Juror speaks out against attempt to stop juries hearing evidence against Monsanto
Yesterday a high-stakes federal trial kicked off in California involving a man diagnosed with non-Hodgkin lymphoma who is seeking compensation from Monsanto/Bayer because, he claims, its weedkiller Roundup caused his cancer.
Even before the trial started, the judge’s behaviour was already making waves, prompting Robert Howard to write the article below, warning that Judge Vincent Chhabria was “already hindering testimony”. Howard was one of the jurors who back in August of last year, at the culmination of the first case brought against Monsanto – a state rather than a federal case – ordered the company to pay $289 million in damages for having acted with “malice” in hiding the dangers of Roundup.
Howard, however, probably never guessed the degree to which Judge Chhabria would hinder testimony once the actual trial got underway, leading to the Guardian headline Monsanto: judge threatens to 'shut down' cancer patient's lawyer.
The veteran journalist Carey Gillam, who live-tweeted proceedings from the Federal District Court in San Francisco on the first day, gave a blow-by-blow account of Chhabria’s extraordinary behaviour.
Gillam described how the plaintiff Edwin Hardeman’s attorney was interrupted by Chabbria from almost the moment she started her opening statement. Gillam tweeted: “Wow… losing track of how many times he has interrupted her.” And Gillam asked, “Will lawyers for Monsanto @Bayer get similar treatment?” They didn’t.
Chhabria’s interruptions of Aimee Wagstaff were relentless, with Chhabria even telling her to “move on” when she sought to explain the critical point that the US’s regulator, the EPA, only assesses the toxicity of glyphosate and not that of the whole herbicide (in this case, Roundup) that people actually use.
Chhabria then moved things to another level, as Gillam reported: “Judge now threatening to sanction plaintiff’s attorney and pondering if he should refuse to allow jury to see the plaintiff’s slides.” When Aimee Wagstaff asked to address his concern, Gillam said the judge simply cut Wagstaff off.
At a later point Gillam noted: “Attorneys sitting around me say this [Chhabria’s harrying of Wagstaff] is highly unusual.”
Gillam went on, “Judge now dismisses jury for break and then RIPS into plaintiff’s attorney – says she has ‘crossed the line’ and is ‘totally inappropriate’ in her opening statements. Says this is her ‘final warning.’”
Later still in Wagstaff’s statement, Chhabria threatened to sanction her. And by the end of the day Gillam reported that Chhabria was “ripping into Aimee Wagstaff again saying he wants to sanction her $1,000 and maybe the whole plaintiff’s legal team as well”.
Gillam also noted, “Just my opinion, but Judge Chhabria seems to speak to young woman attorney representing plaintiff [i.e. Wagstaff] in angry, belittling tones in contrast to his even-toned handling of the male attorney defending @Bayer Monsanto in Roundup cancer trial.”
Chhabria demanded that Wagstaff respond in writing to his threat to sanction her. In her submission, Wagstaff pointed out that Chhabria cut her off and objected to portions of her opening statement that even the attorneys for Monsanto did not object to. She also noted how she was asked to “move on” when there was no order prohibiting her from explaining the facts in question to the jury.
None of this came entirely out of the blue, which is what prompted Robert Howard, to write the article below. Howard had already seen his jury’s $289 million dollar award against Monsanto slashed by the judge in that case to $78.5 million. Indeed, at one point Judge Bolanos even threatened to throw out entirely the jury’s verdict against Monsanto.
That drew outraged responses, including from five of the jurors, who, like Howard, spoke out publicly to urge the judge to uphold the Monsanto cancer ruling. Bolanos eventually did, but she still slashed over $200 million off their award. In fact, throughout the first trial there were concerns about the judge’s behaviour, which it was alleged placed too many restrictions on what evidence could be placed in front of the jury.
But those concerns are as nothing when it comes to the restrictions that the federal judge, Vincent Chhabria, has been placing on the plaintiff’s legal team in the current case. As Howard notes, Chhabria has taken the highly unusual step of agreeing to a request from Monsanto’s attorneys to split the trial into two.
In the first phase, the jury will only be allowed to consider whether Roundup caused the cancer suffered by Edwin Hardeman. Although they will consider the science, the evidence of Monsanto’s efforts to manipulate regulators and the scientific literature, including the ghostwriting of scientific reviews, will either be excluded entirely or will be highly limited.
Hardeman’s attorney, Aimee Wagstaff, told the Guardian before the trial began that the limitations on evidence in the first phase meant the “jury will only hear half of the story”. “The jury will hear about the science,” she said, “but they won’t get to hear about how Monsanto influenced it.”
That evidence can be presented during the course of the second phase of the trial – but only if the jurors have concluded at the end of the first phase that Roundup was a substantial factor in causing Hardeman’s cancer, i.e. without fully understanding how the “science” they have been told about in the first phase was shaped by Monsanto itself.
This way of excluding evidence of Monsanto’s wrongdoing from at least a substantial part of the trial wasn’t allowed in the state case that concluded last August, and it has also been ruled out by the judge overseeing the next state case, which starts later this year. It's only Judge Chhabria that has agreed to it.
But even during jury selection, Chhabria appeared to act in an overtly partisan way. Gillam reports how Chhabria had several prospective jurors removed from the jury pool based on their written questionnaires, which indicated they had negative perceptions of Monsanto. But although Chhabria agreed with Monsanto’s request to strike these people from the jury pool, he refused a request from the plaintiff’s attorneys to remove a prospective juror who said he felt “they (Monsanto) typically are very honest and helpful to society”, and that he believed Monsanto’s Roundup was safe. Negative perceptions of Monsanto, it seems, are problematic, but not positive ones.
