This blog by Carey Gillam is updated regularly with news and tips about the lawsuits involving Monsanto’s glyphosate-based Roundup weed killer products. See our Monsanto Papers pages for discovery documents. Please consider donating here to support our investigation.
April 12, 2019
After a week of behind-the-scenes discussions, U.S. District Judge Vince Chhabria has issued a formal order of mediation to seek a settlement between Bayer AG and lawyers representing thousands of cancer victims who are suing Monsanto alleging their exposure to the company’s Roundup herbicide caused their illnesses.
Bayer, which bought Monsanto in June of last year, has vowed to vigorously fight the litigation, despite losing the first two trials in unanimous jury verdicts and large damage awards against Monsanto. A third trial is underway now in Oakland, California.
But Chhabria has seen enough and wants to move the parties closer to a settlement, if possible. Chhabria’s order for “confidential mediation” comes after jurors awarded the plaintiff in the second trial, Edwin Hardeman, $80.2 million in damages. A separate jury in a separate court under a different judge last summer awarded a California groundskeeper $289 million in damages, an amount later reduced to $78 million.
“The parties should propose a mediator in their case management statement; if they cannot agree, the Court will appoint someone,” the judge wrote in his order.
Bayer said it would comply with mediation talks but still is focused on defending the safety of glyphosate-based herbicides in court.
Chabbria’s move for mediation comes after he provided Monsanto with a bifurcated trial that sharply limited the evidence the plaintiff’s attorneys were able to present to jurors. Observers saw the Hardeman trial as very advantageous for Monsanto’s defense, and yet still the company could not overcome scientific evidence tying its products to cancer and internal documents plaintiffs’ attorneys say shows the company knowingly hid the risks of its herbicides from consumers and regulators.
Judge Chhabria, who is overseeing multidistrict litigation (MDL) that encompasses more than 800 lawsuits out of the thousands filed, said he was vacating a May 20 trial date for what would have been the fourth Roundup cancer trial. Many lawsuits filed around the United States have been transferred into the federal court MDL system, used to streamline and consolidate pretrial proceedings and discovery, but now will be sent back to their home districts for handling.
“The Court has determined that, at this stage in the proceedings, the resources of the parties and the Court are better spent on organizing the remaining cases in the MDL. This includes determining which cases must be dismissed, determining which cases must be remanded to state court, and preparing the
remaining cases for transfer back to their home districts for federal court trials,” Chhabria wrote
Chhabria set a May 22 hearing to discuss the next steps for the MDL cases.
Meanwhile, jurors in the Pilliod v. Monsanto case being tried in Alameda County Superior Court in Oakland had the day off Friday with no trial proceedings scheduled. The jury spent this week hearing from scientists/expert witnesses explaining research they say shows that glyphosate-based herbicides cause non-Hodgkin lymphoma, the type of cancer suffered by the plaintiffs, the married couple Alva and Alberta Pilliod.
Testimony this week also included video examinations of former Monsanto toxicologist Mark Martens and William Reeves, whose title is “Global Health and Safety Issues Management Lead”at Bayer Crop Science.
April 8, 2019
Bayer AG, which bought Monsanto last summer, said Monday that it was making scientific studies available for public scrutiny in an effort to counter growing concerns about the safety of Monsanto’s flagship glyphosate-based herbicide products.
“Transparency is a catalyst for trust, so more transparency is a good thing for consumers, policymakers and businesses, Liam Condon, president of Bayer’s crop science division, said in a statement. Safety, he said, is the company’s top priority.
The comments come as pressure is mounting on Bayer management as roughly 11,000 people are suing Monsanto alleging glyphosate-based herbicides such as Roundup cause non-Hodgkin lymphoma, and Monsanto has hidden the risks and manipulated the scientific record. The first Roundup cancer trial resulted in a jury verdict of $289 million in damages against Monsanto, though a judge later lowered that to $78 million. The second such trial ended last month with a jury verdict of $80.2 million against Monsanto. The third trial is now underway.
Last week U.S. District Judge Vince Chhabria told Bayer attorneys and plaintiffs’ attorneys that he would like the parties to enter into mediation to discuss a possible settlement. He vacated a fourth trial set to begin in May.
Monsanto and Bayer deny the allegations and say the weight of science supports the safety of glyphosate herbicides. They also deny claims that company scientists ghost-wrote seemingly independent scientific papers and otherwise manipulated the scientific record.
“By making our detailed scientific safety data available, we encourage anyone interested to see for themselves how comprehensive our approach to safety is. We embrace the opportunity to engage in dialogue so we can build more trust in sound science,” said Condon.
The company said it was providing access to 107 Bayer-owned glyphosate safety study reports that were submitted to the European Food Safety Authority as part of the substance authorization process in the European Union. The studies are accessible on Bayer’s transparency platform.
The news from Bayer comes ahead of an April 26 shareholders meeting in which some investors are calling for the head of Bayer CEO Werner Baumann for leading the company into the Monsanto acquisition. Monsanto’s top management walked away with millions of dollars in exit packages just before the first Roundup cancer trial, leaving Bayer holding the bag for the litigation losses and the bad publicity. Since last summer, the company has seen an exodus of customers as retailers, cities, school districts and others say they are backing away from the Monsanto herbicides.
As Bayer focuses on its messaging outside the court room, epidemiologist Beate Ritz, professor at the University of California Los Angeles School of Public Health, is due to take the stand today in Pilliod v. Monsanto, the third Roundup cancer trial. Ritz has testified in the two prior trials that her analysis of several scientific studies shows that there is a “credible link” between glyphosate-based herbicides such as Monsanto’s Roundup and non-Hodgkin’s lymphoma.
The current case was brought by Alva and Alberta Pilliod, a married couple who both have non-Hodgkin lymphoma they allege is due to years of Roundup use.
Following Ritz will be testimony from Dennis Weisenburger, a pathologist specializing in studying the causes of non-Hodgkin lymphoma. Weisenburger testified in the Edwin Hardeman v. Monsanto trial that Roundup is a “substantial cause” of cancer in people who are exposed.
Meanwhile, plaintiffs’ attorneys continue to worry about what they believe to be “geofencing” by Monsanto. Geofencing is a popular advertising technique that delivers specific messaging/content to anyone within a specific geographic area designated by the company or group paying for the ad. The area can be very small, a mile radius around a specific address, for instance. Anyone within that designated area using an app on a smart phone – such as a weather app or a game – would then be delivered the ad. Targeted individuals don’t have to be searching for information; it just appears on their smart phone.
Plaintiffs’ attorneys raised the issue in the Hardeman case, and had concerns that Monsanto was pushing messaging to jurors through geofencing in the first Roundup cancer trial, which was brought by groundskeeper Dewayne “Lee” Johnson.
In the Pilliod case, the issue was discussed Thursday in court as the plaintiffs attorneys sought a judicial order to prohibit Monsanto from the tactic, but the judge was skeptical and declined to issue such an order.
Here is part of the exchange. All can be seen in the trial transcript.
PLAINTIFFS’ ATTORNEY BRENT WISNER: Your Honor, I think there’s one — and I get your point. I think just to clarify one procedural factual thing. Right? If I were to walk over to a juror personally and say to you, “Hey, Juror Number 3, Monsanto’s stuff causes cancer and all these studies show it,” I mean, that would be a mistrial. Instantaneously. That’s jury tampering. Right? Now if they do that same thing — if I did the same thing by targeting every person’s phone in this courtroom or every single person’s phone in this courthouse and pushing that information, that same message to them on their phone — and what happens is - I don’t know if you use your phone for this kind of purposes, but, for example, when I look at my ESPN app and I’m looking at the scores for the UCLA water polo team, or whatever, you know, there’s little ads that pop up.
THE COURT: Sure.
MR. WISNER: And those ads are saying “Federal judge says Roundup is safe.” That’s the kind of stuff
we’re seeing. We saw this happening with quite intensity in the Johnson trial. Numerous jurors during voir dire mentioned that they were having these things pushed on them as soon as they walked in the building. And so whether or not Monsanto is or is not doing that, I think that if they are, that should be
prohibited. That’s not really a point of First Amendment. That is now clearly targeting people that
they know they can’t speak to.
THE COURT: And you’re asking me to assign a subjective intent that I don’t know exists and it’s
still prior restraint. I mean, technology has taken us places probably we never thought it would go… I guess if I were picking sides, I might believe that. But I can’t pick sides.
April 4, 2019
U.S. District Judge Vince Chhabria is asking Monsanto and its new owner Bayer AG to begin mediation with lawyers for cancer victims who have sued Monsanto alleging its Roundup and other glyphosate-based herbicides cause non-Hodgkin lymphoma.
Chhabria’s move comes in the wake of an $80 million jury award to plaintiffs Edwin Hardeman last month in his courtroom. And last summer plaintiff Dewayne “Lee” Johnson was awarded $289 million by a jury in state court, though the judge in that case lowered the damages to $78 million.
Chhabria had warned that he might make such a move, but had indicated that he would likely wait until three trials had been concluded before pushing for a settlement. The third Roundup cancer trial has only just gotten underway, however.
As he pushes the parties to settle, Chabbria has vacated the May 20 trial date that was set for the next federal trial. That case, Stevick v. Monsanto was filed in April 2016 by Elaine Stevick, who has non-Hodgkin lymphoma, and her husband Christopher Stevick. The couple attended portions of the Hardeman trial.
Roughly 11,000 plaintiffs have sued Monsanto, which was purchased by Bayer last summer. More than 800 of those lawsuits are being overseen by Chhabria as federal multidistrict litigation. Several thousand more are pending in state courts around the country.
Observers have speculated that a global settlement might run between $3 billion and $5 billion.
Bayer has echoed Monsanto’s long-standing position that Roundup and the other glyphosate-based herbicides within the corporate portfolio are safe and do not cause cancer. But investors in Bayer have been hammering the company’s stock and criticizing Bayer CEO Werner Baumann for paying $63 billion for Monsanto only to become liable for the mass litigation liability. Some are urging a vote of no confidence in Baumann at the company’s annual meeting scheduled for April 26. The company’s shares have lost about 40 percent in value – roughly $39 billion – since last summer’s Johnson trial.
Meanwhile, there were some early sparks flying in the Roundup cancer trial going on now in Alameda County Superior Court. In that case, the married couple of Alva and Alberta Pilliod both have non-Hodgkin lymphoma they allege was caused from their regular use of Monsanto’s herbicides.
Plaintiffs’ attorney Mike Miller asked Judge Winifred Smith to issue a temporary restraining order against Monsanto for heavy advertising the company has been doing in defense of the safety of its herbicides, including a full-page ad in the Wall Street Journal on March 25, the day the voir dire for jury selection in the Pilliod case began.
Monsanto countered by pointing out that plaintiffs’ attorneys have been running plenty of their own advertisements seeking new clients for the Roundup litigation. The motion would amount to an unconstitutional “gag order” and was “dripping with hypocrisy,” Monsanto lawyers argued.
In arguing against an injunction, Monsanto’s attorneys told the judge that The Miller Firm, which is representing the Pilliods and many other plaintiffs, ran an ad in the San Francisco Chronicle alleging a “doubling or tripling” of the risk of non-Hodgkin lymphoma from Roundup exposure a mere seven days before the Pilliod case began. Monsanto said there have been “2,187 anti-Roundup television and radio ads from December 1, 2018 to March 21, 2019” in the local San Francisco media market.
Judge Smith found Monsanto’s argument persuasive and denied the plaintiffs’ request for a limit on the advertising.
April 3, 2019
After a full day of testimony on Tuesday, retired U.S. government scientist Christopher Portier was back to the stand Wednesday to lay out for jurors the scientific research that has convinced him that Monsanto’s glyphosate-based herbicides cause cancer, and the failures of European and American regulatory systems to properly account for the scientific evidence.
Attorneys for the plaintiffs in the case had only a few remaining questions for Portier’s direct testimony before Monsanto’s attorneys were given the opportunity to cross examine Portier.
Portier, whose birthday is today, traveled from Australia to provide the testimony.
Portier was an “invited specialist” to the International Agency for Research on Cancer (IARC) when the unit of the World Health Organization classified glyphosate as a probable human carcinogen in March 2015.
The plaintiffs are a married couple named Alva and Alberta Pilliod who both developed non-Hodgkin lymphoma after many years of use of Roundup. According to court documents, Alva reported using Monsanto’s Roundup Ready-to-Use Weed & Grass Killer and/or Roundup Super Concentrate approximately twice a week on four properties he and his wife owned from 1982 to 2016. He did not wear protective clothing. Alberta reported similar usage.
April 2, 2019
Retired U.S. government scientist Christopher Portier will kick off live testimony today in the third Roundup cancer lawsuit to go to trial. He is expected to tell jurors in Pilliod v. Monsanto how regulators have repeatedly missed key signs that Monsanto’s glyphosate-based herbicides cause cancer.
Portier’s testimony is expected to run all day today and possibly into Wednesday. The current case involves a married couple – Alva and Alberta Pilliod – who both developed non-Hodgkin lymphoma after many years of use of Roundup.
Portier is one of the plaintiffs’ star expert witnesses. He was an “invited specialist” to the International Agency for Research on Cancer (IARC) when the unit of the World Health Organization met in March of 2015 in Lyon, France to review years of published and peer-reviewed scientific studies about glyphosate. At that meeting, IARC classified glyphosate as a probable human carcinogen, though Portier had no vote in the outcome.
Portier resides now most of the time in a remote village in Switzerland, but before his retirement, he led the National Center for Environmental Health/Agency for Toxic Substances and Disease Registry at the Centers for Disease Control and Prevention (CDC), part of the U.S. Department of Health and Human Services. Prior to that role, Portier spent 32 years with the National Institute of Environmental Health Sciences, where he served as associate director, and director of the Environmental Toxicology Program, which has since merged into the institute’s National Toxicology Program.
Monsanto’s attorneys and chemical industry allies have criticized Portier and sought to discredit his opinion that glyphosate herbicides cause cancer. They cite part-time work he has done in retirement for the nonprofit Environmental Defense Fund, and his role as an expert witness for plaintiffs’ attorneys in the Roundup litigation, though the litigation only began after the IARC classification.
Following Portier’s testimony, plaintiffs’ lawyers expect to put Charles “Bill” Jameson on the stand as a second expert witness. Jameson is a chemist and toxicologist specializing in carcinogenesis. He has worked as a senior chemist for the National Institutes of Health’s National Cancer Institute and the National Institute of Environmental Health Sciences. He also has consulted for the World Health Organization and served as a member of the IARC working group.
The trial is expected to run into mid-May. Lawyers for the Pilliods have filed a list of exhibits they plan to present at trial that runs more than 280 pages. Monsanto’s list of exhibits runs more than 130 pages.
