Volume 4 Pages 541 - 783 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA Before The Honorable Vince Chhabria, Judge EDWARD HARDEMAN, Plaintiff, VS. MONSANTO COMPANY, Defendant. ) NO. C 16-00525 VC ) ) PAGES 779 - 781 ) FILED UNDER SEAL ) )BY ORDER OF THE COURT AND BOUND SEPARATELY ) ) ) ) ) San Francisco, California Tuesday, February 26, 2019 TRANSCRIPT OF PROCEEDINGS APPEARANCES: For Plaintiff: BY: BY: ANDRUS WAGSTAFF PC 7171 W. Alaska Drive Lakewood, Colorado 80226 AIMEE H. WAGSTAFF, ATTORNEY AT LAW DAVID J. WOOL, ATTORNEY AT LAW MOORE LAW GROUP 1473 South 4th Street Louisville, Kentucky 40208 JENNIFER MOORE, ATTORNEY AT LAW (APPEARANCES CONTINUED ON FOLLOWING PAGE) REPORTED BY: Marla F. Knox, RPR, CRR Jo Ann Bryce, CSR No. 3321, RMR, CRR, FCRR Official Reporters 1 APPEARANCES : 2 For Plaintiff : (CONTINUED) 3 4 BY: AUDET & PARTNERS LLP 711 Van Ness Avenue - Suite 500 San Francisco, California 94102 MARK E. BURTON, ATTORNEY AT LAW 5 For Defendant : 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY: WILKINSON WALSH ESKOVITZ LLP 2001 M Street, NW - 10th Floor Washington, D.C. 20036 BRIAN L. STEKLOFF, ATTORNEY AT LAW RAKESH N. KILARU, ATTORNEY AT LAW TAMARRA MATTHEWS JOHNSON, ATTORNEY AT LAW JULIE RUBENSTEIN, ATTORNEY AT LAW 1 I N D E X 2 Tuesday, February 26, 2019 - Volume 4 3 PLAINTIFF'S WITNESSES 4 RITZ, DR. BEATE (RECALLED) (PREVIOUSLY SWORN) Direct Examination resumed by Ms. Wagstaff Cross-Examination by Ms. Matthews Johnson Redirect Examination by Ms. Wagstaff 553 554 646 721 4 4 4 4 GOLDSTEIN, DANIEL By Video Deposition (not reported) 732 4 5 6 7 PAGE VOL. 8 E X H I B I T S 9 TRIAL EXHIBITS IDEN EVID VOL 10 100 732 4 1467 592 4 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PROCEEDINGS 1 Tuesday - February 26, 2019 8:13 a.m. 2 P R O C E E D I N G S 3 ---000--- 4 (Proceedings were heard out of presence of the jury:) 5 THE COURT: Good morning. First of all, we will have 6 a hearing on the order to show cause re: sanctions today at 7 just after -- we have a criminal matter at 2:45, right? 8 after the criminal matter we will have a hearing on the order 9 to show cause whether Ms. Wagstaff should be sanctioned, and 10 I'm ordering Mr. Hardeman to be at that hearing. 11 is ordered to be present at the hearing. 12 MS. MOORE: Okay, Your Honor. Santa Rosa. 14 will have someone arrange for that to happen. 16 Mr. Hardeman They take the bus from 13 15 Just It takes them about three hours to get here. THE COURT: Okay. We Thank you. Thank you. Now, I have this letter requesting this curative 17 instruction. I'm not going to give this instruction, but it 18 did provoke some thoughts about how to handle this issue a 19 little bit more. 20 Is Dr. Ritz in the courtroom? 21 I have two thoughts. Yes, she is. One is that I thought that generally 22 speaking it is a hard line to draw, but I thought that Dr. Ritz 23 handled it about right during her testimony yesterday. 24 case you are wondering what I'm talking about, I'm talking 25 about this -- the McDuffie/Eriksson dose response issue. And in PROCEEDINGS 1 So I thought that Dr. Ritz handled it about right. It is 2 a challenging issue because you have to be allowed to testify 3 to the numbers that emanate from those studies, but you cannot 4 draw the kind of conclusion about them that Ms. Wagstaff drew 5 in her opening statement or -- even if you believe that you can 6 draw that conclusion, I'm not allowing testimony to that 7 effect. 8 9 So -- but it strikes me that the real problem comes in at specific causation. And I'm wondering, you know, based on 10 reading this letter and sort of thinking about it further and 11 seeing how the testimony has come in and seeing how the opening 12 statement came in, I'm wondering if the ruling should simply be 13 that the specific causation experts may not testify about 14 McDuffie and Eriksson, or at least the dose response -- the 15 dose response data from McDuffie and Eriksson. 16 the general causation experts can testify about it as part of 17 the overall mix of information that would lead them to conclude 18 that glyphosate is capable of causing non-Hodgkin's lymphoma, 19 but the point is that the specific causation experts can't 20 assign sort of quantitative risk to someone like Mr. Hardeman 21 based on those unadjusted numbers. 22 Because the -­ So it seems to me that the consequence of that -- the most 23 sensible consequence of that is probably to say that the 24 specific causation experts may not testify about the McDuffie 25 and Eriksson dose response numbers at all. So that's my kind PROCEEDINGS 1 of tentative inclination. 2 about that now because -- when is the first specific causation 3 expert coming? 4 MS. WAGSTAFF: 5 THE COURT: 6 We don't necessarily need to argue Not this week, so we can -­ Okay. So we can find a time to talk about that, but that is my tentative inclination. 7 MS. MATTHEWS JOHNSON: Your Honor, just very briefly. 8 I do understand your point; and I was listening very closely to 9 Dr. Ritz, and we thought about looking at the transcript and 10 making the submission we made because we wanted to look at the 11 totality of what she had done in terms of speaking about 12 unadjusted numbers and purported dose response. 13 to raise for the Court there is an upcoming exhibit that is 914 14 by the Plaintiffs. 15 THE COURT: 16 MS. MATTHEWS JOHNSON: But I do want Okay. And it is -- it purports to be 17 a plot summary of NHL risk dose response. 18 here with McDuffie and with Eriksson, they are plotting 19 unadjusted odds ratio -­ THE COURT: 20 21 put up? And what happens Is this the chart that Ms. Wagstaff just Is that what you are referring to? 22 MS. MATTHEWS JOHNSON: 23 THE COURT: 24 MS. MATTHEWS JOHNSON: It is different. 25 MS. WAGSTAFF: There is a different one. No, no, it's not. That's not about dose response. Sorry. PROCEEDINGS 1 I would like an opportunity to explain what we are 2 actually going to do with this because obviously this hasn't 3 even been presented to the witness yet. 4 5 6 7 THE COURT: Right. a second. MS. MATTHEWS JOHNSON: MS. WAGSTAFF: 9 THE COURT: 11 12 And we have a paper copy. (Whereupon, a brief pause was had.) 8 10 Let me just take a look at it for This is Number 914 in your binder. Right. I have seen this. This was used in the opening statement as well; right? MS. WAGSTAFF: I don't think this was used in the opening statement. 13 THE COURT: Okay. 14 MS. WAGSTAFF: So as you can see from this chart that 15 we have been walking through -- and we have been marking it 16 adjusted and unadjusted -- admittedly, Monsanto reminded me 17 last night at midnight that I forgot to put "unadjusted" by 18 this, and I will clear that up to the jury today. 19 clearly identifying which ones are adjusted and which ones are 20 unadjusted. 21 Honor's warning -- and I will have her tell us which ones are 22 adjusted and unadjusted. 23 the value she places on unadjusted versus adjusted. 24 25 We have been We fully intend when we get here -- I heeded Your She is going to explain to the jury What Monsanto is asking you to do is their cross-examination for them. They are asking you to take out a PROCEEDINGS 1 2 subset of data instead of allowing them to -­ THE COURT: I understand. And my reaction to this is 3 that assuming that Dr. Ritz testifies, you know, about McDuffie 4 and Eriksson when using this chart in a manner similar to the 5 way she testified yesterday, I think it's appropriate. 6 MS. WAGSTAFF: 7 THE COURT: 8 MR. STEKLOFF: 9 Thank you, Your Honor. Anything else? No, Your Honor. On the specific causation issue that we just discussed, I 10 think we just need to think through it. 11 things in your order that you noted was -- I think because of 12 the challenge of this issue is unless we decide to use it for 13 impeachment -- I don't know that we will do that, and I think 14 it differs between the experts -- so I do think potentially, 15 say, with Dr. Nabhan -­ 16 THE COURT: Right. I mean, one of the If you -- it may be -- obviously 17 it is appropriate for you to decide, Look, these things that 18 they said are just so ridiculous that I want to impeach them. 19 We want to impeach them on it and show the jury that they are 20 willing to say anything, that's fine. 21 should set some ground rules for what comes in affirmatively, 22 assuming you decide not to impeach them with those statements. 23 MR. STEKLOFF: I fully agree. But we, nonetheless, I'm just flagging -- in 24 my mind it is complicated how to deal with it because of that. 25 As we think through this -- I think you've noted it in your PROCEEDINGS 1 order -- I want to think about it as well. 2 rules for their direct -­ 3 THE COURT: I think ground Yeah, but I assume that if you decide to 4 impeach them on it, if you decide to impeach Dr. Nabhan on it, 5 all bets are off; and you and he can have an argument about the 6 McDuffie and Eriksson studies until the cows come home. 7 8 MR. STEKLOFF: I hope to avoid that, but I understand what you are saying. 9 THE COURT: Anything else? 10 MS. MOORE: Your Honor, briefly. We received Your 11 Honor's order regarding Dr. Goldstein, and I just have a couple 12 of minor questions about that. 13 THE COURT: I didn't bring that up with me. 14 MS. MOORE: I have an extra copy, Your Honor. 15 16 17 18 19 20 21 22 Would you like that? THE COURT: I don't know if I need that. You can tell me if you think I need it. MS. MOORE: Okay. On page 13, Your Honor, it was sustained as unopposed and -­ THE COURT: I assume you just forgot to include a response to that. MS. MOORE: Yeah, it was on the Excel spreadsheet, 23 Your Honor. And I'm sorry, there are so many different 24 versions going back and forth between the parties, every time 25 we make changes. Anyway -- PROCEEDINGS 1 2 THE COURT: You want to put that in and you want to put that into -­ 3 MS. MOORE: It is just his background, Your Honor. 4 THE COURT: Right. 5 If I recall correctly, that was his education? 6 MS. MOORE: It's his training and education. 7 THE COURT: And his training. You know, I think that 8 probably -- I was sort of inclined when I read it to let it in 9 because, you know, he makes these statements about AHS being 10 strong and the other studies being weak; and I allowed those 11 statements in, if I recall correctly. 12 there is probably some relevance to it. So I actually think 13 MR. KILARU: 14 THE COURT: So that will be allowed. 15 MS. MOORE: So that will stay in. 16 17 That's fine, Your Honor. The video tech will appreciate that. And then on page 245, Your Honor, you -- I'm sorry, 245, 18 you sustained the Defendant's objections on that. 19 questions about "Apart from the AHS, there have been other 20 studies conducted on the epidemiological studies on the 21 relationship between Roundup exposure and the onset of NHL; 22 correct?" 23 And the answer is "Correct." 24 And then the question is: 25 And that was "Do you agree there are -­ these other epidemiological studies that evaluate Roundup PROCEEDINGS 1 exposure and the onset of NHL shows statistically significant 2 elevated risk of NHL given Roundup exposure?" 3 And he said "Yes. 4 increased odds ratio." 5 Some of them did show statistically And then it goes on from there and says -­ THE COURT: 6 Gets into his criticism of those studies. 7 I don't think that's admissible. 8 as an expert. I mean, he is not testifying I mean, the hook for the testimony that I allowed in is 9 10 the ruling about the Acquavella memo. 11 what I allowed in is the ruling about the Acquavella memo, 12 which does not stand for the proposition that any testimony a 13 Monsanto representative gives about the strength or weaknesses 14 about a particular study are admissible. 15 16 17 MS. MOORE: Okay. I understand, Your Honor. Thank you. And then there was one other place. 18 Your Honor. 19 just a few seconds, Your Honor. 20 The principle underlying This is on page 280, And that may be the same issue. So if you give me And let me scroll through. Oh, this is when Dr. Acquavella -- they were talking about 21 the AHS study, and they are talking about the memo, and he was 22 asked a quote from the memo. 23 disruptive for the agricultural chemical industry as new leads 24 potentially take on a life of their own. 25 correctly?" "This has the potential to be Did I read that PROCEEDINGS 1 "Yes." 2 And you allowed that in, Your Honor. 3 And then after that he asked, "What is your understanding 4 5 of what I just read to you?" So he goes through -- on 281 and 282 Dr. Goldstein goes 6 through his understanding of what that meant, what that 7 criticism from the Acquavella memo meant; and that was what was 8 -- Defendant's objection was sustained. 9 for reconsideration of that because he was designated as a And so we would ask 10 corporate representative, and their understanding of what that 11 1997 memo meant is relevant in Phase One. 12 THE COURT: I remember that portion of the testimony 13 well, and I believe that Monsanto -- all of Monsanto's 14 objections to that are well taken, both 403 and calls for 15 speculation. 16 MR. KILARU: 17 THE COURT: 18 19 20 Your Honor, just one -­ Actually, I think it is a close question whether that first passage should come in that I allowed in. MS. MOORE: Well, I don't want to -- okay. Your Honor. 21 MR. KILARU: 22 THE COURT : Great. 23 MS. MOORE : Okay. 24 THE CLERK: Court is in recess. 25 Thank you, Nothing else, Your Honor. I will be back in two minutes Thank you, Your Honor. (Whereupon, a short break was had.) PROCEEDINGS 1 (Proceedings were heard in the presence of the jury:) 2 THE COURT: Good morning, everyone. Some bad news and 3 some good news. The bad news is that we lost Mr. Pungyan 4 already. 5 being selected for the jury, his wife was experiencing a major 6 change in her employment situation. 7 dramatically cut back. 8 would be able to handle cutting back his own hours and serving 9 on the jury, but given what happened with his wife's Just to let you know what happened to him, as he was Her hours were So during jury selection he thought he 10 employment, it just became too great of an economic hardship so 11 I excused him. So that is the bad news. 12 The good news is that in civil trials, the typical 13 practice is to have eight jurors, and I picked nine for this 14 trial because of how long it lasted and for fear that we might 15 lose somebody. 16 the first day of trial; but fortunately it doesn't create any 17 significant problem for us because of the fact that we usually 18 go with eight. Now, I was not anticipating losing somebody on 19 With that, we can resume the proceedings. 20 And, Ms. Wagstaff, you can proceed with Dr. Ritz. 21 22 23 MS. WAGSTAFF: the jury. Good morning, ladies and gentlemen of Hope you had a restful evening. DR. BEATE RITZ, 24 called as a witness for the Plaintiff, having been previously 25 duly sworn, testified further as follows: RITZ - DIRECT / WAGSTAFF 1 DIRECT EXAMINATION (resumed) 2 BY MS. WAGSTAFF 3 Q. Good morning, Dr. Ritz. 4 A. Yes. 5 Q. Okay. 6 were talking about yesterday, and I realized -- yesterday was a 7 pretty long day and I realized we left one piece of information 8 off of this chart. Are you ready to proceed? So I just wanted to go back to this chart that we I don't remember which color I was using. So I wanted to know when we were talking about the 9 10 Eriksson study, do you remember -­ 11 A. Yes. 12 Q. -- our discussion on that? 13 Okay. This was a dose response study, and you had 14 mentioned that there was a 2.26 risk increase when we -- when 15 there was ten years between -- after exposure. 16 A. Between exposure and diagnosis, at least ten years, yes. 17 Q. Okay. 18 unadjusted? 19 A. 20 for age, sex and province, I believe. 21 Q. 22 here, and that will represent that those numbers are 23 unadjusted. Remember that? And so was that data based on adjusted or It is unadjusted for the pesticides, but it is adjusted Okay. So I'm going to go ahead and put unadjusted right 24 I think I also asked you if Dr. Weisenburger was an author 25 on the North American Pooled Project, and you said that he was. RITZ - DIRECT / WAGSTAFF 1 A. Yes. 2 Q. And I forgot to write his name, so I will go ahead and 3 write his name on there. 4 A. Yes. 5 Q. Okay. 6 actually we have a little key to what A means for adjusted 7 confounders on it. 8 9 So we have two studies left on this chart, and So the last two relate to the Agricultural Health Study. Can you tell the ladies and gentlemen of the jury a little bit 10 about what the Agricultural Health Study is? 11 A. 12 study. 13 from the registry or a hospital, and then we are selecting 14 people from a population -- except for the one study that went 15 to the hospital -- and we are asking them to remember what they 16 did throughout their life; right? 17 occupation, whether they spray pesticides, what they ate, what 18 they smoked, et cetera. 19 actually had a diagnosis; right? 20 asked is already either a case or specifically selected because 21 they weren't a case. 22 So what we heard about so far is called a case control So we are going out and we are assembling cases of NHL And you ask them about their Everything is up to the time when they So everybody who is being So now, we are completely switching gears. This, by the 23 way, case control studies is what we usually do when we study 24 rare diseases; and we call a rare disease anything that is less 25 than 5 or 10 percent in the population. And clearly NHL is RITZ - DIRECT / WAGSTAFF 1 2 around 1 percent or less, so it is a rare disease. Why that is important is because I have to watch a hundred 3 people to even have one person get the disease; right? 4 see that they had all cases there in -- in above the hundreds. 5 So they had 400, 500, 900, 1,600 cases in those studies. 6 that is a lot of people we have to watch. 7 And that is exactly what the next study did. 8 rows there are actually the same study. 9 different studies. So So these two It is not two It is the same study, but the same study at 10 two different time points. 11 because we are doing -- we are switching now. 12 And you And this will become important We are switching from having cases and non-cases and 13 asking them about their life's exposures to having all 14 non-cases who have a certain occupation. 15 Ag Health Study -- Agricultural Health Study -- was actually a 16 non-case when they were interviewed. 17 Actually, if they had had NHL, they couldn't be participating 18 in this study. 19 So everybody in the Nobody had NHL. So we want people disease free at the beginning. And 20 since we are interested in cancer -- and they were not just 21 interested in NHL -- they were actually interested in any 22 cancer: 23 prostate cancer. 24 NHL is just one of them. 25 Breast cancer, lymphoma, leukemia, lung cancer, They were interested in all cancers; right? And what they did is said, Well, you know, who is the RITZ - DIRECT / WAGSTAFF 1 group of people most exposed to pesticides? 2 are interested in, it is farmers. 3 assemble a large group of farmers. 4 cohort, a cohort of farmers. 5 If that's what we So let's go out there and And that's what we call a And let's do that systematically at one point in time when 6 they are -- and in this case when they are coming to get a 7 pesticide application license. 8 actually a smart thing to do, by the way, because they knew 9 that they got farmers who wanted to apply pesticides or have So they were -- that was 10 somebody on their property apply pesticides; and they needed a 11 license for that; right? 12 So we have a built-in -- they have to be exposed at least 13 to some pesticides, not a specific one but, you know, any kind 14 of pesticide or else they wouldn't get the license. 15 also went to two ag studies -- agricultural -- states -- sorry, 16 states. 17 these states have ag extension programs that help farmers in 18 many ways. 19 about pesticides and how to use them correctly and licensing 20 pesticide use. 21 They went to Iowa and North Carolina. And they And both of And one of them they help them is by educating them So these farmers, if they want to buy pesticides, have to 22 come to this licensing agency and take a test. And when they 23 take a test, then they get their license. 24 do what they do. 25 training program. They can go home and But they also instructed -- there is also a It is -- you know, you may all have a RITZ - DIRECT / WAGSTAFF 1 driver's license, so you know you are going to get some 2 training and then you go and take a test; right? 3 same thing here with the pesticides. 4 It is the So these farmers were trained and then went there and took 5 a test to get their license. And at the time when they took 6 that test, they were approached by research assistants from 7 this agricultural extension program who said, Well, you know, 8 we are really interested in farmers' health, so would you mind 9 being part of the study? And we call it the Agricultural 10 Health Study. 11 regular updates on farmer health. 12 to help you in any way we can, but we need to study what your 13 health is. 14 And, you know, by being part of it, you will get And, you know, we just want And so -- but that was done when these people were coming 15 to the -- taking a test. And it was -- so they could feel like 16 if I say no, maybe my chances of passing the test are not so 17 great; right? So I wanted to -­ 18 MS. MATTHEWS JOHNSON: 19 THE WITNESS: 20 THE COURT: 21 22 23 24 25 Objection. Speculation. Well -­ Hold on. There was an objection. You have to give me a chance to overrule it before you continue. Overruled. THE WITNESS: Sorry. But, you know, most of them probably said why not? to know about health, right, so let's do this. I want RITZ - DIRECT / WAGSTAFF 1 So what 2 know, I'm here to 3 questionnaire. 4 And it says on the front it will take you 25 minutes to fill 5 out. 6 questionnaire -- it was a well-designed questionnaire for 7 pesticides in a way because it had 22 pesticides listed, and 8 then asked, Well, for this pesticide, in what year did you use 9 it or better, in what decade? they did is they said, Okay. take a test I will do this. You so I may as well fill out another And it was a 22-page bubble-in questionnaire. So that's a minute per page, bubbling in. And on that How many years did you use it? 10 And also how many days per year on average did you use it? 11 This is easy when you -- maybe when you are a farmer.You 12 are coming there and you are remembering what you did the last 13 12 months; right? 14 pesticides and I went into the field and I did this five times, 15 you know, at the beginning of the season, the end of the 16 season. 17 Last year, yeah, I used these three But they weren't asked to remember the last 12 months. 18 They said remember anything in your lifetime. 19 me this answer, you know, how much did you apply, how many 20 years did you apply on average, on average, and in what decade. 21 Go back and give And yes, the other studies had a similar way of asking 22 people but the other studies sent them questionnaires to the 23 homes and then called them up and encouraged them to ask their 24 spouse or their helpers or look at records. 25 right? It was a process; RITZ - DIRECT / WAGSTAFF 1 Here, you have 25 minutes or some might have taken longer, 2 but you have really a restrictive time period because nobody 3 really expected to be thrown a 22-page questionnaire that you 4 have to bubble in; right? 5 might remember much better and also don't have as much 6 experience with pesticides, so it goes fast. 7 comes there at age 55 and has farmed for 30 years might have a 8 hard time remembering everything; right? 9 They wanted to be good citizens. 10 And some people who were younger But somebody who But they did anyhow. They did it. And they actually got within a period of 1993 to 1997 -­ 11 that's how long it took them -- to get everybody to 12 participate. 13 people to bubble this in. 14 a questionnaire to take home and fill out more information, 15 mostly about health. 16 for the spouses, and then half of the spouses actually sent 17 that questionnaire back. 18 So a four, five year period. They got 54,000 And then in addition they gave them And they also gave them a questionnaire But the people we are talking about today are the farmers 19 who came for the tests and who filled this out and bubbled it 20 in. 21 chance to go back to your records, to talk to anyone about your 22 experience of doing this; and you did that and you thought you 23 were done; right? 