Brent Wisner Closing Argument for Pilliod Roundup Trial

​Roundup has been on the market for 45 years. It’s being sold at hardware stores everywhere. And you’ve seen mountains of evidence that has been accumulating during this time showing that it causes tumors in animals, that it’s genotoxic, that it resides in the human bone. And yet today they’ve never warned anybody about any of that. How does that happen?

Every single thing that causes cancer, a product that causes cancer, has had this moment, right, where the science was buried, where the company who was making the money hid it, and it finally gets caught up where the truth gets brought to the forefront, when jurors get to see all those internal documents, get to see the science that was buried, and set it straight.

This is that moment. This is that moment where you actually get to make them change their conduct. It’s pretty damn cool. This is, frankly, their day of reckoning.

So let’s walk through the last 40 years of misconduct. Here are just some of the issues of the evidence that you’ve seen in this case. I’m going to walk you through each one, because this all came into evidence. And I’m going to show you the documents that support each one of these points. I’m not making this up.

The first one is the IBT scientific fraud. Now, just think about this for a second. Roundup, its birth, its origin in our country, was fraud. That’s undisputed. The very studies that formed its original registration in 1974 were scientific fraud. I mean, just think about that for a second. This is not a product that has a glorious track record; it is a product that was literally born in fraud.

And here’s what happened. In 1971 a Monsanto toxicologist, Paul Wright, he leaves Monsanto and begins working at Industrial Bio-Test Laboratories.

Shortly after his arrival, they begin the first long-term study on rodents with glyphosate. Dr. Wright then leaves IBT and goes back to Monsanto in October of 1972.

​Shortly thereafter, Monsanto submits the result of that study to the EPA that was done by IBT. It was the only study to support the safe use of Roundup as it relates to carcinogenicity.

1974, the EPA approves Roundup.

Now, that’s how the story was supposed to go. But in 1976, everything changed. The EPA and the FDA discovered that IBT, and specifically Dr. Wright, were engaged in widespread scientific fraud and that the very study that supported Roundup or glyphosate’s use was invalid.

​Between 1976 and 1982, Monsanto knew their study was garbage. They knew it was based on fraud. And they didn’t do a single thing about it. We saw the evidence. They didn’t tell a single consumer, “Hey, if you want to use Roundup, that’s fine. But just FYI, it might cause cancer. We don’t know. The study that we used to prove it didn’t cause cancer turned out to be fraudulent.” They didn’t tell anybody. Instead, they continued to make lots of money selling it.

So between 1976 and 1982, Monsanto knows the data is fraudulent, and they just don’t care. They want to make money.

And 1982 is an important year because you know what? That is when Mr. and Mrs. Pilliod started using Roundup. They weren’t given a choice. They weren’t told, “Hey, that stuff you want to use? Turns out that the data supporting its safe use is fraudulent.” They were never told. And they said, if they had known that, they wouldn’t have touched it. Who would? That’s the start of the story.

​Then the very next story is almost worse, because we have mountains of evidence that Monsanto simply fabricates scientific evidence, stuff that we know is just not true. And the most important one was the very next study that they did.

So after that first mouse study was determined to be fraudulent, Monsanto then had to redo another one. And that was the Knezevich and Hogan study. That study showed that mice that were actually exposed to glyphosate had lymphoma, and it showed kidney carcinomas and adenomas. Those are tumors in the kidneys.

And this actually led, in 1985, to the EPA coming to a consensus that, because of this study, Roundup was, in fact, a Class C carcinogen.

So back in 1985, the EPA goes, You know what? This is possibly a carcinogen. We’re seeing tumors in mice exposed to it. Obviously, this is a problem.

​We’ve heard testimony from Dr. Benbrook that if, in fact, glyphosate was deemed a possible carcinogen in 1975, it would have destroyed their ability to sell it. Remember, he talked about the food tolerances and how that affects the ability of a company to sell it. Well, if it was a possible carcinogen, there wouldn’t be any food tolerances that would be permissible. Glyphosate’s story would have ended there.

So Monsanto does what Monsanto does. It started trying to figure out a way out of it. They met with the EPA February 22nd, 1985. This is in evidence. This is a document that is a Monsanto memorandum. It’s specifically talking about this consensus statement.

And in this meeting — they’re specifically meeting with the EPA. They’re having a meeting about this classification.

And in this meeting, the Monsanto employee -­ they actually put this down in writing. They said, “Short of a new study, we’re finding tumors in the control groups. What can we do to get this thing off Group C?”

Well, what does this mean? We talked about this in the opening and we talked about it during trial, but it’s been a while, so maybe you forgot.

So what we saw here in the kidney tumors was one kidney in the mid dose, three in the high dose, and none in any other.

That trend was highly significant and was a dose-response relationship. However, if they could find a tumor in the control group, it would entirely change the statistics. It would make it no longer significant or marginally significant. And if it’s marginally significant, then the EPA says, okay, fine, you’re good to go.

So he’s speculating, just out of nowhere, short of finding a tumor in the control group, how do we get this thing off Group C?

So they have this conversation. And then an EPA reviewer writes a memo. This is an important memo. It’s also in evidence.

​And, by the way, I should just point out, all of these documents here have these exhibits numbers right here, 073 or 1375. Those are actually going to be in your exhibit binders. So if you actually want to go back and read any of these carefully during deliberations, you can. So if you want to take a look at something closer, just write down the exhibit numbers as we’re going through, and you’ll be able to see it in your binders during your deliberations. I’m only showing you here evidence.

So there’s an EPA reviewer. Couple days later, shortly after meeting with Monsanto, he writes this memo. His name is Dr. Lacayo. He’s a statistician. And he’s concerned about what Monsanto is saying about the data.

​

So he gives the background. “Glyphosate feeding study on Charles River CD-1 mice generated renal tubular adenomas in male mice at the 5000 and 30000 ppm dose levels.” Those are the mid and high dose levels that we were talking about.

“The registrant (Monsanto) claims that the tumors are ‘unrelated to treatment.'”

​

And if you go through this memo, he kind of just completely and systematically debunks all of Monsanto’s arguments about control groups and statistical analysis.

But at the very end of it, he discusses a false positive. He says, “The registrant” — which is Monsanto — “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.”

​

And then he goes on to explain.

“Viewpoint is a key issue. Our viewpoint” -­this is the EPA — “is one of protecting the public health when we see suspicious data. It is not our job to protect registrants from false positives. We sympathize with the registrant’s problem, but they will have to demonstrate that this positive result is false.”

So they tell Monsanto, “Hey, you have to prove that this result is false. You have to find a tumor in the control group.”

He goes on to say, “Finally, we mention that none of the tumors occurred in the control or low-dose groups. Instead there was one at 5000 and three at 30000. This, together with the previous comments, makes it likely that there is a dose-tumor relationship for glyphosate.”

​

So what happens? Well, they hire a guy by the name of Dr. Marvin Kuschner. This is also in evidence, Exhibit 72. This is a memorandum. It’s dated April 3rd, 1985. This is an internal Monsanto memo.

And they say right here, “Senior management at EPA is reviewing a proposal to classify glyphosate as a Class C possible human carcinogen because of kidney adenomas in male mice. Dr. Marvin Kuschner will review kidney sections and present his evaluation of them to EPA in an effort to persuade the agency that the observed tumors are not related to glyphosate.”

​

So they already know that Dr. Kuschner is going to help them persuade the agency that the data is false. Prove it. The problem is — this is Exhibit 73 — Dr. Kuschner didn’t get the slides until a week and a half later.

How could they know that he would help them disabuse the EPA unless his opinion was already bought and paid for? This is the definition of manipulating science.

When Monsanto doesn’t like the results of its study, they just hire some dude to make some stuff up. He found a tumor that no one else could see in the control group. He made it no longer statistically significant. That Class C carcinogen rating, the thing that would have changed the entire history of glyphosate, sidelined because they bought and paid for an opinion by Dr. Kuschner.

​

It’s pretty remarkable, ladies and gentlemen.

There is absolutely no response to this. We’ve presented this evidence; we presented these documents. Monsanto didn’t bring a single person here to testify live to say, “Oh, no, no, no. There really was a tumor.” “Oh, no, no, no. That’s not what we did with Dr. Kuschner.” They just didn’t. This is undisputed evidence of the manipulation and fabrication of science.

Then in June of 1986, after a bunch of back-and-forth with the EPA on this very issue of this tumor that no one else had seen, they go, “Okay. Fine. In order to fully address this question, the agency is requiring that this study be repeated with a larger number of animals in each test group so that the statistical power of the study is increased.”

​

They say, “Okay. Fine. You say there’s a tumor. We don’t think there’s a tumor. Let’s just do it again and figure it out.” Right? That seems like a commonsense approach. But you know what? To this day, Monsanto has never done another mouse study, not one. Not a single mouse study has been done by Monsanto since.

​

And you know what? Every single one that has been done by other people, every single one shows malignancy lymphoma in the mice.

That’s a convenient coincidence, or is that a company that is scared of what they’re going to find when they actually study their product?

I mean, they did two studies. One was fabricated, IBT. And the other one, they had to make up data to get away from the bad results. And then they just stopped doing them.

​

I mean, they don’t want the Class C, Class A, Class B, or whatever carcinogenicity rating.

In addition to the whole tumor that was found — Dr. Kuschner’s tumor, you’ve also seen a lot of evidence of ghostwriting. And this isn’t me using the word “ghostwriting.” Okay? This is Monsanto themselves saying ghostwriting.

Let me show you. So here’s this study: Williams, Kroes, Munro, 2000. Okay? And it’s written by these two people. And it’s a safety evaluation and risk assessment of the herbicide Roundup. This was the seminal literature piece in 2000 dealing with the genotoxicity of glyphosate and Roundup. Genotoxicity, that’s cellular DNA damage. This was the paper. Okay?

Well, what do we know about it? What do we know about it? I asked Monsanto, “Please define ghostwriting.”

I think I have to wait five seconds.

(Video excerpts played in open court; not reported herein.)

MR.WISNER: So Monsanto defines unethical ghostwriting. Their head of product safety says that, when somebody writes it and another person signs their name, so to speak, that’s the unethical type. Okay?

Well, let’s look and see what happened. This is an exhibit, Exhibit 9 in evidence. And this is an email exchange. Dr. Koch is on it, same with Dr. Heydens as well as Dr. Farmer, all of the people who are responsible for glyphosate and the safety of Roundup at Monsanto.

​

And this is an email. It’s dated February 2015. This is in anticipation of the IARC meeting that’s going to be happening in March of 2015. And they’re discussing various ideas.

This last paragraph is pretty interesting. They’re talking about a project (as read):

“If we went full bore, involving experts from all the major areas, we could be pushing $200,000, maybe even more. A less expensive/more palatable approach might be to involve experts only for the areas of contention, epidemiology and possibly method of action (depending on what comes out of the IARC meeting) and we ghostwrite the exposure tox and genotox sections.”

“Ghostwrite,” that’s actually their word.

​

Then he goes on to say:

“An option would be to add Greim and Kier or Kirkland and to have their names on the publication, but we would be keeping the cost down by us doing the writing, and they would just edit and sign their names, so to speak.”

That is literally the definition of ghostwriting that Dr. Koch admitted to under oath. It’s verbatim.

And then look at what he says. “Recall, that is how we handled Williams, Kroes” — if you look at the last page. I actually showed this to Dr. Koch in his deposition. After I established what unethical ghostwriting was, I showed it to him. And here’s what happened.

​

(Video excerpts played in open court; not reported herein.)

MR. WISNER: Yep. That’s what they did. And their own head of product safety center is saying it’s unethical.

Now, Monsanto is going to come up here in a second and say, “Oh, hold on. Hold on. Hold on. We didn’t actually ghostwrite that. There’s a discussion at the very end of it that acknowledges that there was some advice given by Monsanto.”

But when he does that, ask Mr. Ismail to show you the emails that we showed you, where Bill Heydens is saying, “I grew gray hairs writing this.”

Do you remember that deposition? It’s a while back. I know it’s hard — maybe I’ll show it to you in rebuttal.

He says, “I wrote it.” He made dozens and dozens of edits to it, and he was never made an author on it. Because they knew that if a Monsanto employee was an author on this manuscript, it wouldn’t get the credibility it needed and it wouldn’t do the job they needed it to do.

And I’m not making this up. This Williams article was pervasive in manipulating the literature. We see it front and center in one of the most important studies in this case. In De Roos 2003, this is that study where they adjusted for 47 other pesticides. And even after fully testing and all that stuff, there was still a 210 percent increased risk. Okay?

​

It was statistically significant. It’s a very clear signal that it ain’t adjustments; there’s no problems with other pesticides; there’s a real problem with non-Hodgkin’s lymphoma.

But if you actually read the article, when they talk about glyphosate, they talk about all these other studies showing an association.

But then it says at the very end:

“These few suggestive findings provide some impetus for further investigation into the potential effects of glyphosate, even though one review concluded that the active ingredient is noncarcinogenic and nongenotoxic.”

So there’s all this positive evidence, but there is this one other piece of evidence out there we should consider.

