Jury Deliberating

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(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.

Concerns over Judge’s Jury Instructions

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(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 instruction Chhabria added wording that said a substantial factor “does not have to be the only cause of the harm.”

Monsanto has argued that Hardeman’s cancer is not due to exposure to glyphosate-based herbicides but more likely due to the hepatitis C Hardeman had for many years.

This is also an interesting little nugget in the jury instructions:

Meanwhile, in the upcoming Pilliod V. Monsanto case, motion hearings and discussion of hardship claims for prospective jurors begins next week in Alameda County Superior Court in Oakland, not far from downtown San Francisco where the Hardeman case may still be underway if it goes to the second phase.

Opening statements in the Pilliod trial could begin March 21 but more likely will take place March 25 or later depending on how long the jury selection process takes.

Hepatitis C and… Hugh Grant?

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(See video update here)

(Transcript from today’s proceedings)

Monsanto’s legal team on Monday presented testimony from Dr. Alexandra Levine, a hematologist/oncologist with City of Hope Comprehensive Cancer Center, seeking to convince the jury that exposure to glyphosate-based herbicides was not a cause of Hardeman’s cancer, and that a more likely factor is the hepatitis C Hardeman had for many years. Levine testified that she has seen “many, many, thousands of patients with non-Hodgkin’s lymphoma,” and she is in fact considered a specialist in that specific disease.

Judge Chhabria said last week that he would like to see this first phase of the trial wrapped up early this week, meaning the case should be with the jury soon. A verdict requires all six jurors to be unanimous in their finding regarding whether or not Hardeman’s exposure to Roundup “was a substantial factor” in causing his cancer. The judge will define for jurors what that means. (See Friday’s entry for more details.)

If the jury does not unanimously decide either for Hardeman or Monsanto then the case would be a mistrial. Chhabria has also said that if that happens he is considering retrying it in May.

If the jury finds for Hardeman on causation, the trial would quickly move into Phase II using the same jury. And that is where things will really start to get interesting. Hardeman’s attorneys plan to call several Monsanto executives for testimony, including former Monsanto Chairman and CEO Hugh Grant. Grant spent more than 35 years at the company and was named CEO in 2003. He led the company until its acquisition by Bayer AG last summer.

Additionally, lawyers for Hardeman plan to call Roger McClellan, editor of the scientific journal Critical Reviews in Toxicology (CRT), which published a series of papers in September 2016 that rebuked the finding by the International Agency for Research on Cancer (IARC) finding that glyphosate was a probable human carcinogen. The papers purported to be written by independent scientists who found that the weight of evidence showed the weed killer was unlikely to pose any carcinogenic risk to people.

However, internal Monsanto documents show that the papers were conceptualized from the outset as a strategy by Monsanto to discredit IARC. One of Monsanto’s top scientists not only reviewed the manuscripts but had a hand in drafting and editing them, though that was not disclosed by CRT.

Hardeman’s lawyers additionally said they plan to call Doreen Manchester, of CropLife America, the agrochemical industry’s lobbying organization. Manchester’s role at CropLife has been helping “lead federal and state litigation to support pesticide regulatory issues.”

Phase 1 Nears End, Judge Ponders Jury Instructions

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(Transcript from today’s proceedings)

Lawyers for plaintiff Edwin Hardeman rested their case on Friday, giving Monsanto a turn to put on its own witnesses in this first phase of the case.

Judge Chhabria has indicated he would like to see the first phase of the trial wrapped up by early next week, and he has ordered attorneys for both sides to be ready to discuss and debate two proposed sets of instructions for him to give the jury for deliberations regarding the definition of “causation.”

For Hardeman’s case to be allowed to proceed to a Phase 2 in which damages could be awarded, the group of six jurors must be unanimous in finding that Roundup caused his non-Hodgkin lymphoma, so the judge’s instructions about how the element of causation is defined is a critical point.

