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Monsanto Trial: Two Days Closer to a Verdict

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Dr. William Sawyer, Michael Baum, Robert F. Kennedy, Jr. and Dr. Charles Benbrook in the plaintiffs holding room between court sessions.

Dewayne Johnson v. Monsanto Company is the first Roundup cancer lawsuit to proceed to trial. Plaintiff Dewayne “Lee” Johnson, a 46-year-old former school groundskeeper, alleges exposure to Monsanto’s Roundup weed killer and its active ingredient, glyphosate, caused him to develop non-Hodgkin lymphoma (NHL).

Johnson is one of thousands of plaintiffs to file suit against Monsanto in state court over the alleged link between Roundup and NHL. More than 450 other lawsuits filed in federal court are currently pending in U.S. District Court for the Northern District of California. Since the start of the Johnson trial, Robert F. Kennedy, Jr., co-counsel to Baum Hedlund Aristei & Goldman, has provided running commentary of the events in court each day. Here's his post for day 11 and day 12 of the Monsanto trial:

Wednesday, July 25—day 11 of the Monsanto trial—seemed a dark day for the Plaintiff.

With the jury off duty, Judge Bolanos heard a parade of evidentiary motions and made a series of surprising and disappointing rulings in Monsanto’s favor for each one.

First, Plaintiff’s counsel lead by Brent Wisner, sought to exclude evidence that our side’s exposure expert, Dr. William Sawyer, occasionally used Roundup himself. Wisner and his colleague, Tim Litzenburg, pointed out that in the tobacco context, the courts have consistently held that an expert witness’s cigarette use is irrelevant. The court indicated its inclination to ignore this precedent.

Judge Bolanos reasoned that the defense counsel could legitimately impeach Sawyer with his admissions that he used Roundup. Wisner told the judge that, in that case, he intended to have Dr. Sawyer testify that his use resulted in zero exposure due to his precautions of redesigning his spray wand to prevent aerosol drift. We wanted, also, to show that Dr. Sawyer made careful efforts to avoid consuming glyphosate by eating only organic foods. However, Judge Bolanos said she would prohibit our team from mentioning Sawyer’s diet.

Monsanto has fought consistently and successfully to prohibit our side from mentioning GMOs. Now Judge Bolanos again cautioned that the issue of GMOs would be off limits. The judge warned us that our witness should not mention GMOs on direct or cross examination.

Next, Wisner sought to clarify the parameters within which our regulatory expert, Dr. Charles Benbrook, could testify about evidence that Judge Curtis Karnow had declared admissible in his pretrial rulings. The Monsanto case has followed a long winding path typical of large complex cases in California. The case survived an extensive pre-trial phase. In that phase, an appointed judge addresses the accumulation of documentary evidence, witness depositions, expert qualifications and determines whether the evidence and experts are sufficient for reasonable jurors to declare a defendant guilty.

This phase lasted more than a year and was overseen by Judge Karnow who handled all the pre-trial issues. Judge Karnow completed that assignment when he ruled that Dewayne Johnson had assembled enough evidence, including admissible expert testimony, to present to a jury. At that point, the Johnson case went into a trial assignment department, with a “package” of pre-trial documents and rulings on admissibility by Judge Karnow. San Francisco’s trial assignment department selected Judge Bolanos, a former prosecutor, to be the Johnson trial judge. Judge Bolanos received the set of Judge Karnow’s orders to implement or modify at her discretion during the Johnson trial. In general, Judge Bolanos’ rulings have seemed to us more friendly to the defense than Judge Karnow’s.

As the day grew longer, Judge Bolanos ruled that Dr. Benbrook could not offer any opinions or descriptions about a collection of Monsanto’s internal studies on Roundup’s health effects that are highly damaging to Monsanto’s case. We had hoped to show the jury these documents, which involve transparently deceptive statistical machinations designed to cloud the results of Monsanto’s own glyphosate research. One important internal study shows that glyphosate causes cancer in mice. Another internal Monsanto research study detailed higher human skin absorption rates of the herbicide than reported elsewhere.

