Welcome to Never/Ever Land
Hardeman v Monsanto Jury Selection Hearing
Wednesday February 20, 2019 Federal Courthouse, San Francisco
By Agent OJ
Yesterday, I was at my day job where I met a nice woman from Healthy Building Science, Inc. who was there to swab samples from an old Victorian house I just finished remodeling. The EPA requires contractors like myself to be certified and to follow strict protocols while remodeling older buildings that likely were painted with lead paint, including a test for lead residue before the house can be inhabited. It sounds like just another business complying with government regulations, and it is, superficially. But what we were really doing yesterday is dealing with the aftermath of perhaps the biggest and ugliest example ever of corporations poisoning an entire planet, (in this case with lead, a known neurotoxin.) Sound familiar? If you have a chance, read the remarkable story of one man, Dr. Claire Patterson, who saved us from the lead problem being even worse than it is.
In the meantime, let’s get back to federal court, where another company that has contaminated the planet, literally – and with more than one chemical – attempts to defend the indefensible in the second Roundup lawsuit to go before a jury.
That jury will be chosen today by the whiz kids of the Monsanto legal team, led by Brian Stekloff, and Mr. Hardeman’s team, led by Jennifer Moore. The Honorable Vince Chhabria presides. (I finally figure out the correct pronunciation, I hope. Just put a dash in for the second h and you’ve got it.) Aimee Wagstaff and Sonia Chopra (voir dire specialist) join Jennifer, and Michael Baum is in the gallery with Mark Burton. Aimee is really yucking it up with the defense team – these women must have some kind of history -and leaning way over their table acting like she is sneaking a peek at their voir dire chart. Both sides have several of these grids of post-it notes to keep track of each prospective juror.
Christine, the courtroom deputy, announces that we are waiting for jurors #44 and #52 to arrive. In the meantime the plaintiff, Edwin Hardeman wanders in and eventually makes his way up to the front. I am relieved (just as I was when I saw Lee Johnson for the first time last summer) because he looks relatively healthy. Judge Chhabria decides to proceed without the missing jurors and so 43 people file in and take specific seats in the box and the right side gallery.
Chhabria gives them the best jury pep talk of the three I’ve ever seen: Jury service is “more important than voting” in terms of “preserving democracy.” He says that our jury system puts important decisions “in the hands of the people.” I could not agree more with the latter. Since my jury service I find myself thinking like an advocate for the jury system and occasionally speaking out as such.
Chhabria asks one last time if anyone has a hardship which would make serving difficult. Four hands go up. He asks each juror what the hardship is. They are: it’s too far to travel, I’m old and it’s too far to travel, I am a key employee, and I am a care-giver. He continues with a familiar admonishment, one which I heard during jury service years ago, which is that being excused for hardship does not satisfy one’s jury service. The excused juror could end up on a trial like the six month one going on in the courtroom next door. After a brief sidebar, replete with white noise played over the loudspeakers, the four hardship jurors are excused.
Our 39 remaining prospective jurors are a diverse group across gender, age, and race. I also sense a geographic diversity in that this group does not appear to be quite as urban as the group I came from. The court distributes another questionnaire to the jurors which is an outline for them to introduce themselves: Name, age, place of residence and birth, job, who you live with and their job, education and military service. (East Palo Alto and Richmond come in with the most jurors at 3 for each city.) Occupations range from unemployed and underemployed, service sector, a fair number of medical related jobs, a fair number of engineers, to one lawyer towards the end. Judge Chhabria comments that he usually finds more lawyers in his jury pools.
