Day 17 – EPA, EPA, EPA. Closing Statements Part II

It seems impossible to create an argument that could top that of the Plaintiff. Even if I correct for my substantial bias, my opinion is that the limited science that Plaintiff was allowed to present was sufficient to show that Ranger Pro caused Lee Johnson’s cancer.

After lunch, it seems simply an empty exercise for Monsanto to present any further argument. Mr. Lombardi is up, wearing a blue-green tie. As I try to decipher the meaning in the ties, I conclude that attorneys should always wear a muted purple for closing arguments. How they are visually painted matters and purple is warm. It’s a combination of politically loaded blue and red, and a symbol of hope and intelligence.

But today, it’s friendly blue-green for Lombardi and serious executive-gray for Wisner.

MONSANTO CLOSING STATEMENTS

George Lombardi stands in front of the jury, smiling in a kind, natural manner. Oh dear, I suddenly get the sense that we are going to see how Lombardi successfully manages to convince juries and judges to make societally unpopular judgement calls. Even in the matter of this public health emergency.

If anyone from the Monsanto counsel is reading this, at the very least check out what glyphosate is doing to your own microbiome, and spread the word to your kids and grandkids. It is not a matter of emotion, it is just straight up science. I am happy to put any of you in touch with the scientists who can speak to this crisis.

Lombardi thanks the jury. He says: “Forty years of this product on the market. Forty years of this product being regulated. Forty years of scientific studies ranging from human to animal to cell. The evidence is clear. The message from that evidence is clear, and it’s that this cancer was not caused by Ranger Pro.”

It is surprising that Lombardi makes this claim. The first decade of use was based upon faulty laboratory studies. So right off the bat, his claim is incorrect. However, there is no way for the jury to know this to be so because of the evidence they were never allowed to see.

Lombardi continues: “What is the best evidence for whether Ranger Pro causes disease? It’s got to be human studies.” He explains that he will primarily focus on the epidemiology and the records of doctors treating Johnson in proving that the Ranger Pro did not cause Johnson’s cancer.

Lombardi dismisses the relevance of animal studies and mechanistic studies: “We’re going to look at an animal study, a rat study, rats that are overdosed with glyphosate, over something like this [human studies], to determine whether Mr. Johnson got this disease? Are we going to look at a study of cells in a petri dish to make that decision?”

EPIDEMIOLOGY

Lombardi recounts the speculation throughout the trial about the potential danger of the surfactants. “A lot of speculation about that…The epidemiology actually looks at that, because you’re considering Ranger Pro in the real world.” I’m amused with the term “real world” ever since Dr. Neugut said that he had difficulty understanding the “unreal world” in this scenario. Hilarious.

In discussing the chemical design of glyphosate, Lombardi echoes weed-specialist Dr. al-Khatib’s explanation that glyphosate only affects the shikimate pathway in plant cells, and human cells do not have that pathway. I could scream again because while the human cells don’t have that pathway, our microbiome very much does! I am certain that in the next iteration of similar lawsuits, the subject of glyphosate murdering our critical microbiome will have to come to light.

Lombardi refreshes the jury’s memory about epidemiologist Dr. Mucci’s stellar (and it really was) testimony and the clear explanations that she used to walk through the epidemiology. He implies that “Dr. Neugut, the New Yorker,” was not understandable. I see no need to throw shade at New York. He also reminds the jury that Dr. Mucci, Dr. Neugut and Dr. Portier have all said that the epidemiological studies are not sufficient to show a causal link between glyphosate and cancer.

Earlier, Wisner discussed the NAPP study conclusions that are highly supportive of the IARC classification and their case. Lombardi says that buried in the manuscript, one can see that there is a reduced risk for glyphosate after adjusting for other highly carcinogenic pesticides. The study has not been published because “it’s hard to publish something that doesn’t find an effect.”

The jury is reminded that the Monsanto-celebrated AHS 2018 study was performed all by independent scientists. Lombardi says: “This is another study that plaintiffs really would prefer that you not look at.” He begins to subtly and believably cast doubt on the Plaintiff’s claims that this study is worthless: “And so they’ve said a variety of things about it though the course of this case to try to say that it’s not a good study, this, that, and the other thing.” Regarding the email that Monsanto employee Aquavella sent describing problems with the AHS, Lombardi says that the email was from twenty years ago and is not relevant to the 2018 study. Lombardi is trying to muddle an already highly complex set of scientific arguments, and I’m worried that he may do so successfully.

In further measures to discredit the Plaintiff argument, Lombardi continues with a helpful and almost fatherly-advice tone of voice: “So you have to look at what the actual facts are. There’s facts and there’s argument. And the facts are what should lead you in this case.” Several members of the jury take notes, particularly wildly printed shirt guy.

