Bayer wins Roundup trial; plaintiff fails to prove exposure caused child’s disease

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The former Monsanto Co., now owned by Bayer AG, notched its first win in the mass tort U.S. Roundup litigation on Tuesday, defeating at trial a mother who alleged her use of Roundup exposed her child to the pesticide and caused him to develop cancer.

Ezra Clark was born in May 2011 and diagnosed in 2016 with Burkitt’s lymphoma, a form of non-Hodgkin lymphoma (NHL) that has a high tendency to spread to the central nervous system, and can also involve the liver, spleen and bone marrow, according to the court filings. Ezra’s mother, Destiny Clark, is the plaintiff in the case, which was heard in Los Angeles County Superior Court. A different Roundup trial is underway in San Bernardino County Superior Court.

Ezra Clark was “directly exposed” to Roundup many times as he accompanied his mother while she sprayed Roundup to kill weeds around the property where the family lived, according to court documents. Ezra has autism and his mother said it calmed him to play outdoors while she worked in the yard, which meant he often played in areas freshly sprayed with Roundup, according to the court filings.

Fletch Trammell, lead attorney for Clark, said his case was subject to a bifurcation order that organized the case into two phases. In the first phase he was limited to presenting evidence that focused on the child’s personal exposure to Roundup and whether or not it could have been enough to have contributed to his disease. The case would have proceeded to a second phase had the plaintiff won the first phase, but the loss in the first phases ends the trial.

“This was nothing like any of the other three trials,” Trammell said.

The jury was asked to address one key question in the first phase: Whether or not the child’s exposure to  Roundup was a “substantial factor” in his development of Burkitt’s lymphoma.

In a 9 to 3 decision, the jury found that it was not.

Trammell said the jury decision was because the jury doubted the child’s exposure to Roundup could have been enough to cause cancer. The decision did not address the larger question of the alleged carcinogenicity of Roundup overall, he said.

But Bayer, which bought Monsanto in 2018 as the first Roundup trial was getting underway, said the jury’s decision was in line with scientific research showing glyphosate, the main ingredient in Roundup, is safe and does not cause cancer.

“The jury carefully considered the science applicable to this case and determined that Roundup was not the cause of his illness,” the company said in a statement.

80 hours

During the trial, Trammel presented evidence indicating Ezra was exposed to Roundup for about 80 cumulative hours over the years his mother sprayed with him at her side. He paired that with research showing there could ben an increased risk of NHL associated with repeated spraying of glyphosate herbicides, such as Roundup. And he noted language on Roundup labels in Canada that advise users to wear protective gloves and avoid getting the chemical on bare skin.

“The studies… they show that Roundup does three different things when it gets to your
lymphocyte cells…   It can kill cells, which is bad enough; but it also causes the exact DNA damage
that results in Burkitt’s lymphoma; it also, in a variety of ways, devastates your body’s ability to
repair DNA damage,” Trammell told jurors in his closing argument.

Trammell also sought to counter problems with deposition testimony given by Destiny Clark. Trammell said the mother also has suffered from cancer, a cervical cancer that metastasized to her brain. The illness and treatments she has undergone made it difficult for her to recall details and she “made a lot of mistakes” in the deposition she gave to Monsanto’s attorneys, Trammell told jurors. But she was very clear, he told jurors, on recalling her use of Roundup nearly “every weekend” when Ezra was young.

Monsanto attorney  Brian Stekloff told jurors that Ezra’s exposure was in doubt. He told jurors that while they might have sympathy for the family, they could not ignore inconsistencies in Destiny Clark’s testimony about how often her son was exposed, and could not ignore statements by other family members that they did not see her spraying around Ezra.

“And there is an old adage or old saying, and it goes like this: The truth is simple because there’s nothing to remember,” Stekloff told jurors. “When you tell the truth, you don’t mix up the facts. It’s when it didn’t happen that you can’t remember what you said the first time and the next time, and the next time, and the next time. And the inconsistencies start piling up and piling up, and the explanations start coming and piling up and piling up. And that’s what you have seen here in this trial.”

Stekloff told jurors the evidence did not support a finding that exposure to Roundup was a substantial factor in causing his cancer.

“This is not a popularity contest. This is not a referendum on Monsanto. It’s not even a referendum on Roundup,” he said in his closing argument. “Roundup did not cause Ezra Clark’s Burkitt’s lymphoma.”

Clark is one of tens of thousands of plaintiffs who filed U.S. lawsuits against Monsanto after the World Health Organization’s cancer experts in 2015 classified glyphosate – the active ingredient in Monsanto’s herbicides – as a probable human carcinogen with an association to NHL.

Monsanto lost each of the three previous trials, after lawyers for the plaintiffs presented jurors with multiple scientific studies finding potential health risks with glyphosate and Roundup  The plaintiffs lawyers also used internal Monsanto documents as evidence, arguing the so-called “Monsanto Papers” showed intentional efforts by the company to manipulate regulators and control scientific research.

The jury in the last trial ordered $2 billion in damages though the award was later shaved to $87 million.

Bayer has maintained that there is no cancer risk with the glyphosate herbicides it inherited from Monsanto, but it has agreed to pay close to $14 billion to try to settle the litigation and said it will remove glyphosate products from the U.S. consumer market by 2023. The company will continue to sell the herbicides to farmers and other commercial users.

Mike Miller, who heads the Virginia law firm that won two of the three previously held Roundup trials, i but who was not involved in the Clark case, said the verdict does not change anything about the litigation, nor Bayer’s liability.

“Nothing about that verdict change the fact: Roundup causes cancer,” he said.

See transcript of closing arguments in Clark v. Monsanto. 

Monsanto scientist tells jurors company’s side of Roundup cancer controversy

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A senior scientist at the former Monsanto Co. on Tuesday told jurors in a California trial that regulators around the world support the company’s position that its glyphosate-based herbicides, such as the popular Roundup brand, are safe for users.

Donna Farmer, who worked as a toxicologist at Monsanto for more than two decades and now works at Monsanto owner Bayer AG, spent long hours testifying in the case of Donnetta Stephens v. Monsanto. Farmer has been a key witness in the Stephens case and was quizzed intently for days by lawyers for Stephens before Monsanto’s lawyers took up the questioning.

Stephens is one of tens of thousands of plaintiffs who filed U.S. lawsuits against Monsanto after the World Health Organization’s cancer experts in 2015 classified glyphosate – the active ingredient in Monsanto’s Roundup and other herbicides – as a probable human carcinogen with an association to non-Hodgkin lymphoma.

The Stephens case is the fourth Roundup cancer lawsuit to go to trial and the first since 2019. Stephens suffers from non-Hodgkin lymphoma she blames on her use of Roundup herbicide for more than 30 years.

A chance to explain

Monsanto lawyer Monsanto lawyer Manuel Cachan questioned Farmer about several issues that were raised earlier by plaintiffs’ attorneys, telling Farmer it was her chance to explain details about several matters that Stephens’ lawyers had presented as evidence of Monsanto wrong-doing.

