U.S. Scientist Still on Stand in Roundup Cancer Trial

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(Transcript from today’s proceedings)

After a full day of testimony on Tuesday, retired U.S. government scientist Christopher Portier was back to the stand Wednesday to lay out for jurors the scientific research that has convinced him that Monsanto’s glyphosate-based herbicides cause cancer, and the failures of European and American regulatory systems to properly account for the scientific evidence.

Attorneys for the plaintiffs in the case had only a few remaining questions for Portier’s direct testimony before Monsanto’s attorneys were given the opportunity to cross examine Portier.

Portier, whose birthday is today, traveled from Australia to provide the testimony.

Portier was an “invited specialist” to the International Agency for Research on Cancer (IARC) when the unit of the World Health Organization classified glyphosate as a probable human carcinogen in March 2015.

The  plaintiffs are a married couple named Alva and Alberta Pilliod who both developed non-Hodgkin lymphoma after many years of use of Roundup. According to court documents, Alva reported using Monsanto’s Roundup Ready-to-Use Weed & Grass Killer and/or Roundup Super Concentrate approximately twice a week on four properties he and his wife owned  from 1982 to 2016. He did not wear protective clothing. Alberta reported similar usage.

Retired U.S. Government Scientist Testifies Today in Roundup Cancer Trial

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(Transcript from today’s proceedings)

Retired U.S. government scientist Christopher Portier will kick off live testimony today in the third Roundup cancer lawsuit to go to trial. He is expected to tell jurors in Pilliod v. Monsanto how regulators have repeatedly missed key signs that Monsanto’s glyphosate-based herbicides cause cancer.

Portier’s testimony is expected to run all day today and possibly into Wednesday. The current case involves a married couple – Alva and Alberta Pilliod – who both developed non-Hodgkin lymphoma after many years of use of Roundup.

Portier is one of the plaintiffs’ star expert witnesses. He was an “invited specialist” to the International Agency for Research on Cancer (IARC) when the unit of the World Health Organization met in March of 2015 in Lyon, France to review years of published and peer-reviewed scientific studies about glyphosate. At that meeting, IARC classified glyphosate as a probable human carcinogen, though Portier had no vote in the outcome.

Portier resides now most of the time in a remote village in Switzerland, but before his retirement, he led the National Center for Environmental Health/Agency for Toxic Substances and Disease Registry at the Centers for Disease Control and Prevention (CDC), part of the U.S. Department of Health and Human Services. Prior to that role, Portier spent 32 years with the National Institute of Environmental Health Sciences, where he served as associate director, and director of the Environmental Toxicology Program, which has since merged into the institute’s National Toxicology Program.

Monsanto’s attorneys and chemical industry allies have criticized Portier and sought to discredit his opinion that glyphosate herbicides cause cancer. They cite part-time work he has done in retirement for the  nonprofit Environmental Defense Fund, and his role as an expert witness for plaintiffs’ attorneys in the Roundup litigation, though the litigation only began after the IARC classification.

Following Portier’s testimony, plaintiffs’ lawyers expect to put Charles “Bill” Jameson on the stand as a second expert witness. Jameson is a chemist and toxicologist specializing in carcinogenesis.  He has worked as a senior chemist for the National Institutes of Health’s National Cancer Institute and the National Institute of Environmental Health Sciences. He also has consulted for the World Health Organization and served as a member of the IARC working group.

The trial is expected to run into mid-May. Lawyers for the Pilliods have filed a list of exhibits they plan to present at trial that runs more than 280 pages. Monsanto’s list of exhibits runs more than 130 pages.

Long Lists of Evidence in Newest Roundup Cancer Trial

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Monday is another day of rest for opposing sides in the latest Roundup cancer trial – Pilliod V. Monsanto. The plaintiffs in the case, Alva and Alberta Pilliod, are husband and wife and both have non-Hodgkin lymphoma they allege is due to their exposure to Roundup.

Opening statements in the case were delivered to jurors Thursday and the trial is set to resume Tuesday with testimony from plaintiffs’ expert witness Chris Portier a former U.S. government scientist. Portier was a key witness in the first two Roundup cancer trials, both which concluded with large damage awards against Monsanto.

Portier has argued that regulators have incorrectly analyzed glyphosate studies on rodents, and that a correct analysis of the total weight of scientific evidence shows that glyphosate and glyphosate-based herbicides such as Monsanto’s Roundup can cause cancer.

