By Grant Jacobs 13/10/2018 3


Superior Court Judge Suzanne Bolanos[1] has written a Tentative Ruling that glyphosate is to go back to trial.

I’m not a lawyer, but her ruling looks pretty damning. Let’s have a look at what it says.

What’s a Tentative Ruling?

Tentative rulings are preliminary indications of rulings ahead of the final ruling. (Lawyers indicate these tentative rulings rarely differ substantially from the final rulings.)

As described in wikipedia, judgement not withstanding the verdict (JNOV) is,

the practice in American courts whereby the presiding judge in a civil jury trial may overrule the decision of a jury and reverse or amend their verdict.

This wikipedia entry is brief, clear and worth reading. Towards the end it notes,

Reversal of a jury’s verdict by a judge occurs when the judge believes that there were insufficient facts on which to base the jury’s verdict, or that the verdict did not correctly apply the law.

The (tentative) ruling is in response to Monsanto asking for the verdict to be over-ruled, or for a new trial.

The ruling has three parts, an introductory summary of the rulings, and numbered parts I and II.

Awarding review of the punitive damages or new trial

The first sentence responds to Monsanto’s call, granting Monsanto judgement not withstanding the verdict for, either –

  1. a judicial ruling on the punitive damages awarded in the original trial ($250M of the $289M awarded), or
  2. a new trial on punitive damages

No clear, convincing evidence of malice or oppression

The second section (part I of the ruling) gives why Judge Bolanos thinks that verdict does not justify the punitive damages awarded. It’s titled, Plaintiff Presented No Clear And Convincing Evidence Of Malice Or Oppression To Support An Award Of Punitive Damages.

This section covers a fair bit ground. (I have admit I’m left wondering what there is left to hold a trial over.) She states plainly that she considers the plaintiff has “failed to mean his burden of producing clear and convincing evidence of malice or oppression by Monsanto”, giving a number of reasons. Among these reasons are that –

  • “all of the worldwide regulators continue to find that glyphosate-based herbicides […] are safe and not carcinogenic”.
  • “A lack of evidence that any Monsanto employee believed at the time that Monsanto’s GBH products cause NHL.”
  • “the IARC monograph upon which the Plaintiff relied was not published until after the Plaintiff was diagnosed” (and thus couldn’t have influenced Monsanto’s views: it wasn’t around then)
  • “there is no evidence Monsanto’s scientists were managing agents.” (For punitive damages to be awarded, the actions have to be by a managing agent of the corporation. In my experience not only are scientists not, companies go out of their way to ensure scientists cannot act this way—possibly for liability reasons among the more ordinary issues of managing a large company.)

Judge Bolanos also covers the argument that Dr GoldStein deliberately failed to return a phone call, saying that even if this were true it “does not rise to the level of despicable conduct.” My reading of parts of the transcripts of the court case suggest the Plaintiff’s lawyers made a lot of fuss about this, as if they felt this was a key thing that had stuck with the jury.

New trial for punitive damages anyway

Closing part I, the ruling says that even if the court denied a judicial ruling on the punitive damages award, a new trial would be granted anyway because of the lack of evidence to justify the award of punitive damages.

Questions to answer

In the final section (part II of the ruling), Judge Bolanos poses several questions she feels the two sides need to discuss (or argue) with her. I’ll offer my (non-lawyer) thoughts on these in the next section.

  • Is Dr Nabhan’s diagnosis legally sufficient to establish causation?
  • Given the agreed lack of epidemiological evidence for liability, can the court even grant a new trial? (Apparently both sides agree there is a lack.)
  • Was exclusion of the EPA report sufficiently prejudicial to warrant a new trial.
  • Were the plaintiff’s lawyer’s (misleading) comments in closing sufficiently prejudicial to to warrant a new trial?
  • Is an award of $33M for ‘future non-economic damages’ based on $1M per year of lost life expectancy legally proper.

Loose thoughts

I’m not a lawyer. IANAL, as they say online. My idea here is to encourage (polite!) discussion by introducing a few thoughts.

The doctor’s diagnosis

Point 1 seems unequivocal to me. My understanding is that no doctor, or scientist is able to diagnosis glyphosate as a specific cause of NHL at this point in time (Nor at the time Johnson was diagnosed.) That would require biochemical tests or similar that would identify specifically glyphosate as the cause. Best as I know there is no such test. (Furthermore, current evidence favours that this class of cancers[2] are not caused by glyphosate; see second point.)

Lack of epidemiological evidence

The second point considers if without conclusive epidemiological evidence pointing at a glyphosate—NHL link, can a trial be held? Apparently both parties agree to this. (I have to admit this is a surprise to me.)

There is more to this. In particular my attempt at looking at the application of epidemiological data below doesn’t go nearly fair enough, and is incorrect as it stands. I’m of the school that doesn’t delete material like this, but adds corrections above them, hence in edit letting readers know to see the comments later for a revised take on this. I did say the ‘Questions to answer’ section was meant to be a discussion starter! I can even discuss my own comments to myself, by myself! Rhetorical discussions…

Current evidence disfavours glyphosate causing NHL. This is part of how regulatory bodies have allowed use of glyphosate by consumers.[3]

A subtlety might be the particular settings, and use of glyphosate. For example, how much was used, how often. That’s fair to consider. No doubt the court case covered this (it’s too obvious to miss), but the AHS study, for example, doesn’t support a link in larger-scale, regular use of glyphosate.

I’d have thought the lack of epidemiological evidence would leave you saying you think glyphosate caused this one person’s NHL while lacking a test to show that (see my previous thought), and also lacking evidence of glyphosate causing NHL cases in general, then saying that wasn’t an issue. It’d be diagnosis by magic.