One such issue involved comments Farmer wrote in a 2003 email to colleagues about the importance of distinguishing between the chemical glyphosate and the Roundup formulation, which is made with glyphosate as the active ingredient.

In the email, Farmer wrote “The terms glyphosate and Roundup cannot be used interchangeably nor can you use “Roundup” for all glyphosate-based herbicides any more. For example you cannot say that Roundup is not a carcinogen… we have not done the necessary testing on the formulation to make that statement. The testing on the formulations are not anywhere near the level of the active ingredient.”

Plaintiffs’ lawyers have pointed to that language as part of a broad argument disputing Monsanto’s contention that thorough testing of Roundup has demonstrated it does not cause cancer.

In testimony Tuesday, Farmer said that she merely was trying to be “very precise” when explaining to colleagues the distinctions between products. She was not indicating in the email that there was any question about whether or not Roundup might cause cancer, Farmer testified.

She pointed out that in that internal email she also wrote “there is no reason to believe that Roundup would cause cancer.”

And though it was true at that time that Monsanto had not conducted extensive carcinogenicity testing on Roundup formulations, that changed over time, Farmer testified.

“I think we’ve got a lot more studies on Roundup than we had, and so I think we have a lot more information about the Roundup formulations that still supports the conclusions and safety about the formulation,” Farmer told the jury.

A regulatory pass

At another point in the questioning by Monsanto’s lawyer, Farmer told jurors that regulators had never required the company to conduct animal carcinogenicity testing on Roundup. She said not only had the U.S. EPA not demanded such testing, but regulators in Canada, Europe, Australia and Japan had similarly not required any such animal testing on Roundup products.

She also told jurors that while it was true that Roundup products contain formaldehyde, it was a “very, very small amount” and posed no danger to human health. Regulators agreed there was no reason for concern, Farmer testified.

“We produce formaldehyde every day in our bodies,” said Farmer. “Small amounts of formaldehyde like in the formulations at those low levels do not present a health hazard to humans.”

Farmer’s testimony sought to rebut other points of evidence raised by Stephens’ lawyers, seeking to cast Monsanto as a responsible, science-based organization that has been the innocent target of activist-driven misinformation. Plaintiffs’ lawyers have twisted internal conversations seen in emails and other communications to confuse and mislead jurors, according to arguments by Monsanto attorneys.

Monsanto lost each of the three previous trials, after lawyers for the plaintiffs presented jurors with multiple scientific studies finding potential health risks with glyphosate and Roundup  The plaintiffs lawyers also used internal Monsanto documents as evidence, arguing they showed intentional efforts by the company to manipulate regulators and control scientific research.

Bayer, which bought Monsanto in 2018, has settled other cases that had been scheduled to go to trial. And in 2020, the company said it would pay roughly $11 billion to settle about 100,000 existing Roundup cancer claims. Bayer also recently said it would set aside another $4.5 billion toward Roundup litigation liability.

To try to quell future litigation, Bayer said it would stop selling Roundup, and other herbicides made with the active ingredient glyphosate, to U.S. consumers by 2023. But the company continues to sell the products for use by farmers and commercial applicators.

Paraquat Papers – Updates to U.S. litigation

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Multiple lawsuits are pending in the United States against Syngenta alleging the weedkilling chemical paraquat causes Parkinson’s disease.

A notice of settlement was filed June 18, 2021 for several paraquat cases. See this document.

But more than 100 lawsuits remain pending.

The lawsuits name Syngenta as well as Chevron Phillips Chemical Co. and Growmark Inc. as defendants. Chevron distributed and sold Gramoxone paraquat product in the United States in an agreement with a Syngenta predecessor called Imperial Chemical Industries (ICI), which introduced paraquat-based Gramoxone in 1962. Under a license agreement, Chevron had the right to to manufacture, use, and sell paraquat formulations in the U.S.

Lawyers around the United States are advertising for plaintiffs, seeking to draw in thousands of people who’ve been exposed to paraquat and now suffer from Parkinson’s.

Here is a list of actions pending through Judicial Council Coordination Proceedings (JCCP) as of Aug. 2, 2021

  • Harker v. Syngenta, et al. Case No. CGC-21-589755 (San Francisco Superior Court) (coordinated June 11, 2021)
  • De La Vega v. Syngenta, et al. Case No. C21-01057. (Contra Costa Superior Court) (coordinated July 19, 2021)
  • Louis Lombardo v. Syngenta et al., Alameda County Superior Court; Case No. RG21100757, filed on May 26, 2021 (coordinated July 19, 2021)
  • Lonnie Owens et al. v. Syngenta et al., Contra Costa Superior Court; Case No. C21-01187, filed on June 4, 2021 (coordinated July 19, 2021)
  • Borrelli v. Syngenta AG, et al. (Case No. MSC21-01217), filed June 24, 2021 in Contra Costa County Superior Court (coordinated July 23, 2021)
  • Isaak v. Syngenta AG, et al., San Francisco Superior Court; Case No. CGC-21591254 (coordinated August 2, 2021)
  • Rubino v. Syngenta, et al., Contra Costa County Superior Court Case No. C2101422 (coordinated August 2, 2021)
  • Aguiar v. Syngenta, et al. Case No. C21-01373. (Contra Costa Superior Court) (coordinated August 2, 2021)

Multidistrict litigation

On April 7, 2021, the Fears Nachawati Texas-based law firm filed a motion with the U.S. Judicial Panel on Multidistrict Litigation in Washington, D.C., asking that pending paraquat lawsuits be consolidated for pretrial proceedings in the Northern District of California, the same federal court where Roundup litigation was consolidated. The case with the judicial panel is MDL No. 3004. The panel hearing on the matter was May 27 and on June 7, the panel approved the formation of the paraquat multidistrict litigation, assigning it to Judge  Nancy J. Rosenstengel in the Southern District of Illinois.

Additionally, a class action lawsuit was filed in federal court in Iowa on May 3. The suit seeks “equitable relief in the form of medical monitoring, including, but not limited to, the costs of diagnostic testing” for farmers and others exposed to paraquat who are allegedly at “increased risk” for Parkinson’s, according to the legal filing.

At least 86 lawsuits were pending within the MDL as of September 10, 2021.

Science

Several scientific studies have linked paraquat to Parkinson’s, including a large study of U.S. farmers jointly overseen by multiple U.S. government agencies.  Farmers use paraquat in the production of many crops, including corn, soy and cotton. The Agricultural Health Study (AHS) said it found that “exposure to agricultural pesticides may increase a person’s risk of developing Parkinson’s disease.” In 2011, AHS researchers reported that “participants who used paraquat or rotenone were twice as likely to develop Parkinson’s disease as people who didn’t use these chemicals.”

A more recent paper from AHS researchers stated that “Extensive literature suggests an association between general pesticide use and Parkinson’s disease (PD). However, with few exceptions, little is known about associations between specific pesticides and PD.”

Parkinson’s is an incurable progressive nervous system disorder that limits a person’s ability to control movement, causing tremors, loss of balance and eventually often leaving victims bedridden and/or bound to a wheelchair. The disease is not necessarily fatal but typically becomes severely debilitating.

