Suing Monsanto: An interview with Michael Baum and Pedram Esfandiary

by Diana R. H. Winters

Michael Roberts and I were lucky enough to spend an hour talking with Michael Baum and Pedram Esfandiary from the law firm of Baum, Hedlund, Aristei & Goldman.  The firm represents approximately 700 plaintiffs in lawsuits against Monsanto alleging that the plaintiffs’ exposure to the Roundup herbicide caused them or a loved one to contract non-Hodgkin lymphoma.  Some of these lawsuits have been consolidated in a multidistrict litigation in United States District Court in San Francisco, a Judicial Council Coordination Proceedings (“JCCP”) in Oakland and consolidated cases in St. Louis (near Monsanto’s headquarters).   Shortly after this interview, one of these state cases proceeded through trial, and a jury in San Francisco returned a verdict of $289.2 million against Monsanto, including $250 million in punitive damage.  Brent Wisner of Baum, Hedlund, Aristei & Goldman was co-lead trial counsel in this case.

Baum and Esfandiary also represent plaintiffs in a separate class action against Monsanto Co. alleging that the company falsely promoted Roundup as interfering with an enzyme that was not found in humans or pets, although this enzyme does actually interfere with essential, beneficial microbiota found in both humans and pets.  This class action accuses Monsanto of making “false, misleading, and deceptive” claims.

These lawsuits against Monsanto are brought to help individuals who have suffered harm, but also impact our food system as a whole, and have the potential to influence change in the regulatory landscape.

Michael Baum in the senior managing partner of Baum, Hedlund, Aristei & Goldman, and he has been lead counsel in thousands of personal injury, drug catastrophe, and mass disaster litigations.  He is a graduate of UCLA Law School.  Pedram Esfandiary joined the firm in 2016.  He holds a law degree from the University of Birmingham Law School, UK, and a Master of Laws degree from the USC Gould School of Law.

Baum, Hedlund has quite a bit of information about these lawsuits on their website.  See here for information on the Monsanto Papers, which are documents obtained by the firm during discovery.  And see here for information on how the class action differs from the individual lawsuits.  For more information on Monsanto, contact info@baumhedlundlaw.com.

 

NOTE: The interview has been edited and condensed for readability.

Diana Winters [DW]

Michael Roberts [MTR]

Michael Baum [MB]

Pedram Esfandiary [PE]

 

 

DW: Can you tell us a little bit about your background and what brought you to these Monsanto cases?

MB: Well I actually started doing various forms of product liability cases in pharmaceutical products. And I’ve worked on a wide range of [] wrongful death and product liability cases. One of the women that works in our office had an uncle who was a farmer up in San Luis Obispo area, and used nothing but Roundup, which is a glyphosate-based herbicide. And he and his dog both developed lymphoma and died, [from] non-Hodgkins lymphoma, and they asked us to look into it. Another UCLA grad, Brent Wisner, at our office, and I had been …looking into ways of using litigation to influence or prove or expose what is going on with the pesticide industry interfering with the food supply [by] contaminating it, or killing the bees and the pollinators that honey farmers and almond growers and pistachio growers [rely on].

So we were interested in the area, and started pulling data on the relationship between glyphosate based formulations like Roundup that are used to kill weeds, and non-Hodgkins lymphoma, and found that there had actually been a publication in March of 2015 at IARC, the International Agency for Research on Cancer, that [noted] the association between glyphosate based products and non-Hodgkins lymphoma and other forms of cancer. And the strongest correlation was with non-Hodgkins lymphoma.

 

DW: What is the International Agency for Research on Cancer? Is it a United States-based organization?

MB: World Health Organization. A lot of neutral independent scientists are appointed by the World Health Organization as part of the International Agency for Research on Cancer. They are leading academics and scientists from around the world, and they are do non-industry funded research, which is important in this area because so much of academic research is corrupted by industry. I’ve been on the soapbox for a long time.

 

 

DW: Okay, and so you started to collect this data, and—?

MB: … [The report showed] elevated levels of carcinogenicity related to Roundup and glyphosate-based products. So with that body of science we had enough to file a lawsuit. So we … summarized it, and decided to represent the family of the farmer in San Luis Obispo who … believed that Roundup was safe for humans because it said so on the label. The label says it affects an enzyme found in plants, but not in humans or pets, [so was] safe to use on food. And he had a citrus farm and he went around and sprayed all of his trees and around his trees with Roundup thinking it was safe.

 

DW: And [] under what theory was the case brought?

