Phase 2, Day 1 – Happy Silent Spring Break
Back again for the first time, Phase Two! Just a note: I put dialog in quotes to keep things organized, but these quotes are the spirit, but not the letter of what was said.
Elaine and Christopher Stevicks are here. Wow, these two are dedicated. In case you missed it, they are the Plaintiff in the next federal MDL trial which begins in May. Elaine is already taking notes today. If I was an attorney, I would thank my lucky stars to have such engaged clients.
All rise. Judge Vince Chhabria enters the courtroom and has two small items to discuss before the jury is brought back in. First, Chhabria discusses the admissibility of evidence from Plaintiff expert witness Dr. Mills, who is tasked with assessing the financial condition of Monsanto. Monsanto objects to showing the jury numbers:
- How much Bayer paid to acquire Monsanto
- Bayer/Monsanto Roundup advertising spend
- Monsanto CEO Hugh Grant’s $32 million exit package
- Payout of nearly $1 Billion in dividends to shareholders
These numbers will factor into the calculation of punitive damages, as well as into the question of why Monsanto did not spend more on, say, testing the safety of Roundup.
Chhabria incredulously asks Monsanto, “Are you trying to tell me that the acquisition cost of a corporation is not indicative of the value that corporation?” Monsanto explains that Monsanto is a separate legal entity from Bayer. Chhabria is still not swayed: “I can’t understand how these numbers could not be relevant.” He asks a hypothetical: “Why can’t the plaintiffs argue: look at all they spend on ads, but not on safety?” Monsanto finally makes some headway by explaining that 2017-2018 financial numbers cannot be used to determine the mindset of Monsanto, as it post-dates Mr. Hardeman’s time of exposure (1986-2012). Moore is cleared to use a few of the financial numbers. (These we will find out are the $64 billion acquisition by Bayer, Monsanto’s net worth of $7.8 billion, and cash on hand of $2.8 billion.)
Ms. Edwards, the Monsanto attorney from the Johnson trial, takes a seat in the row in front of me. I go into stealth mode and try to act natural. Actually, I would not mind talking with her sometime.
We take a break for Chhabria to check the Plaintiff’s opening slides. I suppose the judge does not want a repeat of the fireworks that went off during Aimee Wagstaff’s Phase 1 opening. Chhabria returns from the break and tells us that the Plaintiff’s opening slide set looks like a two hour presentation. His tone of voice seems less than pleased.
We stand again as our jurors enter the courtroom. Yes, they are OUR jurors now. Standing for jurors does not get old. Chhabria reminds the jury that his previous instructions still apply, including, he emphasizes, what is and what is not evidence, and assessment of witness credibility.
Plaintiff Opening Statements – Phase 2
Aimee Wagstaff opens with heartfelt thanks to the jury for hanging in there during this long trial. I sense that she has developed a rapport with these folks.
“Why are we here?” Aimee asks the jury rhetorically. Aimee explains that we are here because Mr. Hardeman got cancer from using Roundup, but the real reason we are here is because of a shopping list of very bad behavior by Monsanto.
- What did Monsanto know (about the carcinogenicity of RU) and when did they know it?
- Monsanto failed to warn its customers
- Monsanto influenced regulators and manipulated science through ghostwriting
- Monsanto never did an epidemiological study
- Dr. Parry’s recommendations were never completed
- Monsanto never conducted in vivo genitor or oxidative stress studies
- Monsanto never repeated the Knezovich and Hogan (Mighty Mouse/Magic Tumor) study
Wagstaff glides through her opening with the help of a really slick power point. Wagstaff and the power point are in complete sync—when she says something, it is animated on the screen in various ways. I’ll bet this is what the inventors of Power Point were envisioning—a seamless performance of human and slide deck. I wish I could just play it for you now…but here are the highlights, so hang on:
- We are shown a simple slide with text that reads: Roundup is 100 times more toxic that glyphosate alone. (Keep that in mind when we get to Monsanto’s opening.)
- We see the famous 1999 Dr. Donna Farmer email in which she writes: “You cannot say RU is not a carcinogen.”
- We are told Monsanto admits that it never warned that RU can cause cancer. (And still hasn’t.)
- Edwin Hardeman will take the stand again: he read the label on the RU bottle, and if it had warned that it was carcinogenic, he would not have used it.
- Mighty Mouse returns! EPA approval was based on the recut slides of one control mouse in which The Magic Renal Tubular Adenoma appeared, nullifying the dose response data.
- We will see that Monsanto never conducted long term studies on RU
- Monsanto admits they did no further carcinogenicity studies since 1991
- Monsanto’s reason for not doing further studies is “because we never had any information in front of us that indicated that we needed to do that study.”
