Former Monsanto CEO Ordered to Testify at Roundup Cancer Trial

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Former Monsanto Chairman and CEO Hugh Grant will have to testify in person at a St. Louis-area trial set for January in litigation brought by a cancer-stricken woman who claims her disease was caused by exposure to the company’s Roundup herbicide and that Monsanto covered up the risks instead of warning consumers.

Grant, who led St. Louis-based Monsanto from 2003 until the company was sold to Bayer AG of Germany in June of 2018, and spent a total of 37 years working for Monsanto, was subpoenaed by lawyers for plaintiff Sharlean Gordon, to testify at a trial slated to begin Jan. 27 in St. Louis County Circuit Court.

The Gordon trial was originally scheduled for August of this year but was delayed as part of an effort to undertake settlement talks between Bayer and lawyers for tens of thousands of plaintiffs who are suing Monsanto with claims similar to Gordon’s.

Two other trials set for January, both in courts in California and both involving children diagnosed with cancer, were recently postponed due to continued settlement talks.

Bayer estimates that there are currently more than 42,000 plaintiffs alleging that exposure to Monsanto’s Roundup and other glyphosate-based herbicides made by Monsanto caused them or their loved ones to develop non-Hodgkin lymphoma.

Grant did not have to testify live at the three Roundup cancer trials that have taken place so far because they were all held in California. But because Grant resides in St. Louis County, plaintiffs’ attorneys saw an opportunity to get him on the stand in person.

Attorneys for Grant have been fighting the subpoena, arguing that he is not a scientist or regulatory expert and he has already provided information in deposition testimony. Grant has also argued that he should not have to testify because he plans to be out of the country starting February 9.

But in a decision handed down Dec. 5, a special master appointed to the case sided with Gordon’s attorneys and ruled that Grant was not entitled to an order quashing the subpoena for trial testimony.

“Mr. Grant appeared for interviews on public radio representing that Roundup is not a carcinogen; in earnings calls for investors Mr. Grant personally responded that the classification of glyphosate as a probable carcinogen was ‘junk science;’ in 2016 Mr. Grant personally lobbied the EPA Administrator and the Agricultural Committee Chair of the topic of glyphosate,” the special master’s order states.

“Although Mr. Grant does not have scientific knowledge that doubtless will be a significant component to this lawsuit, he was CEO of Monsanto for 15 years and took part in presentations, discussions, interviews and other appearances for Monsanto as CEO in which the topics of Roundup and glyphosate were explained, discussed and defended,” Special Master Thomas Prebil said in his decision.

Gordon developed non-Hodgkin lymphoma after using Roundup herbicides for 25 years at her residence in South Pekin, Illinois, and has suffered extensive debilitation due to her disease. Gordon’s stepfather, who also used Roundup at the family home where Gordon lived into adulthood, died of cancer.  The case  is actually derived from a larger case filed in July 2017 on behalf of more than 75 plaintiffs. Gordon is the first of that group to go to trial.

In the three previous trials, unanimous juries have found that exposure to Monsanto’s herbicides does cause non-Hodgkin lymphoma and that the company did cover up the risks and fail to warn consumers. The three juries awarded a total of four plaintiffs more than $2 billion in damages, but the three trial judges have reduced the awards significantly in each case.

All are being appealed and none of the winning plaintiffs have yet received any of the monetary awards the juries ordered.

JOHNSON APPEAL DELAYED

The first plaintiff to win against Monsanto is a California school groundskeeper from California. Dewayne “Lee” Johnson was awarded $289 million by a jury in August 2018. The trial judge later lowered the damages to $78 million. Monsanto appealed seeking to overturn the jury decision and Johnson cross-appealed seeking to reinstate the full award of $289 million.

The California Court of Appeal 1st Appellate District said it would act swiftly in ruling on the consolidated appeals and lawyers for both sides initially hoped to have a ruling by the end of this year. But the case has been delayed for several weeks as both sides awaited a date for oral arguments. On Dec. 3, Monsanto’s attorneys asked the court not to schedule oral arguments in January or February, as several new Roundup trials are set for those months.  Johnson’s attorneys opposed that request for further delay.

On Friday, the court issued an order stating that while it agreed with Johnson about the need to
“schedule oral argument as soon as practicable,” it was unlikely oral arguments could be held until March of April “given the number and length of all the briefs to be considered, the outstanding motions that the court must rule on when considering the merits of the appeal,” and other factors.

Monsanto Roundup Trial Tracker: New Developments

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March 18, 2019: Jurors Want to Hear From Plaintiff Again

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 during her 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: Google Ads Raise Concerns About Geofencing

(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: Trial & Jury Day Off 

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: Jury Deliberating

(Video update)

(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: Concerns over Judge’s Jury Instructions

(Transcript from today’s proceedings)

(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 instructionChhabria added wording that said asubstantial factor “does not have to be the only cause of the harm.”

Monsanto has argued that Hardeman’s cancer is not due toexposure 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: Hepatitis C and… Hugh Grant?
 
