March 6, 2019

Hardeman Monsanto Jury


While I was outside my job site last week (it passed the lead test, by the way—none detected), waiting for PG&E to turn the power back on to the block, I struck up a conversation with two neighbors. As we were chatting a woman came wandering down the middle of the street heading straight for two PG&E workers. She asked them if they were installing cell phone transmitters, and they said they were not. She went off on them anyway, screaming that 5G is going to give us all brain cancer. The workers were nonplussed and decided to ignore her, so she set her sites on the three of us. As she approached, she unfurled an unreadable poster and started in on her pitch (paraphrased): 5G, microwaves, electromagnetic fields (EMFs) and what have you will kill us all. She also mentions that she fears she will need to sleep inside a Faraday cage to block electromagnetic waves. Hmmm. 

As we politely listened, I was formulating a question for her but thought better of it. I was going ask if she could show me some peer reviewed epidemiological studies that showed an association between EMFs and cancer. (I still have “juror mind.”) As I weighed the benefits against the risks of engaging, one of the neighbors told the woman how she was going through radiation treatment for cancer so she wasn’t worried about 5G radiation at the moment. As the 5G woman walked away, the neighbor apologized for “playing the cancer card, first time I’ve ever done that.”

I recall Dr. Portier testifying that he actually worked on some early studies on EMFs (for the federal government I believe.) Do I think the 5G woman was a crackpot? No. But what is the scientific consensus on EMFs?  A quick trip over to Google takes me to the National Cancer Institute and lo and behold there are studies and meta-studies that show…wait for it…unclear results. Dang, I wanted some closure on this.


Which brings us to Day 6 of Edwin Hardeman v Monsanto. Today, we hear testimony from Dr. Portier, Plaintiff Hardeman and Dr. Dennis Weisenburger. Weisenburger presents a crystal clear synopsis of the science of the three legged stool of causation. Throw in his Bradford-Hill analysis, and a differential etiology, and Dr. Weisenburger is a one man band.

But before we get to the good doctors, let’s take a quick juror count. Six.

Body language and voice tone communicate that Judge Chhabria is peeved about this turn of events. If one more juror drops, we have a mistrial. 


As Chhabria decided yesterday, we watch a short clip about the Dr. Parry episode from the Dr. Portier video testimony. The Plaintiff convinced Chhabria to allow the testimony after Monsanto “opened the door” during their cross examination of Portier. In the edited video testimony, Brent Wisner asks the ever-spry Portier what he knows about Dr. Parry, who, you may recall, was hired by Monsanto to review genotoxicity studies. It’s nice to hear Dr. Portier’s voice again. He explains how Dr. Parry found evidence that glyphosate may be genotoxic and recommended Monsanto should do additional studies. But some of the most the critical studies were never done. This testimony is clearly a crack in the armor of bifurcation. 

It’s hard to tell if the jurors register the significance of Monsanto knowing of evidence of genotoxicity but not fully following up with further studies. Their faces are expressionless.


Our next witness is Plaintiff Edwin Hardeman, who is questioned by Jennifer Moore extensively about his long history of using Roundup in Mendocino County and Sonoma County. He shows the jury a map of the 10 acre Sonoma property with a long gravel driveway, out buildings, trails, and huge water storage tanks. Growing next to, around and over these features is poison oak, Toxicodendron diversilobum

I grew up playing in Toxicodendron pubescens back East,so I was not afraid of poison oak until I had a bad experience while building a large deck project in the Golden Gate Heights neighborhood of San Francisco. Golden Gate Heights is an ancient sand dune, and we were digging footings for the deck in sand that was full of poison oak roots. First my employee got a bad rash, but he was allergic, so I figured I would be OK. No such luck, I got a bad rash too, just before going on vacation where people would look my legs, wince, and give me a wide berth. 

So, I understand if Mr. Hardeman was inclined to spray the hell out of the poison oak, which he unfortunately did—heavily exposing himself to Roundup during the dry season for twenty-five years. 

The paths of exposure:

  • Inhaled the Roundup mist
  • The mist blew back on his face, hands and arms
  • Roundup made contact with his hands when he mixed the concentrated formula with water
  • Wore no protective equipment 

This makes me flash back to Dr. Sawyer’s testimony at the Johnson trial about how the surfactant in Roundup expedites the glyphosate through human skin. Especially if that skin is perspiring, from, say, spraying Roundup in the summer in Sonoma.

After going over his medical history, Jennifer Moore wraps up. Remarkably, Monsanto has no questions for Mr. Hardeman. 


Now, back to my new favorite scientist. Before the jury returns, Chhabria wants to discuss what Weisenburger can and cannot say. He may not quantify risk factors from the McDuffie or Erickson studies. Brain Stekloff says he does not want IARC to play any role the testimony, but Chhabria pushes back and says he may not discuss specific IARC conclusions on genotoxicity, but can speak to the fact of the IARC conclusion. The judge sums this up quite well I think: This trial not a fight between the EPA and IARC, this trial is about Dr. Mucci versus Dr. Weisenburger. I am sorry and not sorry I can’t be here for Dr. Mucci’s testimony, which at the Johnson trial I found, well, less than compelling.

