takeoff. He says: “The problem is that literally my job is to point out evidence that supports my position. It’s not prejudicial.” He continues that every major carcinogenic substance had the same story as Monsanto – there was a fight and science was emerging. He says: “I’m going to tell the jury that [Monsanto] is worse!” True dat. At least people could more or less pick their tobacco exposure, except for second-hand smoke. With Roundup, most of us don’t even knows where it’s been sprayed or what it is.
Bolanos permits the slide but warns Wisner to make sure that his argument is only based on evidence presented to the jury.
Mr. Griffis of Monsanto doesn’t like a slide depicting a scale with a feather on one side as Wisner’s description of burden of proof. Wisner says that slide is used by every plaintiff lawyer. Bolanos permits the slide, but reminds Wisner that in regards to punitive damages, the burden of proof is higher than that scale with a fluffy white feather.
Nervously looking at the clock, Wisner asks if the morning session can extend to 12:15 so that his prepared timing works out. She agrees.
JURY INSTRUCTIONS
The jury enters through the side door behind the bench, rather than the usual double doors in the back. Bolanos enters, sans-pink collar, and the clerk hands out packets of stapled paper jury instructions to each member of the jury. Bolanos reads the jury instructions aloud, and is so boring that I will spare you most of the details. She describes what their responsibilities are and specifically what they are deciding in terms of damages to Johnson as well as punitive damages.
The jury is instructed that Monsanto did not make the product Agent Orange, so don’t consider it in your deliberations. In fact, Monsanto DID make Agent Orange, but they strategically restructured Monsanto in such a way that “Old Monsanto” is no longer associated with Monsanto today. Along those lines, note that the following is currently on the Monsanto website.
Research on Agent Orange has been conducted for decades and continues today. While a causal connection linking Agent Orange to chronic disease in humans has not been established, some governments have made the decision to provide certain medical benefits to veterans and their families even though there has not been a determination that an individual’s health problem was caused by Agent Orange.
I guess they refuse to admit a causal link to any disease due to Agent Orange. Sounds familiar.
The jury is instructed to disregard any reference that Dr. Portier made to the California EPA.
Wisner keeps glancing at the clock while Bolanos reads through the pages, line by line. He’s ready to fight.
PLAINTIFF CLOSING ARGUMENTS
Mr. Wisner stands in front of the jury and takes a breath. Some members of the jury smile, most are deadpan. By the way, from silently observing through the weeks, I know this jury to be of the jolly variety when not in the courtroom. They are kidders. But in court, they are professional and take their jobs very seriously.
Wisner begins the speech that I suspect he has been drafting in his head while rocking out to Rocky’s Gonna Fly Now.
As anyone who has written a five-paragraph persuasive essay knows, it’s important to connect the introductory paragraph to the concluding paragraph. Wisner revisits the idea of choice that he presented at Opening Statements. He points to all of the choices that Monsanto made that ultimately led to Lee Johnson’s cancer. Monsanto hid the Parry report from the EPA, rejected further study of the formulated Roundup product because it would kill the rats and mice, engaged in ghostwriting of studies, and refused to relabel the product after IARC’s classification that glyphosate is a probable carcinogen.
Wisner gives us a sound bite that garners silent applause – “Today is their day of reckoning…The day Monsanto is finally held accountable.”
He reminds the jury about the impact of their verdict: “It actually changes the world. I told you all that you are part of history.” He thanks them for their attention and time, and moves into the meat of the arguments.
Monsanto presented four live witnesses who only looked at the science of their specialties, not the entire picture of scientific evidence of the carcinogenicity of glyphosate. This strategy of isolating witness specialists into subspecialties is called “atomizing.” Not a single Monsanto witness discussed the mechanistic data, which Wisner claims to be an indicator that Monsanto couldn’t find anyone in that field who could support their side. Wisner stresses that the Plaintiff brought in five experts, and each one looked at all the available evidence, including the mechanistic studies. That is how the Plaintiff witnesses could conclude that Roundup causes cancer, by considering the totality of the evidence.
Wisner discusses the problem with Monsanto hiding behind the word of the EPA. The EPA’s word can only be trusted so much because they did not follow their own guidelines when evaluating glyphosate. They did not follow these guidelines even when criticized by the Scientific Advisory Panel that was brought in to assess their 2016 evaluation of glyphosate. Furthermore, Wisner states that the EPA has a “dog in the fight,” has made mistakes before, strangely neglected to test the formulated product, and allowed EPA employee Jess Rowland to be cozy with Monsanto.
The Case involves three fundamental questions:
- Can Roundup be a substantial contributing factor in causing cancer?
- Was Roundup a substantial contributing factor in causing Mr. Johnson’s cancer?
- Did Monsanto act with conscious disregard for human health?
I’ll break out the arguments that answer each question below.
#1 – Can Roundup be a substantial contributing factor in causing cancer?