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 factconsidered 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 journalCritical 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 documentsshow that the papers were conceptualized from the outset as a strategy by Monsanto to discredit IARC. One of Monsanto’s top scientists not onlyreviewed the manuscriptsbut 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: Phase 1 Nears End, Judge Ponders Jury Instructions
 
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 apreponderance of the evidence that Roundup was a substantial factor in causing his nonHodgkin’s lymphoma. A substantial factor is a factor that a reasonable person would consider tohave 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 asubstantial factor in causing his NHL, then you should find for Mr. Hardeman even if you believethat 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 occurredwithout 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 exposureto Roundup was sufficient on its own to cause his NHL, then you should find for Mr. Hardemaneven 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 ruledthat Arber cannot testify that the hepatitis C caused Hardeman’s NHL but ruled Thursdaythat Arber can explain that Hardeman’s lengthy exposure to hepatitis C left him at riskof 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 Has Harsh Words for Monsanto
 
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) studysupports 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 largeswaths 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 aresponsible, objective approach to the safety of its product,” Judge Chhabria stated in his ruling.
 
The judge concluded: “Although the evidence that Roundup causescancer is quite equivocal, there is strong evidence from which a jury could conclude thatMonsanto 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 andlegitimate concerns about the issue.”
 

March 7, 2019: No Trial Today, But a Story About the Last Trial

(UPDATE – See Tim Litzenburg counter claim and motion to strike )

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: Nearing the End of the First Phase

(Transcript from today’s proceedings)

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 testimonyin which he said thathe 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: Hardeman to Testify, Sick Juror or Not

(Transcript from today’s proceedings)

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 anysort of speculation about how the use of the sprayer could haveinfluenced 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 canprovide now is that the Plaintiffs are not allowed to spray youwith the sprayer.
MS. MATTHEWS (Monsanto attorney): Okay.
THE COURT: And they are definitely not allowed tospray 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 saidsomething to the jury — even before we get to your second
point, you have already said something to the jury that iscontradicted to a degree by an internal Monsanto document. Andso why shouldn’t they be able to cast doubt on Monsanto’sassertion to the jury that genotox doesn’t matter byestablishing that Monsanto hired a doctor to — or hired an
expert to look at the issue of genotoxicity in the late ’90sand the expert raised concerns about genotoxicity? … I mean, Monsanto itself investigated genotox –hired somebody to investigate genotox, and that personconcluded 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: Cancer Victim to Take the Stand (Not.)

(Transcript from today’s proceedings)

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:Something to Chew On

(Transcript from today’s proceedings)

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 theUniversity of California, Berkeley School of Law, graduatingwith honors. He served as law clerkfor 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 issuein 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: Trial Takes a Day Off

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
clear.
MS. WAGSTAFF: Thank you, Your Honor.

February 27, 2019: Judicial Threats and Judge Jokes

(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: Reporting From Court(tweets transcribed here in reverse chronology)

Documents from Day 1 in the Hardeman trial are posted here.

See Transcript of proceedings.

See Plaintiff’s Opening Slide Deck and Monsanto’s Opening Slide Deck

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 @BayerMonsanto Roundup cancer trial.
  • Judge also tells her to “move on” when she tries to explain that @EPAonly assesses glyphosate and not whole product.
  • She is allowed brief mention of @IARCWHOclassification of glyphosate as probable human carcinogen but judge cuts her off before she can say much.
  • In opening statement for @BayerMonsanto 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 @EPAmemo “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: Jury Selected

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: Last-Minute Moves

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 saidin 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.

Among Chhabria’s evidentiary rulings:

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: Evidence and Issues – 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 issuesthey 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 trialin 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 filingthat 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 an evidentiary 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.
  • A 2015 internal email regarding the company’s relationship with and funding of the American Council on Science and Health, a group that purports to be independent of industry as its promotes safety messaging about glyphosate products.
  • A 2015 email chain including internal 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 by Monsanto.”

For point 2, they also said they do not intend to introduce the ACSH correspondence “unless Monsanto in any way relies on the ACSH’s junk science positions regarding the carcinogenicity” of glyphosate-based formulations “or attacks on 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 parties is 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 – (UPDATED Feb. 9, 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 transcriptof 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.

  1. 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.

  1. 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.

  1. 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.”

Stay tuned….

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 aJan. 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 – Plaintiff Seeks Expedited Handling of Monsanto’s Appeal as His Health Deteriorates

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 – More Monsanto Shoes (Documents) Set to Drop

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 – New Judge Appointed in Pilliod Case

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 – Attorneys Scramble Ahead of Next Trial

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 – Upcoming Monsanto Trial Dates

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 – Lee Johnson interview

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

 

Six Monsanto Roundup Cancer Trials Set for January

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After several months out of the headlines, lawyers for both sides of the nationwide Roundup cancer litigation are gearing up for overlapping trials in the new year as several more cancer patients seek to blame Monsanto for their diseases.

Six trials are currently set to take place starting in January, with one in February, two in March and additional trials scheduled almost every month from April through October 2021. Thousands of additional plaintiffs still are working to get trial dates set for their claims.

The plaintiffs in the upcoming January trials include two children who were stricken by non-Hodgkin lymphoma allegedly after being repeatedly exposed to Monsanto herbicides at very young ages. Also set for January is the trial for a woman named Sharlean Gordon who has suffered several debilitating recurrences of her cancer. Another trial will present the claims of five plaintiffs who claim Monsanto’s herbicides caused their cancers.