Well, guess what Footnote 50 is? Williams, Kroes, and Munro. It’s the very article that Dr. Heydens says he ghostwrote. It’s the very article they claim and they acknowledge was unethical.

That’s what’s so insidious about ghostwriting. When you create false science, it infects the scientific literature. And when independent researchers like Dr. De Roos or other researchers who are trying to investigate this issue, they see these documents, they think, oh, they’re credible, when they’re just fabricated.

Remarkably, Dr. Koch, who admitted that what Bill Heydens was suggesting was unethical, he was part of the game. This is in evidence. It’s Exhibit 74.

And this is another email. This was shortly after the IARC monograph. And they’re talking about post-IARC activities to support glyphosate.

Michael Koch has sent an email to Bill Heydens and Dr. Farmer. And he says, “I agree with everything you’ve written and have a couple suggested additions. See green text below.”

And if you go down and look at what he has suggested, he has two additions. One is up here, I think was plan of action — I don’t — and the other was “manuscript to be initiated by Monsanto as ghostwriters.”

This activity of ghostwriting was so commonplace within Monsanto that they just referred to it as part of a bullet point plan of action. This isn’t a secret meeting about what they’re going to do; he’s straight up saying it, we’re going to do it.

And, actually, you heard evidence about this. They went on to later publish this Intertek panel. You heard a bunch of testimony from some of the Monsanto witnesses about that.

And, actually, because of the litigation, the journal had to issue something called an “expression of concern,” where they said “Monsanto didn’t disclose its relationship in these studies. We don’t think it’s been fully transparent. They haven’t explained to us why.”

This is all in Dr. Koch’s depo.

And when I asked Dr. Koch, I showed him the expression, I showed him, hey, look, each one of these authors who participated in this ghostwriting, they apologized. They said “I’m sorry for our errors and our participation in this project.”

And I asked him, “What about Monsanto? You’re the head of the product safety center. Will you apologize for Monsanto’s role in that?”

“Absolutely not.”

And that’s pretty terrible. You’re caught with your hand in the cookie jar. A responsible company goes, “You know what? We’re sorry. We created these studies, ignored them. My bad. It’s been retracted. Let’s take responsibility for what we’re dealing with now.”

Instead, they double down. And, to this day, we’ve heard no evidence that they have apologized.

We see in other documents, literally, the itemization of ghostwriting. So, here’s the battle plan from May of 2015. And they’re talking about responding to IARC. They’re talking about why do we need to do more? And they say there’s a severe stigma associated with an IARC classification. They need to provide air cover for regulators, which is a bit weird, but that’s what they’re saying.

​

They’re saying Prop 65, we’re worried about that. That’s the fact that the State of California has determined that Roundup is a substance known to cause cancer. And litigation support. That’s right. For this right here. They’ve got to make up science to support this lawsuit, these cases.

They talk about all these different ideas. They wanted to get an updated analysis on the AHS study. We all know that happened. That’s the Andreotti paper.

They want to do a weight of evidence plausibility paper. That also happened. Those are the Intertek manuscripts.

The genotox method of action paper, that also got published.

And when they discuss some of these projects, they specifically address their issues. For example, on the carcinogenicity in animals, it says “Other Costs: The majority of writing can be done by Monsanto, keeping outside spend costs down.”

They’re going to ghostwrite. That’s what they’re saying. And they don’t even know who the authors are going to be yet. And I think it’s really interesting, by the way, that one of the reasons for this publication was to respond to the initiation and promotion study of Roundup. We’ll get to that when we get to the general causation stuff.

And another project, they talk about the weight of evidence. They published a comprehensive evaluation of carcinogenic potential by credible scientists. It even names possible people who will put their names on it. And then it says right here, how much writing can be done by Monsanto scientists to help keep costs down? It’s everywhere.

What makes the ghostwriting, though, particularly insidious, for example, the Williams paper, that was actually published in 2000, right? That was published right around the same time that Monsanto had actually contracted with a guy named Dr. James Parry.

​

You might have heard the story. It was one of the depositions. This is the problem with these cases. We presented all our evidence. We did them back to back. We got all our witnesses in. And then they presented four witnesses over, like, two weeks. So it’s hard to remember everything that happened.

But there was a deposition that talked about Dr. James Parry. And he specifically was hired by Monsanto to look at is Roundup and is glyphosate genotoxic? He was an independent expert, world-renowned. And he issued a paper.

This is his first report. It’s dated February 1999. So, this is just before the publication of the Williams paper, the ghostwritten one.

​

And he says right here, “Overall data provided by the four publications provide evidence to support a model that glyphosate is capable of producing genotoxicity, both in vivo” — that’s in living creatures — “and in vitro, by a mechanism based on the production of oxidative damage.”

​

So, Monsanto convenes. This is minutes made by Dr. Farmer shortly after the report. It’s Exhibit 432.

​

And she says, “Review of Dr. Parry’s analysis. What is our next step? Dr. Parry concluded in his evaluation of the four articles that glyphosate is capable of producing genotoxicity, both in vivo and in vitro, by a mechanism based upon the production of oxidative damage. The data Dr. Parry evaluated is limited and is not consistent with other, better conducted, studies.

“In order to move Dr. Parry from his position, we will need to provide him with the additional information, as well as asking him to critically evaluate the quality of all the data, including the open literature studies.

“As a follow-up, Mark will contact Dr. Parry, discuss with him the existence of additional data, andask him to evaluate the full package. Mark will also explore his interests. And if we can turn his opinion around” — if we can turn his opinion around — “see if he’s interested in being a spokesperson for us for these types of issues.”

​

So, they go again. The four studies, let’s give them everything, right? Let’s show them all the regulatory studies, the salmonella studies, the bacteria studies. That will show them. That will convince them that it’s not genotoxic.

Well, it didn’t. He actually issued another report. It’s Exhibit 38. It’s like a 50-page document, so I’m not going to go through it in any detail right now. I don’t want to spend all day on it.

But the bottom line is, after looking at all the data, he again concludes, hey, guys, Roundup and glyphosate are genotoxic. And he actually specifically lists a bunch of actions that Monsanto needs to do, studies that they need to conduct to look at is it causing genotoxicity in exposed populations in the real world.

​

Well, Dr. Heydens writes an email. This is September 16, 1999. It’s after the second report. I’m just going to read the whole thing.

“However, let’s step back and look at what we’re really trying to achieve here. We want to find/develop someone who is comfortable with the genotox profile of glyphosate/Roundup and who can be influential with regulators and scientific outreach operations when genotox issues arise.

“My read is that Parry is not currently such a person, and it would take quite some time and money/studies to get him there. We simply aren’t going to do the studies Parry suggests. Mark, do you think Parry can become a strong advocate without doing this work?

“If not, we should seriously start looking for one or more other individuals to work with. Even if we think we can eventually bring Parry around closer to where we need him, we should be currently looking for a second back-up genotox supporter. We have not made much progress and are currently very vulnerable in this area. We have time to fix that but only if we make this a high priority now.”

So Dr. Heydens, one of the masterminds behind all this, goes, “Hey, guys, Parry is not toting the party line there. He wants us to do all these studies. That’s not happening. We’ve got to find someone else.”

Well, they did, because that’s — three months later, the Williams article comes out, saying the exact
opposite of what Dr. Parry said.

He’s saying it’s genotoxic. The article that gets published to the world says it’s not, no problems, safe as pie.

Well, here’s the rub: Monsanto admits they never shared Dr. Parry’s report with anybody, no one at the EPA. They didn’t publish it. So they have a person, a credible scientist, who’s independently looked at all the data and said, hey, your stuff is genotoxic. And they bury it. And, instead, they ghostwrite an article saying the opposite.

That, ladies and gentlemen, is a reprehensible conduct. That is the kind of stuff that leads to 45 years of misinformation. That’s the kind of conduct that leads to my clients getting cancer. Because the world doesn’t know.

​

Okay. You want to hear something even worse? The current EPA report, the one that Monsanto — by the way, I don’t know if you guys picked up on this throughout this trial, but the EPA doesn’t think it causes cancer. I don’t know if that was clear from the evidence or not. But because of this report, they cite Williams to this day.

They also actually cite the IBT study that we know is fraudulent and invalid, but, putting that weirdness aside, they actually cite the Williams study. It’s been permeating and infecting the science for decades.

We also heard about the TNO studies. And we didn’t spend too much time on it, but I talked about it with Dr. Sawyer. And what we have here is these are dermal absorption studies, right?

​

And we have this study, 2002, that was just shocking amounts of absorption, 10 percent. Right? And we know these DTL ones right afterwards. These are the ones where they cooked and then froze the skin. They basically turned it into leather and then said, hey, nothing gets through.

​

So, this is the last honest study they started doing. And it showed a 10 percent dermal absorption rate. And I asked Dr. Sawyer about this. This is straight from the transcripts.

“Q. What did the TNO study show?

“A. The TNO study is very interesting. It revealed a statistically and significantly higher rate of dermal absorption when actual Roundup was used as opposed to just pure glyphosate. And it described that that 10 percent level is because they used pure Roundup. And that, for the very reasons I talked about this morning, in terms of enhancing dermal absorption, there it is.

“Q. Was that study completed?

“A. Nope, it was terminated.

“Q. And that was terminated after they had the results showing what?

“A. 10 percent dermal absorption.

​

“Q. And would that — give me some context. How does that compare to the dermal absorption rates that have sort of been forming in toxicology before that?

“A. Well, it would have been more. It would have been 3.3 times the governmental limit.

“Q. Now, this TNO study that was terminated after they saw those 10 percent absorption rates, was it ever published in the literature?

“A. No.

“Q. All right. I guess when we talked about it being terminated, who terminated the study?

“A. Monsanto.”

​

So we have this absorption study that shows everything we know about Roundup’s penetration of human skin is wrong. And it’s way more permeating. It gets way into the skin. It gets into the bones.

They bury it. They don’t send it to a single person. They don’t publish it. That, ladies and gentlemen, is how you manipulate science. You make sure you only publish the stuff you like, and you put in a deep, dark dungeon the stuff you don’t.

We also heard about POEAs. And we also heard Dr. Sawyer talk about this. And he explained that there’s alternatives — POEA, that’s the surfactant in the Roundup that we use here in the United States. It’s the surfactant that was in the Roundup that the Pilliods used. Okay? And I asked him:

“Q. Are there alternatives to this stuff?

“A. Yes.

“Q. And are those alternatives less toxic?

“A. Yes.”

I mean, there’s numerous amount of nonionic surfactants. One that we’re all familiar with that I use every morning and evening is my contact lens solution. That is a nonionic surfactant, and it’s harmless.

But another example is the European Union. They now use a polyethoxylated ether amine instead of the tallow amine. Tallow amine is the POEA, by the way, which is about, I think — I believe, from what I’ve read, it’s about 40 percent less toxic than the POEA used in the U.S. by Monsanto. So, certainly, there’s alternatives. And they’ve been around a long time too. But not in the U.S. They’re just not used here.

​

And I asked:

“Q. Had the Roundup that Mr. and Mrs. Pilliod been using contained a less toxic surfactant than POEA, would that have reduced their risk of contracting non-Hodgkin’s lymphoma?

“A. It would have significantly reduced the actual potency of the dose they received by a good margin.”

​

So there is the surfactant that they sell in U.S. And they admit they’re banned in Europe. We know that they’re more toxic, highly more toxic, that they have a synergistic effect with glyphosate, making it more genotoxic.

This evidence, by the way, is undisputed. We heard this from Dr. Sawyer. And they didn’t offer anybody to say it’s wrong, because they can’t. The studies show what the studies show. They have this.

So the question you might ask is, well, why are they doing it? If there’s a less hazardous alternative, why are they selling it?

Well, they actually have an email about this question. It’s Exhibit 471. And in this email, somebody from Europe, Richard Garnett, is asking Dr. Heydens, “Anyway, there are nonhazardous formulations, so why sell a hazardous one?” This is specifically about POEAs, and it’s a confidential document.

​

​

And Dr. Heydens responds, a couple of comments.

First, “There’s still a strong sentiment in St. Louis that we need to continue to defend tallow amines, even though we prepared to switch over because of their impending demise. The reasons to do so:

“1. Domino effect on ether amines. Defend other world areas to the best of our ability.

“Second, I was in Brazil all last week. They’re very worried about this coming across the Atlantic to their part of the American hemisphere.

​

It’s not a question of could they have used an alternative. They knowingly used a more toxic one, one that their own scientist calls more hazardous. And the reason why is because they’re worried about sales. They’re worried about it affecting how things happen here in the U.S.

The definition of punitive damages, punitive malicious conduct, the judge read it. It’s a knowing disregard for public safety. There couldn’t be clearer evidence of that here.

And we know that that specifically applies to the Pilliods because they used this stuff for 30 years. They used the toxic stuff for no reason.

And Dr. Sawyer told us, if they hadn’t been using it, if they had used a less toxic one, maybe with some protective gear, if they were warned about that, gosh, they wouldn’t have gotten sick at all.

So that’s the POEA situation. Let’s talk about the warnings.

You know — well, I’ll just show you. There’s a document, Exhibit 26. This is all in evidence, ladies and gentlemen. I’m not making this stuff up. Okay?

