I’m covering opening arguments of the first federal trial over claims that Monsanto’s Roundup causes cancer this morning. The line to get into the courtroom was hella long.

 

Judge Chhabria is in the courtroom and asked attorneys if there are any issues he needs to address before bringing in the jury. Both sides are asking the judge to reconsider some pre-trial rulings, mostly re what’s admissible during the 1st causation phase of this 2-phase trial.

Judge Chhabria isn’t budging on any of his pre-trial rulings. He’s calling in the jury in a few minutes.

The jury is in the room. The judge informs them that the first phase of the trial will be solely on whether Monsanto’s Roundup caused plaintiff Ed Hardeman’s cancer.

Hardeman’s attorney, Amy Wagstaff, has begun openings arguments. It’s been less than 10 minutes and Judge Chhabria has interrupted her multiple times, asking her to stick to what’s at issue in phase one of the trial. Judge: “We’ll get to phase 2 when we get to phase 2.”

Monsanto’s attorney tried to object to Wagstaff as she was telling the jury they will likely hear from Monsanto employees. Before he explained his objection, the judge replied that he knows what the objection is and it’s overruled. Haven’t seen that happen at trial before.

Hardeman’s attorney has been going through studies showing that the chances of getting non-Hodgkin lymphoma go up more than 200% if an individual is exposed to Monsanto’s Roundup for over 10 days. The judge just interrupted her and asked for a sidebar.

Back from the sidebar and Judge Chabbria reminds the jury that what lawyers say in opening and closing arguments is not evidence. (It seems like the judge is pretty skeptical of those studies.)

The plaintiff’s attorney just brought up a 3-week-old study that concluded there is a “compelling link” between the active ingredient in Monsanto’s Roundup and increased risk for non-Hodgkin lymphoma.

Monsanto’s counsel objected to a reference to an email in which a Monsanto employee questioned what they could do to get the EPA to remove Roundup active’s ingredient from its Group C – Possibly Carcinogenic to Humans – category in 1985. The judge overruled the objection.

The plaintiff’s counsel quotes from an EPA letter to Monsanto in 1985, in which the EPA said it disagrees with Monsanto’s conclusion that Roundup shouldn’t be Group C based on a mouse study the company conducted.

The EPA told Monsanto in 1985: “We disagree with the registrant’s position…the registrant wishes to avoid false positives, while those concerned with the public health wish to avoid false negatives. Hence for this reason alone, Monsanto’s argument is unacceptable…”

After back and forth, the EPA told Monsanto in 1985 to redo its mice study to determine if the active ingredient in Roundup is carcinogenic, but Monsanto refuses, the plaintiff’s attorney says.

The plaintiff’s attorney notes that @IARCWHO concluded in 2015 that Roundup’s active ingredient, glyphosate, is a “probable carcinogen,” but Monsanto’s rep said a month ago there’s no evidence it causes cancer. She goes on, but the judge tells her not to get into IARC details.

The judge called a 5 minute break and the jury left the courtroom. He just admonished the plaintiff’s attorney for mentioning things that are outside of phase 1 of this two-phase trial.

Judge Chhabria: “You’ve crossed the line so many times in your opening statement and it’s obviously intentional.” The judge said its “totally inappropriate” and if she does it again, “I will tell you tell you to sit down and I will tell you your opening statement is over.”

We’re back. The judge said he has filed an order demanding the plaintiff’s counsel explain why she shouldn’t be sanctioned for “crossing the line” multiple times. He noted that the attorney’s arguments were inappropriate as were her slides that her team prepared.

The judge warns the attorney, going forward, “if I see a single inappropriate thing on the slide, I’m shutting you down.” He calls the jury back in and is reminding the jury again attorney arguments are not evidence.

To be clear, Judge Chhabria is upset because he thinks the plaintiff’s attorney has repeatedly made arguments that he explicitly excluded from being mentioned during the 1st phase of trial, which is only suppose to determine whether Monsanto’s Roundup caused Ed Hardeman’s cancer.

