Monsanto Roundup Trial: An Appreciation for the Attorneys, Jurors and the Scientists + A Look of What's Next

We owe a huge thanks to all of those who made Johnson's case possible and successful. It takes a huge financial risk on the part of legal firms to prove product liability cases and it can take years for these cases to pay off.

Speaking a year ago, Robert F. Kennedy, Jr. told an audience in Sonoma just how big a risk these glyphosate cases seemed before the discovery phase. But now it's starting to look like the good guys are winning.

A big shout out to Johnson's legal team for the common sense way in which they showed jurors the science behind IARC's cancer risk ruling - using three pillars of cancer risk assessment (shown here in the slides) - and for finding the incriminating internal Monsanto documents (in the discovery phase) that showed that Monsanto knew all along that its product was unsafe.

Pedram Esfandiary, associate attorney at Baum Hedlund Aristei & Goldman who worked on Johnson's case, said the jury should be commended for their work.

"They were incredible," he said. "Many of them took copious notes during the trial. One juror even filled five notebooks. And their questions were very intelligent ones. They were well informed and impartial."

The jurors ruled unanimously in Johnson's favor, a unanimous verdict was not required. The verdict required 9 out of 12 jurors to find in the plaintiff's favor.

German Agriculture Minister Christian Schmidt who
surprised colleagues by voting for glyphosate's renewal in
the EU (Politico.com art)

Today the German based giant Bayer (which just acquired Monsanto) saw its stock price drop more than 10%, an economic signal heard around the world. Even though German ag minister Christian Schmidt went rogue (against the wishes of his government) and surprised everyone, voting to extend glyphosate's license renewal in the EU, Bayer could not stop a Benicia school groundskeeper's trial from taking down their stock value.

In many ways, science is the real hero in all of this, and thanks is owed to the scientists whose work in toxicology, animal studies, epidemiology, and genotoxicity enabled IARC and others to come to the conclusion that glyphosate - as well as glyphosate-based formulations - can cause cancer.

The chemical ingredient glyphosate and the formulated products that contain it are now also setting legal precedents as society comes to grips with what science has been revealing. (And what Monsanto internally knew all along).

And most of all, plaintiff Dewayne Johnson is the central hero in this story. His suffering has taken a major corporation to task and overnight, stock markets and investors have sent a signal to Monsanto's new owner, Bayer, that this type of liability will not be tolerated. It stock price declined more than $11 billion in one day.

INSIDE THE SCIENCE BEHIND THE CASE

Science formed a lot of the basis for this case but no journalists have yet told the story of what the science in the case says.

Video is not available of the entire proceedings, but transcripts are and in these the scientists speak on the record.

The closing arguments for both sides offer a succinct summary of the arguments for and against Johnson, and a brief summary of some of the science, but not an in-depth scientific background.

To understand more about the science, videos of the entire "Science Week" proceedings held earlier in federal district court are available online here. In these videos, scientists take the stand and present lots of slides showing evidence.

Among the many scientists studied and published their data and conclusions should not go unmentioned. While science may at times feel obscure, there were landmark studies in this case that built one upon another. The deRoos epidemiology study was one of the critical ones. Bad science - like the Andreotti study - was found faulty by the jurors.

Some of the case's biggest champions were former federal health officials like Chris Portier. Portier has been the butt of Monsanto's bullying efforts, and they have tried repeatedly to discredit him.

In fact, in the trial's closing arguments, Monsanto's attorney once again alleged that Portier stood alone. In Brent Wisner's rebuttal (for Johnson), Wisner showed the international consensus that 100 other scientists agreed with Portier. As more evidence is presented, their numbers are growing.

In March,  Monsanto brought in the best talent money can buy to the federal hearings and tried to confuse the judge (which their attorneys partially succeeded in doing) by having their scientific experts pick apart minutia in the plaintiffs' experts' testimony. They used the same technique in the Johnson case - but to no avail. In fact, in his rebuttal in the closing arguments, Johnson's attorney Brent Wisner made their minutia strategy a focus, showing that while IARC's experts considered the totality of the evidence, Monsanto's experts did not.

Monsanto likes to point out that 800 studies have found no evidence of carcinogenicity. They do not quote the number of studies that have found evidence of carcinogenicity. The latest research from London and Italy is not reassuring about glyphosate's safety nor that of products that contain glyphosate in conjunction with other toxic ingredients:

"Studies comparing the toxicity of commercial weed-killer formulations to that of glyphosate alone have shown that several formulations are up to 1,000 times more toxic than glyphosate on human cells. We believe that the adjuvants are responsible for this additional toxic effect," says Dr. Mesnage in Science Daily.

