It has been icy in San Francisco the last few days, with thick, drizzly fog. It feels like the gray, gloomy days of winter, or maybe I’m just riddled with intrusive thoughts of how the EPA has known that Roundup causes cancer all along. It’s a short walk from the Civic Center parking lot to the courthouse, but it’s enough to make this morning’s hair blow-out a waste of my time.
Thankfully, that gray turns bright blue by afternoon, both outside and inside the courtroom. As a preview, the Plaintiff rests on the most brilliant of notes. The video testimony of Monsanto employee Steven Gould provokes some big emotion in the jury. I can’t believe that Monsanto couldn’t find a way to get the Gould zinger email eliminated. Thank goodness they didn’t, because it seems Gould’s testimony alone might have nudged the jury to deliver a win for the Plaintiff.
Also today, government-veteran economist Dr.Charles Benbrook “tidies things up,” and serves to drive home some key points about the deceptive behavior of Monsanto and the US EPA.
We convene and Monsanto proposes a curative instruction for Judge Bolanos to tell the jury NOT to consider Dr. Sawyer’s references to the “many other studies” that Bolanos excluded from testimony. Both sides agree, with some minor modifications.
Next issue. Monsanto seeks to strike large swaths of Dr. Sawyer’s testimony because of his “egregiousness” in alluding to the powerful studies that he wasn’t allowed to discuss. Wisner argues that Monsanto could have objected on the spot and shouldn’t be able to object and strike retroactively. Wisner agrees to read through the testimony and see which parts should be struck.
The jury enters well after 10am. I take my favorite seat, from which I can see both the witness and a screen in the back of the room. Most unfortunately, the computer system is broken today, so Wisner will be showing his evidence by way of an overhead projector (which I can’t see).
The viewing audience is slowly expanding day over day. A few people appear to be journalists new to the trial. Another is a young bohemian-styled woman with hair extending past her waist. I might expect her to be barefoot, but she opts for shoes. I suspect a couple folks are family or buddies related to counsel on both sides because they seem to listen with unusual enthusiasm, as though they are attending their nephew’s All-Star game. There were two French journalists present on the day of Johnson’s testimony, and I wish that they had stuck around because their easy, French lassiez faire attitude brings down the overall anxiety in the room.
THE TESTIMONY OF DR. CHARLES BENBROOK
Today, Dr. Benbrook is Charles Benbrook, but I note that in his non-courtroom life that he is “Chuck.” His resume and preppy sweater vest feel more like those of a Charles. He is an Agricultural Economist, receiving his BS in Economics from Harvard and PhD in Agricultural Economics from the University of Wisconsin-Madison. Shout out to the locals – he also went to high school in Palo Alto.
Benbrook worked for eighteen years in Washington DC on agricultural policy and regulation, including on a subcommittee in US House of Representatives. In this role, he dealt with primary pest management and pesticide use analysis and research. He specifically worked to consider and pass any authorizing legislation that would keep FIFRA alive.
FIFRA, The Federal Insecticide, Fungicide, and Redonticide Act, is a US federal law that set up the basic US system of pesticide regulation to protect applicators, consumers and the environment. FIFRA mandates that no individual may sell, use nor distribute a pesticide not registered with the US EPA. Among other requirements, FIFRA also requires the EPA to continually monitor and update registered pesticides for any new information concerning their safety. (1)
Benbrook states that when Regan took office, “Political appointees in the EPA really went after the FIFRA statute to try to change fundamental provisions, particularly in cancer causing pesticides.”
Benbrook also worked as Director of the Board on Agriculture at the National Academy of Sciences. The NAS was approved by president Lincoln to provide: “Independent, objective advice to the nation on matters related to science and technology…The Academy receives no compensation from the government for its services.” After NAS, Benbrook worked with the Organic Trade Association as Chief Scientist, tracking organic farming and the environmental footprint of agriculture. As a consultant, he has been hired by corporations like Kraft to research pesticide use and levels in their food sourcing chain.
Judge Bolanos confirms Dr. Charles Benbrook as an Expert in Pesticide Regulation and Pesticide Risk Assessment.
