I’m ecstatic and honored to publish the letter that Charlie Kaupp, Juror #11, wrote to Judge Bolanos to defend the jury’s unanimous verdict.
October 16, 2018
Hon. Suzanne Ramos Bolanos
Judge of the Superior Court
Civic Center Courthouse
400 McAllister Street
San Francisco, California 94102
RE: DeWayne Johnson v. Monsanto Company (Case No. CGC-16-550128)
Dear Judge Bolanos,
When I was called for jury duty over the summer, I figured it would be like every other time: spend a day or two in court, go home, and forget about the case immediately. Even after four days of jury selection process, and my eventual selection as juror #11, I didn’t know what the summer had in store for me. I had no idea I would learn so much about cancer, glyphosate, and the trial end of the legal system. I honestly felt that the trial was conducted very smoothly by Your Honor, and that both sides presented evidence that they felt would sway us their way.
In the jury’s opinion though, the plaintiff’s case was simply more compelling, and that is why after three days of very thorough and intense deliberation, we issued the verdict that we did.
When I found out through communications with the other jurors that you had tentatively overturned some portions of our verdict as part of the JNOV, I was floored. I have never worked with a group of people as diligent, rational, and intelligent as my eleven (plus four alternate) fellow jurors on this case. Both sides have pointed out that we were attentive and inquisitive throughout the trial, yet now the defendant is claiming we were inflamed by prejudice? It just doesn’t make sense to me.
While I am not an attorney, I have worked in the legal field for the last twelve years, and I have picked up a little peripheral knowledge. One piece of information that always stuck with me was the notion of “reasonableness” in the presentation and interpretation of evidence.
I know, for instance, that when Mr. Wisner used colorful language and theatrics during his opening and closing arguments, as a reasonable member of society and as a reasonable juror, I interpreted those as just his style of practicing law, and quickly set it aside as not relevant to the case. On the flip side, Mr. Lombardi also used his own personal style in both opening and closing arguments.
Another argument of the defense was that plaintiff’s witness Dr. Nabhan didn’t include idiopathic causes in his differential analysis. I believe most reasonable doctors and patients, the jurors among them, are capable of making the assumption that “unknown cause” is always a possible cause, especially when the carcinogen is not a 100% “known” carcinogen.
Finally, while your instructions regarding punitive damages were more strict (clear and convincing evidence rather than a “likelier than not” scenario, paired with the behavior being executed by a managing agent of Monsanto), we approached the questions using a very measured process based on the evidence we were presented. We found that certain evidence showed behavior that any reasonable member of our society would deem malicious and with the outcome of harming Mr. Johnson. I found the argument about what constitutes a “managing agent” at Monsanto to be unnecessary. Any reasonable professional with any experience in the workforce would be able to identify the “managing agents” within any workplace. It’s simple clues – titles like “director,” or responsibilities like managing toxicology for an entire portfolio of products – that made this obvious for us.
While the jurors have been in contact with each other, this letter is my own. That said, on August 10th, the jury spoke unanimously on every one of your verdict questions except the one about the amount of punitive damages (and that one was eleven-to-one). Monsanto requested a jury trial, as is their right. The fact that sixteen San Francisco citizens gave up six weeks to participate in the justice system with honor and integrity, only to have our verdict overruled, is an insult to our intelligence and disrespectful of our time, not to mention disrespectful to the process and institution of trial by jury.
I respect your decision, as this is how the rules of civil procedure dictate the process should go, however if you do not reconsider your tentative ruling, I respectfully, and very reasonably, disagree with you.
Michael L. Baum, Plaintiff counsel (MBaum@BaumHedlundLaw.com)
George C. Lombardi, Defendant counsel (firstname.lastname@example.org)
Robert Egelko, San Francisco Chronicle (BEgelko@sfchronicle.com)
Kelly Wardwell Ryerson (via web form)