The six jurors let Judge Vince Chhabria know on Friday that as they deliberate they want to have plaintiff Edwin Hardeman's testimony read back to them. Chhabria said that would take place first thing Monday morning.
At Monsanto's request, the trial has been divided into two phases. The first phase deals only with the question of whether or not jurors find that Hardeman's exposure to Roundup was a "substantial factor" in causing his non-Hodgkin lymphoma.
If the jurors unanimously answer yes to that question the trial moves into a second phase in which Hardeman's attorneys will put on evidence aimed at showing that Monsanto knew of the cancer risks of Roundup but actively worked to hide that information from consumers, in part by manipulating the scientific record.
If the trial does go to the second phase, the plaintiff will lack one key expert witness Charles Benbrook after the judge ruled that he would sharply limit Benbrook's testimony regarding Monsanto's corporate conduct.
Hardeman's lead counsel Aimee Wagstaff and her co-counsel Jennifer Moore plan to spend the day in the courthouse Monday as the jury deliberates after again raising the ire of Judge Chhabria. Chhabria was annoyed Friday that the lawyers took longer than he expected to get to the courthouse after they were notified that all parties must convene to address the jurors' request to hear Hardeman's testimony again.
Chhabria sanctioned Wagstaff the first week of the trial for what he called "several acts of misconduct during her opening statement." One of her transgressions, according to Chhabria, was spending too much time telling jurors about her client and his cancer diagnosis.
March 15, 2019
(UPDATE 3:30 pm Pacific time- Jurors retiring for the day after failing again to reach a verdict. Testimony from plaintiff Edwin Hardeman to be read back to jurors Monday morning at their request. Judge Chhabria remains irritated with plaintiff's attorneys, annoyed at the time it took them to arrive at court Friday afternoon.)
Jurors were back in court today resuming deliberations after a day off on Thursday. There is but one question they must answer: "Did Mr. Hardeman prove by a preponderance of the evidence that his exposure to Roundup was a substantial factor in causing his non-Hodgkin's lymphoma?"
The judge admonished the jurors that if they pondered that question on their day off they should not seek out information about the safety of Roundup or read news articles or scientific studies about the matter. They should confine themselves to consideration only of evidence presented at trial.
Yesterday in the San Francisco area google ads were popping up on smart phones and computers promoting the safety of Roundup. One site in particular Weeding Wisely was coming in at the top of some Google sites, offering such headlines as "Fear of 'chemicals' results from misunderstanding" and "Look at the science, not scare tactics, of glyphosate herbicide." Also this one "Weed Killer Hype Lacks Scientific Support." The google ad renewed fears by some that Monsanto and Bayer may be engaging in geofencing, a term used to describe a tactic for delivering specific messaging to individuals within specific geographic areas.
Last month Hardeman attorney Jennifer Moore alerted Judge Chhabria to fears held by Hardeman's legal team that Monsanto might have engaged in geofencing before and would do so again to try to influence jurors. Moore told the judge they were considering "whether we were going to file a temporary restraining order to prohibit Monsanto from any kind of geofencing or targeting jurors through social media or pay-per-click ads. And so I would just ask that that not be done. We're not doing it on our side, but I just don't want any targeting of jurors, their social media or Internet means."
Chhabria replied "Isn't it, like doesn't it go without saying that it would be totally inappropriate? Obviously nobody on either side nobody within a hundred miles of either side may attempt to target any juror or prospective juror with any sort of messaging."
Geofencing is a popular advertising technique that delivers specific messaging/content to anyone within a specific geographic area designated by the company or group paying for the ad. The area can be very small, a mile radius around a specific address, for instance. Or it can be much larger. Anyone within that designated area using an app on a smart phone such as a weather app or a game would then be delivered the ad.
Whether or not Monsanto did or would use the tactic to try to influence jurors would be almost impossible to prove. Monsanto attorney Brian Stekloff responded to the concerns raised last month and the judge's warning about geofencing by saying "I understand that they may have allegations, but I'm not accepting those allegations".. of course we will abide by that""
The placement of google ads for certain search terms does not necessarily mean anyone was targeting jurors with geofencing. And it's worth noting that google ad buys have been and remain a popular strategy employed by plaintiffs' attorneys seeking new Roundup clients.