DR. BENBROOK DIRECT
Dr. Benbrook is incredibly loquatious. I can visualize younger Chuck sitting in a Cambridge bar with a glass of whisky, debating ideas with his Harvard colleagues until late at night. Excellently, Wisner asks Benbrook a wide variety of questions to drive home and clarify who said what about what. This timing is excellent, because we have all heard several weeks of serious science that, at times, has been tricky to follow.
THE MAGIC TUMOR
OK all. We are now getting to the foundational argument of why Plaintiff counsel claims that Monsanto has always known glyphosate is carcinogenic, and colluded with the EPA to get it passed through regulation approval.
A brief history first. (2)
1974 – Glyphosate was EPA approved for use based on faulty laboratory data. For nearly a decade, the sale and use of glyphosate and GBHs was based upon this bad research.
1976 – Roundup came on the US market.
1983 – Knezevich & Hogan study: “A Chronic Feeding Study of Glyphosate (Roundup Technical) in Mice.” The Monsanto-contracted study grouped 400 mice into four groups of 50 male/50 female. For two years, three groups were administered 3 different doses of glyphosate, and fourth group was the control group. The results indicated a statistically significant trend of kidney tumor development only in the dosed groups.
1984 – Dr. Dykstra from the Toxicology Branch of the Hazard Evaluation Division at the EPA was duly concerned. He sent a memo to colleagues stating that the study indicated that glyphosate is oncogenic. (3) Monsanto rebuked that theory and claimed that the tumors were unrelated to glyphosate.
1985 – While Monsanto made every effort to prove why the study is inaccurate, more EPA toxicologists expressed great concern about glyphosate safety, and directed the reclassification of glyphosate as a “substance potentially carcinogenic to humans.”
In response, Monsanto hired an outside pathologist to re-examine the slides. Prior to his study, Monsanto confidently shared in internal documents that the newly-hired pathologist would set things right. After his research of the slides, he claimed to have found a small tumor in the kidney of one of the control mice, and thereby deemed the entire 1983 study not statistically significant for glyphosate causing kidney tumors.
The EPA didn’t fully agree with the finding of the control group tumor. It was very mysterious that the tumor in the controls appeared so conveniently. So they suggested a full re-evaluation.
1986 – Monsanto refused to replicate the study. The EPA determined that the tumor findings were equivocal, and there was not enough statistical significance in the the study to classify glyphosate as cancer-causing.
1988 – Still pushing further mouse study, the EPA’s toxicology branch doubted Monsanto’s claims surrounding the 1983 study. Mind you, during this time Roundup continues to be sold and used all over the US.
1989 – The EPA dropped the request for further mouse study.
1991 – EPA dubbed glyphosate a Group E chemical meaning “Evidence of non-carcinogenicity for humans.
Wisner discusses the IARC monograph description of the 1983 tumor study, and why the conclusions by the EPA were so flawed. Benbrook says that the control group tumor is “the most debated tumor” in carcinogenicity studies.
While the jury did not receive the timeline that I listed above, they do now more clearly understand that Monsanto strong armed the EPA into letting the carcinogenicity issue drop.
After this discussion, I am feeling that the corruption at the EPA may be worse than that of Monsanto. At least Monsanto is not the government. It’s just a big, pushy and unethical business. Monsanto knew that the EPA would eventually fold, and took advantage of it.
Wisner asks Benbrook to explain the significance of published study abstracts. An abstract is a concise summary of the purpose of the research, methodology used, and statistical analysis of the results. When anyone goes to search for studies on glyphosate, the biomedical search engines like PubMed use keyword searches in those abstracts.
When the McDuffie study on NHL and specific pesticide exposure in men was first shared at the International Society of Environmental Epidemiology meeting in 1999, the abstract mentioned glyphosate. Something changed by the time it was published in 2001, and glyphosate was no longer in the abstract as a risk factor. Monsanto celebrated the omission of the word “glyphosate” from the abstract because the study would be much more challenging to find in public searches. (4)
REAL WORLD AND CHERRYPICKING
Wisner shares that Monsanto told the jury that IARC did not take into account “real world” exposure date in their analysis, and asks Benbrook if that is true. Benbrook says absolutely not.