After the break we get our first taste of one type of bifurcation: 13 jurors who have knowledge of of the Johnson v Monsanto trial last summer will be interviewed separately, so as not to “contaminate” the other jurors with this knowledge. These jurors receive a lecture from Chhabria about how their knowledge of the Johnson case will not get them disqualified, but that they need to set that knowledge aside because Hardeman is a different case with different circumstances, albeit involving Monsanto. The “Johnson” jurors are asked if anyone would be unable to fairly decide this case based solely on the evidence presented. No hands go up. Chhabria asks counsel if they would like to ask any follow up questions. Jennifer Moore has no questions, which comes as no surprise. Brian Stekloff asks a trick question: “Would any of you vote the same way as the Johnson jury did?” Seriously? One hand goes up: “Obviously it was their opinion,” as in, “I can form my own opinions, thank you.” I like that juror. Brian probes several more of these jurors, all of whom say they can be fair and impartial, and then asks another trick question of a juror: “If you were me, would you include you on this jury?” This juror is brilliant— she says of course she would, because “I am a good person,” pauses for the laughs, then states flatly “but it’s not up to me.” Chhabria cheers her on, “GREAT answer!!”
The 26 uncontaminated jurors return and are reunited with the 13 contaminated Johnson jurors. Chhabria starts out the questioning of the full group by saying that there is nothing wrong with having negative views of Monsanto, but that they will need to set these views aside and look only at the evidence surrounding Mr. Hardeman’s claims. He asks for a show of hands from jurors who feel their prior opinions would prevent them from being fair and impartial.
#18 feels “weird” about chemical companies. She has already talked about environmental studies classes and lectures that have no doubt painted Monsanto as, well, Monsanto. She will not be on this jury. Another juror owns a company that gives clients advice on how to reduce chemical burdens on their bodies. He says he will “do his best” to be impartial. I am sure that qualifier won’t help him be on this jury.
Judge Chhabria feels the need to ask for another show of hands. I am paraphrasing but this is the gist of the question: “None of us is a blank slate – we all bring our life experiences to this room. We can’t forget on demand, like a robot. But I will give you instructions about the law and evidence. Is there anybody here who would not be able to follow my instructions, or…my instruction to follow my instructions?” He has got himself stuck in an infinite regression of logic on this one, but there are no hands, so he can move on.
Chhabria asks two final group questions: There are a lot of jurors with jobs in healthcare, so, can they set aside any prior medical knowledge? And, if you learn that various governmental agencies reached conclusions about Roundup, would you be unable to set these aside and make your own assessment? No hands, except a Kaiser employee who is worried that the company policy for employees to support the company in and outside of work might create a conflict of interest. Chhabria feels that this will not be an issue.
Jennifer Moore steps up for her 30 minutes of time allotted to question the jurors. “We are in the home stretch,” she says. What a lucky group, it is only mid-morning of the first day – this went on for three days for my jury. She explains that she asked Mr. Hardeman to leave so she and the jurors could have an open discussion without fear of “hurting his feelings.” She opens up a discussion by asking, “If Roundup is on the shelves of Home Depot, how could it cause cancer?” This elicits many responses from people who say they use Roundup, or a family member or gardener does. Toto, I have a feeling we are not in San Francisco anymore. These people have gardens, yards—actual land for weeds to grow on. A juror is asked individually how he feels about Roundup still being on the market. Answer: “Well, rat poison is on the market.” Oh snap!
The Agent Orange bomb gets dropped – for the second trial in a row – by a juror who believes Roundup is a similar “dangerous product.” No defense attorneys jump out of their chairs this time or move to strike. The juror maintains that he will be fair and impartial. I’m sure he can do that, but it isn’t going to be at this trial.
It is striking how many topics are being addressed that involve other Monsanto problems. So there’s Agent Orange – its nice to get that out in the open. And then there is a whole laundry list of problems involving farmers, GMO seeds, and seed patents. Jennifer asks if there are any jurors who would be unable to set aside these issues. No hands.
Jennifer questions a juror whose father was a tobacco farmer in Kentucky. She reveals that she, too, is from Kentucky. (I hadn’t noticed her slight accent until now.) Other than for the fact that counsel has so little time to question this group, I am mystified why the juror from Kentucky is not asked about her father, tobacco, cancer, and lawsuits against the tobacco industry. I could be a little worried about this juror but I am not. I believe twelve, or nine, citizens with sound instructions from a judge are a very wise entity.
