Trial notes through day 9……Thanks to The Organic Consumers Association and Robert F. Kennedy Jr. for this important update on the trial!
On Monday morning, July 23, the jury in Johnson vs. Monsanto heard testimony from Dr. Ope Ofodile, the Plaintiff Dewayne “Lee” Johnson’s dermatologist. Dr. Ofodile described beginning her treatment of Lee in 2014, shortly after Lee was diagnosed with cutaneous T-cell lymphoma. Her affection for Lee and her passionate devotion to his treatment was evidenced throughout her surprisingly moving testimony; she even wrote to Lee’s employer, the Benicia District School Board, on Lee’s behalf and “requested that he not be exposed to [Roundup] as that could exacerbate his condition.”
An email from Lee to Dr. Ofodile after she performed surgery on his squamous cell carcinoma illustrated his affection for and gratitude toward her: “Thanks again for slicing me up and getting the poison out.” Odofile responded, “Great, my pleasure.”
Dr. Odofile testified that the open sores carpeting Lee’s body contributed to the aggressive spread of his non-Hodgkin’s lymphoma; the Roundup, she said, faced fewer barriers to entering his system.
Later in the morning, Araceli Johnson, Lee’s wife of 13 years, chronicled her marriage to Lee before his life-changing diagnosis. Araceli, born in Mexico, emigrated to California’s Central Valley at age 12. She fell in love with Lee when she saw him walk in late to pre-algebra class at Napa Valley College. She was so shy that she needed her sister’s help to work up the courage to talk to him.
Araceli Johnson characterized Lee as an attentive and loving dad to their two children. Ali, 13, is an athlete and sports fanatic like his dad. Ten-year-old Kahli’s distinctive characteristics are his love of books and reading and his ambition to be a chemist. She laughed as she described Lee’s first time snowboarding with their two sons. While he loved to teach them sports, he also cooked and cleaned for the family, “More a mom than a dad,” she said.
Araceli recalled when Lee first told her about his diagnosis, “I couldn’t believe it. My world just shut down… I only cried at night it was very hard.” She said that Lee also fought to maintain a strong facade for his family, but she recounted the many sleepless nights Lee spent crying in bed when his children were not around, “He tried to hide it and I think he tried to show that he was strong. He tried to be positive, he wanted to be… for us and the kids.”
After Lee began chemotherapy, Araceli took a second job working 14-hour days to make a dent in the family’s rising medical bills, while still shuttling her two sons an extra 45 minutes to Napa Valley School District in hopes of providing them better educational opportunities than were available near home. My colleague, David Dickens of The Miller Firm, asked Araceli to remember happier times: “Before he had cancer, we had nothing to worry about. It was no worries, no stress. Life was beautiful, simple, just hanging out having a great time. It’s something I have to carry around, cancer, it’s just too much to deal with.”
In the afternoon, Lee Johnson took the stand before a courtroom crowded with journalists and members of the public. Johnson recalled life before his diagnosis. He described the rigorous work ethic that he learned at his first job as a kitchen staffer at Applebee’s and how he carried those lessons to his job as school groundskeeper.
Without ever sounding boastful, he described the series of promotions that rewarded his reliability, competence and hard work. Following their marriage, Lee’s life orbited around Araceli and their two sons. He attended every practice and worked Ali’s football games as a linesman moving the first down chains.
Following his diagnosis, Lee endeavored to hide his pain from his family, but the tragedy, the loneliness, fear and his agony at all those losses sometimes overwhelmed him. He told the jury:
“I’m trying to show my kids an example of how to deal with things and crying is not going to help you, some things are uncontrollable. But I’m raising two little boys, so I’m teaching them to deal with pain and learn to deal with it and to deal with a situation if it comes to you. And sitting around sorrowful and crying is not going to help.”
Smiling broadly, Lee related how his aspiring chemist, Kahli, had brewed a “salty, sweet, lemony” potion that he prescribed to Lee for treating his cancer.
In a heartbreaking colloquy, Dickens coaxed Lee to describe his diminished life. Lee lamented that he could no longer go dancing with Araceli, an activity they had both loved, “I mean we’d go out a lot every weekend whenever she’s got time.” He could not accompany her to her work events, “I don’t think she’d like that she had to go alone and explain my husband’s sick.” He missed swimming and avoided public pools because of his concern that his appearance might alarm swimmers. He said that he did not like to explain to strangers that his unsightly lesions were not contagious. He cannot go to the beach because the sun aggravates his disease.
He suffers from brain fog, memory loss and depression associated with his chemotherapy. He lives in constant pain and had lost the pleasure of intimacy with his wife.
“There’s been times where, you know, intimacy is out when you’re looking like that,” he said, pointing to the graphic photo of the pustulating sores carpeting his ravaged body on the video monitor, “You can’t even suggest that somebody would be intimate with you when you’re looking like that even though she knows my prognosis.” He added that he found it “incredible that she would stay here through this and sleep in the bed next to me.”
During a poignant moment, Lee confessed that he’d been so focused on keeping a positive attitude that he put himself in denial about the gravity of his prognosis. He’d also been encouraged that the chemotherapy had muted the severity of his skin lesions. He said he’d been taken aback when he heard himself described in trial publicity as a man unlikely to survive the year.