​

This is from 2002. And it attaches an email. And it says here is a document on operator exposure for MON2139. MON2139 is Roundup.

And it says right here, “Operator exposure for MON2139. The purpose of this document is to evaluate the operator exposure when spraying Roundup under UK conditions.”

​

So what they did is they actually did a study with people spraying Roundup in the real world and measured their exposures. They wear little patches on their skin, and they’re seeing where it absorbed. And then they went and measured how much absorption was actually happening. It’s a pretty commonsense way of measuring, hey, what’s the proper exposures that people experience when they’re spraying stuff?

​

And the next logical step is to make recommendations for protecting yourself. This is Monsanto’s own study. And they recommend:

“Wear suitable protective gloves and face protection (face shield) when handling or applying the concentrate.

“Wear suitable protective clothing (coveralls), suitable protective gloves, rubber boots, and face protection (face shield and dust mask) when spraying through ultra-low-volume application and mistblower equipment.

“Wear suitable protective clothing (waterproof jacket and trousers), suitable protective gloves, andrubber boots when using low-volume nozzles in knapsack sprayer, handheld rotary CDA sprayers, and handheld weed wiper equipment.”

​

They’re saying, when you spray this stuff, you have to wear protective gear. You got to wear rubber gloves. You got to wear coveralls. You got to wear boots. And there’s more recommendations for another formulation in this document.

And we know Monsanto heeds this stuff because this is their own internal safety data sheet. This is what they tell their own employees who are spraying Roundup. And this is lawn and garden products, this is Roundup Weed & Grass Killer Super Concentrate, the very stuff the Pilliods sprayed. This is from 2010. This is even before IARC or any of that stuff.

And what do they say here? They have a whole section on personal protection. They talk about wearing eye protection, chemical goggles. For skin protection, wearing resistant gloves. Wear a face shield. Wear chemical-resistant clothing and footwear.

​

They did this study. And then they tell their own employees “Protect yourself against our product.” But then you look at the label that people actually get, people outside of Monsanto, people like the Pilliods. There’s no discussion of protective gear at all. There’s no discussion of cancer.

And, in fact, they admit it. They never warned anybody about cancer. They’ve never warned anybody to wear gloves. It’s just admitted. It’s not even a disputed fact.

And then they put out commercials like this.

(Video excerpts played in open court; not reported herein.)

MR. WISNER: This is how they’re advertising it, shorts, short-sleeved shirts. Of course Mrs. Pilliod used shorts and short-sleeved. She saw this ad. She believed it was safe.

I mean, just think about this. Their own operator exposure studies are saying “you have to wear chemical boots and chemical overalls,” and they’re telling the public to wear shorts. Reckless? That’s deliberate and knowing disregard for human safety.

And you know what? It directly links to the Pilliods because they — they believed these guys. They didn’t get to see all the internal documents. And when they sprayed it, they didn’t take any protections.

If they had, their exposure would have been dramatically reduced. It wouldn’t have gotten under their skin. It wouldn’t have gotten into their bones. It wouldn’t have caused the mutations that lead to lymphoma.

THE COURT: Counsel.

MR. WISNER: Break time?

THE COURT: Break time.

All right. We’re going to have a ten-minute break.

So I would remind the members of the gallery, please do not talk to any of the jurors.

Jurors, please don’t talk to anyone about anything. There are lots of people around today. So I’m just warning you to not speak about anything or to anyone. Okay?

Thank you. We’re going to start at ten of the hour.

(Recess taken from 10:40 a.m. to 10:58 a.m.)

THE COURT: All right. Mr. Wisner, you may resume.

MR. WISNER: Thank you, Your Honor.

So we’re going through the first stop here on our road map, the 40 years of deliberate disregard for consumer safety. We’ve gone through IBT, fabricating science, bearing studies, POEAs, refusing to warn. And there’s a difference between failing to warn and refusing to warn. Right?

​

One of the things that I think is really important to understand how the law works is that the obligation to warn rests with Monsanto, not California EPA, not the EPA. What that label says and what it does not say is their choice and their choice alone.

So when I talk about refusing to warn, I’m talking about the fact that Monsanto, notwithstanding what they know about the risks, notwithstanding what they know about protective gear, and notwithstanding the fact that they tell their own employees about these things, they don’t tell consumers. That’s their choice.

The last topic is kind of the catchall one. It’s a term called “freedom to operate.” And it’s actually, again, not my term. This is Monsanto’s own use. It’s their own sort of corporate terminology. And there are — I was going through it last night — like, 70 exhibits that deal with FTO in evidence. And I could literally go through all of them, but I would never get done in time. So I’m going to go through some of the important ones that I think illustrate what it is.

​

I think the one that is probably the most important is their FTO document specifically about lawn and garden. This is the very stuff that the Pilliods used. They say what we want to be known for; what we want to not be known for. Obviously, they want to not be linked with safety concerns or endless legal challenges or reputational stuff. That’s just common sense. Nothing exciting here.

But they start talking about what “freedom to operate” means and how they do it. And they frame it as risk versus return. What freedom to operate is is reducing or eliminating restrictions. That’s what it is. It’s about being able to sell their product without any restrictions, without any labeling, freely, and without regard to human safety. Because what they care about is making money.

​

And, ladies and gentlemen, there’s absolutely nothing wrong with making money. This is America. We have capitalists, big corporations, that make lots of money. That’s great. But we require that you make money honestly. And when you sell a product, you have to tell people about the risks. That’s just how it works.

​

So it’s all about winning the argument. Right? And in this graphic, they’re visually showing us exactly what they do. They create stuff to change the balance. And we see this, for example, in some of the regulatory studies. Right? We have all these human genotox studies and actual human lymphocytes showing genotoxicity. I’ll look at that later. They haven’t disputed any of that. They can’t because positive results are the positive results.

​

But instead of looking at that issue, they counter it with bacteria studies on salmonella. They do dozens and dozens of those because they know they’re negative. It’s not a mutation of salmonella. We know that. And then they go, “You see? It’s not a mutation.”

Dr. Levine did that the other day. She kept going to the salmonella studies and saying they’re all negative. That’s just manipulating the science. That’s fabricating red blocks to balance the scale.

And then they actually specify what they do: Actively tell our story, build the right relationships, let nothing go, and discomfort our opposition.

You notice what’s missing from this. Protecting consumers, ensuring the safety of our product. No. They don’t care a lick about that. That’s not what freedom to operate is about. It’s about letting nothing go and discomforting our opposition.

We have examples of that everywhere. This presentation ends with the key question, return on investment. How much money are they going to make by the actions that they take?

Let’s look at some of the ways that we see this discomforting opposition or attacking scientists has played out in some of the evidence we have in this case.

There’s an interesting document, Exhibit 4. We call it the “whack-a-mole document.” You’ll see why in a second. It starts off with an email by Dr. Goldstein. He’s a lead of medical sciences and outreach.

​

This is back in 2010. And this scientist reaches out to Dr. Goldstein and is — and this is in regard to a news article about GM foods are more dangerous for children than adults. And it says, “Dan, this is like playing whack-a-mole at the carnival. Jeff’s back again. We’ll be working on this too. Isn’t freedom of speech wonderful? Bruce.”

​

So this is somebody is raising a scientific concern, a safety concern. And this researcher says, “It’s like playing whack-a-mole. Isn’t freedom of speech great?”

Now, what would the responsible company respond to this? Let’s just imagine this before we get to the response, what would the responsible entity. “Hey, comparing safety data about children’s health is not whack-a-mole; it’s something that we have to seriously consider and think about. Let’s look at the study closely. Let’s figure out a way to see if there’s an actual problem here, because we owe that to the consumers who Monsanto is making billions of dollars off of every year. Okay. That would be the responsible thing to do.

Here’s Dr. Goldstein’s response. Two comments. “Funny you should say that. Donna Farmer, glyphosate toxicology, and I have been playing whack-a-mole for years and calling it just that. We were joking about it yesterday.”

​

I mean, you have to sort of, for a second, realize what this is saying. Okay? We have a pediatrician, a doctor at Monsanto. He’s literally -­his training is to treat children. He’s given a study that shows a risk in children, and he’s saying, “Yeah, we call it whack-a-mole.”

Do you know what whack-a-mole is, by the way? It’s a carnival game where the mole pops up and you whack it. That’s how they’re treating science. They’re playing whack-a-mole. They’re discomforting the opposition, letting nothing go.

We have another example of FTO. This is an email exchange. I’ll get to the email in a second.

So in 2008, the Eriksson study. Right? You’ve heard about the Eriksson study. I’m not going to spend a lot of time on it. Don’t worry. But in this study in 2008, it shows statistically significant doubling of the risk. It also showed that, if you used it more than ten days, there was a 236 percent increased risk and, if you used it for more than ten years, it’s 226. So it’s consistently shown a dose-response as well as a never ever analysis.

​

Now, Monsanto says ignore this. It’s not fully adjusted for other pesticides. And I believe, when you fully adjust, the 200 goes down to 150. So it’s still elevated. It just becomes no longer statistically significant. But I’m not going to fight about that right now. I don’t think we need to.

So this study comes out. This is a reputable scientist, an independent researcher who’s done their own epidemiological study, raising serious concerns about glyphosate.

​

This gets forwarded to Dr. Farmer. It’s from Dean Nasser. It’s a press release that’s specifically discussing the thing. See if I can do this. It says right here, “Exposure to glyphosate or MCPA can more than double one’s risk of developing non-Hodgkin’s lymphoma according to a new epidemiological study published in the October issue of the International Journal of Cancer. The case control study finds a 2.02 odds ratio for exposure, 2 times the chance of contracting the illness due to glyphosate.” That’s the Eriksson study. And it discusses the science and what it means for consumer safety.

​

Donna Farmer’s response: “Thank you for forwarding this. We’ve been aware of this paper for a while and knew it would only be a matter of time before the activists pick it up. I have some epi experts reviewing it. As soon as I have that review, we will pull together a backgrounder to use in response.”

Here is their bottom line: “How do we combat this?”

She says right there at the bottom, “Avoid carcinogenic herbicides in foods by supporting organic agriculture and on lawns by using nontoxic land care strategies that rely on soil health, not toxic herbicides.”

​

So this article ended, “Hey, guys, maybe we should have sustainable agriculture and maybe we should not use toxic pesticides.” Pretty reasonable idea.

Her response: “How do we combat this?” Not “How do we engage these scientists? How do we look at the study closer?” It’s, “We’re hiring experts to respond to it. How do we fight it?” It’s like playing whack-a-mole, letting nothing go, discomforting the opposition.

During the deposition of Dr. Reeves, which we played over several days — and it was a very long deposition. I apologize. But there was a lot of evidence in that testimony. I showed him document after document after document where studies were coming out and Monsanto was reacting to it pretty inflammatorily. I don’t want to go through all that. I just don’t have time.

But I think the quintessential FTO strategy was what Monsanto did to IARC. Okay? So let’s look at this document. This is a revised IARC reactive messaging. It’s to Dr. Farmer and Dr. Heydens. We’ve seen this a lot. It’s Exhibit 8. It says, “Please find a revised IARC messaging.”

​

Notice the date. It’s February 12, 2015. This is before IARC has met, voted, published anything about any scientific decision. Okay?

All they know right now is that they’re going to meet. And if Monsanto truly believed, truly believed, that their product was safe, there would be nothing to worry about. Right? They would look at it and say, “Hey, it doesn’t cause cancer. You’re good.” Right?

But this is before the meeting. And here’s what they say: “This component represents the orchestrated outcry that could occur following the March 3rd IARC monograph expert meeting.”

​

Before they know any results, before they know why IARC thought what they thought, they already have a plan in place to orchestrate outcry.

There could be no clearer evidence of malicious intent, because if anybody were to say, “I’m going to attack that organization before I hear what they have to say no matter what they say,” that is not honest. That is — that’s freedom to operate. Anything that restricts it, regardless if it’s true, must be attacked. We orchestrate outcry. This isn’t the only document. There are, like, dozens of these. Right?

Here’s a couple more. This is the plan, also before the IARC meeting, February 23, 2015: “Preparedness and engagement plan for IARC carcinogen rating of glyphosate.” This is in February, before they meet.

It says right here. “The objective is to protect the reputation and FTO of Roundup.” So we’re talking about freedom to operate. This is their term.

​

And their first bullet point after IARC, “Orchestrate outcry with the decision.” They’re already planning to attack them. They haven’t even seen what they said. They haven’t even voted, they haven’t even met yet, and they’re already going to take them out.

This is another document that’s in evidence. And it’s IARC follow-up. They talk about their goals. Specifically, they want to invalidate the relevance of IARC.

It goes on to say, “To protect regulatory freedom to operate.” It affects registration. They don’t want any bans. Proposition 65 here in California. The SDS revision, the Safety Data Sheets revision that they have to do. International requirements, if any.

​

Number 3, litigation defense prevention. Stopping this moment from happening. I mean, that’s the fear. Right? Of all the things that they’re worried about, they’re worried about this happening right now, where a young lawyer, who’s not afraid of them, gets to look at all the documents and talk to 12 or 14 jurors, show them the documents and say, “Good grief.” This is their nightmare.

