A Blended Bifurcation

I deep cleaned my writing office in anticipation of the load of Roundup court dates coming up over the next few months. 

Sometimes, I don’t even recognize myself. Not many years ago, I was using all kinds of bleaches and cleaners with dubious ingredients. I’ve always felt a little suspicious that Clorox wipes likely harbor something uncool, because my hands unfailingly experienced a radiating, deep ache after using them. To help myself feel better, I’d eat my Oreo minis and a Diet Coke. Naturally. A grand trifecta of toxins.

Today, I’m using organic vinegar/water/lemon to clean while bemoaning that organic grapes are out of season and that Trader Joes sells pathetically few options for those who choose organic. I try to watch my sanity – or perhaps I’m more sane than I’ve ever been. I see no other choice after staring with naïve disbelief under the hood of AgChem and EPA corruption. My previous naiveté is exactly what companies like Bayer and Monsanto count on. 

On to today.

Federal Trial MDL Hearings

I should know by now that the most disgusting floor of all security stations is that in the SF Federal Courthouse. Thanks to my brown corduroy culottes that channel the 70s, the too-stylin-to-be-a-security-guard security guard offers me booties to protect my “contemporary Annie Hall look” today. He says that I’m right to be concerned about the floor. He reports that sometimes, people let their babies crawl on that floor, and he thinks those people should just leave their child with security to find better parents. I knew it was bad, but holy cow. 

A half-hour late, I enter the courtroom to see Judge Chhabria, Plaintiff attorney Brent Wisner, and Monsanto attorney Rakesh Kilaru well into debate. The attendance of journalists to the courtroom today is sparse. I do spy attorney Sandra Edwards sitting in the seats alongside a mass of unfamiliar Monsanto/Bayer attorneys. Today, Chhabria will attempt to decide where certain pieces of evidence belong in the upcoming Hardeman trial – Phase 1 or Phase 2. 

You may remember my fury about the trial bifurcation that Monsanto requested and Chhabria granted. Bifurcation means that the trial will be divided into two phases. Phase 1, or the “general causation phase”, will address whether scientific research says that glyphosate causes NHL. If the jury says that it can, Phase 2 will take place to assess punitive damages and liability. Only then will Plaintiff counsel be able to unleash the reams evidence of Monsanto’s deceptive behavior promoting glyphosate. Bayer’s attorneys won a strategic victory here, but they should take their (certainly gilded) moral compasses in for a check-up.  

As I mentioned last post, the scientific research and corporate behavior issues are so intertwined that parsing out evidence into two phases is practically impossible. Given the split, the jury may not know if the research presented on the carcinogenicity of glyphosate is industry-purchased, ghostwritten, or legit. That troubles me deeply, and seems to also trouble Chhabria a hint. The morning is spent discussing how to rectify the problem. 

I’ve seen Judge Chhabria three times now and, while I continue to question many of his rulings, I appreciate his intellectual approach to considering evidence. I sense that he knows Monsanto has done horrible things, but yet strongly considers their arguments. The good news is that a Plaintiff win on a bifurcated trial, which I think is likely, will make it exceptionally hard for Monsanto to continue their lies that glyphosate does not cause cancer.

It is the first time that I’ve seen Monsanto attorney Rakesh Kilaru in action – he is a concerning improvement from the more stale attorneys I’ve seen in the Federal MDL hearings. Well, Bayer did say that they were pulling out all the stops. 

Mr. Kilaru has an unassuming presence and offers a professional, not-annoying first impression. The vibe of this trial feels in high contrast to that of Johnson. It seems on a higher level, likely driven by a very-present Chhabria vs a disengaged Bolanos.   

I am hearing Monsanto use the word “sideshow” repeatedly in describing any evidence that shows the crooked, corrupt, and deceitful behavior in which Monsanto engaged to keep Roundup a best-selling product.  According to Monsanto, such evidence of Monsanto’s abhorrant, frightening corporate behavior doesn’t have anything to do with the scientific determination of whether glyphosate causes cancer. All of the “sideshow” will be assigned to Phase 2. Meanwhile, Monsanto fancies Phase 1 to be a sober documentary focused on their “unblemished” science and Phase 2 more like an episode of Celebrity Big Brother.

Monsanto similarly discredits all parties and organizations who know the glyphosate/Roundup/GMO truth. We are all part of this so-called sideshow. Sadly, we’ve all believed their lines for decades, but Mother Nature did not. There is a limit to how much we can pollute and damage our earth without consequences – like the widespread declines in human fertility over the past decade (btw, glyphosate slows human sperm motility and hampers ovarian folicular dynamics and gene expression in lambs). At the current rate of decline, I’m not sure my kids’ generation will be able to have children.

Need to reset here. Cue back in a magnesium bath, thoughts of Colin Firth as Mr. Darcy, my Australian Labradoodles, and Hallmark movies in which everything turns out ok.

Alright – and I continue…

Parry Papers

You may remember the report written by Dr. James Parry, who was hired by Monsanto to perform an analysis as to whether glyphosate can cause cancer. After Parry concluded that glyphosate and Roundup may be genotoxic, Monsanto sought a different scientist to say that glyphosate is not genotoxic. Monsanto’s criticism of the Parry report is highlighted in an internal email that the Plaintiff used in the Johnson trial, in which Monsanto’s Dr. Heydens wrote that Monsanto was not going to do the further genotox testing of the products that Dr. Parry suggested. 