Notably, two of the trials in January will take place in the St. Louis, Missouri area – where Monsanto was headquartered for decades before its acquisition in June 2018 by Germany’s Bayer AG. Those two trials will be the first to go before jurors in Monsanto’s home town. Gordon’s case was supposed to go to trial in the area last August but was postponed, as were others set for the second half of 2019, as Bayer and plaintiffs’ attorneys initiated settlement talks.

It is still possible that some sort of settlement – individual case-specific, or larger – could happen before January, but the lawyers on both sides are preparing for a schedule that presents numerous logistical challenges. Each trial is expected to last several weeks, and not only are some lawyers involved in trying cases with overlapping trial schedules, but a small group of expert witnesses will be testifying in multiple cases taking place at the same time.

Three trials have taken place so far  in the sprawling mass tort litigation, which began in 2015 after the International Agency for Research on Cancer (IARC) classified a chemical called glyphosate as a probable human carcinogen with a particular association to non-Hodgkin lymphoma. Since the 1970s, glyphosate has been the active ingredient in Monsanto branded herbicides, and is currently considered the most widely used herbicide in the world.

Plaintiffs’ attorneys say that the current line-up of cases represent even stronger claims for damages than the prior three trials.  “These are very strong cases,” said lawyer Aimee Wagstaff, who represents Gordon. In March, Wagstaff client Edwin Hardeman won an $80 million jury verdict from a San Francisco jury in his lawsuit against Monsanto.

For the Gordon case, Wagstaff has subpoenaed former Monsanto chairman Hugh Grant to testify live at the trial. Grant has thus far only testified through deposition and not had to testify in front of a jury; nor have other high-level Monsanto executives because the trials were held in California. But with the trial in St. Louis, plaintiffs’ lawyers are hoping to get some Monsanto scientists and executives on the stand for questioning. Grant’s attorneys have objected the making him appear in person, and both sides are awaiting a ruling on that matter.

In the most recent trial to take place, a jury in Oakland, California ordered Monsanto to pay more than $2 billion in damages to Alberta and Alva Pilliod, a married couple who both suffer from NHL they blame on exposure to Roundup.  The first trial ended in August 2018 when jurors in state court in San Francisco ordered Monsanto to pay $289 million  in damages to school groundskeeper Dewayne “Lee” Johnson, who has been diagnosed with a terminal type of non-Hodgkin lymphoma.  The judges in all three of those cases ruled that the awards were excessive and reduced the damage amounts, though the verdicts are currently under appeal.

More than 42,000 people  in the United States are now suing Monsanto claiming that Roundup and other Monsanto’s herbicides cause non-Hodgkin lymphoma. The lawsuits allege that the company was well aware of the dangers for many years but did nothing to warn consumers, working instead to manipulate the scientific record to protect company sales.

See the Email Trail Showing Influence Peddling by Press Association to Bayer

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Journalists around the globe have reacted with outrage to revelations published in The Guardian  this week that show Thanos Dimadis, the former executive director of the Foreign Press Foundation, offered an unusual arrangement to Bayer AG that called for using the press organization, which is dedicated to protecting a free press, in ways that would also protect and benefit Bayer’s business interests. In exchange for the influence and access into the press association, Bayer agreed to provide generous funding, the emails show, including extra money for Dimadis personally.

Dimadis has recently become president of a new organization called the Association of Foreign Correspondents in the USA (AFC-USA), which is primarily funded by Bayer, the German pharmaceutical and chemical giant that last year bought Monsanto Co.

Monsanto was mired in litigation over allegations its Roundup herbicide causes cancer when Bayer bought the company in June 2018. Three trial losses since the acquisition have worried Bayer investors and left Bayer to defend against Monsanto’s documented history of trying to manipulate media, scientists and regulators to benefit its own interests.

Bayer officials assert Bayer is dedicated to truth and transparency and supports a free press. The company denies it sought or received any undue influence within the Foreign Press Association or the new Association of Foreign Correspondents.

Here is a list of several of the emails:

Details of arrangement with Bayer

List of journalists for Bayer to select for engagement

Dimadis asks Bayer’s direction for press association “to strategize properly”

Dimadis asks for extra money for himself from Bayer

Bayer appreciates Dimadis’ actions and agrees to add money to the budget for Dimadis

See the full story.

Cancer Taking Toll As New Roundup Trials Near

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For the last five years, Chris Stevick has helped his wife Elaine in her battle against a vicious type of cancer that the couple believes was caused by Elaine’s repeated use of Monsanto’s Roundup herbicide around a California property the couple owned. Now the roles are reversed as Elaine must help Chris face his own cancer.

Chris Stevick, who often mixed Roundup for his wife and tested the sprayer used to dispense the weed killer, was diagnosed last month with chronic lymphocytic leukemia (CLL), a type of non-Hodgkin lymphoma. Unlike Elaine’s aggressive type of NHL known as central nervous system lymphoma, Chris’s cancer is a type that tends to grow slowly. He was diagnosed after a physical examination showed abnormalities in his blood and prompted further tests.

The diagnosis has prompted a scramble among lawyers involved in the sprawling Roundup products liability litigation given that the Stevick’s lawsuit against Monsanto is set as the next federal case to go to trial.

