Judge Chhabria said last week that he would like to see this first phase of the trial wrapped up early this week, meaning the case should be with the jury soon. A verdict requires all six jurors to be unanimous in their finding regarding whether or not Hardeman's exposure to Roundup "was a substantial factor" in causing his cancer. The judge will define for jurors what that means. (See Friday's entry for more details.)
If the jury does not unanimously decide either for Hardeman or Monsanto then the case would be a mistrial. Chhabria has also said that if that happens he is considering retrying it in May.
If the jury finds for Hardeman on causation, the trial would quickly move into Phase II using the same jury. And that is where things will really start to get interesting. Hardeman's attorneys plan to call several Monsanto executives for testimony, including former Monsanto Chairman and CEO Hugh Grant. Grant spent more than 35 years at the company and was named CEO in 2003. He led the company until its acquisition by Bayer AG last summer.
Additionally, lawyers for Hardeman plan to call Roger McClellan, editor of the scientific journal Critical Reviews in Toxicology(CRT), which published a series of papers in September 2016 that rebuked the finding by the International Agency for Research on Cancer (IARC) finding that glyphosate was a probable human carcinogen. The papers purported to be written by independent scientists who found that the weight of evidence showed the weed killer was unlikely to pose any carcinogenic risk to people.
However, internal Monsanto documents show that the papers were
conceptualized from the outset as a strategy by Monsanto to discredit IARC. One of Monsanto's top scientists not only reviewed the manuscripts but had a hand in drafting and editing them, though that was not disclosed by CRT.
Hardeman's lawyers additionally said they plan to call Doreen Manchester, of Croplife America, the agrochemical industry's lobbying organization. Manchester's role at CropLife has been helping "lead federal and state litigation to support pesticide regulatory issues."
March 8, 2019 Phase 1 Nears End, Judge Ponders Jury Instructions
Lawyers for plaintiff Edwin Hardeman rested their case on Friday, giving Monsanto a turn to put on its own witnesses in this first phase of the case.
Judge Chhabria has indicated he would like to see the first phase of the trial wrapped up by early next week, and he has ordered attorneys for both sides to be ready to discuss and debate two proposed sets of instructions for him to give the jury for deliberations regarding the definition of "causation."
For Hardeman's case to be allowed to proceed to a Phase 2 in which damages could be awarded, the group of six jurors must be unanimous in finding that Roundup caused his non-Hodgkin lymphoma, so the judge's instructions about how the element of causation is defined is a critical point.
The judge's first option reads as follows: "To prevail on the question of medical causation, Mr. Hardeman must prove by a preponderance of the evidence that Roundup was a substantial factor in causing his non
Hodgkin's lymphoma. A substantial factor is a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor.If you conclude that Mr. Hardeman has proven that his exposure to Roundup was a substantial factor in causing his NHL, then you should find for Mr. Hardeman even if you believe that other risk factors were substantial factors as well."
The judge's second option has the same first three lines as the first option but then adds this: "Conduct is not a substantial factor in causing harm if the same harm would have occurred without that conduct."
Option 2 also changes the last line of the instruction to say: "However, if you conclude that Mr. Hardeman has proven that his exposure to Roundup was sufficient on its own to cause his NHL, then you should find for Mr. Hardeman even if you believe that other risk factors were also sufficient to cause his NHL."
A big part of Monsanto's defense is to suggest that other factors could be the cause of Hardeman's cancer, including a struggle with hepatitis C. Hardeman's team has said that he was cured in 2006 of hepatitis C but Monsanto's team argues that cell damage from the hepatitis was a potential contributor to his cancer.