Another issue that has been arising is Monsanto’s claim that IARC only looked at a subset of information and “cherrypicked” data. Benbrook says that is absolutely: “Not fair to say of the IARC process.” The difference between the EPA and IARC is that IARC only uses published research as to make certain that the science is transparent. The regulatory agencies largely base risk assessments on registrant studies and active ingredients.
Benbrook further details that IARC critically rates the quality of each study. In a table in the IARC monograph, the Working Group concluded that some studies are inadequate. Benbrook emphasizes that isn’t cherrypicking, that’s deciding which research is most reliable.
Wisner states: “When IARC got together, (the scientists) didn’t have a dog in the fight.” Benbrook agrees and reminds the jury that the Working Group is a group of scientists with long experience in animal studies, genotoxicity, epidemiology and environmental science. Across all of the disciplines represented, IARC reached an independent, unanimous decision.
Wisner asks Benbrook when he last spoke to Aaron Blair, Chair of the IARC glyphosate review panel. Benbrook says “I had a short phone conversation with him in November or early December 2017 because I read in one of the many media studies that…” Wisner quickly interrupts him and says, “Don’t disclose that!”
PESTICIDE VOLUME USE CHART
It is Benbrook’s turn to teach the class! The Plaintiff counsel reveals yet another fabulous poster board. This one displays a monsterous amount of data in spreadsheet form. The exhibit is entitled:
Glyphosate’s Rise to the Top – EPA rankings of the Top Pesticides by Year in the US
In 1987, glyphosate-based herbicides (GBHs) ranked #17 of all pesticides used in agriculture in the United States, with a total of 6-8 million pounds used. By 2001, it reached #1 at 85-90 million pounds. By 2012, 270-290 million pounds were used.
There has never been a pesticide in the US which use has gone up as dramatically as the case with GBHs. Benbrook teaches that we’ve never had experience with this volume of use, and that when it comes to studies, “we are still playing catchup.”
What would be appropriate in this discussion would be to say WHY the use went up with the introduction of GM crops. So very appropriate. I’ll keep dreaming. Wisner follows the rules of the court and steers the conversation away from temptation to mention what actually happened.
When we return to the courtroom after lunch, Monsanto is in a bit of a tizzy. Monsanto complains that Benbrook was talking to a juror out in the hallway. He seems so innocent that it’s hard to imagine that he wasn’t just talking about the friendly people in the Mint Café on the lower level of the courthouse.
Monsanto is also furious that Wisner brought up the studies from the 1970s, calling them “invalid” which seems similar to “fraudulent.” They request a strike from the record and to bar counsel from talking about it.
Wisner replies that he is surprised by the objection and felt that he was: “Operating under good faith.” Wisner shows the court an email that he sent on June 28, 2018 to Lombardi to clarify what Lombardi would find objectionable on the subject of the 1970s lab testing. In the email, he tells Lombardi that he plans to explain to the jury that Roundup was originally approved in 1976. Wisner knew that he couldn’t refer to the laboratory scandals of the 1970s, which would mean stating the word fraud, but he thought invalid would be fine.
Bolanos understands the objection and will consider their motion to strike the testimony.
CROSS-EXAMINATION OF DR. BENBROOK
I am relieved that Mr. Griffis is conducting the cross because I have had more than sufficient hours of my life spent listening to Lombardi. I wish that Ms. Edwards did more of the crosses.
Benbrook naturally looks a bit more on edge as the cross-examination begins. Griffis uses the cross to speak in great detail about EPA processes. It is really more of a defense of the EPA than anything Benbrook specific.
The rundown of the Griffis discussion of the EPA:
- The EPA regularly re-reviews pesticides. In doing so, they look at both old and new science. So for the recent re-review process, the EPA looked at science from 2009-2016, and prior to 2009.The EPA has its own expert staff of scientists.
- The tools that the EPA uses to manage studies include GLPs, or “Good Laboratory Practices.” The EPA can audit data from the GLP lab notebooks to be sure that the reports submitted by the registrants are valid.
