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Dewayne Johnson v. Monsanto Company is the first Roundup cancer lawsuit to proceed to trial. Plaintiff Dewayne “Lee” Johnson, a 46-year-old former school groundskeeper, alleges exposure to Monsanto’s Roundup weed killer and its active ingredient, glyphosate, caused him to develop non-Hodgkin lymphoma (NHL).
Johnson is one of thousands of plaintiffs to file suit against Monsanto in state court over the alleged link between Roundup and NHL. More than 450 other lawsuits filed in federal court are currently pending in U.S. District Court for the Northern District of California. Since the start of the Johnson trial, Robert F. Kennedy, Jr., co-counsel to Baum Hedlund Aristei & Goldman, has provided running commentary of the events in court each day. Here’s his post for Aug. 2 on the Monsanto trial:
Monsanto’s six week trial which began June 22 with jury selection in San Francisco Superior Court has been a parade of mostly dark days for the chemical titan.
Tuesday, July 31, was a relatively bright oasis for Monsanto and by far its best showing so far in the dramatic Johnson vs. Monsanto trial. Monsanto’s attorneys called Dr. Lorelei Mucci, a cancer epidemiologist and associate professor at the Harvard School of Public Health (HSPH).
Despite its impressive name, the HSPH has earned an unsavory reputation for taking rich contributions from polluters in exchange for producing scientific “research” that fortifies corporate profit-taking. Big Tobacco, the chemical industry, Detroit automakers, corporate food processors, and industrial meat and grain barons have all turned to HSPH for corporate-friendly science anointed with the imprimatur of the Harvard name.
HSPH’s iconic founder, Fredrick Stare, proudly bore the sobriquet “Mr. Sugar” for his adamant defense of a sugar-only diet. Stare’s sweet tooth garnered HSPH millions of dollars in research grants from Kellogg’s, General Mills and Coca-Cola. In exchange for soda industry lucre, Stare obligingly provided the scientific conclusion that a cold Coke was “a healthy between-meals snack.”
Stare made his bones with cigarette makers in the 1980s as chairman of a notorious tobacco industry front group, American Council on Science and Health (ACSH). Stare took millions to deploy the Harvard name in defense of the cigarette czars. Stare’s partner at HSPH and his former student, Elizabeth Whelan who served as the CEO of ACSH, wrote a book, “Panic in the Pantry” with the tagline “Eat your additives.” The title was not ironic.
HSPH’s romance with dark industries is no rare historical artifact. Since 2012, the HSPH (now the Chang School) has pursued and received money from Monsanto, Dow AgroSciences, Bayer Crop Science (Monsanto’s new owner) ExxonMobil, the Koch brothers, Phillip Morris, Coca-Cola and Dr Pepper Snapple Group. Just last year, HSPH tarred itself with yet another national scandal by ginning up an eyebrow-raising study exonerating alcohol from adverse health effects in exchange for $100 million from alcohol beverage producers.
Under questioning by my colleague, Brent Wisner of Baum Hedlund Law, Mucci acknowledged that Monsanto paid her $100,000 for her testimony. It was money well spent. Mucci was a great defense witness. Charming and well spoken, she testified with the confidence and cool conviction of a veteran professor. But her flowing, eloquent testimony on direct examination contrasted starkly with her hedging, halting, combative and evasive responses on cross. She filibustered, stalled and dissembled as our time dwindled. A feisty polemicist, she nevertheless repeatedly claimed difficulty understanding Wisner’s simple questions. “Yes” or “no” questions made her recoil like a cat from water. Each attempt by Wisner to ask such a question launched her on frolicking detours and philosophical flights of fancy. She treated the jury to a cacophony of smokescreen, jargon-heavy double-talk, and dissembling that were nonetheless mesmerizing on account of her charm. She contested everything and conceded nothing. She even disputed that she was Monsanto’s expert:
Wisner: “When you decided to take on Monsanto as a client, had you read this document yet?”
Mucci: “I’m sorry. I don’t think I took Monsanto on as a client.”
Wisner: “Well, they’re paying you, right?”
Mucci: “I think they took me on as a client, just to clarify.”