As Robert Howard reminds us, the stakes are high. Our democratic institutions are already under severe assault from corporate power, and Monsanto has amply demonstrated its ability to manipulate governments, public officials and regulators. That makes it all the more important that courts are able to hold powerful corporations fully to account.
The stakes are also high for the cancer victims bringing these cases against Monsanto. Howard writes, “Attempts to control juries should not be allowed to become the norm simply because a large corporation is fighting for its financial life, especially when thousands of people exposed to Roundup are fighting for their actual lives.”
Judge in Monsanto Roundup trial already hindering testimony
by Robert Howard
First published on Truthout, 24 February 2019
Anyone concerned about probable carcinogens in the environment needs to keep an eye on the trial of Edward Hardeman v. Monsanto Company, which begins on February 25, in the Federal District Court in San Francisco. A bellwether for future challenges against the company, the federal court has grouped hundreds of plaintiffs into this multidistrict litigation case. The plaintiffs have sued Monsanto claiming to have contracted non-Hodgkin’s lymphoma (NHL) after being exposed to Roundup, the company’s glyphosate-based herbicide. While there are an estimated 9,300 lawsuits against the chemical giant because of Roundup, Hardeman will be only the second NHL trial against Monsanto ever.
Judge Vince Chhabria has already granted an unusual motion by Monsanto to split the Hardeman trial into two phases. Characterized as “unheard of” by the plaintiffs, this way of trying a case is called bifurcation, consisting of a first phase that would have the jury determine if there is a preponderance of scientific evidence that Roundup caused Hardeman’s cancer. If the jury finds this to be true, they will then be allowed to decide if Monsanto knew of and attempted to hide the dangers of Roundup. To do this, they will be shown internal Monsanto documents that reveal how the company ignored or tried to discredit legitimate science and scientists, ghostwrote scientific studies and manipulated regulators. (I saw this evidence firsthand, because I was a juror on the first ever NHL trial, Dwayne Lee Johnson v. Monsanto.)
Monsanto’s attorneys asked the judge to bifurcate the upcoming trial because they think that jurors will be swayed by the emotions brought forth from seeing the documents exposing systematic corporate malfeasance. This is not the first time Monsanto has inferred that a jury might, or might have, reached a verdict based on emotions.
After the historic $289 million award to the plaintiff in Dwayne Lee Johnson v. Monsanto on August 10, 2018, defense attorneys asked Superior Court Judge Suzanne Bolanos to toss the jury’s nearly unanimous verdict claiming, in part, that they were “inflamed” by some of the rhetoric in the plaintiff’s closing argument.
Regardless, it is astonishing that Monsanto would ask to bifurcate the trial. This is tantamount to admitting that, yes, there is evidence of despicable behavior by managing agents of the company. Monsanto has good reason to keep this evidence from a jury, because it is certainly damning. In the Johnson trial, Monsanto objected to multiple attempts by the plaintiff to admit evidence. The plaintiff’s counsel was incredulous when Judge Bolanos would not allow any mention of California’s Proposition 65, under which Californians are warned that Roundup is a probable carcinogen.
Judge Chhabria is apparently realizing the mess he created by granting the bifurcation. On January 28, he backtracked and decided to allow some evidence of Monsanto’s alleged nefarious manipulation of scientists and regulators. Monsanto is now pointing to the Hardeman bifurcation to convince a Superior Court judge in Oakland, California, to bifurcate a similar lawsuit, Pilliod v. Monsanto. Attempts to control juries should not be allowed to become the norm simply because a large corporation is fighting for its financial life, especially when thousands of people exposed to Roundup are fighting for their actual lives.
Monsanto, which was acquired by Bayer in June 2018 for more than $60 billion, has taken a financial hit since the Johnson verdict in August. That kind of money, or the loss of it, exerts influence — think corporate lobbyists. But billions of pounds of Roundup have been sprayed on farms, next to roadways, in public parks, in lakes, in forests and around residences over the last 40 years. The use of the herbicide continued even after it was classified as a probable carcinogen by the World Health Organization in March 2015. These facts should push back against that influence.
It is fair to wonder what we can do to see that justice is served. There are no easy answers, but it is worth noting that after the judge in the Johnson case made a tentative ruling to toss that nearly unanimous verdict, several former jurors for the trial (including me) were so outraged that they publicly called Judge Bolanos out. To her credit, she backed off and upheld the verdict, albeit reducing the payout to Johnson to $78 million.
Those former jurors were, in fact, just regular citizens who decided their civic duty extended beyond the end of the trial and included protecting their verdict. In California, Superior Court judges can be recalled when the electorate is aggrieved. With federal judges, our only recourse may be to elect a president who we believe would make the kinds of judicial appointments we want, but however we do it, we have a constitutional right to free speech, and the ballot, to hold the judiciary accountable. The bottom line is that juries should be allowed to see all the evidence in these cases without interference by judges. With proper instructions from a judge, a jury is uniquely suited to weigh the evidence without passion or prejudice and is, ultimately, very difficult to fool.
Robert Howard is a husband, father, artist and builder in San Francisco, California. He was a juror in the trial of Dwayne Lee Johnson v. Monsanto during the summer of 2018. In October 2018, he wrote and publicly released a letter to the judge in that case protesting her tentative ruling to toss the jury’s verdict. Four other jurors followed suit.
Copyright: Truthout.org. Reprinted with permission.