We had intended to have Dr. Benbrook dissect these studies for our jury, but Judge Bolanos forbade that line of questioning saying, “I’m not sure how helpful the opinion of this category of expert is, frankly.”

Wisner’s team also tried to get Judge Bolanos to advise Monsanto’s counsel, George Lombardi, to stop his habit of angrily yelling at the witnesses at point blank range. Judge Bolanos said that she had not heard the yelling but nevertheless urged the attorneys on both sides to use their inside voices. A note from a juror the following morning made an identical complaint; she asked the judge to make Lombardi stop yelling.

Our teammate, Pedram Esfandiari of Baum Hedlund Law, next sought to prevent Monsanto from entering into evidence the U.S. Environmental Protection Agency’s (EPA) draft findings on glyphosate’s carcinogenicity which purported to show that there was no proven association with cancer. That draft was created by Monsanto’s shill inside the EPA, Jess Rowland, the former head of the EPA’s pesticide division who was secretly working for Monsanto by concocting studies like this one.

Since we have been unable to explain to the jury Rowland’s scandalous story, we are anxious that they not see his handiwork and mistakenly assume that it is a product of an honest and deliberative agency process. Pedram argued that the draft EPA conclusion was unpublished hearsay and was therefore inadmissible. Judge Bolanos listened so intently and agreeably to Pedrams polemic that he was dead sure that he had her persuaded. Nevertheless, she denied his motion the moment he stopped talking. Judge Bolanos agreed that the EPA statement was inadmissible hearsay if Monsanto offered it to prove glyphosate doesn’t cause cancer. However, she ruled that Monsanto could nevertheless introduce the language to show Monsanto employees’ state of mind at the time the report was issued.

The Hearsay Rule prohibits admission of out-of-court statements offered to prove the truth of the matter asserted. However, statements offered to demonstrate the “state of mind” of the speaker are not forbidden. Judge Bolanos’ ruling seemed to us unconventional because Monsanto employees did not author the document, therefore it doesn’t make sense to claim that the document reflected the employee’s state(s) of mind. Furthermore, Monsanto first saw the EPA document in 2016, long after Lee Johnson had stopped using Roundup. Monsanto’s state of mind at that time is therefore utterly irrelevant to this case.

Finally, Judge Bolanos rejected the plaintiff’s request to introduce documents summarizing International Agency for Research on Cancer (IARC) President Christopher Wild’s devastating rebuttal of Monsanto’s orchestrated propaganda campaign against IARC. We believed that this document should be admitted under the same rationale as Judge Bolanos admitted the EPA draft. After all, it illustrates Monsanto’s “state of mind” and is highly relevant to the issue of punitive damages. Judge Ramos did not agree.

On Thursday morning, Judge Bolanos slapped our side with yet another disappointing ruling. This time, she excluded mention of Monsanto’s “TNO dermal absorption” studies which found far higher rates of glyphosate and Roundup absorption through the skin than previously reported. Internal Monsanto emails revealed that Monsanto employees received the results of the study indicating that the increased dermal exposure was linked to cancer. Instead of pursuing this critical research, Monsanto’s Dr. William Heydens and his Monsanto cronies orchestrated the termination of the study claiming a non-existent discrepancy which they had contrived to avoid submitting the results to the EPA. This conduct also seemed directly relevant to punitive damages. Alas the jury will never hear this sordid tale.

These dark day rulings, while frustrating, all got jiu jitsu’d by the adept trial work of the plaintiff’s trial team by the end of a brighter Thursday.

On Thursday, July 26, day 12 of the Monsanto trial, my colleague, David Dickens of The Miller Firm, called toxicology expert, Dr. William Sawyer, to elucidate prior expert testimony on the carcinogenicity of glyphosate and how it caused “Lee” Johnson’s non-Hodgkin’s lymphoma. Dr. Sawyer has studied the glyphosate literature since the 1990s. He swore that glyphosate alone is “clearly” carcinogenic, and that Monsanto’s practice of adding chemical surfactants “increase and enhance [Roundup’s] carcinogenicity.”