24 didn't ask you to come back next year and do the same thing. 25 You thought you were done. So that's okay; right? You bubble it in. But you had no That was all they asked you to do. They RITZ - DIRECT / WAGSTAFF 1 MS. WAGSTAFF: 2 housekeeping item. 3 and counsel can see. 4 Thank you. I'm trying to make it so the jury can see I feel like it was in the way. Can the jury all see this? 5 MS. MATTHEWS JOHNSON: 6 THE COURT: 7 of these podiums. MS. MATTHEWS JOHNSON: 9 THE COURT: 11 12 13 14 15 16 17 Yes. Counsel, you are welcome to be up at one 8 10 I have a little Thank you. You can go wherever you want in the courtroom. MS. MATTHEWS JOHNSON: Thank you very much, Your Honor. MS. WAGSTAFF: Also, if we can please publish 904 which, I believe, is this chart. Thank you. THE WITNESS: So I'm actually not done yet. So what I just told you is all about how they assessed 18 exposure, and so now what we have is a baseline. 19 baseline. 20 We call this An enrollment when someone comes to the pesticide 21 licensing exam, they are filling out 22 pages about their 22 lifetime pesticide exposure. 23 55 and may be farming five more years or ten more years and 24 then retire. 25 another 20, 40 years; right? Some of the people who come are Other people came at 35 and may be farming But what you get is what they RITZ - DIRECT / WAGSTAFF 1 tell you at enrollment about the pesticide exposure. 2 So nobody has the disease because that's actually a rule 3 in this study. 4 at baseline. 5 Nobody can have the disease when you ask them What you are now doing is you are waiting until they -­ 6 these 54,000 people, until somebody among them comes down with 7 the disease, and then you count them as a case. 8 what happens between the baseline and when they -- when they 9 are diagnosed? 10 Can you see Time passes. In that time what changes? Well, eventually they become 11 sick. 12 pesticides. 13 you have no idea what happens after this baseline in terms of 14 what their farming practices are and what pesticides they are 15 using and, you know, whether they change or not. 16 Q. 17 But if they keep farming, every year they are using Do you know about this? No, you don't; right? So Thank you, Dr. Ritz. If you can turn to Exhibit No. 907 in your book, please, 18 and explain to us what this is. 19 A. Yes. 20 Q. If it would be helpful in showing the jury this to explain 21 your testimony, and please tell us where you pulled this from. 22 A. 23 a map of the U.S. 24 Q. 25 wait -- from yesterday we have to -- Right. So I like maps. I told you yesterday. So this is Do we see it? Would it be helpful to show this jury the picture -- no, RITZ - DIRECT / WAGSTAFF 1 A. Yeah. 2 MS. WAGSTAFF: 3 MS. MATTHEWS JOHNSON: 4 THE COURT: 5 THE WITNESS: 6 Iowa? No objection. Go ahead. So we see the U.S. Can you-all see It is kind of in the middle there. 7 MS. WAGSTAFF: 8 THE WITNESS: 9 Permission to publish, Your Honor. Geography test. Right. There it is. That's Iowa and then North Carolina. It is on the coast 10 and -- yeah, there it is. 11 we have two states where this happens, where the study happens. 12 So that's North Carolina; right? So And you can see what is on this map is pesticide exposure 13 mapped by the Environmental Protection Agency, according to 14 records that they had for that year of pesticide use; and that 15 year is 1993. 16 And it is 1993 for the reason because that's when they 17 started interviewing these farmers, and they started 18 interviewing them in Iowa and North Carolina. 19 in mind the pattern you see. 20 white, but it goes all the way to deep orange in North Carolina 21 but clearly not everybody in North Carolina is using 22 glyphosate. 23 in the middle that is using glyphosate. 24 25 So try to keep So there is a little bit of It seems to be just that, you know, that sprinkle And then when you go to Iowa, a lot more glyphosate use already; but you still have that light yellow square on the top RITZ - DIRECT / WAGSTAFF 1 where nobody is using glyphosate, or very little. 2 3 MS. WAGSTAFF: 906. If you could, please, turn to Exhibit And permission to publish? 4 MS. MATTHEWS JOHNSON: 5 THE COURT: 6 THE WITNESS: No objection. Go ahead. So now we have the same map and the same 7 colors; and we are, again, looking at an EPA map for glyphosate 8 use with the data that EPA collected, and we are in 2013. 9 you can see in North Carolina when we only had a little bit of So 10 people orange, we now have dark brown blotches; and we have 11 them along that coastline and also in the middle. 12 And then when you go to Iowa, it's all brown. 13 like nobody is not using glyphosate anymore; right? 14 about every -- everywhere you have glyphosate use. 15 And so this is a change between 1993 and 2013. It looks So just That is a 16 20-year period. 17 Because that is the period this study, the Agricultural Health 18 Study, will cover. 19 Why am I showing you this 20-year period? Okay? And the change from 1993 to 2013, the change in use which 20 is an increase in use -- a really -- I mean, a multifold 21 increase in use -- it happened because of the difference in how 22 glyphosate was marketed and used since 1996. 23 BY MS. WAGSTAFF 24 Q. 25 testified to and apply it to your opinion in this case. All right. Now I would like to take what you just If you RITZ - DIRECT / WAGSTAFF 1 could, please, turn to tab 911. 2 few preliminary questions about that tab. 3 And I would like to ask you a Did you assist in creating this document? 4 A. Yes, I did. 5 Q. And will this document help you explain your testimony to 6 the jury? 7 A. Yes. 8 MS. WAGSTAFF: 9 MS. MATTHEWS JOHNSON: 10 MS. WAGSTAFF: Permission to publish. No objection. I actually have a blowup of this. I'm 11 going to set this on top of here. 12 BY MS. WAGSTAFF 13 Q. 14 about the increase in glyphosate between -- the increase in 15 Roundup between 1993 and 2013, please explain why you created 16 this demonstrative and how this demonstrative relates to your 17 opinion? 18 A. 19 bubbled-in questionnaires from 54,000 agricultural farmers took 20 them five years; right? 21 time that they approached the person and they filled out one 22 questionnaire; but since they needed so many people, they had 23 to wait five years for 54,000 to be completed. 24 number they wanted, over 50,000. 25 All right. So using the testimony that you just gave So I told you that, you know, interviewing or getting In those five years, it was just one That's the So Farmer Ted may have come to get his license in 1994 and RITZ - DIRECT / WAGSTAFF 1 was asked what is your lifetime glyphosate exposure and would 2 have more or less accurately reported what he has been doing so 3 far, when he farmed, when he actually applied glyphosate on his 4 fields or, you know, as weed control. 5 exposure you assign to him. 6 And that would be the So if he said, Well, I used very little or nothing, then 7 in 1994 he would go into the category of no exposure, low 8 exposure; right? 9 So in 1996, however, may decide that now these genetically 10 modified crops come on the market. 11 easier farming. 12 motives are, I don't know. 13 my neighbors are doing, and I'm now going to farm in the same 14 way. 15 right? 16 glyphosate in a very large amount because that's what you have 17 to do when you are changing the farming practices; right? 18 use a lot of it. 19 I have been told it is much I can make a better profit, whatever his But he decides I'm going to do what I start using glyphosate, and glyphosate-resistant crops; So that's Farmer Ted. Starting in 1996, now uses You And then between 1996 and 2006, let's say, he is using for 20 ten years, every year glyphosate. 21 All you know is he is not a user; right? 22 NHL in 2006, you may call him not exposed. 23 Q. 24 means in red and why you wrote that it was a major change in 25 glyphosate use and its effect on the entire study versus Okay. You interviewed him in 1994. If he comes down with And I want to make sure that you explain what this RITZ - DIRECT / WAGSTAFF 1 glyphosate? 2 A. 3 pesticide use. 4 more popular one year than another year, but rarely do you see 5 something that has happened to glyphosate. 6 7 So this makes a difference because we have changes in And, you know, they come and go. And some are In fact, what happened to glyphosate is pretty unique because of these glyphosate-resistant crops. 8 MS. MATTHEWS JOHNSON: 9 THE COURT: Overruled. THE WITNESS: 10 Objection, Your Honor. So what we have here is a situation 11 where actually the purpose of use changed between 1993, '94, 12 '95 and starting in 1996 because the farming practice changed. 13 It was a radical change in farming practice. 14 Unfortunately for my colleagues from the AHS, who have 15 really done a great job with many, many pesticides, this 16 happened in the middle of their enrollment period; right? 17 that the people they already interviewed prior to 1996 told 18 them about their exposure prior to that change. 19 Ted had been interviewed in 1996 or '97, would have told them a 20 very different story; right? 21 told you in 1994. 22 Q. 23 I think you said 50 pesticides -­ 24 A. 25 Q. Okay. So And then if But you locked Ted into what he And so you testified earlier that the AHS study -­ Yes. is that right? RITZ - DIRECT / WAGSTAFF 1 And so this problem that you were just talking about, is 2 that for all 50 or is that just for glyphosate? 3 A. No. 4 Q. Okay. 5 your chart? 6 A. 7 think about when the iPhone was introduced in 2007. 8 let's imagine we are doing a study on the health effects of 9 iPhone use. This is not a problem with the other pesticides. And so can you explain why you have an iPhone on Yeah, I thought, you know, if we need any more visuals, And And if you enroll people between, let's say, 10 2005 and 2010; and then everybody started using an iPhone in 11 2007, we would have the same problem. 12 interviewed in 2005 and '06 a non-user because that's what they 13 told you because, you know, it wasn't -- there were phones, so 14 we asked them about phone use; right? 15 I use a phone and maybe even a hand-held phone; but they 16 wouldn't ever tell you an iPhone because it didn't exist yet. 17 But starting in 1997 they would be able to tell you, yeah, I 18 changed to iPhone; right? 19 We would call everybody So they would say, yeah, If you think it is something specific about the iPhone, 20 you have a problem. If you think it is any pesticide or any 21 phone, you don't have a problem because they would have 22 reported phone use; right? 23 iPhone and not the other phones -- because the iPhone has a 24 special frequency or it does something else, right -- you have 25 that hypothesis, it should be the iPhone, then you are in But if you think it is really the RITZ - DIRECT / WAGSTAFF 1 trouble with the study that is done that way where you have 2 people before iPhones even came on the market and could be 3 used and people who were coming into the study afterwards. 4 is the same story. 5 Q. 6 to actually the questionnaire and the -- what did you call it? 7 How would you phrase that problem? 8 "baseline." 9 A. Yeah, we call it the baseline questionnaire. 10 Q. Okay. 11 your testimony. 12 AHS? 13 A. 14 mean, you can say the AHS gave them 25 minutes bubbling in 20 15 different types of pesticides that you are bubbling in, and 16 then a questionnaire you take home and, you know, fill out for 17 more pesticides and send in. 18 think 13,000 people never sent the take-home back. 19 want to do it, okay. 20 Okay. So you testified earlier about the issues related I think you said And that -- I just want to make sure I understand Was that criticism to all pesticides in the Well, to all pesticides you can have the criticism -- I By the way, a large number -- I They didn't But actually, that is -- you are under stress. 21 to fill this out. 22 whatever. 23 It You don't remember. You want You say, ah, what the I'm just bubbling it in so they let me go. So there is some random error, and that random error can 24 occur for every pesticide. 25 what is happening with locking you in in 1994 in an exposure That, we cannot help; right? But 5 RITZ - DIRECT / WAGSTAFF 1 category, that is very specific to glyphosate. 2 Q. 3 you if you wore any sort of personal protective equipment? 4 A. Yes. 5 Q. Can you explain to the jury -­ 6 A. Right. 7 asked what did you use, how many days did you use it, did 8 you -- in what decade did you use it; but they also then at the 9 end of 22 -- 22 pesticides, they filled it out. Okay. And so did the initial questionnaire, did it ask So my colleagues were really smart. They not only And then they 10 have a question that says When you use pesticides, all 11 pesticides, not just the specific one, what do you do? 12 cover yourself? 13 Do you wash your hands? 14 you protect yourself. Do you Do you drive a tractor with an enclosed cab? They ask all these questions about how 15 And they also asked another question: When you apply 16 pesticides, what are the methods you are using? 17 Backpack sprayer? 18 bubble in yes, yes, yes to every one. Tractor? All the ways that farmers do it, and you can The problem is none of that is linked to any of the 19 20 pesticides. So somebody who said ten pesticides is what I used 21 in the last 30 years, you wouldn't know what he reports about 22 protective equipment use and how he applies what pesticide that 23 was. 24 so they probably think I need to report that I'm really 25 careful, right, because if I don't know that I have to protect Remember, they are coming to a pesticide licensing exam, RITZ - DIRECT / WAGSTAFF 1 myself, they may know; and, you know, they may not give me my 2 license. 3 report. 4 So they may be a little more cautious in how they They say, yeah, I use all this protective equipment. But nothing tells you in 1980 he actually did, and maybe 5 he changed to using because he was educated by the Farming 6 Bureau that he should use protective equipment, as we hoped 7 they were; and he changed three years before he came to this 8 questionnaire. 9 myself. 10 They changed. Yes, now I'm really protecting And when he asked so on average when you are applying, are 11 you using protective equipment? 12 so in the '80s maybe they didn't because nobody warned them and 13 so what. 14 They say yes, yes, yes. Even So you don't know whether they really used what they said 15 they used while they were applying glyphosate, and you don't 16 really know what pesticide they were referring to or when they 17 actually used these equipments. 18 Q. 19 how does that affect the data collected on the AHS? 20 A. 21 went through -- oh, never-ever use; right? 22 user? 23 And so your criticisms about not knowing that information, So we had -- before was the other examples. We always Am I a glyphosate Yes, no. And then we had oh, how many years did you use or how many 24 days per year did you use? 25 strategy where they thought I can't even capture whether What these colleagues did was a RITZ - DIRECT / WAGSTAFF 1 somebody is exposed; better by asking them what protective 2 equipment they used and how they applied. 3 up with a very fancy method of saying, Okay. 4 intensity, how much you were exposed depends on what you are 5 reporting as protective equipment and how you applied. 6 they applied these data -- these pieces of information to every 7 pesticide they report, without knowing that for -- truthfully, 8 for the one pesticide they did this and for the other pesticide 9 they did that. Your exposure But They just applied it across the way because 10 that's the only information they had. 11 could do; right? 12 And then they came That's the best they So somebody may have applied glyphosate, not worn 13 protective equipment. 14 maximally, but he also applied another pesticide that the 15 farmer considered much more toxic because he had -- there are 16 actually some that give you pretty acute symptoms, so, you 17 know, that you should handle them carefully. 18 Applied it in a manner that exposed them So in that case they are actually putting on a Tyvek suit 19 and goggles and they are using a tractor. 20 reporting, they say, Yes, I used a Tyvek suit and a tractor, 21 you know, but that is for the other pesticide they use; right? 22 And when they are But that information then subtracts from glyphosate use. 23 So instead of saying this person was X number of years 24 glyphosate exposed, it's intensity weighted, meaning we are 25 subtracting 50 percent or 90 percent of exposure from that RITZ - DIRECT / WAGSTAFF 1 person because they protected themselves when they really 2 didn't. 3 So what is all what I'm telling you called? It is called 4 exposure misclassification. 5 that is to think you have a white can of paint and a red can of 6 paint; and every time that you get something wrong, you are 7 mixing these paints. 8 when you are getting it wrong, you are taking a cup of the red 9 paint and you are putting it in the white. And guess what 10 happens? And then you take 11 from the white can and put it in the red, and the red becomes a 12 little lighter. 13 both cans. 14 white anymore or the exposed from the unexposed; right? And the best way to understand So you are taking a cup and, you know, You stir and it's a little pink. If you do this often enough, we get pink in Meaning, we cannot distinguish the red from the And the more we have that situation happening, the less we 15 16 can really say that that exposure caused anything. 17 Q. 18 All right. Thank you. So do you have any other criticisms of the AHS with 19 respect to glyphosate? 20 A. 21 Roos? 22 Q. 23 with the AHS. 24 25 Did you want to go into the second study or just the De Well, first, let's talk about the AHS -- let's continue on So let me rephrase my question. Did the AHS -- you have testified that they did their initial enrollment between '93 and '97? 5 RITZ - DIRECT / WAGSTAFF 1 A. Right. 2 Q. Did they do a follow-up at all? 3 A. Yes, they did. 4 mid-1995 that things were actually changing on farms and that 5 if they wanted to keep watching these people, they also needed 6 to get additional information on changes. 7 National Cancer Institute and the National Institute of 8 Environmental Health to agree to do a second phase. 9 So they actually realized by 19 -- So they got the So in that second phase that started in 1999 -- so between 10 1993 and 1999 all they did was that enrollment; right? 11 then they had two years in between where they didn't do 12 anything with these farmers. 13 tried to find these farmers again and to interview them again. 14 So somebody who was interviewed in 1999 -- or who bubbled 15 in this questionnaire in 1993 would be tried to be recontacted 16 in 1999. 17 Then in 1999 they went back and Of course, they couldn't find all of them right away. Also at this time they said, Well, maybe it is better if 18 we do phone interviews. 19 interviewers, but it was standard asked interviews. 20 take half an hour; right? 21 are phone interviewing. 22 And So they set up a whole phone bank of It should Same kind of principle, but now we So they are trying to catch these people between 1999; and 23 it took them, again, five years, in 2004 calling them back and 24 the farmer may say, Oh, it is not a good day. 25 time; right? Call me another So they call them back, and they call them back RITZ - DIRECT / WAGSTAFF 1 until they finally say, Okay. 2 And then they asked them -- because they knew they were 3 annoying to these farmers maybe -- and they wanted them to come 4 back and tell them more information -- they said, Well, let's 5 just not make it difficult for them because then they wouldn't 6 want to be on the phone. 7 what have you been doing between 1993 -- if that's the time 8 when you bubbled in your questionnaire -- and now where I have 9 you on the phone in 2000 or 2001 -- but let's just ask the I will answer your questions. Let's make it easy. So let's not ask 10 question the last year you have been farming; and if you are a 11 farmer, that's the last 12 months -- what have you been doing? 12 So of the pesticide information that they collected, the 13 second time refers to the last year they were farming. 14 could have said just the last 12 months, but because some of 15 the farmers were old and they have retired they said, Oh, 16 nothing, so they asked last year of farming. 17 if they retired. 18 it was 1996 they retired, it was that that they reported on. 19 But if they were active farming, it would have been just the 20 last 12 months. 21 reporting. 22 the whole period between the baseline and when they reported 23 again. 24 25 So they So we don't know It might have been 1997, the last year. If So we get all these different years they are And then they are using that information to fill in Can you see how that also allows for a lot of mistakes? Not only that, they actually were only able -- this is very RITZ - DIRECT / WAGSTAFF 1 normal, and I'm not faulting them for this at all -- this is 2 what happens. 3 bubbling questionnaire and all they expect to do is bubble this 4 in and that's it, and then you try to reach them again and they 5 are really busy, they don't want to really respond; right? 6 especially if they are really busy on their farm. 7 be on the phone for an hour might not be the fun way to spend 8 your time or they couldn't care less or in the first place they 9 only bubbled in because they wanted to get their license and When you enroll people and you give them this 10 get out of it. 11 really want nothing to do with this; right? 12 So I mean, to They are not interested in research. They 38 percent of the people did not respond the second time. 13 That's -- you know, that's a lot. 14 62-point-something percent back on the phone reporting about 15 the one year, the last year they farmed, and 38 percent 16 nothing. 17 enrollment in terms of deciding whether they are glyphosate 18 users and how much they used for the rest of the 20 years that 19 we are now looking forward. 20 Q. 21 the second follow-up, what did the investigators do with that? 22 A. 23 different ways of handling this. 24 of your study, but that would have reduced the study to 30,000 25 individuals from 40 Okay. 38 percent. So they got So all they have on those people is the time of And so for the 37, 38 percent that disappeared from So they clearly saw a problem there, and there are 54 You can drop these people out about 30,000 individuals. And 5 RITZ - DIRECT / WAGSTAFF 1 they said, Well, that's a lot of people to kind of drop out of 2 your study when you invested already time and energy in them. 3 So can we do something better than just, you know, dropping 4 them out because they don't tell us what happened in the 5 meantime with their exposures. 6 And they said, Yeah, there is a statistical method where 7 we can actually guess what their exposure was; and so that 8 statistical method is based on the people who come back. 9 you have the 30-some-thousand who answered the phone call and So 10 gave you additional information on what they did in that one 11 year of farming, and then you use that information and what you 12 know about the people who came back to guess what happened to 13 the ones who didn't come back. 14 15 16 Can you see how -- what the guesswork that would be? MS. MATTHEWS JOHNSON: I'm going to object to the question. 17 THE WITNESS: And how you -- 18 THE COURT: 19 MS. MATTHEWS JOHNSON: 20 21 I'm sorry. What? Objection to the answer being questions. THE COURT: Yeah. I mean, that is something I noticed 22 before, Dr. Ritz. 23 asking them if they understand, that kind of interaction with 24 the jurors. 25 courtroom. You shouldn't be asking jury questions and It is appropriate in the classroom but not in the RITZ - DIRECT / WAGSTAFF 1 THE WITNESS: I get it. Thank you. 2 All right. 3 So, basically, what you are doing is you are using all the So I try not to. Try my best. 4 information you have, and that's the best you can do because 5 all the people who didn't come back, you have no information; 6 right? 7 So you are setting up guesswork, but it is informed 8 guesswork because you have some information on 30,000 people. 9 And, you know, maybe Farmer Joe represents Farmer Ted, but 10 maybe not. And you have to think about the ways that 11 Farmer Joe who came back to answer the second round might be 12 different from Farmer Ted who couldn't care less and didn't 13 want to be bothered. 14 Farmer Ted, who didn't come back, may have been too busy. 15 Farmer Ted may have been sick. 16 farming. 