By now most everyone who reads the paper or watches the news has heard about Lee Johnson’s trial in San Francisco. The Benicia School District groundskeeper was awarded $289 million by the jury.

The twelve members of the jury voted Lee Johnson’s way on each of 17 questions submitted to it by the Judge Suzanne Ramos Bolanos, except for a 11-1 vote on the question regarding the amount of punitive damages. In California courts, unanimous jury votes are not required.

The most complete, day-by-day coverage of the trial was done by a woman calling herself Glyphosate Girl. Her coverage captures the ebb and flow of the trial, noting which legal maneuvers seemed to pay off, which witnesses provided information the jury seemed to pay attention to, and how the lawyers for both sides worked the room and confronted witnesses in an effort to convince the jury of the points they were hoping to drive home.

My Role in the Johnson Case

I was asked by the Miller Group, the law firm representing Lee Johnson, to serve as an expert witness in the case. My role in the case started with a deep dive into thousands of pages in the discovery record in this case.

I wrote a 207-page expert report laying out my findings and opinions. It was submitted to the court in late December 2017. I was asked by the Miller Group to cover all the issues related to Monsanto’s culpability and liability relative to Lee Johnson’s cancer. The core issues included:

• Monsanto’s interactions with EPA, and in particular over the history of EPA’s assessment of whether glyphosate poses oncogenic risk;
• The company’s willingness to provide EPA with the studies and data the agency needed and requested to conduct accurate risk assessments;
• Monsanto’s efforts to shape and control the scientific literature on glyphosate and Roundup toxicity via its extensive Third-Party Network of glyphosate-friendly scientists, coupled with the company’s frequent use of ghostwriting (see our dynamic presentation on US Right to Know’s Carey Gillam’s testimony to the EU for specific examples of Monsanto ghostwriting);
• Compliance with legal requirements;
• Monsanto’s response to the IARC classification of glyphosate and glyphosate-based herbicides; and
• Product stewardship and the degree to which Monsanto had done all it could have to assure Roundup products pose little if any cancer risk when used according to the label.

Since filling my expert report, I have been deposed three times by Monsanto lawyers, with over 30-hours of videotaped testimony. Trust me, the transcripts make for some of the most boring reading ever.

I testified at Lee Johnson’s trial on July 27th, the last testifying expert for the plaintiff. My direct testimony was smooth and uneventful (“direct testimony” is when one of Johnson’s attorneys, Brent Wisner, asked me questions), and went from about 10:00 am through about 30 minutes into the  afternoon session. Then, it was time for the “main event” — Monsanto’s cross-examination.

A few photos from Dr. Benbrook’s day at court. 

The Monsanto lawyer conducting my cross-examination began by bringing over to me, as I sat in the witness box, three binders of documents, one with my expert report and the transcripts of my depositions, and two 5”-plus thick binders. Placed one on top of the other, the stack is about one foot tall. “Dr. Benbrook, here are your cross-examination documents.”

The jury box was just to my right, and the closest juror was about four feet away. When she and the other jurors saw the stack of binders for my cross, an audible sigh arose from the jury box. Some jurors rolled their eyes, likely thinking “here we go again, another multi-hour cross.”

But, my cross-examination was short and uneventful. Monsanto’s attorney asked me a few technical questions about two, maybe three of the documents in the binders. Less than 30 minutes into the cross, he said “No further questions, your Honor.” Nearly everyone in the courtroom was both surprised and relieved.

Later, I asked Lee Johnson’s attorneys why the Monsanto lawyer had decided to basically give me a pass. They said the Monsanto legal team was likely afraid that if they asked me substantive questions, I would have a right to respond, and this would give me an opportunity to share information and documents with the jury that thus far in the trial, the judge had not allowed into evidence.

One of the remarkable aspects of the verdict and award is that the jury had seen just a small portion of the incriminating, internal Monsanto documents that I had focused on in my expert report.

I shared some further observations about the case, the trial, and its outcome in a Q+A entitled “Here’s what one expert in the $290 million case against Monsanto had to say about the trial.” The interview was done by the Midwestern Center for Investigative Reporting. My favorite part is the last exchange —

“InvestigateMidwest: Is there anything else you want to add that I haven’t asked?”

“Benbrook: The lead attorney for Monsanto, in his opening statement at the beginning of the trial, pleaded with the jury to listen closely to, and follow the science. Fortunately for Mr. Johnson, that is what they did.”

There is also a piece exploring the significance of the case in the context of the U.S. government’s regulatory reviews and policies in the early 1990s that brought onto the market the first-generation of herbicide-resistant crops, and corn and cotton expressing Bt toxins. Access “Expert witness from landmark Monsanto trial offers 5 fixes to shortcomings in current GE food regulations” on the website of Environmental Health News.

Endnote

The first half of August 2018 will go down in the history of pesticide use and regulation as a time marked by a remarkable combination of highly consequential developments.

The Lee Johnson verdict and award. The decision by the Fifth District Court of Appeals in Fresno to let stand the decision by the State of California to include glyphosate on the list of possibly cancer-causing chemicals under Proposition 65 (see court docs here).

The decision by pesticide regulatory officials in Canada to phase out outdoor crop uses of two widely used nicotinyl insecticides.

And last but surely not least, the decision  by the U.S. 9th Circuit Court of Appeals that EPA must initiate the process leading to the end the remaining uses of chlorpyrifos within 90 days  (see the ruling here).

Sources:

Charles Benbrook, “Expert witness from landmark Monsanto trial offers 5 fixes to shortcomings in current GE food regulations,” Environmental Health News, August 15, 2018.

Pam Dempsey, “Q&A: Here’s what one expert in the $290 million case against Monsanto had to say about the trial,” Investigate Midwest,  August 14, 2018

Sam Levin and Patrick Greenfield, “Monsanto ordered to pay $289m as jury rules weedkiller caused man’s cancer,” The Guardian, August 11, 2018.