Dr. Sawyer testified that Lee’s job as Integrated Pest Manager for the Benicia School District required him to apply Roundup in ways that maximized his exposure. Unlike farmers who typically spread Roundup from designated machinery or a mechanical applicator pulled some distance behind an atmosphere-controlled closed tractor cab, Lee used an unregulated high-pressure truck sprayer, “Just one trigger would literally fill this courtroom with mist.” As a result, Lee was “heavily exposed” to Roundup.

Dr. Sawyer observed that Lee sprayed more than three times more Roundup per hour than the average individual in Monsanto’s premier safety studies. Dr. Sawyer uses Roundup occasionally himself and admitted that even his small backpack sprayer produced drift in the wind that worried him. He therefore modified the sprayer to produce a stream resembling a squirt-gun to reduce the aerosol effect so as to limit his own exposure—a safety precaution unavailable to Lee. Instead, gusts of wind and sprayer malfunctions frequently drenched Lee in Roundup.

Dr. Sawyer testified that the exceptional safety precautions taken by Lee to protect himself may have actually aggravated his exposure. Lee wore a Tyvek 400 suit, which he hoped would protect him from dangerous aerosols. However, Dr. Sawyer testified that Dupont designed and sold the Tyvek 400 not to exclude aerosols, but to shield against particulate matter, including toxic dust, from contacting the skin. Dr. Sawyer testified that his work for the U.S. Health Department and Toxicology Consultants and Assessment Specialists often required him to use the same Tyvek 400 suit as Lee at Superfund landfills and other “extremely dangerous sites,” when contaminated dust was an issue, “But I would never wear a suit like that in an instance where organic chemicals were in the air. It’s not designed for that.”

Dr. Sawyer said that the sometimes sweltering Tyvek suit actually amplified Lee’s exposure to Roundup. Glyphosate molecules easily penetrate the fabric where Lee’s sweat would act as a conveyor belt for the herbicide wicking it off the suit material and transporting it directly to his skin in an aqueous solution that made it more likely to infiltrate the skin directly through the vectors of his skin lesions.

“It’s rather strange,” Dr. Sawyer pointed out, “the actual label from Roundup and Ranger Pro does not require any suit.” Dr. Sawyer testified, “When [Monsanto] ran their own operator exposure study, they recommended waterproof jacket, pants, faceplate, et cetera. But none of that is on the warning of Roundup that was used by Mr. Johnson.”

Here are key highlights from the Monsanto trial based off of Robert F. Kennedy's daily entries: 

Day 1, July 9: opening statements

Here’s a link to the opening statement for the Plaintiff by Brent Wisner of Baum Hedlund Aristei & Goldman:

“This case really is about choice. It's about the right of every single person in this room to make a choice about what chemicals they expose themselves, their family or their children to…If you don’t warn, you don’t give someone the choice, and if someone gets hurt from that, or, God forbid, someone gets cancer, then I believe someone should be held responsible for that.”

Day 2, July 10: Did Monsanto suppress its own research?

On day 2 of the Johnson trial, the jury heard deposition testimony from Monsanto toxicologist, Dr. Mark Martens. Johnson’s attorneys asked Martens why Monsanto decided to abandon research conducted in 1999, by Dr. James Parry, an independent toxicologist Monsanto hired as a consultant after deeming him a top expert in his field.

Dr. Parry’s research concluded that glyphosate and the Roundup formulation may cause genetic mutations, a potential precursor to cancer. According to Martens, Monsanto did not allow independent scientists to review Dr. Parry’s research for further study after it was received, nor did the company give Dr. Parry’s research to the U.S. Environmental Protection Agency (EPA).

Day 3, July 12: Dr. Christopher Portier discusses the tumors in glyphosate animal studies, and the EPA’s initial findings in 1985, that glyphosate is a “possible” human carcinogen

On day 3, Judge Suzanne Ramos denied attorney Brent Wisner’s request that epidemiology/toxicology expert, Dr. Christopher Portier, be permitted to share his opinions before the jury concerning the amount of glyphosate exposure the state of California has determined causes cancer.