Wisner: “Oh, okay. So you work for Monsanto now?”
Mucci: “No. I’m working—I’m providing expert testimony on behalf of this case.”
Epidemiological studies are always the most hotly debated genre because they are notoriously easy to fix. “Statistics don’t lie,” Twain’s saying goes, “but statisticians do.” My colleague, David Dickens of the Miller Firm, put it a different way: “Statistics are like prisoners; If you torture them, they will say anything you want.”
Corporate epidemiologists use an arsenal of statistical gimmicks to weaken statistical signals and flatten graph lines. Epidemiological studies are particularly simple to rig, when, as here, they are assessing rare cancers or vulnerable subgroups. Simply eliminating one or two sick individuals from the cohort can vanish a cancer signal altogether.
To achieve this goal, Mucci used the old con of correcting for so-called “proxy bias.” Here’s how the flimflam works: The six epidemiological studies that the International Agency for Research on Cancer (IARC) relied upon tracked populations exposed to Roundup and counted those individuals who received cancer diagnoses. When a cancer patient died of the disease, the researchers obtained their information from family members and doctors—the so-called “proxies.” Mucci maintained that “proxy data” is inherently biased and therefore unreliable. When she experimented with removing those individuals (dead cancer patients) altogether from the study, the cancer “signal” predictably disappeared. Correcting for “proxy bias” is a reliable way of dampening a signal since it always gets rid of the people most affected by the toxin—dead people that is! Using this gimmick on Monsanto’s behalf, she was able to report that there was no association with cancer in the primary epidemiological studies relied upon by IARC.
IARC based its conclusion that glyphosate is a probable carcinogen on a totality of the published, peer-reviewed scientific evidence—this evidence included animal and human epidemiological studies. IARC looked at six human epidemiological studies. All of them showed signals indicating an association between glyphosate and cancer. Two of them showed statistically significant increased non-Hodgkin’s lymphoma with increased use—a hallmark indication of a chemical causing cancer. Wisner got Mucci to concede she did not include these statistically significant doubling-of-the-risk rates in her presentation to the jury.
Another act of chicanery, she omitted the similar statistically significant dose relative response results reported by researchers from the North American Pooled Project (NAPP)—the only study she cited to dismiss the case control studies IARC and our experts relied upon. After pointing out this deceptive omission, Wisner showed the jury that Mucci also neglected to mention that the NAPP authors’ draft manuscript concludes that the NAPP data supported IARC’s conclusions!
Our witness, Dr. Portier, earlier testified that since nearly six of those human epidemiology studies relied upon by IARC showed an elevated cancer risk, the cumulative weight argued even more persuasively for carcinogenicity. IARC also reviewed multiple animal studies, which showed that glyphosate caused cancer in mice. Based on both animal and epidemiological studies, IARC deemed the evidence adequate to conclude that glyphosate is a “probable human carcinogen.” Mucci admitted she had never looked at the animal studies.
Wisner: “Now, you didn’t review any of the toxicology data in this case, right?”
Mucci: “No, I did not.”
Wisner: “And you didn’t review any of the animal data or mechanistic data, right?”
Mucci: “No, I did not.”
Wisner: “So you didn’t consider the biological plausibility of glyphosate being a carcinogen, right?
Mucci: “I reviewed it when I was reading the epidemiologic studies, so I’m aware of the knowledge, but I did not consider those in reviewing the epidemiology studies.”
The last answer of course was gibberish delivered with such earnest and duende that even I found myself wanting it to make sense.
In any case, she added, the low relative risk (1.2-3.04) found in the six epidemiological studies reviewed by IARC was far too weak to conclude that glyphosate is carcinogenic. On this point, Wisner confronted Mucci with an epidemiological study she herself had authored before she took Monsanto’s money. In that publication, she concluded that a single study showing a 1.25 elevated risk was alone enough to determine whether maternal smoking causes non-Hodgkin’s lymphoma. With Monsanto’s money in her pocket, the positive epidemiology, animal and mechanism study results of similar or greater power were suddenly insufficient.