- Remember Dr. Parry? Wagstaff tells us that at the same time Monsanto developed a “positive press” release on the safety of RU, Dr. Parry reported evidence of genotoxicity and oxidative stress to them.
- Monsanto wants to persuade Dr. Parry to change his position, but his second report shows glyphosate is clastogenic (causes chromosomal damage).
- Farmer: “We simply are not going to do the studies Parry suggests.”
- Farmer and Heydens, 1999: “We want to find/develop someone who is comfy with RU genotox.”
- More emails: “We need a back-up genotox supporter. We are vulnerable in this area.”
OK, take a breath. I cant believe Wagstaff gets through all this in 30 minutes….
- Monsanto will admit that no report recommended by Dr. Parry ever went to EPA.
- We will learn that Dr. Heydens ghostwrites the “Williams 2000” article.
- In another email, Dr. Heydens writes: “And they just edit and sign their names. Remember this is how we handled the William’s article.
Ouch. Am I actually feeling sorry for the defense team?? They are taking a real beating.
- We see a CEO Hugh Grant email: “Very good work. Please keep me in the loop.” He ratifies the ghostwriting.
- Another email, from Dr. Saltmiras, “The 2010 Williams is an invaluable asset for regulatory reviews. It has served us well over the last decade.
- Wagstaff explains how ghostwriting gets intertwined in the science (like fake news does, I am thinking) because it will get footnoted by a legit study and then it is hard to untangle.
- We learn that Farmer herself has ghostwritten. Wow, she does it all, head toxicologist, ghostwriter fence jumper.
- When the 2001 McDuffie study showed a 2x dose response, Monsanto wanted to make it harder to find in abstract searches by taking the word “glyphosate” out of the abstract.
- In an Acquavella and Farmer email re: McDuffie 2001: “Glyphosate no longer mentioned as risk factor in abstract,” to which Farmer replies: “Yay! It will be hard to find.”
- We learn that while Monsanto thinks epidemiological studies are the gold standard “real world” exposure, they have never conducted a single one.
- Last but not least, Wagstaff reminds us that the original EPA approval of glyphosate was based on an invalid study and that the EPA does not test anything, but relies on data provided by the registrant. And, wait for it, Monsanto has an individual or individuals in the EPA that it is cozy with.
- Wagstaff wraps up and tells us Dr. Chadi Nabhan will be testifying about Mr. Hardeman’s medical ordeal. This is good news because the courtroom was freezing again today and Dr. Nabhan will warm up the courtroom on Friday simply by walking up to the witness stand. Trust me on this.
Monsanto Opening Statements – Phase 2
We go straight into Brian Stekloff’s opening for Monsanto.
I am curious how he is going to approach such a daunting task, especially after the litany of Monsanto’s dastardly deeds that the Plaintiff just laid out for us. Stekloff understandably does not seem to have that warm fuzzy thing going on with the jurors.
Stekloff is all business and implores the jury to demand that both sides tell the “full story.” He tells us that the Plaintiff has been “cherry picking” pieces of evidence and snippets of emails. Fair enough, I think to myself, don’t you do the same? It seems to me having watched this sort of thing for weeks on end that cherry picking is just par for the course for litigators. Fine, now the counterpunching begins.
Stekloff asserts that Monsanto “acted responsibly” from 1986 to 2012 (the time that Mr. Hardeman sprayed Roundup) based on what it knew of the science during that time. He is inferring that no science during that period pointed to any safety issues with RU.
As I am digesting that chunk of implausibility, Stekloff asks that we not focus on Hardeman’s suffering. That is not what we are here to do, and of course those things are awful.
Now I am getting indigestion.
And just when I can’t keep it down, there it is, Monsanto’s security blanket to the rescue: Roundup has been “approved by EPA and regulators around world.” Stekloff could have put a little more excitement into that pronouncement. OK, far be it from me to kick a man when he is down. But really, he doesn’t have that Stekloff pizzaz today. He tries one final Hail Mary on this topic: “Monsanto is not hiding behind the EPA.” Hmmm.
So Stekloff, I think wisely, moves on. He tells us that Monsanto has conducted decades of testing – all sorts of studies, in fact. Then things get a little sketchy. Stekloff purports to have these lists, pages and pages listing studies Monsanto conducted that Dr. Farmer compiled. These are not nice, clear, power point slides, these are actual pieces of paper that he puts on the “Elmo” (overhead projector).
Stekloff starts marking study after study with a real highlighter pen. See? Look! Results negative. He highlights another study. See? All negative. There is a big problem though—these documents are completely unreadable. We cannot see what these studies are. I can’t make out one word, but Stekloff continues highlighting, line after line, as if this is a big revelation. Personally, I think this is a cheap trick and beneath even Monsanto. Stekloff has made a show of highlighting a big nothing burger.
