We begin our third day of waiting in the small courtroom, on edge for any news of questions from the jury or a verdict. In the patient crowd are all of the attorneys (except for Bobby Kennedy who is spreading the word of the dangers of RoundUp in media interviews), a few other journalists and me. I learn that Monsanto was awarded #12 in the Newsweek 2016 Green Rankings of sustainable and environmentally impactful companies. I will no longer trust anything else that Newsweek wishes to tell me.
While passing the time, I chat with Wisner about my hunt for an accurate and alliterative adjective for him – over the last many weeks of recapping this trial, it’s been impossible to find a good “W” adjective that is exactly right. Delightful Dickens was just very obvious. “Wiley” makes sense for Wisner, but may be too negative. “Warring” is interesting but more aggressive than his day-to-day nature. “Willowy” isn’t his body type. He was “Worrisome” when cross-examining Dr. Mucci…
Novels are actively read all over the courtroom as we wait. Most interestingly, Monsanto’s Mr. Griffis reads Tolstoy in his spare time, because who wouldn’t enjoy losing oneself in jolly St. Petersburg circa 1805?
Some of the lawyers take an early lunch, so as to avoid running into the jury. These are delicate days and both sides are making sure to stay far away from the members of the panel who are diligently determining the fate of Johnson.
I pop into the elevator, and realize that I will be sharing a ride down to the basement with Monsanto attorney Mr. Lombardi. Just we two. I’ve wondered about him quite a bit over the last two months. I’m particularly fascinated in him today because his closing argument was so stellar and convincing – this guy is an incredibly talented lawyer. We chat a bit, and the man could not have been friendlier. Could it be that this is merely a job for him and doesn’t represent how he really feels? I really want to believe so.
There is the cheeriest woman named Reem who works in the courtroom basement restaurant. There are no windows in this restaurant to enjoy, only customers of varying character wandering in and out. Reem is anxious to know the outcome of this trial too, as she has watched the cast of characters pass through all summer. Sciencey types, corporate guys, journalists, lawyers, and celebrities.
After lunch, I make my way back upstairs. One of the seasoned courtroom journalists announces that the verdict came out while I was gone – a joke that she says never gets old. After I recover from that moment of crisis, I wait. We wait. The room is so silent that I can hear stomachs digesting.
The silence is broken at 2:15. The door opens abruptly and we obediently rise to meet Judge Bolanos. She announces that a verdict has been reached and will be read upstairs, in the larger courtroom, to accommodate the media. Wisner has been sitting inside this courtroom for days, but happens to be out of the room at the moment. He mentioned this morning that he had a very rich Indian dinner last night. He’s not alone, I think all of our stomachs are in knots. Dickens acknowledges the instructions.
I feel so nervous that my hands are shaking. The attorneys have been in this place before, and don’t seem quite as jittery as I am. I think I didn’t need that extra cup of caffeine.
Twenty Minutes Till Verdict
I hightail it upstairs via the back stairway, bypassing the main elevators, and wait at the foot of the locked door of jumbo Courtroom 602. The other journalists are also in line, noses nearly pressed to the windowed door.
The affable media coordinator, who provided emotional support when I accidentally drenched my laptop with a full bottle of water the morning of Johnson’s testimony, opens the large courtroom for fast media set-up. The media have all been on call for the last three days, and were given thirty minutes of warning to get their rears to the courthouse. The single permitted video camera, which will provide coverage for all paying media outlets, is set up to my left.
I meet Joel Rosenblatt, whose Bloomberg articles on Monsanto and RoundUp I have enjoyed for some time. This glyphosate world is really small. It feels even smaller as most of us gather together for the verdict. I wish that MIT scientist Dr. Stephanie Seneff could be present as well, given her years of dedication to this cause.
I am sandwiched between the two other journalists who have sat with me nearly every day as they have covered this trial from an unbiased perspective. For those following the trial closely, you will recognize Helen Christophi of CourtHouse News and Dorothy Atkins of Law360, who both report so beautifully. All three of us compare notes and peruse the verdict form.
The verdict form in this case is especially long. In most civil trial cases, the jury must fill out a verdict form that only lists a few questions. Monsanto, however, insisted on a lengthy one, breaking out a multitude of highly differentiated points. From what I gather, such a form would make an appeal much more challenging for the Plaintiff, because all points of contention are thoroughly exposed.