​

But we live — I mean, we live every day seeing things around us that are wrong. Okay? Things that we — that’s just not right, that shouldn’t happen. And we’re all powerless to do anything about it. We are. We can’t do anything. I spend my life going, “I wish I could do something about it. I wish I could help this person. I wish I could help that person,” but I can’t.

But right now, that’s not the case because you are seeing something that’s wrong, and you are able to actually do something about it. It’s pretty cool.

All right. So we have more and more documents. I think this is a pretty interesting document because I think — I forget the exhibit number. Sorry. I stopped putting them up there. It’s 524.

​

I put this one because it’s an old adage. Right? You can judge a person by the company they keep. Right? Very common adage.

This is actually the email from Dr. Goldstein, February 2015, before IARC has met. And they reach out to this ACSH group. Okay? You heard testimony about this from Dr. Goldstein. He told you these are the people who said tobacco was safe, lead was safe, benzene was safe. These are the people that you go to when you know you have something that causes cancer and you want their support. Because they’ll give it to you. You pay them for it.

And he says it right here. “While I would love to have more friends and more choices, we don’t have a lot of supporters and can’t afford to lose the few we have. I am well aware of the challenge with ACSH, and I know Eric has valid concerns. So I can assure you I’m not all starry-eyed about ACSH. They have plenty of warts. But you will not get a better value for your dollar than ACSH. They are working with us to respond, if needed, to IARC.”

​

Tells you about the company that, when they are worried about their freedom to operate, they go to these guys.

That’s 45 years of deliberate disregard for consumers’ safety. And there’s actually more. I can literally go on with their misconduct for hours and hours and hours. But I start off with this because this is the stories that we didn’t have experts on. Right? These are stories that you have pieced together, and I wanted to make sure you saw it because the evidence is there in spades.

Let’s get on with the road. This is how we got there. Right? 45 years of misconduct.

​

The first big question is can Roundup be a substantial contributing factor in causing NHL? This is the general causation. Does Roundup cause cancer? That’s the big question. God, we’ve heard a lot of testimony about this. I have to address some of it. I won’t spend too much time on it.

The first thing, though, you have to

understand is that the burden of proof, when it comes to proving general causation is not beyond a reasonable doubt. The judge instructed you — I believe it was Instruction Number 8 or 9. But we don’t have to prove absolute certainty. If we had to prove absolute certainty, no plaintiff could ever succeed in any trial because there’s always room for probability, unsurety.

What we have to prove is that it’s more likely than not. And we talk about 51 percent. It could be

50.01 percent; it could be 50.0001 percent. It doesn’t matter. The point is just a feather scale tip in our favor, and we win.

​

That’s the legal burden. That’s why we ask so many questions about it in voir dire, is we wanted to make sure you were comfortable with it. So you’re in there, and somebody says to you in the deliberation room, “I’m just not sure about that,” that’s not the requirement. Right? So if you go, “I’m not sure; I think so,” that’s 51 percent. That’s more likely than not.

And so don’t forget the burden. Okay? Because Monsanto — and, in fact, Dr. Levine and Dr. Bello, they were all using really high levels of certainty. “Has to be a known cause of cancer, and there’s only three that we know about ever.”

That’s not how the legal system works. We don’t have to prove a known cause of cancer. We have to prove a substantial factor. This is the jury instruction:

“A substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor. It does not have to be the only cause.”

​

That phrase, “it does not have to be the only cause,” is really, really important. So what does that mean? Think it through a little bit. It just has to be something that reasonably contributed to the harm.

So, for example, with Mr. Pilliod, you guys believe Dr. Levine and think that he had this compromised immune system. And although she didn’t say it caused it, she got pretty close to saying it caused his cancer. If you believe that but you also think, “You know, I think Roundup contributed to it; I think it was a substantial contributor to the cancer,” we win. That’s all we have to prove. That’s the law.

And all these risk factor and causation distinctions are all just a smokescreen to confuse you from the simple, simple fact.

And this is at the 51 percent burden. So we don’t have to prove absolutely certainty; we have to prove more likely than not that it was a substantial contributor. That’s it. If we prove that, if you believe that to be the case, it’s over. We win.

What do we know? We know the California EPA has determined that glyphosate is a substance known to cause cancer. We’ve heard that.

​

We’ve heard about these three pillars of causation. And I think it’s pretty amazing that, essentially, these three scientists, the only three scientists that addressed causation in any way by Monsanto — Dr. Bello, Dr. Levine, and Dr. Mucci — they just looked at epi.

​

​

They didn’t look at any of the animal studies that I went through in detail with Dr. Portier. We went through about tumors. It was a long time ago, but we went through a lot of frickin’ science on that stuff, showing the malignant lymphomas. We went through all those genotox studies and human lymphocytes. Positive. Positive. Positive. I’ll show you in a second.

They didn’t look at any of that. They just offered opinions about epi.

So from a legal perspective, animal studies and cell studies are undisputed. What we’ve presented to you about genotoxicity and oxidated stress, what we’ve presented to you about animal studies has not been disputed by a single person that sat in the chair that’s over there right now. Not a single person said to you — you heard the judge. Evidence is testimony. Right?

Not a single person said that Dr. Portier was wrong. Not a single person said he was wrong about the cell studies. It’s undisputed. And there’s a reason for that. It’s because it’s not really disputable. It’s pretty clear-cut.

​

So in the animal studies, we have glyphosate studies and we have Roundup studies. In the glyphosate studies, we have these rat studies, we have repeated findings of tumors, we have skin keratomas, we have thyroid cancers, we have pancreatic islet cell tumors, we have repetition across species, across strands in different laboratories. It shows unequivocally that there is strong evidence that shows glyphosate causes tumors in mammals.

​

Now, there was this argument about, well, the dosing levels are so high. Well, first of all, the dosing levels in the Lankas study, the first one, were 21 versus Wood, which was a thousand. So these studies are actually pretty broad spectrum. And 21 isn’t very far from what the actual exposure was for a person.

So this idea that these animal studies don’t tell us anything is untrue. But, more importantly, you have to use high doses because you only have about 50 animals per group. So if you were going to do a proper human dose-level experiment, we’re talking out of 500 people, people who were exposed to glyphosate get ten NHLs and people who don’t get five. Right? We’re talking about five — show that difference, that ratio, that’s a doubling of the risk.

Not everyone gets cancer. So if you were to use human dose levels, you would have to use thousands and thousands and thousands of animals in an animal study. That’s not only inhumane, it’s not scientific.

So what they do, they create a dosing scale. And they compare those that are exposed to glyphosate versus those that are not. It’s how it’s done. It’s the standard model.

And that Monsanto thinks that you should ignore it, well, really simple. They haven’t done one since 1991 after they got the bad result. Of course they want you to ignore it because the data is overwhelming.

​

When you go to the mice data, it’s really bad. Okay? Mice are the very species that are used to study lymphoma. You heard Dr. Portier say that. Undisputed testimony. In every single mouse study, every single one, there’s malignant lymphoma when mice are exposed to glyphosate.

Good grief. That is powerful evidence that this is not only causing tumors but that it’s causing lymphoma, the very cancer that the Pilliods had. That Monsanto didn’t bring a single expert to try to even refute this should tell you volumes about how important this data is.

​

Now, Roundup? Well, Monsanto has actually never done a Roundup study on rodents. In fact, no one has. No one has done a long-term carcinogenicity study on Roundup.

And considering what we know — these are the admissions on that point. By the way, they’re not prohibited from doing it either.

Considering what we know about that, that’s pretty amazing. They’ve known for decades and decades that the combination of glyphosate and the surfactant is more genotoxic. It has a synergistic effect. Dr. Parry told them in 2000. But they never studied it. The reason why they haven’t studied it, when we pushed them on it in the depositions that we showed you, is because the EPA never told them they had to.

Okay. That’s not how science works. Just because the EPA doesn’t tell you you have to do it, then you don’t do it? That’s pretty outrageous. We actually know it’s not true too because the EPA said redo the mouse study, and they still didn’t do it. So it’s not like, even if the EPA told them to do it, they would do it. But they haven’t done it.

The one study we did see was a study done by George and colleagues, Jasmine George. She’s with a group of researchers out in India, and they tried to do a study that hadn’t really been done before.

​

We heard about this thing call initiator and promoter. In cancer parlance, what that means is there’s things that initiate a cancer, like smoking. You heard Dr. Sawyer tell you. Smoking. That initiates the cell. It causes an initiated indication.

But cancer cells don’t necessarily grow. They sit there for decades and decades and decades, just sit there, happy as pie, not hurting anybody.

What a promoter does is it takes that initiated cell and says “go” and causes the proliferation of cancer, causes it to spread through the body.

So they tried to look at this very issue. Is glyphosate, or specifically Roundup, an initiator or promoter?

They did a standard study. They did something that no one else had done. They actually used Roundup.

​

Okay? What they did is they took these mice, and they painted their skin with an initiator, and then three times a week for about 13 weeks, they painted their skin three times with Roundup. And then at the end of it, they asked, what are the results? What are we seeing?

So in the animals that have just been given glyphosate but no initiator, there was no tumors in their skin. The animal that had just control with nothing had no tumors.

But after 13 weeks, which is not a very long period of time, of the animals that got the initiator and then Roundup three times a week, 40 percent of them had tumors in their skin. 40 percent.

And when we looked at the study — I’m not going to go into too much detail beyond that, but when we look at the study, we looked at the protein effects, and we looked at how it is affecting the proteins in the cells, the study shows that Roundup acts like a promoter, just like all the known promoters that we know about.

That’s why the study concludes, unequivocally, “Here we showed the carcinogenic effects of glyphosate using two-stage mouse skin carcinogenesis model and proteomic analysis. Carcinogenicity study revealed that glyphosate has tumor-promoting activity.” Promotes tumors.

​

That’s really important in this case. Right? Because Monsanto has said Mr. and Mrs. Pilliod had all these terrible risk factors, had all these initiated cancer cells. And then, like lighter fluid on a barbecue, you just added Roundup, and you get cancer. 30 years. 1500 days of exposure.

This George study is unrefuted. It’s not. No one has come to you and said, “Hey, it’s not a promoter,” because the science is there.

That is actually the only study done on Roundup that you’ve seen. And what we know, then, from this data in the animal studies is that it causes tumors, it causes lymphoma in glyphosate, that Monsanto refuses to study Roundup in long-term animal studies, and that Roundup with POEA is, in fact, a cancer promoter.

And, by the way, I just wanted to point out, in this George study, it actually says glyphosate 40 percent POEA. It’s literally the stuff we’re talking about. Okay?

​

All right. So that’s the animal data. The cell data is actually even, in some ways, more powerful, right? We looked at genotoxicity. We looked at oxidative stress. We looked at absorption, distribution, metabolism, and extrusion.

Genotoxicity, Dr. Portier went through each one of these studies with you. And they are basically across-the-board positive. Many of them are specifically in human lymphocytes. They’re looking at the very cells that cause the mutations in humans that leads to lymphoma. And it’s just positive basically across the board.

Not a single person from Monsanto has said anything about why this is not true. And when we look at this undisputed evidence and we look at how it affects human lymphocytes, the data is actually pretty disturbing because there’s a difference between glyphosate and Roundup.

This is a study we showed you, the Wozniak study. And they’re looking specifically at human blood. And they’re specifically looking at genotoxic risk. And what it shows here is that, at concentrations of 250 milliliters of pure glyphosate, you start seeing genetic damage. Okay?

At 5 for Roundup, you start seeing genetic damage. That’s 50 times more potent when you have POEA and you have the glyphosate, 50 times more genotoxic.

You wonder why Monsanto doesn’t want to study Roundup? That’s why. They know what happens.

This, again, is undisputed. No one has said this study was wrong.

Oxidative stress, again, we looked at data, the human data. This is all human data. And it was all positive except for one negative study. And that was just in glyphosate. The formulated results were positive.

​

I mean, it’s positive across the board. It’s showing increased rates of oxidative stress whether it’s glyphosate or Roundup. Undisputed. And it’s also undisputed that genotoxicity and oxidative stress are known mechanisms of cancer.

​

But when you take that piece of information, and you add it — I’m sorry. Actually, I jumped ahead. Sorry.

This is the same Wozniak study. And they actually compared the oxidative stress as well. And, again, they compared Roundup to glyphosate. Okay? And this is at the midpoint where they start seeing statistically elevated rates of oxidative stress. And for Roundup for 5 milliliters — or, sorry — uM, they start seeing the oxidative stress. And then they start seeing it at 500 for glyphosate.

​

So, for oxidative stress, it’s actually a hundred times more likely to cause oxidative stress. Again, more evidence of the synergistic effect of Roundup with the POEA and glyphosate.

Now, when you take that piece of information — okay? — it’s genotoxic. It causes genetic damage in human lymphocytes. Okay? It causes oxidative stress. But Roundup is more potent than glyphosate.

​

You put all that, and then you look at where it goes in the body, the story comes together completed. This is the Brewster study. And I talked about it with Dr. Phalen, Monsanto’s person, as well as Dr. Sawyer.

