By AOJ – AKA Johnson Juror #4
Well here we go again! I get to the Alameda Superior Court 45 minutes early and am greeted by Plaintiff attorney Mark Burton in the hall who says it is “already tight in there.” The master of understatement is on an assignment to retrieve more chairs. I get in the courtroom, and after confirming no seats left, say ‘hi’ to Bobby Kennedy Jr.—he has the handshake of an iron worker. I haven’t seen him since the Johnson trial last summer, where he was a distinctive presence in the courtroom every day and, occasionally, brought in special guests. Michael Baum, the guy who opened the swinging door from the gallery for us at Johnson every time we entered or left, runs to get me a chair.
Lawyers are so freakin nice! At least this one is. At the conclusion of Hardeman v Monsanto, I deemed Brain Stekloff a weasel, but he is probably a very nice man. It’s nothing personal, it’s just that I felt he dipped to tactics that I, in my naiveté, thought were well below standard litigator practice. Whatever.
But before we get to opening day IV, I want to go back to something Brian Stekloff asked in his closing argument. (I am not picking on him—this is about all of us, not him.) Brian, in so many words, asked the jury if Monsanto employees check their morality at the door when they go to work. I was kind of amazed that Brian Stekloff posed this question to a jury who, if they were allowed to talk, might have asked him the same question. It is a really, really good question that goes right to the heart of the matter, in AOJ’s opinion. (If you haven’t noticed, I am kind of a big picture guy.)
Don’t we all check our better judgement “at the door” all the time? I do every time I put gas in the family car. Or buy yet another thing packaged in plastic. And worse, buy it on Amazon. And I have lots of excuses to push back against that little voice in my head that says, Bob, you are a weasel, sneaking around thinking you are somehow on the right side of things, environmentally speaking. So what is my point? I’m not sure—I often don’t even have a point.
I was asked the other day about when I thought the verdict in Hardeman would come in. Answer: Soon. I was feeling optimistic. The zeitgeist is shifting I thought. The old way was this: it was OK to check our moral selves at many of the doors we all pass through. If anything, there was time to work it out later. But a new day is here, certainly, and we need to go through those doors with honesty, not denial. There is literally no time left to do the right thing, lest those doors all slam shut, right in our grandkids’ faces. Ouch.
Okay then, here we go! Plaintiff attorney Brent Wisner (who also co-lead the Johnson trial) looks ready to go, anyway. This guy is at “peak litigator.” I wanted to be here just to see his opening, but it looks like I also get the assignment to cover this from G Girl who ran herself ragged covering the end of the Hardeman trial. Brent is looking sharp in a dark grey suit and yellow tie with blue diagonal stripes. He is relaxed and smiling—Oaktown has a new sheriff, folks.
At the desk are Alva and Alberta Pilliod, the plaintiffs, both of whom claim they contracted non-Hodgkin’s lymphoma (NHL) from spraying Roundup. With them is co-lead Plaintiff counsel Michael Miller who is rocking a lavender tie. Happy, I am sure, to be back in the game after that stint on the DL.
We are still waiting for judge and jury, and people are still arriving looking for non-existent seats. A man who declares he is with the BBC and “came all this way” is not very happy about the situation. If this wasn’t first come, first serve, I am sure I would be bumped out into the hallway. With the dubious title “Guest Blogger,” (which I carry with pride), I am the low person on the journalistic totem pole around here.
Hardeman lead attorneys Amy Wagstaff and Jennifer Moore are here, and they are aglow, all smiles, basking in victory. Soak it up ladies, you deserve it!
The legal teams left the courtroom and are in their respective locker rooms. I guess, getting their last-minute pep talks. The court clerk announces that ALL electronic devices must be turned off. Cries go up from the journalists present. Well, not me—I have my note pad and pen for emergencies, both technical and institutional. BBC guy really gets his knickers in a bunch and has an entertaining back and forth with the clerk, who tries to explain that all we need is a pad and paper like the old days. BBC says that is exactly his point, this is 2019.
