Phase 2, Day 4 – The Final Act
And yet another closing. The courtroom is packed again, and I feel energy and momentum in the room for the Plaintiff side. Or perhaps I am trying to project my own energy after listening to a podcast entitled: How to Become Your Future Self with Joe Dispenza. He works to connect neuroscience, epigenetics, quantum physics, and consciousness. If what Dispenza says is accurate, we really all need to be doing a lot more creative visualization of optimal outcomes. I’m visualizing an enormous win for Hardeman.
I would say it is a sure thing, but Monsanto attorney Stekloff is more animated today and looks pumped to perform. I appreciate his springy-pink tie, which definitely softens him a bit. I am convinced that he has a background in competitive debate, in which the debater initially doesn’t know which side of an issue he/she will defend, but wants to win regardless. Like when I took a persuasive speech class once and was assigned a bummer argument on the boring side of alcohol policies. I made the case for an alcohol-free college campus just before rollerblading over to a fraternity party. I sense that Stekloff will be rollerblading over to an organic restaurant for lunch.
The bifurcated trial design that Monsanto requested may not have been the best strategy for them after all. Presumably, they never anticipated getting to a Phase 2. Fair enough, the lack of convincing evidence of Roundup safety never stood in the way of receiving approval in the context of other governmental institutions. But now that we are in Phase 2, the onslaught of evidence of straight up BAD behavior and deception looks overwhelming.
Monsanto has very little to defend itself with other than the perpetual shield of our glorious regulatory bodies of the EPA and EFSA. Oh, and readers from Japan, they are highlighting your regulatory agency too. Another defense that has been stressed several times now is that Monsanto’s Defender of Glyphosate, Donna Farmer, uses Roundup in her backyard.
In the Johnson trial, the Monsanto attorneys had a bit more flexibility in how to respond to Plaintiff evidence of Monsanto’s despicable behavior, because the science was still up for debate. So Wisner might throw in Monsanto physician Daniel Goldstein’s incredibly incriminating testimony, but the argument could quickly refocus on the science. In Hardeman, with the science portion settled and neatly tucked away, all Monsanto is left with is the EPA/EFSA and the highly questionable testimonies of Monsanto employees.
Don’t hate me but – could Chhabria have known this all along?
The jury enters, looking rather expressionless. I triple check that my ringer is off as not to suffer the wrath of Chhabria’s disapproving glares. Yesterday, a woman turned a few shades of red as a prolonged jingle went off and disrupted some heated debate.
The very last piece of testimony from Dr. Portier is played at the request of Monsanto. Have I mentioned that Portier has some serious twinkle in his eyes? He also has a slight bemusement/deadpan thing about him that is magnetic even through the screen. Monsanto plays a brief clip, showing Portier a letter from the EPA to the Australian government from December 21, 2018.
In the letter, the EPA just wanted to let the Australian government know that it is “confident in its conclusion that glyphosate is not likely to be carcinogenic to humans.” Portier glances with confusion as to why he should care, the EPA’s stance on glyphosate is not new news. That letter seems inconsequential and a waste of all of our time. However, it does inspire me to apologize to the Australians on behalf of the American regulatory system – our regulators clearly like to share a blind support of BigAg with other countries.
Both sides rest and now on to closing arguments.
Plaintiff Closing Arguments
I anticipated that Aimee Wagstaff would be on for closing statements, but Jennifer Moore stands up, ready to fire. We haven’t heard as much from her during the course of the trial, so I’m looking forward to watching her flex her chops. She is dressed in a light cream blazer and dark skirt, with her trademark long wavy curls nicely coiffed. Moore has a charming southern accent, but I quickly learn not to be deceived by the air of melodic sweetness. Girlfriend is a steel magnolia.
Moore runs through detailed slides that summarize what Plaintiff evidence supports which claims, and how each piece of evidence supports the Plaintiff’s position on damages owed to Mr. Hardeman.
She begins with a list entitled “Monsanto’s Bad Conduct”:
- FACT: Monsanto knew or should have known the ENTIRE time Mr. Hardeman sprayed that Roundup causes NHL
- FACT: Monsanto ADMITS it did not warn consumers like Mr. Hardeman
- FACT: Monsanto acted recklessly and with conscious disregard of safety
Moore comments that Monsanto did the opposite of what a company should be doing – a responsible company would test its product.
Next, the most dynamic, informative glyphosate summary slide of all time is shown. Moore calls it “Monsanto’s Knowledge – The Facts 1975-2010.” The chart first shows each epidemiology study that concluded that glyphosate exposure supports an increased risk of NHL, neatly listed above the year that the study was performed. Next, Moore discusses and incrementally adds animal studies, Oxidative stress studies, and Genotox studies to the chart.
To add more emphasis to the magnitude of overwhelming scientific research that should have caused Monsanto to warn that Roundup could cause cancer, Moore plays a clip of video testimony from Dr. Reeves. Dr. Reeves, Monsanto’s hired spokesperson, said in his testimony that “Monsanto’s position is that there is no evidence to support Roundup causing cancer to people related to real world exposure.” And later: “There is no evidence across the board.”