17 right? 18 Farmer Ted may have given up Lots of different things that could have happened; But you are now using those who came back, saying they are 19 a good group for me to guess what happened to the people who 20 never came back and tell me what pesticides they used, in the 21 meantime how much they used and how many days they used. 22 And that's what they did for 38 percent of people, almost 23 20,000 people, who never responded a second time to fill in 24 exposure. 25 \\\ Okay? 5 RITZ - DIRECT / WAGSTAFF 1 BY MS. WAGSTAFF 2 Q. 3 criticisms of the AHS? 4 A. Yes, I did. 5 Q. Okay. And have you ever taught to your students at UCLA your 6 7 MS. WAGSTAFF: Ms. Melen, I would like to go on the ELMO. 8 9 And do you remember -­ Counsel, this was not marked as an exhibit. you handed me yesterday. 10 MS. MATTHEWS JOHNSON: Oh, no, it is. 11 MS. WAGSTAFF: Okay. 12 It is? This is not in your book. Permission to publish? 13 14 15 This is what MS. MATTHEWS JOHNSON: Yes, yes. Correct, no objection to publishing. 16 THE COURT: Go ahead. 17 MS. MATTHEWS JOHNSON: 18 MS. WAGSTAFF: 19 MS. MATTHEWS JOHNSON: 20 MS. WAGSTAFF: Let me identify -­ This is not the exhibit right here. Okay. For the record it is TX1467. I will write that down later. 21 BY MS. WAGSTAFF 22 Q. 23 students about -- reflected your criticisms of the AHS study at 24 UCLA. 25 have placed on the ELMO. All right. So, Dr. Ritz, you said you have taught your Can you tell the ladies and gentlemen of the jury what I RITZ - DIRECT / WAGSTAFF 1 A. 2 classroom. 3 cohort studies," which is the Ag Health Study. 4 study. 5 it in fall of 2012. 6 Q. 7 just wanted to -- that means that you taught this -- this is a 8 PowerPoint from 2012? 9 A. Correct. 10 Q. And do you recall when you were retained to be an expert 11 in this case, roughly? 12 A. In the fall of 2016. 13 Q. Okay. 14 students at least four years prior to ever -­ 15 A. 16 Q. -- being contacted by Mr. Hardeman or his attorneys? 17 A. Yes. 18 Q. All right. 19 completeness of record, you actually have here a slide called 20 "Disadvantages of Cohort Method"; correct? 21 A. Correct. 22 Q. And have any of your views changed since you taught this 23 to your students in 2012? 24 A. Actually, I teach exactly the same slides. 25 Q. Oh, you do? So this is a printout of my slide deck that I use in the And you can see that it says "Introduction to It is a cohort And you can see this was my method class, and I taught Okay. So I was given some advice from my tech guy. So I So you were teaching your AHS criticisms to your Yes. Ever knowing I should be interested in this. So, in fact, if we go through this for RITZ - DIRECT / WAGSTAFF 1 A. Yes. 2 Q. Okay. 3 version of these slides to teach to the UCLA students? 4 A. And I did a few weeks ago. A few weeks ago you used these slides or a similar Yes. 5 MS. WAGSTAFF: 6 Ms. Melen. 7 BY MS. WAGSTAFF 8 Q. Okay. We can turn off the ELMO, If you can turn to -- I believe it's Exhibit No. 910. 9 MS. WAGSTAFF: And, Counsel, we had redacted some 10 information. So, Mr. Wolf, if you can pull up 910, we agreed 11 to redact some -- yep, I believe that's correct. 12 BY MS. WAGSTAFF 13 Q. Before you publish, can you tell us what 910 is? 14 A. Yeah. 15 misclassification has been recognized a persistent problem 16 throughout the course of the Agricultural Health Study in 17 various peer-reviewed publication," meaning that the problem I 18 just described to you has been described before in -- in 19 journals that had articles that people actually peer-reviewed 20 in the way that I explained yesterday and it wasn't my 21 articles. 22 Q. Okay. 23 A. Yes. 24 Q. Okay. 25 document help you give your opinions to the ladies and It is a slide in which -- that is titled "Exposure It was other people's. And did you create this document? And would this document help -- would showing this RITZ - DIRECT / WAGSTAFF 1 gentlemen of the jury? 2 A. Yes. 3 MS. WAGSTAFF: 4 MS. MATTHEWS JOHNSON: 5 THE COURT: 6 sidebar. One second. No objection. I want to have a very quick Don't need the court reporter. 7 (Sidebar conference heard but not reported.) THE COURT: 8 9 Permission to publish? You can publish it. BY MS. WAGSTAFF 10 Q. 11 paragraphs. 12 peer-reviewed publication? 13 A. Yes. 14 Q. Okay. 15 A. Actually, the first one is, I think, a report. 16 Q. Okay. 17 A. But the others -- well, it's in -- I'm not sure how they 18 peer review, but it might be a report that was published in 19 that journal or an excerpt. 20 Q. 21 jury what this document is, let's just look at the first 22 paragraph. 23 Agricultural Health Study: 24 Improvements." 25 Okay. Okay. So, Dr. Ritz, there are one, two, three, four, five Is each paragraph a conclusion from a And did you create this -­ Just to explain to the ladies and gentlemen of the It says "Gray, et al. The Federal Government's A Critical Review With Suggested Is that a medical journal or a review article with Gray, RITZ - DIRECT / WAGSTAFF 1 et al. being the authors? 2 A. Yes. 3 Q. Okay. 4 was from 2000; correct? 5 A. Yes, yes. 6 Q. And then just to orient the jury a little, if you look at 7 the next one, Acquavella would be the author with the title 8 being "Exposure Misclassification in Studies of Agricultural 9 Pesticides Insights from Biomonitoring," and that was done in And it was -- it looks like if you keep going, this 10 2006; right? 11 A. Yes. 12 Q. And just continuing on, the next one is a third study. 13 And these were all peer reviewed using the process that you 14 discussed to the ladies and gentlemen of the jury yesterday; 15 right? 16 A. 17 the official journal of the International Society for 18 Environmental Epidemiology. 19 Yeah. And by the way, that journal, Epidemiology, that is It is very highly regarded. And the next journal, Environmental Health Perspectives, 20 is a journal that is actually curated by the National Institute 21 of Environmental Health Sciences. 22 highly respected journals in our field. 23 Q. 24 pronounce that author's name? 25 A. Okay. Again, one of the most So that third one the author was -- how do you Weichenthal. RITZ - DIRECT / WAGSTAFF 1 Q. 2 Pesticide Exposure and Cancer Incidence in the Agricultural 3 Health Study Cohort," and that was from 2010, correct? 4 A. Yes. 5 Q. Okay. 6 colleagues. 7 Exposure Misclassification on Estimates of Relative Risk" -- I 8 think that is a typo -- "Risks in the Agricultural Health 9 Study." And that was -- the title of that article is "A Review of And then the fourth one is by Dr. Blair and And that one is titled "Impact of Pesticide Did I read that correctly? 10 11 A. Correct. 12 Q. And that was an article that was published in 2011; is 13 that right? 14 A. Yes. 15 Q. And then the final article that you cite to is Sheppard et 16 al., which is Sheppard and colleagues. 17 the title is "Re:" which is regarding; right? 18 A. Uh-huh. 19 Q. "Re: Glyphosate Use and Cancer Incidence in The 20 Agricultural Health Study," and that's from 2019; right? 21 A. Right. 22 Q. That's from the JNCI, Journal of National Cancer 23 Institute; right? 24 A. Correct. 25 Q. And is that the same journal that actually ended up And this one says that RITZ - DIRECT / WAGSTAFF 1 publishing the Andreotti? 2 A. Yes. 3 Q. Okay. 4 that have come out between 2000 and 2019, so in the last couple 5 of months, that relate to criticisms of the Agricultural Health 6 Study? 7 A. 8 just described to the jury. 9 Q. Okay. 10 A. Yes. 11 Q. Did you rely on these articles in forming your opinion 12 that you are offering to the ladies and gentlemen of the jury? 13 A. Yes. 14 Q. Okay. 15 each article and explain to the ladies and gentlemen of the 16 jury, let's start with the first one by Gray. 17 didn't read the conclusions. 18 what the conclusion of the authors were in each study, please. 19 A. 20 a cup of red and putting it in white and white putting it in 21 red, that's in our technical terms called non-differential 22 exposure misclassification. 23 little bit; right? 24 when they don't and somebody else who had exposure -- didn't 25 have exposure, had exposure that they don't. Yes. So these are five different peer-reviewed articles And actually not just any criticism, but the ones I I would -- did you review all of these articles? I would like you to just spend a few minutes on And you can -- I So if you could tell the jury So what I told you about the two cans of paint and taking So we are mixing the colors a We are saying that somebody has exposure You know, we are RITZ - DIRECT / WAGSTAFF 1 mixing the two cans. 2 That's called non-differential exposure misclassification, 3 and they say that that will produce bias towards the null, and 4 I think I introduced that concept to you yesterday. 5 systematic error. 6 draw that estimate to. 7 to not being able to see it, and you might have an intuition 8 why that is. 9 paint will be pink, and we cannot draw any more conclusion Bias is So that -- and towards the null means we So we are reducing anything we can see It is the same as with the paint. In the end the 10 because the exposed and the unexposed are so mixed. 11 Q. 12 Harvard University? 13 A. 14 actually from a risk assessment program at Harvard; and they 15 were charged to evaluate the Agricultural Health Study in terms 16 of its -- its design and conduct of the study. 17 a -- a report that was, as far as I remember, initiated by an 18 organization called Crop Life International. 19 organization of pesticide manufacturers. 20 Harvard -- respected Harvard group that wrote this report about 21 the Agricultural Health Study having this problem. 22 Q. 23 Dr. Acquavella's paper from 2006. 24 A. Right. 25 Q. Before we start, do you know who Dr. Acquavella is? Okay. And was this -- was this Gray article related to Oh, yes. Excellent. The authors Gray, et al. and colleagues are And that was And that is an But this is a Let's talk about the next one, RITZ - DIRECT / WAGSTAFF 1 A. Yes, I actually met him personally. 2 Q. Okay. 3 who Dr. Acquavella was in 2006? 4 A. 5 main epidemiologist. 6 him because I was actually on an external advisory panel for 7 the Agricultural Health Study in that period. 8 because he was the representative from Monsanto being sent to 9 these board meetings where the Agricultural Health Study Can you tell the ladies and gentlemen of the jury In 2006 I think he was still working for Monsanto as He is now not anymore. their And he -- I met So I met him 10 colleagues were presenting what they were doing to external 11 experts, and I was one of them. 12 Q. 13 said about the Agricultural Health Study in 2006? 14 A. Okay. So can you please tell the jury what Dr. Acquavella So what he said -­ 15 THE COURT: 16 MS. WAGSTAFF: 17 You are talking about in this study? In this study, yes. Thank you, Your Honor, in this study. 18 THE WITNESS: There is no evidence that retrospective 19 questionnaire information can be used to differentiate 20 gradients of pesticide exposure. 21 say how much exposure there is when we ask people to remember. 22 And that was the problem from the baseline questionnaire; 23 right, all the stuff they had to remember throughout their 24 lifetime. 25 questionnaire responses about yearly frequency of use and years So he says we really cannot And then he says, given the uncertainty of RITZ - DIRECT / WAGSTAFF 1 of use, our results suggest that dose response analysis based 2 on cumulative days of use would have substantial exposure 3 misclassification. 4 you. 5 BY MS. WAGSTAFF 6 Q. 7 can you tell me what those authors said in 2010 about the 8 Agricultural Health Study? 9 A. Okay. Yes. So he pretty much says what I just told Excellent. So Let's move to the third paper. And So this was, again, a broader view from the 10 outside -- Weichenthal is actually in Canada, from what I 11 remember, and he looked at all of the results and all of the 12 data coming out of the Agricultural Health Study. 13 just on non-Hodgkin's lymphoma. 14 too they reported on and other diseases. 15 conclusion after taking a broad look at this study, he says, 16 "Exposure misclassification" -- so, again, putting white in red 17 and red in white -- "undoubtedly has an impact on the 18 Agricultural Health Study findings reported to date." 19 Q. Let's move to what Dr. Blair said in his study in 2011. 20 A. So Dr. Blair is actually one of the premier scientists of 21 the Agricultural Health Study. 22 conducted the study. 23 for lifetime achievement. 24 field. 25 It was not It was a lot of other cancers And overall his So he designed the study. He He won a big award from my own society He is one of the heroes in the And what he said is "Second, except in situations where RITZ - DIRECT / WAGSTAFF 1 exposure estimation is quite accurate and the true relative 2 risk is three or more," so meaning you have really good 3 instruments to measure exposure, "and your size of the effect 4 is threefold or more." 5 NHL, for example. 6 misclassification made a diminished risk estimates so -- such 7 that -- to such an extent that no association is obvious, which 8 indicates false negative findings might be common. 9 So the exposure causes three times more The misclassification -- pesticide And that is the -- the scourge of my discipline. Not that 10 we go out there and cry wolf. 11 we cannot show anything because we are not doing a good enough 12 job for exposure classification. 13 so everybody is considered something else from what he really 14 was. 15 There is no difference in non-Hodgkin's lymphoma in the red can 16 and white can. 17 Q. 18 and her hierarchical regression how now that IARC has 19 classified glyphosate as a Category 2A, how that would change. 20 Do you remember that testimony? 21 A. Yes. 22 Q. Dr. Blair, do you know if he participated in the IARC 23 panel that classified glyphosate as a probable carcinogen? 24 A. 25 The scourge of my discipline is We are mixing white and red, And then we are saying, there is no difference in risk. We mix them all; right? You mentioned yesterday when you are talking about De Roos He was there -MS. MATTHEWS JOHNSON: Objection, Your Honor. 5 SIDEBAR 1 THE COURT: 2 THE WITNESS: 3 THE COURT: 4 BY MS. WAGSTAFF 5 Q. Sustained. No. Do you know if -­ 6 MS. WAGSTAFF: 7 THE COURT: 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I can answer? Can I have a sidebar real quick? Sure. (The following proceedings were heard at the sidebar:) 5 RITZ - DIRECT / WAGSTAFF 1 2 3 4 5 BY MS. WAGSTAFF 6 Q. 7 final journal article, which is the Sheppard, et al. that came 8 out in 2019 -- so that is a fairly recent article -- if you can 9 please tell the ladies and gentlemen of the jury what Sheppard As I was going onto the next one, if we can talk about the 10 and colleagues said about the Agricultural Health Study. 11 A. 12 first two pretty much dealt just with what happened at baseline 13 at enrollment. 14 started also to look at what happened when we lost people from 15 the second follow-up, meaning they didn't come -- almost 20,000 16 people who never responded again -- and will that cause a bias; 17 right? 18 So the first four articles pretty much -- better than the And then starting with Dr. Blair, actually they Will that even mix our exposure estimates more? And then Sheppard takes that even a step further. She is 19 a statistician also in my society, very well respected. And 20 she and her colleagues took on this issue again, and write very 21 clearly about what happens when you are then using the -- these 22 guesstimation/estimation procedures where you are just guessing 23 what the exposure was for those who didn't come back and what 24 kind of influence that would have had on the results -- on the 25 latest results, because there are actually two different 5 RITZ - DIRECT / WAGSTAFF 1 papers. 2 One that deals with early -- with the early phase of the 3 Agricultural Health Study -- the first like five to ten years 4 of follow-up -- and then the second Sheppard deals with the 5 next paper, the Andreotti paper, that actually had a follow-up 6 between 1993 and 2013 for cancer. 7 MS. WAGSTAFF: Okay. Before we actually get to the 8 studies themselves, Your Honor, I would like to move Trial 9 Exhibit 1467 into evidence, which was for slides from UCLA that 10 the doctor gave me yesterday. 11 MS. MATTHEWS JOHNSON: 12 THE COURT: Admi tted. 13 No objection. (Trial Exhibit 1467 received in evidence) 14 BY MS. WAGSTAFF 15 Q. Okay. 16 A. No. 17 Q. However, in opening statement Monsanto told the jury that 18 there were hundreds of -- I believe it was hundreds of 19 articles -- a lot of articles published about the Agricultural 20 Health Study. 21 A. Yes. 22 Q. And so your criticism of the Agricultural Health Study, 23 other than the baseline exposure, does not relate to the other 24 pesticides; correct? 25 A. So you didn't hear opening statements yesterday? Would you agree with that? Not in the same way, no. 5 RITZ - DIRECT / WAGSTAFF 1 Q. 2 glyphosate within the Agricultural Health Study are De Roos 3 2005 and Andreotti 2018; is that right? 4 A. 5 hundreds of articles about pesticides and cancer, but these two 6 papers are really the only ones that deal with glyphosate. 7 Q. Okay. Right. Okay. So the two articles that relate really to So the Agricultural Health Study has now published Let's talk about these two papers then. 8 MS. WAGSTAFF: 9 which is De Roos 2005. So if you can pull up, Mr. Wolf, 528, 10 BY MS. WAGSTAFF 11 Q. 12 Is this De Roos the same De Roos that is up here? 13 A. Yes, that's the same person. 14 Q. And did she ever retract the findings in her 2003 study? 15 A. Not that I would know. 16 Q. Okay. 17 18 One quick question. I don't want anyone to be confused. So let's talk about the findings in 2005. THE COURT: Did you want De Roos published to the jury? 19 MS. WAGSTAFF: 20 THE COURT: Yes, please. Go ahead, Kristen. 21 BY MS. WAGSTAFF 22 Q. 23 jury a little bit about the background of how the Agricultural 24 Health Study turned into De Roos 2005? 25 A. So if you can please tell the ladies and gentlemen of the So we -- as scientists we cannot just collect data, and 5 RITZ - DIRECT / WAGSTAFF 1 you know, watch what is happening. 2 it. 3 Institute for quite a time while the Ag Health Study was 4 ongoing and while they were collecting the data, and she got 5 very much involved, I think, in part of that. And then the 6 beauty of being involved in that way is you have access to the 7 data as a scientist. 8 published this she was actually at the University of Washington 9 as a professor. We actually have to publish And Anneclaire De Roos was at the National Cancer She -- she could analyze these data from the 10 Ag Health Study. 11 what she did. 12 this. 13 And even so, she -- by the time she She had permission to do that. So that's She analyzed these data and then published on MS. WAGSTAFF: If you can pull up Table 2, please. 14 BY MS. WAGSTAFF 15 Q. 16 and NHL, is displayed in Table 2? 17 A. Yeah. 18 Q. Before we stop, when did the data collection for De Roos 19 end? 20 A. In 2001. 21 Q. So even though this says 2005, the -­ 22 A. The cancer -- so we have enrollment 1993 to 1997, and then 23 anybody enrolled is followed every year through the cancer 24 registry. 25 are actually just watching whether they show up in the cancer Can you tell us what information, relative to glyphosate So here we have -­ So we are not having to go back to the person. We 5 RITZ - DIRECT / WAGSTAFF 1 registry; right? 2 That's how they found the cases. They never recontact 3 these people. They are just pulling them out of a cancer 4 registry. 5 advantage of cohort studies. 6 registries, if they exist. 7 these registries and they found these people. 8 Q. What if somebody moves? 9 A. Then they find them through the National Death Index, if It is called passive follow-up. That's actually an They can just use these In Iowa and North Carolina they had 10 that is a cancer you die of; but it may take a few years before 11 you die of it. 12 they also followed them through tax records to know where they 13 were, but then the question is did they move to a state that 14 has a cancer registry or not. 15 death certificate. 16 Q. 17 started using glyphosate at a much higher rate in 1999; moved 18 to one of the states that doesn't have a cancer registry, but 19 didn't die. 20 A. And we wouldn't know. 21 Q. Okay. 22 collecting data in 2001. 23 A. 24 the registry to be complete a few years. 25 Q. So you find that person later. And they said If not, you are waiting for the So it is possible that Farmer Ted who enrolled in 1993 And what is that effect? So what -- you just testified that they stopped What happened between 2001 and 2005? So they stopped collecting cancer data because it takes Let's -- why don't you explain really quick what a cancer 5 RITZ - DIRECT / WAGSTAFF 1 registry is. 2 A. 3 National Cancer Institute -- that is federal money -- and 4 partially by State money. 5 in -- yeah, offices in universities or in public health 6 departments that are called registrars, and they have a law 7 that any pathologist -- so a person in a hospital who looks at 8 tumor slides or tumor samples -- has to report to that registry 9 when they see a cancer. 10 So a cancer registry is actually paid partially by the And what they do is they have people So that is a law. And so all -- all cancers, more or less, get to a 11 pathologist, and then the pathologist has to put this data into 12 the registry. 13 electronic records and where the pathologist is queued into a 14 computer system, that may go fast. 15 take a while before you get that data. 16 have to actually go back and look at records and make sure it 17 is the right classification. 18 back-and-forth, and that takes a few years before this data in 19 the cancer registry are certified to be complete and certified 20 to be accurate. 21 Q. 22 tracking -- using electronic data to sort of link back up -­ 23 A. Right. 24 Q. Back in 1993 and all -- you know, was the electronic 25 systems different to track cancers than it is today? Okay. You can see that big hospitals who have But small hospitals, it may And then the registrars So there is a lot of And you were just talking about electronic 5 RITZ - DIRECT / WAGSTAFF 1 A. 2 not -- but, I mean, UCLA just got an electronic medical records 3 system two years ago. 4 you had to do it with paper. 5 Q. So. 6 A. So we have all sorts of cancer slides. 7 De Roos wasn't just interested in NHL. 8 all cancers. 9 you will find NHL -- yeah, down there. 10 Well, computers were much slower but they did exist. So before that, In Table 2, please tell us what this data shows. So Anneclaire That was just one among You can read down the list of cancer slides, and many she found. 11 It is like outrageous. But And you can see how She found 92 NHL cases. So in about five to ten years of follow-up of 54,000 12 people, all we are finding is 92 NHL cases. 13 would expect because it is a rare disease; and that's why you 14 need 54,000 people, because if you had 5,000, you would have 15 found five cases, right -- nine cases, sorry. 16 That is what you So you want enough cases to make your study powerful. 92 17 cases is not a powerful study. 18 Q. 19 risk ratio and the confidence interval, just to be consistent 20 with what we were doing yesterday. 21 A. 22 use. 23 did you use. 24 interestingly, you can see that 77 percent said yes. 25 farmers -- you know, except for 23 percent -- all have touched Okay. Right. So what was the data? If you want to give me the So you see two effect estimates for never-ever We are not talking about how many days, how many years Did you ever touch a bottle of glyphosate? And So these 5 RITZ - DIRECT / WAGSTAFF 1 glyphosate in the past. 2 beginning. 3 That's what they report in the And you see that the effect estimate just adjusted for 4 age, so they are only taking age into account. 5 these are -- almost all of these people are actually male, so 6 we don't care about sex at this point. 7 looked at males actually. 8 interval of .7 to 1.8. 9 increase, but clearly it is not statistically significant. 10 And most of And she may have only And you see a 1.2 with a confidence It is suggestive of a 20 percent risk It is including that 1, that pesky 1. 11 But then when you are going over and you are adjusting for 12 other pesticides, you see how the estimate drops to 1.1. 13 a 10 percent increase. 14 same or it is actually the same. 15 Q. Okay. 16 A. Estimate, 1.1. 17 Q. 1.1? 