Dutch neurologist Bastiaan Bloem, who recently authored a book about Parkinson’s, blames widespread exposure to herbicides such as paraquat, along with other toxic chemicals used in agriculture and manufacturing, for the spread of the disease.

Acutely Toxic 

Along with fears about links between paraquat and Parkinson’s, paraquat is also known to be an extremely acutely toxic chemical that can quickly kill people who ingest very small amounts. In Europe, the sale of paraquat has been banned since 2007, but in the United States the pesticide is sold as a “Restricted Use Pesticide” due to “acute toxicity.”

As part of discovery in the Parkinson’s litigation, lawyers have obtained internal records from Syngenta and its predecessor corporate entities dating back to the 1960s. Many of these documents are sealed, but some have started to come to light.

Those unsealed discovery documents, which include copies of letters, minutes of meetings, study summaries, and emails, are being made available on this page.

Most of the documents unsealed to date deal with corporate discussions about how to keep paraquat herbicides on the market despite its deadliness, through measures designed to reduce accidental poisonings. Specifically, many of the documents detail an internal corporate struggle over the addition of an emetic, a vomit-inducing agent, to paraquat products.  Today, all Syngenta paraquat-containing products include an emetic called “PP796.”  Liquid paraquat-containing formulations from Syngenta also include a stenching agent to produce a foul odor, and a blue dye to differentiate the dark-colored herbicide from tea or cola or other beverages.

EPA Review 

Paraquat recently underwent the EPA’s registration review process,  and on August 2, 2021 the agency said paraquat would remain on the market with new safety measures aimed at reducing farmworker exposures. That followed the Oct. 23, 2020 release of a proposed interim decision (PID) for paraquat.  The interim decision proposed mitigation measures to reduce human health and ecological risks identified in the agency’s 2019 draft human health and ecological risk assessments.

Several organizations in September 2021 petitioned the 9th U.S. Circuit Court of Appeals, asking for the court to review and set aside the EPA’s decision. The petitioners include the California Rural Legal Assistance Foundation, Farmworker Association of Florida, Michael J. Fox Foundation for Parkinson’s Research, Farmworker Justice, Alianza Nacional de Campesinas, Pesticide Action Network North America, Center for Biological Diversity, and Toxic Free North Carolina. The groups claim the EPA is violating the Federal Insecticide, Fungicide, and Rodenticide Act

The EPA had indicated it would likely ban most aerial spraying of paraquat, but after industry lobbying efforts, the agency said it would allow such use with restrictions around residential areas.

The EPA said that through collaboration with the National Toxicology Program at the National Institute of Environmental Health Sciences, the agency completed a “thorough review” of the scientific information on paraquat and Parkinson’s Disease and concluded that the weight of evidence was insufficient to link paraquat to Parkinson’s disease. The agency published this “Systematic Review of the Literature to Evaluate the Relationship between Paraquat Dichloride Exposure and Parkinson’s Disease.”

In finding no evidence of a connection between paraquat and Parkinson’s, the EPA relied in part on input from the Agricultural Handler Exposure Task Force (AHETF),  a group that includes large agrochemical companies such as Syngenta AG, Bayer, Dow/Corteva, and others.

USRTK will add documents to this page as they become available.

EPA exposed for hiding chemical risks, favoring corporate interests

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The U.S. Environmental Protection Agency (EPA) has a long and well-documented history of questionable conduct when it comes to regulation of chemicals important to the profit centers for many large and powerful corporations.  Numerous examples show a pattern of agency actions that allow for the use of dangerous chemicals by consumers, farmers, groundskeepers and others despite evidence of harm.

Documents and other evidence, including information provided in public disclosures by multiple EPA scientists, reveals actions in which EPA managers have intentionally covered up risks associated with certain chemicals. According to the evidence from these EPA insiders, pressure from chemical manufacturers, chemical industry lobbyists and from certain U.S. lawmakers drives internal agency manipulations that protect corporate interests but endanger public health.

Evidence indicates the misconduct dates back decades and has occurred in administrations led by Democrats and Republican alike.

A research project sponsored by Harvard University’s Edmond J. Safra Center for Ethics said while the EPA has “many dedicated employees who truly believe in its mission,” the agency has been “corrupted by numerous routine practices,” including a “revolving door” between EPA and industry in which corporate lawyers and lobbyists gain positions of agency power; constant  industry lobbying against environmental regulations; pressure from  lawmakers who are beholden to donors; and meddling by the White House.

Most recent news

Background: Blowing the whistle

The Frank R. Lautenberg Chemical Safety for the 21 Century Act, signed into law on June 22, 2016, was the first substantive reform to Toxic Substances Control Act (TSCA). The law requires EPA to make an affirmative determination on whether a new chemical substance presents an “unreasonable risk” to human health or the environment under “known, intended or reasonably foreseen conditions of use.” See information here.

Despite the law, the EPA has failed to make valid determinations about the risk presented by numerous chemicals.

In June 2021, four EPA scientists, each working within the agency’s Office of Chemical Safety and
Pollution Prevention (OCSPP), publicly accused the the EPA of deliberate tampering with chemical risk assessments. The four whistleblowers made their complaints public through a group called Public  Employees for Environmental Responsibility (PEER).

In a June 28 letter to the U.S. House Committee on Oversight and Reform, PEER said the four EPA scientists were providing “disturbing evidence of fraud and corruption,” involving “deliberate tampering with chemical risk assessments conducted under the Toxics Substances Control Act (TSCA), including PFAS (a.k.a. “forever chemicals”), and the deletion of potential health effects without the knowledge or consent of the human health assessors.”

The letter further states:

“All four clients have experienced numerous instances where their risk assessments were changed
by their managers or by colleagues in response to direction by management. These changes
include –
● Deleting language identifying potential adverse effects, including developmental toxicity,
neurotoxicity, mutagenicity, and/or carcinogenicity;
● Major revisions that alter the report conclusions to indicate that there are no toxicity
concerns despite data to the contrary; and
● Risk assessments being reassigned to inexperienced employees in order to secure their
agreement to remove issues whose inclusion would be protective of human health.”

As a result of the manipulations, people who work with these chemicals are not receiving information they need to protect themselves, such as “proper handling procedures, personal protection needed, accidental release measures, and first aid and firefighting measures,” according to PEER.
This is a particular concern for pregnant women, according to the PEER complaint.

Erasing important information

On August 26, 2021, PEER filed a separate complaint alleging that the EPA has been breaking the law by erasing original versions of internal communications and draft documents and retaining only the final version of key documents. The practice violates the Federal Records Act by eliminating details of the decision-making process from outside review, according to PEER.

PEER states that that discarding of documents trails is not only contrary to law but also violates the EPA’s own records retention policy. According to PEER, its complaint focuses on two classes of documents:

  • Alterations of chemical risk assessments by managers in which both the identity of the manager and the alterations themselves are not apparent; and
  • Internal comments related to the development of its Waters of the United States (WOTUS) rule, in which EPA software overwrote the original and all prior versions any time there was an edit. Thus, only the “final” version was saved.