Moore expresses her outrage. “Frankly, it is offensive. When you see all of the information they had, for their designated spokesperson to say no evidence across the board.”
I agree with Moore, it is offensive!!
Moore begins to change her tone to one that I can only describe as that of a mom who fights tooth and nail for what is right for her family. There is a fierce maternal nature emerging from her that I think naturally makes us all want her protection. Today, as many of us feel like the our health, government, and the planet are going to hell, it feels incredibly reassuring to know that someone with a strong voice is protecting our best interest and making things just a bit better.
In a clear, concise format, Moore describes Monsanto’s conscious disregard of safety. She discusses the timeline of the EPA approval of glyphosate, including:
- In 1975, glyphosate was approved for registration with invalid oncogenicity lab data from the now-defunct IBT laboratory.
- Knezevich & Hogan 1983 “Magic Tumor” study, which found glyphosate is oncogenic in male mice. The study landed glyphosate in the EPA category of Class C oncogenic. Instead of reacting with concern, Monsanto hired a scientist to look at the study again and “find” a tumor in the control group of mice, making the study not statistically significant.
- In 1986, Monsanto agreed to repeat the rat study but vehemently argued the lack of justification for a repeat mouse study. Moore emphasizes that Monsanto “never repeated that mouse study. They don’t want to repeat the mouse study!” Furthermore, a malignant lymphoma has been found in every glyphosate mouse study between 1983 and 2010.
- In 1993, with no further mouse study, the EPA conveniently changed the classification from Class C oncogenic to E Evidence of Non-Carcinogenicy for Humans. Moore points out that with the E classification, the EPA also noted that the classification “should not be interpreted as a definite conclusion that glyphosate will not be a carcinogen under any circumstances.”
Moore passionately continues, touching upon all of the super sketchy activities and communications Monsanto has taken part in during the time that Hardeman was innocently spraying Roundup all over his poison oak. She attacks much of the testimony that Monsanto employees gave in the video depositions.
Donna Farmer, naturally, is Moore’s target #1. Moore goes through the list of internal studies performed on the formulated product that Farmer and attorneys prepared and presented. Monsanto attempted to convince the jury that they responded to Dr. Parry’s suggestions to test the formulated product. In reality, Moore says that the studies are NOT those that Dr. Parry recommended, and October 2016 is the only time that Monsanto actually started testing human lymphocytes. Moore says sarcastically, “And of course, the study is negative.”
Moore emphasizes that even with the $1.5 billion available for R&D, no one at Monsanto performed a study on the Roundup formulation. They didn’t perform a study even though they knew of concerning independent research to suggest more studies should be performed. Eventually, Monsanto decided that they should ghostwrite a comprehensive glyphosate paper to protect their interest in selling Roundup. Enter the Williams 2000 paper, written in part by Monsanto executive Dr. Bill Heydens.
We revisit some of the emails that prove the ghostwriting and control that Monsanto held over the writing process. In the email that Bill Heyden’s wrote to Donna Farmer about controlling the final edits of the Williams paper, he refers to study coordinator Douglas Bryant as “Dougie.”
In a moment that still has me laughing as I write this, Moore says “And Dougie, A GROWN MAN named Dougie.” There are several chuckles in the crowd. I don’t think she is trying to be funny, she is just on a major roll and pointing out the absurdities of the situation. And there are many.
In preparation for Monsanto’s Closing Arguments, Moore tells the jury that Stekloff will tell them how the EPA is in full agreement that glyphosate and Roundup do not cause cancer. She also highlights Dr. Portier’s comment: “I feel as if the EPA has let down the American public.”
After painting a highly compelling picture of why Hardeman deserves the jury’s verdict, Moore pivots to talk damages. She passionately argues that in order to discourage similar conduct in the future, punitive damages are an excellent way to send a message. “This is about Monsanto. This company, for the last 40 years, has been manipulating science and public opinion.” YES!!
To frame the financial situation, she explains that Bayer acquired Monsanto in June 2018 for $63 billion, Monsanto’s net worth at the time was $7.8 billion, and they had $2.4 billion in cash. Monsanto spends $1.5 billion a year on R&D.
Moore escalates her passion in an intense, emotional, and extremely compelling speech that is an absolute delight to witness. I don’t hear any chatter around me. All eyes are on Moore.
“Just think about all they knew, yet they still conducted a pattern and practice of deceit. When targeting the amount, in view of Monsanto’s final position, what amount is necessary to punish Monsanto and discourage future wrongful conduct? All I can tell you is that this company, after all this time, still comes to this courtroom and says there is no evidence across the board. They didn’t take it off the shelf or tell anyone it causes cancer. They just kept selling it.”
“Nothing else – IARC, studies – NOTHING has stopped this company because the only thing that they care about is profit.”
She continues, missing absolutely no beat.
“It’s your power and job to say NO MORE. It stops today, the lying, ghostwriting, manipulation. Test your product, put a warning on it. Send that message loud and clear.”
Moore proclaims that after the verdict, the Monsanto attorneys will call St. Louis, where Monsanto executives are sitting in a board room … Oh my gosh, I think she is going to give the controversial “champagne on ice” comment that Wisner delivered in the Johnson trial. Given that the comment nearly stripped the win out of the hands of Johnson, I’m surprised that Moore would touch it.
