The Good News and The Bad News
I’m reading the engrossing book “Bad Blood” that entertainingly exposes the corrupt debacle at blood-testing startup Theranos. Throughout the book, stunning similarities emerge between the pervasive corruption, lying, and coverups at Theranos, and all that we have learned about Monsanto. Unfortunately, while an individual could choose whether or not to use Theranos’s tests, glyphosate is so pervasive throughout our environment that we are exposed regardless of personal choice. Remember, glyphosate has been found in rain, vaccines, drinking water, and on our parks and sidewalks. I just sent in my urine test to check my glyphosate levels, and will report back. I’m bracing for bad news even though I eat primarily organic foods.
Now on to positive news! There has been some outstanding progress in raising awareness of the dangers of glyphosate in the last two weeks; evidence that the public and scientists are slowly catching on to the problems with my namesake chemical and the need for activism to correct the misrepresentation of safe food levels.
- I’ve been legit stressing about the future diversity of our collective microbiomes, which are murdered daily by glyphosate, antibiotics, and other toxins. I’m a miserable cocktail-party conversationalist these days. Check out this proposal for protecting against total extinction of some of our beneficial bacteria by creating something of a savings bank of gut bacteria to access and grow back in the future.
- Many food brands petitioned the EPA this week to ban pre-harvest glyphosate spraying! Now we’re talking some big, glorious change. GG opinion is that this pre-harvest spraying was likely the culprit behind the exploding gluten intolerance epidemic. Interestingly, the Environmental Working Group reports that the FDA has glaringly not been testing the glyphosate levels of wheat and oats, which are subjected to pre-harvest spraying and likely have high levels of glyphosate residue.
- Celebrate! Bloomberg journalists reported: “Bayer AG’s defense of Roundup weed killer may take a hit after an academic journal said Monsanto Co. didn’t fully disclose its involvement in published research finding the herbicide safe. A correction issued by Critical Reviews in Toxicology, a journal that analyzes health risks of chemicals, may bolster arguments that Monsanto, acquired by Bayer this year, ghost-wrote safety reviews as lawyers try to convince juries that Roundup causes cancer.” It’s not as extensive a correction as most would like, but it is a solid step towards acknowledging Monsanto’s pervasive corruption of academic journals.
- As a few of you shared with me, a study was published showing that the bee microbiome is harmed by glyphosate. It is terrible (yet not unsurprising) news, but also a step forward in awareness and a call for change. Bayer rebuked this study, in a fashion that would make former Monsanto execs and current Monsanto attorneys proud. Note the common themes that we’ve heard before: the study is too small scale to be considered meaningful and that the conditions set up in the study were unrealistic. The arguments are glaringly similar to why they seek to dismiss a huge amount of epidemiological evidence that glyphosate causes cancer. I wonder if they have a searchable internal database of these responses.
I’m feeling optimistically upbeat today. First, my husband halted his intermittent fasting stint that left him perpetually hungry and annoyingly hangry. But more importantly, I am gleeful after plugging through the Plaintiff oppositions against Monsanto’s motions for JNOV and a new trial that were submitted earlier in the week. There is a lightness in the writing that is whisking up some hope. There is something immensely satisfying reading the printed, condensed facts of Monsanto’s outrageous behavior, all tailored into a tidy 72-page read.
On Twitter and other online media, I sometimes read criticism of mass tort lawsuits and questions surrounding the motives of the lawyers representing Plaintiffs. To clarify, Monsanto and Bayer can continue their destructive behavior because it is innately profitable. Without the funding and expertise that mass tort lawyers can bring to the case, these issues are not effectively brought to trial and Monsanto continues to win. If voices of concern and protest were enough to persuade these companies and the government, glyphosate would have been banned long ago.
Opposition to Monsanto’s Motion for New Trial
In the filed Opposition to Monsanto’s Motion for New Trial, Plaintiff attorneys present a tome of killer arguments to rebut Monsanto’s arguments for appeal. Even though I sat in on every day of the trial, I’m still learning some new details. In defending the high quality of the jury and their process in reaching a unanimous verdict, the Plaintiff highlights that:
“Six of the jurors had science degrees; eight of the jurors had graduate degrees, two jurors had Ph.D.s. One juror was a genetic engineer who had already had an intimate knowledge of the mechanism of action of glyphosate resistance in genetically engineered plants. With such an attentive and intelligent jury, it cannot be said that their verdict was ‘obviously and clearly wrong.’”
Holy cow. I knew they were a special, soulful jury, but didn’t realize their weighty science expertise.
Plaintiff attorneys offer that: “There is not a scintilla of evidence to suggest that the jury did anything but faithfully execute its duties in following the Court’s instructions to give both Johnson and Monsanato its fair and impartial consideration.” Let’s discuss this word scintilla. What I am enjoying during my stint in the legal world is the limited-engagement performance of uncommon words that I need to use more often in my life. Scintilla of course is used here as one might more commonly use “an ounce,” but with the shine of a shared Latin root of the word scintillating. I suspect the authors did well on the verbal portion of the SAT.
- Monsanto called the epidemiological studies supporting glyphosate as a carcinogen “tiny” studies. Plaintiff argues that those case-control studies are not “tiny,” and that IARC describes DeRoos (2003) and McDuffie (2001) as “large” studies. Note Bayer’s similar claim about study sizes above, as they dismiss the recent bee microbiome study.