With the trial date of Feb. 24, 2020 looming, Elaine Stevick’s lawyers asked Monsanto’s attorneys if the company would agree that Chris Stevick’s cancer claims could be joined with his wife’s for the February trial in San Francisco. The attorneys argue that at the very least Chris Stevick’s diagnosis is admissible evidence at his wife’s trial as additional proof of their claim that Roundup exposure can cause non-Hodgkin lymphoma.

Monsanto’s attorneys oppose the joining of the claims and say that Elaine Stevick’s trial should only proceed in February if there is no mention made of her husband’s cancer. Alternatively, Monsanto requests that the February trial be delayed and the company be given time to do discovery into Chris Stevick’s diagnosis.

The issue is to be discussed in a case management conference Thursday, which the Stevicks plan to attend. U.S. District Judge Vince Chhabria said ahead of the hearing that he is “tentatively of the view” that a continuance of the trial will be necessary if the couple wants to try their claims together. He also said that if Elaine Stevick proceeds on her exposure claims alone, evidence of her husband’s cancer diagnosis “will likely be inadmissible….”

If the judge confirms that joining the claims would indeed require a continuance, Elaine Stevick will choose to proceed on her own in February, said attorney Mike Miller.

Earlier this year another husband and wife suffering from cancer, Alva and Alberta Pilliod, were awarded more than $2 billion in damages in their lawsuit against Monsanto, though the judge in the case lowered the damage award to $87 million. The Pilliod trial was the third Roundup products liability trial to take place and the third in which juries found that Monsanto’s Roundup herbicides cause non-Hodgkin lymphoma and that the company has hidden the risks from consumers. Alberta Pilliod’s cancer has recently returned and it is not clear she will survive much longer, according to her attorneys.

None of the people so far awarded money in the three trials have received any payout from Monsanto as its owner Bayer AG appeals the verdicts.

There are currently more than 42,000 people suing Monsanto in the United States, alleging that Monsanto’s herbicides cause non-Hodgkin lymphoma. The lawsuits additionally allege that the company was well aware of the dangers but did nothing to warn consumers, working instead to manipulate the scientific record.

The Stevick trial is only one of at least six in five different venues slated for January and February, with each expected to last several weeks. Many lawyers are involved in more than one of the cases, and all have overlapping expert witnesses, setting up organizational and resource challenges for both sides. Multiple trials that had been set for this fall were delayed until next year.

In the meantime, both sides of the litigation are keeping an eye on the California Appellate Court, where lawyers for plaintiff Dewayne “Lee” Johnson and lawyers for Monsanto are awaiting a date for oral arguments in their cross appeals. Monsanto is seeking to overturn the unanimous jury decision handed down against the company in August 2018. The trial judge in that case lowered the jury award from $289 million to $78 million and Johnson is appealing for the reinstatement of the full $289 million.

Johnson was the first to go to trial against Monsanto and his victory sent share prices in Bayer plummeting just two months after Bayer closed the purchase of Monsanto in June 2018. Johnson was  granted “trial preference” due to predictions by his doctors that he did not have long to live. Johnson has outlived those predictions, though his health continues to decline.

As the litigation drags on, several plaintiffs have died or are nearing death, or have suffered such extreme health problems that their ability to undergo the rigors of depositions and trials has become limited.

In some cases, family members are being substituted as plaintiffs for deceased loved ones. In legal parlance, the notices to the courts are titled “Suggestion of Death.”

As Roundup cancer lawsuits surge, Monsanto fights to keep PR work secret

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As Monsanto continues to battle legal claims over alleged dangers of its widely used Roundup herbicides, the company is trying to block orders to turn over internal records about its work with public relations and strategic consulting contractors.

In a series of filings in St. Louis Circuit Court, Monsanto argues that it should not have to comply with discovery requests involving certain dealings between it and the global public relations firm FleishmanHillard, despite the fact that a special master has found Monsanto should hand those documents over. Monsanto is asserting that its communications with FleishmanHillard should be considered “privileged,” similar to attorney-client communications, and that Monsanto should not have to produce them as part of discovery to the lawyers representing the cancer patients suing Monsanto.

FleishmanHillard became the agency of record for Monsanto’s “corporate reputation work” in 2013, and its employees became deeply involved with the company, working “at Monsanto’s offices nearly every day” and gaining “access to online repositories of non-public confidential information,”  the company said. “The fact that some of these communications involve the creation of public messaging does not strip them of privilege,” Monsanto said in its court filing.

FleishmanHillard worked on two projects for Monsanto in Europe regarding re-registration of
glyphosate and worked with Monsanto lawyers on a “specific project for jury research.” The nature of the work done by the public relations firm “required privileged communications” with Monsanto’s legal counsel, the company said.

Earlier this year Monsanto owner Bayer AG said it was ending Monsanto’s relationship with FleishmanHillard after news broke that the public relations firm engaged in a Europe-wide data collection scheme for Monsanto, targeting journalists, politicians and other stakeholders to try to influence pesticide policy.

Monsanto has taken a similar position with respect to communications involving its work with corporate image management company FTI Consulting, which Monsanto hired in June 2016. “The absence of an attorney on a privileged document also does not automatically render that document susceptible to a privilege challenge,” Monsanto said in its filing.