Monsanto claims that showing the email would simply be a “sideshow” that doesn’t have place in Phase 1. Monsanto continues that the Parry report itself doesn’t have a place in the science phase because it isn’t really a thorough scientific analysis. Chhabria counters that Monsanto WOULD have viewed it as a thorough analysis if it had reached a different conclusion.

Chhabria also warns that Monsanto obviously sees the bifurcated trial approach – with causation first – as a benefit to their case, but they can enjoy that benefit only if they don’t unfairly take advantage of it in trial. 

Wisner expertly argues how misinformation will be presented to the jury if evidence of Monsanto’s corruption is restricted throughout Phase 1. The evidence is overwhelmingly interrelated. 

Chhabria responds that it will sometimes be hard to decide what goes into Phase 1 or Phase 2. 

AHS

Wisner argues that in the epidemiological debate on the “weighing shit with a gold scale” AHS report, the Plaintiff should be permitted to present the Monsanto internal emails citing the problems with how the AHS study was conducted.  I anticipate further discussion on AHS, because it is such a critical piece to Monsanto’s defense. Chhabria hypothesizes that creative cross-examination of the Monsanto epidemiological expert regarding AHS may eliminate the need to discuss the email directly, but more decisions to come on this point.

That Mouse Tumor

OK readers – remember the 1983 Knezovich and Hogan mouse study and the mystery tumor? Briefly: the mystery tumor refers to the mouse study performed by Monsanto that showed that glyphosate caused cancer in the mice. The EPA subsequently labeled glyphosate as a carcinogen. Monsanto then hired a scientist to take another look through the slides and determine if anything was missed in the first search for cancer evidence in the mice. Lo and behold, this scientist found a tumor in the control group, thereby rendering the mouse study statistically insignificant and refuting the EPA’s carcinogen categorization.

Monsanto argues that internal Monsanto/EPA correspondence memos regarding Monsanto’s strategy to change the study outcome to non-carcinogenic should not be allowed until Phase 2. Chhabria, in a somewhat amused tone, asks if Monsanto’s recommendation would be that the jury should hear that initially there was no tumor found in the control group but later they found one. And that the jury shouldn’t learn the story about how the conclusion changed. 

Monsanto argues that the rationale for conducting a second analysis should be saved for Phase 2. You know, given all the sideshowness.

NOW – GET THIS!

Wisner describes that in their own review of the mouse slides in question, all of the slides were available to review EXCEPT the slide that questionably shows the control group tumor. That specific slide has been corrupted and can’t be analyzed. 

There is a pause in the room. Chhabria looks a bit amused because the fact that the only slide that can’t be recovered is the controversial slide makes Monsanto look pretty bad. Wisner doesn’t even need to say a word, but emotionlessly says that maybe the slide was simply reviewed too many times back in the 80s and became unreadable. 

As the discussion continues, Chhabria suggests that in Phase 1, there could just be a top-level discussion of Monsanto’s second study, without going into the internal correspondence showing Monsanto’s predetermined conclusion that a tumor would (shockingly!) be found in the control group before the study was even underway. Chhabria would like to think of a creative way in which to give weight to the fact that Monsanto commissioned such a “do-over” study without specifically revealing the internal memos. However, if Plaintiffs are unable to do so, Chhabria may allow the documents.

He will think further on all points and issue a written ruling on what evidence will be permissible in Phase 1.

Other Details

Wisner completed twelve hours of deposition of Monsanto employees. One of Monsanto scientists denies that there is any evidence, across the board, that glyphosate causes cancer (despite the numerous pro-carcinogenicity studies cited in the Johnson trial). After Chhabria questions the relevancy of “some guy” at corporate claiming that no evidence of glyphosate’s potential genotoxicity exists anywhere, Wisner says that it wasn’t just “some random guy.” He’s a PhD who prepared for 400 HOURS for the deposition! Can you imagine how much that must have cost to have lawyers prepare this guy for deposition? 400 HOURS! I can’t wait to see that deposition because the guy must have transformed into a robot.

Chhabria opines that what someone at corporate says vs what Monsanto attorneys will use in trial may be quite different. He assumes that Monsanto attorneys will NOT say at trial that there is no evidence that glyphosate causes cancer, but rather that Plaintiffs don’t have enough evidence to meet the burden of proof. 

Final thoughts

Scientist rockstar Dr. Portier, AKA the centerpiece of Plaintiff’s arguments on causation, tragically suffered a heart attack in Austrailia last week. His doctor says that he cannot travel anytime soon, including the upcoming trials. While his body will be in recovery for an extended period, his cognition remains 100%. Chhabria and representatives from both legal teams may travel to Austrailia to do his direct and cross examination on video for the trial. I feel so sad for Dr. Portier, who so passionately fights for our environment, and wish him a speedy recovery.

As strongly delineated as the word “bifurcation” sounds, I think that ultimately the Hardeman trial will be a “blended bifurcation,” simply because so much evidence cannot be parsed out separately.

In a future post, I will tell you about the hearing that I attended last week at the California Superior Court in Oakland for the JCCP (equivalent to a state-level MDL). It made me feel quite hopeful! 

© 2019 Kelly Ryerson ALL RIGHTS RESERVED

6 Comments

    1. Thanks so much for sharing!! Strangely, unless I’m missing something, Chhabria hasn’t offered an official ruling as to what will be let in.

  1. Thank you so much for continuing to follow and report on this subject. Just a thought, I find Bayer’s recent television ads sad. The ad thanks all for believing in them in the past (Bayer Aspirin – Yes) and in the future (farming – NO). When and how does a Company make this kind huge change in its fundamental beliefs and goals? How do you find out when the next hearing is? I’d love to attend. Thanks!

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