Listen to editor Maureen Nandini Mitra’s conversation with Gillam about her book on KPFA Public radio.
BY THE SUMMER OF 2017, the plaintiffs’ attorneys had completed several depositions of Monsanto executives and felt they were nearly ready to go to trial. There was so far no smoking gun—no internal memo indisputably tying the company’s products to cancer. But the legal team had what they saw as strong evidence that the company had long been aware of concerns about the potential cancer risks of the Roundup formulations that combined glyphosate with certain surfactants.
In 2018, a San Francisco jury ruled that California groundskeeper Dwayne Lee Johnson’s non-Hodgkin’s lymphoma was caused by exposure to Monsanto’s herbicide, Roundup. Photo provided.
There were reports about how rapidly the glyphosate formulations were absorbed into human skin; how the chemicals could accumulate in bone and bodily organs. And there were many questionable emails between Monsanto and EPA officials that the lawyers were convinced showed unethical collusion with the regulators.
The team even had started getting help from an anonymous tipster. Mysterious brown envelopes with no return address began showing up at attorney Aimee Wagstaff’s office in Denver and at The Miller Firm in the tiny town of Orange, Virginia. Inside one envelope was a single sheet of paper containing typed suggestions for specific documents the legal team should request from the EPA. Another listed several EPA and government officials the team should look into. The envelope was postmarked in New York. One of the anonymous tip sheets came in via fax.
The team thought they might finally have a way of tracking down the tipster and hired a private investigator to determine where the fax originated. After a little sleuthing, the team learned the fax had come from a retail printing and copying store in the Washington, DC, area. They were able to convince the retailer to turn over video recorded on store security cameras at the exact time and day the fax was sent. The footage did capture images of the person sending the fax, but the visual was too grainy to allow a sharp look at the person and caught him only in profile as he leaned over the fax machine.
The lawyers could tell their secret tipster was a Caucasian man who was wearing a light-colored shirt with a dark jacket and a hat pulled low over his head. But it was not enough to help them track him down. Though they failed to figure out the identity of the source, the team was still thrilled by the information. One of the mailings in particular was shocking. It was a copy of a letter dated March 4, 2013, that appeared to have been written by a thirty-year career EPA scientist named Marion Copley. In the letter Copley accused the EPA’s Jess Rowland of playing “your political conniving games with the science” to favor pesticide manufacturers such as Monsanto.
Rowland was the official who oversaw the EPA’s cancer assessment for glyphosate and the one who retired from the EPA shortly after the helpful leak of the draft cancer assessment report to Monsanto. In the correspondence, Copley wrote that it “is essentially certain that glyphosate causes cancer.” Copley accused Rowland of having “intimidated staff” to change reports so they favored companies such as Monsanto. If the Miller team could prove the letter was authentic, it would be powerful evidence for the plaintiffs in court.
Gillam’s book takes readers behind the scenes of a grueling legal battle, pulling back the curtain on the frailties of the American court system and the lengths to which lawyers will go to fight corporate wrongdoing.
There was one big problem, though. Copley had died from breast cancer at the age of sixty-six in January of 2014. Without Copley to confirm that she had written the correspondence, the team likely wouldn’t be able to use the letter. They reached out to her husband, who still lived in the DC area, but he wanted nothing to do with the messiness of the litigation and refused to let the attorneys go through Marion’s computer to see if they could find a trace of the letter.
Even if they couldn’t do much with the Copley letter, the legal team felt great about where they were. There were scores of documents that showed that rather than acting to warn consumers or change the formulas as concerns mounted, Monsanto had instead worked to suppress the concerns and manipulate the scientific literature. Mike could hardly wait to get it all in front of a jury.
With the evidence against Monsanto coming together, the hunt for Roundup plaintiffs was in full swing. To help spread the word, the legal team arranged a daylong Roundup Litigation Conference for June 29 in Chicago. The goal was to educate other lawyers about the evidence already in hand and the status of both the multidistrict litigation set up under Judge Vince Chhabria and a multitude of state cases that were proceeding separately. Small firms that had cancer victim clients but were uncertain about their ability to take their cases to court alone would be encouraged to refer their cases to the lead firms. Mike and Nancy Miller of the Miller Firm, Aimee Wagstaff, Aimee’s colleague from New York, Robin Greenwald, and Los Angeles attorneys Michael Baum and Brent Wisner would do the bulk of the work, and the small firms would receive referral fees.
IT WAS A HOT and sunny summer day in Chicago, but inside the darkly tapestried, air-conditioned meeting room on the eighth floor of the InterContinental Chicago Hotel, the temperature was pleasantly cool as the legal team took turns laying out the twists and turns of the litigation and what lay ahead. The gathering was small but diverse, with lawyers showing up from Arizona, Florida, Oklahoma, and elsewhere to explore how they might get involved in the legal fight. They sat quietly taking notes at long tables bearing water pitchers and dishes of mints in shiny green and blue wrappers. On a large projection screen at the front of the room, Aimee, Michael, and the others took turns sharing a slide show of key documents and data they had gathered so far.
Aimee told the group that Monsanto had already scored some major points against the plaintiffs’ lawyers, starting with the “sandbagging” when the unfinished EPA cancer report was briefly publicly posted to the internet, declaring Monsanto’s herbicide not a cancer risk. When the lawyers deposed the EPA’s Jess Rowland, who was the author of the report and appeared cozy with Monsanto, Rowland had denied any wrongdoing and claimed not to remember anything about how his draft report was briefly posted at a critical time for Monsanto. The fact that Rowland left the EPA shortly after the leak and found work consulting in the chemical industry was something the lawyers felt certain was no coincidence.
