Preview of Pilliods v. MonsantoTrial: Late March 2019
A late March start date is scheduled for a California state court trial of plaintiffs, Alva and Alberta Pilliod, against Monsanto/Bayer claiming 26–35 years of Roundup use on four properties caused each to incur different types of Non-Hodgkin’s Lymphoma (NHL).
Background information regarding case is limited as court documents are inaccessible or heavily redacted. For example, an extract from one of defense’s motions provides more questions than answers because of redactions:
Mr. and Mrs. Pilliod Have Many Risk Factors Associated with NHL.
The Pilliods have different sub-types of NHL. Mr. Pilliod has diffuse large B-cell lymphoma (DLBCL), a subtype of NHL that accounts for thirty to thirty-five percent of all cases. Ex. 1, Nabhan Pilliod Dep. at 28:2–9. Mr. Pilliod was diagnosed in 2011 at the age of sixty-nine. Ex. 6, Nabhan Pilliod Rep. at 22. Mrs. Pilliod was diagnosed in 2015, shortly before her seventy-first birthday, with a different subtype of NHL known as primary central nervous system lymphoma (PCNSL), a rare subtype of DLBCL. Id. at 5; Ex. 1, Nabhan Pilliod Dep. at 112. The Pilliods have a multitude of risk factors associated with development of NHL. First, age is a significant risk factor for both Plaintiffs. Ex. 1, Nabhan Pilliod Dep. at 21:9–17. Second, both Plaintiffs have a history of xxxxxxxxxxxxxxxxxxx. Ex. 6, Nabhan Pilliod Rep. at 8, 14, 29. Third, both Plaintiffs have a personal history of xxxxxxxxxxxxxxxx . See Ex. 1, Nabhan Pilliod Dep. 45:5–46:22; Ex. 6, Nabhan Pilliod Rep. at 7; Ex. 3, Weisenburger Pilliod Dep. 193:14–21. Fourth, both Plaintiffs have a family history of xxxxxxxxxxxxxxxxxx. See Ex. 6, Nabhan Pilliod Rep. at 8; Ex. 3, Weisenburger Pilliod Dep. at 50:13–18; Ex. 1, Nabhan Pilliod Dep. 43:22–45:4. Fifth, the Pilliods have a history of xxxxxxxxxxxxxx, with Mrs. Pilliod . Ex. 6, Nabhan Pilliod Rep. at 8; Ex. 3, Weisenburger Pilliod Dep. at 203:2–23. Sixth, Mrs. Pilliod had xxxxxxxxxxxxxxxxxxxxxxxxxxx,” and Mr. Pilliod had xxxxxxxxxxxxxxxxxxxxxxxxxxx at 111:15–112:17; Ex. 1, Nabhan Pilliod Dep. at 61:2–8. Seventh, Mrs. Pilliod worked for years as a xxxxxxxxxxxxx, thereby having increased exposure to children and childhood viruses, which studies show carries a statistically significant increased risk of developing NHL. See Ex. 1, Nabhan Pilliod Dep. at 351:6–353:19. Eighth Mr. Pilliod has had xxxxxxxxxxxxxxxxxxx , which has been linked to NHL. Id. at 62:22–63:13; Ex. 3, Weisenburger Pilliod Dep. at 185:21–24.
Medical conditions will be compared to studies such as Koff et al 2015 which identifies the strength of biological and epidemiological links to NHL cancer sub-types. For example, these tables show exposure categories and odds ratio (>2.0 is equivalent to “more than likely”) and the confidence intervals with 95% statistical confidence for developing NHL cancer sub-types, including the DLBCL cancer sub-type:
The Villiods’ trial will be held in a California state court in Oakland and will not be bifurcated into causation and liability phases as the Hardeman federal court trial. Many aspects will be similar to Johnson trial which was tried in San Francisco state court and there will be an inordinate amount of trial time devoted to interpretation and context of Monsanto historical documents. In addition, California state courts are generally less stringent than federal courts, although an exception for 9th Circuit could be argued, particularly as related to interpretation of Daubert requirements for expert witness qualifications and other precedents.
During the trial there will be estimates of exposure to Roundup spraying activity, but more than likely not will approximate the unchallenged and extraordinarily excessive spraying activities noted in Johnson and Hardeman trials. A plaintiffs’ motion claims the Pilliods sprayed for 31–45 days per year for 35 years. Large exposure estimates are necessary to attain the highest risk levels provided by various epidemiology studies.
General causation (NHL cancer association with Roundup) experts may be presented by both sides for testimony regarding animal and mechanical studies, but of little overall significance because of difficulty of relating to human causation. Plaintiff’s experts will use a scatter gun approach for identification of specific animal or mechanistic studies positive for their case without a defined and predetermined methodology; i.e., an overall weight of evidence approach including factors such as predetermined weights for different types of tests, biological relevance, relevance for humans, etc.. Also unknown is whether Monsanto/Bayer will counter plaintiff experts with defense experts (Johnson trial) or vigorous cross-examination (Hardeman trial). Plaintiff expert conclusions for animal and mechanistic studies will always be irreconcilable with defense and regulatory/scientific conclusions because of methodological differences even with agreement on specific studies because the overall weight of evidence for the type of studies is or (is not) considered. Obviously, a jury trail is not the best mechanism for resolving these differences.
Major emphasis for general causation will be epidemiological studies because plaintiff’s specific causation medical experts will use these results to extrapolate to Pilliod’s NHL cancers. The likely scenarios for expert testimony will include several key studies. Plaintiff will point out statistically significant Eriksson study and defense will point out notable errors and lack of statistically significant result because there was no adjustment for confounding pesticides. Plaintiff will identify statistically significant result for McDuffie and defense will delineate multiple forms of bias and lack of significant result because there was no adjustment for confounding pesticides. Plaintiff will indicate De Roos 2003 has a statistically significant association to NHL cancers and defense will note a large percent of interviewed study subjects were proxies for actual subjects and the statistically significant result is invalid because of “data sparcity”; i.e., the logistical regression technique used to predict association of NHL cancer had only 36 exposed cases of NHL and 47 pesticide variables when at least five (better 10) exposed cases are needed for each of the 47 variables for a valid result. Plaintiff’s may discuss a study (aka Pahwa 2015) of the North American Pooled Project (NAPP), but the defense will definitely note NAPP pools McDuffie and De Roos study results and the lack of a statistical association for any of various metrics. Last, but not least because of its enormous relative size, is the Agricultural Health Study which plaintiff will roundly criticize and defense will point out all of the comparative and sensitivity sub-studies which address plaintiff’s criticisms and also note none of the many statistically significant results show a NHL and Roundup association. Plaintiffs may also choose to testify and praise the Zhang 2019 Meta-Analysis suggesting a 41% increased relative probability for NHL cancer associated with intense Roundup usage and defense will respond, as in Hardeman trial, with a thorough demolition of the meta-analysis. Interestingly, if more realistic choices are made for studies to be included as well as latency lag time, the meta-analysis reflects no association between NHL cancers and Roundup:
Plaintiff specific causation medical experts will attempt to infer from epidemiological studies and assign NHL cancer responsibility to Roundup in spite of other causative factors and defense’s medical experts will do the opposite with precise result presented to jury somewhat dependent upon Judge’s rulings for allowable inferences.
Predictably, closing arguments will mirror the Johnson trial closings because of the intermixing of causation and document interpretation allegations. Again, as with Johnson case, the jury verdict will largely depend on degree of influence for alleged corporate wrongdoing, judicial rulings with respect to epidemiological inferences and the other, as yet defined, causal medical factors.
An updated and more comprehensive analysis is now available.