DOCTOR REPORTS

Dr. Kuzel said that every case of mycosis fungoides is of unknown etiology. Lombardi touts Kuzel’s resume, and doesn’t mention the fact that Kuzel didn’t “understand” Johnson’s most recent PET scan that showed his cancer has returned.

Lombardi cites opinions of other doctors who treated Johnson. Dr. Ofodile was the primary dermatologist treating Johnson. Other doctors include Dr. Pincus from UCSF, Dr. Tsai from Kaiser Permanente, Dr. Kim from Stanford and Dr. Hoppe from Stanford. The two from Stanford are “world luminaries in the world of mycosis fungoides.” He continues that not one doctor said his cancer was from using Ranger Pro or any product containing glyphosate.

Lombardi describes Plaintiff witness Dr. Nabhan as a “retired practicing doctor…about two years ago he stopped practicing medicine and he moved to a Fortune 15 healthcare company called Cardinal Health. And he’s now a business executive there.” Dr. Nabhan is the only doctor the jury heard from that believed glyphosate exposure caused Johnson’s mycosis fungoides.

He lays in an argument that I find disturbingly convincing: “If it were that easy [to figure out the cause of mycosis fungoides], why didn’t we figure it out a long time ago? If it were that easy – if Dr. Nabhan is actually the guy – this would be a huge medical accomplishment, discovering the cause of mycosis fungoides, the first person in the world to do that.”

Lombardi continues skewering Dr. Nabhan’s testimony. He recalls that during cross-examination, Nabhan admitted that Johnson’s cancer could well have developed whether he was exposed to glyphosate or not. Within the jury instructions, it reads that “Conduct is not a substantial factor in causing harm if the same harm would have occurred without that conduct.”

In continuing to berate Plaintiff key experts, Lombardi says that the only doctor who said that glyphosate makes cancer worse is Dr. Portier. “Dr. Portier, who is a biostatistician. He’s not a doctor. He’s not a genotoxicologist. He’s a biostatistician.” Lombardi tears apart the George study of the painted mouse, calling it inadequate.

In conclusion, Lombardi says that all of the other doctors: “[Believe that] glyphosate did not cause mycosis fungoides except Dr. Nabhan, who ironically is the only former doctor on that list.”

ANIMAL STUDIES

Mr. Lombardi has a bit of an inappropriate smile at times when discussing cancer. It isn’t in keeping with the subject at hand, with Johnson sitting there right in front of him. But on we go…

The mouse and rat studies are called out as weak substitutes for human studies because the animal biology is so different from that of humans. Further railing on Dr. Portier: “And what Dr. Portier did was after all these studies were done and had been done for years and years. Dr. Portier went back and redid statistics, and Dr. Foster told you that’s not the way science is done.” Lombardi claims that Portier is cherrypicking results.

Lombardi points to the fact that the tumors in the rat studies were all benign. He also discusses the Kumar study that Monsanto has maintained was “confounded by illness,” claiming the rumored virus in the mice to be well-documented.

We arrive at the famous 1980s Knezevich & Hogan mouse study that showed kidney cancer in the mice. Lombardi repeats Monsanto’s practiced response that: “All the studies have come in and showed that there is no carcinogenicity in these animal tests.” Furthermore, Lombardi says that the EPA also concluded that there was no carcinogenicity, even after the Scientific Advisory Panel advised them that they were not following their own guidelines for determining carcinogenicity. “That’s what everybody other than Dr. Portier has concluded. Dr Foster, the EPA, the European regulators, the EFSA, the ECHA, the BfR. They all disagree with Dr. Portier, so when you’re considering animal studies, this is the array of evidence. It strongly shows that the animal studies do not establish carcinogenicity.”

Oh no. That sounded clean, clear, and logically presented.

MECHANISTIC STUDY

Lombardi opens the topic of mechanistic studies, opining that the studies done in cells, petri dishes and test tubes are the least important because they are the farthest from studying an actual human.  He points out that the only mechanistic study that the Plaintiff presented during closing was the faulty George study.

He argues that oxidative stress and genotoxicity are not the mechanisms that caused Johnson’s cancer. Referring to Dr. Kuzel’s testimony, he states that when researching the genetics of MF, “We don’t have any single gene mutation or disturbance.” Lombardi argues that it isn’t DNA damage causing the cancer.

EXPERTS IN GENERAL

Regarding Wisner’s accusation that Monsanto presented experts who spoke only on their subject of expertise, not the full body of evidence, Lombardi argues that it is more responsible to present experts in this manner. He doesn’t think someone with a different specialty should testify on the other scientific components of the case. For example, he doesn’t think that Dr. Neugut should comment on the rat studies.

