Day 5 – Bueller, Bueller
The lawyers meet up before the jury convenes to discuss a few issues raised by the Plaintiff.
Yesterday, Griffis asked Portier to list all regulatory findings after IARC with which he reviewed and disagreed. Portier included the California EPA on his list. Of course, we know that Portier disagreed with California’s high NSRL determination, not the listing of glyphosate as a carcinogen. Wisner worries that there is now suggestion to the jury that the California EPA disagrees with the IARC conclusion. Bolanos agrees to let Wisner ask one question to clarify the record that CalEPA agreed with IARC.
Glutton for punishment, Monsanto settles back in with their cross examination of Dr. Portier. Truly, this cross examination is so much longer than anyone estimated. Given the numerous times Monsanto counsel has suggested that Plaintiff cut down on witness time allotments, this is quite surprising. I guess they are looking for some way, any way, to find a fault in Portier’s logic and testimony.
Fortunately, Portier’s mental resilience and stamina are more than up to the task.
Griffis begins the session requesting confirmation that Portier is a statistician, not a biologist who can really speak to the science. Portier says absolutely not, his credentials include molecular biology and the only consultant that he’s needed is in his report is a pathologist. The subject comes up as we delve back into the possibility of false positives in the animal reports.
We keep coming back to this topic – Portier repeatedly answers similarly. He also repeatedly speaks to his belief that P-Values are not definitive and are merely a guide. In toxicology, it is critical to assess the biology, not just stats, and look for patterns of various organs and tumors.
EPA OFFICE OF PESTICIDE PROGRAMS (OPP) (You Down With…)
The OPP released an evaluation of carcinogenic potential in glyphosate in 2016. In this review, the OPP pointed to and explained four studies that they did not include in their analysis; Portier did include them in his expert study. One is the Kumar study, which was rumored to be invalid because of a viral infection within the colony that may have contributed to the lymphoma incidence reported. However, this claim of a virus was retracted in 2017 because there was never any proof or factual basis anywhere to corroborate the theory of the virus. Excluding it from consideration is nonsensical. (1 – Page 70)
Another study that the OPP evaluation excluded was the George Study – the “painted mice” study in which a glyphosate formulation was painted on the skin of the mice to assess transdermal effects. Portier is not surprised that it was excluded because the EPA only studies glyphosate, not the formulation. The term “painted mice” sounds so enchanting. What a shame that the mice were not only painted with poison, but had their admirable life’s work entirely disregarded.
There is a tremendous amount of jumping around on topics, so I’ll do a rundown of some of the points.
- Some cancers grow in one sex and not the other due to sex-specific tissues and hormones. Tumors show up more often in males in the animal studies, but Portier does not have a specific explanation as to why.
- We have DNA damage happening all of the time, but measuring DNA damage in peripheral blood is not directly measuring what’s going down in the tissues like the liver.
- Portier only answer questions that he fully understands and can scientifically back to the smallest detail. Griffis tries to evoke more haphazard comments, but Portier doesn’t appear to be someone to veer from the road of precision very often.
- Griffis asks Portier to read some statistics aloud from a report that he did not write nor agree with. It was very odd. Portier reads them in a super monotone, WTF voice.
Over the lunch break, lawyers and the judge reconvene to discuss the California EPA issue again, which was discussed and settled first thing this morning. Ms. Edwards of Monsanto says that if Wisner asks Portier the clarifying question about whether the California EPA agreed with IARC’s listing, it would be “opening a huge can of worms.” Edwards suggests a curative instruction: During Portier’s testimony, he mentioned California EPA, and that reference should play no part in your determination.
Wisner counters that we are trying to correct what the jury heard: that Portier disagreed with the California EPA. If anything, the curative instruction makes it worse because it seems like the Plaintiffs are hiding something from the jury. Furthermore, “this isn’t a door that we opened.”
Bolanos decides that it is best to disregard any reference to the California EPA and will instruct the jury to do so.
UGH!! After hearing the judge’s decision, Wisner makes clear that this instruction will not give the jury any sense as to whether Portier agreed or disagreed with the California EPA. Monsanto asked this question and they got an answer that included California EPA. They knew Portier’s answer to the question before they asked it. Now they get to exclude Wisner from addressing it from Plaintiff perspective.
INCOMING: ATTACK ON CHARACTER
I wondered when Griffis would try to chuck some dirt on Portier. There was a magazine article published on October 12, 2016 in Agri-Pulse entitled Oh, Brother: CropLife Questions Makeup of Glyphosate Panel. (2) In this article, Portier talks about his brother, Kenneth Portier, who had been picked by the EPA to be one of the scientists to serve on the Scientific Advisory Panel to review glyphosate. People involved were concerned that Portier’s activism in the area of glyphosate would influence the decisions of his brother. In court, Portier says that Kenneth would never show bias towards his ideas on glyphosate. He and his brother have exceedingly long scientific debates, and if anything, like to prove one another wrong.
Also in this article, Portier is quoted as saying, “Nobody has paid me a cent to do what I’m doing with glyphosate…I have no conflict of interest whatsoever.” While the context certainly shows that Portier is referring to his work at the Environmental Defense Fund during the IARC hearings in 2015, Team Monsanto suggests that he was lying about his current affiliation with law firms. In an email from the author of the article, the author suggests that while the statement follows reference to the EDF, it was very broad and vague.
Most importantly, it appears the jury is unmoved by this information. In fact, I think that the jury really likes Dr. Portier. Something about the Monsanto attack felt noticeably slimy.
More science is discussed. Nothing particularly important for the direction of the case is shared. There is ZERO animation in Griffis’s voice and Portier is looking a bit fatigued. So is the jury. So is Wisner. So are we. People are getting up to refill their full water bottles just to have something to do that isn’t listening to this situation.
Fortunately, Wisner has a half hour to close out the day and revive our enthusiasm for life. Following the cross examination, he has a list of questions to run through and clarify. I don’t even know where he will begin, but the jury appears to be reawakening.
- The SAP concluded that the EPA did not follow their own cancer guidelines in determining carcinogenicity of glyphosate. The guidelines show how to use historical control data and which statistical tests to use.
- Regarding the newspaper article – there was a push by two groups to have Portier’s brother taken off of the SAP, simply because he’s his brother. His brother Kenneth is a respected scientist in his own right. The EPA didn’t fold.
- OK WOW – The path to the EFSA classification of non-carcinogenic just became much more interesting. Remember that the BfR in Germany did the study on glyphosate and provided EFSA the review upon which to make its decision? Well, BfR sourced its first draft from a group called the Glyphosate Task Force. The Glyphosate Task Force is comprised of people from industry. Furthermore, the draft that BfR used and edited contained words from the agrochemical industry VERBATIM.
Portier is asked to return tomorrow for more redirect and recross.
Judge Bolanos has a list of jury questions that the lawyers are to discuss and plan to respond to in the morning. Some of the questions may have already been answered, though not the questions from the geek chic cellular biologist. Bolanos shares that her questions definitely go well beyond the average juror questioning – I’m glad that she made it onto the jury panel!
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