As you all know by now, I really like to keep my blog light, because the topic is so grave that it’s something of a coping mechanism. But today, I feel I am in a surreal state of mind. Today’s news headlined an article about whales dying and shoring on the California coast at unprecedented rates. Let me take a toll: bees, butterflies, dolphins, whales …. humans are clearly on the same path to extinction.
Those few of us who see the apocalyptic threat to our world are searching for ways to help the public understand the situation at hand. Please, readers, TALK ABOUT IT. I shared the details of the wide harm that Roundup has exacted upon the planet with some random girls in their early twenties this weekend in a sauna in Arizona. They suffer from Ulcerative Colitis and have lost many childhood friends from cancer. They also grew up in the agriculture-heavy Central Valley of California. They didn’t know that Roundup might be a part of it, and were captivated listening to the truth.
Because AgChem and BigPharma will continue to do their best to silence these anti-chemical sentiments, it means we must work overtime on a word-of-mouth basis to spread the word. Even if it makes us look like obsessed, hippy, paranoid weirdos. I don’t mean hanging out on social media and fighting with the other side. I mean talk to the anxious man hunched over in the Pepto Bismol section of Target. Share the word with your fellow dog ladies at the dog park. If nothing else, it will be exposure therapy for those with even slight social anxiety.
In the last year, I have become well aware of the stereotypes of the “activist.” Nevertheless, very shortly, people will understand what we were so concerned about, because the REAL, non-ghostwritten, unmanipulated science tells us so.
On to the trial.
TRIAL
I’ve learned from experience that Closing Statements seat demand is no joke. Today is even more competitive because the courtroom is so terribly tiny. State court vs federal court budgets, I guess. I arrive at 7am and note that the Monsanto characters are in the front of the line, and I am around 15 deep. Elaine and Christopher Stevick, the Plaintiffs in the upcoming Federal trail, are waiting as well. I happily join them. Sunshiney AOJ appears and joins in line – we’ve divided the day up. I will be covering Plaintiff and AOJ will be covering Defendant.
The crowd is light on the activist front. After watching the Bayer Annual Shareholder Meeting which drew a large crowd of protesters, I wonder how we could be a stone’s throw from UC Berkeley and not have some student protesters at the very least. I suppose the profile of the average Berkeley student has changed over the years, but protesting and Berkeley were for a long time synonymous.
The door to the courthouse finally opens and we pass through security and up to the courtroom. Strangely, some people appear to have jumped in front of the line, which is frustrating given my 5am morning alarm to be sure I got my place. Our odd Monsanto glarer, who has spent most of his time in both the Hardeman and Pilliod trial conspicuously staring at our side of the gallery with remarkably wide eyes (it must be fascinating to stare at our profiles for hours), loudly pipes up to the clerk that no one has the right to cut. The line-shamed people begin to wander towards the back of the line.
I take a closer look and realize that it is Director Oliver Stone and entourage. Brent Wisner’s family closely follows, and I meet Wisner’s mom Helen. She is very friendly and tells me of the adventure that it was raising Brent. It will not shock anyone to hear he was something of a troublemaker in school. Of course, I am sure that he was substantially smarter and more outspoken than everyone else. I ask if his remarkable memory for small details is from her, and she shares that she remembers line-for-line computer code that she wrote 30 years ago. I often don’t even remember where I parked my car an hour earlier.
The clerk manages the seating priority. First, lawyers. Next, press. I am handed a highly valuable post-it with a “P” for press written on it. We file in by group. AOJ and I take seats next to one another on the uncomfortable, improvised seating set up in the aisle. As everyone is settling in, the clerk shouts: “Bobby. DID BOBBY GET A SEAT? OK BOBBY GOT A SEAT.” We see Robert “Bobby” Kennedy turn around with surprise and a slight smile. Kennedy, Baum, Esfandiary, and my chatty peeps and I in the gallery have all been scolded by this strict disciplinarian over the course of the trial, so he is lucky to get such a rare positive shout out.
Finally, we get going.
The jury enters, and AOJ and I size them up. We both get good vibes from the Berkeley-Version-Jared-Leto. We also have good juju about the guy who wears salmony colored glasses, but unfortunately he is an alternate. The woman who fans herself to stay awake, and also appeared to find Hottie Chadi indeed a hottie, is likely pro-Plaintiff. We aren’t sure what to make of the sleeping guy. A woman in the back row often looks out of the side of her eyes with a bit of “oh no you di-in’t” expression when Ismail presents his arguments. Ariana-Grande-high-ponytail-girl seems more engaged with the Plaintiff’s argument. They take their seats and Wisner begins.