MB: That [the farmer’s] exposure to Roundup while he was spraying it around his farm caused non-Hodgkins lymphoma. And there are a couple of mechanisms for how it does that.

[Baum explains here that the glyphosate in Roundup and other herbicides combines with another molecule in the herbicide, a surfactant, which multiplies exponentially the harmful effects of the glyphosate.]

PE: [] What is significant here is that Monsanto managed to focus regulatory agencies and the public on just glyphosate whereas what is being used is Roundup, a formulated product, [including] the surfactants and [other chemicals] that contribute to the carcinogenicity of the product. There are impurities in there that come about as a result of the manufacturing process. One of them is dioxane, which is a recognized carcinogen. Another one is formaldehyde which is another recognized carcinogen, as well as NNG . These are all individual carcinogens that are in the Roundup formulation.

MB: So the surfactant is supposed to be inert. And the way they define inert is that it is not the active molecule that is interfering with the enzyme pathway that glyphosate influences. And they test them separately, not together.

 

DW: Even though they are together in the product?

MB: Yes.

PE:  So the EPA [studies] of Roundup, [are not of] Roundup, [but] of the molecule glyphosate.

MB: So one of the issues is that glyphosate by itself, under the conditions, is not as carcinogenic as the formula that has the surfactant in it. And so studies—some of the internal documents that we got from Monsanto, and that we declassified and circulated around the world, was their internal discussion saying we can’t say that Roundup is not carcinogenic because we haven’t actually tested that and don’t want to know the outcome.

 

MTR:  It’s interesting, you sent these documents to Europe how many years ago?

MB: A year and a half.

 

MTR:  A year and a half ago.

MB: Just before Roundup and glyphosate-based products were supposed to be getting their license renewal for the next fifteen years.

 

MTR:  The outcome of that, was what?

MB: It stopped it being renewed for fifteen years.

DW: There were a bunch of these cases, right? The non-Hodgkins lymphoma cases?

MB: Yeah, we represent about 700 people.

 

DW: So these are separate cases that have been combined in a multi-district litigation?

PE:  Both the state level and federal level, it is multi-district litigation. In California, we have a JCCP, which is a Judicial Council for Coordinated Proceedings.

MB: It is the California equivalent of an MDL.

 

 

MB: There is a consolidated group of cases in Saint Louis. And all told there have probably been around 8,000 cases filed.

 

[DW asks about the timeline of other filed cases.]

MB: As we …were looking around to see how and where to file, one of my colleagues from this other litigation I worked on, … invited us to come to [a meeting with other lawyers filing Roundup cases in January 2016]. So we were part of that initial crew of law firms that came together to sort of strategize where and how to file, and what experts to get, things like that.

 

DW: Why are some of the cases brought in federal court and some in state court?

PE:  Well, it’s just legal strategy. So the federal cases have been consolidated, and the … MDL judge has bifurcated those cases, which means he wants to consider general causation first, which is the question of whether this product can generally cause cancer in human populations, before he proceeds to considering specific causation, i.e. whether it caused cancer in any individual plaintiff. And that is a significant hurdle for the plaintiff’s bar to overcome, especially in federal court with the Daubert standard[1] for expert testimony.

So that is one reason. Another reason is because of the high standards for admitting expert testimony in federal court versus state court. State proceedings tend to be a lot more kind of full steam ahead, and getting to a trial is going to be maybe not easier but a more streamlined process.

MB: So one of the issues in federal court due to the bifurcation was that we were limited on what discovery we could do, and then … everything had to be related to general causation. We wanted to get our hands on some of those internal documents which showed this corruption going on, and ghostwriting [of scientific articles], and having journal editors and journal peer reviewers on Monsanto’s payroll. That is real corruption. And that doesn’t relate to whether or not glyphosate as a molecule causes cancer, it relates to—wrongful conduct by the company but doesn’t necessarily mean it could cause cancer. So we had run into quite a bit of resistance from Monsanto to give us those documents, and from the judge considering whether or not he would give them to us. We ended up getting some, but not all—so we wanted to have the state court litigation where there wasn’t necessarily going to be bifurcation, and that would allow us to get access to some of these [documents].

 

 

DW: [In addition,] there is another case too, right? The class action that is alleging economic harm?

MB: Yes.