18 A. Uh-huh. 19 Q. Is it just 1.10? 20 A. Yes. 21 Q. And what is the confidence intervals on that? 22 A. .7 to 1.9. 23 imagine it is zero because she only gives one digit behind. 24 Q. .7 to 1.9? 25 A. .7 to 1.9. It is The confidence interval is almost the So I'm going to write the adjusted -­ Actually we don't know whether it is zero. I 5 RITZ - DIRECT / WAGSTAFF 1 Q. Okay. 2 A. For never-ever. 3 Q. Okay. 4 ladies and gentlemen of the jury what information you were able 5 to gather from Table 3? 6 A. 7 have how many days people used it, and that's only using the 8 baseline report, what they bubbled in when they came to the 9 exam. 10 That's for never-ever use? So let's turn to Table 3. So now she goes beyond never-ever. Can you please tell the She says, well, we That's where we get all of this information from. Nothing else, okay? 11 So what they bubbled in in terms of how many days they 12 used and cumulative exposure days is over your lifetime how 13 many days. 14 slides again, and you find NHL at the bottom. 15 That's all. And you can walk down the cancer So now you see what she does here is she actually compares 16 moderate and high day users to low or no users -- actually to 17 low users. 18 who have reported I never touched a bottle of glyphosate. 19 Okay. She excludes the 23 percent of people in this table They are not in here. In order to now make a comparison, you have to define what 20 21 am I comparing people to. 22 I used a little bit, that's my comparison group. 23 that's the zero to 20-day users, and then it goes moderate and 24 high. 25 So she says, the people who tell me You want me to read this to you? Okay? And 6 RITZ - DIRECT / WAGSTAFF 1 Q. 2 difference between cumulative exposure days. 3 A. 4 next is? 5 Q. I want you to explain to the jury what that is, please. 6 A. Yes. 7 So now we not only have exposure days. 8 Just count the days over the lifetime; number of days. 9 Yes, please. Right. Well, first, you were just describing the And then the next -- you want me to say what the So the next one is intensity-weighted exposure days. That is easy; right? Now, they did what I explained to you before, I think, 10 which is they say how did you use the pesticide. 11 it with a backpack? 12 it by tractor? 13 glyphosate. 14 pesticides that you ever used. 15 Did you spray it by hand? That was a question that was asked for all And then they also used -- did you use personal protective equipment while you were applying? 17 Did you use goggles? 18 All these questions. So did you use Tyvek suits? Did you use chemically resistant gloves? And if they said yes, then they took points off. 20 said -- points off being exposed. 21 exposed. 22 Did you apply And, remember, they never asked that for 16 19 Did you spray If they They called them less So they reduce all of the information about days by the 23 amount of protection. It seems to make logical sense -­ 24 right? -- if you get the protection right. 25 they were only reporting about any pesticide, "For any Because, again, 6 RITZ - DIRECT / WAGSTAFF 1 pesticide applied in my life, yes, I'm using gloves; yes, I'm 2 using goggles." 3 Not for glyphosate. So if they used another toxic pesticide for which they 4 used goggles, even if they used glyphosate 100 days a year, you 5 would knock off 90 days because they used goggles. 6 Whether that's right, I don't know. 7 Q. 8 days, and then you have some information on intensity-weighted 9 exposure days -- Okay. All right? So you have some information on cumulative exposure 10 A. Right. 11 Q. -- which includes the personal protective problem that you 12 just described. 13 A. 14 cumulative days because we are not sure whether, you know, a 15 little bit over a long period gives you cancer or a high 16 exposure where, you know, you might not be able to recover from 17 or high exposure that actually damages more. 18 Q. 19 that we've seen a risk estimate below 1. 20 A. That's correct. 21 Q. So can you tell the ladies and gentlemen of the jury what 22 a risk estimate below 1 actually means? 23 A. 24 intensity-weighted day category have a .6. 25 40 percent reduction in risk of getting NHL, of getting the Which data is more informative to you? Well, generally we would like the intensity-weighted Okay. And this is the first time in all of the studies So you see that the moderate users here in the So that is a 6 RITZ - DIRECT / WAGSTAFF 1 lymphoma, when you're using more. 2 you're protected; 40 percent less people get NHL when they're 3 using glyphosate. 4 Q. 5 that Roundup -- Okay. So this data suggests to you that glyphosate -­ 6 MS. MATTHEWS JOHNSON: 7 M S . WAGSTAFF: 8 THE COURT: 9 When you're using more, Objection. Leading. Okay. Sustained. BY MS. WAGSTAFF: 10 Q. Would this be consistent with a protective finding? 11 A. We call this protective. 12 say, well, it's a negative association. 13 you is a qualifying statement I wouldn't want to make because 14 if we say it's protective, as suggested by this data, then we 15 should all put a spoonful of glyphosate into our cereal every 16 morning to protect us and we don't want to do that. 17 Q. Objection. Your Honor, we have haven't heard the confidence interval. MS. WAGSTAFF: 20 21 Whether that protects And when you have data that -­ MS. MATTHEWS JOHNSON: 18 19 Okay. I usually train my students to I haven't written anything on the board yet. 22 THE COURT: Okay. The objection is overruled. 23 BY MS. WAGSTAFF: 24 Q. 25 what is -- based on your experience and training, what does When you see data like this that has a risk ratio below 1, 6 RITZ - DIRECT / WAGSTAFF 1 that suggest to you about the findings in this study? 2 A. 3 too to think that, oh, well, when you find no effect, okay, 4 maybe, you know, we made so many mistakes that my two cans are 5 now pink and I can't distinguish them anymore. 6 Well, this is a surprise; right? It would surprise you But to actually see something going to the other side 7 where the red can now looks white and the white can looks red, 8 then I'm wondering "Did I actually mess up the cans in the 9 beginning, or what else did I do wrong here?" 10 There's really something -- that's a qualitative change in 11 a direction I don't expect; right? 12 possibly be toxic and I don't find it, I can blame my study for 13 not being good enough; but when I find something this 14 surprising, then I scratch my head and say, "Well, maybe I 15 should go back to the drawing board and see what else went 16 wrong because this is an unexpected finding that I need to pay 17 attention to." 18 Q. 19 as counsel suggested. Okay. When I expect something to And so let's actually put some data on this chart, Which one would you -- is more informative to you, the 20 21 cumulative days of exposure or the intensity-weighted exposure 22 days? 23 A. 24 to be more informative. 25 Q. The intensity is definitely more informative -- or meant Okay. And the cumulative exposure days, does that relate 6 RITZ - DIRECT / WAGSTAFF 1 to dose-response? 2 A. That's what they're trying in both. 3 Q. Okay. 4 A. They're trying to relate to dose-response with just 5 counting the days or then also weighting the days by what they 6 know about protective equipment use. 7 Q. 8 to be complete. 9 exposure days, which you just told me is dose-related days. Okay. Well, then, let's put all of the data on here just So let's put down the data for the cumulative 10 you could just tell me that data. 11 A. Right. 12 Q. Uh-huh. 13 A. -- with a confidence interval of point -- of 0.4 to 1.4. 14 Q. Okay. 15 pesticides? 16 A. That's adjusted. 17 Q. Okay. 18 A. Let's see, make sure. 19 Q. And the numbers right below it? 20 A. (Witness examines document.) 21 Q. It's hard to see. 22 if that helps. 23 A. Yeah. 24 Q. Okay. 25 A. And the confidence interval is .5 to 1.6. And that's .7 -­ And is that adjusted or not adjusted for other It should be blown up on your screen, So the next number is .9. If 6 RITZ - DIRECT / WAGSTAFF 1 Q. Okay. 2 A. Yes . 3 Q. And are these the two numbers that relate to dose? 4 A. To cumulative exposure days. 5 Q. Okay. 6 A. So, yes. 7 Q. Okay. 8 analysis or -­ 9 A. Yes. 10 Q. Okay. 11 A. So there we go to .6 in the medium dose -­ 12 Q. Okay. 13 A. -- whereas 0.3 to 1.1 as the confidence interval. 14 Q. All right. 15 A. Yes. 16 Q. Okay. 17 A. And then we see .8 for the high-exposed, whereas a 0.5 to 18 1.4 confidence interval also adjusted. 19 Q. Also adjusted? 20 A. Yes. 21 Q. Okay. 22 correctly? 23 A. Yes. 24 Q. And are any of this data statistically significant? 25 A. No. And is that adjusted as well? So that's the median and high exposure. So would you consider that to be a dose-response And then how about the intensity-weighted data? And is that adjusted? So do I have the relevant data? Have I marked that 6 RITZ - DIRECT / WAGSTAFF 1 Q. And this is also -- is this also a dose? 2 A. Yes, that's also a dose-response, the .6 to .8, an attempt 3 at estimating dose-response. 4 Q. 5 estimates you testified sort of a suggest a protective effect? Okay. And just sort of to be clear, these under 1 risk 6 MS. MATTHEWS JOHNSON: 7 THE WITNESS: 8 THE COURT: 9 Objection. Leading. The negative association -­ Hold on a second. Sustained. 10 BY MS. WAGSTAFF: 11 Q. What does a risk estimate under 1 suggest? 12 A. I usually say it's a negative association, meaning it goes 13 in a direction of protection; meaning that there are less 14 people who get NHL who were exposed to glyphosate than there 15 are people who got NHL who, according to their data, should be 16 called unexposed. 17 expect. 18 NHL in those that we're calling unexposed. 19 Q. 20 2005? 21 A. No. 22 Q. So let's talk about our final study that came out last 23 year; right? 24 A. 25 So we have the opposite of what we would We have less NHL among the glyphosate exposed and more Okay. And anything else you'd like to say about De Roos Uh-huh. THE COURT: Well, before we do that, I think now is 6 PROCEEDINGS 1 probably a good time for our morning break. 2 THE WITNESS: 3 THE COURT: 4 5 6 7 Thank you. So why don't we break for ten minutes. We'll resume at five after, and that clock has been fixed. (Proceedings were heard out of the presence of the jury:) THE COURT: Okay. Hold on a second. So just real quick, we had a sidebar off the record in 8 which I expressed concern about using anything from FJC 9 publications. So I just want to make clear for the record, are 10 we all in agreement that neither side can use any FJC material 11 in this case? 12 MS. WAGSTAFF: That's correct, Your Honor, and we had 13 discussed that before you brought it to our attention and we 14 had agreed upon that. 15 MR. STEKLOFF: 16 THE COURT: Yes, Your Honor. Okay. The fact that Blair was the IARC 17 guy, we can talk about that later. 18 for why that should come in during Phase I, but for now that 19 remains off limits. 20 21 22 23 You can make an argument And then has there -- have you-all filed a stipulation regarding expert compensation that you want me to read? MS. MOORE: Your Honor, we went back and forth. talk about that on the break and make sure it's final. 24 THE COURT: Okay. 25 M S . MOORE: Okay. No rush I would think. We'll 6 RITZ - DIRECT / WAGSTAFF 1 THE COURT: Okay. I'll be back. 2 MS. MOORE: Thank you, Your Honor. 3 MS. MATTHEWS JOHNSON: 4 THE CLERK: Thank you. Court is in recess. 5 (Recess taken at 9:56 a.m.) 6 (Proceedings resumed at 10:06 a.m.) 7 (Proceedings were heard out of the presence of the jury:) THE COURT: 8 Okay. You can bring in the jury. (Proceedings were heard in the presence of the jury:) 9 THE COURT: 10 11 Okay. Thank you. You can resume. 12 BY MS. WAGSTAFF: 13 Q. 14 that came out of the AHS. 15 paper? 16 A. 17 in risk suggested but the confidence interval doesn't help us 18 out, that's ever/never. 19 people who did not at all use. 20 Okay. One last question about the De Roos 2005 journal What was the control group in this So in the 1.1 estimate where we see a 10 percent increase Right? So we're comparing anyone to Then when we go to what we call the dose-response, we are 21 throwing out all the people who said "No, never," and we're 22 only comparing users. 23 So we are comparing the 77 percent of people who 24 said,"Yes, I use glyphosate," and then we're using what they 25 said about how many years they used it, how frequently they 6 RITZ - DIRECT / WAGSTAFF 1 used it, and whether they used protective equipment or not to 2 put them into a low use, moderate use, high use category, and 3 that's how we get these negative estimates. 4 Q. Okay. 5 A. It is certainly something that you have to think about 6 when you do this analysis, how you interpret it; and given that 7 we have these unexpected results, we probably need to think 8 about what it means and what those flaws are, and we should 9 think about that very hard. Okay. In your opinion, is that a flaw of the study? 10 Q. So now let's get to the final paper that we're 11 going to talk about. 12 Mr. Wolf, if you could please publish 550. 13 This is the Andreotti 2018 paper. If you could please 14 tell the ladies and gentlemen of the jury what this paper is 15 about. 16 A. 17 that much later because we have now kept doing this follow-up 18 with cancer registries and death certificates over many more 19 years. 20 So this paper comes out 13 years later, and it comes out In the De Roos paper we stopped looking at cancer 21 registries in 2001. 22 2012 I think in North Carolina and Iowa 2013. 23 when the last time data was pulled from a cancer registry to 24 tell us whether somebody has NHL. 25 Here in Andreotti we are now looking up to So 2012-'13 is And so we are now including in our analysis the number of RITZ - DIRECT / WAGSTAFF 1 people who were diagnosed between -- anytime between 1993, if 2 they already enrolled, and 2013. 3 period; right? 4 at the beginning, at the very beginning, the enrollment. 5 So that's an about a 20-year However, we are using for exposure what we got And then for those who bothered to come back between 1999 6 and 2004 and answered "What did you use for one year when you 7 were farming, the last year you were farming," we're using that 8 data but we also have all these guesses on what these other 9 people did. 10 And, again, we have no information on what happened to 11 anyone who answered the second questionnaire between, let's 12 say, 1999 and 2012 either; right? 13 farming. 14 wouldn't know. 15 now what we are using to project forward what the exposures 16 were; right? 17 So they could have stopped They could have changed pesticide use. Again, we Whatever they said at the second interview is That's really the problem with cohort studies because 18 unless we go back and ask every year that somebody was in the 19 study "What have you been using," we have to make assumptions. 20 We have to guess that we know what they said in the beginning 21 is kind of stable throughout the time until they come down with 22 the NHL. 23 Q. 24 of the jury three big exposure misclassification criticisms of 25 yours. Okay. And you've identified to the ladies and gentlemen I think -- RITZ - DIRECT / WAGSTAFF 1 A. Right. 2 Q. -- you identified the initial -­ 3 A. So we have the initial one where people make just random 4 error by not remembering correctly. 5 really is the change in exposure in the middle of the 6 assessment of people at baseline; that you have some people 7 locked in in 1993 who would have responded differently had they 8 answered in 1996 or '7; right? 9 So -- and we don't know this. But the bigger problem So we have already a mixing 10 of exposure in the baseline. 11 of the people in the second follow-up where we are asking them 12 again to improve on exposure assessment, and we now have to 13 make a lot of guesses on what these people's true exposures 14 were, and we base it only on the information of the people we 15 get assuming that they're no different from the people who we 16 didn't get. 17 And then we are losing 38 percent Right? And also for the ones that we get, we don't have really 18 what happened between the first time they answered and when 19 they were on the phone again. 20 and we assume that that one year gives us the right estimate 21 for the whole time period in between. 22 We only have that for one year And then we keep following them to 2000 -- so the last 23 time they made that phone call in the second round was in 2004, 24 but we keep moving on to 2013 to count cancers; right? 25 all those years exposures may have changed again, but we don't So in RITZ - DIRECT / WAGSTAFF 1 know. 2 Q. Okay. 3 A. Right. 4 Q. You identified the change in glyphosate use? 5 A. Yes, in the middle of the baseline. 6 have answered differently if they had been interviewed at the 7 beginning or the end of the baseline. So you identified the initial baseline? 8 9 10 So that people would (Pause in proceedings.) BY MS. WAGSTAFF: Q. 11 Change in glyphosate use. Then you mentioned how when they got ahold of people in 12 the second call, they only asked about one previous year? 13 A. Right. 14 Q. How would you describe that? 15 down? 16 A. 17 questionnaire. 18 Q. That's, like, a paragraph. 19 A. Or second questionnaire. 20 Q. Okay. 21 A. Only one year of use in second. 22 Q. Okay. How should I write that Well, just write only one year of use reported at second Second questionnaire. Only one use in -­ This might take me awhile. 23 (Pause in proceedings.) 24 BY MS. WAGSTAFF: 25 Q. How about if I write only one year lookback at second? RITZ - DIRECT / WAGSTAFF 1 A. 2 one year and assumed that that year is representative of all 3 the years between baseline and follow-up. 4 Q. 5 guesswork or -­ 6 A. 7 a second time we're using the data from the ones who responded 8 to then guess what the exposure of those who didn't respond 9 was. Between baseline and the second they only looked back to Okay. Yes. And then the fourth one you discussed sort of the The guesswork for the 38 percent who never responded 10 Q. Okay. 11 A. And there's a fifth 12 you know, you don't know anything about exposure after 19 -­ 13 after 2004. 14 time in 1999, you don't know anything about their exposure 15 after 1999. 16 Q. Okay.So no information 17 A. After 18 Q. Which you said -­ 19 A. No pesticide information after the second phase. 20 Q. All right. 21 A. Actually, they had a third phase, but I think only 22 38 percent answered so they're not even using it. 23 Q. 24 but I want to make sure I capture your testimony -- was between 25 1999 and 2004? Okay. So for these four exposureproblems -­ when you'removingforward, which is, Actually, for the ones who answered the second So possibly 14 years. -­ second phase. And this second phase -- I think you just said it, RITZ - DIRECT / WAGSTAFF 1 A. Yes. 2 Q. Okay. 3 A. Uh-huh. 4 Q. Okay. 5 A. Yes. 6 Q. Does this exposure problem relate to De Roos 2005? 7 A. Yes. 8 Q. Does it relate to Andreotti 2018? 9 A. Yes. 10 Q. Okay. So it would be fair for me just to write 1999 -­ So we have two AHS studies that we talked about. Let me make sure I spell this correctly. 11 (Pause in proceedings.) 12 BY MS. WAGSTAFF: 13 Q. 14 De Roos -­ 15 A. Yes. 16 Q. -- 2005 and Andreotti 2018? 17 A. Yes. 18 Q. The only one year lookback at second follow-up, does that 19 relate to De Roos? 20 A. Only Andreotti. 21 Q. Okay. 22 next three. 23 A. 24 because she doesn't use the second follow-up. 25 happens between the enrollment and 2001 she doesn't know The change in glyphosate use, does that relate to both Uh-huh. The next three are only Andreotti. So I'm just going to write "Andreotti '18" for the Actually, the last one also relates to De Roos So anything that RITZ - DIRECT / WAGSTAFF 1 either. 2 Q. So five is Andreotti. 3 A. And De Roos, but that's not 19 -­ 4 Q. But De Roos doesn't know since 1997? 5 A. 1993 through 2001. 6 assessed, and she only has one baseline, which is, you know, 7 whatever the baseline year is. 8 Q. 9 other, what happens to the results? That's the interval where cancers were So when you add these exposure problems on top of each 10 A. 11 over and over again, and you don't -- it's really, like, oh, I 12 can improve my -- you know, my distinction between the two pots 13 by just mixing more, and in the end you got pink and both cans 14 are pink and you can't distinguish. 15 That's compounding exposure misclassification over and And none of that can happen in a case control study 16 because everything has already happened by the time you 17 interview a case; right? 18 exposure up to the point when they were diagnosed. 19 that happens in these other studies. 20 Q. 21 up. 22 23 24 25 They will report their lifetime Let's discuss the Andreotti results. None of We've got the paper If you could turn, Mr. Wolf, please, to the second page of Table 2, which is 513. There's a section on non-Hodgkin's lymphoma. focus on just that section for a minute. If you could RITZ - DIRECT / WAGSTAFF 1 A. Yeah. 2 Q. Do you see where I am, Dr. Ritz? 3 A. Uh-huh. 4 Q. Explain what Q1, Q2, Q3, and Q4 mean, please. 5 A. So we don't see the header, but the header of this Table 2 6 is actually saying "Intensity-weighted Lifetime Days of 7 Glyphosate Use in the Agricultural Health Study." 8 again, this dose measure that they construct using the number 9 of days of use times the intensity, which they get from "Do you So we have, 10 use personal protective equipment and how do you apply?" 11 it's the same measure. 12 But then they are splitting this up in five groups: So The 13 people who have never used glyphosate so -- but that's, you 14 know, baseline or follow-up. 15 can't get additional people who never used. 16 time point they had less people saying never. 17 only had, like, 15 percent left who said never. It cannot actually change. You Actually, at this I think they And then they have split up the ones who said ever into 18 19 four groups, and they call them quartiles. 20 you know, cutting it up in different groups in terms of how 21 many days and what the weighting did. 22 Q. 23 on this chart? 24 A. Yes. 25 Q. Since I created this chart, an exhibit sticker has been Okay. So that is just, And can you tell us what information I should put RITZ - DIRECT / WAGSTAFF 1 placed so I don't have as much room. 2 A. 3 .88, and .87. 4 Q. These are for Quartile 1 through Quartile 4? 5 A. Yes. 6 Q. And these are for non-Hodgkin's lymphoma. 7 said an intensity-weighted lifetime? 8 A. Yes. 9 Q. So is that a dose-response? 10 A. Yes. 11 Q. So let me write that down here. 12 A. I mean, it's not showing a dose-response. 13 dose-response -­ 14 Q. 15 A. -- but it is a dose-response analysis. 16 Q. I just want to write those down again. 17 Quartile 1, and I need the confidence intervals, please. 18 A. 0.59 to 1.18. 19 Q. 1.18? 20 A. Uh-huh. 21 Q. And are the numbers in the Andreotti paper that we're 22 discussing right now, are they adjusted for other pesticides? 23 A. Yes. 24 Q. So I'm going to put adjust -- an "A" next to them. 25 A. For five other pesticides actually. So basically you get relative risk estimates of .83, .83, And this is you We'll do .8 -­ It's showing no Correct. You said .83 in RITZ - DIRECT / WAGSTAFF 1 Q. For just five? 2 A. Yes. 3 Q. Okay. 4 A. 5 Q. And what's the confidence interval? 6 A. 0.61 to 1.12. 7 Q. Adjusted? 8 A. 9 Q. 10 A. .88. 11 Q. And the confidence value? 12 A. 0.65 to 1.19. 13 Q. And the final quartile? 14 A. .87 and 0.64 to 1.2. 15 Q. 16 it because I'm running into tape. 17 A. Yes. 18 Q. And you said that this is considered a dose-response? 19 A. Analysis. 20 Q. A dose analysis. 21 What's the number for Quartile 2? .83. Yes. And then Quartile 3? And that's also adjusted. I'm going to put the "A" below And, again, we're seeing numbers on the relative risk 22 below 1? 23 A. 24 Q. 25 opinion? Yes. Can you tell the jury, please, what that means in your RITZ - DIRECT / WAGSTAFF 1 A. 2 17 percent decrease in risk, meaning that we're seeing less 3 cases than we would expect if you were unexposed. 4 So for each quartile we see between a 13 percent and a So it means the ones who are exposed show less lymphoma at 5 every level of dose than the people who had no glyphosate 6 exposure at all according to the baseline and their follow-up. 7 Q. 8 following page, and right above it just caught my eye. 9 So let's turn to Table 3. Table 3, which is on the This was published in the -- what journal was this 10 published in, this article? 11 A. The Journal of the National Cancer Institute. 12 Q. Okay. 13 2019 was published in what journal? 