Its unquestionable that epidemiology can show correlation but can prove neither causation or safety. But Mucci nevertheless claimed that her cooked and “corrected studies” showed that glyphosate is not carcinogenic. But she took it a step further. She swore adamantly that carcinogenicity could not be established without epidemiological studies. To rebut this assertion, Wisner showed her a section of her own book with graphs listing all known carcinogens and the studies that established their carcinogenicity. Many of the compounds listed as carcinogens by Mucci in her book showed no epidemiological data to support the cancer listing, only animal studies. Wisner’s questions on this point launched Mucci on another of her excited disputations. She indicated in her dissembling shuck and jive, that the list that she published in her own textbook was invalid because she had gotten the information from the IARC, an agency she characterized in her “Textbook of Cancer Epidemiology” as “the benchmark” cancer authority.
Wisner: “You can still determine whether or not something causes cancer without epidemiology, right?”
Mucci: “I don’t think that’s true.”
Wisner: “Okay. You wrote a book about cancer epidemiology, right?”
Mucci: “Yes, I have.”
Wisner: “That’s your textbook, Doctor?”
Mucci: “Yes, it is.”
Wisner: “It reads, ‘the classification of an agent as a Group 1 carcinogen in the International Agency for Research on Cancer, IARC, a Monograph program, can be used as a benchmark for the identification of human carcinogens.’ Do you see that?”
Mucci: “Yes.”
Showing her now the graph for her book listing carcinogens and the supporting studies he continues his questioning:
Wisner: “And here it says, ‘Group 1 agents with less than sufficient evidence in humans, but with strong mechanistic evidence.’ Do you see that?”
Mucci: “Yes.”
Wisner: “And you list all these different known human carcinogens that have inadequate or limited data, correct?”
Mucci: “Yes…”
Wisner: “So then you agree then that it’s possible to determine a carcinogen with inadequate or even limited epidemiology?”
Faced with this yes-or-no question she embarked on another confusing meander during which she seemed to disavow IARC, an authority she refers to as “the benchmark” for cancer science that she cites nearly 500 times in her book:
Mucci: “Well, it depends. What I’m trying to say is that there are certain organizations, such as IARC, that use certain criteria, and there’s other agencies that would use other criteria and they would weight the human data potentially differently. That’s why I’m trying to be clear that it really depends on what body is reviewing the evidence.”
(The “other agency” she is referring to here is U.S. Environmental Protection Agency (EPA), an agency that we now know Monsanto controlled through its puppet, Jess Rowland.)
Wisner: “So we can play around with words here, but if IARC can serve as a ‘benchmark’ and IARC has determined things to be known carcinogens with inadequate or limited epidemiology, then you would agree that it’s possible to determine a carcinogen with limited or inadequate epidemiology? And if you look at the next section, it says IARC, doesn’t it?”
Mucci: “Yes, it does.”
Wisner: “It doesn’t discuss any other agency or anything, does it?”
Mucci: “No, it doesn’t.”
Wisner: “Okay. You would agree IARC is a very prestigious organization?”
Mucci: “It is an organization that is important in cancer—dealing with cancer, yes.”
Wisner: “In fact, isn’t it true if you run a search on your book for IARC, you’ll find 475 references to it?”
Mucci: “Yes.”
Wisner: “If you do the same search for EPA, you get two?”
Mucci: “It might be more than that [It isn’t!], but yes, that’s correct.”
Wisner: “Okay. And that’s because in the world of epidemiology, the single greatest arbiter of cancer risk is IARC?”
Mucci: “No.”
And here she launched into another of her signature incomprehensible smokescreens.
Mucci: “Actually—but also I’d like to comment on another part of the textbook in which we comment that they should not be confused with the establishment of causation based on scientific considerations alone. I think that is an important comment that we also mentioned in the book.”
Wisner: “Doctor, my question had nothing to do with that.”
Mucci: “Yes, I know.”
Wisner was so amused by this admission that he turned to the jury and addressed Mucci theatrically, begging, alas, for one straight answer:
Wisner: “Let me ask the question again so I can at least have a dramatic ending!”
The jurors laughed as Wisner took his seat sporting a broad smile.
