Not Your Time To Go
It is nearly impossible to write about Roundup as we watch our country in such disarray, experiencing physical and emotional pain unlike anything I’ve seen in my lifetime.
Glyphosate is a water-loving compound. Because of its vast agricultural use, glyphosate collects in the northern tributaries of the Mississippi River and flows south. At the end of the river lies Louisiana’s “Cancer Alley,” an 85-mile stretch of land that runs along the river from New Orleans to Baton Rouge. The residents, who are predominantly African-American, are exposed to Roundup and a deluge of even more toxic chemicals that our corrupt EPA failed to regulate. Predictably, seven of the ten census tracts with the highest cancer risk in the US are found here. Cancer Alley is also dealing with some of the highest death rates from Covid in the country.
The same land that held people captive through slavery is now holding people captive through this environmental injustice and devastation…It is killing people by over-polluting them with toxins in their water and in their air. This is slavery of another kind.
– Civil Rights Leader Reverend Dr. William J Barber II for Rolling Stone
In March 2020, the EPA suspended enforcement of environmental regulation, bizarrely citing Covid as the reason. While we were all frantically sheltering in place and obsessing over Covid news, chemical companies rejoiced that the rivers and land could once again become a dumping ground for their poisons.
Social and racial inequality of course also manifests itself in access to clean food. Organic eating still costs a lot more than what most can afford. Unlike other challenges we are currently facing, there is a clear solution within our grasp to address food inequity. The solution lies in a paradigm shift away from chemical agriculture, towards a return to regenerative and organic farming. The possibility for change gives this GG a sense of hope.
I stepped into the San Francisco California Superior Courthouse for the first Roundup trial nearly two years ago, and now retroactively look back on that day as one of basking in the luxurious living of no masking nor temperature scans. Two years later, while we all grow weary of isolation and reloading our digital carts in the quest for Amazon Fresh delivery slots, the Court of Appeals is considering the verdict of Lee Johnson v Monsanto. This morning, listening Zoom-less to just an audio feed of the arguments feels equivalent to a rotary dial-in.
As most of us know, Lee was a school groundskeeper who sprayed large quantities of the glyphosate-based herbicide Ranger Pro on elementary school grounds. After a few accidents involving large spills on his skin, he developed an extremely aggressive form of Non-Hodgkins Lymphoma.
Johnson’s trial was the first case to go to court, and we marveled at Winning Wisner and Delightful Dickens putting Monsanto through the ringer in a veritable nail biter. W. Wisner, D. Dickens and some outstanding, nickname-able expert witnesses proved that the REAL science, not the papers proven to be ghostwritten by Monsanto, shows that Roundup can cause Non-Hodgkins Lymphoma. The Monsanto internal emails that were shared publicly reeked of ill intent and a desire to hide the truth and protect their profits at all costs. The outstanding jury ultimately awarded Johnson $289 million.
Today, Lee is still fighting his cancer, and has surpassed his doctors’ expectations. If anyone is looking for an example of how greatly the mind can impact the physical body, look to Lee. His humor and attitude are enviable. AND – he released his original song and video “Not Your Time” in 2019 – check out how cool he is. He successfully translated his experience to song. LL Cool J has nothing on Lee. WATCH THE VIDEO
My glyphosate buddy/co-writer/AOJ/Juror #4/Just Bob will break down the specifics of the call. Note that Bob has been grinding away on a book to deliver a behind-the-scenes look at the Johnson trial from the juror perspective, including what went on in that deliberation room. I can’t wait!!
For those of you who prefer just the bottom line, I offer this:
Monsanto/Bayer continues to stand behind their oh-so-reliable protectors, the EPA and US government, arguing that the “scientific consensus” has shown glyphosate to be non-carcinogenic. And, oh, in case you missed it, the EPA must be right and IARC must be wrong, you fools. The Monsanto attorney also argued that Monsanto’s behavior should be considered on the “lowest end of any reprehensible scale.”
Johnson attorney Mike Miller compellingly argued a few key points, and the judges listened intently.
Now we wait and see.
Take it away AOJ!