“It is as if EPA memorializes its internal decision-making in disappearing ink,” PEER Executive Director Tim Whitehouse, a former EPA enforcement attorney, said in a press release. “EPA’s record-keeping practices allow unknown officials to make changes while disguising what precisely was changed and who changed them.”

PEER said it has asked the National Archives and Records Administration to intervene to prevent the EPA from destroying more records and to adopt safeguards to prevent any recurrences.

The case of Ruth Etzel

Ruth Etzel,  former director of the EPA’s Office of Children’s Health Protection (OCHP), filed a  whistleblower complaint with the U.S. Merit Systems Protection Board contending she was subject to illegal retaliation in 2018 and 2019. Etzel said the agency retaliated against her after she complained publicly about what she said was  EPA resistance to stronger public protections against lead poisoning.

At the EPA it was Etzel’s job to determine the impacts of regulations on children. But she alleges she was improperly removed from her position after speaking out about EPA failures, and was assigned to a division where she was not allowed to work on prevention of lead poisoning.

Etzel is both a pediatrician and an epidemiologist and is recognized internationally as an expert on child health and the environment. She was named the 2021 winner of the Public Policy and Advocacy Award by the Academic Pediatric Association.

More than 120 environmental and health organizations  complained to EPA about Etzel’s removal, saying the agency was sending a “signal that children’s health is not a priority for the agency.”

Reporting on EPA’s misconduct

See here information, including news articles, regarding alleged EPA misconduct and regulatory failures:

New evidence of corruption at EPA chemicals division, by Sharon Lerner, The Intercept, September 18, 2021

EPA whistleblower testifies her advocacy for stronger health protections drew agency retaliation, by Carey Gillam, USRTK, September 13, 2021

‘The harm to children is irreparable’: Ruth Etzel speaks out ahead of EPA whistleblower hearing, Carey Gillam, The Guardian, September 12, 2021

The EPA’s rationale for banning chlorpyrifos may make it harder to eliminate other brain-harming pesticides , Sharon Lerner, The Intercept, August 24, 2021.

Formaldehyde causes leukemia, according to EPA assessment suppressed by Trump officials, Sharon Lerner, The Intercept, August 19, 2021.

EPA exposed: Leaked audio shows pressure to overrule scientists in “hair-on-hire” cases,  Sharon Lerner, The Intercept, August 4, 2021.

Whistleblowers expose corruption in EPA chemical safety office, Sharon Lerner, The Intercept, July 2, 2021.

How pesticide companies corrupted the EPA and poisoned America, Sharon Lerner, The Intercept, June 30, 2021.

Flawed analysis of an intentional human dosing study and its impact on chlorpyrifos risk assessment,  Lianne Sheppard, Seth McGrew, Richard Fenske, Environment International, July 2020.

Further Efforts Needed to Uphold Scientific Integrity Policy at EPA,  U.S. Environmental Protection Agency Office of Inspector General, May 20, 2020.

EPA Allowed Companies to Make 40 New PFAS Chemicals Despite Serious Risks, Sharon Lerner, The Intercept, September, 19, 2019.

E.P.A. Won’t Ban Chlorpyrifos, Pesticide Tied to Children’s Health Problems, Lisa Friedman, New York Times, July 18, 2019.

Emails show Trump EPA overruled career staff on Wisconsin air pollution, Timothy Gardner, Reuters, May 28, 2019.

US environment agency cuts funding for kids’ health studies, Sara Reardon, Nature, May 13, 2019.

Meet 3 women who stood up to Trump to protect the American people — and lost their jobs,  The Hill, January 19, 2019.

White House, EPA headed off chemical pollution study, Annie Snider, Politico, May 14, 2018.

Whitewash: The Story of a Weed Killer, Cancer, and the Corruption of Science, Carey Gillam, Island Press, October 10, 2017.

Records Show EPA Efforts to Slow Herbicide Review Came in Coordination with Monsanto, Carey Gillam, Huffington Post, August 18, 2017.

EPA Official Accused of Helping Monsanto “Kill” Cancer Study, Joel Rosenblatt, Lydia Mulvany, and Peter Waldman, Bloomberg, March 14, 2017.

Poison Spring- The Secret History of Pollution and the EPA, Evaggelos Vallianatos and McKay Jenkins, Bloomsbury Press, April 14, 2014.

Monsanto scientist defends Roundup safety in California trial

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A senior scientist at the former Monsanto Co. told jurors in a California trial that the company’s Roundup herbicide is so safe that the scientist uses it regularly at her home, and suggests friends also use the weed killing product.

Donna Farmer, who worked as a toxicologist at Monsanto for more than two decades and now works at Monsanto owner Bayer AG, spent long hours testifying Monday and on multiple days last week in the case of Donnetta Stephens v. Monsanto. The Stephens case is the fourth Roundup cancer lawsuit to go to trial and the first since 2019. Stephens suffers from non-Hodgkin lymphoma she blames on her use of Roundup herbicide for more than 30 years.

Stephens is one of tens of thousands of plaintiffs who filed U.S. lawsuits against Monsanto after the World Health Organization’s cancer experts in 2015 classified glyphosate – the active ingredient in Monsanto’s herbicides – as a probable human carcinogen with an association to non-Hodgkin lymphoma.

Monsanto lost each of the three previous trials, after lawyers for the plaintiffs presented jurors with multiple scientific studies finding potential health risks with glyphosate and Roundup  The plaintiffs lawyers also used internal Monsanto documents as evidence, arguing the so-called “Monsanto Papers” showed intentional efforts by the company to manipulate regulators and control scientific research.

The jury in the last trial ordered $2 billion in damages though the award was later shaved to $87 million.

Bayer, which bought Monsanto in 2018, insists there is no cancer risk with its glyphosate herbicides, but it has agreed to pay close to $14 billion to try to settle the litigation and said it will remove glyphosate products from the U.S. consumer market by 2023. The company will continue to sell the herbicides to farmers and other commercial users.

Combative exchanges

In testimony delivered under cross-examination by Stephens’ lawyer William Shapiro, Farmer was combative, going beyond answering the yes or no questions Shapiro posed to her in an effort to “explain” the context she said Shapiro was misrepresenting.

Shapiro quizzed Farmer about emails and documents dating back to the late 1990s that Shapiro presented as evidence that Farmer and other company scientists engaged in misconduct, including ghostwriting scientific papers to fraudulently assert the safety of its glyphosate-based herbicides and buried information that found cancer risk with the products.

On Monday, Monsanto lawyer Manuel Cachan questioned Farmer about many of the same pieces of evidence focused on by Shapiro, but cast the emails and other evidence as innocent exchanges that bear no signs of deceit or misconduct.

Under Cachan’s questioning, Farmer said that based on the science that she is familiar with, she does not believe glyphosate causes cancer, and is confident that Roundup is safe to use. She said that she is so certain of the safety of Roundup that she has used it around her yard for about 25 years. She does not wear gloves or special protective gear when spraying, she testified. Farmer said she has no worries about recommending the product to family members and friends.