- In the 2016 OPP report, there are data tables with various categories of reports that the OPP considered. (5) One study that they did not consider high quality was the Bolognesi study from 2009 about the genotoxic impact of Columbian crop spraying. (6)
- The EPA has approved all surfactants used in glyphosate products, including the carcinogenic POEA that Europe banned. In fact, the EPA has deemed the chemicals so safe that the surfactants received an “Exemption for requirement of tolerance,” like a free pass of limitless use. (7)
- While no chronic toxicity studies were done, there were no increases in toxicity in 4-13 week animal studies. The majority of the effects were related to skin irritation.
THE TESTIMONY OF STEVEN GOULD
I know what is coming, so I take a seat upfront, right next to the jury. I have to observe expressions during this testimony.
Monsanto Regional Sales Manager Steven Gould is an Oklahoma State graduate with a BS in Agriculture. He is also a federally licensed Certified Crop Advisor and California Pest Control Advisor.
He takes a Kleenex and works a bit on his nose. It is comical that the editors kept that gem in for the jury to view. So much of this testimony has been eliminated. Because of Bolanos rulings, nothing specific about why sales might go down in California as a result of CA EPA listing it as a carcinogen is mentioned in this video.
We are cruising through the testimony, hearing how Gould doesn’t know exactly what IARC is, but knows that he doesn’t agree with the classification. My impression is that he wholeheartedly thinks the product is safe because he is believing what Donna Farmer and other Monsanto toxicologists are telling him.
Enter moment of truth. In an email regarding California, (the CA part is blacked out as to hide it from the jury), Wilbur Ellis pesticide distributor Greg Fernald writes to Steven Gould:
“We are being overrun by liberals and morons…sort of like a zombie movie, so we just have to start taking them out one by one.”
Gould forwarded that email to a Monsanto employee with the statement: “I liked this analogy from Greg.”
The jurors all wake up and most are now at the edge of their seats. Monsanto attorneys are looking down at their table, pretending that they are writing something important. They might as well be whistling to try to depict obliviousness.
I look at the jury. Many faces are similar to mine when I first learned about the Charlie Rose sexual harassment nastiness.
One woman’s face looks disconcerted and laden with concern. I speculate that the concern isn’t so much this particular email, but the trend of name calling and mockery about Californians and their generally liberal beliefs. I speculate her thoughts because her expression is identical to my mom’s when she reads any news about Trump. Even reasonably good things about Trump, same expression.
The guy who wears the wildly printed button-down shirts turns every shade of red. His lips are tightly pursed, and eyes are wide, as if he is consciously using all of his might to hold in a mammoth eruption.
The avid notetaker, who always emits an amiable air, suddenly fills with fury. He looks as though he has been totally blindsided by this email.
One juror in her 20s starts laughing out loud.
A man who I’ve never seen take a note starts furiously writing.
The alternative, edgy dude just shakes his head no.
I hope that they remember this moment during deliberations.
THE TESTIMONY OF DR. KIRK AZEVEDO
I highlighted his testimony after a video clip was shown during the Opening Statements. That clip is the crux of the testimony. To refer back, please click here.
Wisner and Dynamic Dickens walk in front of the jury with the jumbo notepad. Dickens has very nice handwriting. Wisner reads and Dickens writes Monsanto’s financial status as of Q1 2018:
Net Worth: $6.6 Billion
Cash and Cash Equivalents: $3.1 Billion
And with that, the Plaintiff rests. Further testimonies will be Monsanto witnesses.
Excellent job Plaintiff team!! Absolute masters of successfully hitting the piñata while dizzy and blindfolded.
Someone stole my MacBook charger – could it have been Monsanto?
I am elated to see that I have so many international readers. What we are witnessing in this trial will further the global conversation on glyphosate, Roundup and human health, so it is excellent to see representatives from non-US countries checking in.
So much information has been taught during this trial, and I wonder if the jury can keep everything straight. I spend hours checking reports and notes while writing my blog entries, but they do not have the ability to do so.
Monsanto expert witnesses begin testifying.
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