Here are key highlights from the Monsanto trial based off of Robert F. Kennedy’s daily entries:
Day 1, July 9: opening statements
Here’s a link to the opening statement for the Plaintiff by Brent Wisner of Baum Hedlund Aristei & Goldman:
“This case really is about choice. It’s about the right of every single person in this room to make a choice about what chemicals they expose themselves, their family or their children to…If you don’t warn, you don’t give someone the choice, and if someone gets hurt from that, or, God forbid, someone gets cancer, then I believe someone should be held responsible for that.”
Day 2, July 10: Did Monsanto suppress its own research?
On day 2 of the Johnson trial, the jury heard deposition testimony from Monsanto toxicologist, Dr. Mark Martens. Johnson’s attorneys asked Martens why Monsanto decided to abandon research conducted in 1999, by Dr. James Parry, an independent toxicologist Monsanto hired as a consultant after deeming him a top expert in his field.
Dr. Parry’s research concluded that glyphosate and the Roundup formulation may cause genetic mutations, a potential precursor to cancer. According to Martens, Monsanto did not allow independent scientists to review Dr. Parry’s research for further study after it was received, nor did the company give Dr. Parry’s research to the U.S. Environmental Protection Agency (EPA).
Day 3, July 12: Dr. Christopher Portier discusses the tumors in glyphosate animal studies, and the EPA’s initial findings in 1985, that glyphosate is a “possible” human carcinogen
On day 3, Judge Suzanne Ramos denied attorney Brent Wisner’s request that epidemiology/toxicology expert, Dr. Christopher Portier, be permitted to share his opinions before the jury concerning the amount of glyphosate exposure the state of California has determined causes cancer.
Wisner argued that a previous ruling allowed Monsanto witnesses to testify about foreign regulatory decisions to not list glyphosate as carcinogenic, so it did not make sense to deny the plaintiff the opportunity to discuss California’s own regulatory decision to list glyphosate as a chemical known to the state to cause cancer.
Nevertheless, Dr. Portier testified that his analysis of 13 rodent studies on glyphosate, and the findings of the International Agency for Research on Cancer (IARC) led him to conclude that exposure to glyphosate causes NHL. Portier said:
“If you have multiple tumors of the same type in multiple species, it adds to the strength of causality. By seeing lots of different tumor types hit in the same animal, the more important it is to the human causal.”
Day 4, July 13: Dr. Christopher Portier discusses flaws with U.S. and EU regulatory Evaluations for glyphosate
On day 4, Monsanto counsel, Kirby Griffis, tried to rattle Dr. Christopher Portier during cross-examination, confronting the expert witness with the EPA’s conclusion that glyphosate is not likely to be carcinogenic to humans. During testimony, Dr. Portier slammed U.S. and European regulators over their methodology in evaluating glyphosate.
For example, Dr. Portier testified that European Food Safety Authority (EFSA) missed 15 tumors in a series of rodent studies on glyphosate because the agency used the wrong methodology. During cross-examination, he said:
“My entire career been about using scientific evidence to make decisions, primarily about the carcinogenicity of compounds, and we’ve worked for years and years to do that appropriately. This was just so amazingly wrong in the way they were doing it.”
Day 5, July 16: fireworks during cross-examination as Monsanto lawyer attempts to discredit expert witness
On day 5, as cross-examination continued Monday, Monsanto counsel Kirby Griffis accused cancer expert, Dr. Christopher Portier, of basing his opinion that glyphosate and Roundup cause cancer on lucrative consulting contracts from law firms and not on scientific evidence.
“You said EPA was ‘so amazingly wrong;’ EFSA was ‘so amazingly, astonishingly wrong.’ ECHA (European Chemicals Agency) got one thing right,” Griffis said, attempting to poke holes in Dr. Portier’s prior testimony about U.S. and European regulators’ evaluations of glyphosate.
Undaunted, Dr. Portier responded: “It’s absolutely clear they’re not using [their guidelines] appropriately.”
During redirect, Dr. Portier also pointed out that a reassessment report for glyphosate conducted by a German agency that participated in EFSA’s review of glyphosate, contained verbatim passages written by herbicide manufacturers.