Several male jurors reveal that their wife or mother has either asked them to stop using Roundup, or to take precautions like wearing a dust mask, which one juror does but only when his wife is home. What do the wives and mothers get that these guys don’t get?
Jennifer gets into the complex topic of causation of cancer. Is it possible to pinpoint a cause for specific cancers? The answers vary. One juror’s father had lymphoma, but “we never knew the cause.” Another juror says it is “probabilistic.” And, “Some get it , some don’t—you have to take it on a case by case basis.”
A man who believes that chemical exposure is hard to prove follows up that statement by saying it is “difficult for both sides (to prove).” Fair enough, but Jennifer is not finished with him. He is probed about an answer he gave on the questionnaire regarding punitive damages being warranted in cases of “criminal negligence,” which earns him a mini lecture on the difference between civil and criminal court. Chhabria jumps in just to confirm that he would be able to follow his instructions on the law. Yes.
Jennifer comes back to the whole group and asks if anybody would have a problem with a “pain and suffering” damage award in the range in eight figures. No hands.
Brian Stekloff takes over the questioning and is up to his trick questions again. “How would you vote now? Would anybody vote for Mr. Hardeman?” Nary a nibble. “Did anybody do any research on this case since we saw you last week?” Ha! “Would any of you have a problem sitting through this trial because a loved one had cancer?” This is difficult for several jurors who have lost a relative recently. One women gets choked up but says she can get through this case. Brian asks if anybody has any preconceived notion that Roundup can cause cancer. Yet another woman says she wants her husband to stop using it.
Next, Brian asks a couple jurors what they like best about their jobs. This question is so unrelated to the matter at hand I assume it must be some kind of test used by the voir dire pros. He finishes up with one from my questionnaire that was not on this group’s questionnaire. Do any of the jurors prefer organic food? After six hands go up, one woman is asked to elaborate. “I was raised that way, and organic food tastes better.” Amen.
With that, Brian wraps up his questioning. The fact that we are still running close to Chhabria’s optimistic schedule seems like a minor miracle. About a dozen jurors in the back rows are excused immediately. Apparently they were there as back up if the jury could not be found among the 27 that are left, but I have no idea how this was determined. Everybody takes a break while four jurors are questioned in private before all the attorneys are called to a back room.
Each side got three peremptory excusals but these along with the whole final jury selection process take place disturbingly out of view. This is such a key part of this trial I am at a loss to understand this glaring instance of zero transparency.
During the wait I size up the jurors one more time. They are starting to chat amongst themselves and I get the sense that the group is already getting into a unique state I would call “jury” mind. They know what the stakes are now, many probably want to be on the jury, they have been questioned, albeit briefly, and, I was happy to see, there have not been many who folded when asked if they could be fair and impartial. So many jurors folded like cheap tents at my voir dire that I became a little concerned at the apparent lack of spine in some of my fellow San Franciscans. But, I’ll give them a pass – our questioning was much more extensive and, I just realized, Judge Bolanos was not nearly as direct as Judge Chhabria about the efficacy of her instructions regarding bias.
“We have our jury,” Chhabria, announces as he takes his seat behind the bench. The initial diversity of the group has been retained, except that it is mostly women, seven women and two men to be exact. The nine jurors are sworn, given the standard instructions with special attention to avoiding communicating with anyone about the trial—except to explain their availability to friends, family and employers—and to not do any research on the case or its participants. Judge Chhabria urges them to be on time, dangling the promise that a “light breakfast” will be available in the jury room each day. Woo-hoo!
To this group, I would say, if I could: Welcome to Never/Ever Land! (And, be strong during those video depositions, it feels so good when they are over.)
© 2019 Kelly Ryerson ALL RIGHTS RESERVED