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 duringher opening statement.” One of her transgressions, according to Chhabria, was spending too much time telling jurors about her client and his cancer diagnosis.
March 15, 2019: 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.”
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 presenttestimony 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 toMonsanto’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 studyby attempting to undermine and discredit Dr. Séralini, which is further evidence “that Monsanto doesnot particularly care whether its product is in fact giving people cancer,” but “[focuses] instead onmanipulating public opinion and undermining anyone who raises genuine and legitimate concernsabout the issue.” “
“The Séralini Story is Relevant to Monsanto’s Efforts to Undermine Scientists RaisingConcerns about Glyphosate,” Hardeman’s attorneys argue.
Lawyers for Hardeman want expert witness CharlesBenbrook 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 thatevidence of Monsanto’s efforts to discredit theInternational 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
(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
(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 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.
and there are no pathological features to suggest a cause of his lymphoma.”
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:
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.
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 said in a Feb. 15 hearing that he will separate out all jury candidates on a Monsanto list who say they have heard about the Johnson case for specific questioning about their knowledge of that case.
Among those already stricken from the jury pool based on their written questionnaires were several people who indicated they had negative perceptions about Monsanto. While the judge agreed with Monsanto’s request to remove those people from the jury pool, he refused a request from plaintiff’s attorneys to strike a prospective juror who said the opposite – the juror wrote that he feels that “they (Monsanto) typically are very honest and helpful to society,” and said he believed Monsanto’s Roundup herbicide was safe.
Judge Chhabria said “I didn’t think anyone in the Bay Area felt that way….”
In other pre-trial action, lawyers from both sides were in Australia preparing for testimony from plaintiff’s expert witness Christopher Portier. Portier is providing video-recorded testimony in advance with direct and cross-examination. He was scheduled to be in court in person for the trial but suffered a heart attack in January and has been advised against the long air travel that would be required to appear in person.
Portier is one of the plaintiff’s star witnesses. He is former director of the National Center for Environmental Health and Agency for Toxic Substances and Disease Registry and a former scientist with the National Institute of Environmental Health Sciences.
In other pre-trial action, Judge Chhabria ruled on Monday on motions from both parties dealing with what evidence would be allowed in and what would be excluded. Chhabria has ruled that there will be a first phase of the trial in which evidence will be limited to causation. If the jury does find that Monsanto’s products caused Hardeman’s cancer there will be a second phase in which evidence may be introduced pertaining to the allegations by plaintiff’s attorneys that Monsanto has engaged in a cover-up of the risks of its products.
Evidence the plaintiff’s attorneys say shows Monsanto engaged in ghostwriting scientific literature is excluded for the first phase of the trial.
- Evidence or Monsanto’s marketing materials is excluded for both phases.
- Comparisons between Monsanto and the tobacco industry are excluded.
- An email from Monsanto discussing work with the American Council on Science and Health is excluded from the first phase.
- Arguments that glyphosate is needed to “feed the world” are excluded for both phases.
- Certain EPA documents are excluded.
- An analysis by the International Agency for Research on Cancer classifying glyphosate as a probable human carcinogen is “restricted.”
One piece of evidence plaintiff’s attorneys plan to introduce is a new meta-analysis A broad new scientific analysis of the cancer-causing potential of glyphosate herbicides. The study found that people with high exposures to the herbicides have a 41% increased risk of developing non-Hodgkin lymphoma (NHL).
The study authors, top scientists who the Environmental Protection Agency has used as advisers, said the evidence “supports a compelling link” between exposures to glyphosate-based herbicides and increased risk for NHL.
February 8, 2019: 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 issues they do not want introduced at trial.
Among the things the company does not want presented at trial are the following: Mentions of other litigation against Monsanto; evidence regarding the company’s public relations activities; comparisons to the tobacco industry; information about the company’s association with “controversial products” such as Agent Orange and PCBs; information about Monsanto’s “wealth”; and information about “Bayer’s role in World War II.”
None of the evidence Monsanto wants excluded at trial has any bearing on whether or not its herbicides caused the plaintiff’s non-Hodgkin lymphoma, the company’s attorneys told the judge.
The plaintiffs’ attorneys have their own list of things they’d rather not be presented to the jury. Among them: Information about attorney advertising for plaintiffs in the Roundup litigation; the “unrelated medical history” of plaintiff Edwin Hardeman; and evidence about foreign regulatory decisions.
Meanwhile, on Feb. 6 both parties filed a “joint trial exhibit list” detailing each and every piece of evidence they plan to present – or may present – to the jury. The list runs 314 pages and includes a host of internal Monsanto documents as well as regulatory documents, scientific studies, and reports by various expert witnesses.
Bayer added another member to the Monsanto Roundup defense team. On Feb. 8, Shook Hardy & Bacon attorney James Shepherd filed his notice of appearance in the Roundup Products Liability Litigation in federal court. Shepherd has defended Bayer against various lawsuits, including claims alleging injuries tied to Bayer’s cholesterol-lowering medication, and allegations of harm from an intrauterine device (IUD).