Dr. Weisenburger has the usual resume for a plaintiff’s expert witness. You can fill your printer with paper and set it to print both sides and you will run out of paper long before the end of printing this CV. Let’s just say he is a pathologist of blood disorders with an NHL focus and also has conducted epidemiological research on lymphomas and leave it there.

We start out with the first leg of the three legged stool of causation, epidemiology. Animal studies, and mechanistic studies are the other two legs. We need all three legs to show causation, because two legged stools just don’t stand up, especially not in court. Dr. Weisenburger cites six epi studies we have seen before, as Dr. Ritz has reviewed them. He is an author on one of them, the NAPP study. I like this testimony because it is straight from the source, the scientist who actually did the study. Five of the six studies show two or three fold risks for exposure to Roundup. The “outlier” is the AHS with its exposure misclassification and other problems—Dr. Weisenburger calls it a “false negative.”

Let’s check in on our jurors! Our man and women are looking more like a more serious group, or maybe fatigued. They seem more attentive than last I saw them, and light to moderate notes are being taken. There has got to be some extra pressure from the fact that one more excusal ends the whole production. Good luck ladies and gentleman.

We are not quite done with the epi studies, as we move onto two meta-studies of the five case control studies and the AHS. Jennifer Moore is deftly guiding Dr. Weisenburger through all of his testimony, basically staying out of the way and asking questions to just be in compliance with courtroom procedure. 

First, we hear about Chang et al, an industry sponsored meta-analysis that finds a 30% increase in risk of NHL. Dr. Weisenburger takes this opportunity to mention that IARC found the same risk ratio, and that IARC found glyphosate to be a Class 2A probable carcinogen. This is so out of context that I wonder why the plaintiffs bothered to get this in, but it does not matter, because Dr. Weisenburger is killing it today.

(Play fanfare) A new study! It is by Zhang et al and is a second meta-analysis that includes the 2015 AHS, but looks only at higher exposure classifications. The results show a roughly 40% increased risk and are statistically significant. Zhang also looked at animal and mechanistic studies and came to the same conclusion as Dr. Weisenburger.

(Play another LOUDER fanfare) Studies we have not seen! Dr. Weisenburger, according to a source, “dug them up somewhere.” They are three in vitro studies of human lymphocytes. The Suarez-Larios study shows double DNA strand breaks in the same cells where NHL starts. Next, Bolognesi 1997 found increased chromatid exchange for glyphosate which increased ten times for Roundup. Finally, a third study, whose author I missed, finds effects of Roundup 100 times stronger than glyphosate alone. 

At the break, Chhabria asks counsel if it would be good for the jurors to have the charts and other items that have been “published” (but are not evidence, per se.) I am going with the judge on this one. Very good idea. Well, except for the misleading chart by Monsanto of showing the steep rise of glyphosate use but apparently minimal rise in NHL since the 1980’s. 

Hey Monsanto, even me and my MFA degree can see you fiddled with the scale for NHL rates to make the curve flatten. Bad Monsanto!

The jury returns, and we take a tour the studies of people sprayed with Roundup in Ecuador and Columbia during attempts to eradicate coca plants. They show significant DNA damage of leukocytes and binucleate micro-nuclei. We dive right into Dr. Weisenbuger’s Bradford-Hill analysis: Roundup can cause NHL. Period. 

We move quickly to his differential etiology, which is largely a discussion of several studies that show that Mr. Hardeman’s Hepatitis B and Hepatitis C, which were cured, could not be the case of his NHL. That leaves the negligible factor of obesity, which is ruled out, leaving Roundup. Speaking of obesity, I don’t see the idiopathic elephant in the courtroom today—maybe he comes out during cross examination.

After all are dismissed for the day, I have the pleasure of meeting Michael Miller of the Miller Firm, who argued for Lee Johnson at the JNOV hearing last October. He introduces me to a charming couple who have been sitting next to me, Elaine and Christopher Stevick. (They are the next MDL bellwether case.)

No one would want to be in their situation, but you know what? These two are not letting this mess get them down. It helps to be in the hands of such a capable legal team, but it also helps to have a sense of humor, which I find they do after chatting and laughing for a bit. I look forward to catching up to them this spring—their trial is scheduled to start May 6, assuming there is no mistrial in Hardeman v Monsanto. 

So get plenty of rest and eat your (organic) vegetables, jurors!


No coverage Wednesday (so sorry!)

Coverage on Friday.

Thank you Agent OJ!!!!!

Kelly Ryerson

I’m writing on behalf of all those who are chronically sick, fatigued, depressed, anxious, cancer-ridden, hormonally off, coping with allergies, suffering with pain, digestively wrecked, and accidentally dependent on multiple medications. We deserve to know the truth about how Monsanto's herbicide Roundup has made us a devastatingly sick population.