The judge’s first option reads as follows: “To prevail on the question of medical causation, Mr. Hardeman must prove by a preponderance of the evidence that Roundup was a substantial factor in causing his non Hodgkin’s lymphoma. A substantial factor is a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor. If you conclude that Mr. Hardeman has proven that his exposure to Roundup was a substantial factor in causing his NHL, then you should find for Mr. Hardeman even if you believe that other risk factors were substantial factors as well.”

The judge’s second option has the same first three lines as the first option but then adds this: “Conduct is not a substantial factor in causing harm if the same harm would have occurred without that conduct.”

Option 2 also changes the last line of the instruction to say: “However, if you conclude that Mr. Hardeman has proven that his exposure to Roundup was sufficient on its own to cause his NHL, then you should find for Mr. Hardeman even if you believe that other risk factors were also sufficient to cause his NHL.”

A big part of Monsanto’s defense is to suggest that other factors could be the cause of Hardeman’s cancer, including a struggle with hepatitis C. Hardeman’s team has said that he was cured in 2006 of hepatitis C but Monsanto’s team argues that cell damage from the hepatitis was a potential contributor to his cancer.

Monsanto expert witness Dr. Daniel Arber  in his pre-trial report wrote that Hardeman has many risk factors for NHL, and said: “There is no indication that Roundup played any role in the development of his NHL, and there are no pathological features to suggest a cause of his lymphoma.”

Judge Chhabria has ruled that Arber cannot testify that the hepatitis C caused Hardeman’s NHL but ruled Thursday that Arber can explain that Hardeman’s lengthy exposure to hepatitis C left him at risk of developing NHL even after his virus had been successfully treated.

Several new documents have been filed by both parties related to evidence and jury instructions. See them at Monsanto Papers Hardeman page.

Judge Has Harsh Words for Monsanto

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Judge Vince Chhabria issued a stinging response to Monsanto’s motion for summary judgment on Thursday, stating in his order that there was plenty of evidence that the company’s glyphosate herbicides – namely Roundup – could have caused plaintiff Edwin Hardeman’s cancer. 

“To take just one example,” the judge wrote, “the De Roos (2003) study supports a conclusion that glyphosate is a risk factor for NHL, yet Monsanto fails to mention it inits motion. Monsanto cannot prevail on a motion for summary judgment by simply ignoring large swaths of evidence.” 

He also said there was “sufficient evidence” to support a punitive damages award against Monsanto if the jury finds for Hardeman. 

“The plaintiffs have presented a great deal of evidence that Monsanto has not taken a responsible, objective approach to the safety of its product,” Judge Chhabria stated in his ruling. 

The judge concluded: “Although the evidence that Roundup causes cancer is quite equivocal, there is strong evidence from which a jury could conclude that Monsanto does not particularly care whether its product is in fact giving people cancer, focusing instead on manipulating public opinion and undermining anyone who raises genuine and legitimate concerns about the issue.”

No Trial Today, But a Story About the Last Trial

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(UPDATE: The parties settled their litigation out of court in November 2019.)

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, “disloyal and erratic conduct,” and defamation. 

In a lawsuit and counterclaim filed in Orange County Circuit Court in Virginia, The Miller Law Firm accuses attorney Tim Litzenburg, someone who was initially Johnson’s lead 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 a partner with the firm of Kincheloe, Litzenburg & Pendleton, denied all of the allegations and filed a counterclaim alleging defamation of character and intentional tortious interference with his business interests.  

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.

The Miller Firm and Litzenburg will make their first appearance in their litigation against each other in an Orange, Virginia courtroom on May 28.  

Nearing the End of the First Phase

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(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 testimony in which he said that he sprayed Roundup once a month for three to four hours at a time around his property and sometimes felt like chemical mist blowing onto his skin.

Plaintiff’s attorneys expected to rest their case today but Weisenburger’s testimony ran so long that they now plan to rest the case when court resumes on Friday. No proceedings are scheduled for Thursday.

See documents pertaining to testimony on the Monsanto Papers page.

Separately, lawyers gathered in nearby Alameda County Superior Court for a “Sargon” hearing ahead of the March 18 start of Pilliod V. Monsanto.The Pilliod case will be the third to go to trial challenging Monsanto and its new owner Bayer over alleged carcinogenicity of Roundup products. See Pilliod case documents at this link.