April 1, 2019
Monday is another day of rest for opposing sides in the latest Roundup cancer trial – Pilliod V. Monsanto. The plaintiffs in the case, Alva and Alberta Pilliod, are husband and wife and both have non-Hodgkin lymphoma they allege is due to their exposure to Roundup.
Opening statements in the case were delivered to jurors Thursday and the trial is set to resume Tuesday with testimony from plaintiffs’ expert witness Chris Portier a former U.S. government scientist. Portier was a key witness in the first two Roundup cancer trials, both which concluded with large damage awards against Monsanto.
Portier has argued that regulators have incorrectly analyzed glyphosate studies on rodents, and that a correct analysis of the total weight of scientific evidence shows that glyphosate and glyphosate-based herbicides such as Monsanto’s Roundup can cause cancer.
Lawyers for the plaintiffs have filed a list of exhibits– evidence they plan to present at trial. The list runs more than 280 pages.
Monsanto’s list of exhibits runs more than 130 pages.
During this ‘dark’ day as the lawyers call a day with no court, take a look at my piece in The Guardian that ran over the weekend:
“Amid the uproar of the courtroom scuffles, a larger issue looms: Monsanto’s push to make use of glyphosate herbicides so pervasive that traces are commonly found in our food and even our bodily fluids, is just one example of how several corporate giants are creating lasting human health and environmental woes around the world. Monsanto and its brethren have targeted farmers in particular as a critical market for their herbicides, fungicides and insecticides, and now many farmers around the world believe they cannot farm without them.
Studies show that along with promoting illness and disease in people, these pesticides pushed by Bayer and Monsanto, DowDuPont and other corporate players, are endangering wildlife, soil health, water quality and the long-term sustainability of food production. Yet regulators have allowed these corporations to combine forces, making them ever more powerful and more able to direct public policies that favor their interests. While Bayer may dole out a few billion dollars in damages, who is really being made to pay? We all are.”
March 29, 2019
Both sides were taking a breather Friday as the newest Roundup cancer trial has a ‘dark’ day.
After opening statements Thursday, Pilliod v. Monsanto will resume Tuesday, April 2, in Alameda County Superior Court in Oakland, California. Pilliod is part of a group of cases grouped together under the California Roundup Judicial Council Coordination Proceedings (JCCP). Plaintiffs expect to open testimony with toxicology expert Chris Portier, a former U.S. government scientist. The trial is expected to run into mid-May.
The Hardeman V. Monsanto case that concluded Wednesday with an $80 million verdict was the first case to go to trial as part of a separate group of cases being handled as multi-district litigation (MDL) proceedings in federal court.
Monsanto, which was purchased by Bayer AG last summer, is facing roughly 11,000 plaintiffs all claiming exposure to Monsanto’s glyphosate-based herbicides caused non-Hodgkin lymphoma and that Monsanto hid the risks.
Bayer investors have pushed share prices down so low that Bayer’s market valuation has fallen below the $63 billion in paid for Monsanto.
Susquehanna Financial Group analyst Tom Claps has warned Bayer shareholders to brace for a global settlement of between $2.5 billion and $4.5 billion.
“We don’t believe (Monsanto) will lose every single trial, but we do believe that they could lose a significant majority,” he said.
March 28, 2019
She has brain cancer, while her husband suffers from a cancer that has invaded his pelvis and spine. Both blame their long use of the popular weed-killing chemical known as Roundup, and the California married couple today get their chance to put Monsanto on trial.
Alva and Alberta Pilliod, both in their 70s, are plaintiffs in the third lawsuit against Monsanto to go to trial. Twelve jurors and five alternates were selected earlier this week, and opening statements get underway this morning in Alameda County Superior Court in Oakland, California.
The Pilliod trial marks the latest in a snowballing series of courtroom challenges to the legacy of Monsanto – a company that built a reputation as an agrochemical powerhouse before its acquisition last summer by German-based Bayer AG.
As was alleged in two previous trials – both won by plaintiffs – the Pilliods claim their use of Monsanto’s glyphosate-based herbicide products caused them to develop non-Hodgkin lymphoma, and that Monsanto has failed to warn consumers about the risks while suppressing and manipulating the scientific record about its products.
“We are very angry. We hope to get justice,” Alberta Pilliod told the Guardian last fall, noting that the couple did not use protective gear when they sprayed because they believed company marketing that the products were safe. She said they would not have used Roundup the way they did if they knew the risks. “If we had been given accurate information, if we had been warned, this wouldn’t have happened.” Alva said the cancer had destroyed their lives: “It has been a miserable few years.”
On Wednesday, a six-member jury in federal court in San Francisco awarded plaintiff Edwin Hardeman just over $80 million, including $75 million in punitive damages, on claims similar to those made by the Pilliods. Specifically the jury awarded past economic loss damages of $200,967.10, past non-economic loss damages of $3,066,677, future economic loss damages of $2 million and punitive damages of $75 million.
And last August, Dewayne “Lee” Johnson was awarded $289 million by a unanimous jury also on findings that his use of Monsanto’s herbicides caused his non-Hodgkin lymphoma and Monsanto covered up the risks. The judge in that case lowered the award to $78 million. Monsanto has appealed.
Cancer has been very hard on the Pilliod couple, who have two children and four grandchildren. Alva was diagnosed in 2011 and has been through multiple rounds of treatment. Alberta Pilliod has been hospitalized repeatedly since her diagnosis in 2015. And though both Alberta and her husband are currently considered in remission, Alberta takes ongoing medications she calls ‘maintenance chemo,” and she has suffered hearing loss, double vision and a loss of balance – all expected to be permanent, she said in an interview.
The Pilliods used Roundup regularly from the mid -1970s until only a few years ago on multiple properties they owned. The couple said they chose Roundup because they believed it was safe for them and for the deer, ducks and other animals that roamed the acreage the Pilliods treated with Roundup products. Alberta Pilliod said in an interview she thought Roundup was “like sugar water.”
Glyphosate, patented by Monsanto in 1974, is the most widely used weed killer in the world and worth billions of dollars in revenues. It is the active ingredient in Monsanto’s Roundup products and hundreds of other weed killing products sold around the world. But while Monsanto and other chemical companies insist the products do not cause cancer, the evidence presented in the first two trials includes numerous published and peer-reviewed scientific studies showing the products are carcinogenic.
The Pilliod suit echoes others in claiming that “Monsanto led a prolonged campaign of misinformation to convince government agencies, farmers and the general public that Roundup was safe” despite knowing about the scientific evidence showing it was not safe.
Monsanto’s new owner Bayer maintains that claims tying its herbicides to cancer are baseless and asserts its products have been labeled with proper warnings and instructions. In its response to the Pilliod lawsuit, Monsanto “denies that Plaintiffs sustained or will sustain any injury, damage or loss by reason of any act or omission of Monsanto.”
Lawyers for plaintiff Edwin Hardeman said in a video interview that Bayer and Monsanto needed to start acting responsibly. “At some point this company needs to come clean and own up to the fact that its product is dangerous,” said attorney Jennifer Moore.
Judge Winifred Smith is presiding over the Pilliod case. Attorneys for the plaintiffs anticipate the trial will last about a month. Twelve jurors and five alternates have been selected. Pilliod v. Monsanto is the first case in the California Roundup Judicial Council Coordination Proceedings (JCCP). A list of relevant court documents can be found on the USRTK Monsanto Papers page.
The second Roundup cancer trial concluded Wednesday with a unanimous jury verdict that ordered Monsanto to pay roughly $80 million in damages for failing to warn plaintiff Edwin Hardeman of the cancer risks of Roundup herbicide.
The jury verdict included $200,967.10 in past economic loss, and a little more than $5 million in past and future non-economic loss damages. Jurors said Monsanto should pay $75 million in punitive damages for its negligence in failing to warn of the cancer risks of its herbicides despite years of published scientific data highlighting the carcinogenic potential of glyphosate-based herbicides.
Hardeman’s attorneys issued a statement slamming Monsanto for decades of what they said was irresponsible and dangerous conduct. During the month-long trial they presented jurors with not just scientific evidence showing cancer connections to Monsanto’s products, but also evidence of Monsanto strategies aimed at suppressing information about the dangers of its products, including secretly ghost-writing scientific papers that it then used to help convince regulators of product safety.
“As demonstrated throughout trial, since Roundup’s inception over 40 years ago, Monsanto refuses to act responsibly. It is clear from Monsanto’s actions that it does not care whether Roundup causes cancer, focusing instead on manipulating public opinion and undermining anyone who raises genuine and legitimate concerns about Roundup. It speaks volumes that not one Monsanto employee, past or present, came live to trial to defend Roundup’s safety or Monsanto’s actions. Today, the jury resoundingly held Monsanto accountable for its 40 years of corporate malfeasance and sent a message to Monsanto that it needs to change the way it does business.”
Bayer AG, which purchased Monsanto last summer, said it would appeal the verdict. “We are disappointed with the jury’s decision, but this verdict does not change the weight of over four decades of extensive science and the conclusions of regulators worldwide that support the safety of our glyphosate-based herbicides and that they are not carcinogenic. The verdict in this trial has no impact on future cases and trials, as each one has its own factual and legal circumstances. Bayer will appeal this verdict. The jury in this case deliberated for more than four days before reaching a causation verdict in phase one, an indication that it was very likely divided over the scientific evidence.”
How badly did Monsanto want to discredit international cancer scientists who found the company’s glyphosate herbicide to be a probable human carcinogen and promote a counter message of glyphosate safety instead? Badly enough to allocate about $17 million for the mission, in just one year alone, according to evidence obtained by lawyers representing cancer victims suing Monsanto.
That detail and others about the internal workings of Monsanto public relations operations have come to light in a Jan. 22 video-taped deposition of Monsanto executive Sam Murphey. Murphey’s job at Monsanto included directing global media relations and “advocacy efforts in support of major litigation, policy matters, and reputational threats” involving the company’s glyphosate-based herbicide business. And one of the biggest threats came from those cancer scientists. Murphey now works for Bayer after the German company purchased Monsanto last summer.
U.S. District judge Vince Chhabria did not allow Murphey’s disclosure of the anti-IARC budget to be introduced into evidence in the Hardeman V. Monsanto trial, which went to the jury for deliberation on Tuesday. Jurors in that San Francisco case already determined that Monsanto’s glyphosate-based Roundup caused Hardeman’s non-Hodgkin lymphoma, but now are weighing damages.
But the Murphey evidence is expected to be introduced at the Pilliod V. Monsanto trial that concluded jury selection in Alameda County Superior Court in Oakland, California on Tuesday. The parties selected a jury of 12 members and five alternates. Opening statements in that case are expected Thursday.
It has been four years since the International Agency for Research on Cancer (IARC) reviewed the published and peer-reviewed scientific literature regarding glyphosate and found the herbicide to be probably carcinogenic, with a particular association to non-Hodgkin lymphoma. IARC is part of the World Health Organization and has classified over 1,000 substances as to their cancer hazard, typically without too much controversy.
But glyphosate was different. Following the March 2015 classification, hundreds, and then thousands, of people diagnosed with non-Hodgkin lymphoma after exposures to Monsanto’s herbicides filed suit against the agrochemical giant.
Also immediately after the IARC classification of glyphosate – and continuing to this day – the cancer scientists became the subject of sweeping condemnation from an assortment of organizations, individuals and even some U.S. lawmakers. They have been accused of operating not on sound science but on behalf of a political agenda, cherry-picking data, and promoting junk science, among other things. The criticisms have been magnified and repeated around the world in news articles, opinion pieces, blogs, Internet Google advertisements and more.
Internal Monsanto documents that have surfaced through discovery for the more than 11,000 lawsuits filed against the company show that among other tactics, Monsanto has been secretly using third parties for its anti-IARC messaging because company executives and public relations agents thought the information would appear more credible coming from entities separate from Monsanto.
In his deposition, Murphey was asked how much the company spent trying to cast doubt upon the IARC classification.
Here is a bit of the exchange:
Plaintiff attorney Pedram Esfandiary: “So it’s true that Monsanto’s allocated millions of dollars in responding to the IARC classification, correct?”
Murphey: “We — we have — we had to spend a significant amount of resources, over several years now, correcting misinformation, and addressing questions in the public about — about glyphosate.”
Esfandiary: “Has Monsanto allocated millions of dollars to responding to the IARC classification?”
Esfandiary: “Do you know roughly how much Monsanto allocated to it in 2016?”
Murphey: “I can only speak within the context of, you know, public affairs activities, you know, things that I would have been directly involved in. But in 2016, you know, I believe for some of the projects I was involved in, it was around 16 or 17 million.”
Esfandiary: “$16 or 17 million… was allocated to responding to the IARC clarification (stet) ?
Murphey: “No, not specifically and solely focused on IARC. It’s — it would have focused on engagement and media relations and other activities on glyphosate, more generally.”
Esfandiary then asked Murphey how much it would have cost the company to perform a long-term cancer bioassay test of its formulated glyphosate products, something the company has acknowledged it never did. Murphey said he did not know.
The year 2016 was a particularly critical time for Monsanto because in addition to facing litigation, the company’s glyphosate license was up for renewal in Europe, and the U.S. Environmental Protection Agency was also reviewing glyphosate’s registration.
HOW WAS THE MONEY SPENT?
In the deposition, Murphey was asked about a July 2015 internal Monsanto document called “IARC Follow Up” that cited a goal to “invalidate relevance of IARC” and “protect freedom to operate” (FTO). He was asked about a host of actions undertaken to minimize or discredit IARC’s work that were laid out in that and other internal Monsanto communications. Several pages of the deposition are completely redacted, per court order, so it is not possible to see all of what was said by Murphey in his deposition. But here are a few examples of what was discussed:
- Amplifying pro-glyphosate/Roundup messaging through “third-party channels.” One example of using an outside party to parrot Monsanto talking points was an article that appeared on the Forbes contributor platform that appeared to be written by Henry Miller, who at the time was a fellow at the Hoover Institution at Stanford University. Internal Monsanto documents show the piece criticizing IARC was actually drafted by Monsanto and sent to Miller with a request for him to publish the materials.
- Other Op-Ed maneuvers. Just prior to the IARC classification, Monsanto executive Dan Goldstein discussed five “potential draft Op Eds he said he had written for “medical toxicologists to work from” that included “paragraphs on criticism of IARC.” Goldstein was emailing the draft opinion articles out to doctors and scientists with the hope that they would adopt the drafts as their own and have them published, the records show. Monsanto was available to “coordinate Op Ed versions” as needed, Murphey said in his deposition.
