Day 1 – Opening Statements
The big day – opening statements! The media is back with cameras and crowds, lining the hallways and the front of the courthouse. The judge ordered that only mini-openings, openings, closings and verdicts could be filmed, so the journalists are briefly dipping back into the case.
The room has its familiar getup of screens and a sturdy whiteboard. Several people look like they forgot their SPF over the holiday week. The legal teams emerge from the judge’s chambers well after 9:30, including Wisner who has shaven for the first time in a long time. Dickens sits next to him with his continued kind and patient expression. The Monsanto team appears prepared and sharp, perhaps even all-out confident.
Mr. Johnson is here and looks significantly healthier than the first time I saw him. He is between treatments right now and is able to be up and about more easily. It is heartbreaking to know what his future does not hold.
Judge Bolanos enters the courtroom and provides instruction to the jury. She requests that they disregard any opinions shared by attorneys or other jurors during selection as those opinions should not be considered fact. Second, she points out that some names are redacted on the emails shown as evidence, simply for privacy.
PLAINTIFF OPENING STATEMENT
I will try to condense the three hours of Plaintiff Opening Statements, which is a challenge because every word is incredibly juicy. I am tempted to shout to Wisner: “TAKE WHAT’S YOURS,” just as I do to my son before a water polo game.
Wisner introduces himself as the attorney for Mr. Johnson. He continues that this case is about choice; the right of all people to make an educated choice as to which chemicals they will expose themselves to. If a company thinks that a product might cause cancer, it must warn customers so that they can make a choice to use that product or not.
He argues that for the last twenty years, Monsanto has known that there is association between Roundup and Non-Hodgkins Lymphoma (NHL). Instead of warning customers, Monsanto has fought the science, scientists and independent researchers who dare call into question the toxicology of their product.
As Mr. Johnson will testify, he was not given a educated choice about using Roundup. He trusted that it was safe and non-toxic. He spread gallons of Roundup at a time on schoolyards, wearing a plastic suit, mask and googles. However, because of the way Roundup is formulated, the suit did not offer sufficient protection and he was often drenched in the chemicals. In 2014, Johnson found a hallmark NHL lesion on his knee. That lesion started to spread, eventually covering over 80% of his body.
This trial is not the first lawsuit against Monsanto connecting glyphosate to NHL. In prior lawsuits, no trial has gone to jury. Wisner emphasizes the highly influential role that this jury holds in making a decision with ground-breaking, global consequences. The world is watching.
DEPOSITIONS OF MONSANTO EMPLOYEES
Ten current or former Monsanto employees will have testimonies played in edited deposition video over the coming weeks. Wisner says that it is so boring and dry that he could cry.
The three most important testimonies:
- Donna Farmer – Product Protection and Nutrition Lead
- Daniel Goldstein – Medical Sciences and Outreach
- Bill Heydens – Regulatory Product Safety Assessment Lead
Monsanto-paid scientific consultants:
- Mark Martens – Toxicology Specialist
- David Saltmiras – Toxicology Manager of Novel Chemistry Product Platform
- John Acquavella – Epidemiology Specialist
Two regulatory liaisons:
- Daniel Jenkins – Monsanto Regulatory Expert
- David Heering – Steered how science would be used to support GBH safety
- Steve Gould – Oversees western state distribution of Roundup
- Kirk Azevedo – Whistleblower who was inspired to join Monsanto to help build green agriculture. When he started training at Monsanto, he was shocked.
PLAINTIFF PERSPECTIVES – WHAT IS ROUNDUP?
Roundup and Ranger Pro are the same thing. Ranger Pro is a generic version of Roundup that is manufactured by Monsanto as well. Glyphosate is a component of Roundup, but the Roundup formulation also includes chemical dispersants called surfactants.
Glyphosate was discovered in the 1960s and originally used to clean out industrial boilers because it so nicely binds to metals. Monsanto soon discovered that it also kills weeds by halting the generation of an enzyme critical to a plant’s energy. Glyphosate was mixed with surfactants to help spread the glyphosate over a leaf surface. Interestingly, the surfactants also work to spread glyphosate over a skin surface. The surfactant POEA is used in US formulations of Roundup and Ranger Pro, but is banned in Europe due to concerning toxicological studies. My gosh, what is wrong with our country.
Wisner calls to attention that Monsanto says glyphosate does not cause cancer, but does not say that Roundup (glyphosate + surfactants) does not cause cancer.
