"No basis or credibility behind the arguments used by Monsanto’s attorneys" – Juror no. 1
Following Judge Suzanne Ramos Bolanos's decision to consider taking away the $289 million damages award against Monsanto and overturning the jury's verdict that the company's Roundup weedkiller caused groundskeeper DeWayne Johnson's cancer, two of the jurors have written to the judge in protest.
Their letters are below.
1. Letter from Gary Kitahata, Juror #1
2. Letter from Robert Howard, Juror #4
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1. JUROR #1 SPEAKS! Letter dated October 14 from Gary Kitahata, Juror #1, to Judge Suzanne Bolanos following the Johnson v Monsanto hearing on October 10
Published on GlyphosateGirl Blog, October 16, 2018
https://glyphosategirl.com/?p=739
October 14, 2018
Hon. Suzanne Ramos Bolanos
Judge of the Superior Court
Re: Dewayne Johnson Vs. Monsanto Company
Case No. CGC-16-550128
Dear Judge Bolanos:
As one of the 12 jurors in the above-referenced case, I urge you uphold the original verdict on both punitive damages and future non-economic damages. Monsanto’s attorneys have asked you to serve as the “13th juror” and vacate a “flawed judgment” where the size of the award “demonstrates the significant prejudicial misconduct that inflamed this jury.” I see absolutely no basis or credibility behind the arguments used by Monsanto’s attorneys.
Our verdict was not flawed or inflamed by either passion or prejudice. If you had been the 13th juror in the room when we reviewed all of the witnesses and evidence submitted for this trial, I believe that you would have been as impressed as I was by the level of due diligence and rational discussion. We followed your instructions carefully and took our responsibilities seriously. We decided to assess punitive damages only after determining there was clear and convincing evidence that Monsanto had acted with “malice or oppression” and that such conduct was authorized by “one or more officers, directors or managing agents of Monsanto.” The amount of such damages was the result of careful consideration and discussion, based on the court’s instructions and definitions.
If you had been the 13th juror in deliberations, your negative vote would have meant at best a final tally of 12-1. Your vote would not have changed the verdict as the 13th juror, given that there were at least 9 votes for every count, but as the trial court judge if you grant Monsanto’s motions for JNOV and a new trial with regard to punitive damages then you will single-handedly nullify a large part of the jury’s verdict. I thought that such an extraordinary exercise of judicial power to quash a jury verdict was appropriate only in the case of jury misconduct or malfeasance. You may not have been convinced by the evidence, but we were. You and Monsanto’s attorneys may have been upset by some of Mr. Wisner’s more colorful closing comments, but we took them in stride and they played no part in our deliberations.
With regard to future non-economic damages, we certainly did assume a normal life expectancy of 33 years for a man of Mr. Johnson’s age in determining the amount of compensation. To assume otherwise would be horribly cruel, discounting future damages because of a life shortened to less than two years because of cancer. This would seem to be stacking the deck in Monsanto’s favor and in a sense rewarding it for shortening Mr. Johnson’s life expectancy and therefore the future non-economic damages due to him. And wasn’t the time for you to pose questions about life expectancy calculations during the trial, not afterwards?
This letter is my opinion alone and not a statement on behalf of other jurors. The jury as a whole delivered its collective opinion to you clearly and unequivocally on our last day of service on August 10. We have kept in touch since then and at the hearing last week I was one of 10 former jurors in the audience (including two alternates). I was dismayed to learn that day of your tentative ruling. I urge you to respect and honor our verdict and the six weeks of our lives that we dedicated to this trial.
Sincerely,
Gary Kitahata
Juror no. 1
cc: Fellow jurors
Plaintiff counsel
Defense counsel
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2. JUROR #4 SPEAKS! Letter dated October 11 from Robert Howard, Juror #4, to Judge Suzanne Bolanos following the hearing on October 10
Published on GlyphosateGirl Blog, October 15, 2018
https://glyphosategirl.com/?p=736
October 11, 2018
Hon. Suzanne Ramos Bolanos
Judge of the Superior Court
400 McAllister Street
San Francisco, CA 94102
Re: Dewayne Johnson Vs. Monsanto Company
Case No. CGC-16-550128
Dear Judge Bolanos,
First of all, thank you for your public service. And thank you for your letter asking me for any comments about the trial of Dwayne Johnson v. Monsanto. I was impressed with the manner in which you conducted the trial prior to the hearing on October 10 regarding the JNOV and request for retrial motions. (Ten jurors attended that hearing.)