AOJ Talks Appeal
I’m not gonna lie, I am having trouble writing anything right now. So many images of the past week, the past three months, the past three and a half years… George Floyd killed by four cops; Hannah Silbaugh kneeling, wiping tear gas from her eyes, then brutally kicked by a cop; peaceful protesters tear-gassed so a man who is supposed to protect them could hold up a bible like a brick for a photo op in front of a church. These have been seared into my consciousness, taking up residence beside Phan Thị Kim Phúc running from her napalmed village, Juan Romero kneeling over Robert F. Kennedy, the people standing over Martin Luther King Jr. pointing to where shots came from, and Mary Ann Vecchio kneeling and screaming over the body of Jeff Miller at Kent State, to name just a few. I worry there is so much injustice that it surely must overwhelm anything that can be said or done to right all the present and past wrongs. I know worry is energy wasted that could be used to take action. On the other hand, I am hopeful because, as my therapist pointed out three years ago when I was at a low point, hope is all we have. And yeah, that’s easy for a straight cisgender privileged white guy to say.
It is with a similar mixture of dread and hope that I listen this morning, June 2 (by phone), to the oral arguments in the case of Dwayne Lee Johnson v. Monsanto. The case is before a three judge panel of the California Court of Appeal, First District, with Jim Humes presiding, Kathleen M. Banke and Gabriel P. Sanchez. David Axelrad appears by phone for Monsanto and Michael Miller appears by phone for Lee.
Disclaimer: In addition to how I describe myself above, I am also a husband, dad, carpenter, evanescent artist, and former juror—all of which give me scant skills to parse out legal arguments like I am about to attempt to do anyway. The law is like a house of stones built upon countless layers of foundations that recede into the earth—a stacked and interlocking puzzle of precedents. Judges and lawyers are the masons, certainly not I.
Johnson v. Monsanto is the first case on the calendar and Mr. Axelrad is first up. He is asked by Justice Humes to focus on the issues of preemption and damages. Axelrad does not get a chance to make a statement because Humes dives right into questions that address the preemption issue, which revolves around whether or not Monsanto could have “failed to warn” Lee if the EPA deemed Roundup to be safe. Justice Humes asks Axelrad if Bates v Dow Agrosciences (in which SCOTUS ruled federal law did not preempt a design defect claim) sets a precedent for Johnson. Mr. Axelrad repeatedly asserts that, “all this case is about is the label,” because then federal statute would expressly preempt the state law under which Lee sued Monsanto. The court is clearly looking for a path through the preemption issue that favors Johnson as it peppers counsel with more questions. (Later, Axelrad will throw in impossibility preemption which covers situations where federal and state law conflict, such as the EPA not allowing Monsanto to put a warning on the label on Roundup otherwise required by state law.)
Axelrad is fairly agile as he rattles off various precedents that upheld preemption, but he is eventually boxed in by Justice Sanchez who asks if his interpretation of the failure to warn claim is “unduly narrow.” I would say Sanchez is being quite charitable, because apparently Mr. Axelrad believes the design defect claim is that the Roundup label is defective. Hello, Earth to Axelrad? It’s the product that is defective! The judges promptly bring up a (hypothetical) radioactive product, asbestos, and toxic shock syndrome to set the counselor straight. Incredibly, Mr. Axelrad pushes back on the consumer expectations of asbestos, claiming that asbestos hazards were well known to the average consumer. I am not sure what timeframe the court or counsel is using, but I still run into homeowners who are not aware of all the potential sources of asbestos in older homes.
Justice Humes steers Mr. Axelrad over to the question of future non-economic damages and specifically why Monsanto believes it was wrong for us (my fellow jurors and I) to award Lee $1 million for each of the 33 years he would have lived based on average life expectancy. Mr. Axelrad claims that California state law does not allow non-economic (pain and suffering) awards to a person who will not be alive to actually suffer. Counsel goes on to argue that the punitive damage award should be zero, because of the “breadth and depth” of science that Monsanto relied on that showed Roundup is not carcinogenic (that’s a line right out of George Lombardi’s playbook). If the court goes with punitive damages, now at about $39 million, Mr. Axelrad asks it to maintain a one to one ratio with the sum of the stipulated economic damages award and the new non-economic damage award of $1.5 million. ($1.5 million would reflect a revision of the plaintiff’s life expectancy to 1.5 years.)
