Pilliod v Monsanto
The other day I went to Lowes to order some concrete for a project. Just inside the entrance on the right were a dozen pallets of Roundup—thousands of bottles of the stuff. This is not where they normally display it; it is usually along a wall on a few shelves outside the flower department.
I proceeded on my way, turning left along the row of check out aisles. Several more pallets of Roundup loomed on the right again. And then, up ahead, was yet another line up of pallets with even more. This looked to me like enough Roundup to kill every weed in the city of San Francisco. And it felt like a bad dream. WTF is going on? Is Lowes dumping this stuff anticipating a ban? Is it a PR move? AOJ is flummoxed.
I can cover one day of Pilliod v Monsanto this week for GGirl while she is on Spring Break, so I decide to go today because we have a brand new expert witness for the plaintiffs, Dr. Charles William “Bill” Jameson. Tuesday and Wednesday was Dr. Christopher Portier, whose testimony we heard in Johnson v Monsanto. I am sure he killed again.
Before the jury comes in, Steve Brady for the Plaintiffs addresses the court on an outbreak of geofencing—pop-up ads extolling the safety of Roundup that have allegedly been appearing in narrow targeted geographical areas, “like this courtroom.” Steve tells Judge Winfred Smith that, “this is going too far.” Judge Smith explains that jurors come from all over Alameda County and “are going to follow my instructions or not” when it comes to viewing any material related to the case. She is loathe to infringe on Monsanto’s First Amendment rights, and points out that law firms have been quite actively advertising as well.
I think I am with the Plaintiffs on the one—the geofencing seems creepy enough to be a product of Monsanto’s FTO department. That said, Judge Smith uttered the magic word: “Instructions.” Instructions are what make juries hum like well-oiled machines of justice. Jurors want to follow instructions, although I don’t know what a juror would do to avoid an ad that pops onto a phone screen. Hmmm. If Monsanto is really doing this, I think it has a good chance of backfiring anyway.
Everyone rises for the jurors as they file into the courtroom. The bleachers are not sold out today so I found a seat where I will get a good look at this fine group of Alamedans. We lost one juror since I was here for the openings. I ask around and find out that it is the juror who had acknowledged that she or he had “read something” related to the trial when the jury was asked about this by the judge on opening day. (Oops. Oh well, I still stand by my “instructions” theory.) The juror remained seated that day, so it may have been an issue related to being able to hear the audio of the video depos that resulted in the excusal—hearing aid feedback.
Direct examination of Dr. Bill by Brent Wisner
Dr. Bill is sworn and Brent Wisner begins his direct examination. Bill is a retired toxicologist who focused on environmental cancer research during a long career in the National Toxicology Program (NTP) at the National Institutes of Health (NIH). His doctoral thesis was a “Study of Lanthanide shift Reagent – Substrate Interaction in Solution,” to which Brent deadpans, “That was my thesis too!” But seriously, Dr. Bill is all cancer, all the time. He started out cleaning rodent cages at a lab after junior year in high school. If you want to know about the efficacy of bioassay studies (tumor studies on rodents) this is your man.
Brent takes Dr. Bill right to the Mighty Mouse/Magic Tumor saga. You are all familiar with the story by now, and this jury heard it in Brent’s opening. But openings are not evidence, so Brent leads Dr. Bill through it to move it over onto the “is evidence” side of the ledger.
It seems the real reason Dr. Bill is here is because he, like Dr. Portier, worked on the IARC monograph on glyphosate. (Hey, if one IARC scientist is great, then two are blow-Monsanto-out-of-the-water great). And, unlike Dr. P, Dr. Bill was a voting participant. In fact, he has worked on 16 IARC monographs during his career. Brent asks how many hours he has worked on IARC. “Thousands.” “Oh, and you must have made a good deal of money for all that work, right?” Nope. IARC participants receive travel expenses to Lyon, France, a room, and a small stipend.
Brent wants to know why Dr. Bill would do this for free. “My whole career has been invested in environmental cancer research because it is important that the information be published to the world. Knowledge is power. You need to know if something is a hazard so you can take steps to protect yourself. Sometimes it is as simple as putting on a pair of gloves or a respirator mask.” Bam! He just won this juror over.
After this we get a little history of IARC which illustrates the axiom that “it is all about who you know.” There was a man whose friend died of cancer, so he wanted to do something about the environmental causes that he believed were the culprits. This man happened to have another friend by the name of Charles De Gaulle, who helped him get IARC set up in 1965. That’s why it is in France.
After a discussion of how IARC determines what chemicals to study (they are nominated from already suspected carcinogens with a priority going to chemicals that have the highest exposure rates for humans) and a rundown of the IARC classification system, Brent steers Dr. Bill into a discussion of how IARC and its scientist were attacked after the monograph came out in 2015. Brent: “Were you personally criticized?” Yes. “Personally attacked?” Yes. “Was the criticism unfair?” Dr. Bill: “Yes, it was unfair, obstructive. The allegations were false.” And unprecedented folks.