On Monday, the jury learned that even that estimate may be optimistic. Lee’s expert oncologist, Dr. Nabhan, testified that at his most recent medical examination, Lee “lit up” the pet scan. Within his body, the cancer is growing much faster than predicted.
Here are key highlights from the Monsanto trial:
Dewayne Johnson v. Monsanto Company is the first Roundup cancer lawsuit to proceed to trial. Plaintiff Dewayne “Lee” Johnson, a 46-year-old former school groundskeeper, alleges exposure to Monsanto’s Roundup weed killer and its active ingredient, glyphosate, caused him to develop non-Hodgkin lymphoma (NHL).
Johnson is one of thousands of plaintiffs to file suit against Monsanto in state court over the alleged link between Roundup and NHL. More than 450 other lawsuits filed in federal court are currently pending in U.S. District Court for the Northern District of California.
Since the start of the Johnson trial, Robert F. Kennedy, Jr., co-counsel to Baum Hedlund Aristei & Goldman, has provided running commentary of the events in court each day. Here are brief synopses of his daily entries, including links to his original posts:
Day 1, July 9: opening statements
Here’s a link to the opening statement for the Plaintiff by Brent Wisner of Baum Hedlund Aristei & Goldman:
“This case really is about choice. It’s about the right of every single person in this room to make a choice about what chemicals they expose themselves, their family or their children to…If you don’t warn, you don’t give someone the choice, and if someone gets hurt from that, or, God forbid, someone gets cancer, then I believe someone should be held responsible for that.”
Day 2, July 10: Did Monsanto suppress its own research?
On day 2 of the Johnson trial, the jury heard deposition testimony from Monsanto toxicologist, Dr. Mark Martens. Johnson’s attorneys asked Martens why Monsanto decided to abandon research conducted in 1999, by Dr. James Parry, an independent toxicologist Monsanto hired as a consultant after deeming him a top expert in his field.
Dr. Parry’s research concluded that glyphosate and the Roundup formulation may cause genetic mutations, a potential precursor to cancer. According to Martens, Monsanto did not allow independent scientists to review Dr. Parry’s research for further study after it was received, nor did the company give Dr. Parry’s research to the U.S. Environmental Protection Agency (EPA).
Day 3, July 12: Dr. Christopher Portier discusses the tumors in glyphosate animal studies, and the EPA’s initial findings in 1985, that glyphosate is a “possible” human carcinogen
On day 3, Judge Suzanne Ramos Bolanos denied attorney Brent Wisner’s request that epidemiology/toxicology expert, Dr. Christopher Portier, be permitted to share his opinions before the jury concerning the amount of glyphosate exposure the state of California has determined causes cancer.
Wisner argued that a previous ruling allowed Monsanto witnesses to testify about foreign regulatory decisions to not list glyphosate as carcinogenic, so it did not make sense to deny the plaintiff the opportunity to discuss California’s own regulatory decision to list glyphosate as a chemical known to the state to cause cancer.
Nevertheless, Dr. Portier testified that his analysis of 13 rodent studies on glyphosate, and the findings of the International Agency for Research on Cancer (IARC) led him to conclude that exposure to glyphosate causes NHL. Portier said:
“If you have multiple tumors of the same type in multiple species, it adds to the strength of causality. By seeing lots of different tumor types hit in the same animal, the more important it is to the human causal.”
Day 4, July 13: Dr. Christopher Portier discusses flaws with U.S. and EU regulatory Evaluations for glyphosate
On day 4, Monsanto counsel, Kirby Griffis, tried to rattle Dr. Christopher Portier during cross-examination, confronting the expert witness with the EPA’s conclusion that glyphosate is not likely to be carcinogenic to humans. During testimony, Dr. Portier slammed U.S. and European regulators over their methodology in evaluating glyphosate.
For example, Dr. Portier testified that European Food Safety Authority (EFSA) missed 15 tumors in a series of rodent studies on glyphosate because the agency used the wrong methodology. During cross-examination, he said:
“My entire career been about using scientific evidence to make decisions, primarily about the carcinogenicity of compounds, and we’ve worked for years and years to do that appropriately. This was just so amazingly wrong in the way they were doing it.”
Day 5, July 16: fireworks during cross-examination as Monsanto lawyer attempts to discredit expert witness
On day 5, as cross-examination continued Monday, Monsanto counsel Kirby Griffis accused cancer expert, Dr. Christopher Portier, of basing his opinion that glyphosate and Roundup cause cancer on lucrative consulting contracts from law firms and not on scientific evidence.
“You said EPA was ‘so amazingly wrong;’ EFSA was ‘so amazingly, astonishingly wrong.’ ECHA (European Chemicals Agency) got one thing right,” Griffis said, attempting to poke holes in Dr. Portier’s prior testimony about U.S. and European regulators’ evaluations of glyphosate.
Undaunted, Dr. Portier responded: “It’s absolutely clear they’re not using [their guidelines] appropriately.”