Earlier this year, an FTI employee was caught impersonating a journalist at one of the Roundup cancer trials, trying to suggest story lines for other reporters to pursue that favored Monsanto.

The company also wants to avoid handing over documents involving its relationship with Scotts Miracle-Gro Company, which has been marketing and selling Monsanto’s Roundup lawn and garden products since 1998.

More than 40,000 cancer victims or their family members are now suing Monsanto blaming exposure to the company’s line of Roundup herbicides for their diseases, according to Bayer. The lawsuits allege that exposure to Monsanto’s herbicides caused the plaintiffs to develop non-Hodgkin lymphoma and that though Monsanto knew about the cancer risks, it intentionally did not warn consumers.

Bayer held a conference call with investors Wednesday to discuss its third quarter results and to update shareholders on the Roundup litigation.  Striking a reassuring tone, Bayer CEO Werner Baumann said that while investors might be surprised at the high number of lawsuits, it is “actually not that surprising.” He said plaintiffs’ attorneys in the United States have been spending tens of millions of dollars advertising for clients.

“This increase in the number of lawsuits does not change our conviction of the safety profile of glyphosate and is by no means a reflection of the merits of this litigation,” Baumann said. Appeals are underway after the company lost the first three trials, and the company is “constructively” engaging in mediation, according to Baumann. Bayer will only agree to a settlement that is “financially reasonable” and will bring “reasonable closure to the overall litigation,” he said.

Though the company refers to it as “glyphosate” litigation, the plaintiffs allege that their cancers were not caused by exposure to glyphosate alone, but by exposure to glyphosate-based formulated products made by Monsanto.

Many scientific studies have shown that the formulations are much more toxic than glyphosate by itself. The U.S. Environmental Protection Agency (EPA) has not required long-term safety studies on Roundup formulations throughout the 40-plus years the products have been on the market, and internal company  communications between Monsanto scientists have been obtained by plaintiffs’ attorneys in which the scientists discuss the lack of carcinogenicity testing for Roundup products.

Multiple trials that were scheduled for this fall in the St. Louis, Missouri area have been delayed until next year.

An Unappetizing Analysis from the FDA

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Last month the Food & Drug Administration published its latest annual analysis of the levels of pesticide residues that contaminate the fruits and veggies and other foods we Americans routinely put on our dinner plates. The fresh data adds to growing consumer concern and scientific debate over how pesticide residues in food may contribute – or not – to illness, disease and reproductive problems.

Over 55 pages of data, charts and graphs, the FDA’s “Pesticide Residue Monitoring Program” report also provides a rather unappetizing example of the degree to which U.S. farmers have come to rely on synthetic insecticides, fungicides and herbicides in growing our food.

We learn, for instance, in reading the latest report, that traces of pesticides were found in 84 percent of domestic samples of fruits, and 53 percent of vegetables, as well as 42 percent of grains and 73 percent of food samples simply listed as “other.” The samples were drawn from around the country, including from California, Texas, Kansas, New York and Wisconsin.

Roughly 94 percent of grapes, grape juice and raisins tested positive for pesticide residues as did 99 percent of strawberries, 88 percent of apples and apple juice, and 33 percent of rice products, according to the FDA data.

Imported fruits and vegetables actually showed a lower prevalence of pesticides, with 52 percent of fruits and 46 percent of vegetables from abroad testing positive for pesticides. Those samples came from more than 40 countries, including Mexico, China, India and Canada.

We also learn that for the most recently reported sampling, among the hundreds of different pesticides, the FDA found traces of the long-banned insecticide DDT in food samples, as well as chlorpyrifos, 2,4-D and glyphosate.  DDT is linked to breast cancer, infertility and miscarriage, while chlorpyrifos – another insecticide – has been scientifically shown to cause neurodevelopmental problems in young children.

Chlorpyrifos is so dangerous that the European Food Safety Authority has recommended a ban of the chemical in Europe, finding that there is no safe exposure level. The herbicides 2,4-D and glyphosate are both linked to cancers and other health problems as well.

Thailand recently said it was banning glyphosate and chlorpyrifos due to the scientifically established risks of these pesticides.

Despite the prevalence of pesticides found in U.S. foods, the FDA, along with the Environmental Protection Agency (EPA) and the U.S. Department of Agriculture (USDA), assert that pesticide residues in food are really nothing to worry about. Amid heavy lobbying by the agrichemical industry the EPA has actually supported continued use of glyphosate and chlorpyrifos in food production.

The regulators echo the words of Monsanto executives and others in the chemical industry by insisting that pesticide residues pose no threat to human health as long as the levels of each type of residue falls under a “tolerance” level set by the EPA.

In the most recent FDA analysis, only 3.8 percent of domestic foods had residue levels that were considered illegally high, or “violative.” For imported foods, 10.4 percent of the foods sampled were violative, according to the FDA.

What the FDA did not say, and what regulatory agencies routinely avoid saying publicly, is that the tolerance levels for certain pesticides have risen over the years as the companies that sell the pesticides request higher and higher legal limits. The EPA has approved several increases allowed for glyphosate residues in food, for instance. As well, the agency often makes the determination that it need not comply with a legal requirement that states the EPA  “shall apply an additional tenfold margin of safety for infants and children” in setting the legal levels for pesticide residues. The  EPA has overridden that requirement in the setting of many pesticide tolerances, saying no such extra margin of safety is needed to protect children.

