Pre-Trial Day 8 – Whackamole
New day, new energy! Everyone looks more groomed this morning while putting the finishing touches on the jury selection. David Dickens says that he can confidently say “good morning.”
THE FINAL INTERVIEWS
A soft-spoken young woman who grew up in a farming community in Colorado. She worked in banking but recently made a career switch in to nursing school to become a pediatric nurse. The EPA is political, so she doesn’t assume all of their decisions are great or terrible. I think she will be picked.
A man who co-founded a company a year ago to sell mobile tickets for mass transit authorities. He’s thoughtful, but is inherently negative towards Monsanto and other big companies. He thinks that lawsuits like this one serve as a check on the power of large corporations.
A chatty woman who has strong opinions and is highly data driven on any decisions. She wouldn’t be surprised if Roundup causes cancer. Oh, and her husband is an attorney who talks about work frequently, so she knows how these types of trials run. He also knows a lot about knitting, because that is her passion and they discuss that as well. Now I’m staring at her gray sweater – if she knit that, she is indeed an expert knitter.
A woman from Mexico who grew up in a rural community where her family were farmers. She thinks that they used pesticides, but personally believes in doing the least harmful things to the environment as possible. Apparently, she knows quite a bit about Roundup and does think that chemicals can cause cancer.
A man from the Ukraine who made me feel so patriotic. He describes the judicial system in the Ukraine, in which one judge makes all of the determinations. He states how lucky it is to have a jury, particularly for criminal cases. Before questioning, he runs through his thoughts on the now-predictable questions, making the job easy for the lawyers.
The nursing student rounds out the jury alternates, and all are sworn in; twelve jurors and four alternates.
The jury leaves for the day and we break for lunch. The rest of us return to the smaller courtroom to continue working through motions. Mr. Dickens takes a well earned break from the talking, and Wisner steps in. As we wait for Judge Bolanos, Wisner talks with the Defendant team about acoustics, chair placement and the hassle of moving things up and down from the large courtroom. When the judge enters, they all decide to do Opening Statements up in the larger courtroom to accommodate media filming, but the rest of the trial in the smaller courtroom.
THE RETURN OF PROP 65
The Defense moves to exclude evidence related to Prop 65. They claim that the fact that glyphosate is listed as carcinogenic under Prop 65 is not really relevant to the case and could be very misleading for the jury.
Wisner bites back, arguing why it is absolutely relevant for three reasons:
- The heart of the case. The primary piece of evidence for the Plaintiff is IARCs classification. Monsanto will argue that IARC is the sole outlier in calling it carcinogenic, but that isn’t true. California voters specifically listed that IARC would be considered by OEHHA as a valuable source in determining Prop 65 listings.
- OEHHA notified the world that it would list glyphosate as carcinogenic, which was before Johnson’s last exposure. The only reason why it wasn’t officially listed until 2017 is because Monsanto filed lawsuits against the state for the listing (and lost), and it took time for the final ruling to be made.
- Right around this time, Johnson reached out to Monsanto to report that he had rashes and ask if Roundup could cause cancer. Monsanto never responded. This lack of response goes straight to the issue of awarding punitive damages.
Judge Bolanos suggests that if Prop 65 information is included, then Monsanto should have an opportunity to cross examine someone from OEHHA. Wisner responds that if that is the case, then he should have an opportunity to cross examine someone from the EPA. Burn.
Judge Bolanos hands this one to the Defendant. Wisner says that they will need to discuss this further if Monsanto tells the jury that IARC is the only agency that has claimed glyphosate to be carcinogenic.
GOLDSTEIN EXHIBIT #10
The Goldstein Exhibit is a controversial email exchange between Monsanto paid-off academic Chassy and Monsanto employee Goldstein. In response to an article that suggested that genetically modified (GM) foods may be dangerous for children, they joked that they have been playing “Whackamole” for years, trying to kill this kind of research.
Monsanto would like to have any reference to GM foods excluded because they do not find them relevant to the case. It is clear to them that GMOs are automatically derogatory in San Francisco.
The judge asks if GM foods are relevant to the case.
Wisner says that GMOs are absolutely relevant because Roundup-Ready crops are GMO crops. The epidemiology looks at people in the world, dividing up groups of people who have been exposed to glyphosate or not. The problem is that the “unexposed” control group may not work in pesticide application occupations, but are indeed exposed because they are eating glyphosate. Therefore, the differences between “exposed” people and control is not as great as if we compared exposed people with those eating a fully organic diet. When GMOs emerged in the 1990s, our exposure through both diet and in the agricultural industry materially increased. Earlier studies take data that predates the explosion of glyphosate, before it became widely used in the food system. Those studies show a much higher incidence of NHL vs. control.
Johnson will testify that he did eat GMOs, and Dr. Sawyer will also make reference to Johnson’s total glyphosate load from all modes of exposure.
Bolanos says that the Plaintiff counsel will need to provide their plan for expert witness on the subject of dietary exposure and GMOs – which they will – if they plan to introduce that aspect to the case. They are not to mention GMOs during opening.
GOULD EXHIBIT #6
The Defendant would like to exclude Gould Exhibit #6, which the Plaintiff intends to use to have the jury better understand Monsanto’s behavior and mindset.
In an email exchange, an executive from the agricultural distribution company Wilbur-Ellis makes reference to Californians: “We are being overrun by liberals and morons like a zombie movie, so we just have to start taking them out one at a time.” Mr. Gould of Monsanto forwarded this email to co-workers at Monsanto, with the comment that he “likes this analogy.”
Monsanto counsel claims that this comment was made in reference to the listing in Prop 65, and was not originally made by a Monsanto employee. They continue that the inflammatory language is not made by Monsanto and that forwarding a comment does not make it an official policy or attitude.
Wisner says that they do not intend to offer the document as factual, only that Mr. Gould says that he “likes this.” He needs this document to show that Monsanto held ill will against California and as evidence of bad conduct.
Monsanto points out that it is first amendment rights to have opinions.
After more back and forth, judge Bolanos allows the document to stand.
We go on break for the week of July 4th, but will be back in court on July 9th.
It is worth noting that Monsanto hired some incredibly dynamic attorneys. They present arguments clearly and intelligently. It will be quite a fight.
© 2018 Kelly Ryerson ALL RIGHTS RESERVED