Chhabria abruptly (and maybe knowingly) halts Moore and says “OK! THAT’S ENOUGH!”
Moore thanks the jury, and steps down. That performance was mesmerizing. There is no chance that Monsanto can top Moore’s compelling closing.
Monsanto Closing Arguments
Monsanto attorney Stekloff eagerly steps out of his seat and takes center stage in front of the jury. I’m not certain that the smile is legit, but he appears friendly and confident. He seems considerably less sulky this morning.
The next 1.5 hours are spent highlighting the details of the internal scientific studies that Monsanto completed and discussing all of the regulatory bodies that support the safety of glyphosate. It angers me to consider listing Stekloff’s arguments on my blog, because it almost feels like the print is validating the idea that Monsanto is a highly ethical, science-based organization when I know that to be untrue.
Nonetheless, a highlight list:
- Monsanto has an unusually large dataset of safety data from Monsanto and other registrants of glyphosate. There is an extensive toxicology database. (GG comments in italics) If this is true, why on earth is it hiding in their internal dataset instead of headlining Phase 1 science?
- Monsanto ran numerous tests on glyphosate, surfactants, and the formulated product. With a feigned but convincing display of hurt feelings, Stekloff says that it’s an “awful allegation to say how criminal Monsanto was when they’ve done all of this testing.”
- Former Monsanto CEO Hugh Grant testified that “sound science was the bedrock, the platform that we operated on” at Monsanto. I saw his deposition – the guy is a scary smooth operator with a shockingly adorable Scottish accent.
- Monsanto spokesperson Dr. Reeves did say that when the scientific data is all taken into account, there is no evidence that glyphosate causes cancer. Reeves defends this claim by saying that there are additional studies that may purport to have findings one way or the other, but when you look at the particulars, they often have some sort of methodological flaw that prevents either a conclusive outcome or a reliable source of information. So evasive. The independent toxicologists and epidemiologists who study pesticides must all really be subpar for NO study to spark a little concern.
- We see a slide with six smiling Monsanto employees who we’ve gotten to know, and a pasted picture of a Roundup bottle. Stekloff stresses that all of them testified to using Roundup themselves around their pets and children. This factoid would be absolutely impossible to prove – are we going to take their word for it that they actually use Roundup at home?
- As of 2012, not one regulatory agency has said that glyphosate causes cancer. No regulatory agency and no health organizations.
- At the regulatory review boards around the world, teams of highly qualified expert scientists examine large sets of data for themselves. We see a list of the different scientific specialists that the EPA, EFSA and Germany’s BfR have on staff to evaluate glyphosate. I’m kind of freaking out here, because I know that EFSAs re-registration of glyphosate was based in large part on straight up copy-pasting from Monsanto (and other glyphosate registrants) applications. There was a worryingly small amount of independent scientific evaluation that went into the approval of glyphosate in Europe.
- Stekloff argues that the Plaintiff couldn’t find any proof that there was a “cozy relationship” between the EPA and Monsanto. Stekloff says “that evidence is not there…they don’t have any.” What is bizarre here is that it is a blatant lie that the Plaintiff doesn’t have evidence – the evidence was all in the Jess Rowland testimony that Chhabria ruled couldn’t come into the trial. I look at Chhabria to see if he is going to call a sidebar, but he does not.
- Stekloff once again brings up the fact that Hardeman doesn’t remember exactly how many times he looked at the Roundup label over his decades of use. Therefore, Stekloff claims, there is no evidence that he would have read a cancer warning. Still an irrelevant argument because there was no cancer warning on the label, and Hardeman did testify to looking at the label the first time he purchased it.
- Stekloff points out that Mr. Hardeman may not have read other labels for carcinogenic products like ant spray, wasp spray, gasoline and paint.
In his conclusion, Stekloff gives an A+, compelling speech that angers me for its excellence. He reminds the jury that it isn’t a popularity contest and that they don’t have to like Monsanto to vote that the Plaintiff didn’t meet their burden of proof. He shows a picture of ten smiling Monsanto employee headshots, who are family people that eat breakfast at home just like the rest of us. He argues that they don’t then get in the car, drive to work, and happily engage in a conspiracy to cause cancer. “That is outrageous.”
We see another slide with the regulatory agencies listed – Stekloff says that to award damages would mean that all of those agencies around the world are lying. After a final summary slide, Stekloff completes his arguments and takes a seat.
Jennifer Moore rebuts a few of Monsanto’s points, gives another passionate plea to the jurors to do the right thing and demand that Monsanto take responsibility.
I’ve been told that my eyes are at half-mast from this week of writing and no sleep, so I’m looking forward to a bit of a rest tomorrow. Sorry for any typos.
Even though both the Plaintiff and Monsanto fought for their lives, I think that the Plaintiff will ultimately prevail with the jurors. Of course, it just takes one juror who disagrees to derail the verdict. Phase 2 verdicts also have to be unanimous. Either way, both sides put everything they have on the table, so regrets should be few.
© 2019 Kelly Ryerson ALL RIGHTS RESERVED