Farmer said the phase-out for consumers is not due to any safety concerns and is being removed from consumer markets simply “because of the litigation and the lawsuits.” Farmer said she does not think the product should be withdrawn.

“The product is in my opinion – and not just my opinion but regulators around the world – the product is safe and is not a carcinogen,” Farmer testified.

Even after Bayer stops selling Roundup to consumers in 2023, Farmer said she plans to keep using it.

“It has a good shelf life so I’ll probably buy some extra bottles,” she said. “You can go to dealerships in farm country, you can buy some of the products there.”

Monsanto has been persecuted by an anti-pesticide movement, according to Farmer.

“There are a lot of people who don’t like pesticides. They don’t like glyphosate and quite frankly don’t like Monsanto. There are a lot of people who make allegations and spread misinformation about the safety of our products,” Farmer testified.

Beyond Pesticides

At one point in her testimony, Farmer weighed in on a nonprofit group and Monsanto critic called Beyond Pesticides, telling jurors that Beyond Pesticides was not a scientific group but rather an activist group that was “misrepresenting the science” about synthetic pesticides such as glyphosate.

“Their mission is to stop the use of synthetic pesticides and so what they publish is misinformation, inaccurate information about pesticides,” she testified.

Monsanto’s lawyer asked her to address a 2008 internal Monsanto email regarding a press release issued by Beyond Pesticides. The press release by the nonprofit group shared a research study that found glyphosate exposure could increase a person’s risk of developing non-Hodgkin lymphoma. The group advised people should embrace organic agriculture and use “non-toxic land care” on residential lawns.

In the email, Farmer had written to colleagues: “We have been aware of this paper for awhile and knew it would only be a matter of time before the activists picked it up.” Mentioning the Beyond Pesticides line about embracing organic agriculture, Farmer had written: How do we combat this?”

Under questioning from Monsanto’s lawyer, Farmer explained that she was not indicating Monsanto should try to combat the scientific research but was addressing only the Beyond Pesticide advice about avoiding pesticide use.

The Stephens trial started as an in-person proceeding but was changed to a Zoom trial due to concerns about the spread of Covid-19, and has been plagued by repeated “technical problems” ever since the change. Several times jurors and/or a witness have lost their audio and/or video connections to the trial.

Judge Gilbert Ochoa of the Superior Court of San Bernardino County in California, is overseeing the proceedings.

The trial does not resume until Monday Oct. 4 because of scheduling conflicts for some of the trial participants.

EPA’s “scientific integrity” program lacks teeth, group alleges

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Insiders at the Environmental Protection Agency (EPA) have alleged dozens of violations of the agency’s “scientific integrity” policy over the last few years, including complaints of political interference and tampering with chemical risk assessments, but nearly all the complaints have been ignored, according to an analysis conducted by a nonprofit group representing EPA employees.

Seven complaints were filed very recently- between January and July of this year, according to EPA data obtained by the group.

Since 2017 there have been a total of 68 allegations of scientific integrity violations inside the EPA, including 35 allegations filed between 2019 and mid-year 2021, according to Public Employees for Environmental Responsibility (PEER).

PEER is currently representing four EPA scientists who have come forward as whistleblowers, offering internal agency emails and other documents as evidence of what they allege is wide-spread corruption driven by powerful political and corporate influences.

Among other things, those whistleblowers have claimed specifically that chemical risk assessments have been altered, or otherwise tampered with, in order to make chemicals entering the marketplace appear safer than they actually are. The result leaves the public exposed to chemicals that may cause cancer, developmental problems or other hidden health risks.

Importantly, the whistleblowers have said that agency misconduct has continued through the first several months of the Biden administration.

The information obtained by PEER shows that of the 35 allegations filed from 2019 through June 2021, 12 were closed, 22 remained unresolved and only one was deemed “substantiated,” but even that one has not led to any punishment.

“It’s a complete sham,” Jeff Ruch, one of PEER’s regional directors and former executive director, said of the EPA’s scientific integrity program. “They give the illusion that they have a program, but it’s worse than nothing because it suggests they’re holding themselves to a high standard of scientific integrity when they’re not.”

Interference

The EPA has publicly reported scientific integrity complaint information through 2018, but has not filed public reports for complaint information since. The data for 2019 through June of 2021 was procured by PEER through a Freedom of Information Act request. The nonprofit requested details about the complaints and their handling but EPA provided only very limited information illustrated in pie charts.

The information in the pie charts shows that “interference” in scientific work ranked as the most often-cited type of complaint. Five of the seven complaints recorded for the first half of 2021 were for interference, for instance.

Shortly after taking office, President Biden launched a review of federal scientific integrity policies, saying “Scientific findings should never be distorted or influenced by political considerations.”

The directive said ”Improper political interference in the work of Federal scientists… undermines the welfare of the Nation, contributes to systemic inequities and injustices, and violates the trust that the public places in government to best serve its collective interests.”

In one example of such interference, PEER filed a complaint last year with the EPA’s Office of  Inspector General charging that then EPA Administrator Andrew Wheeler, along with other high-ranking EPA officials, excluded key scientific information and the analysis of experts​ in changing the definition of “water of the United States” under the Clean Water Act, a move PEER and others said threatened clean drinking water around the country. 

“Major” hindrances

PEER describes what it calls “major” hindrances within the EPA’s Scientific Integrity program, including a “lack of investigative staff,” an “inability to draw upon expertise needed to assess technical issues,” and the “absence of any protocol for reviewing or investigating complaints.”

And notably, violations of the agency’s scientific integrity policy carry no penalties, PEER said.  The group’s experience representing whistleblowers indicates violations are largely addressed by trying to “persuade non-compliant managers to address their own violations,” PEER said.

The group said with respect to the current whistleblower complaints PEER is involved in, the EPA scientists notified the agency’s office of scientific integrity last November about their concerns about a memorandum that made policy changes they scientists said weakened human health assessments in a way that made them less likely to find risks with a new chemical substance. Their concerns were ignored for months, according to PEER. The memorandum was eventually revoked, but the altered chemical assessments were not corrected and the scientists fear the policy memo will be reinstituted, according to PEER.

In the EPA’s 2018 report, the agency said that “Scientific integrity remains an ongoing priority for EPA,” and said the agency works with special advisors and committees and engages the Office of Inspector General (OIG) when needed to protect and advance the integrity of the agency’s scientific work.

“Scientific integrity is the compass that guides EPA in its mission to protect human health
and the environment,” the agency states in the report.

Litigation against Syngenta grows; lawyers fight over evidence and trial dates

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Syngenta AG is facing a growing number of U.S. lawsuits over allegations that its paraquat herbicide causes Parkinson’s disease, with a Fresno, California man pushing for an expedited trial that potentially would start within the next few months, and multiple plaintiffs’ lawyers jockeying for power and influence over future trial proceedings.

Plaintiff George Isaak used paraquat to treat weeds on orchard and vineyard property from 1964 through 2004, mixing, loading and spraying the pesticide routinely before he was diagnosed with Parkinson’s in May of 2020, according to his lawsuit.

