The philosophizing trio Bel Biv Devoe sang: “Situation is serious. Let’s cure it cause we’re running out of time.”
I grew up in a socially liberal, Reagan-Republican family, which was a bit more common in the 1980s in the San Francisco suburbs than today. My dad is a retired US Air Force Lt. Colonel who protected our country’s principles with commitment and passion. He flew a great deal, and spent my high school years flying the Middle East for Desert Storm. The hot clothing trend in California high schools in those early 1990s was for girls to wear boxers as shorts, with the crotch sewn up of course. I was super proud of my sweet TJ Maxx find of American Flag boxer shorts, and wore the boxers, Doc Martins and my Elaine Benes curly hair with pride.
I tell you the political leanings of my upbringing to point out that the fight against glyphosate is not solely an extremely liberal, Democrat-only agenda. We must separate this public health emergency from politics. This fight is straight up science-based, science that Clinton, Bush, and Obama allowed to be hidden within their EPAs. This non-transparent behavior is not the freedom that my dad and our family fought for nor why I wore those boxers.
I don’t know what will happen next within the Johnson trial, because so much of the Roundup regulatory and political history doesn’t make sense to a rational person. Monsanto and the EPA’s behavior is poisoning swaths of citizens around the world. Their behavior also has made it so that unless my son wants a debilitating migraine, I want to have an itchy rash and numb hands, or my friend (who wishes to remain anonymous for obvious reasons) wants to keep Gas-X in business, we can’t eat desiccated glutenous grains or other glyphosate-drenched foods.
Last week, Monsanto filed two incredibly lengthy requests for 1) a new trial and 2) a Judgement Notwithstanding the Verdict (JNOV). These motions are to be expected, and had the verdict gone for the Defendant, the Plaintiffs would have similarly filed for a new trial. The filed documents were thick reading, so thank goodness I had SFO – Boston – SFO flights to dig in deeply. And sufficient caffeine.
Because Monsanto attorneys Ms. Edwards and Mr. Lombardi seem to have the ear of Judge Bolanos, I have a pit in my stomach about how Bolanos will rule on the two motions filed this week. The personalities of Bolanos, Edwards and Lombardi read similarly formal and amiable, kind of like a polite concierge at a luxe hotel, where essential-oil-laden, chilled hand towels are presented upon check-in. Wisner is more cowboy style, and Dickens is, of course, delightful.
Request for a New Trial
In an exuberated state following the verdict, I forgot to mention an odd detail from the verdict reading. When Bolanos polled the jury for each question on the verdict form, all points were agreed upon unanimously except one. After each polled question, Bolanos summarized the results numerically for the court. Instead of saying “12 votes to none,” she repeatedly reported “12 votes to one.” That totals thirteen, even though there were twelve jurors. It was quite a shame that the error took away from the powerful, unanimous message that the jurors so boldly sent. As a legal newbie, I thought maybe saying “one” instead of “zero” was some weird legal antiquation like saying “love” instead of “zero” in tennis. But in fact it was only Bolanos error. I’m sure that Monsanto is hopeful that the “one” is indicative of Bolanos’s privately-held verdict, one that would oppose that of the jury.
In the motion for a new trial, Monsanto attorneys write that: “This Court acts as a ‘thirteenth juror.’ The Court…must independently weigh the evidence and assess whether it sufficiently supports the jury’s verdict.” They request a new trial based nearly entirely on evidence that they presented and argued during the trial. Thirty-five pages of persuasive writing rehash their arguments. Their writing is clear, compelling, and sharp, and I can hear their articulate voices in their written words.
The document could be a classy promotional pamphlet for the EPA, EFSA, and the omnipresent AHS study. You may remember that the Plaintiff witnesses repeatedly criticize the AHS study due to its equivalence to “weighing shit with a gold scale.” Nevertheless, Monsanto argues: “The weight of the evidence does not support causation.”
- Monsanto argues that in the state of California, epidemiological studies are required to show a 2.0 risk ratio or higher to meet the minimum threshold to prove legal causation. None of the epidemiological studies presented by Plaintiff witnesses reached this risk ratio level.
- “Although the toxicology database is exceedingly robust and the doses given to most of the animals were substantially higher than what any human would be exposed to in real life, there were no compound-related tumors in any of the studies and thus, glyphosate does not even cause tumors in animals.” OMG – again with the dismissal of the mouse kidney tumors!
- Monsanto does not think that results from animal studies can reliably apply to humans. I would like to hear why they think their EPA requires those animal studies for regulation.