Against my repeated advice of a purple tie, Wisner decides on a red tie and claims that the purple one was actually dirty. Red is at least a step up from the gray tie that he proposed yesterday. It appears that several lawyers in general don’t take wardrobe particularly seriously, so maybe I can have a career after GG in advising lawyers how to look least offensive.
Wisner stands in the center of the courtroom, and addresses the jury in a tone that I always describe as similar to a TV lawyer – with drama and conviction that falls safely short of cockiness. A fellow person in the gallery mentions that he is almost messianic. I got a little bit of beef from a handful of readers after the Johnson trial for painting Wisner as similar to a religious figure. Today, I double down that it wouldn’t be accurate to say anything but that this guy can PREACH.
Plaintiff Closing Statements
This closing is not dissimilar to that of Johnson in terms of rhetoric and content. We hear phrases like “This case is about choice,” “Day of reckoning” and “Some people smoke, but they make that decision knowing that they cause cancer.” We see a spiffy slide with a rocky, twisting, monocolor road winding through some hills with metaphorical road-signs along the way to illustrate “How did we get here?”
Wisner spends the majority of his allotted time arguing with outrage on the far reaches of Monsanto’s poor conduct since they introduced Roundup. There is just so much corruption to walk through. Here are highlights from each of those road-sign topics.
Can Roundup Be a Substantial Factor in Causing NHL
- Monsanto has deliberately disregarded consumer safety for 45 years.
- Roundup was “literally born in fraud” when it was approved following the fraudulent carcinogen studies performed by the laboratory IBT.
- The mouse study performed in 1985 initially found that Roundup was a carcinogen, but was later manipulated to to show a different result. Wisner says that this is: “The definition of manipulating science!”
- Wisner walks through all of the prime examples and email proof of Monsanto’s ghostwriting, and how future independent research unknowingly cites and considers the ghostwritten literature in their own analyses.
- Monsanto-paid labs manipulated cadaver skin into a leather-like material to create false lab findings of low dermal absorption.
- Monsanto’s Roundup Freedom to Operate team works to reduce or eliminate restrictions to the sale of their product.
- Remember how Monsanto likes to play “Whack-a-mole” and bash down any research that criticizes Roundup or GMOs? Wisner reminds the jury of it in a (hilarious to those of us who know Wisner) reenactment of playing Whack-a-mole. He calls out “WHACK WHACK” and moves his arms wildly as if he is indeed playing the classic carnival game. Yes, I too regret that video is not allowed in the courtroom.
In Monsanto’s internal documents, they mention avoiding future litigation regarding the carcinogenicity of Roundup. Before finishing his infinitely long list of examples of Monsanto crookedness, Wisner passionately argues:
Of all the things that they’re worried about, they’re worried about this happening right now, where a young lawyer, who’s not afraid of them, gets to look at all the documents and talk to 12 or 14 jurors, show them the documents and say, “Good grief.” This is their nightmare.
But we live — I mean, we live every day seeing things around us that are wrong. Okay? Things that we — that’s just not right, that shouldn’t happen. And we’re all powerless to do anything about it. We are. We can’t do anything. I spend my life going, “I wish I could do something about it. I wish I could help this person. I wish I could help that person,” but I can’t. But right now, that’s not the case because you are seeing something that’s wrong, and you are able to actually do something about it. It’s pretty cool.
Was Roundup a Substantial Contributor to Alberta’s and/or Alva’s NHL?
ALBERTA
I think that Alberta has a clear-cut case and it is hard to argue that Roundup DIDN’T cause her cancer. Wisner does not spend a long time on her medical summary, and concludes:
1500 days of exposure over 33 years to Roundup versus being slightly overweight or having Hashimoto’s in the ’80s? I mean, there’s no question. Roundup was a substantial contributor here. Was obesity? Probably not. Was Hashimoto’s? Probably not.
AL
Al’s case is much more challenging due to his lengthy health (and lack of health) history. Wisner is careful to delicately and compassionately address each of Monsanto’s hypotheses as to what could have caused Al’s NHL.
- Monsanto claims that Al has evidence of immunosuppression, given his HPV and HSV, but none of his doctors said that he was immunocompromised.
- Regarding skin cancer, “He has fair skin and red hair, and he spends a crapload of time in the sun. Ok. You’d expect that person to get skin cancer.”