Isaak used a 200-gallon “spraying rig” on the 60-acre farm where he raised peaches, nectarines, almonds, pistachios, and grapes before retiring in 2005. Isaak, 84, now has such severe Parkinson’s symptoms that he has suffered several falls, finds it hard to speak, and is confined to a wheelchair, according to his lawyers.

Isaak attorney Mike Miller said his client has been left with “horrible” injuries from Parkinson’s.

Isaak should now be given a trial date no later than January due to his decline in cognition and overall debilitation to his health, according to a court filing by The Miller Firm and co-counsel.

Isaak “had no reason to suspect that chronic, low-dose exposure to Paraquat could cause neurological diseases such as Parkinson’s disease,” the lawsuit states. But evidence will show, the lawsuit contends, that the paraquat use was a “substantial factor in causing Plaintiff George Isaak to suffer severe and permanent physical injuries, pain, mental anguish, and disability, and will continue to do so for the remainder of Plaintiff George Isaak’s life.”

Carol Isaak, George Isaak’s wife, is also a plaintiff in the lawsuit and is seeking a claim for loss of consortium.

There are hundreds of cases pending in state and federal courts around the country, according to a June 22 court filing. The plaintiffs in those cases all allege Syngenta was aware of the risks but failed to warn users.

Syngenta, which is owned by a Chinese chemical company, has denied the allegations, and is seeking to dismiss, or limit the lawsuits. The company filed a “partial motion to dismiss” in federal court on Sept. 13, citing various state law provisions in asking the court to dismiss claims “for breach of warranty, fraud, and violation of certain consumer protection statutes.”

Along with Syngenta, the defendants include Chevron Phillips Chemical Cmpany LP, and Chevron USA, Inc. All have denied any liability.

Infighting among plaintiffs’ lawyers

Syngenta said in a Sept. 17 court filing that it opposes the granting of an expedited trial, known as a “preference” trial, for Isaak.

“Mr. Isaak has presented no evidence regarding his alleged paraquat exposures, and his medical records and doctor’s declaration cast doubt on whether he actually has Parkinson’s disease,” the company said in its filing.

Syngenta noted that there are many other plaintiffs expected to request preference trials.

In addition to the objection from Syngenta, Isaak’s lawyers effort to obtain court approval for a preference trial has come into conflict with an effort by other attorneys representing other plaintiffs in the paraquat litigation.

Plaintiffs law firm Walkup, Melodia, Kelly & Schoenberger is seeking to create a special committee made up of plaintiffs’ lawyers that would evaluate and screen cases seeking preference trials. Typically such requests for expedited trials go directly to a judge.

The firm said a committee was needed because many of the plaintiffs in the overall paraquat litigation would “likely qualify” for preference. They are proposing a protocol implemented by a five-member committee of plaintiffs’ lawyers.

“The majority of the plaintiffs, including both filed and unfiled cases known to plaintiffs’ counsel, are over the age of 65. The reality of these cases is that there are many plaintiffs, as well as many potential plaintiffs, whose disease progression is unstable and who have a real and substantial danger of losing their ability to testify, or losing their ability to meaningfully utilize their compensation, if their trials are not prioritized,” the firm stated in a court filing.

The firm added in a separate filing: “An uncontrolled race to file competing preference motions risks sending a plaintiff to trial who does not represent the plaintiff population. And should the initial trials be ultimately unsuccessful, it jeopardizes the rights of all remaining plaintiffs in the proceeding.”

Isaak’s lawyers oppose the formation of such a committee and filed a memorandum explaining that opposition on Sept. 17, arguing that the use of a preference committee is “unconstitutional on its face.”

Whether or not a plaintiff meets the criteria deserving of a preference trial should not be left up to the arbitrary nature of a committee of other plaintiffs’ attorneys, they said.

The attorneys registering opposition to the preference committee additionally allege that the Walkup firm has a conflict of interest because it has already reached a “large, lucrative” settlement agreement with Syngenta for some of its clients, and until that deal is finalized, Syngenta and the other defendants still could walk away from the deal.

Thus, the Walkup firm is “a conflicted law firm,” the attorneys allege. In addition to The Miller Firm, the law firms registering opposition are the Wagstaff Law Firm and Brady Law Group.

A hearing on the matter is set for Sept. 30.

Battle over discovery documents

The lawyers for plaintiffs have also been fighting over access to internal Syngenta corporate documents and other evidence obtained as part of court-ordered “discovery.”

Over the last few years, Syngenta and the other defendants turned over millions of documents to Missouri lawyer Steve Tillery in his representation of a paraquat lawsuit titled Hoffman V. Syngenta, that was pending in St. Clair County, Illinois. The Hoffman case had been set to go to trial earlier this year but Tillery and the defendants agreed to a settlement and no trial was held.

The lawyers for the plaintiffs pursuing trials want to make use of the materials already turned over in the Hoffman case, including internal corporate documents as well as depositions and expert reports. Tillery and Syngenta objected to sharing some of the materials but were ordered to do so by the federal judge overseeing consolidated paraquat proceedings in the Northern District of California.

Scientific studies

Several scientific studies have linked paraquat to Parkinson’s, including a large study of U.S. farmers jointly overseen by multiple U.S. government agencies.  Farmers use paraquat in the production of many crops, including corn, soy and cotton. The Agricultural Health Study (AHS) said it found that “exposure to agricultural pesticides may increase a person’s risk of developing Parkinson’s disease.” In 2011, AHS researchers reported that “participants who used paraquat or rotenone were twice as likely to develop Parkinson’s disease as people who didn’t use these chemicals.”

Syngenta argues that newer and more robust research, including by AHS scientists, has discounted a tie between paraquat and Parkinson’s.

A recent paper from AHS researchers stated that “Extensive literature suggests an association between general pesticide use and Parkinson’s disease (PD). However, with few exceptions, little is known about associations between specific pesticides and PD.”

Because the paraquat litigation is expected to continue to grow, the U.S. Judicial Panel on Multidistrict Litigation (MDL) in Washington, D.C. approved the consolidation of pretrial proceedings in the Northern District of California, the same federal court that is overseeing the U.S. Roundup MDL.

Similarly, several other cases are consolidated in Judicial Council Coordination Proceedings in Contra Costa County Superior Court in California.

Monsanto lawyer cross-examines cancer patient over her claims Roundup caused her disease

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A California woman suing Monsanto over allegations that her use of Roundup weed killer caused her to develop cancer testified Monday that she had a hard time remembering many details about the extent of her use of the pesticide, struggling to answer several questions posed by a Monsanto attorney.

In cross examination, Monsanto attorney Bart Williams pressed plaintiff Donnetta Stephens on how much and when she had used the company’s popular herbicide before she was diagnosed with non-Hodgkin lymphoma in 2017. Peppering Stephens with questions about changes in information she provided in depositions and interrogatories, the company’s lawyer sought to cast doubt on the span and volume of her actual use and exposure.