In addition, the latest evidence from Dr. Mesnage's studies suggests, like other studies, that glyphosate alone is far more toxic at extremely low levels of exposure than was previously thought, causing fatty liver disease at tiny concentrations (akin to those found in tapwater). I was not aware of fatty liver disease, until I talked to HRI Labs director Larry Bohlen (his company runs tests for people who wish to know how much glyphosate is in their bodied) who said scientists are concerned that the spread of fatty liver disease is growing exponentially.

A recent report estimates the number of cases in the U.S. will grow 21% from 83 million in 2015 to 2030 to 100 million people in the U.S. (While this is mainly based on obesity as a risk factor, the data from Mesnage suggests there may be an acceleration of fatty liver disease due to exposure to glyphosate in water sources).

Scientists have petitioned governments to reconsider the legally allowable limits of glyphosate in place today. We are at a tipping point in terms of glyphosate and public health.

As I heard Dr. Blair state in his testimony in the federal hearings, there is a big difference between regulatory agencies (EPA, EFSA) which are subject to political influence, and purely scientific bodies, like IARC, which are independent. U.S. government has not been as quick to act as counterparts in Europe. And according to Portier, EFSA did not even follow its own guidelines when conducting its recent assessments about glyphosate safety.

MONSANTO'S CASE

In watching the closing arguments of Johnson's trial online (on Courtroom View Network; available for $99/month), what was surprising to me was how weak Monsanto's closing arguments were.

Monsanto's attorney suggested that Johnson could be cured through emerging stem cell treatment. The attorney also suggested that genetics alone could be responsible for his disease. Johnson's Stanford physicians never recommended this treatment. And Monsanto never responded to Johnson's repeated communications with medical advise about his diagnosis and condition earlier than the trial.

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Monsanto accused IARC of not looking at all the data, failing to mention that IARC, by policy, only views studies published in peer-reviewed scientific journals, meaning (ostensibly) that the data has been verified or vetted by peers. Monsanto pressured IARC's experts on this point, making it appear that IARC wanted to suppress data (data which was unpublished at the time of IARC's assessment).

In truth, Monsanto did not really have much of a case. After all, the most damning evidence of the company's knowledge of Roundup's carcinogenicity came from the company itself. (No one had to rely upon the EPA's original 1985 assessment that found it to be a carcinogen). And the jurors - by voting unanimously against Monsanto - saw that.

If you'd like to get the more of the background story on Monsanto's history of suppressing science on glyphosate, and its internal knowledge of the herbicide's toxicity, look to Carey Gillam's detailed book Whitewash: The Story of a Weedkiller, Cancer and the Corruption of Science, which last week won the Society of Environmental Journalists' (SEJ) top book award. It's a fascinating detective story that methodically shows the evidence that Monsanto manipulated regulatory agencies and science journals as well as the public reputation of those who opposed the use of the herbicide.

As SEJ's book editor, Tom Henry put it, the book is "a gutsy, compelling read from beginning to end, especially for those readers who enjoy...hard-nosed, shoe-leather reporting..."

The book is also available as an audiobook on audible.com.

WHAT'S NEXT: 800 CASES IN CALIFORNIA

Dewayne Johnson at work at the Benicia School
District, wearing only a permeable
Tyvek suit

This case is only the beginning. There are 4,000-10,000 more cases already pending.

Many are expected to take place in St. Louis, the site of Monsanto's headquarters, where the laws allow the plaintiffs to call company employees to testify. (Currently state laws prohibited lawyers from calling Missouri residents to cases in California).

According to Gillam's latest op-ed in the Guardian, "the team of plaintiffs' attorneys leading the litigation say they so far have brought to light only a fraction of evidence collected from Monsanto's internal files and plan to reveal much more in future trials."

Esfandiary says that his firm is representing both residential users and people who used glyphosate in their work. Surprisingly, most of his firm's clients are long term residential users. "Many have been using Roundup regularly for 10 to 20 years," he said.

One agricultural worker who has filed a suit is a retired farmer in Kern County. "He used a lot of Roundup on alfalfa and other crops," Esfandiary said.

Notably, one case is from Napa, where a woman who worked in vineyards has filed a suit alleging she got non-Hodgkin lymphoma from using the herbicide.