- “Let Nothing Go” strategy. According to Murphey, the initiative involved “carefully monitoring media coverage” with a focus on the European Union. “We had a number of markets we were — we were prioritizing,” Murphey said. The project called for monitoring stories and highlighting or flagging those that contained what Monsanto saw as inaccurate information or misinformation about the company or its products, or stories that didn’t include the company’s perspective or point of view. Someone would then be assigned to follow up with those reporters, “proactively calling reporters in those instances, to share a statement, to provide some additional context, and to encourage those reporters to contact us in the future,” said Murphey.
- Convincing a Reuters reporter to write a story undermining the validity of the IARC classification was another example of Murphey’s work. Emails from within Monsanto showed that Murphey sent a slide deck of talking points and a suggested narrative to Reuters reporter Kate Kelland asking her to write a story that accused Aaron Blair, who was the chairman of the IARC working group on glyphosate, of concealing data that would have changed IARC’s conclusion on glyphosate. Murphey told Kelland in an April 2017 email that it was “vitally important information that needs to be reported.” He also told her to treat the information he sent her as “background,” meaning she should not mention she got the story idea and materials from Monsanto. Kelland then wrote the story Monsanto wanted. A deposition of Aaron Blair indicated the accusations laid out in the story were false, but Kelland did not include a copy of the deposition with her story. The story was promoted by Monsanto and chemical industry organizations and Google advertisements and was picked up and repeated by media outlets around the world. Murphey said in his deposition that he put no undue pressure on Kelland, and Monsanto believed the story to be valid and important. “Once I provided the initial information to — to Ms. Kelland, she was free to do with that information what she saw fit,” he said. “And the decision to investigate a story and ultimately — ultimately publish it was her decision, and the decision of her editors at Reuters.”
Murphey said there was nothing nefarious in the efforts that Monsanto undertook after the IARC opinion was published. He said the company’s plan involved “engagement with third parties to provide information, share talking points, and other resources” along with “outreach to the media, to ensure balance and accuracy, and the right context and perspective on the science in — in their coverage of — of our product.”
“As we moved forward, after the IARC classification, again, we were very forthright in
engaging with agriculture groups, engaging with reporters, engaging on social media, to share - to share the company’s views,” Murphey said in the deposition. “We — you know, we kept our — we kept agriculture groups and others informed. We were pleased that many of them continued to speak out as well about what they saw as an inaccurate classification. But Monsanto was always very, again, I’ll just — very forthright in sharing our views about the classification.”
March 26, 2019
Lawyers for Edwin Hardeman presented their closing argument today in U.S. District Court in San Francisco, asking jurors to punish Monsanto for failing to warn about the cancer risks of its Roundup herbicide.
Attorney Jennifer Moore presented the close for the plaintiff’s legal team, and Monsanto attorney Brian Stekloff made his closing argument, winding down a month-long trial that already recorded a first phase jury verdict finding Roundup was a “substantial factor” in causing Hardeman’s non-Hodgkin lymphoma.
The jury’s decision now is simply a matter of money – whether or not Monsanto should pay damages, including punitive damages, to Hardeman. Though jurors already decided Roundup caused the harm to Hardeman, they have yet to determine if Monsanto should be held responsible for that harm. The jury instructions call for jurors to answer three questions in order to be able to determine damages: Was Roundup’s design defective? Did Roundup lacked sufficient warning of potential risks? And was Monsanto negligent by not using reasonable care to warn about the risks posed by Roundup?
Monsanto’s attorneys have not changed their position that Roundup does not cause cancer. But for the issue of liability they have argued that during the period Hardeman used Roundup – from 1986 to 2012 – no regulatory or health organization required a warning on Roundup labels regarding cancer, and Monsanto had no evidence leading it to believe a warning was necessary.
In testimony Monday, former Monsanto Chairman Hugh Grant defended the company’s conduct surrounding Roundup though he acknowledged the company never did any epidemiology study of Roundup even though the company spent more than $1 billion annually researching new products.
“Monsanto acted responsibly,” company attorney Brian Stekloff told the jury last week. Telling jurors “this is not a popularity contest,” he said there was no evidence Monsanto acted negligently. “Monsanto, consistent with the science, consistent with how the science was being viewed around the rest of the world, did act responsibly and should not be found liable,” he said.
Hardeman’s attorneys have told jurors that there was a wealth of scientific evidence showing cancer risks associated with Roundup but Monsanto chose to try to suppress and/or discredit the information rather than warn customers like Hardeman.
If the jurors find that Monsanto is liable, the parties have already agreed to a figure of $200,967.10 for economic losses. But jurors could elect to add ‘noneconomic damages” to the tally, and they could add punitive damages.
Judge Vince Chhabria said in an earlier ruling that there was “a great deal of evidence” to support a punitive damages award against Monsanto and to show that the company “has not taken a responsible, objective approach to the safety of its product.”
The judge said there is “strong evidence from which a jury could conclude that Monsanto does not particularly care whether its product is in fact giving people cancer, focusing instead on manipulating public opinion and undermining anyone who raises genuine and legitimate concerns about the issue.”
In the first Roundup cancer trial, a jury last August awarded $289 million to plaintiff Dewayne “Lee” Johnson, though the judge reduced the verdict to $78 million.
March 25, 2019
Lawyers for Edwin Hardeman have substantially cut down the number of witnesses and evidence to present to jurors who must decide if Monsanto and its new owner Bayer are liable for Hardeman’s development of non-Hodgkin lymphoma after years of use of Monsanto’s Roundup. They have but a few hours left allotted to them by the judge, who has said he expects closing arguments by Tuesday.
The six-member jury team decided last week that Roundup was in fact a substantial factor in causing Hardeman’s cancer. The trial is now focused on whether or not Monsanto should be blamed, and if so, how much – if anything – the company should pay Hardeman in damages.
But making that case may be difficult given the short amount of time the plaintiff’s attorneys have left in the total “time clock” that Judge Vince Chhabria set. He gave each side 30 hours to make their case.
Hardeman’s attorneys used most of their time in the first half of the trial and now have but a few remaining hours. As a result, they have informed the judge that they will not be calling planned testimony from Monsanto executives Daniel Goldstein, Steven Gould, David Heering, or Daniel Jenkins. They also will not be presenting planned testimony from Roger McClellan, editor of the scientific journal Critical Reviews in Toxicology (CRT), and at least four other witnesses.
McClellan was overseeing CRT when the journal published a series of papers in September 2016 that rebuked the finding by the International Agency for Research on Cancer (IARC) finding that glyphosate was a probable human carcinogen. The papers purported to be written by independent scientists who found that the weight of evidence showed the weed killer was unlikely to pose any carcinogenic risk to people. But internal Monsanto documents show that the papers were conceptualized from the outset as a strategy by Monsanto to discredit IARC. One of Monsanto’s top scientists not only reviewed the manuscripts but had a hand in drafting and editing them, though that was not disclosed by CRT.
Hardeman’s attorneys plan about three more hours of testimony from various witnesses, including former Monsanto Chairman and CEO Hugh Grant, who received an exit payment of about $32 million when Bayer AG bought Monsanto last summer.
Discussion of Damages
Both sides have already agreed that Hardeman has suffered a loss of approximately $200,000 in economic damages, but Hardeman’s attorneys are expected to ask for many tens of millions of dollars, and possibly hundreds of millions of dollars for total damages, including punitive.
Lawyers for Monsanto have objected to any discussion of Monsanto’s wealth and the $63 billion Bayer paid for Monsanto, but the judge has allowed some financial information to be shared with jurors.
Jurors may not ever be told exactly how much money Monsanto has made over the years in sales of its glyphosate herbicides, but a look at just one year of financials – 2012, the year Hardeman stopped using Roundup – shows the company made roughly $2 billion in total profits that year.
Judge Chhabria noted in discussions with attorneys out of the presence of the jury that Hardeman’s attorneys might want to argue that Monsanto spent a lot of money on advertising and payouts to executives rather than conducting long-term safety studies on its products. The money issues might be relevant to jurors’ deliberation over potential punitive damages, Chhabria said.
“It may be relevant to Monsanto’s ability to pay, but it seems even more relevant to the issue of what was knowable — both liability and punitive damages, whether Monsanto’s conduct was extreme and outrageous,” Judge Chhabria said. “Why can’t they argue, look at all the money Monsanto has been willing to spend on advertising and it’s not willing to, you know, conduct any sort of objective inquiry into the safety of its product.”
“It is not as much about the company’s ability to pay as it is about the company’s conduct with respect to the safety of its product,” Chhabria said. “Look at all these things that the company is spending extreme amounts of money on, and it’s not willing to lift a finger to conduct any sort of objective inquiry about the safety of its product. That, I assume, is their argument.”
Chhabria said the evidence of Monsanto’s finance could be “probative” of the “outrageousness of the company’s conduct.”
Pilliod Trial Beginning
A third Roundup cancer trial gets underway this week in Alameda County Superior Court in Oakland, California. Alva and Alberta Pilliod, husband and wife, take on Monsanto and Bayer with claims they both are suffering from non-Hodgkin lymphoma due to exposure to Monsanto’s Roundup products. Voir dire for jury selection begins today in Oakland and opening statements are expected to begin Thursday. See documents related to that case at this link.
The judge in the Pilliod case rejected Monsanto’s request to bifurcate the trial. The legal team presenting the Pilliod case includes Los Angeles attorney Brent Wisner, who gained notoriety for the win by plaintiff Dewayne “Lee” Johnson over Monsanto in the first-ever Roundup cancer trial last summer.
March 22, 2019
Plaintiff Edwin Hardeman took the stand today to offer more testimony in his lawsuit against Monsanto over claims his use of the company’s Roundup herbicide caused him to develop non-Hodgkin lymphoma.
Hardeman already testified in the first phase of the trial, which drew a unanimous jury verdict finding that Roundup was to blame for his cancer. His testimony today addressed the question of Monsanto’s liability and if the company should pay damages for the loss of his health.
Hardman’s attorneys are trying to convince jurors that Monsanto knew of the dangers of its products but actively worked to suppress that information through a variety of tactics, including pressuring regulators, ghostwriting scientific literature, and misleading consumers such as Hardeman with heavy marketing about the safety of glyphosate-based herbicides.
In the first phase of the trial, Judge Vince Chhabria sharply limited testimony about Hardeman’s medical treatments and the suffering he endured. In this phase, such testimony is allowed.
Jurors also heard from Mary Hardeman, Edwin’s wife, on Friday. In the first phase, which dealt only with evidence pertaining to whether or not Roundup caused Mr. Hardeman’s cancer, the judge rebuked Hardeman’s attorney Aimee Wagstaff for even trying to introduce Mary Hardeman to jurors and for describing the couple’s courtship and long marriage.
Also taking the stand was plaintiff’s expert witness Chadi Nabhan, chief medical officer for Cardinal Health in Chicago.
The first witness Friday was Monsanto toxicologist Donna Farmer, whose testimony was presented via video. Hardeman’s attorneys started her testimony on Wednesday. There was no court held Thursday.
Next week, Hardeman’s attorneys plan to play video testimony of former Monsanto Chairman and CEO Hugh Grant.
March 21, 2019
Jury members and legal counsel for the parties in Hardeman V. Monsanto were taking a break on Thursday as Judge Vince Chhabria handles other calendar items, including a motion in a separate lawsuit against Monsanto.
The trial resumes Friday morning, with closing arguments expected by the middle of next week.
With the day off today, attorneys for plaintiff Edwin Hardeman celebrated their first-phase trial victory Wednesday night. The week-long wait for the verdict finding that Monsanto’s Roundup caused Hardeman’s cancer had rattled their nerves.
Officials with Monsanto owner Bayer AG had little to celebrate after the jury verdict further eroded investor confidence, pushing share prices lower. The company’s shares already took a huge hit in August after the jury in the first Roundup cancer trial found that the company’s herbicides caused cancer.
March 20, 2019
Following Tuesdays’ jury finding that Roundup use caused plaintiff Edwin Hardeman’s cancer, the second phase of Hardeman V. Monsanto began this morning in California with a shift away from the scientific evidence and on to allegations that Monsanto has spent years suppressing information about the dangers of its glyphosate-based herbicides.
While Hardeman’s lead counsel Aimee Wagstaff was sanctioned in the first phase for barely giving a nod to such claims, in the second phase the focus is squarely on Monsanto’s conduct in studying, manufacturing and selling its popular Roundup products.
“Roundup has been Monsanto’s billion-dollar baby for decades,” Wagstaff said in an interview Wednesday morning. “The evidence demonstrates Monsanto was far more interested in protecting its bottom line or Roundup’s continued sales than making sure the product was safe. In the meantime, people like Mr. Hardeman got cancer and are dying. We are confident the jury will do the right thing in phase two and send Monsanto a message it needs to hear.”
The jury verdict finding Roundup causes cancer is the second such jury determination in seven months, and indicates Bayer, which purchased Monsanto last summer, has a hard road ahead defending against thousands of plaintiffs who all claim exposure to Monsanto’s glyphosate-based herbicides caused their cancers. Another trial gets underway next week in Oakland, California.
Bayer shares fell more than 12% in early trading Wednesday after the jury’s determination that Roundup was a “substantial factor” in causing Hardeman’s cancer.
Judge Vince Chhabria plans to continue to keep a tight rein on what the jury will be allowed to hear, however. He generally has agreed with requests from Monsanto to prohibit evidence about Monsanto’s actions after 2012, the year Hardeman stopped using Roundup. The rationale is that the company’s actions after the plaintiff stopped using the product have no bearing on Hardeman’s development of non-Hodgkin lymphoma.
Plaintiff’s attorneys argued that there are many internal Monsanto emails dated after 2012 that illustrate a pattern of behavior, showing how the company has long worked to ghostwrite scientific papers, manipulate regulators and attack and silence critics. That evidence is critical to establishing Monsanto’s liability and damages, the plaintiff’s attorneys have told Chhabria.
In a discussion Tuesday about the evidence for the second phase, the judge indicated he sees a middle ground, saying “conduct that occurred post-2012 that sheds light on what was happening pre-2012 should generally be admissible, potentially subject to a limiting instruction if Monsanto wants it.” But he also said this: “Even if post-2012 conduct sheds light on what was happening pre-2012, there may be other reasons to exclude it.”
Notably, the judge is barring evidence about Monsanto’s efforts to discredit the International Agency for Research on Cancer, which in 2015 classified glyphosate as a probable human carcinogen. Monsanto spent millions of dollars on various secretive tactics aimed at discrediting IARC. Documents that have come to light through discovery show the company discussing using third parties who appeared to be independent of Monsanto to publicly criticize IARC and push Monsanto propaganda points. The internal Monsanto records show the company’s role in ghostwriting an article that appeared on Forbes’ contributors’ platform, and they show that the company was behind a story published by Reuters in 2017 that falsely claimed an IARC scientist withheld information from IARC that would have changed the classification.