In testimony last week, Stephens’ son David Stephens recalled his mother’s frequent use of Roundup and her tendency to wear sleeveless shirts and shorts when outside spraying the weed killer. He described recalling her use when he was a child and seeing that use continuing when he was an adult.

But in Monday’s testimony, Williams sought to undermine Donnetta Stephens credibility, implying that her son and husband were the architects of many of her answers about her use of Roundup provided in pre-trial documents.

He said that Stephens and her husband had “changed your story about the length of time you had used Roundup,” saying initially her use dated back to 2003 but then saying the use began in 1985.

Stephens acknowledged that her memories of her use were aided by information from her family.

“You and I agree that one should not swear to something, accuracy, if you don’t know whether it is true or not.  That is my question,” Monsanto’s lawyer addressed Stephens.

“At that time, I believed it to be true, yes sir,” she replied.

“You believed it to be true solely because that’s what your husband or your son said, correct?” Williams  asked.

“Yes,” Stephens answered.

The line of questioning was anticipated in a June filing by Stephens’ lawyers, explaining to the judge that Stephens is in frail health after six cycles of chemotherapy and has suffered significant memory loss, making her “unable to recall certain Roundup exposures.”

She had told lawyers initially that her exposure extended over 14 years but amended that to say it was  closer to 30 years after being reminded of her use of Roundup products at a property where she had previously lived, according to her lawyers.

In their June filing, Stephens lawyers said Monsanto’s attorneys were accusing them and Stephens of “engaging in gamesmanship,” and allegation they denied.

Stephens testified that she does remember that sometimes when she was spraying Roundup the wind would blow spray onto her bare skin. She said she would not immediately wash it off, showering only after she completed her yardwork.

“It was all over me,” Stephens said.

At one point Monsanto’s attorney asked Stephens about her relationship with her children. When Stephens insisted she was close to her children, Monsanto’s attorney played a video deposition of a previous statement she had made saying the opposite.

Longtime Monsanto scientist Donna Farmer is scheduled to testify Tuesday.

Monsanto is owned by Germany’s Bayer AG. Bayer bought Monsanto in 2018.

Preference case

Stephens’ trial is a “preference” case, meaning her case was expedited after her lawyers informed the court that Stephens was “in a perpetual state of pain” and losing cognition and memory.

The case is being tried in the Superior Court of San Bernardino County in California under the oversight of Judge Gilbert Ochoa. It is the fourth Roundup cancer trial to take place in the United States and the first since 2019. Juries in all three prior trials found in favor of the plaintiffs, agreeing with claims that Monsanto’s glyphosate-based weed killers, such as Roundup, cause non-Hodgkin lymphoma and Monsanto spent decades covering up the risks, and failing to warn users.

Stephens is one of tens of thousands of plaintiffs who filed lawsuits against Monsanto after the World Health Organization’s cancer experts classified glyphosate as a probable human carcinogen with an association to non-Hodgkin lymphoma.

The three prior trials were all lengthy, in-person proceedings loaded with weeks of highly technical testimony about scientific data, regulatory matters and documents detailing internal Monsanto communications.

Stephens trial is being held via Zoom due to concerns about the spread of Covid-19, and numerous technical difficulties have plagued the proceedings. On Monday, the trial was stopped several times because jurors lost connections or had other problems that inhibited their ability to hear and view the trial testimony.

Son testifies about his mother’s cancer alleged due to Roundup exposure

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A woman suffering from non-Hodgkin lymphoma was a devoted user of Roundup herbicide for decades before she became ill, her son testified Tuesday in a California trial that marks the fourth such trial pitting a cancer victim against Roundup maker Monsanto.

Under questioning by a lawyer representing plaintiff Donetta Stephens, her son David Stephens recalled his mother’s frequent use of Roundup in the yard and her tendency to wear sleeveless shirts and shorts when outside spraying the weed killer. He described recalling her use when he was a child and that use continuing when he was an adult and had his own children.

Stephens also testified about a family gathering in which his mother broke the news of her cancer to the family, the lengthy series of medical treatments that followed, his mother’s memory loss and other treatment-related problems, and a period in which his mother was hospitalized multiple times and nearly died.

Stephens is one of tens of thousands of plaintiffs who filed lawsuits against Monsanto after the World Health Organization’s cancer experts in 2015 classified glyphosate as a probable human carcinogen with an association to non-Hodgkin lymphoma. Glyphosate is the active ingredient in Roundup and other weed killing brands.

Bayer AG bought Monsanto in June 2018 just as the first trial was getting underway.

Three previous trials held to date were all found in favor of the plaintiffs. Jurors in those trials agreed with claims that Monsanto’s glyphosate-based weed killers, such as Roundup, cause non-Hodgkin lymphoma, and that Monsanto spent decades covering up the risks and failing to warn users.

The Stephens case is being tried in the Superior Court of San Bernardino County in California under the oversight of Judge Gilbert Ochoa. Though the trial started in person, Judge Ochoa ordered the proceedings shifted to a Zoom trial due to concerns about the spread of Covid-19 virus.

In testimony Tuesday, David Stephens broke down, emotionally describing a time when it appeared his mother was near death, and speaking of a photo he took of her that he thought at the time would be the last.

“I took that picture because when you think that your mother is going to die and that could be the last picture…,” Stephens said haltingly. “I wanted to take that picture so I could remember…”

Donnetta Stephens is now in remission from cancer but has been left debilitated, her son testified.

Former Monsanto scientist Donna Farmer will be called to testify next week, according to Stephens’ lawyer Fletch Trammell.

Technical trouble

The trial has been plagued by technical issues since the transition to a virtual setting through Zoom. There have been multiple times proceedings have been halted because a lawyer or juror loses an audio or video connection or experiences other difficulties. The virtual format has also proven problematic at times for the presentation of certain exhibits.

A courtroom attendant has been assigned to monitor jurors to determine if they are paying attention, and to alert the judge to lost connections or other problems.

In Tuesday’s testimony, as Monsanto lawyer Manuel Cachan was attempting to cross examine Stephens, questioning the reliability of his memory regarding his mother’s use of Roundup, the technical trouble kicked in again.

“I’m sorry for the interruption, juror number 13 is having issues, just starting to quote unquote glitch out,” the courtroom attendant interjected.

Minutes later: “Pardon me… juror number 11 has just disconnected,” the courtroom attendant interrupted again.

Some legal observers have speculated that the losing party in the trial will have an easy avenue for appeal given the persistent interruptions and difficulties.

Trial overlap

A fifth Roundup trial was starting jury selection this week in a case involving a boy with non-Hodgkin lymphoma.

The child, Ezra Clark, is the subject of a trial beginning this week in Los Angeles County Superior Court. Clark was “directly exposed” to Roundup many times as he accompanied his mother while she sprayed Roundup to kill weeds around the property where the family lived, according to court documents. Ezra sometimes played in freshly sprayed areas, according to the court filings.

Ezra was diagnosed in 2016, at the age of 4, with Burkitt’s lymphoma, a form of NHL that has a high tendency to spread to the central nervous system, and can also involve the liver, spleen and bone marrow, according to the court filings.