The fact that Judge Chhabria agreed to split this Roundup bellwether trial into two phases was a big win for Monsanto btw. Here’s a very good explanation of why that is from my colleague Daniel Siegal.

Monsanto Gets Gift With Two-Stage Roundup Bellwether

The plaintiff’s attorney was able to wrap opening arguments without getting in hot water with the judge again. Brian L. Stekloff of @WWETrialLaw is up now arguing openings for Monsanto.

Fun fact for those following me for the NCAA trial – the same law firm that is representing Monsanto in this Roundup trial, @WWETrialLaw, also represents NCAA in the Alston et al. v. NCAA case.

Monsanto’s attorney argues that there over 70,000 new cases of non-Hodgkin lymphoma a year and no one knows what causes it.

Monsanto’s attorney is arguing that Ed Hardeman’s own cancer doctor says he doesn’t know what caused his cancer and the attorneys is blaming Hardeman’s non-Hodgkin lymphoma on hepatitis C, which Hardeman’s counsel disputes.

Monsanto’s attorney tried to show multiple slides showing excerpts from their examination of Hardeman’s cancer expert. Judge Chhabria told the attorney to take the slides down. The judge said it is inappropriate to show excerpts from depositions during openings.

Monsanto’s counsel is citing multiple studies that purportedly show no links between Roundup’s active ingredient and cancer. He said one 2018 study shows that the NHL cancer rates between non-Roundup users and Roundup users are the same.

Monsanto wrapped its opening arguments. The court is taking a 5-minute break before the plaintiff calls the first witness, @UCLA professor Beate Ritz, who is an expert in epidemiology.

Dr. Ritz is on the stand. She’s explaining that she tries to determine what causes individuals to get sick by comparing chemical exposure rates and the multiple variables that could impact those rates.

@UCLA’s Dr. Ritz is criticizing two of Monsanto’s experts, arguing that they have no training in assessing occupational exposure and they’ve never gone into the field and asked people about their lifetime exposure to chemicals.

Trial is breaking for an hour lunch. The jury left the courtroom and Judge Chhabria asked both sides for written copies of their opening statements. The plaintiff’s counsel says she didn’t use all of her slides or notes based on the judge’s comment she had “crossed the line.”

Monsanto asked the judge to prevent plaintiff’s counsel from referring to a stat that the chances of getting non-Hodgkin lymphoma goes up more than 200% if an individual is exposed to Monsanto’s Roundup for over 2-10 days based on two studies.

The judge said plaintiff’s counsel “crossed a line” by including those stats in a slide in her opening arguments, but the judge said he wouldn’t bar an expert from interpreting the numbers in the two studies. “It is a bit of a tricky line,” he says. Court is breaking for lunch.

Judge Chhabria also took issue with a photo that the plaintiff’s counsel showed of Ed Hardeman and his wife during opening arguments. The judge said the photo was designed to show his family and not designed to show his property and that also crossed a line.

We’re back. The jury’s not in the courtroom yet. Monsanto’s counsel asked why the judge stopped him from referring to deposition testimony from the plaintiff’s expert during openings. The judge said doing that runs the risk of making the trial “much more jumbled and confusing.”

The jury is back in the courtroom and Dr. Ritz is on the stand. She says she “absolutely” thinks that Monsanto’s Roundup herbicide is capable of causing non-Hodgkin lymphoma in humans in the way it has been used.

Dr. Ritz is explaining to the jury what a “risk ratio” means, which is getting really technical and includes multiple charts. (The prof prefaced her testimony saying her students even have a hard time understanding risk ratios. I have a feeling the jury isn’t totally following.)

Dr. Ritz is testifying on a Swedish 1999 epidemiology study conducted by Lennart Hardell and Mikael Eriksson that showed a group exposed to glyphosate had a 2.3 risk ratio for NHL. But she noted that the study had some biased data and didn’t have enough cases, so they redid it.