- He couldn’t have really had Ulcerative Colitis because it was so short-lived.
- Al is not a frail man – at age 50, he sailed by himself to Hawaii
- “The other thing is no one ever considered — let’s say Levine’s right. He is immunocompromised; he has immunosuppression. No one ever asked – was it caused by Roundup?
What Are the Pilliod’s Damages & What Is the Appropriate Punishment?
Wisner proposes the following:
The one-billion-dollar amount of punitive damages was determined in part by Monsanto’s own internal emails discussing how they would fight against an IARC determination of glyphosate carcinogenicity. Bill Heydens wrote: “I’m sitting here pondering this as we speak. The $1 billion question is how it could impact, actually cause them to reopen their cancer review and do their own in-depth epidemiology evaluation.”
On the topic of punitive damages, Wisner continues: “They can afford it, and they need to pay. Because that’s the kind of number that sends a message to every single boardroom, every single stockholder, every single person in Monsanto that can make a decision about the future. That is a number that changes things.”
How Do We Deliver a Verdict?
Wisner very quickly hurries through the verdict form, instructing the jury how they would vote in favor of the Plaintiff.
With deep emotion, Wisner finishes his passionate monologue. “I’ve carried this burden of Mr. and Mrs. Pilliod’s case for quite some time now. Now it’s your turn. Let’s do right by them. Let’s hold them accountable.”
The audience is silent. Many of us are flooded with tears – the emotional plea in Wisner’s voice is otherworldly. It’s a plea that so many of us feel inside our souls on this issue, so to hear it orated in such a moving way is overwhelming. Several audience members move their hands up to clap, but then remember it isn’t that kind of stage.
We file out of the courtroom, and I see Wisner also has tears in his eyes. I can’t help but hug him. Those athletes who leave it all on the field? They would be insanely proud of Wisner, because he too spent EVERY LAST BIT of emotion that he had in his body on this Closing Statement.
I feel slightly guilty for asking AOJ to cover Ismail instead of Wisner, because dramatic flair is excellent writing fodder. But it is my blog so….
Monsanto Closing Statements – By AOJ
“We disagree with everything that plaintiff’s counsel said.”
With that statement, the wily Tarek is back and though he has the unenviable job of following Brent Wisner, he does have a few tricks up his sleeve. One is reverse logic. The Plaintiffs have the burden of proof in this case, which is to show the likelihood that Roundup caused Mr. and Mrs. Pilliod’s cancer. Tarek flips that and tells our jurors that the Plaintiffs have to show that the Pilliods would not have gotten sick if they had not sprayed Roundup. This is clever because it muddies the jury instruction that the plaintiffs only have to show the likelihood that Roundup contributed to their cancer. Flip that and you get the absurd “the Plaintiff has to show that Roundup did not contribute to them not getting cancer.” I had a friend in art school who was fond of saying, in reference to attempting to make art, “If you can’t dazzle them with footwork, then baffle them with bullshit.”
Next, Tarek brings out another one of those defense graphics that cleverly retools a basic concept which in this case is “preponderance of the evidence.” Wisner has explained this means “more likely than not.” Tarek’s chart is a pyramid with the tiny triangle at the top labeled “more likely than not.” Under that in descending order, and increasing size, are 50/50, Likely, Reasonable, Credible, Potential, Possible, Theoretical, Hypothetical, Suspicious, Unclear and Highly Unlikely. This chart makes “more likely than not” look like the rarely scaled top of a Himalayan peak. If I was the defense and had come up with this graphic, I would be very proud of myself… until I did a gut check and realized that the reason I had to be so creative is because my case had nothing substantial to rest on.
Which brings us to Tarek’s next point. He points out that the Plaintiffs did not present any medical evidence that shows that the Pilliod’s cancers were caused by Roundup. He wants a medical test, a pathology report, a biomarker, genetic test, or some other record that specifically links the cancer to Roundup. In other words, he wants to see the fingerprints of Roundup at the crime scene. He is so slippery. He says, essentially, that the Plaintiffs have no direct evidence. He is assuming that the jurors have already forgotten Judge Smith’s instruction form this morning that they can consider both direct evidence and indirect evidence, AKA circumstantial evidence.
Jury Check-in
I look at our jury and this is the first time I see them all with their game faces on. Their heads are slightly down, because they are taking the occasional notes, and they watch Mr. Ismail from under furrowed brows, all mouths turned down. This is serious shit. Not that they didn’t already know that, but now they are working in the shadow of the $1 Billion question.