Epidemiology
Wisner walks through Monsanto’s arguments on confounding, showing several examples of experts testifying that confounding is not a major concern. He highlights excerpts from the testimonies of Dr. Mucci, Dr. Goldstein and Dr. Benbrook. As previewed in the pre-jury session, Wisner points to the idea of confounding in epidemiology as the last argument from the tobacco companies to finally fall.
Through the course of the trial, Monsanto also claimed that proxy bias weakened the studies that showed support for carcinogenicity. Wisner restates previous arguments that, if anything, proxy bias tends understate the estimated risk of developing cancer. Mucci suggested that all proxy data should be eliminated. Of course in doing so, that means that anyone who died of cancer from the exposure would not be accounted for in the study. Lame.
Monsanto keeps bringing up the NAPP study to support its case. The NAPP study, which I have discussed before, states: “From an epidemiological perspective, our results were supportive of the IARC evaluation of glyphosate as a probable (group 2A) carcinogen for NHL.” That shouldn’t align with Monsanto.
The AHS study again. In a 1997 email, Monsanto scientist John Acquavella wrote that he is concerned about the quality of the AHS study. His hypothesis reads: “Most of the diseases to be studied in the AHS have scant reasoning to link them putatively to pesticide exposure.” Acquavella further writes: “The exposure assessment in the AHS will be inaccurate…Inaccurate exposure classification can produce spurious results. The conventional thinking in epidemiology is that exposure misclassification will most often obscure exposure disease relationships.” In Aaron Blair’s paper on the Impact of Pesticide Exposure Misclassification in the AHS, he writes that: “Pesticide misclassification may diminish risk estimates to such an extent that no association is obvious, which indicates false negative findings might be common. In other words, Monsanto’s own scientists were concerned that this study was inherently biased toward finding no link to cancer.
TOXICOLOGY
There are the cutest little mouse and rat pictures on the slide that Wisner shows, each with sweet eyes and pink nose. Of course, in this example, those cute little guys die of cancer from glyphosate. It cracks me up to think about the all-male legal team picking which little faces are the most compellingly cute. In fact, I think there must have been a woman involved in this particular slide.
In the rats, Wisner says the skin study is most interesting given Johnson’s cancer in the skin. The Portier chart shows tumors in the rats’ skin in multiple studies.
In the mice, the studies show plenty of malignancies. Every study showed some type of malignant lymphoma. When Defendant expert Dr. Foster talked through the mice studies, he said that if you look at the ranges of malignancies in historical controls, the average was 12%. After Wisner asked him to sum up and average a dataset of historical controls, Foster corrected himself and said that the averages is 4%. So, in any given study, you should expect 2 tumors, not 6 tumors, in the control group. The EPA concurs with Monsanto and dismisses the malignant lymphomas because they use a more generous range of historical controls. Wisner concludes that the evidence is mounting that there is a specific link between glyphosate and lymphoma.
Regarding the toxicity of the formulated product, Wisner shows an email from Monsanto “Chief Top-Dog Toxicologist” Dr. Heydens. In the chain that includes Heydens and Dr. Farmer (aka “the defender of glyphosate”), an outside laboratory scientist asks if they: “need to give any consideration to exposure of formulants in the commercial product, at least in applicators? I was under the impression these were inert but reading a response this morning in the Ecologist makes it sound like it is the combination that is toxic!” Dr. Heydens responds: “The short answer is no. The focus of this is what is the carcinogenic potential of glyphosate. That said, the surfactant in the formulation will come up in the tumor promotion skin study because we think it played a role there.”
Long and short – Monsanto knew that the formulations were toxic.
To answer question #1, Roundup can be a substantial contributing factor in causing cancer.
#2 – Was Roundup a substantial contributing factor in causing Mr. Johnson’s cancer?
The chronology of Johnson’s illness is a substantial issue that Monsanto likes to tinker with. Wisner argues that it really doesn’t matter if his cancer started in 2013 (which he says it didn’t) or 2014, because minimum latency to develop cancer after exposure is only four months.
Wisner says that Monsanto wants the jury to think that latency is long. He also points out that Monsanto’s version of latency keeps changing – 12 years, maybe 6. Wisner sates: “The simple fact is there is no minimum latency for non-Hodgkin’s lymphoma that is more than four months. That’s the minimum latency.” As Dr. Sawyer explained during his testimony, latency varies dependent upon whether the exposure was a lot in a short time vs a little over a long time.
Wisner presents the timeline as the Plaintiff knows it. I’ll list the points that will be under contention, though the Plaintiff presents a much more comprehensive timeline.
- June 2012 – Johnson begins job as an integrated pest manager for the Benicia School District
- August 2012 – Completes the first spraying season using a truck sprayer pumping 50 gallons/hour
- May 2013 – Begins his second intensive spraying season
- Summer 2013 – Gets a massive exposure when a hose breaks and spews Ranger Pro all over his body.
- August 2013 – Completes his second season of spraying
- September 2013 – Presents to doctor with several wasp stings. Medical record at the time states “Negative for rash.”