PLAINTIFF PERSPECTIVES – CAN ROUNDUP CAUSE CANCER?
We are taught about the three pillars of scientific study: Animal Carcinogenicity Studies, Mechanistic Data, and Epidemiology.
Animal Carcinogenicity Studies:
Wisner explains that the studies have historically focussed only on glyphosate, not the formulation, and that Monsanto has not conducted a long term study on rats nor mice since 1991. He describes five non-Monsanto mice studies. Three of these studies showed elevated kidney cancer; four show malignant lymphoma; and a few studies show multiple malignant tumors that will eventually kill the mouse. There is one additional study, The George Study of 2010, in which the scientists looked at the effects of dermal absorption. The EPA does not include this study in their regulatory assessments because it only had twenty mice instead of the required fifty mice. That is a shame because 40% of the mice in the study formed tumors, 0% did so in the control.
In the science of biology, a mechanism is a system of causally interacting parts and processes that produce one or more effects. Scientists explain phenomena by describing mechanisms that could produce the phenomena. (3)
Wisner teaches us about normal cells, cell damage, cancer cells and promoters of mutation. He suggests that glyphosate effects cellular processes through:
- Genotoxicity – The properties of a chemical that damage the genetic information within a cell and can cause mutations.
- Oxidative Stress – An imbalance between the production of free oxygen particles and the ability of the body to counteract their effects with antioxidants. Oxidative stress can ultimately lead to genotoxicity, but is studied separately.
We get a summarized overview of four independently published studies related to genotoxicity that spurred a great deal of concern for Monsanto. Monsanto sought out Dr. James Parry, a leading genotoxicity expert who we learn was quite famous, to look over the studies and give an assessment as to their validity. Parry ultimately reported that while each study has weakness, further evaluation of data proves that glyphosate is capable of causing genotoxicity.
After Parry’s report, Monsanto dumped him as a scientific consultant and replaced him with a new, more glyphosate-positive expert, Williams. Unrelatedly, Parry is now dead and therefore cannot testify.
Someone needs to use the restroom, so we take a ten minute break. A new friend points out that the bathroom break is likely strategically timed to refresh the jury. Meanwhile, I had been feeling sorry for the poor soul holding it in all of this time, having to glaringly halt the proceedings for natural reasons. I conclude that my friend’s hypothesis is correct.
When we return, Wisner alerts us to the eyebrow raising things that Monsanto has done through ghostwriting (The Williams Paper) and paying scientists for convenient opinions. We will hear more on this topic in days to come.
Epidemiology is the study of distributions of disease in populations. Epidemiologists look for groups of people to study who can confirm both an exposure and medical diagnosis. Epidemiology was critical in the case of determining carcinogenicity of tobacco.
Very few studies have been done exclusively on Roundup, but rather on multiple pesticides at once. Many studies originated before Roundup dominated the market of the herbicide industry with the introduction of Roundup Ready GMOs in 1996. Not that Wisner mentions GMOs – remember, that is not permitted in opening.
In the studies, the scientists are not seeing random, variant cancer types. It is Non-Hodgkins Lymphoma that keeps popping up.
We get another lesson, this time in stats. I gladly welcome the stats refresher, which is one of those subjects that needs regular rebooting in my mind. Because it may or may not be critical going forward, I will spare you all the stats lesson for now.
OK – so many studies are being tossed our way and I’m trying to keep up.
The Agricultural Health Study (AHS) started in the 1960s when people noticed an increasing incidence of cancer among pesticide applicators. They decided to look at 50,000 pesticide-applicating people and follow them forever. When people signed up for the study, they took a survey that asked whether they use protective gear. The answer to that one question was then used in an equation to calculate exposure levels for the rest of their lives. The followup data after the explosion of glyphosate use is anemic because only 60% of the original participants could be contacted. To estimate the missing respondent data, the scientists fashioned imputation using the 60% who did respond, and that imputation likely created a great deal of inaccuracy.
Three troubling glyphosate intensity dose studies were published that raised the “index of concern” in the general population regarding the safety of glyphosate, and Monsanto was ready to assuage the concern.
More disappointing Monsanto behavior is discussed, including exhibited controversial emails from Farmer, Heydens, and Goldstein.
PLAINTIFF PERSPECTIVES – IARC AND THE EPA
IARC: THE VOICE IN THE WILDERNESS THAT CALLED FOUL
In the 1960s, countries around the world joined forces to study cancer through this committee. The idea was to convene independent experts to assess chemicals and other potentially carcinogenic compounds or lifestyle choices. Wisner says that IARC is “the most prestigious organization in the world on this … being invited to IARC is something that you put on your resume.”
