Judge Suzanne Ramos Bolanos. Image source.

Health Impact News

The California trial against Monsanto by Dewayne Johnson, a 46-year-old former school groundskeeper, who was diagnosed with non-Hodgkin lymphoma four years ago and claims that Monsanto hid evidence that the active ingredient in its Roundup herbicide, glyphosate, caused his cancer, is nearing the end, where a jury will decide on a verdict.

One of the attorneys of the Plaintiff, Robert F. Kennedy, Jr., has been giving updates that are being posted on the Organic Consumers Association website.

In a recent update, Mr. Kennedy reported on some of the actions of Judge Bolanos that seemed to suggest that the judge could be potentially biased in favor of Monsanto by not allowing some key evidence, some of which seems to contradict what another judge, Judge Curtis Karnow, seemed to rule was admissible in pre-trial hearings.

Excerpts:

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

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

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

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

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

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

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

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

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

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

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

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

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

However, Kennedy also pointed out that there were some positive results in the courtroom as well, as they remain confident that they will be able to educate the jury on the facts regarding Monsanto’s product and its danger to the public.

One key victory came on day 10, when they were able to get Monsanto toxicologist, Donna Farmer, to testify, even though she tried hard to avoid testifying:

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

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

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

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

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

Another victory occurred on day 12, when toxicology expert, Dr. William Sawyer, was allowed to testify:

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

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

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

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

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

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

On day 13 of the trial, July 29th, Kennedy reports that they had another victory in getting their final witness, Dr. Charles Benbroo, to testify over the objections of the defense attorneys for Monsanto.

Benbrook is an agricultural and toxicology scientist. A Harvard graduate and former executive director of the National Academy of Sciences, Benbrook has been studying the link between glyphosate and non-Hodgkin’s lymphoma since 2000.

Excerpts:

Benbrook testified that our Monsanto-friendly Environmental Protection Agency’s (EPA) focus on glyphosate alone is a sham intended to gloss over the more important question of “whether the Roundup formulation itself, not just a single ingredient, is toxic and carcinogenic.” He said that Monsanto uses a potent surfactant that dramatically amplifies Roundup’s toxicity.

Benbrook testified that glyphosate is a proven animal carcinogen. My colleague, Brent Wisner of Baum Hedlund Law, delicately asked a series of carefully phrased questions to lead Benbrook through descriptions of some of the 20-odd animal studies linking Roundup to cancer.

In recent days, as described in an earlier post, our side has been dealt a series of harsh rulings by Judge Suzanne Ramos, rulings which limited the admissibility of this class of evidence. Monsanto’s attorney, Kirby Griffis, objected forcefully whenever Wisner and Benbrook edged near the red lines drawn by the judge. Despite these interruptions, Benbrook succeeded, if haltingly, in describing Monsanto’s attempts to suppress data on glyphosate’s carcinogenicity.

Benbrook showed that Monsanto had repeatedly killed internal company studies of carcinogenicity. When an EPA-mandated animal study showed clear evidence of glyphosate’s carcinogenicity, the company bullied and bamboozled the EPA to withdraw the study. According to Benbrook, that study showed that “three in 50 of exposed mice were getting kidney tumors following exposure.” When the EPA caved in, it ordered Monsanto to redo the study. Monsanto simply sandbagged the agency, refusing to comply. Eventually, the beleaguered agency backed down completely.

Benbrook pushed back hard on Griffis’ claim that the International Agency for Research on Cancer (IARC) never looked at real-world exposure data before issuing its monograph that glyphosate is a probable human carcinogen. “Heavens no,” Benbrook said laughing at the Monsanto attorney. “The very first section addresses use and exposure!”

Benbrook was a powerful final live witness who reinforced, and tied together, the testimony of the Plaintiff’s five-week parade of expert fact witnesses. Kirby Griffis’ (Monsanto) afternoon cross examination of Benbrook was bootless.

Another victory that happened on day 13 was the playing of a video tape deposition of Steven Gould, Monsanto’s head of sales for the West Coast:

As one of our final treats for the jury, Wisner played videotaped testimony of Steven Gould, Monsanto’s head of sales for the West Coast, who worked closely with product safety chief Dr. Donna Farmer during his time at Monsanto. As the tape played on the courtroom monitor, the jury watched Plaintiff counsel’s Jeff Seldomridge of the Miller Firm catch Gould in embarrassing whoppers so many times during the video depo that the befuddled Gould looked like a nervous wreck by the time the credits rolled.

In his finalé, Gould grudgingly acknowledged trading emails with Greg Fernald, a chief marketer for Roundup’s California distributor, Wilbur-Ellis. Gould complained to Fernald that California school districts were banning the use of Roundup on school grounds.

“It’s hard to understand how against all science and law they can do that—can do this,” Fernald responds. “We are being overrun by liberals and morons, sort of like a zombie movie. So we just have to start taking them out one at a time, starting with the elections next year.”

Gould admitted to Seldomridge that he so admired Fernald’s turn of phrase that he forwarded Fernald’s email to Monsanto’s employees. Unfortunately, since we are before a California jury, Judge Bolanos had us redact out all reference to California, but the video was still effective.

Kennedy and his legal team finished up a videotaped testimony from former Monsanto product salesman, Kirk Azevedo:

The plaintiff’s trial team closed its case with the videotaped testimony from former Monsanto product salesman, Kirk Azevedo, who joined Monsanto on an idealistic impulse after seeing a speech by Monsanto’s founder, Robert Shapiro. During that talk, Shapiro described his vision of a green, clean and safe future in which Monsanto would make itself an exemplar of good corporate citizenship. Azevedo recalled Shapiro describing his vision for “reducing in-process waste and the factories of the future not being these spewing pollution factories, but, you know being these plants that are going to be green and we can, you know, help, you know, save the world in this regard.”

Azevedo then described a subsequent deflating interaction with a Monsanto senior vice president at a training seminar for the chemical company’s market managers. The V.P. was dismissive, “We don’t know what Robert Shapiro is really talking about here. He’s just kind of this visionary guy. This sort of thing isn’t really what we’re about. We’re about making money, so get that straight.”

Kennedy then states that he feels the trial is going their way, in spite of the judge’s efforts to limit their evidence, including the real net-worth of Monsanto:

We feel that the trial is going our way.

Earlier in the morning, Wisner read a stipulation to the jury describing Monsanto’s value, which is relevant to the company’s ability to pay large damages. In June, Monsanto sold itself for $66 billion to Bayer (a German company cut from the same corrupt, manipulating and deceptive cloth as Monsanto).

We were disheartened when Judge Ramos cautioned our side against any mention of Monsanto’s $66-billion market value to the jury. Finally, we stipulated with the company’s defense counsel that we would only use the company’s book value; a relatively paltry $6.6 billion. The tradeoff is that we can mention that Monsanto has $3.3 billion in cash on hand.

More information about Glyphosate.

The Healthy Traditions Glyphosate-tested Program. Foods with this logo have been tested for the presence of glyphosate.