Dying man asks California Supreme Court to restore jury award in Monsanto Roundup case

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The school groundskeeper who won the first-ever trial over allegations that Monsanto’s Roundup causes cancer is asking the California Supreme Court to restore $250 million in punitive damages awarded by the jury who heard his case but then slashed by an appeals court to $20.5 million.

Notably, the appeal by plaintiff Dewayne “Lee” Johnson has larger implications than his own individual case. Johnson’s lawyer are urging the court to address a legal twist that can leave people such as Johnson who are facing death in the near term with lower damage awards than others expected to live many years in suffering and pain.

“It is long past time for California courts to recognize, as other courts do, that life itself has value and that those who maliciously deprive a plaintiff of years of life should be made to fully compensate that plaintiff and be punished accordingly,” Johnson’s attorneys wrote in their request for the state supreme court review. “The jury ascribed meaningful value to Mr. Johnson’s life, and for that he is grateful. He asks this Court to respect the jury’s decision and restore that value. ”

A unanimous jury found in August 2018 that exposure to Monsanto’s glyphosate-based herbicides, known best by the brand name Roundup, caused Johnson to develop non-Hodgkin lymphoma. The jury further found that Monsanto acted to hide the risks of its products in conduct so egregious that the company should pay Johnson $250 million in punitive damages on top of $39 million in past and future compensatory damages.

Upon appeal from Monsanto, which was purchased by the German company Bayer AG in 2018, the trial judge reduced the $289 million to $78 million. Monsanto appealed seeking either a new trial or a reduced award. Johnson cross-appealed seeking reinstatement of his full damage award.

The appeals court in the case then cut the award to $20.5 million, citing the fact that Johnson was expected to live only a short time.

The appeals court reduced the damages award despite finding there was “abundant” evidence that glyphosate, together with the other ingredients in Roundup products, caused Johnson’s cancer and that “there was overwhelming evidence that Johnson has suffered, and will continue to suffer for the rest of his life, significant pain and suffering.”

The Johnson trial was covered by media outlets around the world and put a spotlight on Monsanto’s efforts to manipulate the scientific record on glyphosate and Roundup and its efforts to quiet critics and influence regulators.  Lawyers for Johnson presented jurors with internal company emails and other records showing Monsanto scientists discussing ghostwriting scientific papers to try to shore up support for the safety of the company’s products, along with communications detailing plans to discredit critics, and to quash a government evaluation of the toxicity of glyphosate, the key chemical in Monsanto’s products.

Johnson’s trial victory spurred a frenzied filing of tens of thousands of additional lawsuits. Monsanto lost three out of three trials before agreeing this June to pay more than $10 billion to settle close to 100,000 such claims.

The settlement is still in flux, however, as Bayer wrestles with how to forestall future litigation.

In an interview, Johnson said he knew the legal battle with Monsanto could continue for many more years but he was committed to trying to hold the company accountable. He has managed to keep his illness in check so far with regular chemotherapy and radiation treatments, but is not certain how long that will continue.

“I don’t think any amount would be enough to punish that company,” Johnson said.

Bayer asks appeals court to again cut Roundup damage award owed to California groundskeeper with cancer

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Bayer is asking a California appeals court to trim $4 million from the amount of money it owes a California groundskeeper struggling to survive cancer that a trial court found was caused by the man’s exposure to Monsanto’s Roundup herbicides.

In a “petition for rehearing” filed Monday with the Court of Appeal for the First Appellate District of California, lawyers for Monsanto and its German owner Bayer AG asked the court to cut from $20.5 million to $16.5 million the damages awarded to Dewayne “Lee” Johnson.

The appeals court “reached an erroneous decision based on a mistake of law,” according to the filing by Monsanto. The issue turns on how long Johnson is expected to live. Because evidence at trial found Johnson was expected to live “no more than two years,” he should not receive money for future pain and suffering allocated for any longer than two years – despite the fact that he continues to outlive predictions, the company argues.

Under the calculations requested by Monsanto, the court should cut from $4 million to $2 million the amount ordered for future non-economic damages, (pain and suffering.) That would reduce the overall compensatory damages (past and future) to $8,253,209. While still insisting it should not owe any punitive damages, if punitive damages are awarded they should be tallied at no more than a 1-to-1 ratio against the compensatory, bringing the total to $16,506,418, Monsanto argues in its filing.