14 A. In the same journal. 15 Q. Okay. 16 cancer incidence in relation to lagged intensity-weighted 17 lifetime days. 18 intensity means? 19 A. 20 Eriksson, remember, they excluded all exposures 10 years prior 21 to diagnosis. 22 going 20 years out, and we say anything -- so if somebody was 23 diagnosed with non-Hodgkin's in 2006, we would not count any 24 exposure that happens in 1986. 25 And the criticism letter from Dr. Sheppard from So what does -- this table purports to report Can you explain to the jury what a lagged So we're back to what I tried to explain with Eriksson. All right. Here we are actually going even further. We're If you reported "I used glyphosate in 1987 RITZ - DIRECT / WAGSTAFF 1 onward and you used it every single day," we would call that 2 person unexposed; and only if he used glyphosate prior to 1987, 3 so anytime between '74 and '86, that's the exposure category we 4 use. 5 Q. 6 results, Mr. Wolf? 7 That's where he goes. So can you please pull up the non-Hodgkin's lymphoma It's the third category down. And they appear to use the same quartile system? 8 A. Yes. 9 Q. And are those quartiles the same quartiles categories that 10 were used in the data we just looked at? 11 A. Yes. 12 Q. So there's two sets. 13 lag. 14 A. Yes. 15 Q. Which information is more informative to you, the 5-year 16 lag or the 20-year lag? 17 A. I would say the 20-year lag. 18 Q. So let's look at the 20-year lag. 19 There's a 5-year lag and a 20-year Are both of those adjusted? Can you tell me the information that they reported from 20 the 20-year lag for the four quartiles? 21 A. 22 0.91 to 1.64. 23 interval of .86 to 1.55. Then we have 0.98 with a confidence 24 interval of .71 to 1.36. And the last quartile is 1.12 with a 25 confidence interval of 0.83 to 1.51. Yes. So they have a 1.22 with a confidence interval of And the second quarter is 1.15 with a confidence RITZ - DIRECT / WAGSTAFF 1 Q. 2 below 1? 3 A. Yes. 4 Q. And I just want to make sure I'm complete on this board. 5 You mentioned this was also considered a dose -­ 6 A. Yes, a dose analysis, and it was adjusted. 7 Q. And it was adjusted. 8 9 So, again, we have one number where the relative risk is Okay. Let me put my... Are any of the AHS numbers for both studies that we've just read statistically significant? 10 A. No. 11 Q. When you consider the AHS data with respect to these two 12 studies, what does this information tell you about this study? 13 A. 14 what makes these estimates flip to the wrong side from what we 15 would expect. 16 protective here or not? 17 question for the first, the zero lag analysis, meaning we are 18 counting all exposures; right? 19 Well, De Roos we already said we have to think very hard If this is a toxin, is glyphosate really From Andreotti we would ask the same Interestingly, why we want to look at the 20-year and I 20 find the 20-year lag really interesting because it removes some 21 of the problem -- some of the problem -- that happened when 22 glyphosate increased dramatically between 1993 -- remember the 23 maps I showed you? -- 1993 to 2013. 24 we're talking about, and it flipped from light yellow-white to 25 dark; right? That's exactly the period RITZ - DIRECT / WAGSTAFF 1 And that's what was the time period that the study is 2 struggling with to put people in the right bin: 3 medium exposed, low exposed, high exposed. 4 trying to sort people in these bins, and they keep resorting 5 them but maybe not in the right way because not everybody gave 6 them the information at the same time or -- and 40 percent -­ 7 almost 40 percent didn't even come back and gave them any 8 information. 9 time. 10 Unexposed, Right? They're So they keep moving these models around over However, if you're now taking out 20 years of exposure and 11 you say no matter what, if somebody who reported in 1993 or in 12 1999 reported correctly what they used prior to the 1990s 13 pretty much, we're safe. 14 right answer except for random error where they couldn't 15 remember. We are actually probably getting the 16 But none of that big change between 1993 and 2013 happened 17 yet so whatever they reported baseline is pretty accurate until 18 1993, and that's what that 20-year lag period only looks at. 19 However, they still have a weird pattern here. The 20 estimates don't all flip to the right side and now show an 21 increase because we're still making a mistake probably by 22 excluding all the exposures that came in that period because 23 we're calling them irrelevant. 24 happening, but at least we are now flipping to the side we 25 would expect. Right? So that is still RITZ - DIRECT / WAGSTAFF 1 Q. 2 unadjusted -­ 3 A. Yes. 4 Q. -- or adjusted. 5 A. Uh-huh. 6 Q. And I think you testified that the unadjusted data still 7 adjusts for other things, like age -­ 8 A. Sex, et cetera. 9 Q. -- sex or some other lifestyle? 10 A. Family history, yeah. 11 Q. This is for pesticide use? 12 A. 13 pesticides they may have used. 14 Q. 15 value in looking at unadjusted data? 16 A. 17 for, the question we have to ask: 18 for the outcome? 19 factor for lymphoma? 20 So on this board we've taken care to mark when data is Yes. The unadjusted only refers to unadjusted to other So can you tell the ladies and gentlemen of the jury the Right. So when we are determining what we need to adjust Is it a risk factor for NHL? That -- and then the next question: 21 exposure? 22 older? 23 are the one spraying in the fields? 24 25 Is that factor a risk factor Is it a risk Does it relate to Do you have more exposure because you are getting Do you have more exposure because you are a man and you If that answer is yes too, then we need to adjust for that factor. Okay? RITZ - DIRECT / WAGSTAFF 1 However, if it's only "I get older" or "I drive a tractor 2 and whenever I drive my tractor, I spray pesticides," but 3 driving a tractor doesn't give you NHL -- right? -- then I 4 should not adjust for driving a tractor because a tractor -­ 5 driving a tractor doesn't give you NHL. 6 The first question you have to ask is: Is that factor 7 giving you NHL? 8 should be adjusting for. 9 should consider that would influence what the pesticide does to If the answer is no, it's not a confounder we It's not a factor, a risk factor, we 10 the person. 11 Q. 12 do you consider unadjusted data? 13 A. Absolutely. 14 Q. Unadjusted for other pesticides. 15 A. Yes. 16 Q. Yes. 17 And in your experience as an environmental epidemiologist, Unadjusted for other pesticides. Thank you for that clarification. And you testified yesterday that you were president of the 18 International Society of Environmental Epidemiology. 19 A. Right. 20 Q. And does that society consider unadjusted -- data that's 21 unadjusted for other pesticides? 22 A. We do that all the time. 23 Q. That's a piece of the puzzle? 24 A. Yes. 25 Q. Okay. RITZ - DIRECT / WAGSTAFF 1 A. 2 mistake in both ways. 3 mistake is not to adjust. 4 everything in you can think of whether it's a risk factor for 5 the outcome or not. 6 And the real reason for that is that you can make a What people will tell you, the bigger So in order to be safe, just put That's the wrong approach. If you do that, you increase bias. You're actually 7 tearing at your estimate and you are tearing it to one side or 8 another, and you're making it just as wrong as if you forget to 9 adjust or you can't adjust because you haven't measured 10 something. 11 Okay? It goes both ways. The wrong factor in the model gives 12 you the wrong results. 13 unadjusted and adjusted, and we are thinking about whether the 14 factor is actually a risk factor for the outcome. 15 qualifying as a risk factor for the outcome, it's not a factor 16 you put in the model. 17 Q. 18 considering all of the data -­ 19 A. Yeah. 20 Q. -- that we've discussed over the last few hours with the 21 jury, including the Agricultural Health Study data and all of 22 the data above that we discussed yesterday, are there any 23 general conclusions that you draw looking at all of that data 24 in total about the risk of exposure to glyphosate and 25 non-Hodgkin's lymphoma? That's why we're always looking at If it's not So if you could turn -- well, before I move off of this, RITZ - DIRECT / WAGSTAFF 1 A. Yeah. 2 Q. Actually, let me change that just because I want to make 3 sure that my wording is actually really correct and I want to 4 make sure that I'm asking the right question. 5 So this is a lot of data, a lot of numbers. First of all, when we were talking about the Agricultural 6 Health Study, I was discussing it in terms of glyphosate. 7 A. Yes. 8 Q. And that's because that's what was asked on the 9 questionnaire? 10 A. No. 11 it has in brackets Roundup and other names because we are 12 talking farmers, you know. 13 formulations. 14 applying what they get at the store or from their distributor. 15 It's the real-life, real-world exposure. 16 animal studies where we have a choice. 17 are sold. 18 Q. 19 referred to as GBH? 20 A. Correct. 21 Q. And Roundup -- is Roundup a glyphosate-based herbicide? 22 A. Yes. 23 Q. Okay. 24 of this data that we've looked at yesterday and the 25 Agricultural Health Study data from today, are there any Okay. Actually, the questionnaire has glyphosate and then They are actually applying They're not applying a chemical. They are It's not like in Humans use what they So it's a formulation. And glyphosate-based herbicides is sometimes So let me reask the question now. Considering all RITZ - DIRECT / WAGSTAFF 1 conclusions you can draw about the exposure to Roundup and the 2 increased risk for NHL? 3 A. 4 data, that I had to consider to make up my conclusion that it 5 truly is a cause of NHL and, you know, I've explained that over 6 the last two days. 7 Well, this is what I -- this is all the data, all the ugly But what is important is I looked at unadjusted and 8 adjusted estimates, and they're telling me the same story. 9 De Roos is fully adjusted for 48-some pesticides and it -- that 10 analysis is even statistically significant after all those 11 adjustments. The 12 We also see patterns that I would like to see, which are 13 that people with occasional use are not as heavily at risk as 14 people who have heavy use, or maybe they're not even at risk at 15 all; right? 16 who have very high exposures. 17 Really the most of the risk is among the people There still is that difference that we have to grapple 18 with between all of the case control studies in Canada, in the 19 U.S., and in Sweden, and the one big Agricultural Health Study 20 that had a completely different design and did a completely 21 different thing -- right? -- and showed different results. 22 Q. 23 remember when you taught them -- before you come down, could 24 you please look at Exhibits 914 and 915? 25 A. So hopefully the ladies and gentlemen of the jury will Yes. RITZ - DIRECT / WAGSTAFF 1 Q. 2 A. 3 Q. 4 opinions to the jury? 5 A. And did you help in making those two exhibits? (Witness examines document.) Yes. And would those exhibits be helpful in explaining your Yes. 6 MS. WAGSTAFF: 7 THE COURT: 8 MS. MATTHEWS JOHNSON: 9 Okay. Permission to publish? Any further objection? No further objection, that's right, Your Honor. 10 THE COURT: Okay. You can publish. 11 THE WITNESS: 12 MS. WAGSTAFF: So -- yes. 13 THE WITNESS: Is it okay? 14 THE COURT: Do you want me to come down? Please come down. Of course. 15 BY MS. WAGSTAFF: 16 Q. 17 the jury -- do you have a color that you prefer? 18 A. I have one here. 19 Q. Okay. 20 Dr. Ritz, please explain to the ladies and gentlemen of -- so what this is and the significance and meaning of 21 this. 22 A. 23 the numbers and it's really confusing; right? 24 25 Right. So you've been staring at this ugly chart with all To me too. So -- and I showed you before we can actually graphically display data, and it has the same meaning; right? The number, RITZ - DIRECT / WAGSTAFF 1 the first number we show you on this chart is the big dot; 2 right? 3 twofold, or whatever, increase in risk. 4 That's our central estimate or bullet point estimate or And then we have these whiskers -­ 5 Q. Let me just get this -- let me get set up. 6 A. Sorry. 7 Q. I'm going to box you. 8 A. And then we have these whiskers; right? 9 in this chart that these whiskers go all the way out to the 10 right and the left and they may or may not cross that line. 11 THE COURT: Can I make a suggestion? And I showed you Why don't you 12 move that chart to somewhere a little bit behind where 13 Ms. Wagstaff is standing? 14 better able to hear you -­ 15 THE WITNESS: 16 THE COURT: 17 Yes. -- and I will be better able to see. And obviously, Ms. Johnson, you need to move. 18 (Pause in proceedings.) 19 BY MS. WAGSTAFF: 20 Q. You got a pen? 21 A. Uh-huh. 22 That way the court reporter will be So I told you before that, you know, if we only have one 23 study and we get this, we would say, "Eh, don't know. 24 twofold risk." 25 Maybe Then when we put this in context of prior knowledge or RITZ - DIRECT / WAGSTAFF 1 other studies that we can find in the literature and we plot 2 them and they show 2 and some fold, 3 and some fold, some show 3 only 1.1, but generally you get just a whole pattern; right? 4 Most of these studies show there's an increase in risk. 5 Even so, these whiskers are wide, they're shorter, this 6 one is short, this has a lot of information in the study, but 7 some of them cross the 1, some don't. 8 counting the studies that don't cross the 1. 9 our summary of data, we use all of the information we have. 10 We're not exclusive; right? 11 We're not just going and We actually, in We're inclusive. And within all of this, we can now put our own study in 12 the context of what we have learned from other studies and 13 overall we can say we now feel comfortable to say that my study 14 is probably confirming what other studies have shown as well. 15 Okay. So this is what we tried to do with all the data on 16 the ugly chart; but just to visualize what is happening here, 17 we have -- 18 Q. 19 an "A" similar to what -­ 20 A. 21 pesticides. 22 including sometimes family history, sex, race -- well, they're 23 the same race in Eriksson -- and age. 24 25 Can you also mark if they're adjusted or just put a "U" or So this is unadjusted and this is unadjusted for other It's still adjusted for other risk factors, So -- but these whisker plots show you that in McDuffie they attempted to get at the regular users versus the RITZ - DIRECT / WAGSTAFF 1 occasional users of glyphosate. 2 actually see an effect where the dot is on the right side and 3 the whiskers exclude the 1 is when we go to greater than two 4 days per year. 5 study, taught us. 6 And the only place where we That's what the McDuffie study, the Canadian The Swedish study in 2008, that's the latest Swedish study 7 that was actually properly big. 8 we didn't even put here because they only had four and eight 9 cases that were exposed. The first two Swedish studies Remember that? 10 more cases so we just go with this one. 11 And what does this teach us? This one had a lot This teaches us that when 12 we're splitting now by days of use in less than 10 days and 13 greater than 10 days, we are starting to see a dose-response 14 creeping up. 15 the longer use where the estimate is on the -- further on the 16 right above 2 and the whiskers are wide but they're still 17 excluding the null here; right? 18 use for more than 10 days. 19 And definitely it is, again, the group that has So all the action is when you And then what does this study also tell us is less than 10 20 years and greater than 10 years, that is excluding -- it says 21 less than 10 years but what it really means is I am not 22 counting the last 10 years in which you were exposed. 23 counting -- so that's this one (indicating), it's clearly close 24 to 1 -- I'm counting all the exposures that -- exposures that 25 this -- these people had 10 years and more prior to coming down I'm only RITZ - DIRECT / WAGSTAFF 1 2 with NHL. Right? So that's the timing. And when I get that timing right 3 more than 10 years back, in this case then, again, my estimate 4 is above 2 and that whisker is actually excluding the null, the 5 1; right? 6 significant, statistically significant but unadjusted. 7 Unadjusted for other pesticides. 8 9 10 11 Statistically significant, statistically I'm saying here there are no other pesticides that could have caused this instead of glyphosate. That's the assumption I'm making if I believe this data. If you believe that there's one other pesticide that every 12 time this person uses glyphosate they also use or sequentially 13 use, so everybody who is called pesticide exposed here also 14 always uses something else and only that other product gives 15 them cancer, then this is rubbish. 16 case, there's not another agent really that is causing all this 17 NHL and that is causing these patterns, unadjusted is perfectly 18 fine. 19 Okay. If you think that's not the Then we are going to Andreotti. So this is the 20 last paper we talked about, the paper in 2018 from the 21 Agricultural Health Study, completely different study design, 22 and that's the 20-year lag. 23 And you can see when -- we're excluding all that weird 24 period of glyphosate increase from 1993 to 2013, we're 25 excluding that. 20-year lag means I subtract all the exposures RITZ - DIRECT / WAGSTAFF 1 in the last 20 years before that lymphoma occurred. 2 that goes out. 3 Okay? All Pretty much it says the only exposures allowed here are 4 between 1974 and about 1990 for most people. 5 exposure rate we're looking at. That's the And you can now see that actually we are on the right side 6 7 of the 1 except for this one (indicating), but none of these 8 whiskers excludes the 1 but somehow we are going from being 9 protective to actually seeing an effect. 10 But we have now a situation where we have to say it is 11 correct to totally ignore all the exposures between 1990 and 12 2013. 13 them, then w e 're doing what I told you was the bucket. We're 14 taking a scoop from one bucket and putting it in the other and 15 the other way around until everything is pink. 16 That's probably not right. But if we try to include What that does is guarantee that we are on 1 because you 17 cannot distinguish pink from pink. You can't distinguish the 18 number of cases in the exposed divided by the number of cases 19 in the unexposed because they're all mixed, and that ratio then 20 becomes 1. 21 Q. 22 meta, and that stands for meta-analysis. 23 paper that we haven't discussed yet? 24 A. Yes. 25 Q. So could you publish the Zhang paper, which is 1984, So we would get right there (indicating). So let me just ask a question. This is now a new concept And is that a new That's actually a paper that was just came out by -­ RITZ - DIRECT / WAGSTAFF 1 please? 2 Dr. Ritz, if you could look at this. 3 A. So this is -­ 4 Q. Can you highlight the date that it came out, please, 5 Mr. Wolf? 6 A. 7 in a journal called Mutation Research. 8 And so what these authors -­ 9 Q. Yes. 5th of February 2019, so really hot off the press, Hang on one second. 10 If you could go to the conclusion, Mr. Wolf, on page 2. 11 And then, Dr. Ritz, if you could please tell the ladies 12 and gentlemen of the jury about the Zhang paper. 13 A. So what these people conclude from this data 14 (indicating) -- right? -- big dot with whiskers, whisker above 15 1 meaning statistically significant, they say (reading): 16 "Overall, in accordance with evidence from animal and 17 mechanistic studies, our current meta-analysis of human 18 epidemiologic studies suggests a compelling link between 19 exposures to glyphosate-based formulations" -- H? 20 H? 21 Q. Herbicides? 22 A. (reading) 23 -- "herbicides and an increased risk for NHL." 24 Q. And is Roundup a glyphosate-based herbicide? 25 A. Yes. What is RITZ - DIRECT / WAGSTAFF 1 Q. 2 and what the Zhang scientist did and how it fit on your board? 3 A. 4 and whiskers, and what they did is they used exactly the data 5 that we have on that ugly chart but they made a distinction. 6 Instead of what former -- it's a summary of all the data so 7 they are now summarizing across all the studies and give you 8 this overall estimate that's around 1.5. 9 Okay. And so if you could explain what a meta-analysis is So you can see they give you 2 whisker plots with a dot Okay? So if you summarize across all those studies, what 10 happens? 11 the never/ever glyphosate exposed; and then summarized across 12 the estimates, the measures they got just yes-no exposed. 13 they did is said, "Well, I want to only count the people that I 14 truly believe are exposed." 15 exposed from every paper and they summarize across those people 16 who were the highest exposed. 17 In former meta-analyses what people have done is use What So they go with the highest And when they do that and leave the Agricultural Health 18 Study, the second one, out but use the first one, the De Roos 19 paper, they get a 1.50. 20 estimate from the intensity-weighted De Roos study, which we 21 know was on the wrong side, and threw that in and averaged it 22 in with all the other data from the other studies and still got 23 an increased risk and one that's statistically significant. 24 25 So they use the highest exposure And then they said, well, now let's do that with the latest paper that came out, the Andreotti paper that looked, RITZ - DIRECT / WAGSTAFF 1 you know, all the way to 2013. 2 out because you're not allowed to count studies twice so they 3 are replacing De Roos with Andreotti. 4 much happens; right? 5 They had to take the De Roos And guess what? Not So the estimate is still about 1.48 and the whiskers 6 shrink a little bit and they're definitely on the other side of 7 the 1, meaning it's statistically significant. 8 about 50 percent increased risk even if we count the 9 Agricultural Health Study, which showed, if anything, So we have a 10 protective effects. 11 Q. 12 effect tell you about exposure to Roundup causing non-Hodgkin's 13 lymphoma? 14 A. 15 glyphosate-based herbicides in fact are causing non-Hodgkin's. 16 Q. 17 that chart, which I think is beautiful. 18 So what does this data that summarizes the dose-response Well, this is what I based my opinion on, which is that All right. Let's do one similar. This is still data from This actually has printed on there the adjusted numbers. 19 A. Right. 20 Q. So you don't need to write anything, but are those correct 21 as near as you can tell? 22 A. As near as I can tell, yes. 23 Q. Okay. 24 the one we just looked at? 25 So could you explain what this is different than MS. MATTHEWS JOHNSON: Objection as to the foundation RITZ - DIRECT / WAGSTAFF 1 2 3 of the question that it contains adjusted numbers. MS. WAGSTAFF: It actually says right here "Adjusted." Instead of us writing it on there "U" or "A" -­ 4 MS. MATTHEWS JOHNSON: 5 MS. WAGSTAFF: 6 THE WITNESS: 7 Okay. -- it actually is printed on there. Yeah. So what she's saying is we have -- actually authors do two 8 different analyses; right? For example, Hardell in 2002, he 9 showed us an estimate, this one (indicating), that was pretty 10 big, about three, but he didn't adjust for other pesticides in 11 that model. 12 glyphosate and ignore the other pesticides." 13 He just said "It's glyphosate. Let's just look at But then he also had one analysis where he actually threw 14 other pesticides in, and you can see that that estimate moves 15 towards the 1, which is actually what I would expect if you 16 throw the wrong pesticide into the model. 17 that really correlate with your exposure with glyphosate, just 18 like driving a tractor would be an indicator of spraying 19 glyphosate but driving a tractor is not a risk factor -­ 20 right? -- and another pesticide that goes along with glyphosate 21 but is not a true causal effect for the outcome for the 22 lymphoma should not be in the model. 23 not be in the model because it's not a cause of the disease. 24 25 Meaning pesticides Tractor driving should When you do that, we call that splitting the variance so you're actually guaranteed to drive an estimate down to the 1. RITZ - DIRECT / WAGSTAFF 1 Okay? 2 happens. 3 null. 4 If you do the wrong thing, adjust wrong, this is what You're generating bias, in this case bias towards the Okay. But what you can see whether or not we agree that 5 we should put pesticides in the model, these estimates, these 6 dots -- right? -- they are, except for Orsi, all on the right 7 side. 8 BY MS. WAGSTAFF: 9 Q. 10 A. Right. 