In 2014, IARC announced that after reading some disconcerting research, it was going to investigate glyphosate as part of the next monograph. Seventeen scientists came together in 2015 in France. Observers were also there, including Monsanto and a UCSF scientist.
IARC determined that there is sufficient data to support a causal relationship between glyphosate and cancer. They saw a causal link established in animal carcinogenicity and mechanistic data, but found “limited” epidemiological evidence.
Glyphosate is now classified as a “probable human carcinogen”.
In response to the IARC classification, Monsanto launched an unprecedentedly reactive PR push and an orchestrated outcry. Newspaper and social media responses were pushed on the day of the IARC announcements, which shows that Monsanto was armed and ready.
In response to Monsanto’s media push, ninety-four authors signed a report showing support of IARC and their classification.
EPA – WHAT DO THEY DO EXACTLY
Wisner shares a few thoughts on the EPA:
- Does not test any pesticide themselves
- Vulnerable to political shifts in both directions
- EPA’s “Scientific Advisory panel” split on glyphosate
- Office of R&D also of divergent opinion
The EPA approved Roundup and glyphosate for use and was once again determined non-carcinogenic in 2013. Since the IARC classification, EPA has been grappling with its own opinion on glyphosate and was soliciting comments from experts as recently as 2017.
Dr. Charles Benbrook will be testifying on the EPA and the regulatory guidelines. Can’t WAIT!
PLAINTIFF PERSPECTIVES: DID ROUNDUP CAUSE MR. JOHNSON’S CANCER?
We get a short introduction to two experts who will be testifying on this topic: Dr. Nabhan from the University of Chicago and Dr. Sawyer from Indiana University. They will address medical records, exposure, disease latency, and more.
Mr. Johnson grew up in Vallejo, CA. In 2002, he got a job at the Benicia School District and was ultimately promoted to be the Integrative Pest Control Manager. For two years, a protectively clothed Johnson sprayed Ranger Pro on weeds and grounds. A few times, he was completely drenched in Ranger Pro. The caution label on the product says that Ranger Pro can cause eye irritation and that excessive intake may cause gastrointestinal upset, but there is no mention of cancer. Johnson was told during training that Ranger Pro is completely non-toxic and that one could drink it. Parents would approach him at the schoolyard and call him crazy for spraying it on the school grounds where their children play.
When Mr. Johnson discovered a lesion on his knee in August of 2014, he called Monsanto and detailed his concerns. Mr. Goldstein received an email summary of the call, and wrote that he would call Johnson back because “this story isn’t making sense to me.” Goldstein never called.
Johnson’s condition worsened as he continued to use the Ranger Pro. He called the number on the jug and told the Monsanto poison service representative about his cancer. Monsanto never called him back.
Wisner states that his cancer got progressively worse because Roundup not only causes but also promotes cancer. We see some horrifically sad pictures, and my heart breaks for Johnson’s wife who is sitting by his side.
PLAINTIFF PERSPECTIVES – DAMAGES
There are two groups of compensatory damages:
- Lost wages and other economic damages
- Non-economic damages including physical pain, mental suffering, loss of enjoyment of life, not seeing kids grow up, physical impairment and disfigurement
Wisner points out that Monsanto’s net worth is $6.6 billion. If Roundup is determined to be the cause of Johnson’s cancer, the damages number should be significant enough to punish Monsanto.
He continues that Monsanto’s displayed negligent behavior in not calling Johnson back, not sending the Parry reports to the EPA, not studying Roundup formulation, and combating published scientific articles.
PLAINTIFF PERSPECTIVES – VIDEO TEASER
Wisner closes with a video of Dr. Kirk Azevedo who describes his experience of working at Monsanto. Acevedo wanted to work for Monsanto after learning of former Monsanto CEO Shapiro’s vision for the future of clean, green agriculture. However, during a meet and greet with Monsanto VPs at a training in St Louis, he was told that Monsanto is about making money and to “get it straight.”
DEFENDANT OPENING STATEMENT
George Lombardi introduces himself and the other attorneys, expressing that it was not his “foremost desire to speak at 3:00.” That’s right, the Plaintiff Opening was just over three hours.