Hardeman to Testify, Sick Juror or Not

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(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 any sort of speculation about how the use of the sprayer could have influenced exposure…” but Chhabria sided with Hardeman’s lawyers, saying he would allow a brief demonstration with the sprayer. He even made a bit of a joke:

THE COURT: I mean, one helpful bit of guidance I can provide now is that the Plaintiffs are not allowed to spray you with the sprayer.
MS. MATTHEWS (Monsanto attorney): Okay.
THE COURT: And they are definitely not allowed to spray me with the sprayer.

In another move applauded by Hardeman’s legal team, Chhabria said Monday that testimony about the “Parry report” can be presented to jurors. Monsanto objected but the judge agreed with plaintiff’s counsel that “the door has been opened to the Parry report” by Monsanto’s efforts to contest evidence of genotoxicity with glyphosate herbicides. Dr. James Parry was a consultant hired by Monsanto in the 1990s to weigh in on genotoxicity concerns being raised at the time by outside scientists. Parry’s report recommended that Monsanto do additional studies to “clarify the potential genotoxic activity” of glyphosate.

See this snippet from Monday’s discussion of this topic:

THE COURT: Okay. Well, Monsanto has a report from a doctor
that it hired that — that raised concerns about the
genotoxicity of glyphosate. So it seems to me that you are — you have already said something to the jury — even before we get to your second
point, you have already said something to the jury that is contradicted to a degree by an internal Monsanto document. And so why shouldn’t they be able to cast doubt on Monsanto’s assertion to the jury that genotox doesn’t matter bye stablishing that Monsanto hired a doctor to — or hired an
expert to look at the issue of genotoxicity in the late ’90s and the expert raised concerns about genotoxicity? … I mean, Monsanto itself investigated genotox – hired somebody to investigate genotox, and that person concluded that genotox — that it’s possibly genotoxic.

After Hardeman’s testimony, next up with be expert witness Dennis Weisenburger, professor of the Pathology Department of the City of Hope Medical Center in Omaha, Nebraska.

Cancer Victim to Take the Stand (Not.)

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(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.

Something to Chew On

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(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 the University of California, Berkeley School of Law, graduating with honors. He served as law clerk for two federal judges and for Supreme Court Justice Stephen Breyer and worked as an associate for two law firms before joining the San Francisco City Attorney’s Office where he worked from 2005 to 2013. He was nominated by President Obama for the seat he holds now in the summer of 2013.

But interestingly, one of those law firms where Chhabria worked has raised eyebrows. Covington & Burling, LLP, is a well-known defender of a variety of corporate interests, including Monsanto Co. Covington was reportedly instrumental in helping Monsanto defend itself against dairy industry concerns over the company’s synthetic bovine growth hormone supplement, known as rBGH (for recombinant bovine growth hormone) or the brand name Posilac.

Chhabria worked at the firm between 2002-2004, a time period when Monsanto’s legal battle over Posilac was in high gear. The firm was reportedly involved in the issue in part by “sending letters to virtually all U.S. dairy processors, warning that they faced potential legal consequences if they labeled their consumer products as “rBGH-Free.”

Covington is perhaps best known for its work for the tobacco industry. A judge in Minnesota in 1997 ruled that the firm was willfully disregarding court orders to turn over certain documents pertaining to claims that the tobacco industry engaged in a 40-year conspiracy to mislead the public about the health impacts of smoking and hide damaging scientific research from public view.

Shortly before Obama selected Chhabria for his federal judgeship, an array of former Covington & Burling attorneys took spots in the administration, including Attorney General Eric Holder and deputy chief of staff Daniel Suleiman. It was reported that employees of the law firm contributed more than $340,000 to Obama’s campaign.

Chhabria’s tenure at Covington was short, to be sure. There is no apparent evidence Chhabria ever represented Monsanto’s interests directly. But he is also no stranger to the world of corporate power and influence. How those dots connect in this case is so far unclear.