And although we went back and forth on it for a while, he finally agreed that what this shows is that, when you’ve eaten glyphosate, it starts off in the small intestine, which makes sense. But, after seven days, the dose that’s remaining in the body migrates to the bone.

So we know that this substance is genotoxic. We know that it causes oxidative stress, and we know, after seven days, it’s migrating to the bone, the very place where lymphoma starts.

​

And when we start thinking about 30 years of exposure week after week after week, repeatedly assaulting the bone genome, finally, you get a mutation that sticks. And then finally you get lymphoma. This is not particularly complicated.

And Dr. Phalen, their exposure guy, he actually agreed, yeah, it does go to the bone. This is undisputed.

​

So when you take the animal data showing lymphoma, you take the cell data, which that shows that it’s genotoxic in human bones — okay? — it’s really -­you really don’t even need to get to the epidemiology. Of these two alone, it’s more likely than not something that causes lymphoma. You don’t need the epi to get there.

​

But that’s where Monsanto spent all of its time defending it. So that’s how we spent so much time talking about epidemiology. It’s kind of awkward, right?

​

The strongest, most obvious, evidence just gets told to you once by Dr. Portier. And then this never gets disputed for a month, so it’s easy to forget it. But it’s actually overwhelmingly powerful. And every single agency, whether it be EPA or IARC or whatever, they look at all three of these pillars; they don’t just look at epi.

In fact, the EPA doesn’t even really look at epi because it’s about the formulated product, and they’re focusing on glyphosate.

So let’s talk about epi. It’s one pillar; it’s not the only pillar. It’s obviously a very important part of the science. No one is saying to disregard the epi. It has really good strengths, right? It shows real-world exposures. It’s the formulated product; it’s not just glyphosate. You have people who have the same disease, non-Hodgkin’s lymphoma, as the Pilliods. So it’s a helpful piece of information in that regard.

But it has lots of problems, right? It’s subject to misclassification error. And if you have misclassification, it obscures the risks. And that’s just basic epidemiology. It’s not always fully controlled, right?

​

When you’re doing an epidemiological study, you’re trying to compare people who are exposed to people who are unexposed. Whether it’s the AHS or any other study, it’s almost impossible to find that. Because people are exposed to glyphosate outside of spraying it, right? It’s in the food. It’s all over the place.

So when you’re trying to compare people in an epidemiological study to one another, the unexposed people are actually still exposed; they’re just less exposed. That creates a lot of noise, and it makes it harder to see a signal, which is one of the reasons why dose response is such an important thing to look at in the end.

There’s also inherent biases. And sometimes they go towards the null, they obscure risks. Those biases exist. But there’s also biases that inflate the risks. And I think we should, obviously, consider those. So those are the strengths and the weaknesses of the epidemiology.

I went through, and I found out all the never ever used numbers. Okay? And I put all the ones that were adjusted. For example, Eriksson — for example, 2008.

So, for example, Eriksson 2008, I have the unadjusted number here, which was statistically significant. And then the adjusted number right here, while elevated, was not fully significant, right?

​

And we kind of talked about this. But when you talk about the likelihood of risk — right, when you have a confidence interval that spans this part, as you can see, the vast majority of the line is to the right of 1. And anything to the right of 1 is a risk. Only a small portion of it is to the left of 1.

What that means is that, if you were actually looking at this data and trying to decide what is the more likely situation, is it actually a risk or not, most of the data is to the right of 1. That’s how you look at this data.

But Monsanto doesn’t like that. They say only look at statistically significant results. Well, there’s plenty of statistically significant results. They go, no, no, no, only look at adjusted data.

By the way, all of this data is adjusted. Okay. It’s adjusted for age, sex, location, the things that you always adjust for.

When they’re talking about adjusted data, they’re talking about adjusted for exposure to other pesticides. And this is a sort of complicated issue, but let me just put it out pretty simply.

When you’re studying people who apply pesticides and you adjust for exposures to other pesticides, you weaken the study’s power, by definition, right? Because everyone is spraying pesticide. So you’re reducing the number of people who are truly just exposed to glyphosate versus other stuff.

Why that’s really important is because, if the people who are in the exposed group to glyphosate and the people in the unexposed group have equal exposures to other pesticides, then they would cancel each other out. And there’s no need to adjust.

There’s two aspects to adjustment. And they say, well, that’s just for other pesticides. No. You only adjust for other pesticides if the exposure is differential, if you have a reason to believe that the people spreading glyphosate are exposed to this pesticide more than these other people spraying other pesticides. And if you don’t have a reason to do that, all you’re going to do is widen the confidence interval. That’s all you’re going to do.

Now, the other problem is they actually have to cause cancer. If you adjust for something that doesn’t cause cancer, you’ll eliminate a risk. The matches and cigarettes, remember. If I did an association between cigarettes and lung cancer, we’d see a risk. But if I adjusted for the use of matches, it would disappear, because people who smoke use matches. And although matches don’t cause cancer, it obscures the risk. So you have to be careful with adjustment.

But let’s take them at their word, just use the adjusted data. This is all adjusted for other pesticides. It’s still almost all to the right of 1. Yeah, sure, it’s less statistically significant when we only have two studies. One is the top one, the De Roos 2003. And this bottom one is the adjusted number from the CNAP study, a massive cohort study that’s three times the size of the AHS.

​

But even if you just use fully adjusted numbers, there’s still a risk. It’s still there. It’s not as clear, but it’s still there.

And then if you look at the DLBCL numbers, right. And, by the way, I’m missing one on here. There should be a 1.1 under Chang and Delzell for DLBCL. That’s the one we saw the other day that has two studies that form the basis of it. It’s still to the right of 1, but it’s not statistically significant. So I apologize for not having it on there.

But if you look at the DLBCL risks, it’s largely again — well, every single one is to the right, every single one.

​

And then if you look at the dose response, with the exception of Andreotti’s Q3, it’s all to the right of 1. And I used the Andreotti numbers, by the way, that apply to Pilliod, right? So 20-year lag and those are the various doses. Even AHS, it’s to the right of 1. It’s not statistically significant, but it’s there. And, obviously, all of the meta-analysis is statistically significant, McDuffie, the NAPP, Ericksson, they’re all to the right of 1.

​

When you put all of those three — get them all — squeeze them all into the same chart, what do you see? You see almost all to the right of 1. This is how you do epi. You look at all the data. And it consistently shows an elevated rate.

​

Now, no one here is suggesting that the epidemiology is slam dunk. No. Dr. Portier testifies, listen, I don’t think the epidemiology alone gets you there. But we’re not presenting this to epi. We’re presenting undisputed animal studies, undisputed cell studies, and an epidemiology that shows a risk.

When you put it all together, can you honestly say that, more likely than not, it causes cancer? Yeah, it’s pretty obvious.

Despite that, Monsanto focuses heavily on the agricultural health stuff. Dr. Bill Reeves, he’s a corporate representative for Monsanto, he says it’s the most comprehensive look at exposure and health risk.

​

Well, that’s not what they said before the results came out. Okay? I showed this to you in opening statement. I will do it quickly here. This is a memo by Dr. Acquavella. It’s Exhibit 429, 1997. This is before they know that the AHS is negative, and he’s giving his opinion specifically about the AHS.

​

And he says right here, “The exposure assessment in the AHS will be inaccurate.” And he goes on to say, “Inaccurate exposure classification can produce spurious results. The conventional thinking in epidemiology is that exposure misclassification will most often obscure exposure-disease relationships.”

​

They saw what we said, that there’s really a problem with exposure misclassification in the AHS. Dr. Acquavella is the only epidemiologist Monsanto has ever employed, the only one. And he’s saying, before he has the results, the AHS isn’t very good.

But you don’t take my word for it. Take -­literally, this is the authors on the AHS. And they’re talking about misclassification exposure in the AHS. Okay?

And they say, “Except in situations where exposure estimation is quite accurate” — they give you a correlation — “and true relative risks are 3 or more, pesticide misclassification may diminish risk estimates to such an extent that no association is obvious, which indicates false negative findings might be common.”

​

The authors on AHS say, “Listen, guys, unless the risk is, like, over 3 and you have very little misclassification of exposure, you’re not going to see anything. It’s going to be false negatives.” That’s what they tell you.

And what do we know about the AHS? Both of these things occur. We know the risk is around 2, and we know that there’s a whole bunch of misclassification issues in the AHS. The AHS’s own study says it.

​

Well, here’s what Dr. Farmer said in 1999. She talks about the AHS. And then, down here, she goes, “Many groups have been highly critical of the study as being a flawed study. In fact, some have gone so far as to call it junk science. It is small in scope, and the retrospective questionnaire on pesticide usage and self-reported diagnosis, also from the questionnaire, is thought to be unreliable. But the bottom line is scary. There will be association identified between glyphosate use and some health effects just because of the way this study is designed.”

​

She’s calling it junk science — I’m sorry -­other people are calling it junk science. She’s saying it’s unreliable and small in scope. This is back in 1999. So before they get the results, Monsanto calls it a flawed study, junk science, small in scope, unreliable, the exposure assessment will be inaccurate, spurious results, obscure disease relationships.

But today, when it’s negative for glyphosate and NHL, it’s the most comprehensive look at pesticide exposure and health risk. That’s called hypocrisy. And they haven’t brought a single person to explain why it suddenly went from being a flawed study to the greatest thing since sliced bread. And they can’t, because the simple fact is the AHS was a great idea; but, when it comes to glyphosate, it just doesn’t work, because the use of glyphosate changed so dramatically during the time when they were collecting information, that there’s just too much exposure misclassification.

Now, are we saying to ignore the AHS? Of course not. You should consider it, absolutely. But should you look at it to the exclusion of everything else? No. That’s not science. That’s just called cherry-picking. And that’s not how it works.

​

When I asked Bill Reeves, the Monsanto corporate representative, about causation, he said that there was no evidence across the board. And when Monsanto’s experts testified, they essentially repeated the same thing.

Dr. Bello said there’s no evidence across the board. Dr. Mucci said there’s no evidence of an association at all. Dr. Levine, a little more tempered. She said it’s not associated with the development of diffuse large B-cell or non-Hodgkin’s lymphoma.

​

There’s a problem. This is an email — it’s Exhibit 15 — from Monsanto’s own experts. Okay? And this is back in 2015. It’s part of that Intertek panel.

And he says, “You can’t say no evidence because that means there’s not a single scrap of evidence, and I don’t see how you can go that far.”

​

And then Dr. Acquavella — again, the only epidemiologist Monsanto has ever hired — says, “I agree as well that you can’t say there’s no evidence.”

​

Their own epidemiologist is saying you can’t say there’s no evidence. And this guy has the nerve to take the stand in our case and tell you under oath there’s no evidence across the board. It’s just not credible.

You also have to consider the expertise. Juror Instruction Number 17 talks about how you should weigh expert testimony. And it talks about how you should consider their background, what they looked at, and their qualifications.

What do we know about these three experts? Not one has ever published ever once about pesticides ever. Not one has ever talked about whether or not a pesticide causes cancer.

​

And, in fact, Dr. Bello, I think she’s published 20 articles. Not one of them ever talks about causation at all. Dr. Mucci, she focuses on prostate cancer. And Dr. Levine, she focuses on HIV and lymphoma.

When you compare that to our experts, it’s sort of jarring. Okay?

Dr. Portier has spent his life studying the causes of cancer. Literally, that’s what he did for the National Toxicology Program. There’s a reason why, when IARC convened a panel about pesticides and cancer, the one invited specialist was Dr. Portier. He’s published hundreds of articles about the causes of cancer. And he specifically has looked at pesticides and cancer.

Dr. Ritz has spent her professional career working on the epidemiology of pesticides and cancer. That’s what she does in the state of California. And she’s been doing it her whole life. She’s also a medical doctor.

Dr. Weisenburger, not only has he published on pesticides and cancer; he’s published on Roundup and cancer. He’s an author on the NAPP study, the one that Monsanto makes a big fuss about it. And he told us the NAPP says — the publication that’s coming out is going to say that it’s associated with NHL. They can try to say, oh, the NAPP shows it’s not there. We had the author here, and he says it does. I don’t know what they’re doing.

Dr. Nabhan, to his credit, he has not published on pesticides. So he falls into the same category of that. And he wasn’t here to offer general causation testimony; he was here to talk about lymphoma. And this guy has treated thousands upon thousands of patients with lymphoma. And he’s looked at this issue for hundreds and hundreds of hours. He testified to that.

To put that in context, Dr. Levine spent seven hours reviewing medical records and 17 hours reviewing the literature. And she said, oop, it doesn’t cause cancer. And that’s just to give you a sense of the scope of the thoroughness of these opinions.

We talked about driver mutations, never mentioned that in her report. She’s a hired gun. That’s what she’s here to do. She’s here to give opinions, and that’s what she did.

Dr. Jameson, he’s been studying cancer since he was, like, in high school. He talked about how his mother had cancer, and that’s what drove him to do it. He ran the rodent studies for the National Toxicology Program. He’s looked at pesticides for about half of his career.