The Monsanto attorneys look serious, except for Lombardi who still has a kind smile. The Plaintiff attorneys haven’t filed into the big courtroom yet, and I wonder what they are up to. Prayers? Huddle? Is Coach Taylor shouting: “Clear Eyes, Full Hearts, Can’t Lose?”
The extraneous employees from Monsanto corporate, who have been lurking separately in the courthouse hallways the last few days, trickle into the back of the courtroom. As one bystander pointed out, those guys are all from Monsanto, but they never hang together. The impeccably dressed, shiny-tied, gray-suited men sit several benches away from one another in the hallways like strangers.
Ten Minutes Till Verdict
I look out into the hallway and video cameras are clustered at the door. The trial plan dictates that the jury will remain off camera, which I concur to be an excellent idea.
Plaintiff counsel is present and ready. There are many sighs of nervousness. Dickens sits at the front of the room, staring straight ahead at a blank verdict sheet loaded on his laptop. Silent and serious. Determined Dickens.
A few more journalists run in, breathless and sweaty from hauling their bodies across town in a sprint. Impossibly long extension cords are run across the courtroom as the camera crew frantically troubleshoots a power issue.
Lee Johnson enters the courtroom and the room quiets. He looks incredibly chill and steady, wearing a long–sleeved gray t-shirt and black jeans. He keeps his head down, avoiding eye contact with everyone but his trusted attorneys. Johnson’s wife Araceli cannot attend today’s verdict because she is busy maintaining her two jobs to support the family.
The jury enters. They are such a soulful group of people, and I entertain that there was a spiritually greater reason why these specific people were put on this particular jury. They are the right people to tackle this highly meaningful and consequential issue for our time. While the four alternates were not involved in the deliberations, two of them show up to witness the twelve core members deliver the verdict.
I try to read their faces, but get no signal of any kind. The verdict really could go in either direction. A few have dressed up for the occasion, in sportcoats and dresses. A few remain in their hallmark Patagonia jackets, making the scene that much more San Franciscan.
Judge Bolanos takes her seat. I notice that she has a new super-cute haircut and blowout today. This day is a tremendous one for her as well, including her highly publicized reading of the verdict.
Bolanos asks if the jury has their verdict, and they acknowledge that they do. An ordinary manilla folder is handed to the bailiff and then to Bolanos. Bolanos opens the folder and looks over the verdict, and I still have no idea what it says. I would hate to sit at a poker table with her.
I’m hyperventilating a little bit which means that my eyesight is starting to cave in on the edges. I want this so badly for Johnson and everyone else who has suffered at the hands of Monsanto’s criminal corporate and ethical recklessness.
CLAIM OF DESIGN DEFECT
- Are the Roundup Pro or Ranger Pro products ones about which an ordinary consumer can form reasonable minimum safety expectations?
GG: My anxiety is clouding my auditory processing skills. I frantically triple check my comprehension and confirm this is a good sign.
- Did Roundup Pro or Ranger Pro fail to perform as safely as an ordinary consumer would have expected when used or misused in an intended or reasonably foreseeable way?
GG: Oh my gosh. Why isn’t anyone screaming with excitement or reacting much at all?? I look around and faces are still intently listening, and keyboards are ferociously pounded.
- Was the RoundUp Pro or Ranger Pro design a substantial factor in harming Mr. Johnson?
CLAIM OF STRICT LIABILITY – FAILURE TO WARN
- Did Roundup Pro or Ranger Pro have potential risks that were known or knowable in light of the scientific knowledge that was generally accepted in the scientific community at the time of their manufacture, distribution or sale?
- Did the potential risks of RoundUp Pro or Ranger Pro present a substantial danger to persons using or misusing RoundUp Pro or Ranger Pro in an intended or reasonably foreseeable way?
GG: Still very little reaction out of anyone. I’m going to explode.
- Would ordinary consumers have recognized the potential risks?
- Did Monsanto fail to adequately warn of the potential risks?
- Was the lack of sufficient warnings a substantial factor in causing harm to Mr. Johnson?
CLAIM OF NEGLIGENT FAILURE TO WARN
- Did Monsanto know or should it reasonably have known that Roundup Pro or Ranger Pro were dangerous or were likely to be dangerous when used or misused in a reasonably foreseeable manner?