Lawyers for the plaintiffs have filed a list of exhibits– evidence they plan to present at trial. The list runs more than 280 pages.

Monsanto’s list of exhibits runs more than 130 pages.

During this ‘dark’ day as the lawyers call a day with no court, take a look at my piece in The Guardian that ran over the weekend:

“Amid the uproar of the courtroom scuffles, a larger issue looms: Monsanto’s push to make use of glyphosate herbicides so pervasive that traces are commonly found in our food and even our bodily fluids, is just one example of how several corporate giants are creating lasting human health and environmental woes around the world. Monsanto and its brethren have targeted farmers in particular as a critical market for their herbicides, fungicides and insecticides, and now many farmers around the world believe they cannot farm without them.

Studies show that along with promoting illness and disease in people, these pesticides pushed by Bayer and Monsanto, DowDuPont and other corporate players, are endangering wildlife, soil health, water quality and the long-term sustainability of food production. Yet regulators have allowed these corporations to combine forces, making them ever more powerful and more able to direct public policies that favor their interests. While Bayer may dole out a few billion dollars in damages, who is really being made to pay? We all are.”

A Day With No Roundup Cancer Trials

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Both sides were taking a breather Friday as the newest Roundup cancer trial has a ‘dark’ day.

After opening statements Thursday, Pilliod v. Monsanto will resume Tuesday, April 2, in Alameda County Superior Court in Oakland, California. Pilliod is part of a group of cases grouped together under the California Roundup Judicial Council Coordination Proceedings (JCCP). Plaintiffs expect to open testimony with toxicology expert Chris Portier, a former U.S. government scientist.  The trial is expected to run into mid-May.

The Hardeman V. Monsanto case that concluded Wednesday with an $80 million verdict was the first case to go to trial as part of a separate group of cases being handled as multi-district litigation (MDL) proceedings in federal court.

Monsanto, which was purchased by Bayer AG last summer, is facing roughly 11,000 plaintiffs all claiming exposure to Monsanto’s glyphosate-based herbicides caused non-Hodgkin lymphoma and that Monsanto hid the risks.

Bayer investors have pushed share prices down so low that Bayer’s market valuation has fallen below the $63 billion in paid for Monsanto.

Susquehanna Financial Group analyst Tom Claps has warned Bayer shareholders to brace for a global settlement of between $2.5 billion and $4.5 billion.

“We don’t believe (Monsanto) will lose every single trial, but we do believe that they could lose a significant majority,” he said.

Trial Takes a Day Off

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Thursdays are ‘dark’ days for the Roundup cancer trial, meaning lawyers, jurors and witnesses have a day to catch their breath and regroup. And after the fast and furious first three days of the trial, they probably can use the break.

After losing another juror on Wednesday morning, the trial proceeded with the testimony of plaintiff’s expert witness and former U.S. government scientist Christopher Portier. The testimony was provided via a video recorded in Australia last week.

During an afternoon break in Portier’s testimony, Judge Chhabria took a few moments to explain himself for certain comments he made to plaintiff’s lead counsel Aimee Wagstaff on Tuesday before sanctioning her for what he said was misconduct in her opening statement to the jury. (see prior blog entries for details.)

The following is a brief excerpt:

THE COURT: Before we bring in the jury, I want to
make a quick statement to Ms. Wagstaff.
I was reflecting on the OSC hearing last night, and I
wanted to clarify one thing. I gave a list of reasons why I
thought your conduct was intentional, and one of those reasons
was that you seemed to have prepared yourself in advance for —
that you would get a hard time for violating the pretrial
rulings. In explaining that, I used the word “steely,” and I
want to make clear what I meant by that.
I was using steely as an adjective for steeling yourself,
which is to make yourself ready for something difficult and
unpleasant. My point was that I perceived no surprise on your
part; and since lawyers typically seem surprised when they are
accused of violating pretrial rulings, that was relevant to me
on the issue of intent. But “steely” has another meaning as
well, which is far more negative. And I want to assure you
that that’s not the meaning that I was using nor was I
suggesting anything about your general character traits.
So I know you continue to disagree with my ruling and my
findings about intent, but I wanted to make that point very
MS. WAGSTAFF: Thank you, Your Honor.

Last-Minute Moves

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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.

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.