In the new study, the researchers looked out more cases and concluded that glyphosate exposure had a 3.04 odds ratio for NHL. The professor says: “I think both studies tell the same story. But in the first study you couldn’t rule out random error.”

The court called another break. There should be about 30 more minutes of trial left before the court recesses for the day. ITMT, I’m taking a break from live Tweeting to write, but will update if there are any 💥.

Trial wrapped for the day. The plaintiff’s attorney hasn’t finished examining Dr. Ritz, so she will be back on the stand tomorrow morning at 8:30 a.m.

The plaintiff’s counsel, Aimee Wagstaff, filed her response tonight to the judge’s order demanding she explain why she shouldn’t be sanctioned for her opening arguments in the Monsanto trial, which the judge said “crossed the line.” It’s a fun read.

The upshot? She says reasonable minds can differ on what can be allowed in as evidence during this two-phase trial over claims Monsanto’s Roundup weedkiller causes cancer. It was a 💥 packed day in court (mostly due to Judge Chhabria). Here’s my recap:

Monsanto MDL Judge Threatens Atty Sanctions As Trial Starts

 

Day 2 of the Monsanto Roundup trial and the line into the courtroom is long – not hella long tho.

The judge is in the courtroom and said he’ll hold a hearing on the order to show cause on why Aimee Wagstaff shouldn’t be sanctioned after his criminal calendar today at 2:45 p.m. PST

The jury is back in the courtroom and Beate Ritz, who is an epidemiologist from @UCLA’s School of Public Health. is back on the stand, testifying on agricultural studies.

Ritz says there was a “major change” in the use of Monsanto’s Roundup weedkiller and its active ingredient glyphosate nationwide between 1993 and 2013, partly due to a change in farming practices and the marketing of glyphosate. Here are two maps she showed the jurors.

Ritz is criticizing a multi-phase agricultural study. From 1993 to 1995, researchers collected pesticide-use surveys from 54,000 farmers. The researchers then tried to follow up through phone calls in 1999, but they only received 62 percent response rate, Ritz says.

Ritz criticized researchers for filling in the responses for the 38% of farmers who didn’t respond and their questions were not consistent. She adds that she’s been teaching her students her criticisms of this study for 4 years before she was contacted by attys in this case.

Ritz is summarizing 5 peer-reviewed papers that have been published between 2000 and 2019 that all conclude the agricultural study in the ’90s had persistant exposure misclassification problems.

Trial is taking a 10-minute break. On a personal note, I have grown to despise wooden pews and believe sitting on them should qualify as a form of torture. Really wishing the federal courthouse took after SFO and had its own yoga room rn.

We’re back. Ritz is continuing to criticize the agricultural health study that started in the 1990s. The plaintiff’s attorney is really trying to drive home the point that this study is unreliable, because it mixes up exposure data and compounds the problem over time.

Plaintiff’s counsel wrapped the direct examination of Ritz, who finished by criticizing a stat that Monsanto presented in trial openings. Tamarra Johnson of @WWETrialLaw is up for Monsanto now cross-examining the prof. There have already been multiple objections and a sidebar.

Johnson has pointed out that Ritz hasn’t treated patients since 1989 and that in her lesson plans, she shows her students at least one slide that lists the advantages of the agricultural health study. Ritz concedes the point, but notes she has a slide showing disadvantages too.

Johnson is probing @UCLA’s Beate Ritz on slides she uses during her lectures, but she’s pushing back, repeatedly saying that they are not about glyphosate and there is more to her lessons than the slides. “You want to get my lecture, you have to come,” she tells the attorney.

Trial is breaking for lunch. We’ll be back in an hour, standby…

FYI – @RobertKennedyJr of @forthepeople was in the gallery this a.m. He also observed most of the 1st trial in state court last year that ended in a $78M Monsanto loss, which is on appeal. Kennedy is co-counsel in multiple cases in the MDL that haven’t gone to trial yet.

We’re back. Monsanto’s counsel is cross examining professor Beate Ritz. The attorney is questioning Ritz on details about the dates when various studies were conducted and their sample sizes, among other things. It’s unclear how the q’s contradict Ritz’s direct testimony.