Helen Christophi of Courthouse News makes an impassioned plea that the no electronics policy “degrades” public access to knowledge, to no avail. I agree and I have often wondered why this isn’t just televised, but my more recent experience has taught me that courtrooms, at least in the Bay Area, adhere to archaic traditions. Maybe that is good, maybe not. In a way it is refreshing to see an institution that stays stuck in its ways. At least it forestalls the inevitable unintended consequences of going full steam ahead with the latest technology. The court, in a final goodwill gesture, offers to provide note pads.
Counsel, followed a minute later by Judge Winifred Smith, enter. Smith addresses the no electronics rhubarb sternly, “Reconcile yourselves to the rule.” This woman does not suffer fools, obviously. A source tells me Smith is the presiding judge in this jurisdiction, and has been on the bench 20 years.
We stand as the jury files in. The group appears, at first glance, to be about as diverse as the Johnson and Hardeman juries. Definitely more male, four of whom would be alternates if it is the same seating arrangement we had at Johnson. I really don’t want to get in to racial make-up, because, who knows just by looking at people, but once again it is obvious that folks with brown skin are underrepresented, and white folks over-represented. (Your assignment is to write a one-page essay on why this does or does not matter in this trial.)
The judge asks the jury if anybody saw anything about Monsanto in the news during the three days they have been gone. There is at least one hand, so off they go out of the court room to work that out. Upon their return, I count sixteen, so whatever the juror saw was not too serious.
Finally, Judge Smith indicates that Brent may begin his opening. He begins by welcoming the jury to this “historic” trial. He then introduces himself and, smiling, half the people on the right side of the room. Pete Miller (Michael’s brother,) Curtis, Pedram, Mark, “And my parents are here,” Nancy Miller, and Bobby Kennedy Jr. who he calls his mentor for of past three years.
“This case is about choice,” Brent intones. He explains that the Pilliods did not get a fair choice about using or not using Roundup because Monsanto failed to warn them that it was carcinogenic. We’ve been down this road, and in fact, Brent has a new graphic showing that road. I’ve been told he makes his own powerpoint presentations. He has definitely polished this one since Johnson, but it doesn’t really matter because Brent is a natural with a jury. I know from my own experience, and I can see this jury following him intently as well.
The Pilliods, we learn, sprayed lots Roundup around several properties. They are non-professional household Roundup users like Edwin Hardeman, and unlike Lee Johnson, who sprayed it at his job. The Pilliods read the instructions on the label of RU, and sprayed and sprayed for decades, with no protective clothing or equipment. Alva Pilliod even continued spraying after his NHL diagnosis, and did not stop spraying until he saw an ad on TV from a law firm representing Roundup users who had NHL. Shit.
- We are going to see the same cast of expert witnesses, for the most part. Drs. Portier, Ritz, Weisenberger, Nabhan, Benbrook, and Sawyer we have seen at Johnson and/or Hardeman. We will also hear from a Dr. William Jameson on rodent studies and IARC, a Dr. Greg O’Shanick on how cancer has affected the Pilliods. Both are new, at least to me.
- Also New: California’s listing of glyphosate as a probable carcinogen can be openly discussed, so no more chants of Prop 65 – Where Are You?
- The Pilliods have different subtypes of NHL than the previous cases. Alva has a very aggressive systemic diffuse large cell type (DLBCL) which was treated and is in remission. Alberta has a type of DLCBL that manifested in her brain. Brent tells us that it is a medical miracle that she is alive, thanks to an experimental treatment.
- The same Monsanto employees will once again be seen in video depositions. I am pretty sure I am done watching video depositions for this lifetime, although the Dr. Reeves depo was almost entertaining enough for a re-run. New definition of Hell: Netflix shows Monsanto depos to you to binge watch for all of eternity.