Let’s check in with our jurors! Our group seems attentive, for the most part. (I hear that a juror or two nodded off yesterday and one of them is not looking very awake today.) But most are taking notes, which is refreshing to see after Hardeman. And they are submitting questions! Two questions so far today!
Brent continues to probe Dr. Bill on all things IARC: Dr. Bill: “80% of what we look at is individual chemicals.” Brent, “Like pesticides?” Dr. Bill, “Yes.”— He tends to keep talking after the questions are answered — “Pesticides need to be looked at because they are designed to be poisons…so they may be hazardous to humans.”
Yes! This is a concept that is dear to AOJ’s heart! It came up in the Johnson trial when Lee testified about his integrated pest management class. The instructor told his class that if it kills plants or animals, assume it can kill you. Another way to say that is, every living thing on this planet is related biologically. So if it kills my cousin, it can kill me, or damage some part of me.
Let’s run through some of the highlights of the rest of Dr. Bill’s testimony:
- The NTP at the NIH used to do a hundred studies a year. A dose/feed study cost $250K 30 years ago. Now they do 3 studies a year due to budget cutbacks, and these cost $2.5 million each.
- We look at a group photograph of participants in the 2015 IARC working group. Brent zooms in on Jess Rowlands (oh lord, why can’t we shake this guy?) We see Dr. P, Dr. Bill and others. I think Brent just wanted to show that Rowlands was there as the EPA rep.
- AHS recap: Lots of flaws, including a huge loss of participants, for whom the imputation of data was skewed by the explosion in the use of Roundup because of the invention of GMO plants resistant to it. (Later on, Monsanto will object that the subject of GMOs was raised. Judge Smith will tell them to stuff it, it is not a problem if it comes up in passing.)
- We review the three Wisnerian columns of causation in terms of IARC’s findings: In vivo animal carcinogenicity studies: “Sufficient” evidence; Epidemiological studies: “Limited” evidence (a causal interpretation is considered by the Working Group to be credible, but bias, chance, and confounding cannot be completely ruled out); In vitro cell studies: “Strong” evidence.
- The IARC finding of Class 2A (Probable carcinogen) was unanimous.
- Now Brent catches everyone off guard (except Dr. Bill) with one of his nasty curve balls: “Doctor, how did you get involved in this litigation?” Tarek immediately asks for a sidebar. The white noise machine is turned on as counsel walks up to the bench. I look over at Dr. Bill who is jolly, smiling and looking at the jury. Brent returns from the sidebar and, referencing the question, “Let’s not talk about it.” (My sources tell me Dr. Bill was first recruited as an expert witness by Monsanto. Yeah, totally understandable why Monsanto does not want the jury to know about that.)
- Here’s another new one: Dr. Bill explains that he was subpoenaed by Monsanto for IARC documents after the monograph came out in 2015. He says that has never happened before.
- We take a little trip EFSA land. That’s the European Food Safety Agency. One of the many regulators around the world who, despite the IARC findings, approved glyphosate. Dr. Bill is incredulous that EFSA did this, “They were wrong…I can’t believe they looked at the same data as I did…EFSA used data of questionable quality and source.” In other words, EFSA was looking at studies provided by companies such as Monsanto.
Brent begins to wrap up his direct examination by asking Dr. Bill if glyphosate can cause non-Hodgkin’s lymphoma. YES.
I forgot to mention that before the jury came in this morning, there was some discussion with Judge Smith regarding the admissibility of the IARC Monograph. Smith has not ruled on that question, but that did not prevent Brent from taking a good chunk of time with Dr. Bill essentially walking us through the document. The jury can live without it now, having gotten the Cliff-notes version from testimony today. Just to be sure the jurors get the message, Brent, referring to a binder containing the monograph: “Is that the IARC Monograph, Doctor?” Dr. Bill answers “Yes,” concluding the direct examination.
Cross examination of Dr. Bill by Tarek Ismail
Tarek starts out his cross by explaining that he wants yes or no answers from Dr. Bill. There are a few chuckles in the gallery because Bill clearly likes to talk—and he is good at it.
Tarek takes care of some housekeeping chores, like taking us through the things that Dr. Bill isn’t: 1) A medical doctor, 2) Here to tell us the cause of the Pilliod’s cancer or about the Pilliod’s exposure, or 3) An expert on NHL. Dr. Bill hesitates on this one, “Define expert.” OK, I can see this is going to be a cross with some fireworks.
Tarek continues and shifts to questions about Dr. Bill’s time at the NTP, and the “good quality scientific research” conducted there that is “peer reviewed.” That means he is going to show Dr. Bill and us a study form NTP that has negative findings for glyphosate. Tarek, referring to the study, “It showed no gene mutations, did it not Doctor?” Dr. Bill: “That’s accurate. But…glyphosate does not affect bacteria!” Tarek: “Sir…it’s a yes or no question.”
Tarek continues with a long interrogation of Dr. Bill regarding another NTP study that found no oxidative stress in human cell cultures. The defense scores a point on this one, as the Doctor cannot refute the findings. During this section of testimony Brent objected to a document being published to the jury, per an earlier agreement. The white noise machine was activated during the ensuing sidebar.