The judge is also barring evidence about how Monsanto worked to discredit French scientist Gilles-Éric Séralini after publication of his 2012 study findings about rats fed water dosed with Roundup. Internal Monsanto records show a coordinated effort to get the Seralini paper retracted, including this email string.
Monsanto employees apparently were so proud of what they called a “multimedia event that was designed for maximum negative publicity” against Seralini that they designated it as an “achievement” worth recognition.
The plaintiff’s attorneys will also not be able to introduce evidence of Monsanto’s efforts to kill a toxicity review of glyphosate by the Agency for Toxic Substances and Disease Registry.
The judge is allowing portions of a 2015 internal Monsanto email in which company scientist Bill Heydens discusses plans to ghostwrite a series of new scientific papers that will contradict IARC’s classification of glyphosate because in that email, Heydens remarks on how this plan is similar to the ghostwriting of a scientific paper published in 2000 that found glyphosate to be safe.
See all updates at Trial Tracker blog.
March 19, 2019
A unanimous jury decision on Tuesday handed a first-round victory to plaintiff Edwin Hardeman, as the six jury members found that Hardeman’s exposure to Roundup was a “substantial factor” in causing his non-Hodgkin lymphoma.
The jury decision means the trial now moves into a second phase in which jurors will take up the issue of liability and damages.
Jurors deliberated for nearly a week before weighing in on the one question they had to answer in the first phase of the bifurcated trial. U.S. District Judge Vince Chhabria sharply limited the evidence jurors could hear in the first phase to evidence dealing solely with general and specific causation. That meant the first phase was filled with discussions and debates over various scientific studies. The first phase mostly excluded evidence about Monsanto’s alleged actions to control or manipulate the scientific record and claims that Monsanto has worked to suppress evidence of harm with its herbicides. But such evidence will be allowed in the second phase as the jury considers the company’s conduct.
Following the verdict, Judge Chhabria told the jurors about the second phase: “The issues that you will be considering are whether Monsanto is legally liable for the harm caused to Mr. Hardeman and, if so, what the damages should be. So those are the issues that you will begin considering tomorrow.”
The verdict was a significant victory not just for Hardeman, but for the other thousands of plaintiffs around the United States who have sued Monsanto and also allege exposure to the company’s glyphosate-based herbicides caused non-Hodgkin lymphoma. The company already has one loss from last summer’s jury verdict in favor of a dying California groundskeeper. Another case begins next week in nearby Oakland, California.
In response to today’s verdict, Aimee Wagstaff of Andrus Wagstaff, PC and Jennifer Moore of Moore Law Group, PLLC, co-trial counsel for the Plaintiff, issued the following statement:
“Mr. Hardeman is pleased that the jury unanimously held that Roundup caused his non-Hodgkin’s lymphoma. Now we can focus on the evidence that Monsanto has not taken a responsible, objective approach to the safety of Roundup. Instead, it is clear from Monsanto’s actions that it does not particularly care whether its product is in fact giving people cancer, focusing instead on manipulating public opinion and undermining anyone who raises genuine and legitimate concerns about the issue. We look forward to presenting this evidence to the jury and holding Monsanto accountable for its bad conduct.”
Bayer issued a statement as well: “We are disappointed with the jury’s initial decision, but we continue to believe firmly that the science confirms that glyphosate-based herbicides do not cause cancer. We are confident the evidence in phase two will show that Monsanto’s conduct has been appropriate and that the company should not be liable for Mr. Hardeman’s cancer. Regardless of the outcome, however, the decision in phase one of this trial has no impact on future cases and trials because each one has its own factual and legal circumstances. We have great sympathy for Mr. Hardeman and his family, but an extensive body of science supports the conclusion that Roundup™ was not the cause of his cancer. Bayer stands behind these products and will vigorously defend them.”
Jurors will continue deliberating today, while lawyers for both sides were busy preparing for a second phase in the event the jury finds for plaintiff Edwin Hardeman in this first phase. As part of the preparation, lawyers for both sides have been jockeying over many issues, including what witnesses will and will not be allowed to testify about in a second phase, what type of liability Hardeman’s lawyers can argue, and even how much time Hardeman’s attorneys should be allowed to present their evidence.
Judge Chhabria set specific parameters for how much time each side would have for the trial in total, and Hardeman’s lawyers used much more of their time than did Monsanto’s lawyers during the first phase. As it stands, Hardeman’s side has but 7-1/2 hours left while Monsanto has more than 18 hours left.
Judge Chhabria said he would consider adding some time for the plaintiff, given that side had the burden of proof and had used a good deal of time explaining many scientific principles to the jury necessary for them to understand evidence put on by both sides.
Monsanto attorney Brian Stekloff said that Hardeman’s attorneys had not been as efficient as they could have been, giving a two-hour opening in the first phase. “I don’t know if that was necessary,” he told the judge.
Hardeman’s attorneys have also made it clear that they will be putting on a good deal of evidence about Monsanto’s knowledge of the dangers of its Roundup formulations. “Plaintiff intends to introduce even more evidence in Phase 2 that Roundup is more dangerous than glyphosate because surfactants increase the danger of glyphosate exponentially,” plaintiff’s attorneys told the judge.
Chhabria has agreed – over Monsanto’s objections – to allow Hardeman’s attorneys to proceed in the second phase with a “design defect” argument, though with several caveats.
Meanwhile, yet another new study has been published showing links between glyphosate herbicides and non-Hodgkin lymphoma. The study analyzes data from more than 300,000 farmers and agricultural workers from studies done in France, Norway, and the United States. The researchers said that they found “elevations in risks” of non-Hodgkin lymphoma associated with certain insecticides and with glyphosate herbicides. With respect to glyphosate, the specific type of non-Hodgkin lymphoma linked to glyphosate exposure was diffuse large B-cell lymphoma, the same type of cancer Hardeman has.
March 18, 2019
Today marks the beginning of the fourth week of the Hardeman V. Monsanto Roundup cancer trial, and jurors were still deliberating over the sole question that they must answer to close out the first phase of the trial and potentially move into the second phase.
The six jurors let Judge Vince Chhabria know on Friday that as they deliberate they want to have plaintiff Edwin Hardeman’s testimony read back to them. Chhabria said that would take place first thing Monday morning.
At Monsanto’s request, the trial has been divided into two phases. The first phase deals only with the question of whether or not jurors find that Hardeman’s exposure to Roundup was a “substantial factor” in causing his non-Hodgkin lymphoma.
If the jurors unanimously answer yes to that question the trial moves into a second phase in which Hardeman’s attorneys will put on evidence aimed at showing that Monsanto knew of the cancer risks of Roundup but actively worked to hide that information from consumers, in part by manipulating the scientific record.
If the trial does go to the second phase, the plaintiff will lack one key expert witness – Charles Benbrook – after the judge ruled that he would sharply limit Benbrook’s testimony regarding Monsanto’s corporate conduct.
Hardeman’s lead counsel Aimee Wagstaff and her co-counsel Jennifer Moore plan to spend the day in the courthouse Monday as the jury deliberates after again raising the ire of Judge Chhabria. Chhabria was annoyed Friday that the lawyers took longer than he expected to get to the courthouse after they were notified that all parties must convene to address the jurors’ request to hear Hardeman’s testimony again.
Chhabria sanctioned Wagstaff the first week of the trial for what he called “several acts of misconduct duringher opening statement.” One of her transgressions, according to Chhabria, was spending too much time telling jurors about her client and his cancer diagnosis.
March 15, 2019
(UPDATE 3:30 pm Pacific time- Jurors retiring for the day after failing again to reach a verdict. Testimony from plaintiff Edwin Hardeman to be read back to jurors Monday morning at their request. Judge Chhabria remains irritated with plaintiff’s attorneys, annoyed at the time it took them to arrive at court Friday afternoon.)
Jurors were back in court today resuming deliberations after a day off on Thursday. There is but one question they must answer: “Did Mr. Hardeman prove by a preponderance of the evidence that his exposure to Roundup was a substantial factor in causing his non-Hodgkin’s lymphoma?”
The judge admonished the jurors that if they pondered that question on their day off they should not seek out information about the safety of Roundup or read news articles or scientific studies about the matter. They should confine themselves to consideration only of evidence presented at trial.
Interestingly, yesterday in the San Francisco area google ads were popping up on smart phones and computers promoting the safety of Roundup. One site in particular – Weeding Wisely – was coming in at the top of some Google sites, offering such headlines as “Fear of ‘chemicals’ results from misunderstanding” and “Look at the science, not scare tactics, of glyphosate herbicide.” Also this one – “Weed Killer Hype Lacks Scientific Support.”
The google ad renewed fears by some that Monsanto and Bayer may be engaging in geofencing, a term used to describe a tactic for delivering specific messaging to individuals within specific geographic areas.
Last month Hardeman attorney Jennifer Moore alerted Judge Chhabria to fears held by Hardeman’s legal team that Monsanto might have engaged in geofencing before and would do so again to try to influence jurors. Moore told the judge they were considering “whether we were going to file a temporary restraining order to prohibit Monsanto from any kind of geofencing or targeting jurors through social media or pay-per-click ads. And so I would just ask that that not be done. We’re not doing it on our side, but I just don’t want any targeting of jurors, their social media or Internet means.”
Chhabria replied “Isn’t it, like — doesn’t it go without saying that it would be totally inappropriate? Obviously nobody on either side — nobody within a hundred miles of either side may attempt to target any juror or prospective juror with any sort of messaging.”
Geofencing is a popular advertising technique that delivers specific messaging/content to anyone within a specific geographic area designated by the company or group paying for the ad. The area can be very small, a mile radius around a specific address, for instance. Or it can be much larger. Anyone within that designated area using an app on a smart phone – such as a weather app or a game – would then be delivered the ad.
Whether or not Monsanto did or would use the tactic to try to influence jurors would be almost impossible to prove. Monsanto attorney Brian Stekloff responded to the concerns raised last month and the judge’s warning about geofencing by saying “I understand that they may have allegations, but I’m not accepting those allegations….. of course we will abide by that…”
The placement of google ads for certain search terms does not necessarily mean anyone was targeting jurors with geofencing. And it’s worth noting that google ad buys have been – and remain – a popular strategy employed by plaintiffs’ attorneys seeking new Roundup clients.
March 14, 2019
Jurors have the day off today but the lawyers do not. Chhabria is holding a hearing with attorneys for both sides at 12:30 pm Pacific time to discuss the scope of the second phase, if a second phase is held.
Among the issues to be discussed, plaintiff’s lawyers are renewing their request to be able to present testimony about Monsanto’s efforts to discredit French scientist Gilles-Éric Séralini after publication of his 2012 study findings about rats fed water dosed with Roundup. Internal Monsanto records show a coordinated effort to get the Seralini paper retracted, including this email string.
Monsanto employees apparently were so proud of what they called a “multimedia event that was designed for maximum negative publicity” against Seralini that they designated it as an “achievement” worth recognition.
Evidence demonstrates “that the Séralini story is central to Monsanto’s failure to test as well as its efforts to manipulate public opinion,” Edwin Hardeman’s attorneys argue. As well, they say in their court filing, “the testimony reveals that Monsanto responded to the study by attempting to undermine and discredit Dr. Séralini, which is further evidence “that Monsanto does not particularly care whether its product is in fact giving people cancer,” but “[focuses] instead on manipulating public opinion and undermining anyone who raises genuine and legitimate concerns about the issue.” ”
“The Séralini Story is Relevant to Monsanto’s Efforts to Undermine Scientists Raising Concerns about Glyphosate,” Hardeman’s attorneys argue.
Lawyers for Hardeman want expert witness Charles Benbrook to be allowed to testify about this example of Monsanto’s corporate conduct “post-use,” meaning actions by Monsanto that took place after Hardeman stopped using Roundup.
Judge Chhabria earlier ruled that the evidence regarding efforts to discredit Seralini could not be introduced because those efforts took place after Hardeman’s Roundup use ended and so would not have impacted him.
On Wednesday, Chhabria also ruled that evidence of Monsanto’s efforts to discredit the International Agency for Research on Cancer after it classified glyphosate as a probable carcinogen would be excluded from a second phase of the trial because it took place after Hardeman’s Roundup use ended.
Even as both sides prepare for a second phase, the lack of a quick jury decision does not bode well for Hardeman. His attorneys were hoping for a quick unanimous decision by the jurors in their favor. Any decision by the jury must be unanimous or the case can be declared a mistrial.
March 13, 2019
(UPDATE 5:45 p.m. Pacific time – Jury has retired for the evening with no verdict. Deliberations to resume Friday.)
Judge Chhabria instructed lawyers for both sides to be ready to present opening statements for the second phase of the trial today if jurors come back this morning with a verdict. The second phase only occurs, however, if the jurors first find unanimously for plaintiff Edwin Hardeman in the first phase, which dealt solely with the question of causation.
The question that must be answered on the jury verdict form is fairly straightforward:
Did Mr. Hardeman prove by a preponderance of the evidence that his exposure to Roundup was a substantial factor in causing his non-Hodgkin’s lymphoma?
It will take all six jurors to answer yes to that question in order for the trial to continue. If the jurors are split in how they answer the question, the judge has said he would declare a mistrial.
The judge guided the jurors in how to consider that question and how to evaluate the evidence presented to them in a 17-page list of instructions.
The jurors are allowed to request to look at specific exhibits and pieces of evidence but they are not allowed to see transcripts of the previous days of testimony. The judge said that if jurors want to review the testimony of a particular witness they can ask to have that witness’s testimony, or a portion of that witness’s testimony, read back to them but the lawyers and judge would need to be present for that.
If jurors return a verdict in favor of Hardeman on Wednesday afternoon, opening statements for phase two will take place Friday.
Chhabria kept a tight rein on closing arguments Tuesday, prohibiting Hardeman’s lead attorney Aimee Wagstaff from showing a photo of Hardeman and his wife in her closing slide presentation. He told Wagstaff that the photo was “not relevant” and said that he did not “need to hear
further argument about that.” When she asked for his rationale, Chhabria simply repeated his belief that it was not relevant.
Monsanto filed a motion for a directed verdict on Tuesday, arguing that Hardeman has presented “insufficient general causation evidence,” and specifically attacked the credibility of pathologist Dennis Weisenburger, one of Hardeman’s expert witnesses. Judge Chhabria denied the motion.
Separately, the upcoming Pilliod V. Monsanto case in Alameda County Superior Court in Oakland was looking at a sizable jury pool of more than 200 people. They plan to select 17, with 12 jurors and five alternates. The case may not begin until March 27 or March 28 due to the lengthy jury selection process.