 

DW: When did that come about, and why, and how does it work? …

MB: Yes. [W]hile we were working on this, Pedram and I in particular were researching how does non-Hodgkins lymphoma get caused by a pesticide? How does that occur? Either getting it on your skin, or you are breathing it in, or you may have a background level that you are already exposed to because it is in all non-organic food. So we decided to just pull the string on it and do research, and some of the research that came out of that is that there is—part of the human body…is a bunch of bacteria and fungi … that are called microbiota that …are the gut flora that help process foods and create the vitamins, and are part of your immune system. And they are also in your skin and all of your mucus membranes. And the label for Roundup says [it affects an] enzyme found in plants not in humans or pets,” so it’s safe. And they actually promoted it as being safer than salt, and you can actually drink it or put it in your food or bathe in it. They got prohibited by Elliot Spitzer in New York from saying those things, but the label gives the impression, and marketing gives the impression you can put on your shorts and walk out and spray the Roundup on your yard and on your driveway, and there’s no harm to worry about to your kids or your  pets or yourself because it only affects an enzyme found in plants, not in humans.

And the lawsuit that we filed is that [the herbicide] interferes with a pathway called the shikimate pathway that involves an enzyme that is necessary for the plants to create three amino acids that are formed in building blocks for proteins. You interfere with those amino acids, you don’t get the proteins, and then the plant dies. And the microbiota that are on your skin and in your mucus membranes and in your gut rely upon the shikimate pathway. Human cells don’t have that pathway, so they don’t depend on the pathway, so it’s partly correct to say that it affects an enzyme found in plants, not in humans. But it is incorrect because the gut flora that are in your body are affected by it. And so it kills them or weakens some beneficial microbiota that affect and monitor cancer cells, and pathogenic microbiota. And some of the pathogenic microbiota are resistant to glyphosate. So it negatively selects bad bacteria to grow and thrive, and decreases some of the microbiota that are helpful for preventing some forms of cancer.

 

MB: … So we filed a lawsuit saying that the label for Roundup is false and misleading because it leads people to think that it is safe for use around their homes, or around their landscaping, or around their farms when it actually affects a big part of the human body, which is the microbiota.

PE:  And the labeling case, we don’t have to necessarily show that the effect on microbiota causes disease. We just have to show that the microbiota are affected by glyphosate, which is contrary to what is on the label.

 

DW: So you don’t have to have the specific causation.

PE:  Yeah, so it’s like we don’t have to sit down and determine in a general population would this have led to any adverse events for any specific plaintiff.

 

DW: Because you wouldn’t have bought it if you knew it would possibly do this.

 

 

PE:  …[I]t’s about informed choice. If there is a label on there saying, look this stuff can cause cancer, this stuff interferes with a vital mechanism in your body, then the consumer should be made aware of that. Even when you buy cigarettes you are in full knowledge that this causes cancer, right? You can at least make the choice with that information in mind. Right now for Roundup there is no such label, there is no warning, there is no indication that this could potentially cause harm. So it’s—whether it should be on the market, off the market, that’s a regulatory decision, but at least the consumer should be made aware of its potential danger, and that is what the lawsuit is.

 

DW: As you said, this case is about information disclosure and letting people make informed choices. But it also sounds like as a whole, and specifically with the non-Hodgkins lymphoma cases you are also doing a bit of policy work by [publicizing] these documents … and trying to actually change the regulatory landscape, is that correct?

MB: Yes, so one of the things we did was we summarized some of the documents, and summarized some of the IARC findings, and submitted those … to help the California equivalent of the EPA make a decision about how to list glyphosate and glyphosate-based formulations as carcinogens for Prop 65.[2] And there are two battles.

One is whether California can rely on an entity like IARC to make a decision of whether to list something under Prop 65. It is an outside entity, it is not regulated [by] the California government or the California EPA, … And we wanted to support California going forward with listing it as a possible carcinogen based on the science that IARC—because it was independent science, and not industry funded science, and not ghostwritten science, it was independent scientists who came to that conclusion using animal, petri dish, and human epidemiology to arrive at that conclusion. So we wanted to make sure they were aware of that, and also aware of some of the internal documents we accumulated showing how Monsanto had been attempting to influence the regulators, and actually had a campaign to invalidate and discredit IARC. One of the things [Monsanto was] trying to avoid is a Prop 65 listing. And so we brought with us also the battle plans that Monsanto had for responding to the IARC carcinogenicity finding. These are now declassified. …

PE:  But the broad—the policy issues here is that Monsanto’s kind of mantra has been to say 70 regulatory agencies across the world have approved glyphosate for use in their countries. The problem with regulatory agencies [is that they are] usually aligned with the executive, right? Or [with] the administrative government, and they are subject to lobbying influence. Whereas IARC is quite literally a research organization which receives funding from governments, but it is not approached by lobbyists, it doesn’t make regulatory decisions, it has no enforcement power, it is just an arm of the WHO that does pure research. So that is what is so compelling about IARC’s findings …

 

 

DW: What about unintended consequences? Glyphosate has been around for, what, decades now?