Another blow had come just that month when an explosive story published by the international news agency Reuters rocketed around the world. It alleged that the chairman of the IARC group that classified glyphosate as a probable carcinogen had withheld critical research information about glyphosate from his fellow scientists. The information that this scientist — Dr. Aaron Blair of the National Cancer Institute — withheld reportedly showed that glyphosate did not cause cancer, the story stated. Had the scientist simply been more open and honest, the story suggested, the classification potentially could have been different.
Bolstered by press statements from Monsanto and its lobbyists, the article sparked widespread concern about the integrity of the IARC review. Monsanto and its allies were pushing members of the US Congress to probe the validity of the organization’s cancer classifications, even suggesting that Congress strip funding from the international cancer agency.
The lawyers were certain that Monsanto had somehow engineered the story. The company had deposed Dr. Blair early in 2017, and the Reuters reporter who wrote the piece, a health correspondent based in London, declared in her article that the narrative was based in part on that deposition of Blair. And even though the reporter attributed the material for her story to “court documents,” the deposition had not actually been filed in court, meaning the reporter most likely got it from Monsanto, the lawyers knew.
More importantly, it was clear to the lawyers that the reporter had mischaracterized the statements Blair made in the deposition. All one had to do was read the deposition to see the truth, but the reporter had not provided such a link, and the deposition was not publicly available. Most readers would simply assume the story was true, that the IARC classification was flawed. It was a slick move by Monsanto. The lawyers were learning that the company didn’t only work behind the scenes to manipulate the scientific record; it also appeared to have ways of manipulating international media.
“Monsanto fights hard, fights dirty, fights every step of the way,” Michael told the group, dressed in his typical casual lawyer attire — a dark blue suit and blue button-down shirt. The best way to fight back was to continue to dig through the company files turned over in the discovery process and bring as many damning documents as possible into the public domain. Monsanto officials were going to have a very hard time explaining away the internal discussions that repeatedly seemed to show more concern about sales than about protecting public safety, he said.
In fact, Michael explained, in just a few weeks, if all went as planned, the team would be releasing to the world what they had started referring to as “hot dox”—portions of Monsanto’s internal files that the company had provided in response to discovery requests. Monsanto had been pressing to keep most of the discovery documents it turned over sealed from public view, and the lawyers knew that a document release was likely to raise the ire of Judge Chhabria. The judge had been keeping a tight rein on what the lawyers in the case could and could not do with the evidence they were compiling. But Michael, Brent, and Tim believed that the public had the right to know about important issues divulged in the documents — sooner rather than later. They were not yet sure how or when they could get the documents into the public spotlight, but they were working on a plan.
“The documents show internally they understood they had a cancer problem,” Michael told the group. “It’s our job to help the world find about this stuff.”
When it was Tim’s turn to lay out more aspects of the case, he compared the Roundup litigation to lawsuits that brought to light the health hazards of smoking. He had spent the past few months tracking a web of payments made by Monsanto to third parties. It looked to him as though those payments bought pro-Monsanto messaging on social media, in news outlets, and through seemingly independent health and science organizations. These third parties were supposed to defend the safety of Monsanto’s products and attack anyone who agreed with IARC or expressed concerns about the herbicides — but appear to be doing it without Monsanto’s backing. Just as with the ghostwriting of scientific literature, Tim saw Monsanto’s deceptive tactics as posing dangerous consequences to public health.
“We’ll look back in twenty years and we’ll all know it is terribly carcinogenic,” he said. “We’re going to slap some new tires on the wheels of justice.”
Tim’s confidence was shared by most of the team, but there were some lingering doubts. Their case was strong, but was it strong enough? A look at the history of litigation brought against Monsanto showed that the company rarely lost. With deep pockets and some of the nation’s biggest and most talented law firms at its disposal, the company had demonstrated that it would fight long and hard against anyone who dared challenge its products and practices.
This legal fight, challenging the safety of a widely used consumer product that regulators around the world solidly backed as safe, was clearly not going to be easy. Nor would it be fast. It would cost millions of dollars, thousands of working hours, weeks and months of time in courtrooms around the country, and many missed holidays and family events for the lawyers involved. A loss on this grand a scale for the legal team would be painful, even potentially crippling. Would it be worth it?
Could they actually win?
After the presentations concluded, the team gathered in a small cocktail lounge to relax. Waiters crisscrossed the room offering trays of hors d’oeuvres to the hungry group of lawyers as they talked through the events of the day and the uncertainties ahead. They did not yet have a lead plaintiff designated, nor did they know who their first judge would be or where the first trial would take place. Many other firms around the country had taken a look at the cases on file and decided not to join in the litigation because of the cost and risk involved. If there was a time to turn back, now was the time. But Mike, Tim, Aimee, Brent, and the rest of the team knew they were going forward.
As Aimee looked around the table at her fellow lawyers, she saw the doubt in their eyes and a need for reassurance. She lifted her margarita glass in a semi-toast. “We’re going to win! We are, you know.” She smiled and took a long, satisfied drink of icy tequila. “We’re really going to win.”
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