You Call Them Inventory, I Call Them People
This morning, I retired my yoga-wear-at-best writing uniform in exchange for my big girl clothes. I think my husband was pleased to see the effort. I’ve been feeling a bit glum this last week after reading piles of academic papers and articles that paint a rather dismal picture of our future as living beings. Brazil overturned their recent ban on glyphosate. The Farm Bill up for vote in Senate attempts to take power from the hands of local governments, rendering cities unable to ban pesticide use. Bees are dying in unprecedented quantities from pesticide exposure.
BUT – today the sun is shining, leaves are turning, and I’m pleased to get back to watching the People vs Monsanto story unfold. The attorneys are raring to go, ready to rumble and ripe to claim a future rich with people, bees and poppies. That’s right – I’m back in the courthouse!
I’m attending the case management hearing at the courthouse inside the Federal Building in San Francisco.
FEDERAL MULTI DISTRICT LITGATION (MDL)
The Johnson trial took place in the Superior Court of California (civil), just down the street. Roundup NHL lawsuits have been filed in both state and federal courts. For efficiency, all federal litigation was consolidated into a Multi-District Litigation (MDL), in which US District Judge Vince Chhabria of the Northern District of California rules on the quality of witnesses/science, case management and other pre-trial issues for all federal cases. Fortunately, San Francisco is much closer for me than St. Louis, so I am glad that the MDL was assigned to this district.
I miss the beauty of the Superior Courthouse, with the enormous window-lined hallways flooded with light. The Federal Building looks like a generic gray Minecraft block or the brick that you can’t find in a Millennium Falcon Lego kit. The security downstairs is more TSA style, not the “GIRRLLL – let me hold your Philz Iced Tea” style of the Superior courthouse. I remove my shoes and say a quick prayer that my bare feet won’t appeal to lurking fungus. After unpacking then repacking my computer bag, I head up elevators to the 17th floor with my friend Katelyn who came along to witness the action.
Seeing the legal team again is like homecoming. Those were intense months this summer, and we spent many hours and days stuffed next to one another like United Airlines coach passengers. I see that Brent Wisner grew out his off-duty scruff again. Delightful Dickens is not present. Michael Baum and Robert Kennedy are back from their remarkable and critical speaking engagements in the European Parliament. A more rested Mark Burton and Pedram Esfandiary sit in the audience intently observing. Three familiar journalist faces are in the courtroom, but not unlike the Johnson trial, there is little fanfare or general public interest present.
Judge Vince Chhabria’s federal courtroom is considerably more grand than that of Judge Bolanos at the Superior Court. The walls are glossy wood paneled, the ceiling is high, and the seats could pass for church pews. The lights are low in this courtroom, like ye-olde times. In fact, other than dark hair, glasses, and an occasional smile, I would have to google Chhabria’s photo to tell you greater details of his appearance. There is no water cooler in the back of the room because our obnoxiously high federal taxes don’t cover such luxuries, only the obnoxiously high California taxes do.
In the front of the room, there are several long tables set up parallel to the judge’s bench, with seats for many plaintiff attorneys from a multitude of law firms. Monsanto attorney Eric Lasker sits alone with a junior attorney, which seems like a surprisingly thin legal team for such a critical hearing.
Judge Chhabria enters the courtroom. While I’ve felt frustrated about his disappointing, seemingly pro-Monsanto opinions throughout the MDL hearings, I must say that he is kind of a card.
Chhabria opens the hearing, asks all to introduce themselves, and offers Virginia-based attorney Mike Miller words of concern about Hurricane Florence. In reference to the Johnson trial, he asks Monsanto if: “Anything has happened in the state courts since we last met?” Lots of laughter ensues, even a little smirk from Lasker.
Several issues are to be addressed today, and I’ll break them out below.
At the beginning of the MDL, an executive committee of Plaintiff attorneys was established. Originally, Michael Baum of Baum Hedlund (also the firm of Brent Wisner) was only to be involved in the “general causation” phase of the MDL, in which the Plaintiffs worked to prove that reliable science could reasonably point to a causative relationship between Roundup and NHL. Given their high involvement in the science presented in the MDL hearings and their success in the Johnson trial, Baum and other Plaintiff leadership hope for Baum to remain on the executive committee.
While a continued involvement seems highly logical, Monsanto and Chhabria point to a hiccup from 2017 that they deem “unethical.” I’m trying to figure out what the “unethical” behavior was – it is hard to imagine with this earnest crew. The referenced behavior turns out to be when Baum Hedlund legally and publicly released the “Monsanto Papers” after Monsanto did not formally block the release in the court ordered time period of 30 days. Well, thank goodness that Monsanto mis-stepped there – the release of those “Papers” has greatly influenced the momentum of the public to kick the glyphosate.
After Baum calmly lists multiple reasons for continued involvement, Chhabria decides Baum Hedlund may continue on the Plaintiff leadership. He insists that: “When in doubt on an ethical question, take the conservative route.” He continues that if there is anything even approaching what happened last time (releasing the Monsanto Papers even though Baum Hedlund was legally allowed to do so), there are going to be severe sanctions and no warnings.
