OAKLAND, Calif. (CN) – In January 2015, Monsanto executive Dan Jenkins wrote an email to a number of his colleagues expressing concern about the International Agency for Research on Cancer’s upcoming review of glyphosate, the main ingredient in Monsanto’s popular weed killer Roundup.
“IARC- they are sending delegates (trying to get names) that are knowledgeable re- gly from EDSP [endocrine disruption] and oncogenicity standpoint,” Jenkins wrote.
Monsanto toxicologist William Heydens wrote back, “The one billion dollar question is how could it impact?”
For attorney Brent Wisner with Baum, Hedlund, Aristei & Goldman, who represents a couple claiming they both got non-Hodgkin lymphoma from decades of using Roundup, a $1 billion punitive damages verdict would send a strong message to Monsanto about its ethics in marketing a hazardous product.
“One billion is a number that changes things,” he said.
During closing arguments in the now-third trial over Roundup’s role in causing non-Hodgkin lymphoma, Wisner reminded the jury about that email exchange between Jenkins and Heydens.
He called Monsanto’s liability “the billion dollar question.”
His comments marked the end of a five-week trial that saw accusations of Roundup ads being targeted at jurors, eavesdropping on jurors in hallways, and even celebrity appearances by Daryl Hannah, Neil Young and Oliver Stone.
Wisner’s clients, Alva and Alberta Pilliod, claim they both got subsets of the lymphoma from decades of using Roundup. Alva was diagnosed in 2011; Alberta in 2015. Both are in remission, but their cancers have left them with lasting brain damage and other long term side effects.
They sued Monsanto after IARC classified glyphosate as a “probable human carcinogen” in 2015.
Wisner said the lack of warning on Roundup bottles robbed the Pilliods of their choice in whether to use the product.
“No chemical company can take that choice away from us,” Wisner said. They can’t not tell us information. And if they suspect a product may cause cancer, they have to give us a choice. If a husband and wife develops cancer, they have to pay.”
He recalled Alva Pilliod’s testimony from weeks earlier, where he told the jury that he received a call from the hospital saying his wife couldn’t be resuscitated. Alva thought his wife was dead.
“That moment didn’t have to happen,” Wisner said. “Their cancer didn’t have to happen.” The Pilliods would never have touched Roundup if they had known it was unsafe, he said. “They weren’t given that choice because of the choices Monsanto made over the last 40 years.”
Roundup was introduced to the market in 1974 after it was approved for sale by the Environmental Protection Agency. Wisner denounced a 1973 study by Industrial Bio-Test, the contract lab that performed the testing on which the EPA’s approval was based, as “scientific fraud.”
He cited a scandal where IBT was caught in an audit having falsified its data. Monsanto toxicologist Paul Wright suspiciously began working for IBT the year before Roundup was approved, Wisner said, and was later jailed for his role in the fraud.
“This was a product that was literally born in fraud,” Wisner said.
Tarek Ismail, Monsanto’s attorney with Goldman Ismail Tomaselli Brennan & Baum, reminded the jury during his closing statement that the IBT scandal was “not a Monsanto issue” and that “38 different companies were impacted.”
Wisner also pointed to Monsanto’s efforts to get glyphosate taken off of the EPA’s classification as a “Class C” possible human carcinogen by hiring pathologist Dr. Marvin Kuschner to find an additional tumor in a group of mice not dosed with glyphosate, saying Monsanto “bought and paid for” Kuschner’s opinion.
“This is undisputed evidence of the manipulation and fabrication of science,” Wisner said, showing the jury an email saying Kuschner had been hired to advise the company after the EPA found kidney tumors in male mice exposed to glyphosate. “When Monsanto doesn’t like the science they just hire a dude to make it up,” he said.
Wisner supplemented this claim with evidence of studies ghostwritten by Monsanto scientists, showing an email exchange between Heydens and toxicologists Michael Koch and Donna Farmer sent in anticipation of the IARC classification. They discuss the prospect of getting experts on genetic damage and exposure toxicity to add their names to Monsanto-written studies, saying, “we would be keeping the cost down by us doing the writing and they would just edit & sign their names so to speak.”