Michael Miller has apparently been chomping at the bit, or his phone, because when he is recognized by the court he energetically launches into a rebuttal of Mr. Axelrad’s characterization that Lee made only the one claim of design defect. Michael tells justices there were two separate theories, the design defect claim which included the consumer expectation theory, and a completely separate failure to warn claim. Justice Banke tries several times to cut in as Michael forges ahead. Eventually she gets his attention, and after apologizing that he can’t see her gesticulating on a voice call, asks the counselor to explain how the Roundup formulation needed to be changed in order to satisfy consumer expectations. She says she wants to understand the substance of the claim. “Very well Justice Banke,” replies Michael quietly, always the southern gentleman. He goes on to explain that the plaintiff does not have the burden to show how a product needs to be fixed, but that he did anyway: Use a different surfactant like Monsanto does in the EU. Justice Humes jumps in and asks plaintiff’s counsel to confirm that Mr. Axelrad’s contention that the design defect theory is based solely on the labelling is wrong; it is based on the ingredients of the product. It sounds to me as though the court is quietly guiding Michael through its rationale for eventually ruling in favor of Lee, but I might be coming down with a slight case of confirmation bias.
When asked to address Monsanto’s well worn contention that all the regulators approved Roundup, Michael says it is true but “not germane to the issue,” and that Monsanto withheld “critical information” from the regulators for years and furthermore, the jury was free to ignore the regulators if we saw fit. (We did see fit.) This opens the door for Michael to explain Monsanto’s attempts to manipulate Dr. Parry, and having failed to do that, they fired him and instead ghostwrote articles that said Roundup was not carcinogenic.
On the issue of the $33 million non-economic damages, the plaintiff points to Monsanto’s failure during closing arguments to object to the appearance of the award being a per diem for years of life lost. But he also argues that Dr. Kuzel testified that Lee could live “decades.” Justice Humes is a bit flummoxed, pointing to other testimony that it would be a “miracle” if Lee lived that long. He says it would be a bit odd for his court to allow an award based on a miracle. He also reminds us that there has never been a per diem award like this in California. Michael cites precedent that shows courts might be headed that way. We leave the issue, which for now seems far from settled.
On the punitive damages, Michael tells the court that Judge Bolanos, a “very good, hardworking trial judge,” should have addressed the issue of reprehensibility but did not. The reprehensibility analysis is based on five factors: Was there indifference to the safety of others? Was there physical harm? Was there financial vulnerability? Was the conduct repeated? Was there trickery and deceit? “We hit every factor, this is serious reprehensibility,” Michael implores. Furthermore, he tells the justices that it is not the appellate court’s function to change punitive damages. He goes on to point out that the judges in Hardeman v. Monsanto and in Pilliods v. Monsanto did a reprehensibility analysis and came up with a 4:1 ratio of compensatory to punitive damages, and those plaintiffs were expected to live.
In his rebuttal, Mr. Axelrad does the same spectacular self-own that Mr. Lombardi did in his closing at the Johnson trial. He actually admits that there may have been ghostwriting in a couple of articles but it’s no big deal because the articles did not present any false or misleading information. No harm no foul, as they say. Pushing back on the plaintiff’s reprehensibility analysis, Axelrad cites the Echeverria v. Johnson and Johnson talc case in which the court determined that punitive damages cannot be awarded when a company was defending its product as safe. *Sigh*— Why am I not surprised when Axelrad compares Monsanto to Johnson and Johnson, with its long history of defending lawsuits, including transvaginal mesh, Riperdal, Xarelto, opioids, and asbestos contaminated talc?
Justice Humes allows Michael Miller to get the last word in on punitive damages: “Thank you Your Honor. Monsanto misunderstands the appellate function here; it’s not to re-weigh the facts, the facts that were argued by Monsanto’s counsel were rejected thoroughly by the jury and by the trial judge as a thirteenth juror.” He continues, “In punitive damages, as you assess the reprehensibility of Monsanto, you must factor in the wealth of Monsanto and the award must be enough to sting. Under California law, unless it changes the conduct, it hasn’t fit the purpose of punitive damages.” Ka-bam!
* * *
There is another image I will never forget: it was of David Dickens, of one of Lee’s lawyers, with his arm around Lee as the verdict in Johnson v. Monsanto was read on August 10, 2018. As I sat in the jury box that day I did not know that Lee had filed his lawsuit against Monsanto over two and a half years earlier. And today, it has been almost another two years since the trial started.
The wheels of justice turn very slowly, especially when one considers that Lee’s original trial and the appeal were expedited by the courts because of his dire prognosis. The appeals court has 90 days to rule on his cross appeal, but will that be the end of this part of his ordeal? Will this wrong be righted? And how will it bear on the cases of the estimated 125,000 other people who claim injuries or death from using Roundup?
© AOJ 2020