The attorney points out that Ritz served as a member of an external advisory board who reviewed the Agricultural Health Study between 2001 to 2017 and served as chair, but questions why she didn’t bring up her issues with the study.

Ritz responds that when she became a member of the board at that point the study had already been going on for years and it was too late to fix its problems. “The baby had already fallen into the well,” Ritz said.

Judge Chhabria just called a 10 min. break and the jury left the courtroom.

Weird moment: Judge Chabbria just said he guessed plaintiff’s counsel, Aimee Wagstaff, wasn’t in the courtroom, but she raised her hand and said she is here. He responded, “Wishful thinking.”

The exchange elicited a loud “whoaaaaa…” from folks in the gallery. Wagstaff raised up her arms looking exasperated and said “Just for being here?” The judge responded that she had opened the door and then left the courtroom. It’s unclear what he meant by that.

The parties are back and they finished questioning Ritz. Just a reminder, Judge Chhabria will be holding a hearing within the hour on whether he’ll sanction Wagstaff for crossing the line during plaintiff Ed Hardeman’s openings by repeatedly mentioning restricted material.

The parties played a short videotape testimony from Monsanto official Daniel Goldstein, who defended the decades-long Agricultural Health Study as the “most robust and reliable data set” on the effects of pesticide use. And with that the jury recessed for the day.

Judge Chhabria set the sanctions hearing to start at 3 p.m. He also told the parties it’s not relevant whether plaintiff Ed Hardeman’s cancer is almost in remission for the first stage of trial and that shouldn’t be mentioned. Monsanto brought it up during openings.

The judge is back, and asks why Wagstaff shouldn’t be sanctioned. She has her co-counsel, Jennifer Ann Moore of Moore Law Group PLLC, representing her in the hearing, and a partner from her firm flew in from Denver for it.

Judge Chhabria said he thinks Aimee Wagstaff acted in bad faith in her opening statements and “blatantly” violated his pre-trial orders. He listed 6 things that Wagstaff said during her openings that were violations of his pre-trial orders.

Judge Chhabria says Aimmee Wagstaff’s “steely” response to him during openings is evidence she was clearly ready for him to challenge her. Wagstaff responded: “The fact I can handle you coming down on me in front of a jury..the fact I have composure should not be used against me”

Aimee Wagstaff says the judge is not being fair for using her composure against her and says she wants to argue the points for herself, because his sanctions order appears to have come down to what her “intent” was during openings.

Judge Chhabria called Wagstaff’s violations “premediated,” which Wagstaff’s co-counsel took issue with because she said it suggests her alleged actions were criminal when there’s no evidence she intended to violate the judge’s pre-trial orders.

The judge asked Wagstaff’s co-counsel how much money she thinks he should sanction Wagstaff, if he disagrees with her arguments. He notes that he’s sanctioned another attorney $500 for violating his pre-trial orders in openings and he says Wagstaff’s violations were far worse.

The attorney is saying no amount is appropriate, and Wagstaff shouldn’t be sanctioned. The judge is now saying every lawyer on the team should be held responsible.

The judge turned to the plaintiff Ed Hardeman, who he required to attend the hearing, and said he is ultimately responsible for his lawyers’ actions and “if the sanctions don’t work,” and their misconduct continues, he will dismiss Hardeman’s case with prejudice.

The parties are now holding an on-the-record sidebar. I have to say, this whole hearing has been bizarre.

The hearing is over. The judge didn’t rule, but I’d say it’s pretty obvious which way he’s gonna go.

What happened in Judge Chhabria’s courtroom today will stick with me for a while. But for those who haven’t been following the live tweets, here’s my recap of the second day of the first federal trial over claims Monsanto’s Roundup causes cancer.

Monsanto MDL Judge Slams Female Atty’s ‘Steely’ Composure

Judge Chhabria is back on the bench, and he requested a sidebar with the attorneys. He said he knows that there’s been “high drama” over the past two days, but he needs to discuss another drama involving a juror.

