Like Kissing Your Sister

Johnson Monsanto settlement Bayer Roundup

For new followers of Glyphosate Girl, I would like to reintroduce Robert Howard (AKA AOJ), who served as Juror #4 in the landmark Johnson v Monsanto bellwether trial in 2018. I am fortunate that he continues to be a frequent contributor to this blog. Today, he updates us on the status of Lee Johnson’s settlement, the woes of other plaintiffs, and AOJ-flavored, general musings.

Like Kissing Your Sister

By AOJ, Juror #4

So, if you are like my woke wife, you read the title of this piece and groaned. Yes, it is an antiquated, oddly incestuous analogy. I first heard it uttered by the male adults of my childhood, who were describing a tie score in some consequential sporting event. These besotted patriarchs did not bother to explain to this little boy, who grew up with two brothers, why a tie is like, um, that. (So, a tie is what? gross? And why isn’t a tie like kissing my brother?) Alas, these days we can hardly kiss anybody at all. In any case, this is the term that popped into my unlucky head when I was thinking about how to describe the outcome of Everybody v Monsanto. 

Against my better judgment, I am sticking with the analogy, but not because I think Everybody v Monsanto has been fought to a tie. It is because I believe the erstwhile dubious charm of the sister kissing analogy is that it describes a situation in which an outside observer would have to be forgiven for not knowing what was wrong with the picture in front of them. Two people kissing, two teams leaving the field… all seems right with the world.

To an outside observer, the entirety of the legal fight for victims of Roundup that has taken place over the years and culminated with a massive $10+ billion dollar settlement proposal this year, may appear to have resulted in a win for those victims. I suspect Bayer AG’s PR people would want the public to think that the corporation is a good citizen, one that has learned its lesson and is paying victims fairly to compensate them for injuries or death. Uh, sure. If Bayer had a sister, it would hire the most expensive lawyers and go to the highest courts to have that sister declared a non-relative, based on in-house scientific studies, of course.

Like p-values and risk ratios in epidemiological studies, it is relatively simple math that belies the Bayer scam. To recap: $10 billion divided by 100,000 victims is $100,000 per victim. Some will get more, some much less. I lied about the 100,000 to keep the math simple, there are actually closer to 150,000 victims, not including people who are not sick yet. (The compensation scheme for future victims is still being worked out.) Aside from the paltry payouts, another big problem remains: Roundup is still on the market for both agricultural and residential use. The former is bad, the latter is, as Plaintiff Attorney Brent Wisner would say, bonkers. Roundup is still the kiss of death—Bayer is not magically going to become the prince of corporations.

There are some victims who settled with Bayer outside of the big settlement and received reasonable compensation. I spoke with one such person who is happy with her settlement but cannot disclose the amount, per the settlement. Wouldn’t want word getting out of how much Bayer is paying some people lest everybody opt out of all things Feinbergian.

Lee Johnson could be called fortunate, were it not for the cancer that threatens his life, because back in November, the Supreme Court of California refused to hear Monsanto’s appeal (and Lee’s cross appeal.) This kicked the case all the way back down to Judge Bolanos in San Francisco Superior Court who, on November 23, 2020, signed into judgment $21,000,000 plus interest for Lee. (That’s $268,000,000 less than we awarded him, BTW.) Monsanto has 90 days from that date to seek a writ of certiorari at the Supreme Court of the United States. It is a Hail Mary for almost anyone to be heard at SCOTUS, much less win there. (On a more cautious note, I searched SCOTUS cases for Monsanto, and damn if they haven’t been there quite a few times, the litigious little bastards.)

So, I guess this is almost a win for Lee, which is good. But what about the much larger Roundup mess, the one that Lee himself worked to clean up? What do we do now? What do we want? My expectations on this have changed a lot since I got the jury summons in June of 2018. (I started out simply wanting to do a good job as a juror. How innocent.)  After watching the whole legal process play out for for a year and half, I took stock of these questions. Doing so led me to the conclusion that lawyers, bless their hearts, and the courts, are the backstops of last resort, but can’t be relied upon to make everything right. I became convinced that the only way to fix this, and a multitude of other problems, is grass-roots change that creates major political change. And just like that, I found myself canvassing southeastern San Francisco neighborhoods for Bernie Sanders. Living free from toxic pesticides is a human right. (I don’t know if Bernie said this, but it sounds like he could have.) Then, bam, a pandemic, a South Carolina primary and, poof, a President Sanders was not to be. 

Which brings us to another topic that involves winning and losing, (but no ties). The election of 2020. If your ticket was Trump/Pence, my heart goes out to you because 2016 felt like the end of the world to me, and Clinton was not even my first choice. (See Sanders, above.) The loss was so devastating that it was only last week that I threw in the towel, on my annual Christmas phone call to a very conservative aunt who lives in North Carolina: “Aunt Margie, I feel the time has come for me concede the election.” My Aunt: “Wha…” Me: “My side did not win.” The line went silent for a second, then I said, “Your side won the 2016 election fair and square.” Mission accomplished, we both laughed and laughed. 

I love my Aunt (and Uncle) and I am grateful that, for decades, we have not let a wide chasm of political differences get in the way of a great friendship. I feel lucky, because I know it is not so easy for many of us to bridge that chasm and find peace with relatives, neighbors, coworkers, and others who hold different political views. 

Glued to cable news maps of the election results in November, I was struck when the map briefly showed not red and blue states, but red and blue counties. Suddenly there was no red and blue, but a whole lot of shades of purple. And so, I suggest, We, the Purple People, in order to for a more perfect Union, stop taking ourselves so freakin’ seriously. In the New Year, find your MAGA hat wearing neighbor, or your liberal snowflake coworker and tell them a harmless joke, or a funny story. These are available on the internet for free. (Pro Tip: Be self-deprecating. Tell a joke that pokes fun at your own politics.)

Here are a few, from the politicians themselves, to get you started, courtesy of the Central Standard show from KCUR radio in Kansas City, (Sorry, I don’t know which K.C):

“I believe in an America where millions of Americans believe in an America that’s the America millions of Americans believe in. That’s the America I love.” – Mitt Romney

“’Who is Barack Obama? Contrary to the rumors you have heard, I was not born in a manger. I was actually born on Krypton and sent here by my father Jor-El to save the Planet Earth.” —  Barack Obama

“I am not worried about the deficit. It is big enough to take care of itself.”  – Ronald Reagan

”I just received the following wire from my generous Daddy: ‘Dear Jack, Don’t buy a single vote more than is necessary. I’ll be damned if I’m going to pay for a landslide.”’  — John F. Kennedy  

© 2020 by AOJ, wishing you a safe and prosperous 2021.

2 Comments

  1. Hello Again, I would love to ask Robert some questions regarding being a juror against Monsanto/Bayer. Is there anyway he could email me? My son has still not settled. I believe we will be going to court, if nothing is changed. My lawyer said they don’t expect thing from Bayer until June 2021. Is there something going on or is it a deadline they have to meet?

  2. Hi Dorothy, I will contact you via email regarding your questions about my juror experience. As for your son’s case, and everybody else who chose not to settle, the process is so murky that I’m afraid I can’t offer much useful insight. However, I can recommend a very good book called Mass Tort Deals: Backroom Bargaining in Multidistrict Litigation by Elizabeth Chamblee Burch. It is an eye-opening analysis of how these types of cases settle. It seems that the interests of the the plaintiffs often come last, after the courts, the bar, and the defendants. -Robert

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