Back to Ismail
The defense moves onto a facet of their evanescent defense, which is, at least, somewhat plausible. Tarek takes Wisner to task for the differential etiology of the Pilliods, starting with the controversy over the strength of Alva’s immune system. Unfortunately Tarek does not have a great bedside manner and comes off pretty cold as he discusses Alva’s various medical conditions. (If I had a client like Monsanto I would at least fake some empathy for the plaintiffs.) He puts up another misleading graphic that is a timeline with flags for every skin cancer, virus, infection, colitis and wart Alva ever had. Thanks for that, Tarek, but I bet if you put up any 70+ year old’s medical history compressed onto one page, it would be a similar forest of little flags. Nice try.
Tarek pushes back on Wisner’s earlier conjecture that maybe Alva’s immune system is weakened by RU’s effect on the gut microbiome. He says that this is just Wisner talking—no evidence was presented to support this. That is true, so the jury will not be able to consider this.
We move on to a rundown of Alberta’s medical conditions. (Tarek’s bedside manner has not improved.) He reinvigorates the idiopathy defense; he contends that Alberta’s Hashimoto’s disease never went away; he returns to the increasing incidence of NHL with age; and he repeats the well worn defense that treating doctors never raised the possibility that RU caused the NHL. He highlights testimony from the Plaintiffs expert witnesses that, when taken out of context, support his case, but he really hammers on Dr. Weisenburger. He has so many snippets of Weisenburger’s testimony that one could mistake the Doctor for a defense expert. Tarek focuses on the T14-18 gene mutation the Dr. Weisenburger testified was of the negative variety, and not associated with pesticide exposures.
In the meantime slips of paper are constantly being passed from the Plaintiff’s lawyers in the gallery up to Michael Miller and then on up to Wisner who is sitting with Alberta and Alva. I imagine Brent is doing breathing exercises to accomplish the feat of sitting quietly while Tarek hammers away at the Plaintiff’s case. I am also wondering if the defense is ever going to do any actual defending of the litany of fraud and manipulation that Wisner spent much of his opening on.
After a rebuttal to the spousal concordance theory in which Tarek shows Dr. Nabham’s testimony—“I don’t need a study”—he revisits the math he used to whittle the Pilliods exposure down from the “1500 gallons”* Wisner claimed in his opening to “1 cup” per week, or whatever. Dr. Phelan then translated that to a .0004 mg/kg of body weight exposure. He shows yet another dramatic graphic to the jury with a series of grids of dots on the screen to illustrate this. It’s like that film where the camera starts above a backyard and pulls back by orders of magnitude to the edge of the universe to show us just how small and insignificant we are. *Wisner either said or meant to say “1500 days” of exposure.
Now Tarek gets worked up, well, worked up for Tarek. He claims that Dr. Sawyer compared RU to sarin gas. He calls the Sawyer/Wisner demonstration of spraying RU in court a “charade…why wear gloves if only water is in the bottle?” He claims that Sawyer testified that the gas in the head of the RU bottle could “kill every form of biological life on earth.”
Tarek proceeds to demonstrate how to talk out of both sides of one’s mouth by stating that the plaintiffs were trying to create “Fear over science. Emotion over evidence.” In the next breath he tells the jury, “It disrespects you and it disrespects the civil justice system!” That sounds to me like Tarek is also trying to rile up the jury.
Tarek calms down and moves on to IARC vs. the regulatory bodies.
He attempts to explain the difference between a hazard assessment and a risk assessment but his slide on the screen shows the regulatory bodies using the term interchangeably in their own descriptions of what they do.
I am confused and I thought I had this figured out two trials ago.
So, Tarek can only self-bifurcate for so long. He finally tells the jury he is going to address some of the topics Brent raised about all the bad stuff Monsanto does, manipulating science, ghostwriting, etc. He tells the jury that the “emails and other documents…I respectfully suggest, don’t actually go to the issues that you’re going to have to decide on your verdict form.” Wow, did he just say that? I respectfully suggest that this is simply not true. These “issues” have everything to do with negligence and with the determination of punitive damages.
Anyway, here’s a quick rundown by Tarek of some of the “issues” as seen from the left side of the room:
- The Parry affair: Parry eventually changed his view. Hmmm, after a lot of arm twisting?
- IBT scandal: IBT was not “not affiliated with Monsanto in any way.”