11 Q. Put an "H" by Orsi or write "hospital" if you will, just 12 so we don't forget. 13 A. 14 Q. All right. 15 A. All right. 16 now previous meta-analyses, which are summarizations just like 17 we saw for this February 5th paper, but they were done by 18 different people in 2014, '15, and '15 again. 19 different groups have tried to summarize across these data and 20 these are the estimates they present. 21 criticized because they are in 2014, 22 not including the Andreotti paper. 23 Orsi was the hospital study; right? That's the hospital study, the French one. (Witness complying.) And then down here (indicating) we show you So three And these have been '15, and '15 so they are And you remember that the Andreotti paper only came out in 24 2018, and that was the one where everything was on the other 25 side of the 1 -- right? -- was protective. RITZ - DIRECT / WAGSTAFF 1 So you can see that all of these meta-analyses also 2 pointed at an increased risk and all of them are statistically 3 significant because they're not crossing the 1. 4 So the conclusions from the former meta-analyses without 5 the Agricultural Health Study paper of Andreotti was there is a 6 risk increase across all studies, and the conclusion of the new 7 meta-analysis is exactly the same and they include Andreotti. 8 Q. 9 Okay. Thank you very much. And one last concept I would like you to teach the jury, 10 and if you would indulge me. 11 the Bradford Hill chart, which is Exhibit 905. 12 MS. WAGSTAFF: 13 MS. MATTHEWS JOHNSON: 14 THE COURT: This is exhibit number -- it's Permission to publish. No objection. Go ahead. 15 BY MS. WAGSTAFF: 16 Q. 17 actually has more ink. So I'd like you to please use this pen. I think it If you could please explain what the Bradford Hill is to 18 19 the ladies and gentlemen of the jury, how it's used in the 20 field of environmental epidemiology, and then give your 21 analysis to the jury, that would be very helpful. 22 A. 23 Bradford Hill because he was knighted by the Queen for his 24 accomplishments, and he in the 1960s actually came up with what 25 he called his considerations for causation. Thank you. So it's actually used in all of epidemiology and it's Sir So we have seen RITZ - DIRECT / WAGSTAFF 1 all these ugly numbers. 2 We know more about these studies than we ever wanted to know 3 now, but how do we summarize what we've seen? 4 We have looked at all these studies. And he said these are criteria we should use in order to 5 come up with is there causation or not. 6 shouldn't just use human studies and we shouldn't use human 7 studies out of context. 8 studies because we have our colleagues who are testing these 9 products on animals, on mice, on rats, and we should use that 10 And he said we We also should use experimental data and include it in our overall thinking as a scientist. 11 We also have people who draw blood from people who were 12 glyphosate exposed or other types of pesticide exposed and then 13 look at what happens to their lymphocytes, to their white blood 14 cells. 15 us that are showing us results. 16 Right? So we have a lot of different sciences around But let's stick for now with consistency of associations. 17 That is just the human studies. 18 consistency in what we see in human studies? 19 of these studies showing you an increase in risk? 20 And it says: Is there a Meaning are most Well, I would say, yes, strong consistency except -­ 21 Q. Let's see if this one works. 22 A. It's working. 23 Q. Okay. 24 A. -- strong consistency except the Agricultural Health 25 Study; right? That one drops off. RITZ - DIRECT / WAGSTAFF 1 Q. Can you write that a little darker if you can? 2 A. This one? 3 Q. Yes. 4 A. (Witness complying.) Okay. 5 Then how strong is the association? Meaning, how 6 strong -- how large is that relative risk? 7 maybe moderate because it's only an overall 50 percent increase 8 in risk. 9 ever/never. 10 It's not twofold. Right? Well, you could say But that's moderate for When you're going to the regular users, it's actually strong because it's more than 2 for regular use. 11 Okay. Biologic plausibility. This is where we have to 12 ask ourself: 13 cause cancer and how would they do this? 14 or some odd principles that the International Agency for 15 Research on Cancer agreed on that show you that something can 16 cause cancer and there are two mechanisms, one is called 17 oxidative stress and the other is called genotoxicity. 18 is your cells get bombarded with oxygen that corrodes and 19 pretty much -- yeah, corrodes your proteins and your genetic 20 material. 21 your genetic material is attacking the cell. 22 were found for glyphosate-based formulations so there is 23 actually biological plausibility. 24 Q. 25 oxidative stress? Could glyphosate-based formulations actually And there are now 10 So one And the other one is called genotoxicity, meaning And both of them And, Dr. Ritz, have you written papers on that concept of RITZ - DIRECT / WAGSTAFF 1 A. 2 Q. 3 A. 4 Q. Okay. 5 A. And so then gradient. 6 dose-response? 7 arguments why I think that it's actually quite believable that 8 there's a stronger effect, there's a gradient in a sense that 9 you need a lot more exposure in order to be at risk; right? Yes, I have. And were they published in peer-reviewed journals? Yes, in medical journals. Right? This is the question: And I have already shown you my 10 You need exposure above a certain level. 11 gradient, yes. 12 Do we see a So there is a Temporality, meaning did the exposure come before the 13 disease occurred? 14 disease and you ask them, "Well, what happened before"? 15 also in the AHS study definitely. 16 Well, it had to when you already have the And So that is given, yes. Specificity is a difficult one. It means -- a bit more 17 difficult to understand maybe -- it means does one agent always 18 just cause one disease? So does glyphosate only cause one type 19 of cancer and not many? Actually, that seems to be the case in 20 the humans as well. 21 And then coherence just puts all of the animal world study 22 together with what I have seen in the humans. 23 mechanism, goes back to cell data, and then says "Do we 24 coherently see what we see in humans also in experimental 25 animals?" It goes back to And there are actually at least I think now six RITZ - DIRECT / WAGSTAFF 1 mouse studies that also showed some kind of lymphoma showing up 2 in mice that were dosed with these formulations. 3 say yes. 4 Q. 5 So I would Thank you. So going through your Bradford Hill considerations, what 6 does that tell you and how does that inform your opinion on 7 whether or not exposure to Roundup causes non-Hodgkin's 8 lymphoma? 9 A. Well, this is pretty much the exercise I went through in 10 order to come up with my determination that GBHs are actually 11 causing non-Hodgkin's lymphoma in humans. 12 Q. 13 the animal studies? 14 A. Yes, I did. 15 Q. And did you consider the cell studies? 16 A. Yes. 17 Q. All right. 18 you very much. 19 Okay. And when you made that opinion, did you consider And if you would return to your seat. I just have one last question for you. Thank Yesterday during 20 opening statement, Monsanto's counsel put a graph to the jury, 21 and I don't have a copy of it so I'm going to try to draw it. 22 The graph looked something like -- and you'll just have to bear 23 with me -- something like glyphosate use -­ 24 MS. MOORE: 25 MS. WAGSTAFF: Aimee, I don't think they all can see you. I'll turn it. RITZ - DIRECT / WAGSTAFF 1 Q. 2 3 And this was supposed to be over time. I'm going to go back here because it's probably more important that the jury sees it. 4 Can everybody see this? 5 A. Yes. 6 Q. Everyone on the jury? 7 Okay. You can see it? Dr. Ritz? So this was time headed this way (indicating), and 8 the suggestion was that glyphosate use has spiked. 9 testified to that; right? And you've 10 A. Yes. 11 Q. And then there was some line drawn to suggest that over 12 that time, NHL had stayed the same, the rate of NHL. 13 A. Okay. 14 Q. That was the suggestion made by this chart, some version 15 of that. 16 A. Yes. 17 Q. If that is, in fact, the case, can you explain why that 18 would happen? 19 A. 20 So you're comparing the rate of increase of one thing with a 21 rate of increase of another thing. 22 glyphosate use increased, you would expect NHL rates to also 23 increase. 24 unexposed. 25 you know, percentage use or rate of NHL. Yeah. I'm drawing it off of freehand. That's what we usually call an ecologic analysis. Right? In this case while It doesn't tell you who's exposed or who's It's just a general number in the population of, RITZ - DIRECT / WAGSTAFF 1 It's called an ecologic analysis and we're actually using 2 that in my class in very many funny ways. 3 in a medical journal recently an article about the intake of 4 chocolate use and the number of Nobel laureates, and you can, 5 actually across countries, you can see how the number of Nobel 6 laureates goes up with how much chocolate you eat. 7 And it's true data. For example, there's So -- but, you know, nobody would 8 think that chocolate-eating gives you the Nobel Prize. 9 Q. 10 Would an analysis like this take into account maybe the change in protective equipment used over time? 11 12 Okay. MS. MATTHEWS JOHNSON: Objection. Objection. Leading. 13 THE COURT: 14 THE WITNESS: 15 THE COURT: Sustained. So -­ Hold on. 16 you don't answer the question. 17 THE WITNESS: I sustained the objection. Oh, yeah. 18 BY MS. WAGSTAFF: 19 Q. 20 equipment changed over time -­ 21 MS. MATTHEWS JOHNSON: Assume -- if the rate in which people wore protective 22 BY MS. WAGSTAFF: 23 Q. Objection. Leading. -- how would that affect this study? 24 MS. MATTHEWS JOHNSON: 25 THE COURT: Sustained. Objection. Leading. So RITZ - CROSS / MATTHEWS JOHNSON 1 BY MS. WAGSTAFF: 2 Q. Does this study take into account dose-response? 3 A. No. 4 MS. MATTHEWS JOHNSON: 5 THE WITNESS: Objection. The reason is we don't know who was 6 exposed and at what level at the individual level. 7 having a general population estimate of the amount sprayed, but 8 we don't know what people did when they sprayed. 9 MS. WAGSTAFF: Thank you. 10 THE COURT: 11 MS. MATTHEWS JOHNSON: 12 Okay. I pass the witness. Ms. Johnson. May I have one moment, Your Honor? 13 THE COURT: 14 MS. MATTHEWS JOHNSON: 15 Sure. I want to make sure I'm doing this correctly. 16 (Pause in proceedings.) 17 CROSS-EXAMINATION 18 BY MS. MATTHEWS JOHNSON: 19 Q. Good afternoon, Dr. Ritz. 20 A. H i. 21 Q. My name is Tamarra Matthews Johnson. 22 before; right? 23 A. No. 24 Q. All right. 25 We're just We've never met I'll be asking you some questions today. I think you mentioned on direct examination that you're a RITZ - CROSS / MATTHEWS JOHNSON 1 medical doctor; correct? 2 A. Yes. 3 Q. But not an oncologist; is that right? 4 A. No. 5 Q. And you haven't practiced medicine since 1983-ish, over 35 6 years; is that right? 7 A. In 1983 I got my degree -­ 8 Q. Okay. And have you -- 9 A. -- and practiced until 1989. 10 Q. Okay. 11 apologize for my math. 12 practiced as a physician? 13 A. 14 I didn't see patients, no. 15 Q. 16 Mr. Hardeman's medical condition? 17 A. No. 18 Q. So you have not reviewed his medical records? 19 A. No. 20 Q. You do not know of any conditions he may have had over the 21 years? So you haven't practiced since 1989. If you mean Are you here today to testify about the plaintiff MS. WAGSTAFF: 23 THE COURT: 25 So roughly 30 years you have not If you mean I didn't treat patients, correct. 22 24 So I Objection. Okay. Sidebar, Your Honor. I don't think this needs to be on the record. (Sidebar conference heard but not reported.) RITZ - CROSS / MATTHEWS JOHNSON 1 BY MS. MATTHEWS JOHNSON: 2 Q. Thank you, Dr. Ritz. 3 So you did not examine his medical records or have any 4 idea what medical conditions Mr. Hardeman may have had over 5 these many years? 6 A. No. 7 Q. You have said epidemiology is the study of groups; is that 8 fair to say? 9 A. 10 Q. And you teach at UCLA? 11 A. I still do. 12 Q. And there's a course that we were looking at, a PowerPoint 13 "Introduction to Cohort Studies, Epi 200A"; is that right? 14 A. That's the one we already saw. 15 Q. Yes. Yes. Of Fall 2012. 16 (Pause in proceedings.) 17 BY MS. MATTHEWS JOHNSON: 18 Q. 19 I assume maybe I've already taken an entry level course since 20 this says 200A -- fall 2012; is that right? 21 A. Right. 22 Q. So that's the time period we're in. 23 that in the fall of 2012, you were also on the Advisory 24 Committee for the Agricultural Health Study; is that right? 25 A. All right. So I am going to be enrolling in your class -­ It just so happens I'm still on the committee, but they didn't meet any more RITZ - CROSS / MATTHEWS JOHNSON 1 after 2007. 2 3 MS. MATTHEWS JOHNSON: to the jury. I was just reminded. 4 THE COURT: 5 MS. WAGSTAFF: 6 THE COURT: 7 MS. MATTHEWS JOHNSON: 8 Thank you. 9 Q. Okay. I want to ask to publish this May I? Any objection? No objection, Your Honor. You may publish it. So here we are. I believe it's in evidence. "Introduction to Cohort Studies." 10 I'm in your class. 11 said that, yes, in fact you were on the Advisory Committee in 12 2012 . 13 A. Well, by this time the AHS didn't have money. 14 Q. I'm sorry, Dr. Ritz. 15 Advisory Committee in 2012? 16 A. Yes, I was on the Advisory Committee. 17 Q. You were? MS. WAGSTAFF: 18 19 It's the fall of 2012. I think you've just I just want to know, were you on the Objection. Can she be allowed to answer the question? THE COURT: 20 The objection is overruled. 21 BY MS. MATTHEWS JOHNSON: 22 Q. 23 not just on the committee, you're the chair? 24 A. I was the chair, yes. 25 Q. You were the chair because you became the chair in 2005? Fall of 2012, you are on the Advisory Committee and you're RITZ - CROSS / MATTHEWS JOHNSON 1 A. Yes. 2 Q. Because you joined the committee in 2001? 3 A. Yes. 4 Q. Okay. 5 are on the Advisory Committee for the Agricultural Health 6 Study. 7 A. Uh-huh. 8 Q. Okay. 9 Health? So I'm in your class. It's the fall of 2012. You And that study is run by the National Institutes of 10 A. By the National Cancer Institute, the National Institute 11 of Environmental Health, and EPA. 12 Q. 13 NCI and the NIEHS are within the Institutes of Health; is that 14 right? 15 A. Correct. 16 Q. Okay. 17 correct me if I get that wrong. Okay. And so the N -- I'm going to get this wrong -- the I mix up the letters sometimes. I'm sure you will And so these are government agencies that have been 18 19 sponsoring the Agricultural Health Study? 20 A. What do you mean by "sponsoring"? 21 Q. Sponsoring it. 22 A. Funding it? 23 Q. "Funding," is that the right word? 24 A. Yes. 25 Q. So when you say "funding it, " you mean there's no industry RITZ - CROSS / MATTHEWS JOHNSON 1 money -- 2 A. Correct. 3 Q. -- in that study? 4 A. Yes. 5 Q. And so by that, that also includes Monsanto. 6 money in the study? 7 A. Correct. 8 Q. Okay. 9 and years by 2012? No Monsanto And this study has been running for years and years 10 A. Yes. 11 Q. Okay. 12 are also on the Advisory Committee for the Agricultural Health 13 Study. 14 So I'm in your class, you're teaching it, and you Now, this is a long deck, and we are not going to do all 15 of these slides in here today; but if I go to the second slide, 16 kind of one of the overview points it looks like you're talking 17 about different kinds of studies. 18 the past that this is a way to kind of provoke discussion about 19 different types of studies. 20 A. Correct. 21 Q. Okay. 22 there a way, if possible -- I don't want to click through too 23 many of these. And I think you've said in So we're not going to go slide by slide. So is 24 But suffice to say, you spent a number of slides, and I'm 25 just going to click through because we're not going to stop on RITZ - CROSS / MATTHEWS JOHNSON 1 every one, but talking about cohort studies and a number of 2 different aspects of cohort studies? 3 A. Yes. 4 Q. Is that fair to say? 5 A. That's fair to say. 6 Q. Okay. 7 up to the "Summary of Cohort Studies." 8 Slide 26 and not do the previous two dozen slides in the 9 interest of time. 10 And so by the time we get to about Slide 26, we are So we're going to go to So, first, we see here in your PowerPoint that cohort 11 studies are generally the most accepted in the scientific 12 community? 13 A. Emphasis on "general." 14 Q. Okay. 15 is that correct? 16 A. That's what this says, yes. 17 Q. Right. 18 reading your slide deck. 19 class so this is what I'm going to see up on the board. 20 A. Okay. 21 Q. Is that right? 22 A. Yes. 23 Q. Okay. 24 experimental strategies, and the goal is to estimate the risk 25 of various or one diseases among the exposed subjects relative They include the entire available study population; Am I reading that correctly? We're reading -- what I'm doing here now is just I'm sitting as a student in your And it's so -- it's most similar to standard RITZ - CROSS / MATTHEWS JOHNSON 1 to the background risk experienced by comparable unexposed 2 persons; is that right? 3 A. Correct. 4 Q. And at the bottom, I mean, this is kind of the heart of 5 the question -- right? -- what would have happened to this 6 group of exposed subjects if they had not been exposed; is that 7 right? 8 A. Yes. 9 Q. Because I think you've talked about it. There are all 10 kinds of things in the mix. There's age that's in the mix; 11 correct? 12 A. Correct. 13 Q. There can be health history that's in the mix; is that 14 right? 15 A. Could be. 16 Q. Right. 17 a hospital-based study, and one of your critiques was that the 18 people in there had other health issues; is that right? 19 A. 20 health issues may be related to the exposure of interest, not 21 that they had health issues. 22 Q. 23 the mix? 24 A. In what mix? 25 Q. Of any question if you're saying what would happen if I mean, you talked about the Orsi study. No, that wasn't the critique. Okay. That was The critique was that other That's perfectly fine. But if someone has health issues, that can be in RITZ - CROSS / MATTHEWS JOHNSON 1 someone weren't exposed, you're looking at all the other things 2 remaining the same. 3 A. 4 other health outcomes are allowed as long as they don't 5 influence the outcome. 6 Q. 7 the particular disease, that's one thing; but if it is a factor 8 in whether they can get that disease, that's a whole other 9 situation? Only if it relates to the outcome of interest. Right. So all So if it doesn't influence whether someone gets Is that right? 10 A. Well, then we want to measure that factor. 11 Q. So, next, "Summary: 12 how you select people, how you recruit them into the cohort; is 13 that right? 14 A. Uh-huh. 15 Q. And then you have a slide that says "Advantages of the 16 Cohort Method." 17 provide a complete description of experience of cohort members; 18 is that correct? 19 A. Subsequent to exposure. 20 Q. Subsequent to exposure; is that right? 21 A. Yeah. 22 Q. Okay. 23 effects potentially? 24 A. Yes. 25 Q. It allows for calculation of the rates of disease? Cohort studies." So this talks about Yes. So you look at some of the advantages. It can allow the study of multiple potential It can RITZ - CROSS / MATTHEWS JOHNSON 1 A. In exposed versus unexposed. 2 Q. Can it permit flexibility in choosing the variables to be 3 recorded? 4 A. Right. 5 Q. And it allows for thorough quality control in measurement 6 of study variables? 7 A. Not in historical cohort studies. 8 Q. Okay. 9 talking about whether we're looking back or looking forward and And so when you're talking about that, we're 10 tracking people forward? 11 A. 12 historical cohort study, but that also refers to baseline 13 assessment. 14 Q. When you're asking people to add -­ 15 A. Backwards. 16 Q. -- to look backwards to start; is that right? 17 A. Right. 18 Q. Okay. 19 disadvantages of the cohort method; is that right? 20 A. Yes. 21 Q. And then we get to slides about the Agricultural Health 22 Study Cohort; is that right? 23 A. And you don't want to know the disadvantages? 24 Q. Well, you've got a slide that says "Advantages" and 25 "Disadvantages," don't you, Doctor? No. What -- yes, that's generally what you call a Then you have a slide that talks about the RITZ - CROSS / MATTHEWS JOHNSON 1 A. 2 disadvantages. 3 Q. 4 A. And that's why I put those in there. 5 Q. Oh, absolutely. 6 students, and Ms. Wagstaff may want to talk to you about those; 7 but what I want to be clear on is on direct examination, you 8 were shown the disadvantages slide and said -- and asked if you 9 taught about that. Yeah, but you made me read the advantages and not the Yes. And I'm sure you teach those to your Just to be clear, there's also an 10 advantages slide -­ 11 A. Of course. 12 Q. -- that appears before the disadvantages slide; is that 13 right? 14 A. Yes. 15 Q. So now we're on to the Agricultural Health Study Cohort. 16 So I'm in your class and I'm looking at what you are putting in 17 your slides about AHS. 18 A. Yes. 19 Q. So first we learn that it's a collaborative effort to 20 study the effects of pesticide exposures among farmers; is that 21 correct? 22 A. Yes. 23 Q. And here we have the National Cancer Society. 24 another way of saying National Cancer Institute? 25 A. Oh, that's a typo. Is that Is that -- RITZ - CROSS / MATTHEWS JOHNSON 1 Q. Okay. 2 Fair enough. Is it NCI or National Cancer Society? Or maybe it's both. 3 A. No. 4 Q. Okay. 5 A. Institute. 6 Q. Okay. 7 Environmental Health Sciences? 8 A. Correct. 9 Q. And the EPA as you said? 10 A. Uh-huh. 11 Q. And we've also got the website here aghealth.nci@nih.gov? 12 A. Yes, for those who want to know more. 13 Q. That's right. 14 here. 15 It's the NCI. So it's the National Cancer Institute? And then we have the National Institute of That's right, but not allowed to research But in general people who want to know more. The "AHS Cohort Study: Retro- and Prospective Data 16 Collection," is that the next slide that I see in your class? 17 A. Yes. 18 Q. So "Phase I, Initial Cohort Recruitment 1994 to 1997." 19 A. Right. 20 Q. And it lists 89,658 folks; is that right? 21 A. Yeah, because it includes the wives and the commercial 22 applicators. 23 Q. 24 top of the farmers and then they were also tracking sometimes 25 spouses, as well as family members; is that right? Right, yes. So there were some commercial applicators on RITZ - CROSS / MATTHEWS JOHNSON 1 A. Yes. 2 Q. Okay. 3 North Carolina; is that right? 4 A. Yes. 5 Q. And each applicator was asked to complete a 21-page 6 enrollment questionnaire, and that included all kinds of 7 information about them; right? 8 pesticides? 9 A. Yes. 10 Q. Demographic data, which I'm taking to mean -- let me know 11 if I'm wrong -- things like age, race, sex? 12 A. Yes. 13 Q. Lifestyle, smoking, alcohol, vegetable and fruit 14 consumption; is that right? 15 A. Yes. 16 Q. A brief medical history, so there was an interest in 17 understanding the medical history of the individuals who were 18 enrolled? 19 A. Yes. 20 Q. Family history of cancer, kidney failure, diabetes, and 21 heart disease? 22 A. Uh-huh. 23 Q. Is that right? 24 A. Yes. 25 Q. And then farm exposures other than pesticides, and it says And so they were recruited at Iowa and Pesticides, you talked about 50 RITZ - CROSS / MATTHEWS JOHNSON 1 not in the commercial pesticide applicator version, and then 2 there were identifiers that were collected as well; is that 3 right? 4 A. Yes. 5 Q. And so they completed questionnaires and then they were 6 given a few take-home questionnaires; is that correct? 7 A. Yes. 8 Q. So next, next slide, it talks more about the actual 9 questionnaires, work practices, farm exposures, pesticide 10 information, work and physical activity, diet, cooking 11 practices, and then they also did medical history 12 comprehensive; is that right? 13 A. Yes. 14 Q. And those were for the take-home questionnaires? 15 A. Yes. 16 Q. Okay. 17 A. But the take-home did not come back from everyone. 18 Q. Right. And w e 're going to get there. 19 to that part where, you know, it happens sometimes. 20 you said every researcher has this issue -­ 21 A. Yes. 22 Q. -- trying to get, you know, as many responses as they can 23 get; is that right? 24 A. That's correct. 25 Q. So cancer and noncancer outcomes were linked with things We're going to get I think RITZ - CROSS / MATTHEWS JOHNSON 1 like cancer registries, vital statistics, and the United States 2 Renal Data System, which is also one of the -­ 3 A. Yeah, for renal disease. 