Johnson was initially awarded $289 million by a jury in August 2018, making him the first plaintiff to win at the trial level over claims that exposure to Monsanto’s glyphosate-based herbicides causes non-Hodgkin lymphoma and that Monsanto hid the risks. The trial judge lowered the award to $78 million. Monsanto appealed seeking either a new trial or a reduced award. Johnson cross-appealed seeking reinstatement of his full damage award.

The appeals court ruled last month that there was “abundant” evidence that glyphosate, together with the other ingredients in Roundup products, caused Johnson’s cancer. And the court found that “there was overwhelming evidence that Johnson has suffered, and will continue to suffer for the rest of his life, significant pain and suffering.”

But the court said damages should be reduced to a total of $20.5 million because of the issue of Johnson’s short life expectancy.

Along with its demand for a further reduction in damages, Monsanto is asking the appeals court to grant a rehearing to “correct its analysis” and “either reverse the judgment with directions to enter judgment
for Monsanto or, at the very least, vacate the award of punitive damages.”

The Johnson trial was covered by media outlets around the world and put a spotlight on Monsanto’s efforts to manipulate the scientific record on glyphosate and Roundup and its efforts to quiet critics and influence regulators.  Lawyers for Johnson presented jurors with internal company emails and other records showing Monsanto scientists discussing ghostwriting scientific papers to try to shore up support for the safety of the company’s products, along with communications detailing plans to discredit critics, and to quash a government evaluation of the toxicity of glyphosate, the key chemical in Monsanto’s products.

Tens of thousands of plaintiffs have filed lawsuits against Monsanto making claims similar to Johnson’s, and two additional trials have taken place since the Johnson trial. Both those trials also resulted in large verdicts against Monsanto. Both are also under appeal.

Bayer’s actions to trim damage awards for Monsanto’s trial losses comes as the company seeks to settle close to 100,000 Roundup cancer claims pending around the United States in various courts. Some plaintiffs are unhappy with the settlement terms, and are threatening not to agree to the deal.

Action in Pilliod Appeal 

In separate appellate action related to the Roundup litigation, last week lawyers for Alva and Alberta Pilliod filed a brief asking the California appeals court to order damages awards for the married couple totaling $575 million. The elderly couple – both stricken with debilitating cancer they blame on exposure to Roundup – won more than $2 billion at trial, but the trial judge then lowered the jury award to $87 million.

The slashing of the damage award was excessive, according to lawyers representing the couple, and does not sufficiently punish Monsanto for its wrongdoing.

“The three California juries, four trial judges, and three appellate justices who have reviewed Monsanto’s misconduct have unanimously agreed there is “substantial evidence that Monsanto acted with a willful and conscious disregard of others’ safety,” the Pilliod brief states.  “Monsanto’s claim that it is the victim of “injustice” in this case rings increasingly hollow in light of these unanimous and repeated findings.”

The lawyers are asking the court to award a 10-to-1 ratio of punitive damages to compensatory damages.

“The true victims of injustice in this case are the Pilliods, who have both suffered from a devastating and debilitating disease because of Monsanto’s malfeasance,” the brief states. “The jury, in determining that decent citizens need not tolerate Monsanto’s reprehensible behavior, rightly concluded that only a substantial punitive damage could punish and deter Monsanto.”

Bayer Makes Bid for “Trust” Amid Third Monsanto Cancer Trial

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Bayer AG, which bought Monsanto last summer, said Monday that it was making scientific studies available for public scrutiny in an effort to counter growing concerns about the safety of Monsanto’s flagship glyphosate-based herbicide products.

“Transparency is a catalyst for trust, so more transparency is a good thing for consumers, policymakers and businesses, Liam Condon, president of Bayer’s crop science division, said in a statement. Safety, he said, is the company’s top priority.

The comments come as pressure is mounting on Bayer management as roughly 11,000 people are suing Monsanto alleging glyphosate-based herbicides such as Roundup cause non-Hodgkin lymphoma, and Monsanto has hidden the risks and manipulated the scientific record. The first Roundup cancer trial resulted in a jury verdict of $289 million in damages against Monsanto, though a judge later lowered that to $78 million. The second such trial ended last month with a jury verdict of $80.2 million against Monsanto. The third trial is now underway.

