SAN FRANCISCO (CN) - Attorneys for Monsanto tried to convince a federal jury on Friday that the Bayer AG unit isn't responsible for a California man's cancer, even though its Roundup weed killer is carcinogenic, by implying he disregarded the popular herbicide's safety instructions.
Testifying during emotional trial proceedings in downtown San Francisco, plaintiff Edwin Hardeman said he read the Roundup label "off and on" over the 26 years he sprayed Roundup on his Sonoma County property to kill weeds and poison oak. But on cross-examination, Monsanto attorney Brian Stekloff revealed Hardeman had testified in a pretrial deposition that he read the label at most twice during that time.
Seemingly taken aback, Hardeman said he didn't remember how many times he read the label but believed he had read it more than twice.
"It may have been three times, it may have been four times," said Hardeman, who claims Roundup caused his non-Hodgkin lymphoma.
Stekloff, of the law firm Wilkinson Walsh Eskovitz, countered by reading Hardeman's previous deposition testimony to the jury, in which Hardeman said he "may have read it once" when he first bought Roundup from a hardware store in 1986, "so I didn't need to read it again." And that he "may have looked at it again in Westside," referring to the Sonoma County property to which he and his wife moved in 1988.
"'I don't know if I looked at it again in Westside; I can't recall. But I'm thinking maybe I looked at it again,'" said Stekloff, quoting from Hardeman's deposition testimony. "'There's been no need for me to keep looking at it,'" the testimony continued. "'You know the conditions you spray it under, and I was familiar with that.'"
Earlier this week, on Tuesday, the six-person jury found Roundup partly caused Hardeman's cancer, advancing his trial to a second phase to decide if Monsanto is legally liable for the illness and how much it might owe in damages.
Monsanto's only chance for emerging from trial relatively unscathed hinges on proving in this second phase that Hardeman disregarded the herbicide's safety instructions. If Monsanto can convince the jury that it didn’t know Roundup was carcinogenic prior to 2012 – the year Hardeman stopped using it – and thus didn't require a cancer warning, they could find Monsanto isn't liable for Hardeman's illness and decline to award damages.
"'So why did you testify you only read it two times?'" Stekloff said Friday, reading a question by Monsanto's counsel from the same deposition testimony. The question referenced the fact that Hardeman initially testified that he had twice read the label, but later testified that he had read it three or four times, after conferring with his attorneys.
"'I couldn't quite reflect,'" Hardeman responded, according to Stekloff's read-back. "'I was looking at it differently because I was looking in terms of how it was sprayed.'"
But on direct examination, Hardeman said he would not have used Roundup had it come with a cancer warning.
"Let the weeds grow," he said.
"Didn't you need to get rid of the poison oak?" his attorney Jennifer Moore asked him.
"I did," Hardeman replied. "I didn't want to get cancer doing it."
Whether the difference between two and four readings will sway the jury is an open question. Both Hardeman and his wife of 40 years, Mary Hardeman, testified earlier Friday about their experiences dealing with cancer and chemotherapy, recounting heartrending details sure to lodge in jurors' minds as they hash out a phase two verdict early next week.
"You're always fighting the nausea, the mental anguish, the anxiety," Hardeman said of his six rounds of chemotherapy in 2015, adding that the treatments gave him severe vomiting and bone pain.
"It kind of came in waves," he said of the bone pain. "It resonates through your legs and your rib cage," he added as his voice trailed off.
Mary Hardeman testified that her husband's cancer diagnosis turned their lives upside-down. "You start thinking, 'Oh my God, he's the love of my life, and I could lose him,'" she said.
His first chemotherapy treatment caused his entire body to "blow up," she said. "I almost didn't recognize him," she said.
"Ed has always been the strong person for me, and I felt then that it was a role reversal," she said. "I had to be strong for him, and I had never done that before."
Hardeman has been in remission from non-Hodgkin lymphoma since 2015. The disease is unlikely to recur, but Hardeman is now at increased risk for developing other cancers, according to his expert oncologist. The couple live with the constant anxiety that Hardeman will get sick again, Mary Hardeman said.
"I wish to God he'd never gotten than damn disease, ever," she said. "I love my husband very much, and I want him to be around."
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