Lombardi continues: “What does it mean when Dr. Portier says he’s an expert on everything? Everything. He’s a biostatistician, but he says he’s an expert on everything.”

Lombardi says that Monsanto brought the jury real experts who behaved nicely while on the witness stand, answering questions directly with little “spinning” or “arguing.”

PORTIER

Man, Lombardi has it out for Portier. He mocks Portier’s statements of disagreement: “Dr. Portier not only disagreed with everybody, but thought that everybody was astonishingly wrong, amazingly wrong, completely wrong, totally illogical…ECHA, EFSA, BfR, EPA…Now does that sound like a guy who is an objective expert?” I hear someone behind me laugh that ECHA (European Chemicals Agency) is even worth bringing up in argument: “HA HA, ECHA.”

Lombardi continues to rip Portier to shreds, then showers many minutes of hate on what he considers the overstated importance of the IARC decision.

Strangely, also during this time, someone’s ringer starts going off, and it is quite a musical composition. I think that they couldn’t find the phone in their bag, because it kept playing and playing, as Lombardi dramatically mocked Dr. Portier.

TIMELINE

As anticipated, Lombardi presents a conflicting timeline to that of the Plaintiff. He first describes the original registration and then the repeated re-registration of Roundup with the EPA. “Throughout the period of time that’s relevant here, Mr. Johnson’s use of glyphosate in the form of Ranger Pro, the EPA has been assessing…the EPA has concluded that glyphosate is not carcinogenic.”

Regarding the phone calls that Johnson made to Monsanto, Lombardi argues that Johnson talked to a nice Monsanto employee who accurately represented Monsanto’s belief at the time: “We don’t have those symptoms along with this product.” Regarding the fact that head Monsanto physician Dr. Goldstein didn’t call Johnson back, Lombardi says that he should have, but also that the lack of callback didn’t affect his medical case.

Mr. Lombardi stresses the importance of the EPA’s OPP 2016 report as a representation of Monsanto’s state of mind on the science at that time.

He calls the emails and hints at scandals presented by the Plaintiff: “A lot of high rhetoric here about just how terrible things are at Monsanto.”

Regarding Dr. Parry’s suggestion that Monsanto test the full formulation for potential carcinogenicity, Lombardi says that they actually did. He presents an article by Dr. Heydens at Monsanto in which an array of in vitro and in vivo assays “have consistently demonstrated that glyphosate and glyphosate-containing herbicide formulations are not genotoxic.” Lombardi implores the jury to go through their notes and double check what the Plaintiff claims in rebuttal.

Lombardi roars through the topics of ghostwriting, regulatory agency requirements to test glyphosate and surfactants separately, and that the zombie quote was used only to anger the jury. He also applauds Johnson’s careful use and application of the Ranger Pro. Lombardi points out the many ways in which Plaintiff witness Dr. Sawyer contradicted Johnson’s own testimony on how he used the product.

Of course, Lombardi argues that the cancer was first present in 2013, not 2014. He also says that given the dates presented, at the time of the rash, Johnson had only been exposed to a mist of spray while wearing appropriate protective clothing. He says: “And what plaintiffs have been doing to try to avoid the plain logic of that tells you something, right? Why would they put the wrong dates down if this wasn’t a big problem for them?”

Lombardi claims that the 9/11 World Trade Center minimum latency period of four months is not applicable to the latency of Johnson’s NHL because it was based on ionizing radiation, not an environmental exposure.

In closing, Mr. Lombardi thanks the jury for their service and thanks them for their fairness towards Monsanto in advance. He also shares that because he can’t say anything more after the Plaintiff rebuttal, he asks that the jury consider the factual evidence in their notebooks to make sure that the Plaintiff is actually right.

GG SIDEBAR: Well darn, the jury appears to really like Lombardi and his final argument. They have been taking copious notes throughout his presentation, and their body language shows that they are present and respect his warnings to second guess what the Plaintiff claims to be true.