As well, both sides recently filed a joint list of exhibits each plan to introduce at trial, including depositions, photographs, emails, regulatory documents, scientific studies and more. The list runs 320 pages.
Judge Vince Chhabria indicated in a Feb. 4 hearing that if the jury finds for the plaintiff in the first phase of the bifurcated trial, meaning if the jury determines that Monsanto’s herbicides were a cause of Edwin Hardeman’s cancer, the second phase of the trial will begin the following day. That second phase will focus on Monsanto’s conduct and any potential punitive damages.
All the related documents can be found on our Monsanto Papers page.
January 29, 2019 – We are less than a month away from the start of the first federal trial in the Roundup products liability litigation, and both sides are loading up the court files with scores of pleadings and exhibits. Included in recent filings are several noteworthy internal Monsanto documents. A few are highlighted below. A more complete posting of the court documents can be found on the main USRTK Monsanto Papers page.
- Get up and shout for glyphosate: Internal Monsanto emails written in 1999 detail the company’s “scientific outreach” work and efforts to develop a global network of “outside scientific experts who are influential at driving science, regulators, public opinion, etc.” The plan called for having people “directly or indirectly/behind the scenes” working on Monsanto’s behalf. The company wanted “people to get up and shout Glyphosate is Non-toxic,” according to the email thread. For the plan to work they “may have to divorce Monsanto from direct association with the expert or we will waste the $1, 000/day these guys are charging.”
- This intriguing email thread from January 2015 discusses a retired Monsanto plant worker who reported to the company that he had been diagnosed with Hairy cell leukemia, a type of non-Hodgkin lymphoma. He wrote that he had “irregular blood counts” before he retired, and he wondered if his diagnosis was “related to working around all of the chemicals” at the company’s plant. The company’s “adverse effects team” reviewed his case and a Monsanto “health nurse” told him they had not found an association between his “medical condition” and the chemicals at the plant where he worked. They also indicate in the email thread that there is no need to notify EPA. One email dated Nov. 21, 2014 written broadly to “Monsanto Employees” from the adverse effects team lets employees know that although the EPA requires the reporting of information about adverse effects of pesticide products such as injury or health problems, employees should not notify EPA themselves if they become aware of any such problems. Employees should “immediately forward” information to the company’s adverse effects unit instead.
- Did Monsanto Collaborate on AHS Study? Monsanto and new owner Bayer repeatedly have sought to counter scores of studies showing ties between glyphosate herbicides and cancer by touting one study – an update to the U.S. government-backed Agricultural Health Study (AHS) that found no ties between glyphosate and non-Hodgkin lymphoma. The AHS is a foundational part of the company’s defense in the Roundup products liability litigation. But there have been many questions about the timing of the AHS update, which raced through peer review much faster than is normal for papers in peer-reviewed journals. The update was released to the public on the morning of Nov. 9, 2017 – the same day as a critical court hearing in the Roundup cancer litigation. It was cited by Monsanto at that hearing as a “significant development” and a reason to delay proceedings. A May 11, 2015 internal Monsanto “Proposal for Post-IARC Meeting Scientific Projects ” discusses the potential for an “AHS Collaboration.” Monsanto called the proposal “most appealing” as it would appear that Monsanto was “somewhat distanced” from the study.
- Despite much talk about “800 studies” showing the safety of glyphosate Monsanto acknowledged in a court filing that it “has not identified any 12 month or longer chronic toxicity studies that it has conducted on glyphosate containing formulations that were available for sale in the United States of as June 29, 2017.”
Separate news of note –Plaintiffs’ expert scientific witness Dr. Christopher Portier will not be coming to San Francisco to testify at the trial as planned. Portier suffered a heart attack while traveling in Australia earlier in January and is still recovering.
And in a move welcomed by plaintiffs’ attorneys, U.S. Judge Vincent Chhabria on Monday said that he may allow some evidence about Monsanto’s alleged ghostwriting of scientific studies into the first phase of the upcoming trial despite Monsanto’s efforts to keep the evidence out until and unless a second phase of the trial occurs. Evidence of Monsanto’s efforts to influence regulators and scientists may also be allowed in the first phase, Chhabria said. Chhabria has ordered that the trial be bifurcated, meaning that the first phase will deal only with the allegation of causation. If the jury does find that Monsanto’s herbicides caused plaintiff Edwin Hardeman’s cancer, then a second phase would be held to explore Monsanto’s conduct.
January 18, 2019 —Time flies when a big case approaches.U.S. District Judge Vince Chhabria has set 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 transcript of the Jan. 4 hearing on the matter is informative.
Here is an exchange between plaintiff’s attorney Brent Wisner and Judge Vince Chhabria that illustrates the frustration and fear plaintiff’s attorneys have over the limitation of their evidence to direct causation, with much of the evidence dealing with Monsanto’s conduct and internal communications restricted. The judge has said that evidence would only come in at a second phase of the trial if jurors in a first phase find that Monsanto’s Roundup products directly contributed substantially to the plaintiff’s cancer.
- 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.
- 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.
- WISNER: Sure. She is literally talking about the
science that they didn’t do.
THE COURT: My gut is that that is actually really a
fairly easy question, and the answer to that fairly easy
question is that that doesn’t come in in the first phase.”