- December 2013 – Presents for lumbar injury, medical record states “no deformity, no shift, no scarring, no swelling.”
- February 2014 – Gets second major exposure while using backpack sprayer
- May 2014 – Develops a rash on his skin that does not respond to normal treatment
- August 2014 – Following several biopsies, Mr. Johnson is diagnosed with Mycosis Fungoides.
- October 2014 – Begins treatment with Dr. Ofodile at Kaiser
Wisner says that Monsanto will argue that none of his treating physicians think that Roundup caused Johnson’s cancer. He says that is a “Flat-out lie. Flat-out lie. The only [treating doctor] who’s testified was Dr. Ofodile. And what Dr. Ofodile said is she told him to stop spraying it. Yeah, she doesn’t know for sure if it caused it, but she’s sure concerned.” The jury also learns that Dr. Ofodile paid her own way to come testify on behalf of Johnson.
Also in October of 2104, IARC announced its investigation into glyphosate. In November 2014, Johnson called Monsanto asking if the Ranger Pro might have caused his cancer. He never received a call back.
Wisner continues describing the horrifying details of Johnson’s cancer, including the sores on his eyelids that hurt every time he opened and closed them. Can you even imagine that torture? I look over to Johnson who is slouched and looking down at the table. I feel for him.
#3 – Did Monsanto act with conscious disregard for human health?
Instead of calling Johnson back, Monsanto was busy writing up a “Preparedness and Engagement Plan for IARC Carcinogen Rating of Glyphosate” in February 2015. Wisner points out “That’s NOT science. If you don’t know what the results are going to say, you don’t ‘Orchestrate Outcry.'”
He argues that this is deliberate disregard to human health.
Additional evidence of conscious disregard:
- In May 2015, Monsanto drafts a presentation entitled: “Proposal for Post-IARC Meeting Scientific Projects.” In this presentation, there is a list of ideas as to why Monsanto should be on the offensive in light of the IARC classification. Among the reasons? The severe stigma attached to Group 2A Classification and the need to provide “air cover” for future regulatory review. Disturbingly, Monsanto also lists “litigation support,” anticipating lawsuits from cancer victims.
- That famous email between Wilbur Ellis employee Greg Fernald and Monsanto employee Steven Gould in which Fernald writes: “We are being overrun by liberals and morons…sort of like a zombie movie, so we just have to start taking them out one at a time, starting with the elections next year.” Gould forwarded that email with the note: “I like this analogy from Greg.”
- Gould does a cost analysis of a probable drop in California municipality sales because of the gradual reduction in glyphosate use in California school districts following the IARC ruling. Wisner points out that at the same time as Monsanto was running the financials, they didn’t call Johnson, who worked spraying the product on California schools, back to talk about any potential health risks from spraying Roundup.
- Kuzel’s testimony. It was abhorrent, as GG noted. Wisner stresses, “That Monsanto would call someone up here and speculate about bone marrow transplants that no one has ever offered to him, that he might live [30 more years], when his most recent scan showed the exact opposite, is outrageous. It is disgusting. It is reprehensible. That man [Kuzel] has no dignity.”
Damages
Wisner delicately presents their suggested compensatory damages and reasoning behind their calculations.
Compensatory damages: Economic Damages + Non-Economic Damages = $39,253,209.23
For punitive damages, the Court spoke of evidence of “malice.” Wisner says: “Malice is, sort of, an old-timey word.” In the context of this case, malice means: “Anyone who acted with willful and knowing disregard to the rights or safety of another…” Malice does sound like a word from The Scarlett Letter or similar early-American literature.
In awarding punitive damages, the burden of proof is harder in that facts must be proven by clear and convincing evidence. Wisner shows no shyness in suggesting the punitive damages ask amount. He may never show shyness though.
Wisner restates a great deal of evidence that supports Monsanto’s conscious disregard for health and safety. The dollar amount that Plaintiff counsel thinks will deter Monsanto’s future wrongful conduct is the interest Monsanto makes on their cash on hand ($62 million/year) x 6 years from the time Johnson was exposed through his likely death. “I want every dollar they made on interest for those six years. Six times $62 million is $373 million.”
Midday Notes
The last few hours were inspirational. Wisner has a gift for inspirational sermon delivery – his argument almost felt religious. It certainly felt religious and then some to some of the fangirls present. : )
UPDATE: Because I want to get the above information out as soon as possible, I will work on the recap of Monsanto’s closing argument upon publishing this post. In case I do not publish that post before the verdict, my conclusion as of tonight (8/8/18) is that it is a tossup. As you will read, Lombardi successfully set doubt in the hearts of the jurors about whether the Ranger Pro possibly could have caused Johnson’s cancer. And it broke my heart.
I sat in the courtroom today, the first day of deliberations, waiting for any kind of information release. All that I know is that the jurors asked for post-its and Dr. Nadhan’s testimony about Johnson’s illness timeline.
© 2018 Kelly Ryerson ALL RIGHTS RESERVED