Day 6, July 17: Plaintiff Dewayne Johnson called Monsanto to ask if using Roundup caused his skin rashes, later diagnosed as non-Hodgkin lymphoma
On day 6, Monsanto executive Dr. Daniel Goldstein attempted to rebut plaintiff Dewayne “Lee” Johnson’s allegation that he failed to tell him whether exposure to Monsanto’s Roundup weed killer caused him to develop skin rashes over a significant portion of his body.
In his lawsuit, Johnson alleges he developed cancerous lesions on his body after using Roundup between 2012 and 2015, as part of his groundskeeper job, including two instances where he was drenched in the weed killer.
The jury saw video testimony from Dr. Goldstein, who was asked whether he returned calls that Johnson had made to the company in 2014, asking if exposure to Roundup created the widespread lesions all over his body.
Dr. Goldstein testified that he did not recall speaking to Johnson, though an internal Monsanto email shows that he intended to call Johnson.
“It would certainly be helpful to have spoken with him, and I don’t recall whether I did,” Goldstein testified.
Day 7, July 18: Tempers flare as Monsanto lawyer becomes visibly frustrated with cancer expert, Dr. Alfred Neugut
On day 7, oncology and epidemiology expert Dr. Alfred Neugut of Columbia University took the stand and things got a bit heated during his cross-examination. At one point, Monsanto attorney George Lombardi gave the court an inaccurate characterization of a statement Dr. Neugut had made. Dr. Neugut yelled back to Lombardi to stop “misquoting” him.
Another highlight was Dr. Neugut’s dismissal of the Agricultural Health Study, which Monsanto routinely points to as conclusive proof that glyphosate is safe. Like other expert witnesses for the plaintiff, Dr. Neugut told the jury about several key flaws with the study, including the imputation of data to make up for poor follow-up among the study’s subjects, which rendered the study a “throwaway.” Dr. Neugut said:
“You use imputation when you’ve got a screwed-up study with poor follow-up. Unfortunately, this is a case of measurings—with a gold scale, where it turns out the results just don’t turn out to be what they should be because there are so many problems.”
Day 8, July 20: Plaintiffs oncologist testified that exposure to Roundup “was a major contributing factor in the development of Mr. Johnson’s cutaneous T-cell lymphoma”
On day 8, the court heard from Cardinal Health oncologist and physician, Dr. Chadi Nabhan, one of Dewayne “Lee” Johnson’s medical witnesses. Dr. Nabhan testified that Lee Johnson’s exposure to Roundup “was a major contributing factor in the development of Mr. Johnson’s cutaneous T-cell lymphoma.”
One of Monsanto’s points of emphasis during the Johnson trial is how long it takes for cancer symptoms to manifest after exposure to a carcinogenic agent. Lawyers for the agrochemical giant say it takes 20 years, which would eliminate Roundup exposure as the cause of Mr. Johnson’s NHL.
Dr. Nabhan, however, told the jury that cancer symptoms can show in just one month. “There is no agreed-upon latency period with these types of exposures and these types of cancers,” said Nabhan, who specializes in lymphomas. “Some patients can develop the disease early on and some patients can develop it in 20 years.”
Day 9, July 23: Dewayne “Lee” Johnson testifies he “never would’ve sprayed that product on school grounds or around people if I knew it would cause them harm”
On day 9, Dewayne “Lee” Johnson and his wife, Araceli, took the stand and gave the jury a heartbreaking glimpse at how their lives have changed since Lee’s cancer diagnosis.
During her testimony, Araceli recalled when Lee first told her about his diagnosis. “I couldn’t believe it. My world just shut down,” she said, adding, “I only cried at nigt… it was very hard.”
In order to make a dent in the family’s rising medical bills, Araceli took a second job working 14-hour days while shuttling her two sons an extra 45 minutes to Napa Valley School District in hopes of providing them better educational opportunities.
When Lee took the stand, he testified in agonizing detail how he tried to hide the pain of his diagnosis from his family. “I’m trying to show my kids an example of how to deal with things and crying is not going to help you,” he said. “But I’m raising two little boys, so I’m teaching them to deal with pain and learn to deal with it and to deal with a situation if it comes to you. And sitting around sorrowful and crying is not going to help.”