​

I mean, these guys are about as qualified as they come in the entire planet for looking at this very issue. And there’s a reason they couldn’t find one who had published on pesticides. Because people who know pesticides, people who know lymphoma and that relationship, will come to the conclusion that these guys came to, that it’s pretty overwhelming that it causes lymphoma.

All right. We know about IARC, 17 independent scientists from around the world, people from the EPA, from the California EPA, renowned universities, spent six months reviewing the science, met in France, had a vote, went through all the science.

​

I think what’s really important, when you think about this, is when IARC did its assessment, it didn’t have a dog in the fight, right? EPA, EFSA, all these different regulatory bodies, they’ve been saying Roundup is safe for 40 years. If it turns out that they’re wrong, there’s literally blood on their hands. Literally. That’s a huge pill to swallow.

​

MR. ISMAIL: Objection, Your Honor.

MR. WISNER: You know what? “We made a mistake. It causes cancer.”

THE COURT: Counsel, no “blood on their hands.”

MR. WISNER: I’m sorry. What?

THE COURT: No blood on the hands.

MR. WISNER: Apologies, Your Honor.

They would have to take responsibility for being wrong. Okay? That’s a huge pill to swallow.

And so, every time they look at it, they have to balance, do we admit that we’ve been wrong for 40 years or do we toe the party line?

IARC doesn’t have that problem. They don’t have a dog in the fight. They’re independent scientists. They don’t care if it causes or doesn’t cause cancer. They’re just going to look at the science objectively. They did, and unanimously concluded it caused cancer. It was a human carcinogen.

And we heard from Dr. Jameson that the dispute that they had at the meeting was not about was it a problem or a possible; the fight that they had was between was it a known carcinogen or a probable carcinogen. Because the scientists really looked at the animal and the cell data, and it’s there. They concluded the animal data was sufficient, the cell studies were strong, the epidemiology was very limited, Class 2A, probable carcinogen.

​

IARC doesn’t stand alone. We saw this article. It has over 100 authors on it, including Dr. De Roos, Dr. Jameson, Dr. Lynch, people who actually authored the very AHS article that Monsanto is so proud of.

And they concluded that the most appropriate and scientifically based evaluation of the cancers reported in humans and laboratory animals, as well as supportive mechanistic data, is that glyphosate is a probable human carcinogen. They all agree.

Do you know how hard it is to get 100 world-renowned scientists to all agree on something? I mean, their job is to fight with each other about scientific issues. But when it came to what IARC did and the data they looked at, unanimous, hundreds of scientists stand with IARC. And these aren’t just random scientists; these are the best in the world.

The California EPA respects IARC so much that they just follow it. IARC determines it, they determine it causes cancer. Note they don’t do that for the EPA.

​

So that leads us to the regulatory agencies, right? We know OSHA follows IARC. We know California EPA follows IARC. We know ATSDR has a review pending, but they’re IARC-like. Within the EPA, there’s the office of research and development and the office of pesticide programs.

You heard testimony that the office of research and development actually agrees with IARC; they don’t agree with the OPP. Within the OPP, they have the scientific advisory panel. Well, the scientific advisory panel unanimously agreed the EPA was not following its own guidelines.

So what is this outlier? This is within the U.S. regulator framework. What is the outlier? And that gets us to the bottom line. There’s two aspects to this story when it comes to the EPA.

​

There’s bad science, and there’s regulatory capture. The bad science is obvious. We’ve heard it, right? The EPA didn’t test anything. They evaluated glyphosate, not Roundup. They’ve actually relied and cited fraudulent IBT data. We know they missed a bunch of tumors, tumors that Dr. Portier found. For some reason, they just didn’t see them. For example, the lymphomas in every mouse study. We know they didn’t follow their own guidelines.

Dr. Portier told us that. That hasn’t been refuted. And, for what it’s worth, he of all people would know because he actually wrote the EPA guidelines for how to evaluate cancer. He says they didn’t follow it.

​

The scientific advisory panel — the independent scientists that reviewed EPA’s work -­doesn’t agree with them. And, frankly, EPA has a bad track record. I mean, it just does. How many things have been cancer causers that it took a lawsuit to find the truth of?

MR. ISMAIL: Objection, Your Honor.

THE COURT: Yes.

MR. WISNER: Okay.

The other aspect is regulatory capture. We know who wrote the EPA draft. His name is Jess Rowland. He’s the leader of the CARC committee, the office of pesticide program. This is a picture of him that I actually showed you. It’s from the IARC meeting. He was the EPA observer at IARC.

And we have some interesting emails. So during — right after the IARC classification, Daniel Jenkins, he was a Monsanto EPA — regulators.

He says, “So Jess called me out of the blue this morning.” This is Jess Rowland.

“We have enough to sustain our conclusions; we don’t need genotox or epi.” So this is before IARC has published its manuscript. We don’t actually know what IARC has done. And he’s telling Monsanto, “Hey, we’re good. We don’t need anything.”

​

Then he adds, “The only thing is the Cheminova study with the sarcoma in mice. We have that study now, and its conclusions are irrelevant because of the dose limit.”

I mean, let’s think about what’s happening here. The EPA scientist is calling Monsanto and asking them, “Hey, how do I ignore a study? How do I get rid of these tumor findings? Because the dose limit is left out, is that what I should do?”

I mean, just think about that. It’s supposed to be an independent organization that’s looking out for our interests, and they’re going to Monsanto about how to disregard tumors. He goes, “I’m the chair of the CARC, and my folks are running this process of glyphosate in regulatory review. I have called a CARC meeting in June.”

Now, at this time, by the way, there was another agency as part of the CDC, the ATSDR, that was doing an evaluation of glyphosate. ATSDR, by the way, Dr. Portier used to run it, just to give you some context.

And they were doing an evaluation. And there was some concern that it would come out and that it would contradict what the EPA or what Monsanto wanted. And so they have a conversation about it.

“Also, Jess called to ask for a contact name at ATSDR. I passed on Jesslyn’s email. He told me no coordination is going on, and he wanted to establish some, saying, “If I can kill this, I should get a medal.'”

​

The concept of regulatory capture is when our regulators no longer work for us but work for the industry they’re regulating. And, here, Jess Rowland, the very guy who wrote the EPA report, is saying, “I’m going to go kill another agency’s investigation. And if I do it, give me a medal.”

He’s literally working for Monsanto here and bragging about it.

“However, don’t get your hopes up. I doubt EPA and Jess can kill this, but it’s good to know that they are going to actually make the effort now to coordinate due to our pressing and their shared concern that ATSDR is consistent in its conclusions with EPA.”

We have another email. This is also from Dan Jenkins. And he says, “Listen, I actually spoke to the ATS director and branch chief” — I’m sorry. They spoke with Jack Housenger, who was the director of the OPP within EPA, to put their report on hold until after EPA releases its preliminary risk assessment.

​

So what’s happening here is the director of OPP is calling Monsanto, saying, “Hey, guys. I’m on it. I’m going to kill it. I’m going to stop it from going forward.” And he’s reporting about that conversation.

“ATSDR has cited a GAO audit report in arguing that their process is distinguishable and not duplicative. They look at different end points and told the EPA they don’t ‘make a call on cancer,’ but I think we should continue to be cautious.”

​

In response to this email, Dr. Heydens says, “Distinguishable and not duplicative? Seriously? And I will believe the not ‘making a call on cancer’ part when I see it. Anyway, at least they know they are being watched.”

​

So they’ve actually now co-opted the EPA to let the ATSDR know that they’re being watched. And Daniel Jenkins says, “I completely agree,” talks about his conversation with Mary Manibusan.

“She said that they tried to execute several memoranda of understanding but were unsuccessful. She describes ATSDR as being conservative and IARC-like in this regard, as well as the fact that they are hazard-based. Makes me very nervous. But I asked Jack whether or not he was worried about ATSDR coming out with something different, and he said he wasn’t. I think he was being genuine.”

​

If you have any doubts whether or not EPA scientists were essentially working for Monsanto and essentially doing their bidding, this email seals the deal. Dan Jenkins is writing to his colleagues, and he’s talking about Jess Rowland at the EPA.

And he says, “Jess will be retiring from the EPA in five or six months and could be useful as we move forward with ongoing glyphosate defense.”

​

How the heck do they know he’s retiring? And how do they know he will be useful for glyphosate defense? Good grief.

This is an agency that’s not working for the public; this is an agency that’s working for Monsanto. And the very scientists who wrote the very report that Monsanto has repeatedly read and talked about throughout this trial, Monsanto is going to hire the guy, when he retires, of course.

The EPA — by the way, all of that evidence about Jess Rowland and his involvement, it’s undisputed. They haven’t offered a single piece of testimony, evidence to refute any of that because they can’t challenge it. It just is what it is.

But despite that, in a minute Mr. Ismail is going to come up here and he’s going to tell you “Follow the EPA. They know everything.” It’s not true. The EPA makes mistakes, and it made a mistake here.

The illustration of this point couldn’t be clearer in the recent article by Zhang. Dr. Zhang and her colleagues from University of Berkeley and elsewhere, they were specifically on the scientific advisory panel looking at glyphosate for the EPA. And after they participated on that panel, on their own dime and on their own initiative, decided to go out and do a whole exhaustive analysis, their own meta-analysis.

And what Dr. Zhang and her colleagues did is they did exactly what we’ve been saying you need to do. They not only looked at the association, but they looked at the dose response analysis and seeing what the highest levels are we seeing a risk.

​

And they also looked at everything. They also looked at everything. They looked at animal and mechanistic studies, which provide supporting evidence for the carcinogenic potential of glyphosate-based herbicides. They documented further support from studies of malignant lymphoma incidence in mice treated with pure glyphosate, as well as potential links between glyphosate-based herbicide exposure and immunosuppression, endocrine disruption, and genetic alterations that are commonly associated with NHL.

They did the full analysis. They looked at all the data. And when they did, the link is compelling that it causes non-Hodgkin’s lymphoma.

​

I mean, these are independent scientists that the EPA attacked. And after their analysis of the EPA report, they went out and published this on their own dime and on their own steam.

Good grief. How many independent scientists need to tell the EPA they’re making a mistake before they wise up? I don’t know.

Simple fact is, ladies and gentlemen, when it comes to the evidence, it’s pretty overwhelming.

​

So the question: Is Roundup a likely substantial contributor to NHL? Is it something that can contribute to NHL in humans? And have we proven that it’s more likely than not a substance contributor? That’s the question.

I think the evidence in front of us is pretty clear: Yeah, more likely than not, it does substantially contribute to the development of NHL.

​

THE COURT: Counsel, 12:30 hard stop.

MR. WISNER: Yes. These go faster.

THE COURT: I just wanted to let you know for planning purposes.

MR. WISNER: Thank you, Your Honor.

The next stop is was Roundup a substantial contributor, specifically to their lymphoma? Right? We talked about does it cause lymphoma generally. Let’s talk about the Pilliods.

So the Pilliods, you know, are a husband and wife. I did like a time scale here of, you know, most recent to latest. And, you know, the Pilliods are unique in that they both have lymphoma. And there’s been discussion about spousal concordance and what is the likelihood that one spouse would get lymphoma if the other one has it.

​

But I think it all kind of misses the point. Right? I think Dr. Nabhan was trying to explain that, is that the likelihood of any random person getting lymphoma is 1 in 50; and for DLBCL, it’s, like, 1 in 150. And that’s assuming no risk factors, just a general overall risk background rate.

So assuming that there was no risk factors or anything, we can actually calculate the probability that two genetically unrelated people would actually get lymphoma. And we got around 1 in 15, 1 in 20,000. Right?

But the point of that statistic is not to suggest that that applies to the Pilliods. The point of that statistic is to say that it’s pretty rare for two genetically unrelated people to get the same DLBCL. It’s weird. It’s really unheard of. Well, it’s not unheard of, but it’s rare, very rare.

And when you see that, what you should do is you should look for environmental exposures, common exposures that help explain why they both got the cancer. And they both have a very big common exposure: 30 years of Roundup exposure.

Because I’m running out of time, I’m going to go through this very quickly.

We know that their exposure was considerable. They spray at four different properties. We kind of blazed through this during the trial, and I kind of wanted to walk you through the properties.

​

This is the main one. This is their primary residence in Livermore. That’s the driveway, and that’s the walkway up to the door and if you look back from the door. As you can see, all these different — and this is all in evidence; so you can look through them if you want to. But as you see all these different areas of wood chips and around the walls and the concrete, and the same thing applies to the driveway and on the right side and the left side. There’s actually a lot of sort of landscaping on the property that they had to spray frequently, every week, in fact.

Look at the backyard. This is one angle of the backyard. This is the first angle. You can see it goes all the way back down here. There’s quite a bit of property back here. This is the pool area. They actually had multiple trees that they took down that they had to spray with a lot of glyphosate around them, and they had to spray the rocks around them everywhere.

​

This is moving into the property, here’s the — that was their hot tub and gazebo. And then there are these raised garden platform things. You can see them right here on the property.

And then, obviously, it goes all the way down here, and you can see it goes back. There were a lot of different areas, and they would spray everywhere. So there actually was quite a bit of maintenance on this property, and that’s why they sprayed so much at that property.