Last week U.S. District Judge Vince Chhabria told Bayer attorneys and plaintiffs’ attorneys that he would like the parties to enter into mediation to discuss a possible settlement. He vacated a fourth trial set to begin in May.

Monsanto and Bayer deny the allegations and say the weight of science supports the safety of glyphosate herbicides. They also deny claims that company scientists ghost-wrote seemingly independent scientific papers and otherwise manipulated the scientific record.

“By making our detailed scientific safety data available, we encourage anyone interested to see for themselves how comprehensive our approach to safety is. We embrace the opportunity to engage in dialogue so we can build more trust in sound science,” said Condon.

The company said it was providing access to 107 Bayer-owned glyphosate safety study reports that were submitted to the European Food Safety Authority as part of the substance authorization process in the European Union. The studies are accessible on Bayer’s transparency platform.

The news from Bayer comes ahead of an April 26 shareholders meeting in which some investors are calling for the head of Bayer CEO Werner Baumann for leading the company into the Monsanto acquisition. Monsanto’s top management walked away with millions of dollars in exit packages just before the first Roundup cancer trial, leaving Bayer holding the bag for the litigation losses and the bad publicity. Since last summer, the company has seen an exodus of customers as retailers, cities, school districts and others say they are backing away from the Monsanto herbicides.

As Bayer focuses on its messaging outside the court room, epidemiologist Beate Ritz, professor at the University of California Los Angeles School of Public Health, is due to take the stand today in Pilliod v. Monsanto,  the third Roundup cancer trial. Ritz has testified in the two prior trials that her analysis of several scientific studies shows that  there is a “credible link” between glyphosate-based herbicides such as Monsanto’s Roundup and non-Hodgkin’s lymphoma.

The current case was brought by Alva and Alberta Pilliod, a married couple who both have non-Hodgkin lymphoma they allege is due to years of Roundup use.

Following Ritz will be testimony from Dennis Weisenburger, a pathologist specializing in studying the causes of non-Hodgkin lymphoma. Weisenburger testified in the Edwin Hardeman v. Monsanto trial that Roundup is a “substantial cause” of cancer in people who are exposed.

Meanwhile, plaintiffs’ attorneys continue to worry about what they believe to be “geofencing” by Monsanto.   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.  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. Targeted individuals don’t have to be searching for information; it just appears on their smart phone.

Plaintiffs’ attorneys raised the issue in the Hardeman case, and had concerns that Monsanto was pushing messaging to jurors through geofencing in the first Roundup cancer trial, which was brought by groundskeeper Dewayne “Lee” Johnson.

In the Pilliod case, the issue was discussed Thursday in court as the plaintiffs attorneys sought a judicial order to prohibit Monsanto from the tactic, but the judge was skeptical and declined to issue such an order.

Here is part of the exchange. All can be seen in the trial transcript. 

PLAINTIFFS’ ATTORNEY BRENT WISNER:  Your Honor, I think there’s one — and I get your point. I think just to clarify one procedural factual thing. Right? If I were to walk over to a juror personally and say to you, “Hey, Juror Number 3, Monsanto’s stuff causes cancer and all these studies show it,” I mean, that would be a mistrial. Instantaneously. That’s jury tampering. Right? Now if they do that same thing — if I did the same thing by targeting every person’s phone in this courtroom or every single person’s phone in this courthouse and pushing that information, that same message to them on their phone — and what happens is -­  I don’t know if you use your phone for this kind of purposes, but, for example, when I look at my ESPN app and I’m looking at the scores for the UCLA water polo team, or whatever, you know, there’s little ads that pop up.

THE COURT: Sure.

MR. WISNER: And those ads are saying “Federal judge says Roundup is safe.” That’s the kind of stuff
we’re seeing. We saw this happening with quite intensity in the Johnson trial. Numerous jurors during voir dire mentioned that they were having these things pushed on them as soon as they walked in the building. And so whether or not Monsanto is or is not doing that, I think that if they are, that should be
prohibited. That’s not really a point of First Amendment. That is now clearly targeting people that
they know they can’t speak to.

THE COURT: And you’re asking me to assign a subjective intent that I don’t know exists and it’s
still prior restraint. I mean, technology has taken us places probably we never thought it would go… I guess if I were picking sides, I might believe that. But I can’t pick sides.