4 Q. And is "renal," just for the record, kidney -­ 5 A. Yes. 6 Q. -- related issues? 7 A. Yes. 8 Q. Okay. 9 it says there's a baseline questionnaire at the licensing exam So then there's also exposure data collection, and 10 and then there's a follow-up. And you talked about telephone 11 interviews; right? 12 A. Correct. 13 Q. And that's the CATI system? 14 A. Yes. 15 Q. So that system is -- you talked about it being assisted 16 but the idea is that live people are on the phone, correct, 17 calling other live people? 18 A. 19 getting, you know, to buy something. 20 Q. 21 Dr. Ritz? 22 A. Yes, they are collecting information. 23 Q. Okay. 24 everybody is getting asked the same types of questions; right? 25 A. It's pretty much like what the calls are that you're Well, but they're collecting information, aren't they, So the idea of having a list is to make sure that Correct. It's standardized. RITZ - CROSS / MATTHEWS JOHNSON 1 Q. 2 about what you want to chat about. 3 everybody is asking the same set of questions. 4 A. Right. 5 Q. That's to increase validity? 6 A. Right. 7 Q. Okay. 8 called cheek cell collection, and I think you talked about this 9 a little bit, about this biometric side of things where -­ Right. You don't want to get on the phone and just chat You want to make sure So they also ask about food and then something here 10 A. Right. 11 Q. -- at various points during the study they were trying to 12 collect information from people, like either urine or here 13 cheek cells. 14 attempts but actual practices of collecting physical data from 15 people as they tried to examine these questions; is that right? 16 A. Correct. 17 Q. So then there were follow-ups. 18 follow-up 1999 to 2003. 19 2004 to 2008. 20 A. Yes. 21 Q. So I think I forgot to just cover one thing. 22 registries. 23 you've said in the past that it is common across all studies to 24 use cancer registries, right, if you're tracking a cancer 25 event? So there was actual attempts to -- not just There's a Phase II There's a phase III follow-up from Is that right? The cancer I think you've talked about them and I think RITZ - CROSS / MATTHEWS JOHNSON 1 A. What studies? 2 Q. Well, if you're doing -- if you're a researcher and you 3 want to know about the incidence of cancer, do researchers kind 4 of find particular resources reliable for getting that data? 5 A. 6 shape, but not -- we don't have a national cancer registry. 7 Q. 8 registry, but there are state cancer registries? 9 A. Correct. 10 Q. They were in Iowa and North Carolina? 11 A. What was that? 12 Q. Iowa and North Carolina have state -­ 13 A. Yes. 14 Q. So if you look at the cohort studies, you are also going 15 through more information here looking at cancer incidence. 16 There is cross-sectional studies. 17 questionnaire data, biomarkers. 18 GIS is? 19 A. Geographic Information System. 20 Q. Is it? 21 is also this idea of nested case control studies. 22 A. I wish they had done one on glyphosate, and they didn't. 23 Q. I understand. 24 operate within some of these cohort studies? 25 A. Yes. If you have a cancer registry, you are in good I understand there might not be a national cancer That's why they did the study there, yes. Okay. They have one. So you are using Are you going to tell me what That is my favorite. Geographic Information System. And there And -­ But they have case control studies that RITZ - CROSS / MATTHEWS JOHNSON 1 Q. Okay. 2 A. One big one. 3 Q. And you are very familiar with that one? 4 A. Yes. 5 Q. Okay. 6 validation studies. 7 think we will get a chance to talk about, but all along the way 8 during AHS, there were individuals publishing articles about 9 how the study was run; is that right? That's the Parkinson's study. So -- and then they have exposure assessment and So there will be other publications that I 10 A. About what -- about what they were finding and what they 11 were doing, yes. 12 Q. 13 one thing. 14 questionnaire was good, there was a period of time, just about 15 a year after initial enrollment, when they went back to 4,000, 16 4.000 people who had come back in to get their licenses 17 renewed, and they have them fill out another questionnaire, 18 didn't they? 19 A. 20 Carolina. 21 Q. 22 4.000 people came back and did another questionnaire a year 23 later? 24 A. 25 were asked to fill out the same 20-some odd page questionnaire And what they were doing. I mean, what you are finding is But, for instance, if you want to know if your Yes, that was in Iowa and only in Iowa, not in North Right. And it was only a one-year period difference. I get that, but is the answer to my question, yes, They came back for a licensing exam, and at that time they RITZ - CROSS / MATTHEWS JOHNSON 1 again, and they did. 2 Q. 3 like I said, the first time around where they were in a rush 4 and did they not really want to provide the information, how 5 does it look in comparison to those earlier responses. 6 then there was an actual article publication about that whole 7 process. 8 A. Correct. 9 Q. Now, we are getting more into the breakdown of the cohort. And they did. And the point of that was to test and see, And 10 So when we talk about the 50-plus-thousand dollars -- dollar, 11 excuse me -- the 52,000-plus person number, pardon me, that is 12 the private applicators; is that right? 13 A. 14 completed the questionnaire. 15 Q. 16 everybody has been doing it, we sometimes just talk about these 17 folks as "the farmers"? 18 A. Yes. 19 Q. Right, because I think you have said farmers are on the 20 front line. 21 A. Of what? 22 Q. The front line of these pesticide studies. 23 said in the past that farmers are on the front line. 24 A. 25 exposed are the people producing the pesticides, and those are Yes. 52,395 are private applicators in Phase One who And it sounds like sometimes across the case -- I think I think you Of application, not -- the people who are actually more RITZ - CROSS / MATTHEWS JOHNSON 1 the people we should be studying but aren't allowed to. 2 Q. 3 here, the people who are using it. 4 producing it. 5 using the product. 6 A. 7 likelihood of being exposed because they do it commercially on 8 their farm, but not every farmer sprays the pesticides. 9 hire people to do that as well. Okay. Well, what I'm talking about is what we are saying You went off people who are I'm just talking about people who are using it, That's where I am. We generally think that farmers have the highest I understand, but I want to be clear about this. They 10 Q. You have 11 said that farmers are on the front line? 12 A. Yes. 13 Q. And that, I think as you noted, they have some of the 14 highest exposures? 15 A. Some, yes. 16 Q. I think you have also said they tend to be pretty good at 17 reporting that use? 18 A. 19 something I do every day I'm able to report. 20 year, I might forget. 21 might forget. 22 Q. 23 too, though, haven't there been? 24 tested and gone back to the distributors of the pesticides, so 25 they have had farmers fill out things saying, Where did you get I'm not sure what you mean by "pretty good," but generally If I do it once a If I have to report 30 years back, I Well, there have been some actual articles about that, Where they have gone and RITZ - CROSS / MATTHEWS JOHNSON 1 your pesticides? 2 check those records, and they have overlaid them and found 3 reliability and what the farmers had reported in the first 4 place; is that right? 5 A. 6 McDuffie. And they confirmed that they had a good exposure 7 assessment in that way. 8 Q. 9 sitting in your class -- and what I think is really important Then they go back to the distributor and they That is actually the Canadian study who did that, Okay. So then we have health study topics. If I'm 10 is that we start to get the full scope of what AHS has been 11 studying. 12 all; right? 13 A. No, it's not. 14 Q. And it is not exclusively a Roundup or glyphosate or GBS 15 study, is it? 16 A. No. 17 Q. Okay. 18 incidence in applicators and spouses; is that right? 19 A. Uh-huh. 20 Q. There is pesticide exposure assessment of the applicator, 21 children and spouses, including the questionnaire; is that 22 right? 23 A. That is the purpose of the study, yes. 24 Q. And also field studies, this is an -- and also -- is that 25 right, field studies? So it's not exclusively a cancer study, first of So there is the question of cancer mortality and RITZ - CROSS / MATTHEWS JOHNSON 1 A. They try to assess acute exposures, yes. 2 Q. And then also looking at any kind of effects of chronic 3 pesticide exposures across 50 pesticides; is that correct? 4 A. What is the question? 5 Q. The question is biologic and functional effects of chronic 6 pesticide exposure across 50 pesticides, because I understood 7 there to be 50 pesticides at issue. 8 A. 9 example, fungicides in orchard workers. No. They selected pesticides and honed in on those. Those were special 10 sub-studies -­ 11 Q. Okay. 12 A. -- where they watched them over a whole application 13 period. 14 Q. 15 that is -­ 16 A. 17 like a few hundred. 18 Q. A fungicide is something that kills fungus? 19 A. Yes, uh-huh. 20 Q. That would, like, grow on fruit? 21 A. Yes. 22 Q. Okay. Okay. Okay. So that is a deep dive on fungicides. So In a small subgroup of people who was in the ag health, I understand. So when you talk about they also covered injuries, 23 For 24 lifestyle and diet; is that right? 25 A. Yes. RITZ - CROSS / MATTHEWS JOHNSON 1 Q. 2 neurologic, autoimmune; is that fair? 3 A. 4 then they try to go back and find medical records, but it is 5 actually the worst kind of design you have for these studies, 6 unless you see the people and diagnose them correctly. 7 of these other outcomes, except for cancer and Parkinson's, 8 where they actually went and saw the patients, are not 9 confirmed diagnoses. All other kinds of things that might go on. Respiratory, Yes, but those are all based on self-reported disease, and Well, that's fair. So all 10 Q. You are dealing with what people 11 report to you. 12 confirm it too; is that right? 13 A. They tried to confirm it, yes. 14 Q. Okay. 15 answer, cancer is in a different position because of these very 16 reliable registers; is that right? 17 A. If you can find a person in the registry, yes. 18 Q. So I just want to be clear. 19 sitting in your class, so this is a long PowerPoint. 20 not going to go beyond this point. 21 all of the slides that I would see as a student in your class 22 on the Agricultural Health Study; is that right? 23 A. You saw the slides, yes. 24 Q. I saw the slides. 25 on is other kinds of things, how you can pool cohorts and there It sounds like they went out and tried to And, of course, I think as you noted in your I mean, now -- I'm still We are But I have now gone through That's what I saw. Because what goes RITZ - CROSS / MATTHEWS JOHNSON 1 are other topics that are covered in this PowerPoint; is that 2 right? 3 A. 4 said about the slides. 5 Q. 6 slides. 7 is kind of grade school through high school, all the way really 8 through my whole education, what the teacher puts on the 9 blackboard or puts up on the screen is what they want you to There are other topics, but what you don't have is what I I understand. We don't know what you said about the I think that is important. What I will say, though, 10 remember. 11 A. 12 put the obvious on the slide, and then I ask questions in the 13 way I was told I shouldn't ask you questions because I like to 14 stimulate discussion and I like to be provocative. 15 see on my slides is just the basics that you can read up 16 anywhere. 17 Q. 18 Doctor, that says anything about this study being useless for 19 glyphosate; is that correct? 20 A. 21 what I say? 22 Q. 23 talk about the Agricultural Health Study, you are not saying 24 that it is useless for glyphosate. 25 I just want to be clear. No. Would you agree with that? In grade school I do the opposite. In grade school I So what you If you want to get my lecture, you have to come. So just to be clear, there is nothing on these slides, There's nothing in the slides? Well, we want to go a few slides back and let me tell you Well, I just want to be clear. On the slides when you That is not in the slides. It is not in the slides, is it? 6 RITZ - CROSS / MATTHEWS JOHNSON 1 A. 2 giving exam answers away to your students? 3 So what do you think the question, the problem is with this. 4 And then they have to give me the answer. 5 answer on the slide. 6 Q. 7 Doctor? 8 A. What is not on the slide? 9 Q. That glyphosate is useless -- that the AHS is useless for Well, that would be giving the final answer away. Are you I make them think. I'm not writing that I'm not stupid. So the bottom line is it is not in the slides, is it, 10 glyphosate. 11 A. 12 these slides. 13 glyphosate. 14 These slides are about how you conduct a cohort study and how 15 you shouldn't conduct it. 16 study, which is the Ag Health, I tell my students that, yes, 17 this is a cohort study. 18 applicators. 19 and 38 percent didn't come back. 20 with who came back. 21 question. 22 I'm not telling my students anything about glyphosate on I'm telling them -- this is not about None of these slides is actually about glyphosate. And when I talk about the cohort Yes, they have a lot of agricultural But guess what? They only ask them at baseline And I actually show the graph You add that up but you didn't ask me a So I didn't say anything; right? But on that one graph on that table, you could already see 23 how many people they had lost who didn't come back, and that's 24 what I explained to my students. 25 only one exposure assessment. Be careful because you have At the second time only RITZ - CROSS / MATTHEWS JOHNSON 1 62 percent come back. 2 for the cancers to occur, and you have all of these problems 3 that can occur in the meantime. 4 Q. I'm so sorry -- 5 A. -- cohort studies -­ 6 Q. So just to be clear, let's go down to imputation, Doctor. 7 I think you just said this question about the 63 percent; is 8 that right? 9 A. And then you have a long time to wait That's how I teach this and -­ Yes. 10 MS. MATTHEWS JOHNSON: Let's take a look. I think I 11 will need the ELMO now, please. 12 BY MS. MATTHEWS JOHNSON 13 Q. 14 was discussed; is that right? 15 A. Yes. 16 Q. So this is the article, 2018, the lead author is Gabriella 17 Andreotti; is that correct? 18 A. Yes. 19 Q. And one of the things they are talking about -­ Andreotti 2018. This is the second article, the one that 20 THE COURT: 21 MS. MATTHEWS JOHNSON: 22 THE COURT: 23 of questioning going to go? 24 for lunch. 25 You want to publish this to the jury? I would, thank you, Your Honor. Let me also ask you, how long is this line I'm deciding when we should break MS. MATTHEWS JOHNSON: This is a perfect time to RITZ - CROSS / MATTHEWS JOHNSON 1 2 break, if that works for the Court. THE COURT: Okay. Why don't we -- before we get into 3 the Andreotti study, why don't we break for lunch. 4 resume at 12:30. 5 doing research, talking to anybody or anything like that. 6 Thank you. 7 8 9 We will And remember all my admonitions about not (Jury exited.) MS. MATTHEWS JOHNSON: I just wanted to make sure that the witness has been instructed now that she has been passed, 10 she is not to have any conversations with counsel about her 11 testimony. 12 THE COURT: 13 MS. WAGSTAFF: Has she been so instructed? I was just going to ask to instruct 14 her, but also make it clear that we can be with her and talk 15 with her, just not about the substance of her testimony. 16 THE COURT: That's fine. 17 MS. MATTHEWS JOHNSON: 18 THE CLERK: 19 MR. WISNER: 20 THE COURT: 21 MR. WISNER: Thank you. The court is in recess. One thing before we break. Yes, Mr. Wisner. Hi. I have Dr. Portier's first day of 22 depo that we have gone through the objections, and I think I 23 have done it in a way that is easy to use. This is the -­ 24 THE COURT: I'm not going to hold my breath. 25 MS. MOORE: He has been working all morning, Your RITZ - CROSS / MATTHEWS JOHNSON 1 Honor. 2 3 MR. WISNER: Your Honor, if I can give this to you, the Defendants have a copy of all this. 4 THE COURT: 5 MR. WISNER: Okay. And this is for day one. 6 about maybe 15 objections. 7 it is actually pretty easy. 8 THE COURT: 9 There is only Of them, six are substantive. So You agree this is what I should be reviewing? 10 MR. STEKLOFF: Yes. I just want to clarify that it is 11 only the direct -- or part of Mr. Wisner's direct. 12 cross will be coming later. 13 the objections to know whether there is any part of the cross 14 that provides context for this, but we are not objecting -­ THE COURT: 15 So the And I have not been involved in Yeah, I mean, it seems to me I should 16 probably -- I can start reviewing it, but I can't sort of make 17 a final decision on anything before I look at the cross. MR. WISNER: 18 Fair enough. I don't think that is going 19 to be a problem if you need to take a look at it. 20 not, we can cut the video tonight, have it ready tonight, and 21 start this process. 22 THE COURT: 23 24 25 If it is That's why I rushed here. Okay. So when are you going to get me the cross? MR. WISNER: We have a meet-and-confer at 2:00 p.m. We will try to get it done tonight; first thing tomorrow 6 PROCEEDINGS 1 2 3 4 5 6 7 morning or even late tonight. THE COURT: Got it. Thank you. (Luncheon recess was taken at 11:40 a.m.) AFTERNOON SESSION 12:32 p.m. (Proceedings were heard out of presence of the jury:) THE COURT: So I took one cut through this -- is Mr. Wisner here? 8 MS. WAGSTAFF: He is upstairs on the 18th floor. 9 MS. MOORE: We can get him here. 10 THE COURT: No. It's okay. I took one cut through 11 the Portier testimony, and it seems like it will be pretty easy 12 to deal with. 13 MS. MOORE: Okay. 14 THE COURT: I can't remember what he said about when 15 16 he wanted it back. MS. WAGSTAFF: So he had a meet-and-confer with 17 Monsanto set for 2:00 for day two, which is the rest of the 18 Phase One testimony; and he said he could give it to you -- 19 MS. MOORE: Well, the plan was we would give you that, 20 but we would love to have the rulings on the direct so we can 21 have our tech person work on the direct, and then we would get 22 you the rulings -- I mean, get you the cross testimony later 23 today after their meet-and-confer at 2:00. 24 25 THE COURT: Are you comfortable with -- so I could do that if that would be helpful. But are you comfortable with PROCEEDINGS 1 cutting it, knowing that the ruling is tentative? 2 you know, the tricky thing here, you know, I'm seeing it in a 3 lot of Portier's testimony, direct testimony is, well, in 4 isolation maybe this is okay; but it is starting to move us 5 down the road of having a fight about the EPA or having a fight 6 about the IARC or whatever. 7 Because I -­ So, you know, I would be reluctant to let it in if letting 8 it in meant that you would even go further down that road on 9 cross; right? So that's the challenge. 10 MS. MOORE: I understand what you are saying. 11 THE COURT: So you might -- you know, if I give you my 12 rulings, they would be tentative and you would be cutting the 13 video and you might have to change it. 14 MS. WAGSTAFF: 15 THE COURT: 16 MS. WAGSTAFF: 17 MR. WOOL: 18 So -­ Why don't we ask -­ What do you want me to do? -- the tech guy what is easier for him? I would be happy to take the rulings now. It's easier to cut them back in. 19 THE COURT: Okay. 20 MS. MOORE: It's better to have it, Your Honor. We 21 have done that today where we stuck some in and took some out, 22 so that would be great. 23 24 25 THE COURT: I will get that to you shortly after the OSC hearing. MS. MOORE: Okay. Wonderful. Thank you, Your Honor. PROCEEDINGS 1 THE COURT: 2 MS. WAGSTAFF: 3 Bring in the jury. record just before we bring in the jury? 4 THE CLERK: 5 MS. WAGSTAFF: 6 7 Can I actually put something on the Hold on one second. I just wanted to put this sidebar on the record that we -­ THE COURT: Let me cut you off. You are going to 8 object that I precluded Dr. Ritz from stating that Blair was 9 the head of the IARC working group? 10 11 MS. WAGSTAFF: That's not what I was talking about, but I will object to that as well. 12 THE COURT: Okay. 13 MS. WAGSTAFF: The sidebar that we had that wasn't 14 the record was relating to the questions to Dr. Ritz on 15 specific causation. 16 about Plaintiff's mental condition. on She was asked if she was here to testify She answered no. 17 And she was asked if she reviewed his medical records, if 18 she knew of medical conditions he may have had over the years. 19 She was asked if she had reviewed his medical records again and 20 if she had any idea of what 21 objected to that. 22 just wanted to put that on the record. That was off the record on sidebar. 23 THE COURT: 24 deal with that on redirect. 25 medical conditions he had. Sure. MS. WAGSTAFF: And we And I And you are, of course, free to She seems to have moved on. I don't 6 RITZ - CROSS / MATTHEWS JOHNSON 1 know if she is -­ MS. MATTHEWS JOHNSON: 2 3 that. 4 THE COURT: 5 All right. Bring them in. (Proceedings were heard in the presence of the jury:) THE COURT: 6 7 Welcome back. Ms. Johnson, you can resume. MS. MATTHEWS JOHNSON: 8 9 We will not be dealing with Thank you, Your Honor. BY MS. MATTHEWS JOHNSON 10 Q. Good afternoon, everyone. Good afternoon, Dr. Ritz. 11 A. Good afternoon. 12 Q. When I had left off, I had just asked to publish 13 Exhibit 1032 on the ELMO; and this is the Andreotti 2018 study 14 that you testified about on direct examination; isn't that 15 right? 16 A. Correct. 17 Q. One aspect of your testimony related to an issue where 18 there were some 50-plus-thousand people who filled out an 19 initial questionnaire, and you expressed some concern about the 20 fact that there were others who didn't do the second 21 questionnaire and that there was a process that I think was 22 labeled imputation that took place. 23 testimony? 24 A. Yes. 25 Q. Now, if we turn here into the actual Andreotti article Do you recall that RITZ - CROSS / MATTHEWS JOHNSON 1 itself, we will see on page 4 of 8 that one of the ways these 2 researchers dealt with this issue was to say, Well, okay, let's 3 not deal with imputation at all and let's just look at the 4 34,698 people who filled out both questionnaires. 5 And they say here in the article -- please let me know if 6 I'm reading this correctly -- "To evaluate the impact of using 7 imputed exposure data for participants who did not complete the 8 follow-up questionnaire, we limited the analysis to 34,698 9 participants who completed both questionnaires, reducing the 10 total number of cancer cases to 4,699. 11 associated with NHL." 12 Glyphosate use was not Did I read that correctly? 13 A. Correct. 14 Q. And the 4,699 cancer cases is all cancer cases in that 15 cohort; is that right? 16 A. Yes. 17 Q. Next I would like to publish, if I can, Exhibit 1031. 18 Now, this -­ All cancers, not NHL. 19 MS. MATTHEWS JOHNSON: 20 MS. WAGSTAFF: 21 THE COURT: May I publish it to the jury? No objection. Go ahead. 22 BY MS. MATTHEWS JOHNSON 23 Q. 24 published in the Journal of the National Cancer Institute; 25 correct? So the Andreotti 2018, which is Exhibit 1032, was 6 RITZ - CROSS / MATTHEWS JOHNSON 1 I'm sorry. I'm going back to the previous one just to 2 cover. 3 Doctor? 4 A. Yes. 5 Q. And then I think you noted there were some critique of the 6 study, and these authors, Gabriella Andreotti, came out with a 7 response to the critiques. 8 and Shaffer. 9 A. Yes, it says response to Sheppard and Shaffer. 10 Q. Okay. 11 text, please let me know if I'm reading this correctly: 12 thank Dr. Sheppard and Ms. Shaffer for their interest in our 13 report of glyphosate and cancer risk in the Agricultural Health 14 Study and the opportunity to discuss the potential impact of 15 our method of assigning glyphosate exposure for participants 16 who did not complete the follow-up questionnaire. 17 correctly state, we did not account for a health outcome when 18 impugning exposure." 19 It was the journal it was published in; is that right, And it is a response to Sheppard Do you see that, Doctor? And just starting without -- above the highlighted But then they go on to say: "We As they "Although we agree that this 20 method could theoretically bias the risk estimate towards the 21 null, based on sensitivity analyses that we conducted and 22 reported in the manuscript and describe more fully below, we 23 demonstrate that our imputation likely did not materially 24 impact risk estimates." 