Pre-Trial Day 3 – Let the Games Begin

Morning Session

9:30 start!  We are convening in an enormous courtroom.  Security officers are gathered outside and inside of the doors of the courtroom.  The single camera is setup on the right side of the courtroom, primed for the permitted filming of mini-arguments delivered by both sides.

Judge Bolanos makes a lovely speech about the critical role of jury duty, quoting Jefferson and the right to a fair trial.

The arguments officially begin.

Mr. Dickens, council for the plaintiff, makes an impassioned statement about Mr. Johnson’s Non-Hodgkins Lymphoma.  He tells a brief story of the chronology of Johnson’s disease, and states that it could have been prevented had Monsanto warned him of the potential carcinogenic effects of his use of Roundup.   Dickens continues that at no point has Monsanto ever warned consumers that Roundup causes cancer.  He claims that Monsanto hid critical information from the EPA and consumers, ignored their own scientists, didn’t conduct appropriate testing on formulated products, and manipulated data.

Ms. Edwards, representing Monsanto, opens with the sentiment that she feels immense sympathy for Johnson, but that the jury will need to put sympathy aside to determine if glyphosate caused cancer.  She shares that the jury will hear (1) a lot about glyphosate and how the science behind Roundup allowed Monsanto to safely sell it, (2) evaluation of the labels, including how to use Roundup, (3) Johnson’s role as a licensed applicator of pesticides, (4) evidence about exposure vs dose quantities, and (5) “a lot” of data and science.

After the short arguments, the major media outlets pack up their cameras and depart the courtroom.  The expressions of potential jurors are a mix of bored and curious.

Judge Bolanos asks that none of the potential jurors conduct any research about any of the issues or parties in the case.  All jurors must decide the case based on the same information.  “Resist temptation” to do any research until the trial is over.  The estimated court time is 22 days – 3 weeks.  The week of July 4th will be a break, and the trial will resume on Monday July 9th.  The cap on the backend is August 10th.

Hardships are presented, as are the questionnaires.  Judge Bolanos interviews a few hardship requests that were based on language, as well as a man who is effectively unavailable at all times.  I love the super sharp, eloquent Judge Bolanos – she should have her own show (of utmost quality).

Afternoon Session

Judge Bolanos announces that due to the challenge of summer vacations this time of year, there were only 60 qualified jurors today.  She decides to call in another panel of 80 tomorrow at 1:30.

Monsanto jumps in with urgent concerns about the mini-opening tapings.  The attorney states that Mr. Dickens never should have instructed the jury on the law.  Mr. Dickens claimed in the mini-opening that the law in California is to either warn or pay. Monsanto felt that statement was wrong, not a statement of the law, and should not have been made. Now, it is playing in sound bites on CBS.  Monsanto has great concern that the panel may be tainted, and that the additional 80 jurors have likely heard the sound bite.

Wisner bites back, and says that the mini-opening was simply standard jury instruction and that this claim is part of a systematic effort to micromanage everything “we” say.  He says that in strict liability law, if you don’t warn, you pay.

Judge Bolonos instructs that in the future, both sides should meet and determine what is reasonable.  If they can agree on the mini-openings, while careful not to reference the law of the case, they can do the mini-presentations again for the new jury panel. She will ask the jury panel if they have heard anything in the media.  It is a common problem with high profile cases.  In addition to no internet research, they should also try their best not to listen to media coverage regarding the trial.

Regarding Trial Length

Monsanto drives the subject back to the length of the trial.  They feel that there should be a reassessment of the allowed time for the Plaintiff witnesses, claiming once again that the information that the witnesses will share will overlap.  There is a long debate, specifically over Charles Benbrook, who is a key witness for the Plaintiff. Monsanto seems to suggest that they are merely trying to be helpful in recommending the shorter time allotment to the Plaintiff called witnesses, offering to shorten their own crosses in response.

Wisner points out that Monsanto had more than enough opportunity to debate this on Monday, when the judge asked for time estimates.  He also updates the court on Donna Farmer, who was just served a subpoena in Missouri to testify in St. Louis.  She can be live broadcasted for testimony, but that will need to be approved by the judge. The judge will look over briefs and make a decision on the inclusion or exclusion of the Farmer live testimony.

More Motions

NO. 27: MOTION TO EXCLUDE EVIDENCE RELATING TO PROPOSITION 65

Now this topic is fodder for juicy debate. Glyphosate is listed as cancer causing on the CA Prop 65 list. Monsanto says the decision to list it was based on weak science used in forming the IARC report.  Plaintiff says that the regulating body of Prop 65, OEHHA, does a much more elaborate study of a chemical before placing it on the list.  Side note: glyphosate is still on the list as carcinogenic, but labeling on Roundup containers was postponed by a Federal judge who ruled CA can not require product warning labeling based on current scientific evidence.

More review on the topic to be done – we will be seeing more on this subject.  In the meantime, here is a link to OEHHAs classification, as well as amendments to the original classification regarding the glyphosate NSRL (no significant risk level).

The parties cruise through more motions, deciphering which need to be discussed before opening arguments. We will be hearing more on many of these issues.

NO. 8: MOTION TO EXCLUDE LETTER FROM MARION COPLEY

NO. 10: MOTION TO EXCLUDE DR. CHARLES BENBROOK OPINIONS REGARDING PERSONAL PROTECTIVE EQUIPMENT

Will not be raised in opening.

NO. 14: MOTION TO EXCLUDE EVIDENCE, ARGUMENT, OR REFERENCE TO COMPARISON TO THE TOBACCO INDUSTRY

Agreed, except if in reference to those who still smoke even though it is known to cause cancer.

NO. 15:  TO EXCLUDE DEROGATORY REFERENCES TO ROUNDUP READY CROPS AND OTHER BIOTECHNOLOGY

The judge will think about it.

NO. 17: TO EXCLUDE IMAGES OF INJURED PATIENTS OTHER THAN PLAINTIFF

Agreed

NO. 19: TO EXCLUDE EVIDENCE, ARGUMENT, OR REFERENCE TO CAREY GILLAM BOOK AND ALL OTHER NEWSPAPER, BROADCASTS, AND OTHER MEDIA PUBLICATIONS AND PRODUCTIONS

Plaintiff not planning to use her book in opening statements.

NO. 21: TO EXCLUDE DR. SAWYER FROM INTERPRETING MONSANTO INTERNAL DOCUMENTS, ASCRIBING MOTIVATIONS, OR CLAIMING MONSANTO MISLED EPA

Do not need this motion addressed before opening.

NO. 28: TO EXCLUDE EVIDENCE, ARGUMENT, OR REFERENCE TO MONSANTO FINANCIAL CIRCUMSTANCES, REVENUE OR PROFITS ASSOCIATED WITH THE SALE OF ROUNDUP PRO, RANGERPRO, OR OTHER GLYPHOSATE-BASED HERBICIDES

Wisner plans to discuss the financial state of Monsanto.

NO. 29: TO EXCLUDE DAMAGES AND EVIDENCE REGARDING LOSS OF CONSORTIUM

NO. 30: TO EXCLUDE CERTAIN EVIDENCE REGARDING PLAINTIFF ALLEGED MEDICAL EXPENSES

Documents

Pages of documents will be examined and decided upon for use in the trial.

There will be new mini-opening statements tomorrow.  I will not be there to cover them – but I will be back on blog on Monday for more jury selection and pre-trial meeting.

© 2018 Kelly Ryerson ALL RIGHTS RESERVED

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