Well, that was easy.
- Magic Mouse: The reviewers of the recut slides, who also found the Magic Tumor, were “blinded” so could not have possibly been manipulated by Monsanto. I will wait for Wisner’s rebuttal of this.
- Ghostwriting of Intertek paper: He admits that the publication had to issue a correction of the story with Dr. Heydens added to the authors list.
- Whack-a mole: It’s email folks! People write all sorts of silly things!
Again, Tarek claims none of this has anything to do with whether or not RU causes cancer, and starts wrapping up with a few more outtakes from Plaintiff’s expert witnesses that sound good for his side. I think it is quite remarkable that he picks on the George study at his juncture—he calls it a “pretty lousy study.” Maybe it isn’t the best, but he is definitely worried about it. (All I can think of these days when the George study comes up is a mental picture of a scientist shaving the belly of a tiny albino mouse.)
He also cleverly tells the jury that Wisner’s three columns of causation should not be the same height as shown in Wisner’s slide—the epi column is much more important than the other columns. Fair play, but did he present any evidence of that? Tarek gets back to the epi studies and is hammering on Weisenburger again, keeping his momentum going. Brent stands up and asks for a sidebar, the reason for which is a mystery to me. I think Coach Wisner just called a timeout because it was one of the few times that Tarek seemed to be on a roll.
Among Tarek’s parting shots is a graph that the defense has been putting up since last year that shows the use of RU skyrocket while the incidence of NHL appears to remain flat. I pointed out in a post during Hardeman that if the scale for the incidence of NHL were changed, it would track more or less with the use of RU. The plaintiffs figured this out and put up their version of the graph, and now Tarek accuses them of manipulating the graph. That’s just plain rich.
Plaintiff Rebuttal
Wisner takes a stand, holding a stack of papers: “I got a note every time he said something that was false, misleading, or untrue. And I have a card deck here that I can’t possibly get through.”
Judge Smith indicates that Brent should move on.
Here’s a few from Brent’s stack of Monsanto lies:
- The graph of RU use and NHL was manipulated—by them!
- Dr. Sawyer actually said sarin is an organophosphate in the same family of chemicals as glyphosate.
Wisner is mad! He yells over to Tarek: “Get out of here!!” Judge Smith indicates that he needs to calm down.
- T14-18 mutation. The study says you can’t use this to find cancer! What Tarek said is “fabricated nonsense.”
- Magic Mouse: Brents slips and actually says “Magic Mouse,” apologizes and says the EPA confirmed there was no (magic) tumor in the (Magic) control mouse. Monsanto has banned the use of the term “magic” to refer to the most studied mouse in the world. (They objected to “most studied mouse in the world” at the Johnson trial.) GG Note: Oh my gosh, we folks in-the-know all flinch when we hear Wisner start in on the word “magic”. My stomach feels like I’ve just taken a drop on a roller coaster.
- Brent calls the defense’s contention that there is no biomarker that points to RU as the cause of the Pilliod’s cancer a “straw man argument.”
Brent concludes by telling the jury to, “Go get ‘em.”
Judge Smith has some further instructions for the jury prior to deliberation, including an instruction to disregard “Magic Mouse.” This is confusing because it is not clear if they are to disregard the word “magic” or the story of the entire debacle.
What is clear, unless my eyes, ears, and experience as a juror and as a human being, all deceive me, is that this jury will return a verdict for the Plaintiff. I love/hate making predictions because, despite my belief in science, I also believe in jinxes. But I will go out on a stout limb and predict a verdict for the plaintiffs on day two of deliberations (Monday). I initially made this prediction after closings on Wednesday. The jury has since deliberated one full day on Thursday. They were asking questions and asking for testimony to be read back midday, so they are getting right to work. Go get ‘em, Oakland.
© 2019 Robert Howard ALL RIGHTS RESERVED
GG Final Notes
IMPORTANT MESSAGE FROM GLYPHOSATE GIRL
I really enjoy writing this blog as a service to everyone to better understand the threat that Roundup has on our health and community. While that is my purpose for writing this blog, I’d rather that if you plan to use my writing in your own work, please ask me permission or cite me? These blog posts take a crazy long time to write and I am pouring my heart into them because I care so deeply about the victims and Roundup’s unprecedented chemical harm. I like to know where my ideas could reappear, and I’m not interested in being a ghostwriter. Not cool. THANK YOU!!!!
© 2019 Kelly Ryerson ALL RIGHTS RESERVED