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.  

I Won a Historic Lawsuit But May Not Live to Get the Money

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This article was originally published in Time Magazine.

By Carey Gillam

Dewayne Anthony Lee Johnson has always just gone by Lee. He lived a modest life for 42 years, and was devastated when he was diagnosed with terminal cancer in 2014. Now 46, as he struggles with his advancing illness, Johnson has found sudden celebrity with a historic victory over one of the world’s most powerful and controversial corporations – Monsanto Co.

Johnson sued Monsanto alleging that he developed a deadly form of non-Hodgkin lymphoma after being drenched with the company’s herbicides, which he sprayed as part of his job as school groundskeeper. In Aug. 2018, a jury in San Francisco unanimously found that Monsanto had failed to warn of the carcinogenic dangers of its popular Roundup herbicide and related products, which Johnson sprayed regularly. Thousands of other cancer victims are also suing Monsanto and awaiting their own day in court, but Johnson was the first to take the company to trial. The jury awarded Johnson a jaw-dropping $289 million, which a judge slashed to $78 million on Oct. 22. Evidence revealed in the trial included internal Monsanto records that included discussions of “ghostwriting” scientific papers that asserted the safety of its products and plans to discredit an international agency that declared the main ingredient in Roundup, a chemical called glyphosate, to be a probable human carcinogen.

Monsanto, now a unit of Bayer AG, maintains that its products do not cause cancer. On Nov. 20, the company further appealed, seeking to overturn even Johnson’s reduced award and the trial court judge’s refusal to grant Monsanto’s request for a new trial. But the initial verdict already put Johnson’s life on a very different trajectory, bringing him international attention and heartbreak. He spoke with TIME about the aftermath of his case.

Before I got sick life was pretty good. I had a good job. We were renting this nice house; we found it through some friends. It was almost in foreclosure so we were able to rent it for a good price. Three bedrooms and a nice big backyard. I didn’t have a car so my wife Araceli would drop me off at work or I would ride my bike to the bus stop and take the bus to work. My job title at the school district was integrated pest manager, IPM. I did everything – caught skunks, mice, and raccoons, patched holes in walls, worked on irrigation issues. And I sprayed the pesticides, the “juice.” I had to be at work by sun up to make sure we had time to spray before the kids got to school. One of the guys I worked with didn’t want to wear protective gear but I told him he had to. You got to be careful with this stuff. On a typical day I would fill up my little container with raw pesticide liquid and then put that in the back of my truck and then mix a load before I would leave the yard. I’d mix it all in a tank and take that on the back of my truck and then head out to start spraying. I did not like using the chemicals but I loved that job. I would have been making $80,000 a year now if I was still there.

That day of the accident, the day the sprayer broke and I got drenched in the juice, I didn’t think that much about it. I washed up in the sink as best I could and changed my clothes. Later I went home and took a good long shower but I didn’t think, “Oh my god, I’m going to die from this stuff.” Then I got a little rash. Then it got worse and worse and worse. At one point I had lesions on my face, on my lips, all over my arms and legs.

When I first saw a doctor he was totally confused and didn’t know what was happening on my skin. He sent me to see a dermatologist who did a biopsy of a lesion on my knee. They sent me to UCSF (University of California San Francisco) and then to Stanford. A bunch of doctors came and checked me out. Then one day I got a call. They told me it was urgent, I had to come in to discuss my test results. When the doctor said I had cancer, my wife was sitting there with me. She started crying. I didn’t take it in right away. I don’t think I have still taken it in.

People want to say it’s Johnson v. Monsanto. They want me to talk about the company. I don’t want to do that. I don’t even want to say the company name. I just say ‘the big company.’ I don’t want to be slanderous. I’ve seen reports that I want an apology but that’s not true. I’m not a person who would think an apology would make me feel better – it certainly would not heal my cancer. This isn’t about me and that big company. It is important for people to know this stuff, to know about what they’re being exposed to. If people have the information they can make choices, they can be informed and protect themselves. I’m just a regular guy from a small town called Vallejo in the California Bay Area who happened to seek the truth about my failing health and found answers.