This Stabulis one for two years was really rural. I mean, this is like wild. There are all these pictures of this Stabulis property. You can see there’s lots of growth. You have to spray everywhere they wanted to put stuff.

​

So, for example, they wanted to put this fence up. So they had to spray all along the entire front area of the property. And then, of course, the fence actually went up all the way up the three acres back up that hill. So they had to spray around there. You can actually see where they’ve been spraying. It’s all dead around the posts. Right? That’s where they’ve been spraying lots of Roundup to kill the area so they could put stuff in.

It’s pretty rural. They’d actually go camping out there. And they had that for two years, and they sprayed a considerable amount there.

They also sprayed at the Gabor property. This was also pretty rural, didn’t have any running water. There was a house, but largely had lots of sort of shrubbery in an area where they didn’t have to spray to keep it in any way maintained.

​

We also have two years at the HartVickson Lane property. Again, this had a lot of property. It’s hard to see in these pictures, unfortunately. The aerial picture is probably better. You can see all the different land. There’s an area for parking up front where they had to spray to keep that growth down.

​

Anyway, so they sprayed a lot. I don’t think there’s any real dispute about that. We did some calculations with our experts, and Mrs. Pilliod went through it in detail. But, overall, they had over 1500 days of exposure. That’s 1500 days of spraying Roundup, getting on their skin, and it going into their bones. That’s what we know happens to glyphosate when it makes contact with their skin.

​

Mrs. Pilliod didn’t wear any protective clothing. She wore shorts, flip-flops. And they did that because the label didn’t tell them to. If the label had told them to, they would have worn it.

​

So this gets back to the jury instruction, a substantial contributing factor. It doesn’t have to be the only cause of the harm.

The reason why I stress that is because I think that’s where this confusion kind of emerged with our differential that we put up.

So we really shouldn’t have called the middle one “risk factors.” We should have said “potential contributors.” So what we did here is we listed all the risk factors, things that, you know, are known risk factors.

​

And then we said, okay, for Mr. and Mrs. Pilliod — Dr. Weisenburger and Dr. Nabhan both did this — which of those risk factors could have potentially contributed to the development of NHL? Right? What could have actually contributed to it?

And then after you go through the contributors, which one of them was actually a substantial — or how many of them are substantial contributors? Right? That’s how the analysis goes.

Age, sex, race — no one thinks they potentially contributed to their cancer. Their experts didn’t testify to it; ours didn’t. And the reason for that is because all the epi studies, for example, for pesticides, they adjust for age. So what they’re showing us is the elevated risk for people regardless of their age. So it’s the additional risk on top of being older.

​

Mrs. Pilliod did not have any family history of lymphoma or hematologic cancers whatsoever. She had a significant history of Roundup use, 33 years of it, over 1500 days of exposure. She was slightly overweight. As you can see Mrs. Pilliod here in the picture, she’s not extremely obese by any measure, but she was slightly overweight.

The reason why that’s a potential contributor as opposed to age, sex, or race is because it’s actually something that affects your immune system. So if you’re slightly overweight, you have a weaker immune system. Just how it works.

She didn’t have any viral infections that would have in any way explained any of this. She didn’t have any bacterial infections. She didn’t have AIDS. She didn’t have any immunosuppression.

​

She did have Hashimoto’s disease in the 1980s, and that’s a potential contributor. But you have to realize, that was in the 1980s, and she didn’t get cancer until 2015. So in the 1980s, it was handled. Her thyroid problem was resolved. So maybe it contributed, but if it did, it very slightly contributed in any way to cancer.

And the studies on it are very unclear. We heard from Dr. Nabhan and Dr. Weisenburger that it’s really an elevated rate of lymphoma in the thyroid, which kind of makes sense. Right? Because it’s a thyroid condition.

​

But considering how late it was and how mixed the data is, it’s not clear that it’s a substantial contributor, but we’ll put it on as a potential contributor. We have to be honest.

She had no evidence of chronic inflammation, and she didn’t have any solvent use.

So you’re left with these three potential contributors. You have to ask yourself which ones are substantial? Which ones really helped drive the lymphoma?

And when you start comparing what’s left over, it’s pretty clear. 1500 days of exposure over 33 years to Roundup versus being slightly overweight or having Hashimoto’s in the ’80s? I mean, there’s no question. Roundup was a substantial contributor here. Was obesity? Probably not. Was Hashimoto’s? Probably not.

But here’s the thing. Let’s say I’m wrong. Let’s say Hashimoto’s did substantially contribute to her lymphoma. We still win because the jury instruction says it doesn’t have to be the only cause; it just has to be a cause. And if Roundup was a cause, then it was a substantial contributor to her cancer.

Mr. Pilliod, a little more complicated. The first three are the same, obviously. He also doesn’t have any family history of hematologic cancer. He also has significant Roundup use, actually more than Mrs. Pilliod because he sprayed it more frequently. His was over 28 years before he was diagnosed.

​

He was apparently overweight in some capacity, but — obviously, weight is kind of a complicated thing because it depends at what point in your life. I mean, here we have a picture of him in his 50s, and he’s not overweight. Right? So I think it depends when you consider that he was considered obese, which is one of the reasons why obesity is a difficult risk factor to really contribute to cancer.

He didn’t have any viral infections that are relevant to lymphoma. He did have that meningitis, but that isn’t related to lymphoma; that’s a brain infection. No one’s testified it has anything to do with lymphoma.

He didn’t have any bacterial infections, didn’t have any immunodeficiency syndromes or anything like AIDS.

​

There was evidence that he had immunosuppression. According to Dr. Levine, she said that his skin cancers, the brain infections, and his cold sores indicated he had a severely compromised immune system.

There’s a couple problems with that. The first problem is, well, none of his doctors ever said that was the case. Right? None of the people that actually treated him said he had a compromised immune system. And all the tests they did on his immune system showed it was above average, actually.

​

The second problem is this idea that his skin cancers indicated a weakened immune system kind of misses the elephant in the room. Right? He has fair skin and red hair, and he spends a crapload of time in the sun. Whether it’s spraying Roundup, sailing, doing yard work, he spent a lot of time in the sun. Okay. You’d expect that person to get skin cancers.

But each one was a sun spot that got removed. It wasn’t like a metastatic cancer that was affecting his life or got into his bones or any of that stuff. And he kept getting them before he got lymphoma and after he got lymphoma.

To suggest that that means he had some sort of depreciated immune system, I think, is a little bit of a stretch. And the brain infections, well, that’s just because he doesn’t have the proper antivirals. Once he got on the proper antivirals 15 years ago, 14 years ago, he didn’t have any more infections.

That’s when they finally realized it was the HSV that was in the brain. They actually figured that one. That was the last time he had an infection. Since then, he hasn’t had one.

​

And, you know, I think when you talk about a weakened immune system, when he got cancer and his body was dosed with really intense chemotherapy, right, really aggressive immunosuppression — I mean, we’re talking about poison that’s meant to kill cancer; that’s what it is — he didn’t have any problems. He didn’t have any brain infections, didn’t have any outbreaks, didn’t have any of the things that you would expect to have from someone who is teetering with an immunodeficiency problem.

Frankly, Dr. Levine’s entire theory is highly suspect. I don’t think the fact he had cold sores five times means he has a suppressed immune system. Mr. Pilliod lived an active life. He was sailing. At the age of 50, he sailed by himself to Hawaii. This isn’t some frail man who was constantly getting sick. So I think you have to put that in context.

Autoimmune disease — okay. The other thing is no one ever considered — let’s say Levine’s right. He is immunocompromised; he has immunosuppression. No one ever asked was it caused by Roundup?

We know from the Zhang article — we saw this just the other day — they specifically studied this issue of immunosuppression. And it says several studies suggest that glyphosate alters the gut microbiome and cytokine and IL2 production. These changes could impact the immune system, promote chronic inflammation, and contribute to the susceptibility of invading pathogens, which is h. pylori.

Dr. Levine, she said she disagreed with it; she didn’t explain why. And I have to ask. I mean, maybe he did have a suppressed immune system. I don’t think he did, but maybe he did. Maybe it was caused by the Roundup. There’s evidence of it right here. They bring it up again in the context of that.

So there’s a possibility that the Roundup was itself causing the alleged immunosuppression. The evidence isn’t even clear that it’s there. If you agree that it’s there, maybe it’s even the Roundup. We don’t know.

They brought up this autoimmune disease, ulcerative colitis. Ladies and gentlemen, it doesn’t make any sense. Ulcerative colitis is a chronic, lifetime condition. It has constant flare-ups, and it causes problems all the time. Ironically, it causes problems in the very areas that apparently there is immunosuppression and inflammation caused by Roundup, according to Dr. Zhang. But put that issue aside for a second. It’s a chronic condition. It doesn’t go away.

In 2006, he had a biopsy, and it showed in one of the biopsies consistent with ulcerative colitis. Okay. That’s pretty strong evidence that he had it. He testified that he got treatment for two months, and he’s never had a single symptom since. That’s pretty weird. That was, like, 2006. We’re talking, like, 13 years ago. Right?

But he also got a biopsy in 2010. And when they looked at the very colon, no chronic colitis. Possible quiescent colitis — that means it’s not ulcerative colitis. That means that it’s a passing thing; it’s not ulcerative colitis. No malignancy evident.

​

Where did it go? If he had this chronic condition, how does it disappear four years later and he never has a single symptom of it later?

I mean, the simple fact is the evidence is very, very weak that he actually suffered from this debilitating ulcerative colitis condition. They got one biopsy, and then repeatedly puts it in his medical records “ulcerative colitis” because of that biopsy. But he didn’t have any symptoms. He wasn’t being treated with any strong immunosuppressant drugs like they usually do.

That’s the other thing. When that does increase the risk of lymphoma, it’s because it’s suppressing the immune system with the drugs, which he didn’t get. He got an enema with a steroid for two months. That was it. He was not on long-term immunosuppressant drugs.

There’s no evidence of chronic inflammation, no evidence of solvent use.

So when you put all this together, our experts have testified that a substantial contributing factor was Roundup and these others were not likely substantial contributing factors.

But I want to point out one more thing. At the very end of Dr. Levine’s testimony, Mr. Miller asked her, “So you’re saying he was more susceptible to getting lymphoma because of his weakened immune system?” She said, “Yeah.”

What does that mean? That means — let’s assume Dr. Levine is right, that he has some deviant, suppressed, incapable immune system. Then he’s the last person in the world that should be spraying Roundup. He, of all the people in the world, needs to be warned because he’s more at risk than other people.

​

So if he even has a suppressed immune system, that doesn’t mean Roundup didn’t cause it; in fact, it means it probably was worse for him. And when you look at what happened to him, it’s pretty clear.

Okay. Ten minutes. Here we go.

We heard Dr. Raj testify. And Dr. Raj, she -­we actually asked her about this differential etiology. Dr. Levine laughed at us and said, “Oh, ho. That’s silly. Nobody ever talks about differential etiology. It’s unheard of in medicine.”

Well, according to the one doctor that actually treated both of them, it’s common in medical school.

“Q. Have you ever heard of something called a differential etiology?

“A. Of course.

“Q. What is that?

“A. Meaning that’s something basic

in medical school we go through.

“Q. And with regards to Mrs. Pilliod, do you recall if you ever engaged in a differential etiology about her cancer?

“A. I think — we — after — yes. So I treated the husband. So when the wife came back with the same diagnosis, lymphoma, they did ask me the question because they lived in the same household and they’ve been diagnosed with similar cancers. And they asked me, ‘Well, what could be the cause of?’ So we have a conversation about possible environmental exposures and toxins.

​

“Q. Okay. In terms of your conversation with Mrs. Pilliod, can you tell me a little about that conversation and when it occurred?

“A. I don’t know the exact date or time. I remember seeing both of them and they asked about what could have caused their cancer. We talked about possible environmental exposures, given both of them live in the same household and both of them being diagnosed with a similar type of cancer back to back.

They were concerned.

“And I did tell them there is a possibility that chemical exposure could cause lymphoma, and they brought up this exposure to some pesticides. And they asked me, ‘Do you think that could have caused the cancer?’

“I said it’s possible, but I can’t tell that for 100 percent sure. That was my response to them. I did tell them it was possible.

“Q. And when you said that chemicals may increase the risk of lymphoma, what chemicals are you talking about?

“A. Any chemical exposure on a consistent basis that could cause cell — you know, DNA damage.”

​

So if you have something that causes DNA damage on a consistent basis, of course it can cause cancer. It’s common sense to Dr. Raj. And when they brought it up, she said, yeah, it was possible.

Now, she didn’t do a full differential. She didn’t go through the science about Roundup. She didn’t look at the studies like our experts did. But she did have the privilege of treating both of these fine people, and she said, yeah, possible environmental exposure.

So is it more likely than not that Roundup was a substantial contributor to their cancer? The answer is yes. No question. It played a role. And it was a substantial role.

What are the Pilliods’ damages?

​

Your Honor, I’m not going to be done by 12:30. I need about 15 more minutes. I need to go through the verdict form as well. We started very late today.

THE COURT: Can you hang on for 15 more minutes? I’d like to finish plaintiffs’ closing before we stop.

20 of, hard stop.

