Okay, it’s minor disclosure time folks. I had second thoughts about accepting the assignment to write about today’s proceedings, in which Alberta and Alva Pilliod are going to testify. Mixed feelings might be a better way to describe it. I know what is coming and it is not going to be easy to watch and listen to. But that is not what I have a problem with because, well, this is reality.
I realized a long time ago, when my father had lung cancer, that the best way to deal with it was to face it. Stare it down. Be there. People with cancer, and cancer survivors, have no need for people who have the gift of good health tiptoeing around their situation. What I am not thrilled about is the legal necessity of plaintiffs having to get up on the stand and confirm their pain and suffering, especially to a jury. This is just how it is done, I suppose.
The thing is, a jury will be empathetic but will not be swayed either way. What matters to the jury is the scientific evidence and evidence of corporate malfeasance, and both of these are piling up in this case to such a degree that, hopefully sooner than later, Monsanto/Bayer will have to start settling these cases—then no plaintiffs will have to go through what the Pilliods will go through today.
So today, as usual, we have Monsanto’s Tarek Ismail picking nits before the jury comes in. He is quibbling over the future cost of the medication that Alberta has to take for the rest of her life. Seriously? Last time I checked we had two unanimous verdicts for plaintiffs in the eight or nine figure range. Is the cost of this medication really that big of a concern? It seems to me Monsanto must has bigger fish to fry. Judge Smith says she probably can’t rule in their favor on this one.
Our jurors file in. This has always been a casual crew and they are still looking casual (I see a tee-shirt) but they also seem more relaxed than ever. They are veteran jurors now, the responsibility has sunk in and with it a certain sense of entitlement. They know they hold all the cards in this nasty game of mass toxic tort litigation.
Dr. Raj Video Testimony
Before we get to the Pilliod’s testimony we finish off the video deposition of Dr. Kavitha Raj, Alva’s treating physician. Brent Wisner leads her through the diagnosis of Diffuse Large B–Cell Lymphoma (DLBCL), the type of non-Hodgkin’s lymphoma (NHL) that manifested in Alva’s spine and ilium. It was an aggressive form of the disease, and very painful—he was given a morphine-like drug that didn’t work and had to be hospitalized because of the pain on at least one occasion. (I can relate to a very limited degree—years ago I had kidney stones. The pain brought me to my knees as I screamed, “Take me to the hospital!”)
Brent questions Dr. Raj about several other conditions Alva had or has, and whether they could have been contributing factors to his DLBCL. His ulcerative colitis, a type of auto-immune disease, can indicate an increased risk. After rounds of a cocktail of chemo drugs, Alva is in remission. Brent asks if he could have “chemo brain” but the doctor says she would have to defer to a neurologist.
An unidentified Monsanto attorney cross examines Dr. Raj in the video. She says it is “possible” that the DLCBL is the result of a weakened immune system—any type of viral infection can affect the immune system, especially Epstein-Barr virus, to which she adds, “We all have Epstein-Barr virus.” Brent conducts a brief redirect asking for clarification on auto-immune disease and NHL. Dr. Raj explains that immunosuppressive-therapy is much more of a concern for NHL than having an auto-immune disease.
Testimony of Alberta Pilliod
Using a cane and steadying herself on the jury box, Alberta makes her way up to the witness stand. Mike Miller is lending a hand. I want him to get her all the way into the chair because she looks unsteady enough to take a spill.
After Alberta is sworn, Mike leads her through a brief biography.
- She was born in San Francisco and graduated high school there
- Went to Gonzaga University, studied abroad in Italy, and entered a convent to become a nun
- Told she was not nun material, got her BA at the University of San Francisco and became a teacher and school administrator
- Moved with Alva as he was relocated around by the Goodyear Tire Company
- Had a daughter in 1971 and a son in 1972, eventually moving back to the Bay Area to stay
Mike puts up pictures of her wedding and family events and then transitions to asking about how and where Alberta sprayed Roundup around their home in Livermore, as well as at three other properties. He asks how many gallons she sprayed per week at each property, taking notes on a marker board for the jury to see how it adds up to hundreds of gallons. Alberta did this spraying in shorts, a tee shirt and flip flops – no gloves or dust mask.