It’s not to say that I didn’t get mad. Plenty of things upset me as the evidence came out in court. I had called the big company early on when I was sick trying to get some answers and at the time the woman I talked to on the phone was real nice. But you see in the emails that came out that there was really no concern for me. They never called me back, that made me mad. I think not getting a call back is what made me pursue legal action. And then when I was in court and heard about the ghostwriting of the science and you see in the emails that everybody is just on a script; they program everybody to stick to the script about safety even if the science says different. [Editor’s Note: Internal Monsanto emails presented at trial showed that Johnson called the company in November 2014 reporting his concerns that his cancer was triggered by being “soaked to the skin” in a Monsanto herbicide during a work accident. “He’s looking for answers,” a Monsanto product support specialist wrote to Monsanto Dan Goldstein, the company’s medical sciences and outreach executive. Goldstein replied that the “story is not making any sense to me at all,” and said he would call Johnson back. But Johnson said he never received a call and Goldstein testified he could not remember whether or not he called Johnson.]

It seemed like the whole world was watching when the judge read that verdict, line by line, and then they announced a quarter billion dollar settlement, $289 million dollars. I think I immediately was paranoid; I literally asked the young bailiff if he could roll out of court with me because I knew the attention this would get and I’ve never really been a fan of attention or fanfare. And now it seems like that’s taken over my life. I get requests for media interviews from all over the world, and people ask me to come to their events and speak, and I’ve had people telling me they want to buy my “life rights” to try to get movie deals. I’ve had strangers try to suddenly become my best friend on Facebook, and then there was this kind of voo-doo priestess who somehow got my number, calling and calling and texting nonstop, promising she could heal me. When I shunned her, she said I would remember her on my death bed, wishing I had let her help me. It’s crazy. My kids are handling it well but they don’t dig the attention — we’re a small family and we’ve just been trying to deal with becoming nationally known.

Sometimes it really gets overwhelming with so many calls and requests for interviews or speaking events. At the same time, though, I see myself now as a major contributor for a conversation that’s been brewing for years, but since the verdict the conversation is a lot louder. I try to give each request my attention but just can’t due to my health and trying to help take care of my kids. But I am trying to make this a priority. I want to see all these schools stop using glyphosate, first California, then the rest of the country. That is my small mission. And as overwhelming as it is, I do feel a lot of support and positive energy from many people who’ve reached out to me. I have felt the love and support of people all across the world and that gives me a whole new sense of drive and responsibility. Some people send small gifts, trinkets. They write to me about their own cancers. One woman wrote about her husband and how he had died. I would say I’ve received thousands of letters. It helps.

A lot of people ask me what I want to do with my life now. I don’t think I’m superman. I go through those little moments when my head is down and my elbows are on my knees and asking myself what am I going to do? But if I can get healthy, not give in to what my doctors say is a terminal situation, if I can get treatments and get closer to a cure then I see myself doing good things. I would love to start a foundation. And I want to do more with my music and art. I paint with oil or acrylic and I do some charcoal drawings. I also like to write; I’ve self-published two books – “My Opinion” and “The Perfect Front.”

Some people think I’m a rich man, they speak to me as if I’ve been paid already, which is far from reality. The truth is the appeals could go on well past my life expectancy. We can’t really celebrate or make plans or go on vacation because we don’t have that money. I get a social security check now every month. It doesn’t even cover the cost of the rent. People are trying to help me out, but I’m basically broke. It’s exciting sometimes to think that we may get millions of dollars, but right now we know we’re not. We’re living the ghost money life.

I’m not even sure I would know how to be a rich man. I would like to buy a house, something close to my kids’ schools, something to give them security. But there are only so many things you can buy. I don’t think there is very much you can or should do with millions of dollars other than try to help people. As for the judge cutting the $289 million down to $78 million, I never thought of that $289 million as anything that would go in my pockets. I knew there would be legal limits striking it and so I never really thought of it as mine. I don’t know if I’ll ever see the jury award in my lifetime. Hopefully my boys will though.

Mostly what I want is for my sons, all three of them, to feel like they have a solid security blanket and to know that they are taken care of. I want to show them the good path and give them the quality of life that allows them to get educated, to understand life and culture and people. I hope that one day they will look back and say, “My dad made history and stood up for himself and for us.”