- There are copious objections to Wisner’s “flagrant misconduct in front of the jury.” Wisner speaks passionately, for sure. I think that they mostly object to how talented he is at inspiring people to make the right ethical calls. They complain that Wisner inappropriately: “implored the jury to ‘actually change the world’ and ‘become a part of history.’” Apparently, “Punitive damages are designed only to punish the conduct of a defendant vis-à-vis the plaintiff, not to punish the defendant on behalf of society at large.” Sadly, the society at large is so critically impacted by this issue, and most of society doesn’t even realize it.
- Monsanto considers the “liberals and morons” email to be “dangerous misconduct that warrants reversal.” So many pieces of evidence were excluded, and an embarrassingly biased number of Monsanto objections were sustained. It was surprisingly wonderful that this email was permitted as evidence. I’m disappointed that the reference to “whackamole” wasn’t permitted, in which Monsanto employees talk about smashing down incriminating GMO research like a carnival game.
- Monsanto doesn’t appreciate that Wisner told the jury in closing that Monsanto employees were confidently awaiting a verdict, and that “If the damages number ‘is not significant enough, champagne corks will pop’ and ‘Attaboys’ will abound.” It’s hard to imagine that such a scenario wasn’t happening in some form in St. Louis corporate offices. It cracks me up that Wisner used the appropriately stodgy, old-fashioned term “Attaboy,” and now is specifically cited on it.
Motion for Judgement Not Withstanding the Verdict (JNOV)
A JNOV is a practice in which the presiding judge in a civil jury trial may overrule the decision of a jury and reverse or amend their verdict. That’s right, Bolanos could legally nullify the whole trial. The document presenting Monsanto arguments for Bolanos to issue a JNOV is 35 pages. The contents are similar to those in the request for a new trial, just organized differently and presenting different case precedents.
Monsanto once again celebrates the EPA and European regulatory agencies, independent scientists, small laboratories and the National Cancer Institute for their determination that glyphosate is not a human carcinogen. Monsanto finds that the jury verdict warrants “exceptional scrutiny” because Monsanto’s reliance upon the science and the regulators was not “egregious” enough to warrant a $250 million punitive damage.
Regarding the verdict that Monsanto failed to warn Johnson of glyphosate danger, Monsanto argues that “the undisputed evidence disproves the claim [that Monsanto failed to warn]: the state of the art [science] reflected in the domestic and foreign regulatory opinions and the scientific literature before and after IARC’s classification is that glyphosate is not carcinogenic. “
Monsanto sees no evidence that executives acted with “malice or oppression” in marketing Roundup. They see no evidence of “despicable” conduct. COME ON – Monsanto executive Dr. Goldstein’s deposition was so clearly illustrative of a guilty conscience from acting despicably.
Monsanto finds it unacceptable that Wisner argued during closing that Monsanto’s communication with the EPA was “creepy.” They said that Wisner’s criticism of Monsanto advocating their interests to the EPA is “a straightforward attempt to punish First Amendment protected activity. And it is unlawful.” “Creepy” must have really gotten under their skin to bother calling it out among so many potential options. I agree with Wisner, it is creepy when we know that glyphosate is a poison.
Monsanto harps on Dr. Nabhan’s analysis about what could have caused Johnson’s MF, because among all of the reasons, he did not say “idiopathic,” or “we just don’t know.” GG SIDEBAR: So many doctors rely on the term “idiopathic” now. Millions of patients show up in their offices with all kinds of random symptoms like headaches, ADHD, fatigue, rashes, digestive issues, numbness and tingling, depression, insomnia, anxiety, but don’t test positive on any diagnosable laboratory results. Glyphosate hides itself very well within the body. I’m sick of the term “idiopathic,” and expect that doctors, scientists and regulators should study the innovative science that explains WHY people are feeling so horrible. “Idiopathic” is a glaring cop-out.
Anyway, their thoroughly exhaustive arguments for a new trial and JNOV are the right ones for them to make in defense of their side. They are excellent attorneys. Not much more to say on that.
Science to Consider
Monsanto has an unpublished study that shows they suspect that glyphosate can become incorporated into our proteins. Proteins are links of amino acids that are programmed by our DNA, and are core to our biological function. (A quick video on DNA and protein synthesis basics). Glycine is one of the key amino acids that forms our proteins. Glycine and glyphosate are analogues, or chemical compounds with a similar molecular structure, which could reasonably replace one another in protein synthesis. One of the mechanisms by which glyphosate damages our bodies may be via the displacement of glycine with glyphosate on a structural, cellular level. As Stephanie Seneff, Anthony Samsel and other scientists continue to study the glycine/glyphosate displacement hypothesis, I will update you.
I expect to see a written response from Plaintiff attorneys. A court date for a hearing on the Johnson Trial is set for October 10th.
Federal cases may begin as soon as February 2019.
© 2018 Kelly Ryerson ALL RIGHTS RESERVED