Ezra’s mother, Destiny Clark, is the plaintiff in the case, filing on behalf of Ezra.

Opening statements in the Clark trial are scheduled to begin Wednesday morning.

Bayer denies any cancer connection

Bayer has earmarked more than $14 billion to try to settle the litigation and has announced it will stop selling glyphosate-based herbicides to consumers by 2023. But the company still insists that the herbicides it inherited from Monsanto do not cause cancer.

Last month Bayer filed a writ of certiorari with the U.S. Supreme Court, seeking the high court’s review of the Ninth Circuit Court of Appeals’ decision in the case of Hardeman v. Monsanto. 

The move is widely seen as Bayer’s best hope for putting an end to claims that exposure to Monsanto’s glyphosate-based herbicides, such as the popular Roundup brand, cause non-Hodgkin lymphoma, and the company failed to warn users of the risks.

During the month-long trial in 2019, lawyers for plaintiff Edwin Hardeman presented jurors with a range of scientific research showing cancer connections to Monsanto’s herbicides as well as evidence of many Monsanto strategies aimed at suppressing the scientific information about the risks of its products. Internal Monsanto documents showed the company’s scientists had engaged in secretly ghost-writing scientific papers that the company then used to help convince regulators of product safety.

EPA whistleblower testifies her advocacy for stronger health protections drew agency retaliation

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Children’s health expert Ruth Etzel on Monday testified in a public hearing that the Environmental Protection Agency (EPA) worked to silence and harass her, removing her from a top-level position after she complained about agency delays in advancing a lead poisoning prevention program.

In testimony before Merit Systems Protection Board Judge Joel Alexander,  Etzel described being shocked to learn she was being placed on leave without pay in September 2018 and the “vindictive” “cat and mouse games” she alleged EPA officials used to block her from scheduled national and international speaking engagements.

She also testified that the agency issued public statements designed to discredit and intimidate her.

“They appeared to be just trying to smear my good name,” she testified.

Etzel is a pediatrician and epidemiologist who was brought into the EPA in 2015 by the Obama administration to direct the agency’s Office of Children’s Health Protection (OCHP). Etzel previously worked as a senior officer in the department of public health and environment at the World Health Organization in Switzerland and also previously worked for the U.S. Centers for Disease Control and on public health matters within the U.S. Department of Agriculture.

The agency actions against her occurred during the Trump administration and allegedly followed an aggressive push by Etzel to launch a federal action plan aimed at reducing childhood exposures to lead.

According to her whistleblower complaint, Etzel spoke out about “gross mismanagement and a substantial and specific danger to public health” from childhood lead poisoning, and tried to promote the release of a new federal strategy even after EPA leadership delayed the plan’s final review. In response, “EPA placed Dr. Etzel on administrative leave without warning,” fabricated complaints about her leadership and obstructed her ability to travel to attend and speak at professional conferences, Etzel alleges.

Separate from Etzel’s allegations, four EPA scientists have recently come forward with allegations that the agency is putting corporate interests ahead of public health protection, allowing dangerous chemicals into the marketplace. The whistleblowers allege the EPA routinely uses intimidation tactics to coerce agency scientists into ignoring data showing risks of harm with certain chemicals, and/or altering assessments to downplay such risks.

Etzel and the other EPA whistleblowers are represented by lawyers at Public Employees for Environmental Responsibility. 

“Opportunity to strike”

Multiple internal EPA emails and other records were introduced on Monday as evidence, including an email in which EPA public affairs personnel discussed “an opportunity to strike” out against Etzel in communications to the media.

In a September 28, 2018 email, former EPA deputy associate administrator in the office of public affairs John Konkus wrote to colleagues about inquiries from members of the press about Etzel’s being placed on leave.

“This is our opportunity to strike,” Konkus wrote. (Konkus is no longer with the EPA; he now works as a senior manager for “government affairs” with AECOM, a consulting firm on infrastructure engineering and construction matters.)

“I felt like this was a direct strike on me and it caused me to have fear in my heart,” Etzel testified.

In an email thread with the subject line “Push this around ASAP please,” public affairs officials discussed a “stronger updated” statement about Etzel to state that she was placed on administrative leave because of “serious reports made against her by staff … ” that were “very concerning.”

After being put on leave, Etzel went on multiple television shows to talk about the agency actions. In testimony Monday she said she felt she had no other choice.

“I had been completely silenced by being placed on administrative leave and I was not able to do the job that I was hired to do. I had no other venue,” Etzel testified. “I basically took an oath when I became a doctor to do no harm and by being silent when hazards continue in the environment unabated I do harm, and so I’m not willing to do that. I had to speak out.”

Etzel said the lead plan that was ultimately rolled out after she was placed on leave was “weaker” than the one she helped design and lacked new regulations and requirements needed for the strategy to be  effective.

Former EPA official testifies

The first witness called Monday to testify on behalf of Etzel was former EPA official Reginald Allen, who served in several positions at the agency, including as Acting Deputy Chief of Staff.

Allen testified that during the Trump administration, Millan Hupp, a political appointee close to then-EPA administrator Scott Pruitt, “absolutely” engaged – along with Pruitt – in unethical behavior, and was at least partly instrumental in working to push out certain EPA personnel. Pruitt, who was appointed by Trump to run the EPA, was pushed out in July of 2018 amid evidence of multiple ethical violations.

Allen further testified that Helena Wooden-Aguilar, who was acting deputy chief of staff at the time and who was directly involved in removing Etzel, was close to Hupp and was given that position “with an agenda and that agenda included pushing aside or getting rid of the career senior executives that the political administration did not feel comfortable with or felt did not do their bidding in a way that they wanted.”

Under questioning, Allen added: “I believe it was to remove what they felt were politically unreliable career leadership in the agency… so they wouldn’t be privy to some of the things that went on in the office of the administrator.”

Wooden-Aguilar is scheduled to testify on Tuesday or Wednesday.

Allen said that when he raised concerns about ethical matters within the EPA “it was just not appreciated” and “marked” him within the agency. Allen said at one point he was falsely accused of leaking sensitive agency information to the media.

“There was even an article planted about me from the administration in the conservative press saying that I was leaking information,” Allen said. “They later determined that it was one of their own… political folks that was doing that. But the damage was already done.”

EPA defense

One witness called Monday afternoon, “leadership consultant” Catherine Allen, appeared to bolster the EPA’s position that there was no improper retaliation against Etzel and her removal from the children’s health office was due to poor leadership and complaints about her management of that office.

The EPA asserts there were many complaints about Etzel’s management, including allegations from employees that she “failed to follow agency HR policy,” was emotional and would “bully” co-workers.

Allen testified that she determined Etzel had poor management abilities and “had lost the respect, the trust, the confidence” of those she managed.

Allen confirmed her findings in a report that stated: “It is my view that Ms. Etzel cannot effectively perform her duties… the longer she is allowed to stay in this role the more the agency is exposed to legal and operational risk. The staff deserve better.”