My chemo has stopped because I am supposed to have more surgery for this thing they biopsied on my arm. Apparently, it’s some new melanoma. And I’ve got this pain that I call “hot spots” on my foot and my arm, burning my wrist. Sometimes I call them “burners.” But it is what it is. I used to be all shiny and a handsome guy – now I’m all messed up. I feel like if you’re sick, you shouldn’t hide it though. Share it with the world and maybe you can help someone.

So much is going on, but the most important thing to me is my boys. I’m so proud of my boys. I hate to think about dying. 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.

Bay Area Man vs. Monsanto: First Trial Over Roundup Cancer Claims Set to Begin

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By Carey Gillam

Dewayne “Lee” Johnson has led what many might call an unremarkable life. The 46-year-old father and husband spent several years working as a school groundskeeper and spending free time teaching his two young sons to play football. But this week he takes center stage in a global debate over the safety of one of the world’s most widely used pesticides as he takes Monsanto to court on claims that repeated exposure to the company’s popular Roundup herbicide left him with terminal cancer.

San Francisco Superior Court Judge Suzanne Ramos Bolanos was assigned Monday to oversee the trial, and jury selection is tentatively expected to begin Thursday, June 21, with opening statements possible by June 27. The courtroom showdown could last three to four weeks, lawyers involved estimate, and will shine a spotlight on decades of scientific research and internal Monsanto documents that relate to the testing and marketing of Monsanto’s flagship herbicide and the active ingredient, a chemical called glyphosate.

Though Johnson is the lone plaintiff in the lawsuit, his case is considered a bellwether for roughly 4,000 other plaintiffs also suing Monsanto over allegations that exposure to Roundup caused them or their loved ones to develop non-Hodgkin lymphoma (NHL). Another case is scheduled to go to trial in October in St. Louis, Missouri.

Johnson worked as a groundskeeper for the Benicia Unified School District for many years.

The lawsuits, which have been piling up in court dockets around the U.S., not only challenge Monsanto’s position that its widely used herbicides are proven safe, but they also assert that the company has intentionally suppressed evidence of the risks of its weed killing products, misleading both regulators and consumers in a dangerous deception.

The litigation, proceeding both in federal and state courts, began after the International Agency for Research on Cancer (IARC) classified glyphosate—the active ingredient in Roundup—as a probable human carcinogen in March 2015. The IARC classification was based on years of published, peer-reviewed scientific studies analyzing glyphosate and glyphosate-based herbicides.

Monsanto and allies in the agrochemical industry have blasted the litigation and the IARC classification as lacking in validity, countering that decades of safety studies prove that glyphosate does not cause cancer when used as designed. Monsanto has cited findings by the U.S. Environmental Protection Agency (EPA) and other regulatory authorities as backing its defense. The company can also point to an EPA draft risk assessment of glyphosate on its side, which concluded that glyphosate is not likely carcinogenic.

“Glyphosate-based herbicides are supported by one of the most extensive worldwide human health and environmental effects databases ever compiled for a pesticide product,” Monsanto states on its website. “Comprehensive toxicological and environmental fate studies conducted over the last 40 years have time and again demonstrated the strong safety profile of this widely used herbicide.”

Glyphosate represents billions of dollars in annual revenues for Monsanto, which became a subsidiary of German-based Bayer AG on June 8, and several other companies selling glyphosate-based herbicides. Monsanto brought the pesticide to market in 1974 and the weed killer has been used prominently for decades by farmers in food production and by municipalities to eradicate weeds in public parks and playgrounds, and by homeowners on residential lawns.

Monsanto had sought to delay the Johnson case, just as it has sought to delay and/or dismiss the others brought against it. But the trial was expedited because he is not expected to live much longer after being diagnosed in 2014 with a form of non-Hodgkin lymphoma called mycosis fungoides.

A Death Sentence

According to court records, Johnson worked as a groundskeeper for the Benicia Unified School District for many years and applied multiple treatments of Monsanto’s herbicides to the San Francisco-area school properties from 2012 until at least late 2015, including after he was diagnosed with cancer in August 2014. His job entailed mixing and spraying hundreds of gallons of glyphosate-based herbicides around school properties. He used various Roundup products, but mostly Roundup PRO, a highly concentrated version of the weed killer. After developing a skin rash in the summer of 2014 he reported to doctors that it seemed to worsen after he sprayed the herbicide. In August of that year he was diagnosed with a type of lymphoma but continued his work until 2015 when he underwent several rounds of chemotherapy only to learn in September 2015 that he likely had but 18 months to live.