MR. WISNER: I really appreciate it, Your Honor. Thank you.

What are the Pilliods’ damages? One of the things you’re going to have to decide is how much compensation to give the Pilliods because of the cancer that was substantially contributed to the Roundup that Monsanto sold.

​

The judge has already instructed you. There’s two different areas of damages. There’s economic damages, and there’s noneconomic damages. Economic are medical expenses, cost of prescription drugs, lost income, things like that. Noneconomic are the more intangible things, like mental suffering, anxiety, depression, grief, humiliation, the stuff that’s really hard to put your finger on.

​

Let’s start with Mrs. Pilliod. Mrs. Pilliod’s life has fundamentally changed since she was diagnosed with cancer. As you know, she had a brain tumor appear twice in her brain. And, as we know, that brain tumor caused permanent brain damage.

It has fundamentally affected the very way she lives her life. She cannot walk without help. She’s constantly dizzy. She lives her life forgetting things, falling over all the time. She has depression, probably associated with her brain damage.

And, frankly, there’s a high probability that her cancer will come back, particularly if she ever stops taking chemo drugs. Chemo drugs have pretty serious side effects, and she has to take them for the rest of her life.

This is the facts. And when she got cancer twice, she went through some of the most intense types of therapy because, frankly, everyone thought she was going to die. Remember Mr. Pilliod told us that, when she got diagnosed, the doctor said, “Do you even want to fight this? You’re not going to live.” God bless them, they fought, and she’s living. It’s unbelievable. Twice. Some good doctors, some serious treatment, but it’s had — it’s devastated her body.

So when you come up with the damages, you have to think about all of those issues. For economic damages, these are pretty straightforward. Okay?

Her past economic damages, that’s the amount of money she’s lost from medical expenses personally. That’s all stipulated to. That will be on the verdict form. It will be set there. You don’t have to write that down. That’s stipulated to.

Future damages, that was the question about prescription drugs. Now, as of right now, she’s never had to pay for her chemo drugs. And we’re really hoping in the future that stays that way. But if it doesn’t and she has to pay out of pocket, you heard testimony from Mr. Mills that the future damages would be $2,957,710.

Now, you have a weird thing that you have to figure out. You have to decide what is the likelihood that she will have to pay for those drugs in the future or not. The worst-case scenario is that. The best-case scenario is zero. So you have to decide what you think is a reasonable amount.

But what we do know is that is the worst-case scenario. That’s the minimum amount she will need if all things go south and she has to start paying for the drug to save her life for the rest of her life.

​

Now, for noneconomic damages, that’s way more complicated. How do you quantify pain and suffering? How do you quantify depression? How do you quantify waking up every day and you go, gosh, I have a headache, and you’re worried the cancer is back?

That’s what she lives with every day for her life. How do you live with the fact that you can’t walk without help, that she’s constantly being humiliated in public when she’s wobbling around trying to get to a chair? How do you quantify that? It’s almost impossible to do.

​

So here is what I propose: Her life expectancy is 13 years, and she was diagnosed with cancer 2 years ago. So the past part of time is 4 years, and the future is 13. A fair amount to compensate her for her permanent brain damage is $2 million per year, both historically and moving forward.

So that adds up to $8 million for past noneconomic damages and $26 million for the 13 years she has left. That’s a fair amount to reasonably compensate Mrs. Pilliod for the shell of a life she has to live for the rest of her life.

​

Let’s talk about Mr. Pilliod. This guy is the proverbial — I don’t want to say a bad word, but like the bad — he’s really impressive. This guy sailed across the Pacific by himself. He motorcycled around Europe. He was a cryptographer in the Army. The dude is really cool. He’s been very active. He’s been very engaged in the things that he wants to do.

​

As you see him now, he’s not that person anymore. What happened to him is he got Stage IV systemic cancer. There were literally lesions and tumors in every inch of his body, essentially. These black spots, with the exception of the middle one right here, with the exception of that one, everything — with the exception of that one, everything else is a tumor.

He had it everywhere, which kind of makes sense. We know Roundup goes to the bones. We know that it’s a systemic dose. And he had the most exposure. And, frankly, it’s kind of a miracle that he’s alive today, but they gave him really intense chemotherapy. They shocked his system with poison, and they killed it. And he kicked it.

I mean, that, by the way, is really strong evidence that the guy does not have a compromised immune system. He didn’t have any complications from that at all, yet he has a weakened immune system and he hasn’t had cancer anymore for more than seven years? I mean, it’s kind of unbelievable.

But it’s scarred his bones. It’s caused permanent bone damage. And, frankly, he had plenty of neurological problems before his cancer. We all agree with that. He had seizures. He had developing neurological problems.

But after he went through chemo, it has gotten worse. There is no question about that. He’s having a more difficult time functioning. He just can’t do the things he used to love. This guy is not sailing by himself single-handed to Hawaii. He’s not even sailing at all.

He lives every day with the fear of the cancer coming back and the anxiety that is attendant to that. I don’t think there’s any question that his damages are less in number. I don’t think that’s in question. He does not have permanent brain damage. His past economic damages are $47,296. Again, this is stipulated to. It will be on the verdict form. You don’t have to worry about it.

We are not seeking any future economic damages. Yeah, sure, he’ll have to do cancer tests every six months for the rest of his life, but we’re not going to ask for that. Okay?

For him, it’s about noneconomic damages. And I’m going to use the same metric as we did with Alberta but a slightly different one. So he was diagnosed in 2011. So he’s had — he survived cancer for eight years. And, by the way, in that year before his cancer, he was in extreme pain, truly extreme pain. Remember, they gave him narcotics. He had a tumor the size of a baseball in his hip.

​

He was in extreme pain. That’s what ultimately got him into the hospital and he got treatment for the cancer is because he was in so much pain.

But the way I want to calculate is it’s been eight years since his diagnosis, and he has a life expectancy of 10 more years. So that’s 18 total years both past and present. And while he doesn’t have brain damage, he does have the ramifications of having survived cancer and how it’s affected his life. So an appropriate measure for him is half, a million dollars.

What that means, his past economic damages for the last eight years would be 8 million. And for the next ten years, it’s 10 million. That would be a total of $18 million for noneconomic damages. That’s a fair amount to compensate Mr. Pilliod for a cancer he never should have gotten.

This is the summary of the data. This is what we’re asking for.

​

So those are the damages. The last big issue is punitive damages. The instructions are very clear. The purpose of the punitive damages are to punish a wrongdoer for conduct that harmed the plaintiff and to discourage similar conduct in the future.

The purpose of punitive damages is to punish. It’s to deter. It’s to change a company’s conduct. It is not about compensating the Pilliods. So if you’re in that deliberation room and you’re talking about punitive damages numbers, and you’re thinking, well, that’s too much money to give to anybody, it’s not about them. Okay?

​

They’ve already been compensated with the compensatory damages. This is about punishing Monsanto. This is about making a difference in that company. And when you do that, you have to consider their financial status. Okay?

A person at — this is malice. A person has a knowing disregard when he or she is aware of the probable dangerous consequences of his or her conduct and deliberately fails to avoid those consequences.

“In view of Monsanto’s financial condition, what amount is necessary to” — this is straight from the jury instructions — “to punish and discourage future wrongful conduct? Any award you impose may not exceed Monsanto’s ability to pay.”

​

Well, we had a stipulation about their net worth. They have $7.8 billion net worth in 2018. Their sales of agricultural products in one year was 3.7 billion, and their profit was 892 million.

In 2017 alone, Monsanto spent $1.6 billion on research and development. We heard from Dr. Jameson that the cost of doing a single rodent study on Roundup would cost about $4 million. They had a $1.6 billion budget, and they’ve never bothered to do one study. It’s outrageous.

​

That said, I thought very hard about how much I thought Monsanto needed to pay to sufficiently punish this company for 45 years of lying to the public, of misleading scientists, freedom to operate, ghostwriting, all of that. What is an amount that’s proper punishment?

And my initial thought was about one year’s profit, 892 million. And that’s a number — that’s a lot of money. But that’s just their profit for one year. But then I thought about it. That’s profit. That’s after expenses, after Donna Farmer and Dr. Heydens and Dr. Goldstein have gotten their payouts and their bonuses. This is money in their pocket after the fraud.

And when you’re talking about punishment, that doesn’t seem really appropriate. Just imagine somebody engaged in some really bad, fraudulent conduct, they stole money from someone. And your punishment was give the money back. That’s not really a punishment. That $892 million is the beginning of justice; it’s not the end of it.

So when you decide what the proper amount for punitive damages is, that’s the starting point, and you go north of that. And they have specifically talked about it. Exhibit 516

​

THE COURT: Five minutes, Counsel.

MR. WISNER: Yes.

They have here an email specifically about IARC, and they’re talking about the findings by IARC were like giving a taxable analysis. And they’re talking about conversations with EPA before the IARC assessment.

Michael Koch says, “We heard precisely what we didn’t want to hear about impact, huh?”

​

And then Bill Heydens, the guy that we see time and time again in every document, “I’m sitting here pondering this as we speak. The $1 billion question is how it could impact, actually cause them to reopen their cancer review and do their own in-depth epidemiology evaluation. This is getting huge after what we heard on our call this morning.”

​

In his own words, this is a billion-dollar question. Dr. Koch, I agree. I’m not saying you have to award a billion dollars in punitive damages, but it’s something you should seriously consider.

​

This isn’t about giving a billion dollars to the Pilliods. They don’t need it. They don’t care about that. That’s what the compensatory damages are for. The billion dollars is not about giving money to the Pilliods; it’s about taking money away from Monsanto.

They can afford it, and they need to pay. Because that’s the kind of number that sends a message to every single boardroom, every single stockholder, every single person in Monsanto that can make a decision about the future. That is a number that changes things.

​

The last issue is how do you deliver a verdict? I have three minutes to go through the verdict form. I’m going to do it very quickly.

This is the verdict form that you’re going to get back in the jury room. And this is, for example, Mrs. Pilliod’s. And there’s a series of questions that you have to answer yes or no to. And it says exactly what to do for each question.

The short answer is, if you want Mrs. Pilliod to win, you say yes to everything and no to 5. Okay? Don’t say yes to 5 because she loses if you say yes to 5.

Sorry. Don’t say yes to 5 because she loses if you say yes to 5. So yes to everything, no to 5. Okay? And these questions are all pretty straightforward.

“Did Roundup fail to perform as safely as an ordinary consumer would have expected?” Of course it did. It causes cancer.

“Was the design a substantial factor?” Sure it was. We have both POEA, both the actual way that the stuff is distributed, the mechanism itself, and the fact that it causes cancer. So yes.

Claim of strict liability. “Did Roundup have potential risks that were known or knowable in light of the scientific and medical knowledge that was generally accepted in the scientific community at the time of their manufacture, distribution, or sale?”

Sure as heck it did. Their own study showed it causes tumors in animals. And their own genotoxicologists in 2000 said it was genotoxic. Of course they knew. Yes.

“Did the risks of Roundup present a substantial danger to persons when used in accordance with widespread recognized practices?” Well, yeah. If it causes cancer, that’s a yes.

“Would an ordinary consumer recognize the potential risks?’ Here is Number 5. No. If you read the label, you would think it doesn’t cause cancer because it doesn’t say anything about it causing cancer. You can’t tell just from reading the label or looking at the product that it causes cancer, so no.

“Did Monsanto fail to adequately warn of the potential risks?” Yes, they didn’t warn. So that’s a yes.

“Was the lack of sufficient warnings a substantial factor in causing harm?” Yes. We’ve already discussed that.

Negligence. “Was Monsanto negligent in designing, manufacturing, or supplying Roundup?” Yes. They had repeated opportunities to warn, to conduct studies. They didn’t do any of it.

The definition of negligence is in your jury instructions. It’s failure to take action or to take conduct to protect people against reasonable harm.

“Was Monsanto’s negligence a substantial factor?” Yes.

“Did Monsanto know or reasonably should have known that Roundup was dangerous or was likely to be dangerous?” Yes.

“Did Monsanto know or should it reasonably have known that users would not realize the danger?” Yes.

“Did Monsanto fail to adequately warn of the danger?” Yes.

“Would a reasonable manufacturer or distributor, under the same or similar circumstances, have warned of the danger or instructed on the safe use?” Yes.

“Was Monsanto’s failure to warn a substantial factor in causing harm to Mrs. Pilliod?” Yes.

And then right here you have the claim of damages. There’s an asterisk right here. It specifically specifies the amount that should go right here.

Future economic damages, those are the 2.9 million for prescription drugs that we talked about.

Noneconomic, that would be the — past noneconomic, that would be the 8 million. Future would be the 26 million.

And then down here, did they act with malice? I think we covered that in spades. The answer is yes.

And then you put the punitive damage award numbers here. And, obviously, the presiding juror will sign and date it at the end. That’s how you do the verdict.

Ladies and gentlemen, thank you so much for your time. You guys have been amazing. I couldn’t have asked for a better jury to listen to all this evidence and hear me yak for so long.

I’ve carried this burden of Mr. and Mrs. Pilliod’s case for quite some time now. Now it’s your turn. Let’s do right by them. Let’s hold them accountable.

Thank you.