Anyone concerned about probable carcinogens in the environment needs to keep an eye on the trial of Edward Hardeman v. Monsanto Company, which begins on February 25, in the Federal District Court in San Francisco. A bellwether for future challenges against the company, the federal court has grouped hundreds of plaintiffs into this multidistrict litigation case. The plaintiffs have sued Monsanto claiming to have contracted non-Hodgkin’s lymphoma (NHL) after being exposed to Roundup, the company’s glyphosate-based herbicide. While there are an estimated 9,300 lawsuits against the chemical giant because of Roundup, Hardeman will be only the second NHL trial against Monsanto ever.
Judge Vince Chhabria has already granted an unusual motion by Monsanto to split the Hardeman trial into two phases. Characterized as “unheard of” by the plaintiffs, this way of trying a case is called bifurcation, consisting of a first phase that would have the jury determine if there is a preponderance of scientific evidence that Roundup caused Hardeman’s cancer. If the jury finds this to be true, they will then be allowed to decide if Monsanto knew of and attempted to hide the dangers of Roundup. To do this, they will be shown internal Monsanto documents that reveal how the company ignored or tried to discredit legitimate science and scientists, ghostwrote scientific studies and manipulated regulators. (I saw this evidence firsthand, because I was a juror on the first ever NHL trial, Dwayne Lee Johnson v. Monsanto.)
Monsanto’s attorneys asked the judge to bifurcate the upcoming trial because they think that jurors will be swayed by the emotions brought forth from seeing the documents exposing systematic corporate malfeasance. This is not the first time Monsanto has inferred that a jury might, or might have, reached a verdict based on emotions.
After the historic $289 million award to the plaintiff in Dwayne Lee Johnson v. Monsanto on August 10, 2018, defense attorneys asked Superior Court Judge Suzanne Bolanos to toss the jury’s nearly unanimous verdict claiming, in part, that they were “inflamed” by some of the rhetoric in the plaintiff’s closing argument.
Regardless, it is astonishing that Monsanto would ask to bifurcate the trial. This is tantamount to admitting that, yes, there is evidence of despicable behavior by managing agents of the company. Monsanto has good reason to keep this evidence from a jury, because it is certainly damning. In the Johnson trial, Monsanto objected to multiple attempts by the plaintiff to admit evidence. The plaintiff’s counsel was incredulous when Judge Bolanos would not allow any mention of California’s Proposition 65, under which Californians are warned that Roundup is a probable carcinogen.
Judge Chhabria is apparently realizing the mess he created by granting the bifurcation. On January 28, he backtracked and decided to allow some evidence of Monsanto’s alleged nefarious manipulation of scientists and regulators. Monsanto is now pointing to the Hardeman bifurcation to convince a Superior Court judge in Oakland, California, to bifurcate a similar lawsuit, Pilliod v. Monsanto. Attempts to control juries should not be allowed to become the norm simply because a large corporation is fighting for its financial life, especially when thousands of people exposed to Roundup are fighting for their actual lives.
Monsanto, which was acquired by Bayer in June 2018 for more than $60 billion, has taken a financial hit since the Johnson verdict in August. That kind of money, or the loss of it, exerts influence — think corporate lobbyists. But billions of pounds of Roundup have been sprayed on farms, next to roadways, in public parks, in lakes, in forests and around residences over the last 40 years. The use of the herbicide continued even after it was classified as a probable carcinogen by the World Health Organization in March 2015. These facts should push back against that influence.
It is fair to wonder what we can do to see that justice is served. There are no easy answers, but it is worth noting that after the judge in the Johnson case made a tentative ruling to toss that nearly unanimous verdict, several former jurors for the trial (including me) were so outraged that they publicly called Judge Bolanos out. To her credit, she backed off and upheld the verdict, albeit reducing the payout to Johnson to $78 million.
Those former jurors were, in fact, just regular citizens who decided their civic duty extended beyond the end of the trial and included protecting their verdict. In California, Superior Court judges can be recalled when the electorate is aggrieved. With federal judges, our only recourse may be to elect a president who we believe would make the kinds of judicial appointments we want, but however we do it, we have a constitutional right to free speech, and the ballot, to hold the judiciary accountable. The bottom line is that juries should be allowed to see all the evidence in these cases without interference by judges. With proper instructions from a judge, a jury is uniquely suited to weigh the evidence without passion or prejudice and is, ultimately, very difficult to fool.