In a deposition taken in January, Johnson’s treating physician testified that more than 80 percent of his body was covered by lesions and his diagnosis continued to be terminal. Still, Johnson has improved since starting a new drug treatment and plans to attend some of the trial if possible, his attorneys said.

Johnson has not led an unblemished life; Monsanto uncovered an aggravated assault charge against him from the early 1990s, along with a misdemeanor weapons charge and a domestic abuse complaint against the mother of his oldest child. The company elicited deposition testimony from Johnson that he failed tests for pesticide applicators three times, and sprayed the pesticide without a certified applicator license. Johnson wore proper protective gear over his clothing but was accidentally drenched in the pesticide at least once when mixing it.

Monsanto’s lawyers will argue other factors could be to blame for Johnson’s cancer, and that its weed killer played no role.

Johnson’s attorneys have shrugged off any issues regarding Johnson’s personal behavior or other potential causes for his disease, and say in court filings they will offer evidence at trial that Monsanto “for decades, engaged in a shocking degree of scientific fraud and manipulation of the scientific literature with respect to Roundup” to cover up the evidence that it does cause cancer.

The trial evidence will include information that Monsanto ghostwrote articles relied on by the EPA, IARC and California’s environmental regulators; rewarded employees for ghostwriting; and actively suppressed the publication of information that revealed the harm associated with glyphosate and Roundup. Johnson’s attorneys say internal Monsanto documents show extensive “manipulation” of the scientific record, and clearly improper and fraudulent interactions with regulators.

Johnson’s attorneys intend to call 10 current and former Monsanto employees to the stand.

“We’re going to get them here. We have the goods,” said Brent Wisner, who is one of three attorneys representing Johnson at trial. “If the evidence we have is allowed in, Monsanto is in trouble.”

Lead Lawyer Out

Wisner was only brought in to help try to case within the last few weeks after lead attorney Mike Miller suffered a near-fatal accident while kite surfing and remains too severely injured to try the case. Wisner’s role is key as he is set to deliver both the opening and closing statements for Johnson’s case in Miller’s absence.

Monsanto filed a motion on June 18 seeking to exclude Wisner from trying the case, however, claiming he has been acting as a “PR man,” and lobbyist against glyphosate, particularly in Europe, where glyphosate has been under intense regulatory scrutiny. Monsanto also cited Wisner’s release in August 2017 of hundreds of pages of internal Monsanto documents turned over in discovery that the company had wanted to keep sealed, a tactic that earned Wisner a rebuke from the judge in the federal multidistrict litigation pending against Monsanto. Monsanto’s lawyers argue that the internal corporate communications have been intentionally presented out of context by Wisner and other plaintiff’s attorneys to make it appear as though the company engaged in deceptive practices when it did not.

Wisner’s activities put him in violation of a California “advocate-witness” rule, Monsanto contended in its filing.

Araceli Johnson, Lee Johnson’s wife, and their two sons. Photo credits: Lee Johnson

In addition to trying to exclude the lawyer, Monsanto is seeking to exclude reams of evidence, including internal emails written by its scientists, arguments that it deceived the EPA, evidence of fraud committed by laboratories, and testimony from Johnson’s expert witnesses.

Judge Bolanos will hear arguments on Wednesday regarding that motion and more than a dozen others regarding what evidence will and will not be allowed at trial.

Both sides say the case and the outcome are important in a larger sense. If the jury finds in favor of Johnson it could encourage additional litigation and damage claims some of the lawyers involved estimate could run into hundreds of millions of dollars. If the jury sides with Monsanto, other cases could be in jeopardy. Additionally, a victory for Monsanto in this first case could ease regulatory questions dogging the company.

As for Johnson, he will try to attend some of the trial, and will testify, but will not likely be there for it all, said Wisner. Johnson’s wife, Araceli Johnson, will be called to testify, as will two of his co-workers and his doctors.

“Right now he’s on borrowed time. He’s not going to come to most of the trial,” said Wisner. “The guy is going to die and there is nothing he can do about it. It’s unbelievably horrible.”

This article was originally posted on EcoWatch. Carey Gillam is a journalist and author, and a public interest researcher for US Right to Know, a not-for-profit food industry research group.