- Did Monsanto know or should it reasonably have known that users would not realize the danger?
- Did Monsanto fail to adequately warn of the danger or instruct on the safe use of RoundUp Pro or Ranger Pro?
- Would a reasonable manufacturer, distributor, or seller under the same or similar circumstances have warned of the danger or instructed on the safe use of RoundUp Pro or Ranger Pro?
- Was Monsanto’s failure to warn a substantial factor in causing harm to Mr. Johnson?
CLAIM OF DAMAGES
- What are Mr. Johnson’s damages?
Past economic loss: $819,882.32
Future economic loss: $1,433,327.00
Past noneconomic loss: $4,000,000
Future noneconomic loss: $33,000,000
GG: Wisner puts his arm around Johnson and they huddle with faces down towards the table. Counsel and Johnson silently celebrate their achievement, and I’m trying my best to hold back tears.
- Did you find by clear and convincing evidence that Monsanto acted with malice or oppression in the conduct upon which you base your finding of liability in favor of Mr. Johnson?
- Was the conduct constituting malice or oppression committed, ratified, or authorized by one or more officers, directors, or managing agents of Monsanto acting on behalf of Monsanto?
- What amount of punitive damages, if any, do you award to Mr. Johnson?
Still no cheers, it’s such a muted reaction! How could this be? I would cheer myself but suspect that Judge Bolanos would put me into a penalty box in the hallway. I’m looking everywhere for signs of emotion. Monsanto counsel is not pleased but perhaps not surprised either. They ask if Judge Bolanos could poll the jury on their individual responses on each question. This serves as a gauge to how overwhelming the verdict indeed was or was not.
In the most dramatic of fashion, each juror is questioned one-by-one on each question. Yes, yes, yes, yes, yes… it continues. They are unanimous until question seventeen, in which juror 6 delivers a no on the amount of punitive damages.
The jurors offer their individual votes in an abundantly confident and deliberate tone. Each response is emphatically stated, as if to communicate no equivocation in their conclusion. It appears that they have no doubt that the evidence is bountiful enough to establish that RoundUp causes cancer, and Monsanto knows it does. And now Johnson is dying from it.
The polling of jury takes some time – seventeen questions and twelve jurors. As the jurors deliver their individual votes, I notice the deeply grateful, misty eyes of the Plaintiff’s legal team. Wisner turns his entire body towards the panel, and watches them with immense pride, overflowing with thankfulness that Goliath did not win this time. Our own David, David Dickens, wipes a few tears off his cheeks. An awestruck Bobby Kennedy smiles widely, emitting a handsome Kennedy glow of patriotic pride that democracy does work and our system is not broken. I can’t see Lee Johnson’s face, but I can feel the powerful energy that he radiates upon hearing that his cancer was not for naught, but instead has ignited a change in the future of global health.
This moment is so intimate. There are cameras and media everywhere, but this moment in time feels like a private viewing of the birth of a renaissance. This renaissance bravely interweaves cutting-edge science, public policy and a willingness to stand up for what is right or wrong. It’s an invitation to believe that we don’t have to accept poor health as the norm. We don’t have to watch our children grow sicker and sicker with each generation. Maybe it isn’t too late to heal the epidemics of allergies, behavioral and mood disorders, autoimmune conditions, gut biome disruptions, and, of course, cancer brought about by this poison. The science says that without change, these conditions will plague our future. Monsanto will choose to fight that science until health claims land them bankrupt.
The jury is escorted into a room in the back in which the lawyers are allowed to speak with them. After lingering for a bit, the remaining observers file into the hallway. Monsanto is holding a press conference downstairs, but I am hoping to speak to the jury and stay near the courtroom. I’m confident that I know what Monsanto will say anyway.
After approximately thirty minutes, Brent Wisner emerges from the courtroom. The other journalists interview him and I am pleased to listen in on his responses. While careful to keep the thoughts of the jury private, he does share how happy they are to provide Johnson with at least some financial support. There were tears all over the room, as everyone could finally release the emotions surrounding the unnecessary terminal illness of this warm, hardworking and funny family man.