The Plaintiff wants a sidebar which I assume has something to do with the smoke, mirrors, and highlighter show. Coming out of the sidebar, Chhabria repeats that lawyer statements are not evidence, but then we see more unreadable lists of studies highlighted. These are Monsanto’s studies of the toxicity of surfactants.
ALERT! (This is a Red Herring alert, but I could only find a red squid emoji.) So, of course the dozens of surfactants are found to be non-toxic, but that is not the issue! The question is really one of the mechanism by which the surfactant expedites the delivery of glyphosate through human skin to blood vessels below. I am thinking Stekloff’s highlighter must be running low on ink by now when he proceeds to explain how it is impossible to do long term animal studies on surfactants because it kills the animals! This is true, but sounds really bad right now.
Just when I think it is safe to come up for air, Stekloff takes us back to the EPA. Now this is just tiresome. Who works at the EPA he asks? Toxicologists, chemists, epidemiologists! And what did they do? They concluded in 1993, and again in 1998, that glyphosate is Group E, non-carcinogenic in humans. If you don’t believe the EPA, then what about EFSA, who found “No evidence of carcinogenicity.”
ALERT! At a 2004 WHO meeting on pesticide residues in food, glyphosate was found unlikely to be genotoxic. Again, a red squid, food residues (which are a very serious concern) are not the type of exposure this trial is directly concerned with. The claim is totally off topic.
Stekloff moves on to rebut the Dr. Farmer email by adding a part that Wagstaff left out: “You cannot say RU is not carcinogenic… we have not done the testing to make that statement.” Stekloff asserts that this is evidence that Dr. Farmer is “doing what a scientist does.” Stekloff treats us to another round of “highlighters gone wild” on the Elmo. I still can’t see these documents, but he keeps highlighting like his life depends on it. On one document he highlights the entire page. (Sell Bayer, buy Office Depot!)
Stekloff takes on the Parry problem now. Again, he tells us, don’t let cherry picked segments of emails sway you. He claims that Monsanto did conduct further tests as recommended by Dr. Parry. He backs it up with a snippet from Dr. Portier in which Portier testifies that the studies were done, except for one.
Stekloff wraps up by again emphasizing how everything is hunky dory from 1975 to 2012 and that Hardeman used RU from 1986 to 2012. He tells the jury that this is not a popularity contest, “You don’t have to love Monsanto, or like Monsanto.”
Ok, but really, does Monsanto spark joy?
Deposition of Dr. Mark Martens
After the break, the jury is shown the dreaded video depositions. First up is Dr. Mark Martens, Monsanto toxicologist. I feel like dying when I realize within a few seconds that this is the same video I saw last summer. It all came back like when a smell or a song triggers a memory, but backwards. Now I can smell and hear that courtroom. This also is probably triggered by the fact that I am freezing now, just like last summer in the box. Anyway, the Martens depo gets into the whole Dr. Parry thing in a revealing way and you intrepid readers can read it here.
After our lunch break, Chhabria digs in: “Let’s talk about this Rowland guy…is there evidence of EPA influence? Isn’t there something about a text exchange?” The discussion is about the permissibility of admitting the strongest evidence of the Monsanto/Rowland/EPA connection. The evidence is from 2014-15 so Monsanto wants it excluded, but Chhabria says “coziness with a high-level EPA official” could be relevant to pre-2012 conduct. He decides to pick it up later.
Let’s check in with our jurors. They come back into the courtroom, wait, laughing? Talking? A bounce in their steps? Yes, all these things and more. They are taking notes like someone is telling them tomorrow’s winning lotto numbers. You go girls and guy!
Dr. William Reeves
Dr. Reeves, Global Health and Safety Lead for Monsanto since 2018, is our next video depo. We did not see Dr. Reeves last summer. Apparently, Bayer has brought him in to speak for Monsanto, since the corporation otherwise seemed to lack litigation-worthy vocal cords. The depo was taken on January 23, 2019. Nothing like fresh depo.
The off-camera attorney starts by drawing the tripod of causation on a piece of paper on camera in front of Reeves. The drawing does not get past the seat of the stool, and the whole exercise is comical. Ah yes, of course, it is Brent Wisner doing the examination, so it all makes sense now. Wisner is trying to pin Reeves on the question of how, out of all sorts of positive studies, Monsanto found no evidence that RU might be toxic. Monsanto’s incessant argument of “no evidence” of toxicity is their perpetual excuse for not initiating their own studies. Reeves: “We have never done studies because we have not had information in front of us that indicated that we needed to.”
Wisner: Monsanto never conducted epidemiological studies? Reeves: Well, we helped with the AHS, and a study of some of our own workers.
Wisner: No mechanistic studies since 1991? Reeves: Nope.
Wisner shows Reeves the 1999 Hardell Erickson study that shows a significant 2.3x increased risk for NHL and asks if this is enough for concern. Reeves says no.