You’d have no way of pointing a finger at glyphosate for the case at hand: no individual test to show this, and nothing by population trends either. (Or am I missing their point?)

Seems to me that you need either a convincing individual diagnostic test that can specifically identify glyphosate as a cause, or very convincing epidemiological findings linking glyphosate and NHL. Ideally both.

(The latter would have to be particularly solid, as you’re ‘mapping’ a generalised finding to an individual, something you can’t strictly do. Even if you had a very solid glyphosate—NHL link, you still couldn’t take any one person and say ‘glyphosate caused this person’s NHL’. You could say how likely it might be. That somewhat relates to court’s low standard of evidence for causality, but the epidemiological evidence would have to strong enough to offer a formal [i.e. mathematical] likelihood of the person’s NHL being caused by glyphosate.)

Absence of the USA EPA report

I would have thought the USA EPA report important. As I’ve written elsewhere it’s the regulatory agencies that present the consumer/user-facing standards, not IARC. (This isn’t my opinion, it’s how IARC describe their role, and it’s rarely made clear in media reports. I’ve also touched on the limitations of IARC’s reports for legal rulings there.)

In the case of the USA, the EPA is the main regulatory body that makes this ruling. With that in mind, I’d have thought it ought to be included. You also can’t help wondering if the exclusion was sought to focus narrowly on the IARC report, which isn’t appropriate really. IARC reports are for hazard, not risk; more on this in my earlier piece, under What the IARC says is their role.

The plaintiff’s lawyer’s closing remarks

The inappropriateness of the plaintiff’s lawyer’s closing remarks were noted by the judge at the time. Here Judge Bolanos is asking if they are prejudicial enough to warrant a new trial:

Were My Wisnar’s commetns during closing argument regarding “changing the world,”, comparisons to the tobacco industry, and champagne in the boardroom at Monsanto, sufficiently prejudicial to warrant a new trial?

There isn’t a science aspect to this; I can only offer a layman’s thoughts. The “changing the world” part is rather obviously trying to egg the jury on, and the comparison to the historic tobacco ruling seems inappropriate.

My own reading of small parts of the transcripts suggest an overall arc of trying to create a conspiratorial argument, rather than a cause-of-illness argument. It tries to pull on a hatred of the company rather than medical or scientific evidence for glyphosate-causes-NHL. It’s quite understandable that people might ‘hate on’ large companies—I’d love to have a few words with some NZ telcos—but that’s not the issue at hand. There’s too much I could say here, so I’ll leave it at that.

Legality of the non-economical damages award

I can’t comment on this, it’s outside my bailiwick. Most of the other questions are to some extent too, but this is entirely a legal matter with no science aspect. Not only is it a legal matter, it’s a USA legal matter. Lawyers are welcome to offer thoughts in the comments below.

Other articles at Code for life

USA Court ruling on glyphosate— the role of IARC and Eugenie Sage’s call (My previous piece on this, covering NZ response to it, and a few legal points)

Regulating GMOs: time to move forward (Some key suggestions to frame discussion.)

Green Party GM policy and discussion about GE or GMOs (The NZ Green Party should revise their stance on GM.)

Genetic modification now accepted by most New Zealanders (A survey indicates New Zealanders now accept GM food as safe.)

Is GM corn really different to non-GM corn? (Reporting other’s objections to one controversy.)

Kumara are transgenic (Transgenes occur in nature too.)

“Knowledge is merely opinion.” Storm – in cartoon and words (We all need a little humour, this is great – on homeopathy)

Footnotes

  1. Wikipedia notes her as the “First Latino American female judge in San Francisco County, California.” There is no wikipedia biographical entry for her, but she is profiled at Law.com, where they note some argue she favours prosecution. With all the fuss about immigrants in the USA at present it’s interesting to read that she is, “A child of immigrant parents from Chile and Peru, Bolanos began her legal career working for the Mexican American Legal Defense and Educational Fund, a national Latino civil rights organization” and has “worked as a domestic policy adviser” for “then-Vice President Al Gore”. This also: “The judge also appreciates when lawyers, even private counsel, make it to her chambers by 8:30 a.m. to discuss their cases.” 🙂 Ha!
  2. Non-Hodgkin lymphomas (NHL) are not a particular cancer, but a class of cancers with common properties. NHL covers several groups of lymphomas  (WHO uses 4 groups) and about 60 specific types of  cancers in all.
  3. It’s worth viewing more recent studies that have been presented since the IARC report on this. In particular the large AHS study is worth considering. I may tackle this in later piece. (No promises, sorry.) I don’t know the extent that this was presented in the trial.

About the featured image

Trial of Jean II, Duke of Alençon, October 1458, at Vendome with Charles VI as court official. The painting is to be found at the Medieval Criminal Museum in the town Rothenberg ob der Tauber, Bavaria, Germany. Source: Wikimedia, public domain.


3 Responses to “Glyphosate is to go back to trial”

    • Hi Michael, welcome to Sciblogs. Now that your first comment is approved you should be able to comment without waiting for moderation. (First-time comments are moderated as a simple defence against spam.)

      It’s a good point. (As an aside I’ve yet to read all of the transcripts — I’m not sure I’ll ever find time to, there is a lot of it!) I had hoped to comment on the ‘unadjusted’ bit later, but appropriateness is vital too.

  • One good take on the tentative ruling can be found at Courthouse News, particular Wisner’s* closing remarks: https://www.courthousenews.com/judge-may-gut-250-million-monsanto-roundup-verdict/

    Near the end, there’s this,

    “Monsanto is inviting you to wade into the scientific discussion and override the jury,” Miller said.

    You’d be tempted to respond, “why not – shouldn’t the court case have been founded soundly on the science in the first instance?”

    ————
    (* Lawyer for the plaintiff.)