Michael Baum emerges next. Michael is the President of the Baum Hedlund law firm, where Wisner also works. He is not a guy that appears to seek the spotlight, but by all means he should take a place on the center stage. His commitment to applying the most sophisticated level of science to challenge not only Monsanto, but also pharmaceutical companies, is unmatched. He sat in the front row every day, with a simple notepad, absorbing every detail of the legal shenanigans that Monsanto played. All while maintaining calm.
On the Baum Hedlund website, he has posted the appalling internal Monsanto documents that were permitted to be unsealed publically. Baum believes that we all have the right to know the truth.
Also in the courtroom each day, kindly lending me some battery charge and a laugh, was brilliant attorney Mark Burton. He knew the fine details of the case and hustled behind the scenes to get the critical, comprehensive briefs written in time to beat back the Monsanto legal team. Mark could often be found sitting on the edge of his seat.
The Miller Firm’s Jeffrey Travers was a constant whirl of activity throughout the case. He sat at the lead counsel table on several occasions, and successfully represented the Plaintiff in battling out the difference between a substance’s MADL (Maximum Allowable Dose Level) of causing birth defects versus a NSRL (No Significant Risk Level) of causing cancer. He could often be found poring through mounds of files and binders, all while wearing a quiet and thoughtful smile.
Working as the junior guy on this case, which means mega quantities of work, was Baum Hedlund attorney Pedram Esfandiary. He has a charming British accent and shoulder-length, wavy black hair. To pull off courtroom-style, he often gathered it into a professional man-bun. I stared at the back of his head for weeks, jealous of the sheer quantity of hair he has. Over the last three days, I’ve heard that he’s popular with the ladies. The other attorneys are spoken for in the dating department, so perhaps they live vicariously through his dating antics.
The jury doesn’t end up exiting through the main doors, so I don’t have an opportunity to talk to them. Fortunately, Wisner shared this site, and now they can see what went down inside the courtroom while they waited for long stretches of time in the hallway.
After a quick chat and thank you to the court clerk, who is another incredibly sweet-natured woman, I leave the courthouse and cruise over to the Plaintiff’s Press Conference.
The sky is sparkly blue this afternoon, and a solid breeze has blown the smoke out of the City. I know this may seem incredibly hokey, but what I just witnessed inside the courtroom makes me see this entire Civic Center with fresh eyes. City Hall is particularly grand on this August 10, 2018, and the mall of flags outside seems especially vibrant and symbolic. What happened today is so much bigger than any of us.
As I walk over to law offices on Van Ness Avenue, I have pride on a national level that this justice system can successfully hold corporations like this accountable. I have even greater pride in what my hometown, home state and fellow citizens have done today. California – home of the “Liberal Moron Zombies” – is nothing if not innovative and creative, and I am overflowing with pride that we can suggest to the world what needs to be done and what can be done to recoup the health that so many of us have lost to the hands of glyphosate.
I am bursting with pride that California looks to IARC as a solid, independent, and highly scientific information source on carcinogens, and that Prop 65 exists to make sure that we correctly heed their warnings. In a state with an enormous agricultural sector, we absolutely must educate our farmworkers and provide them with the protective gear they need, until one day this poison can be banned altogether.
The broadcasting folks have made their way over to the law office, and are filming outside the front doors. Two guys walking up the street are intrigued by the cameras, and I explain that a jury just determined that RoundUp causes cancer. They think I’m kidding. They think I am kidding only because they thought everyone already knew that RoundUp causes cancer and “a whole lot of other sh!t!” And that is why it took us a week to find an unbiased jury panel.
When I enter the office, a backdrop with the law firm’s name has been placed behind a podium. Camera operators fight for a decent filming spot, and hook up their respective microphones. I take a seat in the back of the room. Through some glass doors, I see the whole gang of lawyers beaming with relief and joy, and Lee Johnson still cool, collected, and I think very much relieved.
When 5:30 arrives, the filming lights turn on, and Mark Burton stands with Lee Johnson, Brent Wisner, David Dickens, Bobby Kennedy and Michael Baum. Burton states: “The truth has come out, RoundUp does cause cancer.” After a classy introduction and welcome, the microphone is handed to Lee.