During redirect, Dr. Portier also pointed out that a reassessment report for glyphosate conducted by a German agency that participated in EFSA’s review of glyphosate, contained verbatim passages written by herbicide manufacturers.
Day 6, July 17: Plaintiff Dewayne Johnson called Monsanto to ask if using Roundup caused his skin rashes, later diagnosed as non-Hodgkin lymphoma
On day 6, Monsanto executive Dr. Daniel Goldstein attempted to rebut plaintiff Dewayne “Lee” Johnson’s allegation that he failed to tell him whether exposure to Monsanto’s Roundup weed killer caused him to develop skin rashes over a significant portion of his body.
In his lawsuit, Johnson alleges he developed cancerous lesions on his body after using Roundup between 2012 and 2015, as part of his groundskeeper job, including two instances where he was drenched in the weed killer.
The jury saw video testimony from Dr. Goldstein, who was asked whether he returned calls that Johnson had made to the company in 2014, asking if exposure to Roundup created the widespread lesions all over his body.
Dr. Goldstein testified that he did not recall speaking to Johnson, though an internal Monsanto email shows that he intended to call Johnson.
“It would certainly be helpful to have spoken with him, and I don’t recall whether I did,” Goldstein testified.
Day 7, July 18: Tempers flare as Monsanto lawyer becomes visibly frustrated with cancer expert, Dr. Alfred Neugut
On day 7, oncology and epidemiology expert Dr. Alfred Neugut of Columbia University took the stand and things got a bit heated during his cross-examination. At one point, Monsanto attorney George Lombardi gave the court an inaccurate characterization of a statement Dr. Neugut had made. Dr. Neugut yelled back to Lombardi to stop “misquoting” him.
Another highlight was Dr. Neugut’s dismissal of the Agricultural Health Study, which Monsanto routinely points to as conclusive proof that glyphosate is safe. Like other expert witnesses for the plaintiff, Dr. Neugut told the jury about several key flaws with the study, including the imputation of data to make up for poor follow-up among the study’s subjects, which rendered the study a “throwaway.” Dr. Neugut said:
“You use imputation when you’ve got a screwed-up study with poor follow-up. Unfortunately, this is a case of measurings—with a gold scale, where it turns out the results just don’t turn out to be what they should be because there are so many problems.”
Day 8, July 20: Plaintiffs oncologist testified that exposure to Roundup “was a major contributing factor in the development of Mr. Johnson’s cutaneous T-cell lymphoma”
On day 8, the court heard from Cardinal Health oncologist and physician, Dr. Chadi Nabhan, one of Dewayne “Lee” Johnson’s medical witnesses. Dr. Nabhan testified that Lee Johnson’s exposure to Roundup “was a major contributing factor in the development of Mr. Johnson’s cutaneous T-cell lymphoma.”
One of Monsanto’s points of emphasis during the Johnson trial is how long it takes for cancer symptoms to manifest after exposure to a carcinogenic agent. Lawyers for the agrochemical giant say it takes 20 years, which would eliminate Roundup exposure as the cause of Mr. Johnson’s NHL.
Dr. Nabhan, however, told the jury that cancer symptoms can show in just one month. “There is no agreed-upon latency period with these types of exposures and these types of cancers,” said Nabhan, who specializes in lymphomas. “Some patients can develop the disease early on and some patients can develop it in 20 years.”
Day 9, July 23: Dewayne “Lee” Johnson testifies he “never would’ve sprayed that product on school grounds or around people if I knew it would cause them harm”
On day 9, Dewayne “Lee” Johnson and his wife, Araceli, took the stand and gave the jury a heartbreaking glimpse at how their lives have changed since Lee’s cancer diagnosis.
During her testimony, Araceli recalled when Lee first told her about his diagnosis. “I couldn’t believe it. My world just shut down,” she said, adding, “I only cried at nigt… it was very hard.”
In order to make a dent in the family’s rising medical bills, Araceli took a second job working 14-hour days while shuttling her two sons an extra 45 minutes to Napa Valley School District in hopes of providing them better educational opportunities.
When Lee took the stand, he testified in agonizing detail how he tried to hide the pain of his diagnosis from his family. “I’m trying to show my kids an example of how to deal with things and crying is not going to help you,” he said. “But I’m raising two little boys, so I’m teaching them to deal with pain and learn to deal with it and to deal with a situation if it comes to you. And sitting around sorrowful and crying is not going to help.”
Mr. Johnson also made it clear that he never would have used Roundup if he had known it causes cancer.
“I never would’ve sprayed that product on school grounds or around people if I knew it would cause them harm,” Mr. Johnson said in court on Monday. “It’s unethical, it’s wrong. People don’t deserve that.”
Thanks to The Organic Consumers Association and Robert F. Kennedy Jr. for this important update on the trial!
Robert F. Kennedy Jr. is a longtime environmental advocate and author of American Values: Lessons I Learned From My Family. He is co-counsel to Baum Hedlund Aristei & Goldman, representing nearly 800 people across the nation who allege Roundup exposure caused their non-Hodgkin lymphoma. Follow him on Twitter: @RobertKennedyJr. Like him on Facebook.
Food Integrity Now will continue to keep you updated on this historic and important trial.