Mr. Johnson also made it clear that he never would have used Roundup if he had known it causes cancer.
“I never would’ve sprayed that product on school grounds or around people if I knew it would cause them harm,” Mr. Johnson said in court on Monday. “It’s unethical, it’s wrong. People don’t deserve that.”
Day 10, July 24: Secret documents reveal Monsanto’s war on cancer scientists
On day 10, the jury heard video testimony from Monsanto toxicologist, Donna Farmer, who leads the chemical company’s deceptively named Product Safety Center.
Getting Farmer to testify proved to be a challenge. When our legal team sent a process server to subpoena her testimony, Farmer was observed fleeing through a backyard fence of her St. Louis home. We had the block staked out and successfully served the summons.
In her deposition, Farmer adamantly denied that her role at Monsanto was to protect Roundup until she was confronted with an internal company document showing that, in fact, her “number one goal is to defend and maintain the global glyphosate or Roundup business.”
Under questioning from attorney Mike Miller, Farmer admitted that her primary concern was regulatory compliance rather than public health, acknowledging that she orchestrated the ghostwriting of articles for supposedly independent scientists who agreed to defend glyphosate.
“There’s nothing wrong with that,” she said.
Day 11 & 12, July 25 & July 26: Disappointing rulings in Monsanto’s favor keeps important evidence from the jury
Judge Bolanos issued a series of rulings on Day 11 that favored Monsanto and prohibited plaintiff’s attorneys from presenting key evidence to the jury.
In one ruling, Judge Bolanos held that plaintiff’s expert, Dr. Charles Benbrook, could not offer any opinions or descriptions about a collection of Monsanto’s internal studies on Roundup’s health effects that are highly damaging to Monsanto’s case.
We had hoped to show the jury these documents, which involve transparently deceptive statistical machinations designed to cloud the results of Monsanto’s own glyphosate research. One important internal study shows that glyphosate causes cancer in mice. Another internal Monsanto research study detailed higher human skin absorption rates of the herbicide than reported elsewhere.
Day 12 started with more of the same; Judge Bolanos blocked us from mentioning Monsanto’s “TNO dermal absorption” studies, which found far higher rates of glyphosate and Roundup absorption through the skin than previously reported. The afternoon brought some good news, however, as plaintiff’s expert, Dr. William Sawyer, testified that glyphosate alone is “clearly” carcinogenic, and that Monsanto’s practice of adding chemical surfactants “increase and enhance [Roundup’s] carcinogenicity.”
Dr. Sawyer also noted that Lee Johnson’s job as Integrated Pest Manager for the Benicia School District required him to apply Roundup in ways that maximized his exposure. In fact, Dr. Sawyer testified that Lee sprayed more than three times more Roundup per hour than the average individual in Monsanto’s premier safety studies.
Day 13, July 27: Plaintiff’s expert testifies that Roundup uses a potent surfactant that dramatically amplifies toxicity
On Day 13, plaintiff’s expert, Dr. Charles Benbrook testified that EPA’s focus on glyphosate in isolation is a sham intended to gloss over the more important question of “whether the Roundup formulation itself, not just a single ingredient, is toxic and carcinogenic.”
According to Dr. Benbrook, Monsanto uses a potent surfactant in the Roundup formulated product that dramatically amplifies its toxicity.
The jury also heard videotaped testimony from Steven Gould, Monsanto’s head of west coast sales. In his deposition, Gould acknowledged trading emails with Greg Fernald, a chief marketer for Roundup’s California distributor, Wilbur-Ellis.
Gould complained to Fernald that California school districts were banning the use of Roundup on school grounds.
“It’s hard to understand how against all science and law they can do that—can do this,” Fernald responded. “We are being overrun by liberals and morons, sort of like a zombie movie. So we just have to start taking them out one at a time, starting with the elections next year.”
Unfortunately, since we are before a California jury, Judge Bolanos had us redact out all reference to California, but the video was still effective.