BY AOJ
Folks, the Plaintiffs had a rough day yesterday. I was not there to witness the proceedings, but the long and short of it is that Dr. Weisenburger was suffering from some sort of virus and apparently was not the same Dr. Weisenburger we saw at the Hardeman trial. AOJ has also had a virus for a few days and the bug has taken over my brain whilst wreaking havoc on my throat. The problem with high stakes trials is that expert witnesses can’t call in sick.
There is a carefully planned sequence of witnesses lined up to testify and you are going to testify even if, say, they have to fly all the way to Australia and do it on video, as happened at the Hardeman trial. In my current state, I can give Dr. W a pass, and get well soon wishes. I bounced back this afternoon after a rough morning in court, but I don’t know how long I will last….
TRIAL
As usual, Monsanto has to nit-pick this or that with Judge Winifred Smith before the jury is brought in. I spent many hours of my life waiting out in the hall during the Johnson trial for, I assume, similar protestations by the defense. Mr. Brown for Monsanto explains to the judge that he does not want the fact brought up that Dr. William Sawyer, our expert witness today, was hired by his law firm in a non-Monsanto related case.
Brent explains that Monsanto is going to try to impeach his witness, so he has every right to point out that if they think he is not so great, why did they hire him? Judge Smith sides with Monsanto on this and another lengthly back and forth about which labels (from Roundup bottles) the Plaintiff may show. Brent agrees to show one label from the 1970’s. It was all pointless, as the Roundup labels have not changed much over the years. None of them warn that RU could be harmful or recommend any type of personal protective equipment for ordinary consumers.
Our jury files into the courtroom. They have the routine down like a crack drill team, walking in single file, in order, for the back row and then the front row. Geez, my jury never got it down quite like these folks have.
Brent begins by reading Admission #30: “Admit that POEA [the surfactant in Roundup] is now banned in Europe.” Monsanto admits to this fact.
Direct Examination of Dr. Sawyer
I don’t know if Dr. Sawyer goes by “Bill.” I failed to asked when I met him and his lovely wife Carol earlier, so I’ll just call him Dr. S and hope they are okay with that. Regular GGirl readers will remember Dr. S from the Johnson trial. He is a forensic toxicologist with an impressive resume including creating the standard which toxicologists use to for postmortem drug redistribution. (The level of drugs in various parts of the body does not remain static after death.) Among his current projects is a case in Thailand involving arsenic poisoning of 1000 people. Some people get all the fun jobs, I think to myself. Brent asks what “forensic” means and Dr. S explains that it comes from the Latin “to debate.” Brent wraps up the resume by mentioning that Dr. S is a four time Ironman.
It is particularly fun for me to see Dr. S on the stand again. He has the same confident, yet accessible, expert presence here today as he did last summer. Since we have seen Dr. S before, I will summarize his testimony and highlight some new information.
What is in Roundup?
- Glyphosate, an organophosphorus compound related to organophosphates like Sarin.
- Okay then, Dr. S is playing hardball today.
- Surfactant, an emulsifier that helps the Roundup solution spread out on plant leaves (and human skin).
- Wetting Agents like propylene glycol, which is itself harmless, but can impact absorption.
- Contaminants, like formaldehyde, a known carcinogen, ethylene oxide, a sterilization gas and Class A mutagen. It collects in the head space of the bottle, so you get a good dose when you open your nice new bottle of Roundup kids!
At this point Brent retrieves a bottle of Roundup in evidence that was used by the Pilliods. It is in a double plastic bag which Brent is not removing. Dr. S tells him he should be wearing gloves. Kelly Evans, Monsanto’s version of a retired NFL defensive tackle, moves to strike the comment. The plastic bags are not stricken and are worth a thousand words.
- Other Contaminants are discussed like 1, 4-Dioxane at 73 ppb. Not that bad on its own, but not good when considered additively with effects of other ingredients. N-Nitroso Glyphosate, which is a very powerful carcinogen, but found in minimal concentrations in the field.
What is ADME?
Absorption into the body, Distribution within the body, Metabolism of the toxin, and Excretion of the toxin and its metabolites.
Absorption: So, you spill or get the spray mist of Roundup on your skin, what happens? Our skin is normally resistant to absorbing water based solutions. But, the surfactant in RU spreads it out on skin and helps it cling. The propylene glycol breaks down the cholesterol binding our outer layer of dead skin cells allowing access to capillaries below. It also gets in through sweat glands and hair follicles. If it is hot out, exposure is increased because of increased blood flow through capillaries. (The POEA surfactant* is a skin irritant which also increases blood flow.)
*POEA Sidebar: This surfactant is 40 times more toxic than glyphosate itself and is BANNED everywhere except the USA. Monsanto has never done a long term bioassay on POEA. In addition, there is an unusual and strong synergistic affect between glyphosate and POEA. Dr. Parry suggested that Monsanto study the synergy but, of course, Monsanto did not.
To determine actual exposures, Brent leads Dr. S through the dermal absorption studies. He shows us a chart of the history of these studies which show 2% to 10% absorption rates up to 2010, and then subsequent studies are zero. Dr. S explains that in the earlier studies, actual live human skin is used to see how much RU can pass through it in the lab.