Lombardi states that the Plaintiffs are not going to be able to deliver on the burden of proof because of overwhelming scientific evidence in Monsanto’s favor. He discusses the breadth of studies performed by independent, university, and government scientists, and the fact that there is an important human study specifically addressing glyphosate risks to licensed pesticide applicators. That study shows that glyphosate has no association with NHL, which would include Johnson’s NHL. Furthermore, the cancer would have been developing under his skin in the years before he was ever exposed to glyphosate.
We see a very cheery slide depicting a graphic of happy plants thriving and receive a lesson on the history of weed prevention as well. Historically, farmers tilled and plowed soil to turn over weeds. In the 1930s, farmers discovered that tilling is harmful to soil, making it thinner and less nutrient-dense. Tilling was partly responsible for the soil erosion that led to the Dust Bowl.
(Yes, I too am thinking of The Grapes of Wrath and the horrific details of the traveling dead body).
So, farmers started turning to chemical solutions. Glyphosate was very unique in its mode of action, hitting the sweet spot of killing weeds while remaining safe for human consumption. The idea is a nice one, keeping the likes of Granpa and Granma Joad alive.
DEFENDANT PERSPECTIVES – THE SCIENCE
Lombardi says that there is no one who is just exposed solely to glyphosate but not other pesticides. The job of the epidemiologist is to adjust for other pesticides and chemicals, and calculate statistical significance. He continues that the EPA has considered 63 epidemiological studies, though not all are related to NHL (<10). Regulators started to notice in the 50s and 60s that farmers were getting NHL, which supports a growing body of evidence that the NHL proclivity was happening before glyphosate was on the market.
Lombardi calls out Plaintiff Counsel for “incorrect” conclusions drawn from epidemiological studies. He also says that incorrect context was placed around internal email exchanges that Wisner shared with the jury, and that the exchanges were not of the malicious nature suggested by the Plaintiff.
Monsanto has done all of the tests required by the EPA. One test repeatedly performed is called an Ames Assay, which assesses the mutagenic potential of chemical compounds. The EPA has also considered 140+ studies. Lombardi claims that cherry picking studies does not give the jury the full picture. Cell testing shows that glyphosate is not genotoxic.
Regarding The George Study, Lombardi claims that even the IARC said that the study design was poor and inadequate.
Lombardi says that counter to Plaintiff accusations, Monsanto did publish an article discussing the toxicity of glyphosate formulations. Furthermore, they do know that surfactants are not synergistic, based on the epidemiological studies.
Defense continues, stating that the IARC and EPA have very different goals and procedures. The EPA has been studying GBHs since the IARC classification. They have looked at animal studies, and across species, tumor incidence has not increased. Cell tests show that GBHs are not genotoxic.
The EPA says that they only want the testing done on glyphosate, not the formulations, because they believe glyphosate is most likely to cause an adverse reaction. The surfactants are used in other things and are all known to the EPA to be safe. The EPA has concluded that the animal testing does not show any evidence that glyphosate is causing cancer.
OTHER ARGUMENTS TOSSED IN…OR RATHER, THROWN IN LIKE A MEAN PERSON PLAYING DODGEBALL WITH A BASKETBALL:
Monsanto has not known for twenty years that Glyphosate and GBHs cause cancer. The jury will not be shown a single document, email or witness testimony showing that Monsanto has known or knows that glyphosate causes cancer.
Regarding “ghostwriting” – the article isn’t original science, it is a scientific review article. In the acknowledgements, Williams thanks the Monsanto folks who made contributions.
Monsanto didn’t warn consumers because the science says that GBHs don’t cause cancer. The EPA concluded the same.
IARC looks at cancer hazards, not risks. They are looking to determine if something is a hazard even if the risk is very low. Lombardi gives many more reasons to not give consideration to IARC.
BRING ON THE TESTIMONIES
Wisner did an excellent job giving a high level overview of what is to come, but still added enough detail to substantiate initial arguments. Given the pages and pages of documents and information available, the Plaintiff’s team pared everything down cohesively and digestibly.
Lombardi seemed confident and certainly has years of evidence of all kinds overflowing from his back pocket. This courtroom/legal scenario does not seem new to Monsanto-representing attorneys. They appear to have comfort in the familiar.
The amount of complex scientific information that the jury must rapidly retain is no joke. The learning curve is steep and very few of the jurors have a science background.
Historically, most of the available scientific research has skewed to support Monsanto and the use of glyphosate. However, I still hold a great deal of hope that new science, heightened awareness of environmental toxins, and a rockstar legal team will land this case in a win for Johnson.
© 2018 Kelly Ryerson ALL RIGHTS RESERVED