We are treated to a screening of three Monsanto TV spots for Roundup from 1989, 1991, and 2012. It is a fascinating look at the evolution of the western theme. The early ad is silly and shows a dweeby homeowner looking left, then right, as if a giant weed is stalking him. Then the poor dandelion in the driveway crack gets sprayed while a soundtrack of bullet ricochet pings is heard. This ad concludes with, “Buy now, and save $120 or get American Airlines tickets!”
The 1991 ad has two eight-foot high bottles of Roundup to illustrate the “big two for one deal.” But the 2012 ad is full on Sergio Leone spaghetti western. It has a guy in shorts shooting it out with more dandelions in his yard. He even holsters his spray wand with a twirl. Apparently, the target demographic is young, white, suburban homeowners, which is who Edwin Hardeman and the Pilliods were when they started spraying.
Mike asks Alberta if she saw these ads and relied on them as demonstrations of how to safely apply Roundup to weeds. She did. We are shown a 2002 Monsanto document in which the company was apparently weighing whether or not to recommend personal protective equipment (PPE) on the RU label, which it never did, of course.
The jury sees another document form 2108 that has something to do with the Prop 65 warning, but it is taken down when Monsanto objects. Emerging from the sidebar, Mike’s voice booms out, kind of stunning the courtroom, or me at least, “WERE YOU EVER WARNED THAT ROUNDUP COULD CAUSE CANCER?” No, Alberta quietly replies.
With that made crystal clear, Mike now guides Alberta through the difficult story of her initial illness, diagnosis, treatment, relapse, and miraculous remission of the DLBCL that had manifested as tumors in her cerebellum.
I have been wondering if there would be any cross examination by Monsanto, and there is, by Mr. Gene Brown. He puts up a photo of a label and reads a precautionary statement that says to wash with soap and water if RU gets on skin, and then asks how often Alberta read the label. It is clear where Brown is going to go with this, but that will happen at some point in the future.
Brown moves on to reviewing the Google Earth images of the four properties that are all taken during the dry season. The properties appear parched, at least from the vantage point of Google Earth, and Brown asks Alberta if they accurately depict the property, which she says they do. Ah-ha, I assume Monsanto is going to ask, again at some future time, why would such a parched landscape need to be sprayed for weeds? This is grasping for straws—anyone familiar with our semi-arid climate knows that a ground level view would reveal all sorts of “weeds” that thrive in drought conditions. I am, frankly, more worried about the label issue. As Alberta makes her way back to the gallery I hear her whisper to Alva, with a smile, “Your next.”
Testimony of Alva Pilliod
Brent leads Alva through a short biography:
- Born in Calexico to a Marine drill sergeant, Detroit cop, and Border Patrol father and X-ray technician mother.
- Joined the Army specifically to avoid the Marines, and was a cryptographer in Germany during the Cold War.
- Three degrees in finance and business and a career at Goodyear.
- Sailed solo from Hawaii to California, surviving a huge storm that threatened to sink his 30 foot vessel. Alva says he was a “bit concerned,” but mostly full of adrenaline working through various tasks to stay afloat/survive. (The Good).
Between Alva and Alberta, we get a glimpse of two happily married, well off, and very active people. I am struck by the similarity of the Pilliods and Hardemans. Both couples had the means to buy land in Northern California and enjoyed the challenge of developing the land with a lot of their own labor. One challenge involved dealing with weeds, and the manner in which that was accomplished changed happy lives into nightmares.
Alva has a condition that requires a “vagus nerve stimulator,” sort of like a heart pace-maker for the brain, he explains to us. Every five minutes it does its thing, but a side effect is that his baritone voice is diminished to a whisper for 20 seconds or so. An unintended consequence of this is I find myself paying even closer attention when he is whispering.
Again, we hear the woeful story of Alva’s severe pain before and after he was diagnosed. He describes how his doctor told him he had stage four cancer—he was relieved because he assumed that meant four on a scale of ten, not so bad. This is genuinely funny the way Alva tells it, but then he confesses, “I didn’t think I would make it.” (The Bad.)
Just as Mike had with Alberta, Brent asks how Alva’s life was before his diagnosis, and how it is now. We have learned enough about the Pilliods that we know their life was very good, and now, it’s not so good. The reality of it is crushing.