The reason for the sudden findings of zero absorption is because in 2010 industry studies began using skin that was LITERALLY COOKED, inactivating enzymes and congealing the proteins creating an impervious membrane. This reminds me of a leather water bag I had when I was a kid.
Distribution: Roundup can form a reservoir beneath the skin and hang out there for seven days before heading off to other parts of the body. But the real news is that studies show that glyphosate settles in the bones, which is where lymphocytes are made. Dr. S is not pulling any punches today.
After lunch break, Mr. Brown is at it again, “Your Honor, the witness should be precluded from mentioning that he was retained by my firm [for a completely unrelated case].” Didn’t we already settle this? I’m sure Mr. Brown does not want this revelation revealed because it would look bad for his firm, and him, even though he had nothing to do with retaining Dr. S. He makes that fact very clear to the court. Brent is seething, and again argues the hypocrisy of the request. Judge Smith still does not budge, and calls for Brent to “lower the temperature.” He is clearly pissed off, saying that Monsanto is able to use the same argument he is attempting all the time. I am thinking litigators must have an unusual gift to be able argue strenuously without boiling over and completely losing their shit.
Dr. S is back on the stand and he and Brent continue a long discussion of how a de facto industry standard of 3% absorption came about from flawed studies, including one that did not account for the reservoir of RU that can remain under the skin. Properly adjusted for this reservoir of RU, the study would show that 20% is the real absorption rate.
One of the studies discussed uses monkeys who are restrained in “Primate Chairs” while patches of RU are applied to the animals’ torsos. Ugh. This is very dark, and AOJ is not happy. We are shown pictures of these chairs, after which Dr. S tells us he would not use primates.
The Dose Makes the Poison
The direct examination wraps up with a short discussion of the George study, which showed RU is a strong cancer promoter at doses similar to the Pilliod’s. Dr. S runs through his report on the Pilliods exposure: 1500 days, 337 gallons. Brent asks him to explain what “The Dose Makes the Poison” means. “That is my whole career. Everything is toxic at some dose.” Dr. S shares the unbearably sad story of a child whose father punished him for not eating his dinner by making the child eat salt. The child died a few hours later.
Cross by Kelly Evans
KE: Doctor, you are a forensic toxicologist?
Dr. S: Yes.
KE: You mentioned earlier that forensic means ‘to debate’?
Dr. S: Yes.
KE: Are we here to debate?
Dr. S looks around the room as if to say, “Is the Pope Argentinian?”
KE: You are going to answer my questions?
Dr. S: Yes.
Kelly is going to have his hands full this afternoon.
KE: As an expert witness, do you choose your words carefully?
Dr. S: Of course.
KE: So, you chose to say that glyphosate is similar to Sarin?
Dr. S: That’s not what I said. I said that organophosphorus was related to organophosphates.
KE: You chose to use the word Sarin?
Dr. S: Certainly.
And that is where the fun ends because Kelly proceeds to spend what seems like an hour slowly walking Dr. S through his estimate of the Pilliod’s use of RU. The language in Dr. S’s report is ambiguous regarding how many gallons were sprayed versus how many gallons were actually purchased.
Dr. S has to correct Kelly numerous times when he, understandably, keeps confusing these two amounts. He explains that he did not factor in the water that was added to the concentrate that was purchased so that his estimates would be conservatively low. In any case, Kelly just keeps plodding among. My notes read: “Is the Big Guy ever going to get somewhere with this?”
Apparently his goal was to come up with an estimate of how much RU the Pilliods sprayed on a given day, because it sounds minimal: 1 cup for Mrs. Pilliod and 3 cups for Mr. Pilliod.
Kelly asks another question that Dr. S needs to think about. Dr. S is patiently pondering away up on the stand and finally Kelly says something which prompts Dr. S, “If you would like me to answer your question, please don’t interrupt.” Kelly just got bit by a Florida ‘gator. I think the Big Guy has lost the zeal he had at the outset of his cross. The only thing he can pin on Dr. S is that he is not a board certified toxicologist. Dr. S explains that he took the test on a whim, not studying at all, and passed two thirds of it.
Redirect
This is where Brent would have asked Dr. S if was ever hired by Mr. Brown’s firm, but not today. On the confusion about the amount of RU sprayed, Dr. S laments, “Rather than being rewarded [for underestimating], I was punished.”
Judge Smith mistakenly tells everyone to go home before she realizes that it is only 3:30. There is time to show the Dr, Reeves video, the same one we saw in Hardeman. It is an entertaining takedown of a guy Monsanto trotted out to “speak for the corporation” by Brent. Sorry I don’t have a link to the transcript!
MDL Non-update
I am sure you all know that Judge Chhabria issued an order in the MDL vacating the Stevick v Monsanto trial date and directing the parties to mediation. Other MDL case are being mediated, remanded, rescheduled, or otherwise dispensed with. Brian Brake, attorney for Stevick, had a comment of “no comment” when I asked how his team viewed these developments. I guess we will stay tuned …
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