PLAINTIFF REBUTTAL

Thank goodness Wisner has another opportunity to speak, lest the jury forgets his equally persuasive closing argument. Wisner leaps out of his seat to hit each issue that Lombardi raised one by one. I’ll briefly present some rebutted points:

  • Monsanto used a lot of ellipses (…) in their argument, and in doing so left out a lot of key information.
  • While Monsanto claims that no treating doctor considers Roundup to be the cause of Johnson’s cancer, they also couldn’t get any of the doctors other than Dr. Ofodile to testify. These doctors from Stanford or UCSF are located thirty miles or less from the courthouse. Wisner says they aren’t testifying because they don’t know if it causes cancer or not, and haven’t researched the issue.
  • Monsanto snuck in Dr. Kuzel in the same category of “treating doctors” even though Kuzel never treated nor met Johnson. Wisner reminds the jury that this is the same doctor who wouldn’t warn a lung cancer patient that smoking may have caused their cancer.
  • Wisner thinks Monsanto attacked Nabhan because: “He was promoted to a really fancy job at a fancy company and that somehow makes him no longer able?” Nabhan admitted upfront that he didn’t know about the glyphosate issue until he took the time to research it. It appears to GG that none of these other doctors have looked for this research.
  • The 9/11 Commission “used ionizing radiation studies to come up with latency, but there was no radiation exposure at 9/11…There were chemicals in the air that people breathed in, that they were exposed to.”
  • In opposition to Monsanto’s claim that they did conduct Parry’s recommended scientific studies, Wisner says it is absolutely false. Instead, Dr. Heyden’s wrote in an internal email: “We simply aren’t going to do the studies Parry suggests.”
  • Because he was challenged to find epidemiological research that was statistically significant, Wisner shows the DeRoos 2003 paper. For glyphosate, there is a statistically significant, adjusted risk ratio of 2.1. That ratio shows a doubling of the risk.
  • Wisner defends Dr. Portier’s reputation among scientists, and reminds the jury that Portier’s arguments are shared with the Scientific Advisory Panel. “The simple fact is [that] the independent scientists agree with Dr. Portier. The only ones who disagree with Dr. Portier are Monsanto, EPA and EFSA, the very people who have a very vested interest in the outcome of whether or not it causes cancer.”
  • Monsanto makes formulations with non-hazardous surfactants, but continues to sell the toxic one to everyone in the US. Wisner highlights a number of internal communications that show Monsanto’s reluctance to change the formulation because it could have a “domino effect” on other surfactants.
  • Nabhan actually said that without exposure to Roundup, Johnson wouldn’t have gotten NHL. Wisner says that: “Mr. Lombardi would tell you otherwise is a disservice to the quality of man I like to think he is. I think he’s a nice guy. But that was not true, what he said to you.”

Wisner orates that: “The only thing they got is EPA, EPA, EPA.” Regarding the formulated product, “How can we be sitting here almost 50 years after the formulated product has been marketed and Monsanto hasn’t even bothered to look at it? How is that possible? There is document after document showing that Monsanto knew the formulated product was problematic.”

I hope that Roundup hasn’t been around “almost fifty years.” Roundup was introduced to market the year I was born, and I’m not staring at the face of fifty yet. I think Wisner misspoke. I’m also sad that my entire life has included Roundup.

In closing, Wisner says that Monsanto is hiding behind the EPA because they had a relationship with the guy who wrote the EPA document. “That’s the truth of it. That’s what we know.”

FINAL NOTES

If you have had the opportunity to read both closing arguments, you can see that it is a neck-and-neck race. The Plaintiff counsel is definitely more cowboy while the Defendant counsel is more calculated. The styles are very different, but the content of argument is equally brilliant.

UPDATE 8/9/18

Jury is still deliberating. Today, they asked for more large paper presentation pads to lay out information. They also asked for information on the mouse kidney tumor data. They are fastidiously lining up all evidence to try to make sense of all of the arguments. This confirms my opinion that it is a dead heat.

During the trial, the empty Ranger Pro bottle was admitted for evidence. Strangely, it was missing this morning. Someone went looking for it in the dumpster downstairs, but the garbage trucks came today and it is gone. The Plaintiff team shows up rather rapidly with a new Ranger Pro bottle that has been emptied out to serve as evidence. I wonder where and how they cleaned it out.

These days awaiting the verdict are lengthy. Each time the door behind the bench opens, everyone braces. The lawyers have books and Netflix going to pass the time. Several journalists await any news.

I hope that the verdict comes tomorrow for many reasons! I leave for vacation on Saturday.

© 2018 Kelly Ryerson ALL RIGHTS RESERVED

4 Comments

  1. Thank you so much for your wonderful reporting. I’ve been working to wake up my neighbors about this issue on nextdoor.com. I think we need a newspaper column like this blog in every paper so people understand how evidence is excluded and how attorneys have the Golden mouth when defending eating lead.

  2. Hope that you are having a good vacation GG. PANuk alerted me to your blog, and it has proved fascinating reading – good daily summaries and nice little drawing to headline the day. I expect Bayer had outstanding lawsuits covered/excluded when they bought, or they and Volkswagen could bring Germany to its knees.

  3. Oops sorry – forgot to add – many thanks for all your work – hope you cover the appeal.

GG loves comments!! Let me know your thoughts!