Jolly Dr. Bill is laughing about something and in fact, he is yucking it up with a couple jurors! Wait, what? Can he do that? Can the jurors do that?? Nope. After the jury heads out for the lunch break, Dr. Bill is questioned by Judge Smith about the nature of the exchange. He explains that when the white noise came on he happened to be looking at a juror who said to no one in particular, “Here comes the rain again.” (The white noise kind of sounds like rain.) Bill: “I smiled and the juror started to say something but another juror nudged him in the leg. So he stopped.” Actually they were all having a good laugh over it. Dr. Bill is let off with a gentle warning.
We return from lunch to an afternoon of Tarek beating dead horses to death, like the fact that IARC does not do risk assessments. Like the fact that rodents receive doses of glyphosate many orders of magnitude greater than people are exposed to in the “real world.”
We interrupt this blog post for an AOJ Flashback: In Johnson, Dr. Alfred Neugut was being cross-examined by George Lombardi for Monsanto: Q. And so when we’re talking about the epidemiology of glyphosate and Roundup, what we’re talking about is the actual product as it’s used in the real world; correct? A. I guess so. Q. Well, you’re the epidemiologist, Doctor. I’m just asking the questions. But isn’t it true that epidemiologists study the exposure of human beings in the real world to various substances? A. I guess I’m having difficulty understanding what the unreal world is. Q. Real world is giving you trouble? A. Yes.
Back to our regularly scheduled blog post: So, the basic pattern of the cross continues like this. Tarek asks a long series seemingly innocuous questions that incrementally build to a big reveal of some data, study, or theory that refutes Dr. Bill’s earlier testimony. The problem for Tarek is that the good doctor is not playing along with the yes/no format. Bill usually manages to come out on top because he answers the questions yes or no but just keeps going with an explanation that deflates counsel’s big “gotcha” finale.
On the doses given to animals, Tarek appears to be trying to singlehandedly undo the settled science of bioassays. Dr. Bill seems more than happy to set him straight. The animals, of course, get the high doses to see if the chemical causes tumors. If “real world” doses were given to rodents, researcher would need tens of thousands of animals to extract meaningful data. (It would be like an epidemiological study of rodents.)
On the risk assessment issue, we get a nice primer from the Doctor that a hazard assessment is the first part of a risk assessment. Tarek brings up a 2017 Health Canada document that says IARC did not take into account human level exposures. Bill vehemently disagrees, and goes right into citing the IARC epi studies, earning himself yet another admonishment for the judge to just answer yes or no. Tarek: “Did IARC find that the epi was ‘limited’?” Dr. Bill: “True,” and again happily continues, reminding the jury that “a causative interpretation is credible.”
Whew. Thank God I grabbed a coffee at the break, because Tarek wants to play “gotcha” with a draft of the IARC animal sub-group report that Dr. Bill authored. We are treated to a comedy of Dr. Bill questioning Tarek as to which version of the many drafts of the report he has. Dr. Bill is already winning this round. Tarek, of course, asks if in this particular draft there are a couple studies with negative findings. Dr. Bill: “Yes. In this draft!” Once again he ignores the yes/no format and plows ahead, explaining that these are industry sponsored studies and ultimately excluded, and besides, IARC does not include conclusions by study authors because IARC reaches their own conclusions, AND THAT IS WHY IT IS SO BAD TO LOOK AT DRAFTS!!! Judge Smith jumps in once again and gently tamps down the good Doctor’s fire.
And finally, a similar scenario when Tarek tries to get Dr. Bill to answer for the AHS study’s negative findings. Tarek reads from the AHS/DeRoos 2005; “No association.” Bill: Yes, BUT that is for exposures up to that time, there is no accounting for the lag time for NHL to develop. Tarek, on a later AHS conclusion: “no effect on NHL incidences.” Bill: “Not true! A meta-analysis was positive…” Judge Smith does some more tamping. Tarek on the Leon study: “Increased overall risk?” Bill: “In the meta-analysis, YES.” Tarek: “I asked about the overall risk.” Bill: “The B-cell risk is significant! Tarek: “Again, overall, it shows no increased risk in NHL, true??” Bill: “In overall NHL, but it is positive for B-cell.”
Add one Dr. Charles William Jameson to my short list of hero scientists.“Bill, I Love You So, I Always Will”
On redirect, Brent tidies up the places where Tarek created a little dust. Brent is a master of the redirect. It’s like shooting fish in bucket for him.
Amazingly, to me anyway, he also uses the redirect to continue reviewing the IARC Monograph for the jury. Page after page, he shows it to the jury and us, he is pretty much reading it out loud to us, like it’s IARC story-time kids.
And so ends another day in court. Next up is Dr. Ritz on Monday, followed by Dr. Weisenberger Tuesday.
Again, most quotes are not, well, exact quotes, but do reflect the spirit of what was said. You sticklers out there can find actual transcripts here.
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