It is with all due respect that I have to say that what transpired at that hearing was astonishing for several reasons. I feel it is my civic duty to address these reasons with her Honor.
First, on the differential analysis of Dr. Nabham. The fact of the idiopathy of NHL was made abundantly clear by more than one witness, as I recall. As Dr. Neugat testified, your Honor, there is a point where a scientist (and a juror I presume) has to use one’s head to assess the facts at hand. In other words, use common sense. Early onset NHL MF, with a relatively short latency, and a rare transformation: there certainly was an elephant in your courtroom room during the differential analysis and is called the “formulated product” that leached through Mr. Johnson’s skin during two soakings in the stuff.
Secondly, all parties agreed that the epidemiological leg of the tripod of causation was weaker than the other two, but a tripod with one weak leg stands nonetheless. Again, common sense.
Third, the whole discussion of non-economic damages was an embarrassment to the humanity of anybody who was there, except perhaps Monsanto. Any reasonable person in that courtroom, for the hearing or trial, would know that the $33 million in non-economic damages was awarded for the 33 years that Mr. Johnson is not going to enjoy. “Loss of enjoyment of life” was in your instruction to us, twice, as examples of non-economic damages claimed by Mr. Johnson. To alter this award on a technical issue would be a travesty. Common sense and decency.
Fourth, your instructions to the jury were crystal clear. You repeated many of the instructions numerous times. We had them in writing and referred to them often. You explained that failure to follow your instructions could result in “sanctions.” Your Honor, we did follow your instructions. Meticulously. Just one example: On the matter of Mr. Wisner’s opening and closing, they were colorful, but I had already disregarded what he said by the time I got to the jury deliberation room, as I had Mr. Lombardi’s opening and closing. Simply following your instructions.
Finally, we were presented with witnesses who were clearly managing agents, and not very credible ones indeed. (It seems to me their discussions of strategy, FTO, etc. put them solidly in the “corporate policy” category of your instructions.) You instructed that we could assess the credibility of witnesses and discount their testimony in whole or in part. This is the unwritten and unseen part of this trial. The court stenographer cannot transcribe the physical demeanor or tone of voice of witnesses, hence, your Honor, and we the jurors, are the eyes and ears of the court. To say that Monsanto employees, and at least one expert witness, were clearly uncomfortable would, in my opinion, be a vast understatement.
I can’t over-emphasize the importance of a juror’s judgement of the credibility of a witness. It is a gut feeling based on the very thing that makes us human, which is the ability to empathize, to feel, for better or worse, what another human, or witness, is feeling. It is a language without words that reveals the truth or lack of the truth of spoken words. (There in an injustice here if the JNOV occurs because an appeals justice will not have any record of our judgment on the credibility of witnesses that might assist her in making her judgement.)
All parties agree that we were an exceptional jury. We were, in fact, praised by Monsanto, and you, your Honor, for our attention, intelligent questions, etc. Yet our integrity, intelligence, and common sense has been cleverly and openly attacked by inference. The idiopathy issue, the science, the non-economic damages issue, what is and what is not evidence, the higher bar for punitive damages, credibility of witnesses: I got it. I believe my fellow jurors got it. With all due respect, your Honor, I don’t see how this can go both ways. Monsanto can’t ask for a jury, state that we intelligently, and with diligence considered only the testimony and evidence, and methodically weighed that evidence— and then turn around and infer that we must have ignored your instructions and did not comprehend the evidence! It just doesn’t add up.
The possibility that, after our studious attention to the presentation of evidence, our adherence to your instructions, and several days of careful deliberations, our unanimous verdict could be summarily overturned demeans our system of justice and shakes my confidence in that system.
I urge you to reconsider your tentative ruling and to not completely overturn the punitive damages and I also urge you to leave the liability intact.
Respectfully,
Robert Howard, Juror #4
CC: Monsanto and D[e]wayne Johnson (by email), Judge Bolanos by US Mail