March 12, 2019
(UPDATE, 3 p.m. Pacific Time – Closing arguments are completed. The jury has received instructions for deliberations.)
Closing arguments got underway Tuesday. With the first phase of Hardeman V. Monsanto winding down plaintiff Edwin Hardeman’s attorneys issued a strong objection to Judge Vince Chhabria’s plans for instructing the jury about how to consider the issue of causation.
The way Chhabria worded his instructions makes it “impossible” for Hardeman to prevail, attorney Jennifer Moore wrote in a letter to the judge. California law sets for instructions that causation is determined when a substance or action is a “substantial factor” in causing an outcome. But the judge’s instructions would require jurors to find that Roundup was the sole factor that caused Hardeman’s non-Hodgkin lymphoma, Moore argued.
Judge Chhabria replied by saying he could not give “the standard California multiple causation instruction” because plaintiff’s attorneys failed to present evidence that Hardeman’s cancer was due to multiple factors. He did say, however, that he could modify the instructions slightly to try to address the concerns. In the final instruction Chhabria added wording that said a substantial factor “does not have to be the only cause of the harm.”
Monsanto has argued that Hardeman’s cancer is not due to exposure to glyphosate-based herbicides but more likely due to the hepatitis C Hardeman had for many years.
This is also an interesting little nugget in the jury instructions:
Meanwhile, in the upcoming Pilliod V. Monsanto case, motion hearings and discussion of hardship claims for prospective jurors begins next week in Alameda County Superior Court in Oakland, not far from downtown San Francisco where the Hardeman case may still be underway if it goes to the second phase.
Opening statements in the Pilliod trial could begin March 21 but more likely will take place March 25 or later depending on how long the jury selection process takes.
March 11, 2019
Monsanto’s legal team on Monday presented testimony from Dr. Alexandra Levine, a hematologist/oncologist with City of Hope Comprehensive Cancer Center, seeking to convince the jury that exposure to glyphosate-based herbicides was not a cause of Hardeman’s cancer, and that a more likely factor is the hepatitis C Hardeman had for many years. Levine testified that she has seen “many, many, thousands of patients with non-Hodgkin’s lymphoma,” and she is in fact considered a specialist in that specific disease.
Judge Chhabria said last week that he would like to see this first phase of the trial wrapped up early this week, meaning the case should be with the jury soon. A verdict requires all six jurors to be unanimous in their finding regarding whether or not Hardeman’s exposure to Roundup “was a substantial factor” in causing his cancer. The judge will define for jurors what that means. (See Friday’s entry for more details.)
If the jury does not unanimously decide either for Hardeman or Monsanto then the case would be a mistrial. Chhabria has also said that if that happens he is considering retrying it in May.
If the jury finds for Hardeman on causation, the trial would quickly move into Phase II using the same jury. And that is where things will really start to get interesting. Hardeman’s attorneys plan to call several Monsanto executives for testimony, including former Monsanto Chairman and CEO Hugh Grant. Grant spent more than 35 years at the company and was named CEO in 2003. He led the company until its acquisition by Bayer AG last summer.
Additionally, lawyers for Hardeman plan to call Roger McClellan, editor of the scientific journal Critical Reviews in Toxicology (CRT), which published a series of papers in September 2016 that rebuked the finding by the International Agency for Research on Cancer (IARC) finding that glyphosate was a probable human carcinogen. The papers purported to be written by independent scientists who found that the weight of evidence showed the weed killer was unlikely to pose any carcinogenic risk to people.
However, internal Monsanto documents show that the papers were conceptualized from the outset as a strategy by Monsanto to discredit IARC. One of Monsanto’s top scientists not only reviewed the manuscripts but had a hand in drafting and editing them, though that was not disclosed by CRT.
Hardeman’s lawyers additionally said they plan to call Doreen Manchester, of CropLife America, the agrochemical industry’s lobbying organization. Manchester’s role at CropLife has been helping “lead federal and state litigation to support pesticide regulatory issues.”
March 8, 2019
Lawyers for plaintiff Edwin Hardeman rested their case on Friday, giving Monsanto a turn to put on its own witnesses in this first phase of the case.
Judge Chhabria has indicated he would like to see the first phase of the trial wrapped up by early next week, and he has ordered attorneys for both sides to be ready to discuss and debate two proposed sets of instructions for him to give the jury for deliberations regarding the definition of “causation.”
For Hardeman’s case to be allowed to proceed to a Phase 2 in which damages could be awarded, the group of six jurors must be unanimous in finding that Roundup caused his non-Hodgkin lymphoma, so the judge’s instructions about how the element of causation is defined is a critical point.
The judge’s first option reads as follows: “To prevail on the question of medical causation, Mr. Hardeman must prove by a preponderance of the evidence that Roundup was a substantial factor in causing his non Hodgkin’s lymphoma. A substantial factor is a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor. If you conclude that Mr. Hardeman has proven that his exposure to Roundup was a substantial factor in causing his NHL, then you should find for Mr. Hardeman even if you believe that other risk factors were substantial factors as well.”
The judge’s second option has the same first three lines as the first option but then adds this: “Conduct is not a substantial factor in causing harm if the same harm would have occurred without that conduct.”
Option 2 also changes the last line of the instruction to say: “However, if you conclude that Mr. Hardeman has proven that his exposure to Roundup was sufficient on its own to cause his NHL, then you should find for Mr. Hardeman even if you believe that other risk factors were also sufficient to cause his NHL.”
A big part of Monsanto’s defense is to suggest that other factors could be the cause of Hardeman’s cancer, including a struggle with hepatitis C. Hardeman’s team has said that he was cured in 2006 of hepatitis C but Monsanto’s team argues that cell damage from the hepatitis was a potential contributor to his cancer.
Monsanto expert witness Dr. Daniel Arber in his pre-trial report wrote that Hardeman has many risk factors for NHL, and said: “There is no indication that Roundup played any role in the development of his NHL, and there are no pathological features to suggest a cause of his lymphoma.”
Judge Chhabria has ruled that Arber cannot testify that the hepatitis C caused Hardeman’s NHL but ruled Thursday that Arber can explain that Hardeman’s lengthy exposure to hepatitis C left him at risk of developing NHL even after his virus had been successfully treated.
Several new documents have been filed by both parties related to evidence and jury instructions. See them at Monsanto Papers Hardeman page.
March 7, 2019
Judge Vince Chhabria issued a stinging response to Monsanto’s motion for summary judgment on Thursday, stating in his order that there was plenty of evidence that the company’s glyphosate herbicides – namely Roundup – could have caused plaintiff Edwin Hardeman’s cancer.
“To take just one example,” the judge wrote, “the De Roos (2003) study supports a conclusion that glyphosate is a risk factor for NHL, yet Monsanto fails to mention it inits motion. Monsanto cannot prevail on a motion for summary judgment by simply ignoring large swaths of evidence.”
He also said there was “sufficient evidence” to support a punitive damages award against Monsanto if the jury finds for Hardeman.
“The plaintiffs have presented a great deal of evidence that Monsanto has not taken a responsible, objective approach to the safety of its product,” Judge Chhabria stated in his ruling.
The judge concluded: “Although the evidence that Roundup causes cancer is quite equivocal, there is strong evidence from which a jury could conclude that Monsanto does not particularly care whether its product is in fact giving people cancer, focusing instead on manipulating public opinion and undermining anyone who raises genuine and legitimate concerns about the issue.”
The historic win last summer of California groundskeeper Dewayne “Lee” Johnson over Monsanto and its new owner Bayer made news around the world and made some of Johnson’s attorneys virtual celebrities in legal circles, garnering them awards and international notoriety.
But behind the scenes of victory, the aftermath of the first-ever Roundup cancer trial has plunged Johnson’s attorneys into a bitter legal battle of their own, with allegations swirling of self-dealing, drug use and “disloyal and erratic conduct.”
In a lawsuit and counterclaim filed in Orange County Circuit Court in Virginia, The Miller Law Firm accuses attorney Tim Litzenburg, someone who has portrayed himself as Johnson’s lead trial attorney, of stealing the firm’s confidential client information with the intent of setting up his own separate law firm, even as he was failing to show up for preparatory meetings for Johnson’s trial. The complaint also alleges that Litzenburg admitted to using drugs during the Johnson trial.
“Multiple members of Mr. Johnson’s trial team observed Mr. Litzenburg acting disoriented and frantic at court,” the complaint states. “When he was permitted to argue a motion before the Court…. his delivery was jumbled and incoherent. Members of the trial team were concerned that Mr. Litzenburg was actively under the influence of drugs in the courtroom…”
The trial itself ended up being handled by other attorneys and Litzenburg was not present for the close of the trial nor the day that the jury returned a $289 million verdict against Monsanto.
Roughly one month later, on September 11, 2018, The Miller Firm terminated Litzenburg’s employment, the lawsuit states.
Litzenburg, who is now affiliated with the firm of Kincheloe, Litzenburg & Pendleton, did not respond to a request for comment, other than to say it was “an unfortunate distraction” from his work at his new firm. In past comments Litzenburg described his separation from The Miller Firm as due to a misunderstanding with Mike Miller, one of the firm’s founders.
The following are excerpts from the litigation:
Litzenburg asserts that The Miller Firm’s claims against him are “salacious and often purely fictional” and are due to The Miller Firm’s fears that they would lose Roundup clients to Litzenburg’s new firm. He claims he was offered $1 million by firm founder Mike Miller to walk away from his Roundup clients but declined the offer.
March 6, 2019
Expert witness for the plaintiff Dr. Dennis Weisenburger was being cross examined Wednesday by Monsanto attorneys after extensive direct testimony for cancer victim Edwin Hardeman. Hardeman’s attorneys said they were nearing the end of the first phase of presenting their case.
Weisenburger, a pathologist specializing in studying the causes of non-Hodgkin lymphoma, testified Tuesday for more than four hours, walking jurors through scientific evidence he said shows Monsanto’s Roundup herbicide is a “substantial cause” of cancer in people who are exposed. He followed testimony by Hardeman, who spoke for just less than an hour under direct examination about his use of Roundup for decades before his cancer diagnosis in 2016.
The Guardian recapped Hardeman’s testimony in which he said that he sprayed Roundup once a month for three to four hours at a time around his property and sometimes felt like chemical mist blowing onto his skin.
Plaintiff’s attorneys expected to rest their case today but Weisenburger’s testimony ran so long that they now plan to rest the case when court resumes on Friday. No proceedings are scheduled for Thursday.
See documents pertaining to testimony on the Monsanto Papers page.
Separately, lawyers gathered in nearby Alameda County Superior Court for a “Sargon” hearing ahead of the March 18 start of Pilliod V. Monsanto.The Pilliod case will be the third to go to trial challenging Monsanto and its new owner Bayer over alleged carcinogenicity of Roundup products. See Pilliod case documents at this link.
March 5, 2019
After a break in testimony Monday due to a sick juror, cancer victim Edwin Hardeman is slated to take the stand today in the ongoing Roundup cancer trial in federal court in San Francisco. His testimony is expected to take less than an hour.
Judge Chhabria indicated the trial will proceed today without the woman juror if she remains ill. Only six jurors are required for the case to move forward and currently there are seven.
For Hardeman’s direct examination, his attorneys plan to bring in to court a 2-gallon, pump-up sprayer to demonstrate how he applied Roundup to his property for years; how his repeated exposure actually occurred. Monsanto attorneys on Monday sought to nix the sprayer demonstration plan, arguing that it would “invite the jury to make any sort of speculation about how the use of the sprayer could have influenced exposure…” but Chhabria sided with Hardeman’s lawyers, saying he would allow a brief demonstration with the sprayer. He even made a bit of a joke:
THE COURT: I mean, one helpful bit of guidance I can provide now is that the Plaintiffs are not allowed to spray you with the sprayer.
MS. MATTHEWS (Monsanto attorney): Okay.
THE COURT: And they are definitely not allowed to spray me with the sprayer.
In another move applauded by Hardeman’s legal team, Chhabria said Monday that testimony about the “Parry report” can be presented to jurors. Monsanto objected but the judge agreed with plaintiff’s counsel that “the door has been opened to the Parry report” by Monsanto’s efforts to contest evidence of genotoxicity with glyphosate herbicides. Dr. James Parry was a consultant hired by Monsanto in the 1990s to weigh in on genotoxicity concerns being raised at the time by outside scientists. Parry’s report recommended that Monsanto do additional studies to “clarify the potential genotoxic activity” of glyphosate.
See this snippet from Monday’s discussion of this topic:
THE COURT: Okay. Well, Monsanto has a report from a doctor
that it hired that — that raised concerns about the
genotoxicity of glyphosate. So it seems to me that you are — you have already said something to the jury — even before we get to your second
point, you have already said something to the jury that is contradicted to a degree by an internal Monsanto document. And so why shouldn’t they be able to cast doubt on Monsanto’s assertion to the jury that genotox doesn’t matter bye stablishing that Monsanto hired a doctor to — or hired an
expert to look at the issue of genotoxicity in the late ’90s and the expert raised concerns about genotoxicity? … I mean, Monsanto itself investigated genotox – hired somebody to investigate genotox, and that person concluded that genotox — that it’s possibly genotoxic.
After Hardeman’s testimony, next up with be expert witness Dennis Weisenburger, professor of the Pathology Department of the City of Hope Medical Center in Omaha, Nebraska.
March 4, 2019
Plaintiff Edwin Hardeman was scheduled to take the stand today along with expert witness Dennis Weisenburger, professor of the Pathology Department of the City of Hope Medical Center in Omaha, Nebraska.
But one juror apparently is too ill to endure the long trial day so testimony is being postponed.
Weisenburger, who specializes in the study of non-Hodgkin lymphoma (NHL), was a key witness for the general pool of plaintiffs a year ago when he testified before Judge Vince Chhabria as the judge weighed then whether or not to let the mass of Roundup cancer claims move forward. Weisenburger has published over 50 papers in peer-reviewed journals about the causes of NHL.
Before news of the trial delay, plaintiffs had expected to rest their case on Tuesday, with Monsanto’s witnesses taking the stand by Wednesday. The whole first phase of the trial was expected to have been concluded by Friday or Monday, lawyers said.
The case will only move into a second phase if the jurors first agree that Hardeman’s exposure to Roundup was the cause of his non-Hodgkin lymphoma.
Hardeman used Roundup from to treat weeds and overgrowth on a 56-acre property he and his wife owned in Sonoma County. He reported using Roundup and/or related Monsanto brands from 1986 to 2012. Hardeman was diagnosed with B-cell NHL in February of 2015.