The bottom line: The higher the EPA sets the “tolerance” allowed as the legal limit, the lower the possibility that regulators will have to report “violative” residues in our food.  As a result, the U.S. routinely allows higher levels of pesticide residues in food than other developed nations. For example, the legal limit for the weed killer glyphosate on an apple is 0.2 parts per million (ppm) in the United States but only half that level – 0.1 ppm – is allowed on an apple in the European Union. As well, the U.S. allows residues of glyphosate on corn at 5 ppm, while the EU allows only 1 ppm.

As legal limits rise for pesticide residues in food, many scientists have been increasingly raising alarms about the risks of regular consumption of the residues, and the lack of regulatory consideration of the potential cumulative impacts of consuming an array of bug and weed killers with every meal.

A team of Harvard scientists are calling for in-depth research about potential links between disease and consumption of pesticide as they estimate that more  than 90 percent of people in the United States have  pesticide residues in their urine and blood due to consumption of pesticide-laced foods.  A study connected to Harvard found that dietary pesticide exposure within a “typical” range was associated both with problems women had getting pregnant and delivering live babies.

Additional studies have found other health problems tied to dietary exposures to pesticides, including to glyphosate.  Glyphosate is the most widely used herbicide in the world and is the active ingredient in Monsanto’s branded Roundup and other weed killing products.

Pesticide Industry Push Back 

But as the concerns mount, agrichemical industry allies are pushing back. This month a group of three researchers with long-standing close ties to the companies that sell agricultural pesticides released a report seeking to soothe consumer worries and discount the scientific research.

The report, which was issued Oct. 21, stated that “there is no direct scientific or medical evidence indicating that typical exposure of consumers to pesticide residues poses any health risk. Pesticide residue data and exposure estimates typically demonstrate that food consumers are exposed to levels of pesticide residues that are several orders of magnitude below those of potential health concern.”

Not surprisingly, the three authors of the report are closely tied to the agrichemical industry. One of the report’s authors is Steve Savage, an agrichemical industry consultant and former DuPont employee. Another is Carol Burns, a former scientist for Dow Chemical and current consultant for Cortevia Agriscience, a spin-off of  DowDuPont. The third author is Carl Winter, Chair of the Department of Food Science and Technology at the University of California at Davis. The university has received approximately $2 million a year from the agrichemical industry, according to a university researcher, though the accuracy of that figure has not been established.

The authors took their report directly to Congress, holding three different presentations in Washington, D.C., designed to promote their message of pesticide safety for use in “media food safety stories, and consumer advice regarding which foods consumers should (or should not) consume.”

The pro-pesticide sessions were held at the office buildings for members of Congress and, appropriately it seems, at the headquarters for CropLife America, the lobbyist for the agrichemical industry. 

 

An Unappetizing Analysis from the FDA

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Last month the Food & Drug Administration published its latest annual analysis of the levels of pesticide residues that contaminate the fruits and veggies and other foods we Americans routinely put on our dinner plates. The fresh data adds to growing consumer concern and scientific debate over how pesticide residues in food may contribute – or not – to illness, disease and reproductive problems.

Over 55 pages of data, charts and graphs, the FDA’s “Pesticide Residue Monitoring Program” report also provides a rather unappetizing example of the degree to which U.S. farmers have come to rely on synthetic insecticides, fungicides and herbicides in growing our food.

We learn, for instance, in reading the latest report, that traces of pesticides were found in 84 percent of domestic samples of fruits, and 53 percent of vegetables, as well as 42 percent of grains and 73 percent of food samples simply listed as “other.” The samples were drawn from around the country, including from California, Texas, Kansas, New York and Wisconsin.

Roughly 94 percent of grapes, grape juice and raisins tested positive for pesticide residues as did 99 percent of strawberries, 88 percent of apples and apple juice, and 33 percent of rice products, according to the FDA data.

Imported fruits and vegetables actually showed a lower prevalence of pesticides, with 52 percent of fruits and 46 percent of vegetables from abroad testing positive for pesticides. Those samples came from more than 40 countries, including Mexico, China, India and Canada.

We also learn that for the most recently reported sampling, among the hundreds of different pesticides, the FDA found traces of the long-banned insecticide DDT in food samples, as well as chlorpyrifos, 2,4-D and glyphosate.  DDT is linked to breast cancer, infertility and miscarriage, while chlorpyrifos – another insecticide – has been scientifically shown to cause neurodevelopmental problems in young children.

Chlorpyrifos is so dangerous that the European Food Safety Authority has recommended a ban of the chemical in Europe, finding that there is no safe exposure level. The herbicides 2,4-D and glyphosate are both linked to cancers and other health problems as well.

Thailand recently said it was banning glyphosate and chlorpyrifos due to the scientifically established risks of these pesticides.

Despite the prevalence of pesticides found in U.S. foods, the FDA, along with the Environmental Protection Agency (EPA) and the U.S. Department of Agriculture (USDA), assert that pesticide residues in food are really nothing to worry about. Amid heavy lobbying by the agrichemical industry the EPA has actually supported continued use of glyphosate and chlorpyrifos in food production.