Wisner argued that a previous ruling allowed Monsanto witnesses to testify about foreign regulatory decisions to not list glyphosate as carcinogenic, so it did not make sense to deny the plaintiff the opportunity to discuss California’s own regulatory decision to list glyphosate as a chemical known to the state to cause cancer.

Nevertheless, Dr. Portier testified that his analysis of 13 rodent studies on glyphosate, and the findings of  the International Agency for Research on Cancer (IARC) led him to conclude that exposure to glyphosate causes NHL. Portier said:

“If you have multiple tumors of the same type in multiple species, it adds to the strength of causality. By seeing lots of different tumor types hit in the same animal, the more important it is to the human causal.”

Day 4, July 13: Dr. Christopher Portier discusses flaws with U.S. and EU regulatory Evaluations for glyphosate

On day 4, Monsanto counsel, Kirby Griffis, tried to rattle Dr. Christopher Portier during cross-examination, confronting the expert witness with the EPA’s conclusion that glyphosate is not likely to be carcinogenic to humans. During testimony, Dr. Portier slammed U.S. and European regulators over their methodology in evaluating glyphosate.

For example, Dr. Portier testified that European Food Safety Authority (EFSA) missed 15 tumors in a series of rodent studies on glyphosate because the agency used the wrong methodology. During cross-examination, he said:

“My entire career been about using scientific evidence to make decisions, primarily about the carcinogenicity of compounds, and we’ve worked for years and years to do that appropriately. This was just so amazingly wrong in the way they were doing it.”

Day 5, July 16: fireworks during cross-examination as Monsanto lawyer attempts to discredit expert witness

On day 5, as cross-examination continued Monday, Monsanto counsel Kirby Griffis accused cancer expert, Dr. Christopher Portier, of basing his opinion that glyphosate and Roundup cause cancer on lucrative consulting contracts from law firms and not on scientific evidence.

“You said EPA was ‘so amazingly wrong;’ EFSA was ‘so amazingly, astonishingly wrong.’ ECHA (European Chemicals Agency) got one thing right,” Griffis said, attempting to poke holes in Dr. Portier’s prior testimony about U.S. and European regulators’ evaluations of glyphosate.

Undaunted, Dr. Portier responded: “It’s absolutely clear they’re not using [their guidelines] appropriately.”

During redirect, Dr. Portier also pointed out that a reassessment report for glyphosate conducted by a German agency that participated in EFSA’s review of glyphosate, contained verbatim passages written by herbicide manufacturers.

Day 6, July 17: Plaintiff Dewayne Johnson called Monsanto to ask if using Roundup caused his skin rashes, later diagnosed as non-Hodgkin lymphoma

On day 6, Monsanto executive Dr. Daniel Goldstein attempted to rebut plaintiff Dewayne “Lee” Johnson’s allegation that he failed to tell him whether exposure to Monsanto’s Roundup weed killer caused him to develop skin rashes over a significant portion of his body.

In his lawsuit, Johnson alleges he developed cancerous lesions on his body after using Roundup between 2012 and 2015, as part of his groundskeeper job, including two instances where he was drenched in the weed killer.

The jury saw video testimony from Dr. Goldstein, who was asked whether he returned calls that Johnson had made to the company in 2014, asking if exposure to Roundup created the widespread lesions all over his body.

Dr. Goldstein testified that he did not recall speaking to Johnson, though an internal Monsanto email shows that he intended to call Johnson.

“It would certainly be helpful to have spoken with him, and I don’t recall whether I did,” Goldstein testified.

Day 7, July 18: Tempers flare as Monsanto lawyer becomes visibly frustrated with cancer expert, Dr. Alfred Neugut

On day 7, oncology and epidemiology expert Dr. Alfred Neugut of Columbia University took the stand and things got a bit heated during his cross-examination. At one point, Monsanto attorney George Lombardi gave the court an inaccurate characterization of a statement Dr. Neugut had made. Dr. Neugut yelled back to Lombardi to stop “misquoting” him.