Lee shows no signs of nerves in delivering a beautiful speech about what this verdict means for him personally, as well as the impact the jury decision will have on everyone else that RoundUp has touched. He graciously thanks the jury and legal team, with a particularly strong shout out to Tim Litzenberg and Mike Miller (who I still haven’t met, due to his injury just before the trial opened). “This case has been very hard. It’s been fought long. It took a lot of time to get here and these guys did a lot of work and I’m very proud of each of you.” He continues: “This case is way bigger than me. Hopefully this thing will start to get the attention it needs.” I desperately want this man to be cured. He has so much more brightness to offer this world.
Wisner steps up to the microphone, and speaks off the cuff. “Every major known carcinogen had a moment like this. A moment when the science finally caught up. When they could no longer bury it. Where people had to actually look at it and say we have a problem. And this case is that moment. Because right now a unanimous jury here in San Francisco has told Monsanto ENOUGH. You did something wrong and now you have to pay…We now have a way forward. I want to say thank you. This was a massive team effort.”
Delightful David Dickens: “Mr. Johnson came into the Miller Firm three and a half years ago and came to us with an incurable cancer. Since that time, we have spent time in his kitchen with his wife and children. Mr. Johnson has been an inspiration to all of us. He has stayed strong. He’s put his neck out as the first Plaintiff in what will be thousands.”
Bobby Kennedy. I haven’t written much about Mr. Kennedy because he is such a prolific writer himself, and has done an exquisite job in sharing the details of this case. I am thankful for the work that he champions, and for the powerful voice that he uses in such an inspiringly positive manner. There are such high expectations preloaded into the Kennedy name, and he simply surpasses those expectations on all accounts. Bobby sat in the courtroom every day as well, absorbing and rehashing the nitty gritty detail of the case. Michael Baum’s son Kevin, who is a rising senior at Berkeley, worked with Kennedy for the summer, helping to publish timely information about the trial on social media. What a summer gig. I was folding shirts at Abercrombie at that age.
During the press conference, Kennedy thanks the jury for their attention, purposefulness and earnestness in reaching a “verdict that was fair, that was based on the evidence and really gave me tremendous faith in the American jury system. In many ways, it was American democracy and our justice system that was on trial in this case. Because, in this case, as in almost every environmental case of this magnitude, you not only see many people injured but you also see a subversion of democracy. You see the corruption of public officials, the capture of the agencies that are supposed to protect us all from pollution, [they] become captured by the industries they were supposed to regulate. The corruption of science. The falsification of science. And we saw all of those things happen here. This is a company that used all of the plays in the playbook that was developed over sixty years by the tobacco industry to escape consequences of killing 1/5 of its customers who used their product as directed. Monsanto and RoundUp have used those strategies to insulate this product which is now ubiquitous in our food supply, our water, our wildlife, and everything we touch. It’s in mother’s breast milk in this country. We’ve passed the inflection point in which the science is now too persuasive to deny.”
Kennedy uses this opportunity to also discuss the many other ways in which the RoundUp product is harming our health, from cancer to endocrine disruption.
For everyone reading this blog who is frustrated and tired of being ignored – or people who are new to this information about RoundUp and Monsanto – join me in feeling incredibly hopeful that this outstanding team is fighting loudly and effectively to be heard. They will succeed, and we all will succeed in preventing Monsanto and the EPA from harming us any further.
Thats the end?
Clearly not! I celebrate with a glass of white wine and thank the lawyers who I’ve really enjoyed getting to know and about whom I pontificate on this blog daily.
This trip has only just begun. But man, what a mind-blowing way to start the journey. This verdict is “astounding!” to quote Dr. Portier and fortunately not made in an “unreal world” to quote Dr. Neugut.
I will be busy the next few months, fundraising to support critical research studying glyphosate and the microbiome. As we have all learned from this trial, such studies best be designed to assess chronic exposures, and include unprecedentedly detailed data on the control mice.
It is challenging for a scientist to get funding when the proposed work could in some form look bad for Monsanto. The usual sources of funding mysteriously disappear or become unavailable when such research is proposed. Hopefully, the outcome of this trial will give more researchers and institutions the courage to ask tough questions about the impact of this terrible chemical without fear of retribution.
I have my eye on the timing of the upcoming trials. I will certainly be covering the next round of cases in Oakland, and may be able to slip into St. Louis for part of that trial.
For now, thank you for joining me on this crazy ride.
I’ve got it!!! WINNING WISNER!!!!
© 2018 Kelly Ryerson ALL RIGHTS RESERVED