Wisner also emphasized Monsanto’s near-obsessive focus on retaining its “freedom to operate” by reducing or eliminating restrictions on selling Roundup. He showed the jury an email Bruce Chassy, a chemist and University of Illinois professor emeritus sent to Monsanto scientist Daniel Goldstein about an article entitled “GM Foods Are More Dangerous for Children Than Adults.”
Chassy said, “This like playing whack-a-mole at the carnival . . . Isn’t freedom of speech wonderful?”
Goldstein replied, “Funny you should say that:…. Donna Farmer (glyphosate tox) and I have been playing whack-a-mole for years and calling it just that. We were joking about it yesterday.”
Wisner said Monsanto went on to try to influence the EPA’s ongoing review of glyphosate, relying on help from Jess Rowland, a division director in the EPA’s Office of Pesticide Programs, who boasted about his efforts to delay another glyphosate review by the Agency for Toxic Substances and Disease Registry.
A September 2015 email from Jenkins to colleagues said, “Jess will be retiring from EPA in 5-6 mos and could be useful as we move forward with glyphosate defense.”
“If you had any doubts that the EPA as essentially working for Monsanto and doing their bidding, this email seals the deal,” Wisner said.
During his closing statement, Ismail said, “whatever [Wisner] wants to say about the EPA, there’s no reason to suggest that it applies to every other agency in the world,” he said, noting a litany of regulatory regulatory bodies worldwide that have found glyphosate to be safe, including Health Canada, the European Food Safety Authority, and the European Chemicals Agency.
He asked the jury to imagine the sheer number of emails that had been written on Roundup and sent by scientists at Monsanto over the last 40 years and accused Wisner of cherry-picking parts of documents that made Monsanto look especially bad.
He also assailed Wisner’s courtroom theatrics, honing in on one incident where Wisner picked up a bottle of Roundup to demonstrate how it was used. Toxicologist Dr. William Sawyer, who was on the stand at the time, reminded Wisner to put on gloves, which he did. Ismail characterized this exchange as a rehearsed tactic to instill fear in the jury.
“Fear over science, emotion over evidence. They’re trying to get you to think you can’t even touch the bottle,” he said.
While Ismail did not attack IARC’s classification, he said it “looked at a narrower part of the data” and did not perform a risk assessment on glyphosate exposure in daily life. He noted that the plaintiffs’ own witness, IARC member Dr. Charles Jameson, had written, “IARC is a hazard classification and not a health risk assessment.”
Ismail said both Alva and Alberta Pilliod were at a high risk of developing non-Hodgkin lymphoma based on Alva’s abnormally weak immune system and Alberta’s history of having an autoimmune disease. He referred to testimony from lymphoma experts Dr. Celeste Bello and Dr. Alexandra Levine, who both said that non-Hodgkin lymphoma has no known cause in 90 percent of cases. The Pilliods’ own doctors testified that they couldn’t attribute a cause to their diagnoses, Ismail said.
Ismail also reminded the jury that the plaintiffs must prove by clear and convincing evidence that Roundup was a significant contributing factor in their developing non-Hodgkin lymphoma. In deciding the case separately for each plaintiff, if the jury determines either Alva or Alberta would have gotten non-Hodgkin lymphoma if they didn’t use Roundup, they must find in favor of Monsanto.
In addition to the $1 billion Monsanto stands to lose in punitive damages, Wisner asked the jury to award Alva $47,000 for past medical costs and $18 million in non-economic damages. For Alberta, he asked for roughly $200,000 in economic damages and nearly $2.9 million for her future medical bills, as she’s on very expensive chemotherapy drugs that prevent a relapse. Alberta’s drugs are paid for at the moment, he said, but she could lose that assistance at any time.
Wisner noted that Monsanto’s current net worth stands at $7.8 billion, and that it spent $1.6 billion on research and development in 2017. Perhaps, he said, the company should spend some of that money on studying Roundup.
Jury deliberations begin Thursday.