Last night, Judge Chhabria sanctioned Wagstaff and ordered her to pay the court $500 for her misconduct. He also said other members of the firm should probably be sanctioned, but he is postponing the issue to avoid distracting plaintiffs’ counsel from trial prep.

After a short sidebar, Judge Chhabria recessed to his chambers. He’ll be back in 5 minutes with the jury. It’s unclear what the juror drama is.

The judge is back, without the jury, and having another sidebar, It seems like there’s drama with 1 of the jurors. (The trial began with 9 jurors, but a juror was dropped after the first day, because his wife’s work hrs were cut the same day he was selected to serve on the jury.)

The judge finished the sidebar discussion and called in the jury. Whatever the issue was seems to be have been resolved. The plaintiff’s counsel are showing a video of Dr. Christopher Portier, who testified in Australia because he recently had a heart attack and can’t travel.

Portier says he worked for the government in public health for about 35 years and still is actively involved in advisory panels after retiring. Recently he partnered with Google to monitor air pollution in communities as Google vehicles were mapping streets in the Bay Area.

Portier said he has also worked with IARC in determining if glyphosate is a probable human carcinogen. He says it was the second highest classification in IARC’s 5-tier classification scheme.

Portier andothers wrote a letter saying @IARCWHO concluded that glyphosate is a probable human carcinogen. Portier acknowledged that 2 authors of the letter also worked on the Agricultural Health Study, which UCLA prof Ritz spent most of her testimony ystday trying to discredit.

Portier is giving a detailed explanation of a mice study that tested 400 mice for tumors after being exposed to glyphosate, which the plaintiff’s counsel mentioned during openings.

I’m taking a break from the Monsanto trial to sit in on the omnibus motion hearing in PG&E’s bankruptcy, which is also pretty high-stakes for many individuals who are seeking recovery for liability from the California wildfires. I’ll be back in a bit to update on Monsanto.

Dr. Portier is still testifying on direct about studies showing glyphosate’s link to cancer. It doesn’t look like he will get to cross examination today. Also, it appears that the judge has excused another juror – they’re down to 7 – although he never explained why on the record.

Portier is currently explaining the different quality of studies done on humans, in petri dishes, on mammals, etc. He says one of the best studies re tobacco’s link to cancer involved U.K. docs who quit smoking. Those who quit had lower cancer rates than those who kept smoking.

Trial is breaking for an hour lunch. Judge Chhabria is requiring everyone in the courtroom to stay here for 5 minutes to give the jury time to go to lunch and avoid running into them. ITMT, he’s ruling on a couple of Monsanto’s objections to Portier’s testimony.

Judge Chhabria overruled most of Monsanto’s objections. The judge argued w/ plaintiff’s atty Brent Wisner over whether Monsanto waived objections to Portier’s letter to European regulators about glyphosate’s carcinogenic effects. The judge didn’t think the objection was waived.

We’re back from lunch and Dr. Portier is continuing his direct testimony. He says after reviewing a range of studies, its clear that “glyphosate can cause cancer in mammals,” and can produce mammalian damage and oxidative stress in human cells.”There is very little uncertainty.”

Full disclosure, I dropped the ball on live tweeting yesterday afternoon, because I was juggling the Monsanto trial and multiple PG&E hearings in bankruptcy court, which are way too dense to live tweet.

Yesterday, Judge Chhabria attempted to explain his remark that Aimee Wagstaff’s “steely” composure showed she intended to violate his orders. Here’s my recap of trial and his explanation, along with screenshots of the transcript with his explanation.

Monsanto MDL Judge Sanctions ‘Steely’ Atty, Explains Remark

And in case anyone is wondering why no tweets today, the judge doesn’t hold trials on Thursdays.

I won’t be covering the Monsanto trial today – I’m tied up in another hearing – follow @helenchristophi for live tweets.

This weekend is brought to you by this bird. – at Ferry Building