- Brent has spiffed up the three-legged stool of causation significantly this time around. Now we have the three Corinthian Pillars of Causation. *Snort* Brent really cracks me up. You all know this, but, quick review, they are: In vivo carcinogenicity studies—does it cause tumors in mice and rats? In vitro genotoxicology studies—does it damage DNA? And epidemiological studies—is there an elevated risk NHL from exposure to RU in human populations?
- In the rodent studies we have NEW information. The story goes like this: In 1971, one Paul Wright leaves Monsanto to go work for Industrial BioTest Labs (IBT), which a short time later conducts a rodent study for Monsanto that shows no tumors. This result leads to EPA approval of RU. Two years later, IBT and Wright are exposed as frauds for falsifying the tumor data, or some such shenanigans. Monsanto took no action in the wake of the scandal.
- Mighty Mouse and the Magic Tumor. This one never, ever gets old folks! In case you don’t know the story: In 1983 Knezovich and Hogan find renal tumors in mice leading the EPA to classify RU as Class C oncogen. Monsanto sits down with EPA to tidy up the mess. “Short of new study, or finding tumor in control mouse, how can we get this thing off Cat C?” Enter the Magic Doctor who is hired to review the study—he re-cuts the slides, and finds the Magic Tumor in the World’s Most Famous control Mouse. So, the EPA wants the study repeated and that never, ever, happens.
- Roadtrip! Brent is killing it, cruising down his road, he knows all this stuff so well he can enjoy presenting it. Hell, I bet with a few days prep I could get up there and do this opening with a passing grade next time they need someone to fill in on short notice. This is like reviewing for an exam for the third time. Brent throws in some choice Dr. Farmer quotes, touches on the one formulated product in vivo study (George et al 2010,) and covers in vivo genotox in humans by Paz y Muño 2007, 2012,—that’s the one where people were sprayed in Columbia coca eradication operations. The Parry affair is reviewed, oxidative stress, ghostwriting—is Heydens a ghost??—epi studies, the AHS, more Farmer email, a Reeves quote, and, whew, it’s break time.
- We are back from the break and a life size skeleton has been wheeled into the courtroom and takes me back to my days teaching anatomy for artists, and figure sculpture. In class I used to take a skeleton and make the muscles out of clay and attach them to the bones. Brent has made Alva’s tumors out of red play-dough and placed them on the skeleton. *Sigh*
Let’s check on our defense team. They looked completely bored, but right on that cue, no kidding, the lead counsel, Tarek Ismail, objects to Brent being argumentative as he tends to get a little excited talking about IARC.
- IARC, of course! I forgot to mention, this Judge Smith did not go down the bumpy bifurcation road! We stay on the scenic route, where we can hear all the evidence, well, we can hear the evidence, such as it is, all at once—with enough entanglement for a quantum physicist.
- Brent now gets into further detail about the Pilliod’s cancers. It is not a pleasant story, but at least they are alive. There was a cost for that, however, as Brent describes how their post cancer treatment lives are much different, all because of weeds they would have been happy to let thrive had they known. He then goes through the differential etiology for Alberta and Alva, listing off the other potential risk factors for each: family history, immunosuppression, certain viruses, smoking, Hashimoto’s disease, and RU exposure. Brent crosses them all off except the RU exposure, of course. He points out that it is highly unlikely that two genetically unrelated people in the same household would get NHL. The common denominator must be their RU exposure.
- Brent wraps up by discussing non-economic damages (pain and suffering) and punitive damages with the jury. He tells them he will specify the amounts the plaintiffs are asking for in his closing, but to keep it in mind. By the way #1) I found it curious, so I confirmed, that the punitive damages were not specified by Hardeman counsel. That jury came up with those numbers on their own, no mean feat. By the way #2) I wonder if Judge Chhabria is going to whack the punitive down to the same size as the economic and non-economic like Judge Bolanos did to our verdict.