Another highlight was Dr. Neugut’s dismissal of the Agricultural Health Study, which Monsanto routinely points to as conclusive proof that glyphosate is safe. Like other expert witnesses for the plaintiff, Dr. Neugut told the jury about several key flaws with the study, including the imputation of data to make up for poor follow-up among the study’s subjects, which rendered the study a “throwaway.” Dr. Neugut said:

“You use imputation when you’ve got a screwed-up study with poor follow-up. Unfortunately, this is a case of measurings—with a gold scale, where it turns out the results just don’t turn out to be what they should be because there are so many problems.”

Day 8, July 20: Plaintiffs oncologist testified that exposure to Roundup “was a major contributing factor in the development of Mr. Johnson’s cutaneous T-cell lymphoma”

On day 8, the court heard from Cardinal Health oncologist and physician, Dr. Chadi Nabhan, one of Dewayne “Lee” Johnson’s medical witnesses. Dr. Nabhan testified that Lee Johnson’s exposure to Roundup “was a major contributing factor in the development of Mr. Johnson’s cutaneous T-cell lymphoma.”

One of Monsanto’s points of emphasis during the Johnson trial is how long it takes for cancer symptoms to manifest after exposure to a carcinogenic agent. Lawyers for the agrochemical giant say it takes 20 years, which would eliminate Roundup exposure as the cause of Mr. Johnson’s NHL.

Dr. Nabhan, however, told the jury that cancer symptoms can show in just one month. “There is no agreed-upon latency period with these types of exposures and these types of cancers,” said Nabhan, who specializes in lymphomas. “Some patients can develop the disease early on and some patients can develop it in 20 years.”

Day 9, July 23: Dewayne “Lee” Johnson testifies he “never would’ve sprayed that product on school grounds or around people if I knew it would cause them harm”

On day 9, Dewayne “Lee” Johnson and his wife, Araceli, took the stand and gave the jury a heartbreaking glimpse at how their lives have changed since Lee’s cancer diagnosis.

During her testimony, Araceli recalled when Lee first told her about his diagnosis. “I couldn’t believe it. My world just shut down,” she said, adding, “I only cried at nigt... it was very hard.”

In order to make a dent in the family’s rising medical bills, Araceli took a second job working 14-hour days while shuttling her two sons an extra 45 minutes to Napa Valley School District in hopes of providing them better educational opportunities.

When Lee took the stand, he testified in agonizing detail how he tried to hide the pain of his diagnosis from his family. “I’m trying to show my kids an example of how to deal with things and crying is not going to help you,” he said. “But I’m raising two little boys, so I’m teaching them to deal with pain and learn to deal with it and to deal with a situation if it comes to you. And sitting around sorrowful and crying is not going to help.”

Mr. Johnson also made it clear that he never would have used Roundup if he had known it causes cancer.

“I never would’ve sprayed that product on school grounds or around people if I knew it would cause them harm,” Mr. Johnson said in court on Monday. “It’s unethical, it’s wrong. People don’t deserve that.”

Day 10, July 24: Secret documents reveal Monsanto’s war on cancer scientists

On day 10, the jury heard video testimony from Monsanto toxicologist, Donna Farmer, who leads the chemical company’s deceptively named Product Safety Center.

Getting Farmer to testify proved to be a challenge. When our legal team sent a process server to subpoena her testimony, Farmer was observed fleeing through a backyard fence of her St. Louis home. We had the block staked out and successfully served the summons.

In her deposition, Farmer adamantly denied that her role at Monsanto was to protect Roundup until she was confronted with an internal company document showing that, in fact, her “number one goal is to defend and maintain the global glyphosate or Roundup business.”

Under questioning from attorney Mike Miller, Farmer admitted that her primary concern was regulatory compliance rather than public health, acknowledging that she orchestrated the ghostwriting of articles for supposedly independent scientists who agreed to defend glyphosate.

“There’s nothing wrong with that,” she said.

Robert F. Kennedy Jr. is a longtime environmental advocate and author of American Values: Lessons I Learned From My Family. He is co-counsel to Baum Hedlund Aristei & Goldman, representing nearly 800 people across the nation who allege Roundup exposure caused their non-Hodgkin lymphoma. Follow him on Twitter: @RobertKennedyJr. Like him on Facebook.

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