- Plaintiff argues that the punitive damages of $250 million is too low because it equals less than five percent of Monsanto’s net worth of $6 billion. “The punitive damage award is so small it has had zero deterrent effect on Monsanto (now a subsidiary of Bayer). Bayer’s CEO held an investor phone conference on August 23, 2018 to reassure stockholders. He stated that the verdict has no effect on its profits: ‘nothing has changed concerning our strategy…and longer-term growth and margin expectations for our combined Crop Science business.’” Wow.
- Plaintiff offers several case precedents in defense of Wisner’s passionate, persuasive arguments made to the jury to highlight Monsanto’s corporate wealth. Monsanto labelled those colorful arguments as “flagrant misconduct.” Plaintiff writes: “There was thus nothing objectionable about Plaintiff’s counsel depicting Monsanto’s wealth with imaginative illustrations that were tied to evidence in the record. In any event, the jury were a group of highly educated, attentive individuals who were unlikely to simply be inflamed with rhetorical devices that were reasonably inferred from Monsanto’s substantial wealth.” Yeah, this group of jurors didn’t seem easily swayed.
- Plaintiff states that the controversial, oh-so-telling “Liberals and Morons Email” involved “a direct communication from Monsanto to the distributor charged with training Johnson on the safety of RangerPro, representing that RangerPro does not cause cancer and approving of the distributors comments that those who think otherwise a liberals and morons. Had Monsanto and Wilbur-Ellis appropriately informed the Benicia School District of the IARC findings, then Benicia School District, like others in the Bay Area, would have stopped using glyphosate.”
Opposition to Monsanto’s Motion for Judgement Notwithstanding the Verdict (JNOV)
Plaintiff attorneys also filed their Opposition to Monsanto’s Motion for JNOV.
Plaintiff attorneys share my opinion that the evidence used in the Monsanto motions for new trial and JNOV simply rehash the same several unconvincing arguments “infused with gross misrepresentations of the record.” Plaintiff proceeds to thoroughly correct those misrepresentations of the record, and call out incorrect case precedents that Monsanto applied to support their claims. Gotta protect that hard-won unanimous verdict.
In defense of awarding punitive damages, Plaintiff claims that “Monsanto seeks to divert the Court’s attention from the actual evidence in this case and instead urges the Court to accept its own self-serving interpretation of the evidence that its scientists believed that GBHs do not cause cancer. Such a finding would require the court to view the evidence in the light most favorable to Monsanto.” It seemed to me that the Monsanto attorneys were quite successful throughout the trial in diverting Judge Bolanos’s attention from the actual evidence. Hopefully, that won’t continue to be so.
- It turns out that despite Monsanto’s claims, the state of California does not require that epidemiology shows a 2.0 risk ratio or higher to meet a minimum threshold to prove legal causation. While the Plaintiff points out that several studies do show a risk ratio of 2.0 or higher, they also clarify that in precedent cases, “The court determined that a study reporting an odds ratio of 2.0 could be used as evidence of specific causation in the absence of other testimony.” In this case, Plaintiff also had evidence supported by a differential diagnosis, a plausible mechanism of action, and animal carcinogenicity studies, so that 2.0 threshold does not apply.
- Monsanto frequently claims that The North American Pooled Project (NAPP), which pooled a group of epidemiological research, does not support the IARC conclusion. Plaintiff once again corrects this claim and quotes the authors of NAPP who wrote: “From an epidemiological perspective, our results were supportive of the IARC evaluation of glyphosate as a probable Group 2A carcinogen for NHL.”
- Plaintiff exhaustively rebuts Monsanto’s claim that animal studies using high dose exposures aren’t applicable to humans. After citing Dr. Portier’s explanation for why high doses are appropriate in animal studies, they further highlight the supporting mechanistic and animal evidence presented in the trials. Specifically that: “1) GBHs are genotoxic in blood cells and lymphocytes of humans who are sprayed with GBHs; 2) glyphosate and GBHs have been shown to cause oxidative stress which can operate to promote tumors; and 3) GBHs have been shown to promote skin tumors in mice.”
- Plaintiff says that Dr. Nabhan did consider whether Johnson’s NHL was idiopathic, or of unknown cause. He testified that: “Because Mr. Johnson was far younger than the typical mycosis fungoides patient, this would constitute a “red flag” suggesting to him that there was something behind the NHL.” Shame on you, idiopathy.
- Monsanto claimed that because the EPA and other regulatory bodies did not find glyphosate to be a carcinogen, it must not be so. Plaintiff reminds us that: “The jury clearly did not view the EPA or any European political agency as using the ‘best scientific’ knowledge as it was clear they failed to follow the established guidelines reflecting the ‘best scientific’ knowledge.”
The discussion in the pages of the opposition is rich with logical, fact-based argument. I can’t imagine the hours that went into articulating the point-by-point blows. I could write on and on describing the arguments, or you can take my word for it. : )
Plaintiff attorneys remind us all of the devastation that glyphosate has brought upon Lee Johnson and his family. I still can’t fathom how they must feel, watching Monsanto/Bayer continue to fight like mad to prove his cancer merely idiopathic. I had forgotten that in describing the devastation of his illness, he likened his sons’ feeling towards cancer to “the 20-foot purple monster with fangs.”
It’s hard to put words on the pain or assign money to compensate for that raw sadness.
October 10th– Back in the Judge Bolanos courtroom!
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