I eat my lunch in the plaza outside the court house and am exposed to cannabis drift. My exposure to the weed smoke is not significantly statistical.
Back inside our itsy-bitsy courtroom it is time for the defense of the indefensible once again. So much for fair and balanced reporting by AOJ.
The question is, what new angle will Monsanto try this time?? As we wait to begin, the right side of the gallery sounds like a cocktail party. Happy chattering. I’m on the left side where a there are enough Monsanto types to act as control rods to the same chain reaction starting over here.
The Monsanto lead guy gets up and calmly starts in. NHL is a blah, blah… Wait, no introduction? I have no idea who he or his two co-counsel are. (I found his name after his opening was over.) It is Tarek Ismail. While his co-counsel looks a little bedraggled, Tarek is sharp as a tack. He goes right to all the doctors, as in treating physicians and expert witness physicians. Of course, he claims that they never say to patients, or anybody else, that RU causes NHL.
After a quick tally of some of the regulatory bodies that do not classify RU/glyphosate as a carcinogen, Tarek jumps straight to the differential etiology. He comes up with multiple alternate risk factors for both of the Pilliod’s NHLs. Smoking, personal and family history of cancer, HPV, ulcerative colitis, skin cancer, bladder cancer, meningitis, Hashimoto’s disease, and being former smokers.
Tarek is scoring points with the jury, but this is not a new angle for Monsanto—it was tried and failed with Ed Hardeman’s Hep B and Hep C. I wonder if this jury will be instructed on this in a similar manner as the Hardeman jury was—that there can be more than one cause of the NHL in the plaintiff, essentially.
Alert : Tarek gives us the old “the doctors can’t tell from a tissue sample what caused a tumor. And: “None of the [medical] doctors said RU caused the Pilliod’s NHL.
Tarek gets back to some less vaporous points: That Williams 2000 does cite Heydens and Farmer as contributors. Dr. Parry eventually agreed with Monsanto’s science on genotox. Wait, what? I look forward to the rebuttal on these.
Now Tarek introduces a very interesting strategy. He says he is “not going to refute every email that the plaintiffs” are going to show and then implies that causation—did RU cause the Pilliod’s cancer?—is the key to this trial. “This is not a referendum on Monsanto.” Ah, I get it now. This is the new angle! Monsanto counsel has decided to self-bifurcate! They are playing the corporate bad behavior off of the causation, as if the corporate bad behavior is a mere distraction. Not. Very. Clever. But there it is, the new angle.
This new self-bifurcation thing has one very big problem, which is, once the jury gets a good dose of say, Farmer, Heydens, and Reeves, the natural question is, why? If your RU product is so safe, why do you have an FTO department? Why all the discussion of which studies might look bad? Why not conduct that mouse study? Why even discuss ghostwriting? Why fear IARC, or the AHS? Why do your lawyers ask judges for bifurcation?
Make no mistake, this jury will have to sign off on the causation before they get to the punitive phase of deliberations. But this whole thing is a reverse Catch-22 with a full twist. The logic of the defense just implodes no matter which way they spin it.
Tarek Ismail leaves the jury and us with this nugget: “You have the right to demand actual medical evidence, not studies on rodents, not epidemiological studies.” So there you have it, Monsanto has jettisoned the science—just wasn’t working for them I guess.
Tarek has been quite persuasive in his own way, not so different than George Lombardi from the Johnson Monsanto team. Better, even. Easy to listen to, seemingly logical, and slick as a wet mink.
©️2019 Robert Howard ALL RIGHTS RESERVED
Thank you to AOJ for getting to the Openings for us! Your recap was remarkable given the limitations of the trusty notepad and pencil.
I particularly find amusing the “Three Corinthian Pillars of Causation” and the full skeleton. Sounds very First Class. It looks like the makings of an undoubtedly successful win for the Pilliods. Go Team!
For readers – AOJ may be able to step in a bit more this week while I am away, pending on schedules. We will see what we can do.