Without the jury present the judge focused on discussion of several pieces of evidence Hardeman’s attorneys want to introduce in the first phase, arguing that Monsanto “opened the door” to evidence that otherwise was not allowed. See the plaintiff’s discussion of introducing evidence related to a controversial mouse study from the 1980s, and evidence pertaining to genotoxicity concerns raised by a Monsanto consultant, and in contrast, Monsanto’s position on the mouse study and the genotoxicity issue.
People around the world are following the trial proceedings, and the judge’s decision last week to sanction Hardeman’s lead attorney Aimee Wagstaff reportedly triggered a flood of emails from lawyers and other individuals offering support and expressing outrage at the judge’s action.
March 1, 2019
Here is an interesting tidbit to chew on over the weekend. In light of Judge Vince Chhabria’s unusual handling of the first Roundup cancer lawsuit to come to trial in federal court, (see previous entries for bifurcation and other background) and the vitriol with which he has been addressing plaintiff Edwin Hardeman’s legal counsel, many observers have asked – what gives? The bifurcation, his decision to sanction plaintiff’s lead counsel, his threat to dismiss the case entirely, and his repeated comments about how “shaky” the plaintiffs’ evidence is, obviously appear to favor Monsanto’s defense, at least in the early stages of the trial.Could there be some connection between Chhabria and Monsanto?
Chhabria has a pretty stellar background. Born and raised in California, he obtained his law degree in 1998 from the University of California, Berkeley School of Law, graduating with honors. He served as law clerk for two federal judges and for Supreme Court Justice Stephen Breyer and worked as an associate for two law firms before joining the San Francisco City Attorney’s Office where he worked from 2005 to 2013. He was nominated by President Obama for the seat he holds now in the summer of 2013.
But interestingly, one of those law firms where Chhabria worked has raised eyebrows. Covington & Burling, LLP, is a well-known defender of a variety of corporate interests, including Monsanto Co. Covington was reportedly instrumental in helping Monsanto defend itself against dairy industry concerns over the company’s synthetic bovine growth hormone supplement, known as rBGH (for recombinant bovine growth hormone) or the brand name Posilac.
Chhabria worked at the firm between 2002-2004, a time period when Monsanto’s legal battle over Posilac was in high gear. The firm was reportedly involved in the issue in part by “sending letters to virtually all U.S. dairy processors, warning that they faced potential legal consequences if they labeled their consumer products as “rBGH-Free.”
Covington is perhaps best known for its work for the tobacco industry. A judge in Minnesota in 1997 ruled that the firm was willfully disregarding court orders to turn over certain documents pertaining to claims that the tobacco industry engaged in a 40-year conspiracy to mislead the public about the health impacts of smoking and hide damaging scientific research from public view.
Shortly before Obama selected Chhabria for his federal judgeship, an array of former Covington & Burling attorneys took spots in the administration, including Attorney General Eric Holder and deputy chief of staff Daniel Suleiman. It was reported that employees of the law firm contributed more than $340,000 to Obama’s campaign.
Chhabria’s tenure at Covington was short, to be sure. There is no apparent evidence Chhabria ever represented Monsanto’s interests directly. But he is also no stranger to the world of corporate power and influence. How those dots connect in this case is so far unclear.
February 28, 2019
Thursdays are ‘dark’ days for the Roundup cancer trial, meaning lawyers, jurors and witnesses have a day to catch their breath and regroup. And after the fast and furious first three days of the trial, they probably can use the break.
After losing another juror on Wednesday morning, the trial proceeded with the testimony of plaintiff’s expert witness and former U.S. government scientist Christopher Portier. The testimony was provided via a video recorded in Australia last week.
During an afternoon break in Portier’s testimony, Judge Chhabria took a few moments to explain himself for certain comments he made to plaintiff’s lead counsel Aimee Wagstaff on Tuesday before sanctioning her for what he said was misconduct in her opening statement to the jury. (see prior blog entries for details.)
The following is a brief excerpt:
THE COURT: Before we bring in the jury, I want to
make a quick statement to Ms. Wagstaff.
I was reflecting on the OSC hearing last night, and I
wanted to clarify one thing. I gave a list of reasons why I
thought your conduct was intentional, and one of those reasons
was that you seemed to have prepared yourself in advance for —
that you would get a hard time for violating the pretrial
rulings. In explaining that, I used the word “steely,” and I
want to make clear what I meant by that.
I was using steely as an adjective for steeling yourself,
which is to make yourself ready for something difficult and
unpleasant. My point was that I perceived no surprise on your
part; and since lawyers typically seem surprised when they are
accused of violating pretrial rulings, that was relevant to me
on the issue of intent. But “steely” has another meaning as
well, which is far more negative. And I want to assure you
that that’s not the meaning that I was using nor was I
suggesting anything about your general character traits.
So I know you continue to disagree with my ruling and my
findings about intent, but I wanted to make that point very
MS. WAGSTAFF: Thank you, Your Honor.
February 27, 2019
(UPDATE – Another juror has just been dismissed. One of the seven women jurors has been dismissed in morning proceedings. That leaves one man and six women. A total of six jurors are required and all must be unanimous in their verdict.)
As day three opens in the first federal trial over claims that Monsanto’s Roundup products can cause cancer, U.S. District Judge Vince Chhabria has made it clear that he has no fondness for plaintiff Edwin Hardeman’s legal team.
Chhabria on Tuesday issued a ruling sanctioning Hardeman’s lead counsel Aimee Wagstaff for what the judge deemed as “several acts of misconduct,” fining her $500 and ordering her to provide a list of all others on her team who participated in drafting her opening statement so that those lawyers may also be sanctioned.
At issue – various remarks made by Wagstaff that Judge Chhabria thought exceeded the tight restrictions he has placed on what evidence the jury can hear. Chhabria wants jurors to hear only about scientific evidence without context about Monsanto’s conduct seeking to influence the scientific record and knowledge of certain scientific findings. Additionally, even though there were no restrictions in place pertaining to the introduction of plaintiff Hardeman to the jury, the judge took issue with Wagstaff’s manner of introduction and description of how he came to learn he had non-Hodgkin lymphoma.
In Monday’s proceedings the judge made his anger at Wagstaff clear, interrupting her multiple times as she addressed the jury and ordering her to alter her presentation. He also instructed the jury more than once not to consider what Wagstaff said as evidence.
In court on Tuesday he chastised Wagstaff and said that he knew her actions were intentionally aimed at flouting his directives because she did not wither under his “coming down hard on her” in court Monday during her opening statement.
Below is a portion of those proceedings from Tuesday. (References to Moore mean Jennifer Moore, who is co-counsel on the Hardeman case.)
THE COURT: All arrows point to this being bad faith, including, by the way, Ms. Wagstaff’s reactions to the objections. She was clearly ready for it. She clearly braced herself for the fact that I was going to come down hard on her. And she was — to her credit perhaps, she was very steely in her response to my coming down hard on her because she knew it was coming and she braced herself for that.
MS. MOORE: Well, I — Your Honor, I don’t think that is not fair; and that is based on assumptions on the Court’s part.
THE COURT: That is based on my observations of body language and facial expressions.
MS. WAGSTAFF: Well, actually, Your Honor, I would just like to talk about that for just one moment. The fact that I can handle you coming down in front of a jury should not be used against me. I have been coming in front of you now for, what, three years. So I’m used to this communication back and forth. And the fact that I was prepared for anything that you had to say to me — and that you interrupted my opening statement a few times in a row — should not be used against me. The fact that I have composure when you are attacking me, it should not be used against me.
THE COURT: I was not attacking you. I was enforcing the rules, the pretrial rules.
MS. WAGSTAFF: You just said the fact that I was able to compose myself is evidence of intent, and that is just not fair.
Plaintiffs’ attorneys in the case believe that the judge’s directive to separate the trial into two phases and sharply limit the evidence they can present to the jury is extremely favorable to Monsanto and prejudicial to their ability to meet the burden of proof in the case. They also say that the judge’s guidance on what evidence can come in and what cannot is confusing. And they point out that Monsanto’s attorney also in opening statements introduced evidence that was banned by the judge, though he was not sanctioned.
Below is a bit more from Tuesday’s proceedings:
THE COURT: And that is — that is relevant to intent. That is relevant to bad faith. The fact that the Plaintiffs have made so clear that they are so desperate to get this information into Phase One is evidence that it was not just a mistake that they happen to put this information in their opening statements.
MS. MOORE: Your Honor, I did not say we were desperate. What I was trying to explain is that the way the trial is set up is unusual. And I think, Your Honor, that you recognize that after the bifurcation order came out; that this is a unique situation where you limit a trial when we are talking about product case like this to only science in the first phase, and it has created confusion on both sides of the aisle.
That’s for sure.
Joke of the day – told to me by a lawyer who wishes to remain unnamed:
Q: “Who is Monsanto’s best lawyer?”
A: “Judge Chhabria.”
February 25, 2019
3:30 p.m. –Jury is dismissed by judge but lawyers in Roundup cancer trial still discussing how evidence can or can’t be used. He’s still furious over plaintiff’s lawyer Aimee Wagstaff daring to talk about 1983 @EPA dox showing cancer concerns with glyphosate.
Judge is ripping into Aimee Wagstaff again saying he wants to sanction her $1,000 and maybe the whole plaintiff’s legal team as well. Calling her actions “incredibly dumb.”
2:30p.m. post lunch updates:
- As Monsanto Roundup cancer trial resumes, plaintiff’s expert witness Beate Ritz talks to jurors about risk ratios, confidence intervals & statistical significance of cancer science. Touts the value of meta-analyses. @Bayer
- Dr. Ritz is testifying about the various studies showing increased risk for cancer from glyphosate exposure.
- Plaintiff Edwin Hardeman & his wife watch quietly, but during a break express frustration over how much Judge Chhabria has limited evidence the jury is hearing.
- Sure-fire way to draw an objection from @Bayer Monsanto attorneys at Roundup cancer trial: mention @IARCWHO scientific classification of glyphosate as a probable carcinogen.
Day one of @Bayer Monsanto Roundup cancer trial concludes after lengthy testimony from scientist Beate Ritz walking jurors through research that shows risks of NHL from exposure to glyphosate herbicides. Judge thanks jurors for being attentive; tells them to stay away from media.
Only one day in and Roundup cancer trial is losing a juror. One of the two men on jury claims work hardship; he can’t afford to lose paycheck. That leaves 7 women and 1 man to decide case. Verdict must be unanimous for plaintiff to win.
11:38 a.m.Evidence of the judge’s ire in opening round of federal Roundup cancer trial: pre trial order for plaintiff’s attorney to show cause why she should not be sanctioned by 8 p.m. tonight.
11:10 a.m. Monsanto/Bayer wraps up its opening and now preparing for first witness, plaintiff scientist Beate Ritz. More updates from opening statement:
- Plaintiff’s attorney calls for sidebar as those statements were barred by pre-trial orders but judge overrules her.
- Now Monsanto attorney shows chart saying while glyphosate use has increased over decades, rates of NHL have not. He then says that despite @IARCWHO classification as glyphosate as probable carcinogen @EPA & foreign regulators disagree.
- Defense attorney for Monsanto @Bayer on a roll; telling jurors all about the Agricultural Health Study, which showed no ties between glyphosate and non-Hodgkin lymphoma. Lawyer makes point Monsanto had nothing to do with the study.
10:45 a.m.Now it’s @Bayer Monsanto’s turn for opening statements – attorney Brian Stekloff tells jury “Roundup did not cause Mr. Hardeman’s non-Hodgkin lymphoma.”
- Judge just orders another Monsanto @Bayer slide removed, interrupting defense attorney opening statement. Playing hardball with both sides.
- Plaintiff’s attorney objects to one of Monsanto attorneys slides; judge agrees and slide is removed. Defense attorney making case that Hardeman’s history of Hepatitis C likely to blame for his NHL.
- He tells jurors NHL is common type of cancer and most NHL victims are not Roundup users; there is no test a doctor can run to tell a patient his disease was or was not caused by Roundup.
10:15 updates on opening remarks of plaintiff’s attorney Aimee Wagstaff:
- Judge now threatening to sanction plaintiff’s attorney and pondering if he should refuse to allow jury to see the plaintiff’s slides. @Bayer Monsanto lawyer says yes. Aimee asks to address his concern; judge cuts her off.
- Judge now dismisses jury for break and then RIPS into plaintiff’s attorney – says she has “crossed the line” and is “totally inappropriate” in her opening statements. Says this is her “final warning.” Never a dull moment at the @Bayer Monsanto Roundup cancer trial.
- Judge also tells her to “move on” when she tries to explain that @EPA only assesses glyphosate and not whole product.
- She is allowed brief mention of @IARCWHO classification of glyphosate as probable human carcinogen but judge cuts her off before she can say much.
- In opening statement for @Bayer Monsanto Roundup cancer trial plaintiff’s attorney points to new meta-analysis showing compelling ties to cancer (see Guardian story).
- In opening statement for Roundup cancer trial plaintiff’s attorney reads from 1980s-era @EPA memo “glyphosate is suspect” & goes through the story of how Monsanto engineered a reversal of EPA concerns. Jurors look a little confused by all this science stuff.
9:35 a.m. Now plaintiff attorney telling the story of the 1983 mouse study that caused @EPAscientists to find glyphosate cancer causing… before Monsanto convinced them not to. oops. Judge cuts her off again. Sidebar. @BayerMonsanto has to love this. For more on the 1983 mouse study, see 2017 article, “Of Mice, Monsanto and a Mysterious Tumor.“
9:30 a.m. The main theme this morning is the judge is giving no leeway to the plaintiff’s attorney, via @careygillam:
8:49 a.m. Judge Chhabria is showing an early tight rein on this Roundup cancer trial. He stopped plaintiff’s attorney Aimee Wagstaff within minutes of her opening for a sidebar. Wagstaff opened by introducing the wife of the plaintiff, and began telling the story of their life and Hardeman finding the lump in his neck. The judge interrupted to tell Wagstaff to stick to comments dealing with causation only.
8:10 a.m. “Court is now in session”. Courtroom is packed for opening statements in Roundup cancer trial. Right off the bat, Monsanto Bayer, and plaintiff’s attorneys are already in conflict over evidence to be introduced.
8:00 a.m. And we’re off. Six months after a California jury decided Monsanto’s weed killers caused a groundskeeper’s cancer, another California jury is getting ready to hear similar arguments against Monsanto.
This time the case is being heard in federal court, not state court. Importantly, the judge has agreed with a request from Monsanto to try the case in two phases with evidence of potential negligent and deceptive conduct by Monsanto withheld during the first phase to allow the jury to focus solely on evidence pertaining to the question of whether or not the company’s products were to blame for the plaintiff’s cancer.