The regulators echo the words of Monsanto executives and others in the chemical industry by insisting that pesticide residues pose no threat to human health as long as the levels of each type of residue falls under a “tolerance” level set by the EPA.

In the most recent FDA analysis, only 3.8 percent of domestic foods had residue levels that were considered illegally high, or “violative.” For imported foods, 10.4 percent of the foods sampled were violative, according to the FDA.

What the FDA did not say, and what regulatory agencies routinely avoid saying publicly, is that the tolerance levels for certain pesticides have risen over the years as the companies that sell the pesticides request higher and higher legal limits. The EPA has approved several increases allowed for glyphosate residues in food, for instance. As well, the agency often makes the determination that it need not comply with a legal requirement that states the EPA  “shall apply an additional tenfold margin of safety for infants and children” in setting the legal levels for pesticide residues. The  EPA has overridden that requirement in the setting of many pesticide tolerances, saying no such extra margin of safety is needed to protect children.

The bottom line: The higher the EPA sets the “tolerance” allowed as the legal limit, the lower the possibility that regulators will have to report “violative” residues in our food.  As a result, the U.S. routinely allows higher levels of pesticide residues in food than other developed nations. For example, the legal limit for the weed killer glyphosate on an apple is 0.2 parts per million (ppm) in the United States but only half that level – 0.1 ppm – is allowed on an apple in the European Union. As well, the U.S. allows residues of glyphosate on corn at 5 ppm, while the EU allows only 1 ppm.

As legal limits rise for pesticide residues in food, many scientists have been increasingly raising alarms about the risks of regular consumption of the residues, and the lack of regulatory consideration of the potential cumulative impacts of consuming an array of bug and weed killers with every meal.

A team of Harvard scientists are calling for in-depth research about potential links between disease and consumption of pesticide as they estimate that more  than 90 percent of people in the United States have  pesticide residues in their urine and blood due to consumption of pesticide-laced foods.  A study connected to Harvard found that dietary pesticide exposure within a “typical” range was associated both with problems women had getting pregnant and delivering live babies.

Additional studies have found other health problems tied to dietary exposures to pesticides, including to glyphosate.  Glyphosate is the most widely used herbicide in the world and is the active ingredient in Monsanto’s branded Roundup and other weed killing products.

Pesticide Industry Push Back 

But as the concerns mount, agrichemical industry allies are pushing back. This month a group of three researchers with long-standing close ties to the companies that sell agricultural pesticides released a report seeking to soothe consumer worries and discount the scientific research.

The report, which was issued Oct. 21, stated that “there is no direct scientific or medical evidence indicating that typical exposure of consumers to pesticide residues poses any health risk. Pesticide residue data and exposure estimates typically demonstrate that food consumers are exposed to levels of pesticide residues that are several orders of magnitude below those of potential health concern.”

Not surprisingly, the three authors of the report are closely tied to the agrichemical industry. One of the report’s authors is Steve Savage, an agrichemical industry consultant and former DuPont employee. Another is Carol Burns, a former scientist for Dow Chemical and current consultant for Cortevia Agriscience, a spin-off of  DowDuPont. The third author is Carl Winter, Chair of the Department of Food Science and Technology at the University of California at Davis. The university has received approximately $2 million a year from the agrichemical industry, according to a university researcher, though the accuracy of that figure has not been established.

The authors took their report directly to Congress, holding three different presentations in Washington, D.C., designed to promote their message of pesticide safety for use in “media food safety stories, and consumer advice regarding which foods consumers should (or should not) consume.”

The pro-pesticide sessions were held at the office buildings for members of Congress and, appropriately it seems, at the headquarters for CropLife America, the lobbyist for the agrichemical industry. 

 

A Message from Maine: It’s Time to Get Serious About Sustainability

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As summer turns to fall, the Maine landscape is beautiful to behold. Lush forests stretch as far as the eye can see in a tapestry of green, yellow and crimson-colored leaves. Every few miles along a narrow roadway, restored wooden barns adjoin modest homes set on tidy acres where farm families coax food from the soil and tend to livestock.

I was fortunate to visit this northeastern farm state recently, spending time at the “Common Ground Country Fair” in Unity, Maine. Only about 2,000 people live in the tiny town, but an estimated 57,000 people jammed the single-lane roads to swarm this year’s three-day event in late September.

The fair was part celebration and part education – a festival of first-hand knowledge about how to produce food in ways that focus on enhancing, not endangering, human and environmental health. Young and old gathered in yellow-and-white striped tents to discuss such topics as the marketing of organic lowbush wild blueberries, how to develop “micro-dairies,” and science that shows healthy, chemical-free soils can better sequester carbon from the atmosphere as a mitigant to the climate crisis.

In a jangly parade running through the middle of the fairgrounds, children and adults dressed as honeybees, fresh vegetables, sunflowers and trees and carried colorful signs calling for protections from the threats posed by industrial agriculture. One small child carried a sign that read “No sprays on me.”