As if he knows we can’t take much more of this at the moment, Brent switches gears and asks Alva how he would actually spray Roundup. Brent puts on gloves and brings out the old RU bottle that Alva found in his storage shed—it was overlooked when he took all the RU to the hazardous waste disposal place. Brent actually pumps the bottle and sprays God-knows-what in front of the jury box.
Meanwhile a juror is trying to get the clerk’s attention—he has written a question on a slip of paper. Brent asks Alva if the label warns that RU could be carcinogenic. No. Without missing a beat, Brent asks if he ever saw a warning that safety data was based on fraudulent studies. Did I hear that right? This is classic Brent Wisner. And then, as if Monsanto counsel was not already about to blow their head gaskets, Brent brings out a new improved model RU wand sprayer that has a little cup on the end. Is the cup to contain the spray for safety reasons???
There is no time to come up for air as Brent is relentless – now going through dozens of Pilliod family photos ostensibly to get them admitted into evidence. It is really a 2-minute slide show of the Pilliod’s life together, flying by on the monitor. The compression of a lifetime into a few seconds is very moving, and Alva is rubbing tears form his eyes.
If you are still reading, we are not at rock bottom yet. This occurs when Alva is asked to describe Alberta’s illness and tells us how, during a difficult round of chemo, he called the hospital to check on her and was inexplicably told they “could not revive her,” so he thought she had died. Fortunately, it was just bad communication, although Alva was in very rough shape. There is some sort of objection from Monsanto during this testimony which is withdrawn. (The Ugly.)
Alva’s penultimate story is about his search for the common denominator between him and Alberta. “Why did we both get the same disease?” After testing for radioactivity and lead pain in the house, he eventually discovers information on the internet about RU being linked to NHL. And finally, he tells us that his dog died “a year after spraying the stuff,” and apologizes for crying in court. You get a pass on that Alva, you must feel like Monsanto nearly killed your wife, and they did kill your dog.
We take a break, and as soon as the jury is out the door, Big Guy Evans for Monsanto finally blows that gasket:
He is livid that Brent showed the jury a 2019 RU wand, AND, that a juror asked: “Why is Brent wearing gloves to handle the RU bottle?” AND he sprayed the jury, AND he showed the Prop 65 warning. That’s PREJUDICIAL AND IMPROPER!! THE CUP IS TO PROTECT NEARBY PLANTS, IT IS NOT A SAFETY DEVICE!! Somehow Big Guy has done the impossible and made Monsanto seem even less concerned with human safety than they were a minute ago.
In his defense, Brent tells Judge Smith, “I was not spraying the jury. Ha!” He also points out that the defense did not object, eliciting a lecture from Smith that he would not object in a similar situation with a plaintiff on the stand. Brent points out that Monsanto counsel objected 45 times yesterday and once today as Mr. Pilliod was describing how he thought his wife had just died.
Smith evenhandedly placates the Big Guy by instructing our jurors to ignore the 2019 model wand, and that they have no reason to be concerned about the RU bottle, it contains only water. Let’s break that last one down: Monsanto has managed to get the judge her-honorable-self to imply that a bottle that did contain RU would be of concern. Nice shooting boys, you shot yourselves in all of your feet! (Or maybe should I say: Well done Brent!)
There is no defense cross. There is no defense.
Testimony of Michael Pilliod
To sum up the Pilliod’s son’s brief testimony: My parent’s lives were very good, and now, not so good.
Video of Dr. James Rubenstein
Dr. Rubenstien is Alberta’s Stanford trained oncologist at UCSF. He testifies in detail about the nature of the DCBCL in her brain and the difficulty of treating it. Dr. Rubenstein looks like Steve Carrell and Robin Williams had a love child. He has an oddly constant smile on his face and laughs at inappropriate times. He reminds me of someone who is so smart that the attorneys are like dogs to him – just amusing animals with pathetically small brains. Or maybe he is reveling in the success of his pioneering treatment for the type of cancer Alberta had. He seems giddy describing its success.
The cross reveals that Dr. Rubenstein has an opinion about blood cancers and pesticides. He is asked how he became interested in this topic and explains that it was “obvious” from his experience treating cancer “on the wards.” Well, if Monsanto counsel had any bullets left, I would say they just shot themselves in the foot yet again. It’s been that kind of day.
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