Plainitiff Edwin Hardeman suffers from B-cell non-Hodgkin lymphoma, which was diagnosed in February 2015, one month before the International Agency for Research on Cancer (IARC) classified glyphosate, a key ingredient in Monsanto’s Roundup and other herbicide brands, as a “probable human carcinogen.
Hardeman used Roundup products regularly to treat weeds and overgrowth on a 56-acre tract he owned in Sonoma County. Documents filed in federal court pertaining to the Hardeman trial can be found here.
Seven women and two men were selected as jurors to hear the Hardeman case. The judge has said the case should run through the end of March. Yesterday Judge Chhabria denied Monsanto a motion for summary judgement.
February 20, 2019
Lawyers wasted no time Wednesday in selecting the jury for next week’s trial start. The jury is made up of 7 women and two men. For plaintiff Edwin Hardeman to win his case, the jury verdict must be unanimous.
The case is being tried in two phases. If jurors do not find in favor of the plaintiff in the first phase there will be no second phase. See below,January 10, 2019 post, for more explanation on the difference in the two phases.
Ahead of the trial lawyers for both sides have filed a joint list of exhibits they plan to introduce, or “may” introduce, as evidence during the proceedings. The list runs 463 pages and includes records ranging from decades-old EPA memos and email exchanges with Monsanto to more recent scientific studies.
February 19, 2019
With less than a week to go before opening statements in the Feb. 25 federal civil trial over accusations that Monsanto’s glyphosate-based weed killers cause cancer, lawyers for both sides were readying for jury selection that starts Wednesday.
In pre-trial proceedings lawyers for plaintiff Edwin Hardeman and the legal team representing Monsanto, now a unit of Bayer AG, have already been arguing over jury selection based solely on written responses provided by prospective jurors, and many have already been stricken by U.S. District Judge Vince Chhabria for cause.
On Wednesday, attorneys will question the prospective jurors in person. Monsanto’s attorneys are particularly concerned about potential jurors who know about the case that Monsanto lost last summer. In that trial, plaintiff Dewayne “Lee” Johnson won a unanimous jury verdict on claims similar to Hardeman’s – that Monsanto’s herbicides caused his non-Hodgkin lymphoma and that Monsanto failed to warn of the risks. Johnson was awarded $289 million by jurors, but the judge in the case reduced the verdict to $78 million.
The stakes in this case are high. The first loss hit Bayer hard; its share price is down nearly 30 percent since the verdict and investors remain skittish. Another loss in court could provide another blow to the company’s market capitalization, particularly because there are roughly 9,000 other plaintiffs waiting for their day in court.
In preparation for the trial opening on Monday morning, Judge Chhabria said in a Feb. 15 hearing that he will separate out all jury candidates on a Monsanto list who say they have heard about the Johnson case for specific questioning about their knowledge of that case.
Among those already stricken from the jury pool based on their written questionnaires were several people who indicated they had negative perceptions about Monsanto. While the judge agreed with Monsanto’s request to remove those people from the jury pool, he refused a request from plaintiff’s attorneys to strike a prospective juror who said the opposite – the juror wrote that he feels that “they (Monsanto) typically are very honest and helpful to society,” and said he believed Monsanto’s Roundup herbicide was safe.
Judge Chhabria said “I didn’t think anyone in the Bay Area felt that way….”
In other pre-trial action, lawyers from both sides were in Australia preparing for testimony from plaintiff’s expert witness Christopher Portier. Portier is providing video-recorded testimony in advance with direct and cross-examination. He was scheduled to be in court in person for the trial but suffered a heart attack in January and has been advised against the long air travel that would be required to appear in person.
Portier is one of the plaintiff’s star witnesses. He is former director of the National Center for Environmental Health and Agency for Toxic Substances and Disease Registry and a former scientist with the National Institute of Environmental Health Sciences.
In other pre-trial action, Judge Chhabria ruled on Monday on motions from both parties dealing with what evidence would be allowed in and what would be excluded. Chhabria has ruled that there will be a first phase of the trial in which evidence will be limited to causation. If the jury does find that Monsanto’s products caused Hardeman’s cancer there will be a second phase in which evidence may be introduced pertaining to the allegations by plaintiff’s attorneys that Monsanto has engaged in a cover-up of the risks of its products.
- Evidence the plaintiff’s attorneys say shows Monsanto engaged in ghostwriting scientific literature is excluded for the first phase of the trial.
- Evidence or Monsanto’s marketing materials is excluded for both phases.
- Comparisons between Monsanto and the tobacco industry are excluded.
- An email from Monsanto discussing work with the American Council on Science and Health is excluded from the first phase.
- Arguments that glyphosate is needed to “feed the world” are excluded for both phases.
- Certain EPA documents are excluded.
- An analysis by the International Agency for Research on Cancer classifying glyphosate as a probable human carcinogen is “restricted.”
One piece of evidence plaintiff’s attorneys plan to introduce is a new meta-analysis A broad new scientific analysis of the cancer-causing potential of glyphosate herbicides. The study found that people with high exposures to the herbicides have a 41% increased risk of developing non-Hodgkin lymphoma (NHL).
The study authors, top scientists who the Environmental Protection Agency has used as advisers, said the evidence “supports a compelling link” between exposures to glyphosate-based herbicides and increased risk for NHL.
February 8, 2019
With the high-stakes, first federal Roundup cancer trial fast approaching on Feb. 25, lawyers for Monsanto – and its owner Bayer AG – have laid out a long list of evidence and issues they do not want introduced at trial.
Among the things the company does not want presented at trial are the following: Mentions of other litigation against Monsanto; evidence regarding the company’s public relations activities; comparisons to the tobacco industry; information about the company’s association with “controversial products” such as Agent Orange and PCBs; information about Monsanto’s “wealth”; and information about “Bayer’s role in World War II.”
None of the evidence Monsanto wants excluded at trial has any bearing on whether or not its herbicides caused the plaintiff’s non-Hodgkin lymphoma, the company’s attorneys told the judge.
The plaintiffs’ attorneys have their own list of things they’d rather not be presented to the jury. Among them: Information about attorney advertising for plaintiffs in the Roundup litigation; the “unrelated medical history” of plaintiff Edwin Hardeman; and evidence about foreign regulatory decisions.
Meanwhile, on Feb. 6 both parties filed a “joint trial exhibit list” detailing each and every piece of evidence they plan to present – or may present – to the jury. The list runs 314 pages and includes a host of internal Monsanto documents as well as regulatory documents, scientific studies, and reports by various expert witnesses.
Bayer added another member to the Monsanto Roundup defense team. On Feb. 8, Shook Hardy & Bacon attorney James Shepherd filed his notice of appearance in the Roundup Products Liability Litigation in federal court. Shepherd has defended Bayer against various lawsuits, including claims alleging injuries tied to Bayer’s cholesterol-lowering medication, and allegations of harm from an intrauterine device (IUD).
As well, both sides recently filed a joint list of exhibits each plan to introduce at trial, including depositions, photographs, emails, regulatory documents, scientific studies and more. The list runs 320 pages.
Judge Vince Chhabria indicated in a Feb. 4 hearing that if the jury finds for the plaintiff in the first phase of the bifurcated trial, meaning if the jury determines that Monsanto’s herbicides were a cause of Edwin Hardeman’s cancer, the second phase of the trial will begin the following day. That second phase will focus on Monsanto’s conduct and any potential punitive damages.
All the related documents can be found on our Monsanto Papers page.
January 29, 2019
We are less than a month away from the start of the first federal trial in the Roundup products liability litigation, and both sides are loading up the court files with scores of pleadings and exhibits. Included in recent filings are several noteworthy internal Monsanto documents. A few are highlighted below. A more complete posting of the court documents can be found on the main USRTK Monsanto Papers page.
- Get up and shout for glyphosate: Internal Monsanto emails written in 1999 detail the company’s “scientific outreach” work and efforts to develop a global network of “outside scientific experts who are influential at driving science, regulators, public opinion, etc.” The plan called for having people “directly or indirectly/behind the scenes” working on Monsanto’s behalf. The company wanted “people to get up and shout Glyphosate is Non-toxic,” according to the email thread. For the plan to work they “may have to divorce Monsanto from direct association with the expert or we will waste the $1,000/day these guys are charging.”
- This intriguing email thread from January 2015 discusses a retired Monsanto plant worker who reported to the company that he had been diagnosed with Hairy cell leukemia, a type of non-Hodgkin lymphoma. He wrote that he had “irregular blood counts” before he retired, and he wondered if his diagnosis was “related to working around all of the chemicals” at the company’s plant. The company’s “adverse effects team” reviewed his case and a Monsanto “health nurse” told him they had not found an association between his “medical condition” and the chemicals at the plant where he worked. They also indicate in the email thread that there is no need to notify EPA. One email dated Nov. 21, 2014 written broadly to “Monsanto Employees” from the adverse effects team lets employees know that although the EPA requires the reporting of information about adverse effects of pesticide products such as injury or health problems, employees should not notify EPA themselves if they become aware of any such problems. Employees should “immediately forward” information to the company’s adverse effects unit instead.
- Did Monsanto Collaborate on AHS Study? Monsanto and new owner Bayer repeatedly have sought to counter scores of studies showing ties between glyphosate herbicides and cancer by touting one study – An update to the U.S. government-backed Agricultural Health Study (AHS) that found no ties between glyphosate and non-Hodgkin lymphoma. The AHS is a foundational part of the company’s defense in the Roundup products liability litigation. But there have been many questions about the timing of the AHS update, which raced through peer review much faster than is normal for papers in peer-reviewed journals. The update was released to the public on the morning of Nov. 9, 2017 – the same day as a critical court hearing in the Roundup cancer litigation. It was cited by Monsanto at that hearing as a “significant development” and a reason to delay proceedings. A May 11, 2015 internal Monsanto “Proposal for Post-IARC Meeting Scientific Projects” discusses the potential for an “AHS Collaboration.” Monsanto called the proposal “most appealing” as it would appear that Monsanto was “somewhat distanced” from the study.
- Despite much talk about “800 studies” showing the safety of glyphosate Monsanto acknowledged in a court filing that it “has not identified any 12 month or longer chronic toxicity studies that it has conducted on glyphosate containing formulations that were available for sale in the United States of as June 29, 2017.”
Separate news of note –
Plaintiffs’ expert scientific witness Dr. Christopher Portier will not be coming to San Francisco to testify at the trial as planned. Portier suffered a heart attack while traveling in Australia earlier in January and is still recovering.
And in a move welcomed by plaintiffs’ attorneys, U.S. Judge Vincent Chhabria on Monday said that he may allow some evidence about Monsanto’s alleged ghostwriting of scientific studies into the first phase of the upcoming trial despite Monsanto’s efforts to keep the evidence out until and unless a second phase of the trial occurs. Evidence of Monsanto’s efforts to influence regulators and scientists may also be allowed in the first phase, Chhabria said. Chhabria has ordered that the trial be bifurcated, meaning that the first phase will deal only with the allegation of causation. If the jury does find that Monsanto’s herbicides caused plaintiff Edwin Hardeman’s cancer then a second phase would be held to explore Monsanto’s conduct.
January 18, 2019
Time flies when a big case approaches. U.S. District Judge Vince Chhabria has set anevidentiary hearing for Jan. 28 at 9 a.m. local time in federal court in San Francisco to be followed by a “Daubert” hearing that day at 2 p.m. The hearings are to consider evidence and experts that will be key to the first-ever federal trial taking up claims that Monsanto’s glyphosate-based herbicides can cause cancer and Monsanto has covered up the risks. Video recording of the proceedings is being allowed.
Chhabria has taken the unusual step of agreeing with a request from the attorneys representing Monsanto and its owner Bayer AG to bifurcate the trial. The first phase, per Monsanto’s request, will deal only with evidence relevant causation – if its products caused the cancer suffered by plaintiff Edwin Hardeman. Evidence of Monsanto efforts to manipulate regulators and the scientific literature and “ghost write” various articles would only be presented in a second phase of the trial if jurors in the first phase find the herbicides were a substantial factor in causing Hardeman’s cancer.
The parties are in disagreement over exactly what evidence should be allowed in the causation phase.
Monsanto specifically has asked the judge to exclude from evidence:
- A 2001 email detailing internal discussions regarding an independent epidemiology study published that year.
- A2015 internal email regarding the company’s relationship with and funding of the American Council onScience and Health, a group that purports to be independent of industry as its promotes safety messaging about glyphosate products.
- A 2015 email chain includinginternal commentary by Monsanto scientist Bill Heydens about the role surfactants play in glyphosate formulated products.
For point 1, attorneys for Hardeman have said they do not intend to try to introduce the evidence “unless the door is opened byMonsanto.”
For point 2, they also said they do not intend to introduce the ACSH correspondence “unless Monsanto in anyway relies on the ACSH’s junk science positions regarding the carcinogenicity” of glyphosate-based formulations “or attackson IARC’s classification of glyphosate.”
As for the 2015 Heydens email chain, attorney’s for Hardeman argue the correspondence is illuminating to the causation question. Heydens’ email refers to the results of a 2010 study referred to as George et al., which found a statistically significant increase of tumors on the skin of rodents following exposure to a formulated Roundup product. The study is one relied upon by plaintiffs’ general causation experts.
The letter brief laying out the positions by opposing partiesis here.
In a separate issue – the ongoing government shut-down could impact the Feb. 25 trial date for the Hardeman case. Judge Chhabria has said that he does not intend to ask jurors to sit in a trial without being paid.
January 16, 2019
New documents filed in federal court are threatening to expose Reuters news reporter Kate Kelland for acting as Monsanto’s puppet in driving a false narrative about cancer scientist Aaron Blair and the International Agency for Research on Cancer (IARC) that classified glyphosate as a probable carcinogen.
In 2017, Kelland authored a controversial story attributed to “court documents,” that actually appears to have been fed to her by a Monsanto executive who helpfully provided several key points the company wanted made. The documents Kelland cited were not filed in court, and not publicly available at the time she wrote her story but writing that her story was based on court documents allowed her to avoid disclosing Monsanto’s role in driving the story.
When the story came out, it portrayed cancer scientist Aaron Blair as hiding “important information”that found no links between glyphosate and cancer from IARC. Kelland wrote that Blair “said the data would have altered IARC’s analysis” even though a review of the full deposition shows that Blair did not say that.
Kelland provided no link to the documents she cited, making it impossible for readers to see for themselves how far she veered from accuracy.
The story was picked up by media outlets around the world, and promoted by Monsanto and chemical industry allies. Google advertisements were even purchased promoting the story.