Throughout this depo, Wisner presents Dr. Reeves with studies that show a significant risk factor for NHL from RU exposure, and Reeves dismisses each as a flawed study. When Wisner shows him emails in which other Monsanto scientists express concern, Reeves says that he can’t speak for them, even though he agrees that he is there to speak for the corporation.
Wisner covers the McDuffie abstract tampering in more detail. It looks bad. Reeve’s defense? “I was not prepped to speak on behalf of the company about that.” Geez man.
Folks, that right there is the kind of witness response that makes a juror toss your credibility in the recycle bin. I am done with this joker. Bye.
Reeves reminds me a little of a fellow Agent, Mr. Smith in The Matrix. I can’t stop wondering what he did to get this assignment. It doesn’t seem like it would have been an optimal promotion.
Wisner shows Reeves another Farmer email in which she writes: “It’s only matter of time before [the activists] pick this up. How do we combat this?”
Wisner asks what Monsanto is trying to “combat.” Reeves is not sure what this is referring to.
Reeves: “I can’t be inside her [Farmer’s] head.”
Wisner: “It is basic English grammar sir.” The question is read back.
Reeves: “Again, I can’t speak for Donna, can’t speak for employees.”
Wisner: “Can you answer on behalf of Monsanto. I am asking you to speak for Monsanto. If you can’t answer the question we will get a witness who can.”
Reeves: “We don’t have an official position on what she is saying here.” Says the official corporate spokesman.
We are back from our seven-minute afternoon break and it is really freezing in here now! I can’t put my hat on, that’s not allowed in court. (I learned a long time ago that you lose 50% of the heat from your body from the top of your head.) Oh, but I see jurors smiling! That warms my heart…
Wisner leads Reeves through the story of Mighty Mouse and the Magical Renal Tubular Adenoma. Reeves is royally renally reamed out. Wisner gives no quarter.
Wisner: “You have back room conversations. You have texts with the EPA. To get out of the mouse study, right?”
Reeves: “We hired Dr. Kushner to present the study to the EPA.” Dr. Kushner is the magician that “found” the Magic tumor in Mighty Mouse.
Wisner: “So, all positive studies are not good studies?” Reeves: “Yes.”
Wisner: “There is no evidence, across the board?” Reeves: “There is no carcinogenic potential. All the positive studies have some type of flaw.”
There is a defense cross of Reeves that is mostly softball questions about his CV and trade show hype about how efficacious RU is, especially for poison ivy.
Deposition of Dr. Donna Farmer
A new Farmer depo by Wisner from last fall! Same Dr. Farmer though.
Wisner asks: “What is FTO [Freedom to Operate]?” Answer: “People are free to buy our stuff.”
Awwww, come on Donna! She knows, and we know, and she knows we know, that FTO is a Monsanto program that fights back against any perceived diss of Roundup.
Wisner: “Is FTO a program to reduce regulatory restrictions?” Answer: “I’m not aware.” Well, Dr. Farmer, you lost this juror last July.
The depo continues with discussion of a “stewardship program” for glyphosate, more coverage of ghostwriting, ad hominem attacks on scientists, and the McDuffie abstract. We conclude for the day with an email with the usual suspects: Acquavella, Farmer, and Heydens. They discuss “two glyphosate findings” with “no abstract, but [they] still might pick up on it.” Farmer: “Darn!.”
“Public is risk averse, especially in regards to children… even microscopic amounts.”
“The epi results have begun to affect our FTO…six studies arguably associate glyphosate with blood cancer.”
As usual, no fade out, just a jarring end to the video for now. The Farmer depo will continue Friday.
After we stand for the exiting jury, Stekloff complains that the plaintiffs are using too much time. Maybe that is because Monsanto just does not have many witnesses to present—they don’t need time, but Stekloff will still try to irritate the Plaintiff. Moore calmly explains that “a case like this” needs more time to consider liability and damages.
Chhabria touches briefly on the Monsanto financials again, asking the defense why it is not theoretically OK for the Plaintiff to bring up figures that show the company spent little on cancer research compared to other expenditures. Stekloff: “It will inflame the jury.” Oh snap.
Chhabria gets right back to our old friend Jess Rowland. He asks Monsanto, “…why is he not relevant? Monsanto has been in touch with him for a decade.” Moore wants Rowland EPA evidence admitted because Monsanto relies so much on the protection of the EPA classification, and the jury by now knows that RU is still on the market. “This is business as usual.” Chhabria is struggling with “403” rules of evidence. It gets tricky when evidence that is admissible for one reason is prejudicial for another reason, or something like that.
I am dying to hear more about Rowland because all but his name were excluded from the Johnson trial, so this mystery guy just kept popping up when we would least expect it.
©️2019 Robert Howard