The messages carried through that parade and across the fairgrounds speak to the fact that alongside this jovial festival of food and farming are mounting concerns about a lack of leadership in Washington and federal promotion of the permissive use of synthetic fertilizers and pesticides in farming; as well as the monoculture cropping practices that have become a mainstay of U.S. agriculture and are stripping away essential biodiversity.

This week, a group of state leaders cut the ribbon on a project to help address those concerns by promoting sustainable solutions in Maine that they intend as an example for the rest of the nation to follow.

The Maine Harvest Federal Credit Union opened its doors Oct. 8 as the first U.S. member-owned financial institution focused solely on funding small farms and food businesses that engage in sustainable agricultural practices. The credit union aims to provide financing for endeavors that improve access to fresh, locally grown food and are environmentally protective. With roughly 40 percent of the state’s 7,600 farms run by men and women under the age of 40, there is an appetite for progressive strategies to improve food production systems, supporters say.

“We are not there to finance commodity agriculture. We are organized to serve a re-vitalized and re-localized food economy,” co-founder Sam May told me. “The modern food system has it all wrong. It is killing the planet, the soil, our personal health and putting our civilization at risk. We are doing what we are doing in Maine because it needs to be done and we can do it.”

The credit union founders, former veterans of Wall Street, have raised $2.4 million in capital that includes a $300,000 conservation innovation grant from the U.S. Department of Agriculture.  The founders have garnered the support of the state’s U.S. congressional delegation, including Republican U.S. Sen. Susan Collins.

U.S. Rep. Chellie Pingree, a Democrat from Maine, emphasized the need for more of this type of support: “Our food economy is growing rapidly and financial support will be a big part of that continued growth going forward. I’m so pleased to see this first-in-the-country credit union that will support the unique needs of small farms and food businesses. I hope other states take note and help to close the gap between farmers and their financial institutions,” she said in a statement.

The work is not just admirable but urgent. In addition to scientific reports linking industrial agriculture and agrochemicals to water pollution, sterile soils, human diseases and reproductive problems, recently released research shows additional links to sharp declines in important bird and insect populations.

But rather than heed the warnings, the Trump Administration is racing to rollback regulatory protections at a rapid rate.

It seems fitting that it was here in Maine, more than 50 years ago, where author Rachel Carson kept a cottage and would sometimes retreat as she wrote about the dire consequences of a world awash in chemicals, a world where nature is sacrificed, and the sounds of song birds going silent.

To visit a country fair in the fall in Maine is to see what that long-ago call for action from Carson looks like in modern form. These are people who recognize that they must protect and build upon systems that sustain and nourish, not systems that destroy. These are people who hope their children and grandchildren will always be able to behold a landscape of lush forests and rich farmland as far as the eye can see.

It’s a lesson the rest of the country needs to learn. There is no time to waste.

Another St. Louis Roundup Cancer Trial Officially Postponed Until 2020

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A trial set to start next week over claims that Monsanto’s Roundup weed killers cause cancer has been postponed until at least next year, according to a judge’s ruling on Friday.

The trial would have been the first of its kind to take place in the St. Louis area, Monsanto’s hometown before the company sold to German pharmaceutical giant Bayer AG last year.

Two previously scheduled trials in St. Louis area were also postponed until next year. The status of the trial that had been due to start next week  – Walter Winston, et al v. Monsanto – had already been in doubt for weeks but the delay was made official Friday:

“Whereas the parties in the above-captioned case have requested that the Court take the trial in the above-captioned case off calendar, it is hereby ORDERED that the trial, scheduled for october 15, 2019 will not begin as scheduled. Cause set for status on Feb 10, 2020 @ 9:00 a.m. SO ORDERED: JUDGE MICHAEL MULLEN.”

The Winston case has been unraveling a thread at a time over issues of venue. The case was filed in St. Louis City Court but last month Mullen, who is a St. Louis Circuit Court Judge,  transferred all plaintiffs except Winston from the city court to St. Louis County. Lawyers for the plaintiffs then sought to have the trial take place in the county court on Oct. 15, a position Monsanto opposed. Last week, a judge in the county ruled against the plaintiffs bid for that trial date.

Lawyers for the plaintiffs are now asking for a trial date later this year or early next year. With the transfer of the 13 plaintiffs out of the Winston case in St. Louis City, the case in St. Louis County is now titled Kyle Chaplick, et al v. Monsanto.

“Monsanto’s repeated attempts to avoid the trial…  should be rejected, and the case should be set for trial in 2019 or as soon thereafter as is practicable,”‘ the plaintiffs’ attorneys stated in a motion filed Oct. 3.

The 14 plaintiffs who were in the Winston case are among more than 18,000 people in the United States suing Monsanto claiming that exposure to the company’s glyphosate-based herbicides caused them to develop non-Hodgkin lymphoma and that Monsanto hid the risks associated with its weed killers.

Three juries in three trials over similar claims have found in favor of plaintiffs and ordered large punitive damages against Monsanto.

Bayer and lawyers for the plaintiffs are engaged in discussions about a potential global settlement  of the litigation. Bayer has been dealing with a depressed share price and disgruntled investors ever since the Aug. 10, 2018 jury decision in the first Roundup cancer trial. The jury awarded California groundskeeper Dewayne “Lee” Johnson $289 million and found that Monsanto acted with malice in suppressing information about the risks of its herbicides.