PLAINTIFF FACT SHEETS (PFS)
The bulk of the hearing today centered on the Plaintiff Fact Sheets, or questionnaires to be completed by all Plaintiffs who have filed lawsuits in the Federal Court. There are several versions floating around, including an example from the St. Louis state trials.
Today is my first day observing New York-based Plaintiff attorney Robin Greenwald. Her voice is confident but friendly, and her well-constructed arguments seem to flow naturally. She has been working tirelessly on some of the St. Louis cases, including one that was recently postponed.
Greenwald is tasked with streamlining any overly-complicated questionnaire that Monsanto proposes. Chhabria agrees that the PFS should not be unnecessarily complicated, and that some of the suggested questions seem needlessly comprehensive. Monsanto argues for the inclusion of every home address the Plaintiff has ever lived in. Chhabria says: “I had to do that for my FBI background check. Do you know how long it took me to figure out my addresses for the last 25 years?!”
By the way, Lasker refers to Plaintiffs as “inventory,” until Greenwald and Chhabria say they prefer the term “people.” How very telling.
Chhabria and Greenwald question the necessity of asking each Plaintiff for their precise work schedule, throughout the years, with details of hours of shifts. Monsanto attorney Lasker says that this question segways into the issue of causation, because IARC says that people who work the nightshift have an increased risk of cancer. There are many chuckles about that – Monsanto actually using an IARC classification to support their case.
Monsanto, of course, seeks to dissect all potential exposures and health conditions throughout a Plaintiff’s lifetime in order to create alternative theories on the cause of a Plaintiff’s NHL.
I won’t bore you with the many excruciating details of the questionnaires. After well over an hour discussion, Chhabria decides to draft a questionnaire that takes into account all recommendations, and solicit comments upon review.
Bellwether trials are the first cases to be tried in a widely contested issue, and are particularly common in US MDL practice. In these MDL cases, it is not practical to prepare every case for trial. Therefore, selected cases serve as bellwether cases and are prepared for trial. They are then settled or tried and the results are used to shape the process for addressing the remaining cases.
Lasker approximates that there are 88 federal cases filed in California, and four in the Northern District of California, where we sit now.
In a stunning move of expedition, Chhabria calls to get all four Northern District of California cases on the trial schedule to start in the beginning of 2019! The PFSs for those four Plaintiffs are due in 28 days. The other 84 cases filed in the Federal Court in California will be sorted and scheduled next. He says that scheduling federal cases around state cases has proven inefficient, because the state cases are so often postponed. Federal cases are more likely to take place as scheduled.
Lasker says that his schedule is very booked with all of the state trials, and so scheduling the federal trials may not be possible. How could this be? I thought Bayer was staffing up for a “robust defense of glyphosate safety.” Certainly, there are sufficient trial attorneys to address these cases that are simply a result of their own negligence and disregard for public health.
Plaintiff attorney Aimee Wagstaff also pauses for more than a minute upon the order to get the trials moving. I imagine she is thinking about the logistics of springing into quick action.
Nevertheless, by Monday the 24th, all attorneys are to confer on start dates of federal trials in 2019.
Most of us are aware of the large dip in the Bayer stock price since the verdict. Predictably, many stock analysts are now calling this an opportune time to purchase Bayer stock at rock bottom prices. Some investors may be promoting a “buy” rating because they have already bought shares and would like to ride the price up to profit. Some also make decent, interesting points.
Bayer did not buy Monsanto for glyphosate or Roundup, but rather the seeds and genetic patents. The stock price shouldn’t stay permanently low given the underlying assets and reasons for the acquisition. There are some on Wall Street that believe that the Plaintiffs have the glyphosate science wrong, and that there is no research to support the claim that glyphosate is a carcinogen.
In the EU Parliament, there is a loud call for EFSA to increase transparency of the glyphosate studies provided by industry to regulators, perhaps even by the end of the year. Johnson’s attorneys Michael Baum and Robert Kennedy were invited to Brussels to tell the story of the Monsanto Papers, details of the trial, and what we need next out of regulatory agencies. The EU Parliament is demanding far more transparency from EFSA than Congress does of the EPA. It appears that they truly care about the health of their constituents.
I’m not certain that Wall Street is watching closely. Regardless of the underlying non-Roundup Monsanto assets, continued legal payouts to victims who win their trials will hurt. Those who dedicate significant time to understand what is really happening here will profit.
On Monday, September 24th, there is a teleconference among the parties and Chhabria to finalize the PFS forms and trial schedule. It looks like the Federal Court in San Francisco will be a hot place to be in 2019!
I intend to cover many of those trials, and introduce you to a new range of personalities, quirks, and, hopefully, the glorious demise of glyphosate.
NOTE: Corrected on 9/20/18 to reflect Judge Chhabria’s accurate statement on the tedium of listing all of his addresses for his FBI background check. I previously said that he did NOT do such a listing.
© 2018 Kelly Ryerson ALL RIGHTS RESERVED