January 9, 2019 – The first federal trial in the Roundup Products Liability Litigation may still be more than a month away, but the calendar is busy for attorneys on both sides. See below the schedule set by the judge in an order filed yesterday:
PRETRIAL ORDER NO. 63: UPCOMING DEADLINES FOR BELLWETHER TRIAL.
- Evidentiary Hearing set for 1/28/2019 09:00 AM in San Francisco, Courtroom 04, 17th Floor before Judge Vince Chhabria.
- Dr. Shustov’s Daubert Hearing set for 1/28/2019 02:00 PM in San Francisco, Courtroom 04, 17th Floor before Judge Vince Chhabria.
- Jury Selection to complete the supplemental questionnaire in the jury office (not on the record or in court) set for 2/13/2019 08:30 AM in San Francisco.
- Jury Selection (hardship and challenge cause hearing with counsel and Court) set for 2/15/2019 10:30 AM in San Francisco, Courtroom 04, 17th Floor before Judge Vince Chhabria.
January 7, 2019 – The new year is off to a strong start for Monsanto as the Bayer unit heads into its second trial over allegations that its Roundup and other glyphosate-based herbicides cause cancer. In a Jan. 3 ruling, U.S. District Judge Vince Chhabria rejected arguments by attorneys representing cancer victims and sided with Monsanto in deciding to block jurors from hearing a large portion of evidence that plaintiffs say shows efforts by Monsanto to manipulate and influence regulators in a first phase of the trial. In deciding to bifurcate the trial, Chhabria said that jurors will only hear such evidence if they first agree that Monsanto’s weed killer did significantly contribute to causing the plaintiff’s non-Hodgkin lymphoma (NHL).
“A significant portion of the plaintiffs’ case involves attacks on Monsanto for attempting to influence regulatory agencies and manipulate public opinion regarding glyphosate. These issues are relevant to punitive damages and some liability questions. But when it comes to whether glyphosate caused a plaintiff’s NHL, these issues are mostly a distraction, and a significant one at that,” the judge’s order states.
He did provide a caveat, writing, “if the plaintiffs have evidence that Monsanto manipulated the outcome of scientific studies, as opposed to agency decisions or public opinion regarding those studies, that evidence may well be admissible at the causation phase.”
Jury selection is set to begin Feb. 20 with the trial set to get underway on Feb. 25 in San Francisco. The case is Edwin Hardeman v. Monsanto.
Meanwhile, plaintiff Lee Johnson, who was the first cancer victim to take Monsanto to trial, winning a unanimous jury verdict against the company in August, has also won his request to the 1st District Court of Appeals for speedy handling of Monsanto’s appeal of that jury award. Monsanto opposed Johnson’s request for “calendar preference,” but the court granted the request on Dec. 27, giving Monsanto 60 days to file its opening brief.
December 20, 2018 – U.S. District Judge Vince Chhabria said on Thursday that he would not rule until January on the disputed issue of bifurcation of the first federal trial, which is set to get underway in February. Attorneys for plaintiffs and for Monsanto were ordered to file all of their experts’ reports by Friday, December 21 to help Chhabria in his decision.
December 18, 2018 –Monsanto/Bayer lawyers responded Friday to de-designation requests concerning several hundred internal Monsanto records, seeking to keep most of them sealed in opposition to requests from plaintiffs’ attorneys. Company lawyers did agree to the release of some internal documents, which could be made public this week.
In the meantime both sides are awaiting a ruling from U.S. District Court Judge Vince Chhabria on a motion made by Monsanto attorneys to reverse bifurcate the first federal court trial in the mass Roundup cancer litigation. That trial is set to begin Feb. 25 and is considered a bellwether that will set the stage for how and if other cases proceed and/or are resolved.
Monsanto would like the federal court trials to be conducted in two phases—a first phase focused on medical causation – did the company’s herbicides cause the specific plaintiff’s cancer – and a second phase to address liability only if plaintiffs prevail in the first phase.
The issues of causation and compensatory damages are “separate and distinct from Monsanto’s alleged negligence and company conduct and would involve testimony from different witnesses,” the company argued. Bifurcation would avoid “undue delay in resolving this case…”
Plaintiffs’ attorneys object to the bifurcation saying the idea is “unheard of” in modern multi district litigation (MDL), which is what Chhabria is overseeing. More than 600 lawsuits are pending in his court alleging that Monsanto’s glyphosate-based herbicides caused plaintiffs’ cancers, and Monsanto failed to warn consumers of the dangers of its products.
“It is simply never done, and for good reason,” plaintiffs’ attorneys argued in a Dec. 13 court filing. “The purpose of a bellwether trial is to allow each side to test their theories and evidence against a real-world jury and, hopefully, learn important information about the strengths and weaknesses of the case to inform collective resolution. Imposing a one-sided procedural hurdle—one that would be a de facto outlier for the 10,000 cases proceeding around the country—does not accomplish that goal. It renders any verdict in this MDL, no matter which side prevails, unhelpful.” The next hearing in the case is set for Jan. 4.
December 14, 2018 – 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