MB: Yes.

 

DW: So have they developed something new, and are we more scared of that?

MB: Well …one of the agriculture effects has been that there are weeds that are developing resistance to glyphosate. … Super weeds, super pig weeds that used to be—you could just pull them or use a weed whacker to kill them, you need—they are super thick, super tough, and require an electric saw to cut them. That was one of the beefs that Europe had with Roundup, is there is a whole lot of super resistant weeds growing there that are taking over, and so that is a problem.

So Dicamba was developed to help with that. And one of the problems with Dicamba, it’s more volatile, and it’s become—it gets up in the air and floats. And so it will float over to other farms, and where their plants are not resistant to Dicamba and it kills them. …

 

 

PE:  [A]t least what the litigation does is kind of spearhead the process towards alternatives.  By making all of the risks and potential dangers known it incentivizes innovation and research towards advances. Particularly since such a large proportion of the food supply is already contaminated with Roundup and glyphosate, and naturally people want to steer away from that way of cultivating food.

[Discussion of potential health effects of the human consumption of Roundup, including research on gluten sensitivity as caused and exacerbated by herbicides in human food.]

MB: So an amusing story, when we went to Brussels, and we had this package of documents we were circulating around to the EU. We met with some of the German agriculture minister’s office, and we had a nice little meeting in there, and they had a plate of cookies and things to drink. And as I was explaining the glyphosate connection I said—the woman that was working as our liaison started to grab a cookie, and I said, that cookie and all of the cookies on that plate, if they were not organic and were made from flour that was probably treated with Roundup just before the harvest you are about to eat a bunch of glyphosate, and she put it down.

 

 

DW: Please tell me where these cases are right now.

MB: Well there is the state level, and the federal level. We, in March finished off the Daubert hearings in the federal case, and he hasn’t ruled yet. We have a similar set of hearings in the state case, and it’s called the Sargon hearing–it is the California equivalent of the Daubert hearings–and that is evaluating whether our experts used valid methodology to arrive at their conclusions that there was a carcinogenicity connection.

[Discussion of “preference” case Baum and Esfandiary have that was about to go to trial.  A preference case is a case that goes to trial quickly because the plaintiff is dying or elderly.]

About a month ago the Sargon hearings [in this case] were completed and the judge issued a very comprehensive, detailed analysis rejecting Monsanto’s arguments that our experts are not to be allowed to testify, and he said that there was good justification for them to testify. [The court also] rejected their motions for summary judgment, and allowed us to present punitive damages data saying that there is ample evidence upon which a reasonable jury could conclude that ‘malice, oppression or fraud’ might have occurred by Monsanto. So this case is starting in San Francisco City on June 18th.[3]

 

 

DW: It is really interesting how these cases are working together towards incremental change but also systemic change.

MB: And that is one of the things I wanted to get across to students who read this, is that there is something that you can do with a law degree to create change.

 

DW: And that was going to be my final question. Do you have advice for aspiring lawyers who want to work for the public interest, in the public interest, for private firms working in the public interest, to make the world a better place?

PE:  Honestly, my perspective from the limited experience I have had is that you can achieve a significant amount on the local government level. Especially in a country like America where such power is by default in local governments given a federal system. We don’t have that luxury in the UK, [because] everything is monitored and controlled by Parliament in London, whereas here there is so much local initiative to make a change. And I think especially when it comes to environmental issues, states have discretion, so being involved on a local level does have a lot of impact. You don’t have to necessarily always aim at the White House, and federal grand sweeping changes.

 

DW:    Thank you so much for talking with us.  We so appreciate your time and this important work.

 

[1] The Daubert standard is a rule of evidence in federal court regarding when the testimony of expert witnesses can be admitted. Since this interview, the federal MDL judge ruled in plaintiffs’ favor on the Daubert motions.

[2] Editor’s Note: Proposition 65 was enacted in California in 1986.  As part of the law, the state publishes a list of chemicals that are “known to the State of California to cause cancer or reproductive toxicity.”

[3] The Johnson case proceeded through trial shortly after this interview and the jury returned a verdict of $289.2 million against Monsanto, including $250 million in punitive damages.

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