Now,new information revealed in court filings indicates just how heavy Monsanto’s hand was in pushing the narrative. In a January 15 court filing, Plaintiff’s attorneys cited internal Monsanto correspondence dated April 27, 2017 they say show that Monsanto executive Sam Murphey sent the desired narrative to Kelland with a slide deck of talking points and portions of the Blair deposition that was not filed in court. The attorneys said the correspondence shows the Monsanto executive asking her to publish an article accusing Dr. Blair of deceiving IARC.
Monsanto and Bayer lawyers have tried to keep the correspondence with Kelland sealed from public view, and some of the emails between the Reuters reporter and Monsanto still have not been released.
Plaintiff’s attorneys also write in their letter brief that Monsanto’s internal documents show Kelland was seen as a a key media contact in their efforts to discredit IARC.
There is nothing inherently wrong in receiving story suggestions that benefit companies from the companies themselves. It happens all the time. But reporters must be diligent in presenting facts, not corporate propaganda.
This story was used by Monsanto to attack IARC on multiple fronts, including an effort by Monsanto to get Congress to strip funding from IARC.
At the very least, Kelland should have been honest with readers and acknowledged that Monsanto was her source. Reuters owes the world – and IARC – an apology.
For more background on this topic, see this article.
January 10, 2019
For those wanting more details on the reasoning and ramifications of a federal court judge’s decision to limit large volumes of evidence related to Monsanto’s internal communications and conduct from the first federal trial, this transcript of the Jan. 4 hearing on the matter is informative.
Here is an exchange between plaintiff’s attorney Brent Wisner and Judge Vince Chhabria that illustrates the frustration and fear plaintiff’s attorneys have over the limitation of their evidence to direct causation, with much of the evidence dealing with Monsanto’s conduct and internal communications restricted. The judge has said that evidence would only come in at a second phase of the trial if jurors in a first phase find that Monsanto’s Roundup products directly contributed substantially to the plaintiff’s cancer.
MR. WISNER: Here is a great example: Monsanto’s chief toxicologist,
Donna Farmer, she writes in an e-mail: We can’t say Roundup
doesn’t cause cancer. We have not done the necessary testing
on the formulated product.
THE COURT: That would not come in — my gut reaction
is that that would not come in in the first phase.
MR. WISNER: So that is literally Monsanto’s chief
toxicologist — a person who has more knowledge about Roundup
than anyone else in the world — saying —
THE COURT: The question is whether it causes cancer,
not whether — not Farmer’s opinion on what Monsanto can say or
not say. It is about what the science actually shows.
MR. WISNER: Sure. She is literally talking about the
science that they didn’t do.
THE COURT: My gut is that that is actually really a
fairly easy question, and the answer to that fairly easy
question is that that doesn’t come in in the first phase.”
January 9, 2019
The first federal trial in the Roundup Products Liability Litigation may still be more than a month away, but the calendar is busy for attorneys on both sides. See below the schedule set by the judge in an order filed yesterday:
PRETRIAL ORDER NO. 63: UPCOMING DEADLINES FOR BELLWETHER TRIAL.
Evidentiary Hearing set for 1/28/2019 09:00 AM in San Francisco, Courtroom 04, 17th Floor before Judge Vince Chhabria.
Dr. Shustov’s Daubert Hearing set for 1/28/2019 02:00 PM in San Francisco, Courtroom 04, 17th Floor before Judge Vince Chhabria.
Jury Selection to complete the supplemental questionnaire in the jury office (not on the record or in court) set for 2/13/2019 08:30 AM in San Francisco.
Jury Selection (hardship and challenge cause hearing with counsel and Court) set for 2/15/2019 10:30 AM in San Francisco, Courtroom 04, 17th Floor before Judge Vince Chhabria.
January 7, 2019
The new year is off to a strong start for Monsanto as the Bayer unit heads into its second trial over allegations that its Roundup and other glyphosate-based herbicides cause cancer. In Jan. 3 ruling, U.S. District Judge Vince Chhabria rejected arguments by attorneys representing cancer victims and sided with Monsanto in deciding to block jurors from hearing a large portion of evidence that plaintiffs say shows efforts by Monsanto to manipulate and influence regulators in a first phase of the trial. In deciding to bifurcate the trial, Chhabria said that jurors will only hear such evidence if they first agree that Monsanto’s weed killer did significantly contribute to causing the plaintiff’s non-Hodgkin lymphoma (NHL).
“A significant portion of the plaintiffs’ case involves attacks on Monsanto for attempting to influence regulatory agencies and manipulate public opinion regarding glyphosate. These issues are relevant to punitive damages and some liability questions. But when it comes to whether glyphosate caused a plaintiff’s NHL, these issues are mostly a distraction, and a significant one at that,” the judge’s order states.
He did provide a caveat, writing, “if the plaintiffs have evidence that Monsanto manipulated the outcome of scientific studies, as opposed to agency decisions or public opinion regarding those studies, that evidence may well be admissible at the causation phase.”
Jury selection is set to begin Feb. 20 with the trial set to get underway on Feb. 25 in San Francisco. The case is Edwin Hardeman v. Monsanto.
Meanwhile, plaintiff Lee Johnson,who was the first cancer victim to take Monsanto to trial, winning a unanimous jury verdict against the company in August, has also won his request to the 1st District Court of Appeals for speedy handling of Monsanto’s appeal of that jury award. Monsanto opposed Johnson’s request for “calendar preference,” but the court granted the request on Dec. 27, giving Monsanto 60 days to file its opening brief.
December 20, 2018
U.S. District Judge Vince Chhabria said on Thursday that he would not rule until January on the disputed issue of bifurcation of the first federal trial, which is set to get underway in February. Attorneys for plaintiffs and for Monsanto were ordered to file all of their experts’ reports by Friday, December 21 to help Chhabria in his decision.
December 18, 2018
Monsanto/Bayer lawyers responded Friday to de-designation requests concerning several hundred internal Monsanto records, seeking to keep most of them sealed in opposition to requests from plaintiffs’ attorneys. Company lawyers did agree to the release of some internal documents, which could be made public this week.
In the meantime both sides are awaiting a ruling from U.S. District Court Judge Vince Chhabria on a motion made by Monsanto attorneys to reverse bifurcate the first federal court trial in the mass Roundup cancer litigation. That trial is set to begin Feb. 25 and is considered a bellwether that will set the stage for how and if other cases proceed and/or are resolved.
Monsanto would like the federal court trials to be conducted in two phases—a first phase focused on medical causation – did the company’s herbicides cause the specific plaintiff’s cancer – and a second phase to address liability only if plaintiffs prevail in the first phase.
The issues of causation and compensatory damages are “separate and distinct from Monsanto’s alleged negligence and company conduct and would involve testimony from different witnesses,” the company argued. Bifurcation would avoid “undue delay in resolving this case…”
Plaintiffs’ attorneys object to the bifurcation saying the idea is “unheard of” in modern multi district litigation (MDL), which is what Chhabria is overseeing. More than 600 lawsuits are pending in his court alleging that Monsanto’s glyphosate-based herbicides caused plaintiffs’ cancers, and Monsanto failed to warn consumers of the dangers of its products.
“It is simply never done, and for good reason,” plaintiffs’ attorneys argued in a Dec. 13 court filing. “The purpose of a bellwether trial is to allow each side to test their theories and evidence against a real-world jury and, hopefully, learn important information about the strengths and weaknesses of the case to inform collective resolution. Imposing a one-sided procedural hurdle—one that would be a de facto outlier for the 10,000 cases proceeding around the country—does not accomplish that goal. It renders any verdict in this MDL, no matter which side prevails, unhelpful.”
The next hearing in the case is set for Jan. 4.
December 14, 2018
Dewayne “Lee” Johnson, the first plaintiff to take Monsanto to trial alleging the company’s glyphosate-based herbicides cause cancer, is scheduled for surgery today to remove a new cancerous growth on one of his arms.
Johnson’s health has been deteriorating since the trial’s conclusion in August and an interruption in treatment due to a temporary lapse in insurance coverage. He has not received any funds from the litigation due to the appeals Monsanto instigated after Johnson court victory. Monsanto is appealing the verdict of $78 million, which was reduced by the trial judge from the jury’s award of $289 million.
Johnson filed notice with the court in October that he would accept the reduced award. But because Monsanto has appealed, Johnson’s attorneys have also filed an appeal, seeking to reinstate the jury award.
The California State Court of Appeals, 1st Appellate District, case number is A155940.
Johnson’s attorneys are seeking expedited handling of the appeal and say they hope to have briefings completed by April.
“There is… a strong likelihood that Mr. Johnson is going to die in 2019,” the plaintiff’s motion states.
Johnson, who plans to restart immunotherapy after his surgery, is not necessarily in agreement.
“I hate to think about dying,” he said in an interview published in Time Magazine. “Even when I feel like I’m dying, I just make myself move past it. I feel like you can’t give in to it, the diagnosis, the disease, because then you really are dead. I don’t mess around with the death cloud, the dark thoughts, the fears. I’m planning for a good life.”
December 13, 2018
The law firm of Baum Hedlund Aristei & Goldman, which partnered with The Miller Firm in notching the historic victory for plaintiff Dewayne Lee Johnson over Monsanto in August, is seeking the de-designation of several hundred pages of internal Monsanto records that were obtained through discovery but have so far been kept sealed.
Baum Hedlund last year released hundreds of other internal Monsanto records that include emails, memos, text messages and other communications that were influential in the unanimous jury verdict finding Monsanto acted with “malice” by not warning customers of scientific concerns about its glyphosate-based herbicides. Jury sources say that those internal records were very influential in their $250 million punitive damage award against Monsanto, which the judge in the case reduced to $39 million for a total award of $78 million.
Attorneys for plaintiffs in two upcoming trials say that Monsanto records that have not been seen publicly before will be part of new evidence they plan to introduce at the trials.
Today is also the deadline for plaintiffs attorneys to respond to Monsanto’s motion to “reverse bifurcate” the Feb. 25 trial set for U.S. District Court in the Northern District of California. (see Dec. 11 entry below for more details)
December 12, 2018
Alameda County Superior Court Judge Ioana Petrou, who has spent more than a year engaged in the Roundup cancer litigation and sat through many days of the presentation of scientific evidence by plaintiffs and defense experts in a federal court hearing in March 2017, is off the case. California Gov. Jerry Brown announced on November 21st that Petrou has been appointed associate justice, Division Three of the First District Court of Appeal.
Judge Winifred Smith has been named to replace Petrou to oversee the case of Pilliod V. Monsanto, which is scheduled to go to trial March 8 in Oakland, California. Smith was appointed by Governor Gray Davis in November 2000, and prior to her appointment, served as deputy assistant attorney general for the Department of Justice in San Francisco.
The Pilliod case will be the third to go to trial in the sweeping Roundup mass tort litigation. Alva Pilliod and his wife Alberta Pilliod, both in their 70s and married for 48 years, allege that their cancers – forms of non-Hodgkin lymphoma – are due to their long exposure to Roundup. Their advanced ages and cancer diagnoses warrant a speedy trial, according to court filings by their attorneys. Monsanto opposed their request for the expedited trial date but Petrou found the couple’s illnesses and ages warranted preference. Alberta has brain cancer while Alva suffers from a cancer that has invaded his pelvis and spine. Alva was diagnosed in 2011 while Alberta was diagnosed in 2015. They used Roundup from roughly the mid -1970s until only a few years ago.
The Pilliod suit echoes others in claiming that “Monsanto led a prolonged campaign of misinformation to convince government agencies, farmers and the general public that Roundup was safe.”
December 11, 2018
With the next trial in the mass Roundup cancer litigation set for Feb. 25 in San Francisco, attorneys for Monsanto and plaintiffs are scrambling to take more than two dozen depositions in the waning weeks of December and into January even as they debate how the trial should be organized.
Monsanto attorneys on Dec. 10 filed a motion to “reverse bifurcate” the next trial, Edwin Hardeman V. Monsanto (3:16-cv-00525). Monsanto wants the jury only to hear evidence focused on specific medical causation first – did its herbicide cause the plaintiff’s cancer – with a second phase that would address Monsanto’s liability and damages only necessary if the jury found in plaintiff’s favor in the first phase. See Monsanto’s argument here. Judge Chhabria granted a request from plaintiff’s attorneys to be allowed until Thursday to file their response.
Edwin Hardeman and his wife spent many years living on a 56-acre, former exotic animal refuge in Sonoma County, California where Hardeman routinely used Roundup products to treat overgrown grasses and weeds since the 1980s. He was diagnosed with B-cell non-Hodgkin lymphoma in February 2015, just a month before the International Agency for Research on Cancer declared glyphosate to be a probable human carcinogen.
Hardeman’s case was selected as the first to be tried in federal court in San Francisco (Northern District of California) in front of Judge Vince Chhabria. Attorney Aimee Wagstaff of Denver, Colorado, is lead plaintiff’s counsel on the case. Attorney Brent Wisner of the Baum Hedlund law firm in Los Angeles, and the lawyer credited with leading the victory in Dewayne Lee Johnson’s historic August victory over Monsanto, had been expected to help try the case but now has another case scheduled to begin in March. That case is Pilliod, et al V. Monsanto in Alameda County Superior Court. See related documents on the Monsanto Papers main page.
Monsanto’s new owner Bayer AG is not content to rely on Monsanto’s trial team that lost the Johnson case and is bringing in its own legal defense team. The Bayer team, which helped the German company win litigation over the Xarelto blood thinner, now includes Pamela Yates and Andrew Solow of Arnold & Porter Kaye Scholer and Brian Stekloff of Wilkinson Walsh Eskovitz.
Hearings on specific causation issues are set in the Hardeman case for Feb. 4, 6, 11, and 13 with jury selection scheduled for Feb. 20. Opening arguments would then begin Feb. 25, according to the current schedule.
December 6, 2018
2/25/2019 – Federal Court – Hardeman
3/18/2019 – CA JCCP – Pilliod (2 plaintiffs)
4/1/2019 – St. Louis City Court – Hall
4/22/2019 – St. Louis County Court – Gordon
5/25/2019 – Federal Court – Stevick or Gebeyehou
9/9/2019 – St. Louis County Court – 4 plaintiffs
1/21/2020 – St. Louis City Court – 10 plaintiffs
3/23/2020 – St. Louis City Court
November 21, 2018
Dewayne “Lee” Johnson was the first person to take Monsanto to court alleging that exposure to Roundup herbicide caused him to develop non-Hodgkin lymphoma and that the company covered up the risks. In August 2018, a jury in San Francisco unanimously found that Monsanto had failed to warn about the carcinogenic dangers of Roundup herbicide and related products, and they awarded Johnson $289 million. A judge later reduced that amount to $78 million. Carey Gillam spoke with Johnson about the aftermath of his case in this interview for TIME magazine: I Won a Historic Lawsuit But May Not Get to Keep the Money