25 Did I read that correctly? RITZ - CROSS / MATTHEWS JOHNSON 1 A. Yes. 2 Q. And then they go on to say: 3 these data demonstrates that not including outcome information 4 in our imputation of glyphosate exposure did not introduce 5 meaningful -- that did not introduce meaningful bias in our 6 cancer risk estimates associated with this pesticide"; is that 7 correct? 8 A. That's their belief. 9 Q. Yes. "Overall, we believe that And on direct examination, Ms. Wagstaff did not show 10 you these portions of this article or this response that was 11 made to the two -- Dr. Sheppard and Ms. Shaffer; is that 12 correct? 13 A. What is the question? 14 Q. During your direct examination -­ 15 A. Yeah. 16 Q. -- when you were shown Dr. Sheppard and Ms. Shaffer's 17 concerns, and you were shown -- you were not shown these 18 portions of the response by Gabriella Andreotti? 19 A. I weren't shown but I have seen them. 20 Q. Right. 21 courtroom? 22 A. No. 23 Q. So, Doctor, would you agree that NHL, like most other 24 cancers, is a disease of aging with dramatically higher 25 incidents as people age? But not during your testimony here in this RITZ - CROSS / MATTHEWS JOHNSON 1 A. 2 aging. 3 strongest showing aging effect. 4 there are cancers that are much worse. 5 Q. 6 to the Court and to you -- doctor, if you look immediately to 7 your right, you will see a very large binder. 8 A. Yes. 9 Q. And it contains both your reports and prior testimony. It is not a disease of aging. Cancer is a disease of NHL has some aspects, but it is certainly not the It does show aging effect, but If you would, please, Doctor, we have provided, I believe, 10 And I believe you have a report that is dated May 1, 2017. 11 A. Do you want me to take this? 12 THE COURT: Yeah. 13 THE CLERK: What exhibit number is this? 14 MS. MATTHEWS JOHNSON: You can grab it and pull out tab 1. It is -- well, it is her 15 report. We are not going to -- we are not going to seek to 16 mark it at this point. 17 attention to a particular portion. 18 it. 19 BY MS. MATTHEWS JOHNSON 20 Q. I'm drawing the Court and the witness' We are not seeking to admit If you would please go to page 21. 21 MS. WAGSTAFF: 22 MS. MATTHEWS JOHNSON: Is it tab 1, Counsel? It is tab 1, I apologize. 23 There is an index at the front. We are talking about your 24 testimony, May 1st, 2017. 25 21 and the first full sentence at the very top of the page. It is tab 1. We are going to page RITZ - CROSS / MATTHEWS JOHNSON 1 2 Your Honor, I was wondering if I might be able to read that into the record. 3 THE COURT: Just that one sentence? 4 MS. MATTHEWS JOHNSON: 5 THE COURT: 6 MS. WAGSTAFF: Yes. Yes, Your Honor. Any objection? I think we should read a little bit 7 more than this one sentence. 8 THE COURT: This is a -­ What other lines do you believe need to be 9 read for completeness? 10 MS. WAGSTAFF: Well, I'm not sure. This is a 25-page 11 substantive report that I didn't know one sentence was going to 12 be pulled out of. 13 THE COURT: You can read the sentence. 14 BY MS. MATTHEWS JOHNSON 15 Q. 16 sentence on the top of page 21 of the report, of your report. 17 And just for the record you did write this report; right, 18 Doctor? 19 A. Yes. 20 Q. And does it say "NHL, like most other cancers, is a 21 disease of aging with dramatically higher incidence as people 22 age"; is that correct? 23 A. That's correct. 24 Q. Okay. 25 Okay. For the record I'm reading to you the first full THE COURT: And, Ms. Wagstaff, since you seem so RITZ - CROSS / MATTHEWS JOHNSON 1 confused about that, I will just remind you the rules, which is 2 that if -- when a witness is being cross-examined, a lawyer can 3 impeach them with prior statements if there is an inconsistency 4 between the prior statement and the testimony that the witness 5 gives on the stand. 6 that the lawyer is attempting to impeach the witness with. 7 BY MS. MATTHEWS JOHNSON 8 Q. 9 figure -- figure 1. 10 A. So that's why we pull out the one sentence And if you would look down, please, Doctor, there is a Yes. 11 MS. MATTHEWS JOHNSON: Your Honor, we would like to 12 publish just this figure, not the report, but just this figure 13 that reflects the figure -- the citation of figure 1. 14 MS. WAGSTAFF: 15 THE COURT: No objection. Go ahead. 16 BY MS. MATTHEWS JOHNSON 17 Q. 18 page 21 of your report. 19 NHL, SEER, 2009 to 2013." 20 Doctor, we are looking here at Figure 1, also found at It says "Age specific incidence of This is a figure from your report? 21 A. Yes. 22 Q. Just for the record, SEER is Surveillance Epidemiology and 23 End Results; is that correct? 24 A. Yes. 25 Q. And just to be clear, this is publicly available data. RITZ - CROSS / MATTHEWS JOHNSON 1 This is not private data that just you have access to; is that 2 right? 3 A. You can pull it off the internet. 4 Q. Pull it off the internet, okay. 5 And it does show an increase in reflection of what you 6 wrote in your paper, increase with age; is that right? 7 A. Yeah, and a drop in the older age groups. 8 Q. In the oldest age groups, yes. 9 age Mr. Hardeman was when he was diagnosed with NHL? Do you happen to know what 10 A. No. 11 Q. Now, with respect to publicly available data, are there 12 places that you can go to learn about incidence of various 13 types -- of various types of cancer including NHL, like what we 14 see here? 15 A. The SEER. 16 Q. And there are also the places you can go and look at the 17 actual numbers of diagnoses of a particular type of cancer over 18 time. 19 place you can go to look for the diagnoses of particular types 20 of cancer over time? 21 A. I believe that the NCI has a website like that. 22 Q. Okay. 23 will probably have to switch books, I'm sorry. 24 Let me give you a second to do that. 25 Not this particular graphic, but in general there is a If you would, please, look at Exhibit 1089, and you (Whereupon, a brief pause was had.) They are large. SIDEBAR 1 THE COURT: What was it again? 2 MS. MATTHEWS JOHNSON: 3 THE WITNESS: It is 1089. Yes. 4 BY MS. MATTHEWS JOHNSON 5 Q. 6 Exhibit 1089? 7 is publicly available and reflects the incidence of NHL over 8 time? 9 A. Okay. Doctor, do you see -- do you have in your book And is that the sort of data that you are saying Well, I can only tell you what I see here, and it says 10 NIH, National Cancer Institute, cancer stat facts. 11 is a truthful image of what you find on that website, I have to 12 presume it is from SEER. MS. WAGSTAFF: 13 14 Your Honor, I would like a sidebar on this. 15 MS. MATTHEWS JOHNSON: 16 THE COURT: 17 18 19 20 21 22 23 24 25 And if this Sure. Okay. (The following proceedings were heard at the sidebar:) RITZ - CROSS / MATTHEWS JOHNSON 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 RITZ - CROSS / MATTHEWS JOHNSON 1 2 3 4 5 6 7 BY MS. MATTHEWS JOHNSON 8 Q. 9 screen you will see specifically what we are publishing. Okay. And so now, Doctor, looking -- if you look on the So we 10 are not talking about the other items that might be on that 11 page. 12 reflecting the number per 100,000 persons of diagnoses of NHL 13 from 1992 to 2015? 14 A. Yes. 15 Q. So, Doctor, you spoke on direct examination -- and I think 16 you have spoken before -- about the idea of large sample sizes 17 giving greater statistical power. 18 talked about? 19 A. 20 different things in case control, in cohort studies and large 21 samples in -- large size in a cohort study doesn't mean power. 22 Q. 23 control studies, and we just want to look at some sizes. 24 I would like to do -- so everyone knows where we are headed -­ 25 is to look at first McDuffie, which is 1375 is the exhibit. So just for clarity, do you see there that graphic I talked about sample size. Okay. Is that something you have Sample size refers to So if we can take a look, then, at some case What RITZ - CROSS / MATTHEWS JOHNSON 1 But just to publish a table from McDuffie. 2 MS. WAGSTAFF: Sure. 3 MS. MATTHEWS JOHNSON: 4 THE COURT: No objection. And I need slide 8, please. That's okay. 5 BY MS. MATTHEWS JOHNSON 6 Q. 7 this information in the tables, don't they, Doctor? 8 provide the number of cases of NHL. 9 number of controls of NHL. So if we look at McDuffie, you can see here they provide They will They will provide the And then they will provide the 10 numbers in each of those categories that were exposed; is that 11 correct? 12 A. That's correct. 13 Q. And then if we can do similar for De Roos, 2003, which is 14 slide 9, and then again here, case control study. 15 you the number of cases, 650; the number of controls, 1,933; 16 and then they give you the amount of exposed cases in each of 17 those categories; is that correct? 18 A. Yes. 19 Q. And if we could go to Hardell 2002, which is slide 10; and 20 again, they are giving the number of cases, the number of 21 controls. 22 in this particular one, which was Hardell 2002, you have eight 23 cases and eight controls; is that right? 24 A. Correct. 25 Q. Now, Hardell 1999 came just before this, a few years They give It's the same data I put on that chart. So 515 cases, 1,141 controls. And then in this -­ RITZ - CROSS / MATTHEWS JOHNSON 1 before, and it had four cases and three controls out of the 2 same size of cases and controls; is that right? 3 A. No. 4 Q. Was there an addition of a particular category for hairy 5 cell leukemia in this Hardell 2002? 6 A. In 2002 they added cases and controls. 7 Q. They added cases and controls? 8 A. Yes. 9 Q. And they added hairy cell leukemia to the category? 10 A. They added cases. 11 Q. Right. 12 leukemia? 13 A. That's what the study said. 14 Q. Okay. 15 of hairy cell leukemia for Hardell 2002? 16 A. Plus controls. 17 Q. Right. 18 correct? 19 A. Yes. 20 Q. Now, let's take a look at Eriksson, slide 11. 21 But did they add the diagnosis of hairy cell I just want to confirm. They added the diagnosis But they added it from Hardell 1999; is that So we had 910 cases and 1,016 controls. And then there 22 were 29 exposed cases and 18 exposed controls in that study; is 23 that correct? 24 A. Yes. 25 Q. And if we could next go to Orsi. So Orsi, there were 491 6 RITZ - CROSS / MATTHEWS JOHNSON 1 cases. 2 A. No, there weren't. 3 Q. I'm sorry, 244 cases; is that right, Doctor? 4 A. Yes. 5 Q. Thank you. 6 And 456 controls. And then there were -- and that's total 7 cases, as you said, total controls. 8 those with disease and those without. 9 those exposed to glyphosate case, there were 12 cases exposed I think you said this is Within those groups, 10 and 24 controls that were exposed; is that correct? 11 A. As you can find on the slide I made, yes. 12 Q. Now I would like to talk a little bit about the time 13 periods that these studies covered. 14 the size of the studies. 15 timeframe they cover. 16 on direct, and, of course, we have seen elsewhere, that you 17 talk about an increase in glyphosate use; correct? 18 increase -­ 19 A. Absolutely. 20 Q. -- that took place? 21 A. Yes. 22 Q. And I think you have even called it a dramatic increase 23 that occurred in the mid-1990s -­ 24 A. 25 Q. So we just talked about Now I would like to talk about the Now, I think you have said and testified Yes. is that correct? An 6 RITZ - CROSS / MATTHEWS JOHNSON 1 2 And among the things that you have cited is a particular article that is Exhibit 1051. 3 So what I would like to do, if we could, Doctor, if you go 4 to Exhibit 1051 and look at page 5 at the bottom, please. 5 A. Yes. 6 7 MS. MATTHEWS JOHNSON: I would like permission to publish the table, Table 1, at the bottom of page 5. 8 MS. WAGSTAFF: 9 THE COURT: No objection. Go ahead. 10 BY MS. MATTHEWS JOHNSON 11 Q. 12 cite in your report related to the increase in glyphosate use; 13 is that correct? 14 A. Yes. 15 Q. Okay. 16 an increase in what looks to be the mid to late '90s and into 17 the early 2000s; is that fair to say? 18 A. Yes. 19 Q. So now I would like to look at these case control studies 20 and sort of what timeframe those are in. 21 please, slide 15, which is going to be from McDuffie. 22 So, Dr. Ritz, this is a table from an article that you And I think you -- you have assessed that there was So if we can go to, So for the McDuffie study, is it correct that these were 23 diagnoses that occurred between 1991 and 1994? 24 A. Yes. 25 Q. If we can go to De Roos, which is slide 16, please. 6 RITZ - CROSS / MATTHEWS JOHNSON 1 And De Roos, if I'm not mistaken, is a few studies that 2 came together; is that right, Doctor? 3 single study involved with De Roos. 4 A. Three studies. 5 Q. And so what we have got -- just for the record -- in 6 Nebraska, the diagnoses were between 1983 and 1986; is that 7 correct? 8 A. Yes. 9 Q. In Minnesota the diagnoses were between 1980 and 1982; is There wasn't just a 10 that correct? 11 A. Yes. 12 Q. And in Kansas, the diagnoses were between 1979 and 1981; 13 is that correct? 14 A. Yes. 15 Q. Next if we can look at Hardell. 16 So for Hardell -- and this is -- just to be clear, we are 17 talking about the timeframe between Hardell -- we are including 18 Hardell 1999 and 2002 for this date range of 1989 to 1990; is 19 that correct? 20 A. Yes. 21 Q. Go to slide 18, please. 22 Now onto Eriksson which was published in 2008, but it 23 covered diagnoses that occurred between 1999 to 2002; is that 24 correct? 25 A. Yes. 6 RITZ - CROSS / MATTHEWS JOHNSON 1 Q. And just to be clear, those are diagnoses of cases of NHL? 2 A. Correct. 3 Q. If we go to slide 19. 4 2009 study, which I think you said was in the hospital, or 5 hospital-based, those diagnoses were between 2000 and 2004; is 6 that right? 7 A. Yes. 8 Q. So now, Doctor, I would like to talk a little bit -- we 9 have on your -- I think you have marked on your chart very If we look at Orsi, which is the 10 clearly the unadjusted and the adjusted figures; is that right? 11 A. Yes. 12 Q. Okay. 13 numbers down, so we are not going to go back through that 14 again. 15 studies, the studies that you have published, when you present 16 your odds ratios, do you not try to adjust as much as you can? 17 A. 18 need. 19 Q. 20 slide 20, which is from De Roos 2003. 21 and testified on direct that the Anneclaire -- Anneclaire; is 22 that correct? 23 A. Anneclaire. 24 Q. -- Anneclaire De Roos in 2003 is the same as Anneclaire 25 De Roos in 2005; is that right? And we were watching carefully and got all the But I do want to ask you this: When you do your own As much as I can and as much as I need and as little as I And with respect to De Roos -- I would like to go to You covered, I believe, 6 RITZ - CROSS / MATTHEWS JOHNSON 1 A. Same person, not the same study. 2 Q. Yes, correct. 3 And in De Roos 2003, it seems that she says -- and I want 4 to make sure I have read this correctly -- "Specific chemicals 5 not pesticides, insecticides or herbicides as groups should be 6 examined as potential risk factors for NHL." 7 She goes on to say: "A chemical-specific approach to 8 evaluating pesticides as risk factors for NHL should facilitate 9 interpretation of epidemiological studies for regulatory 10 purposes." 11 Did I read that correctly? 12 A. Yes. 13 Q. And she then became the lead author in the cohort study 14 for glyphosate that came out of the Agricultural Health Study; 15 is that correct? 16 A. The first one. 17 Q. The first one, okay. 18 I just want to look at NAPP just very briefly, if we can 19 have slide 21. Now, we talked about De Roos involving other 20 studies; correct? 21 examination; isn't that right? 22 A. Yes. 23 Q. But the North American Pooled Project is also existing 24 studies; isn't that right? 25 A. I think you mentioned that on your direct As I explained when I was explaining -- 6 RITZ - CROSS / MATTHEWS JOHNSON 1 Q. Right. 2 A. -- the studies, yes. 3 Q. So no new data in the North American Pooled Project; 4 correct? 5 They are pulling together more data, and that has 6 benefits; but just to be clear, we are still talking about the 7 same timeframes; are we not? 8 from 1980 to 1983, from 1976 to 1982, from 1983 to 1986, and 9 from 1991 to 1994? Are we still talking about data 10 A. 11 diagnosed during this time period but had exposures prior to 12 it. 13 Q. 14 No, not data from this time period. Okay. People who were Fair enough. But just to be clear, the original studies also looked at 15 people diagnosed in that same period; correct? 16 A. Yes. 17 Q. Okay. 18 the diagnosis; right? 19 A. Yes. 20 Q. Okay. 21 listed and that appear on the screen are, in fact, the same 22 years that are covered in the North American Pooled Project? 23 A. 24 I tried to explain. 25 So I understand the exposure has to be earlier than Absolutely. So the diagnoses for all of the years that I just It is the same studies. The data is pooled. That's what I'm sorry if that didn't come across. MS. MATTHEWS JOHNSON: May I publish this exhibit? 6 RITZ - CROSS / MATTHEWS JOHNSON 1 THE COURT: You may. 2 MS. MATTHEWS JOHNSON: Thank you. 3 BY MS. MATTHEWS JOHNSON 4 Q. 5 the upshot is the North American Pooled Project involved 6 studies that occurred before; is that correct? 7 A. 8 It is a pooled study of the American and Canadian data that was 9 collected prior. I'm going to try not to do all of that over again. I tried to explain that before, yes. But That's what I said. 10 Q. So the Canadian data involves diagnoses of non-Hodgkin's 11 lymphoma that occurred between 1991 and 1994; is that correct? 12 A. Yes. 13 Q. And the North American side is De Roos 2003, which 14 actually involves three separate studies, Cantor, Iowa 15 Minnesota, diagnoses between 1980 and 1983; is that correct? 16 A. Yes. 17 Q. The Hoar study based out of Kansas between 1976 and 1982; 18 is that correct? 19 A. It looks like it. 20 Q. And then the Zahm study out of Nebraska, which is from 21 1983 to 1986; is that right? 22 A. Yes. 23 Q. Okay. 24 involved with the -- technically the Nebraska study and the 25 North American Pooled Project; is that right? And if you may know, it is Dr. Weisenburger who is 6 RITZ - CROSS / MATTHEWS JOHNSON 1 A. Yes. 2 Q. But I think, as you have testified on direct very clearly, 3 this is unpublished? 4 A. The NAPP project is unpublished. 5 Q. Yes, Doctor. 6 A. Yes. 7 Q. There are, in fact, multiple slide decks. 8 more -- I don't know, three -- I mean, how many have you seen? 9 A. I think three. 10 Q. Three? 11 There are Three, okay. And they have kind of been spread out over a couple years. 12 And really I think the ones that you were talking about -- the 13 one you talked about, the data you had was, from June 2015. 14 That itself is nearly four years old? 15 A. Yes. 16 Q. That slide deck? 17 A. Uh-huh. 18 Q. But it is still not published? 19 A. It is hard to publish data that has already been published 20 because every journal wants something new. 21 Q. 22 meta-analysis in the past because I think you have explained 23 that they are really a summary of estimates; is that correct? 24 A. Yes. 25 Q. And is it true that as a scientist you never rely on any So on the question of meta-analysis, you have talked about 6 RITZ - CROSS / MATTHEWS JOHNSON 1 summaries. 2 and then actually try to judge each piece of work on its own 3 merit; is that true? 4 A. What do you mean by "rely"? 5 Q. Well, I'm in a little bit of a bind because I'm trying 6 to -- we may need to direct you to something. 7 Let me direct you -- rather than say where the source of 8 this -- let me direct you, if I can, to your testimony on 9 January 19th, 2018. You usually go to the original data and look at it, 10 A. Where is that? 11 Q. Okay. 12 page 114. What am I trying to do here? Let me do that. Let me tell you -- it is tab 5, if you go to On page 114, I would like to draw your attention to lines 13 14 15 through 19, please. 15 A. Yes. 16 Q. And I want to give you a chance to read before that -- you 17 know, if you would like. 18 19 THE COURT: You said you were going to read this testimony? 20 MS. MATTHEWS JOHNSON: 21 THE COURT: 22 MS. WAGSTAFF: 23 24 25 I was, but -­ Any objection? Any objection to -- what are you -- I was reading the testimony. I'm sorry. MS. MATTHEWS JOHNSON: What did you do? Well, the last thing that happened on the record was the witness asked me a question 6 RITZ - CROSS / MATTHEWS JOHNSON 1 about the word "rely," because she used the word "rely." 2 in a bind so I took her to the testimony. 3 MS. WAGSTAFF: 4 THE COURT: 5 THE WITNESS: was an answer. 7 BY MS. MATTHEWS JOHNSON 8 Q. 9 No objection. Okay. 6 Yes. I was So what you just read to me as my answer You want me to say that? Let me just try to make sure we are clear. Wereyou asked if you rely on the summary and findings in 10 meta-analysis, and then you gave the answer, just to be clear, 11 is this accurate: 12 summaries. 13 and then actually try to judge each piece of work on its own 14 merit." 15 "As a scientist I never rely on any I usually go to the original data and look at it Was that your answer? 16 A. That's an 17 whether I rely in -- "upon summary estimates in those 18 meta-analyses as support for your opinion that there is an 19 association between non-Hodgkin's lymphoma and glyphosate-based 20 herbicides?" 21 Q. 22 right? 23 A. 24 a bad scientist if I did. 25 Q. Okay. Right. answer to a longer question that asked me So that is your answer to that question; is that I never rely only on a meta-analysis. I would be Well, just to be clear, for the record your answer was not 7 RITZ - CROSS / MATTHEWS JOHNSON 1 "only." 2 word that is there, "any summaries"? 3 A. 4 scientist, I would not do my duty if all I did was look at 5 somebody else's work who pooled or meta-analyzed data that I 6 have no idea where it came from and what it says. 7 when I see a meta-analysis, I go back to the -- and ask about 8 my opinion, and I have been reviewing meta-analysis many times. 9 I actually go to the original articles. It was "I never rely on any summaries." Is that the I may have said "any," but what this means is as a What I do I pull out what these 10 articles say, and then I compare it to what these people who do 11 the meta-analyses have been doing to the data. 12 Q. Thank you. 13 A. And then I make my own opinion about whether the 14 meta-analysis is appropriate and has done a good job or not. 15 And that's what I write up as a reviewer, and that's what I use 16 as a scientist. 17 Q. 18 That is my job. Thank you. So with respect to the Agricultural Health Study, Doctor, 19 you said before that you think it is a beautiful study; is that 20 right? 21 A. Absolutely. 22 Q. And I think you have also said that you admire your 23 colleagues for doing that study? 24 A. 25 the Ag Health Study. Unfortunately not for glyphosate. I have all the respect in the world for my colleagues from They have done an amazing job under lots 7 RITZ - CROSS / MATTHEWS JOHNSON 1 of pressure, but what they have done for glyphosate is not what 2 I think is state-of-the-art, sorry. 3 Q. 4 an award, did it not, for outstanding research paper by a staff 5 scientist or staff clinician; is that right? 6 A. I wouldn't know. 7 Q. So you -- I think we have talked a little bit about this 8 before, Doctor. 9 advisory committee to the Agricultural Health Study; isn't that And the Andreotti study, Andreotti 2018, actually received But you, in fact, have served on the external 10 right? 11 A. Absolutely right. 12 Q. And I think we have a slide that describes what it does. 13 Let me just -­ 14 MS. MATTHEWS JOHNSON: Yes, if I may have slide 25, 15 please. I'm going to -- and what I would like to do is publish 16 from Alavanja 1996, the description. 17 MS. WAGSTAFF: 18 THE COURT: 19 MS. WAGSTAFF: 20 MS. MATTHEWS JOHNSON: 21 MS. WAGSTAFF: 22 MS. MATTHEWS JOHNSON: 23 MS. WAGSTAFF: 24 25 No objection. Go ahead. What tab is the actual article? Exhibit 1021. No objection. Okay. So -­ Although I ask that she be allowed to put the article in front of them. MS. MATTHEWS JOHNSON: Sure. It is Exhibit 1021. And 7 RITZ - CROSS / MATTHEWS JOHNSON 1 it should be right there in one of those gigantic binders. 2 May we publish? THE COURT: 3 Yes. 4 BY MS. MATTHEWS JOHNSON 5 Q. 6 that we talked about earlier where there were publications 7 about the study and how the study was going to be designed and 8 proceed; is that correct? 9 A. Okay. Doctor, now Alavanja 1996 is one of those articles Yes, that's actually the baseline description of what the 10 study is doing. 11 Q. 12 epidemiologists, biostatisticians, agricultural exposure 13 experts and farmers that have been assembled to provide advice 14 and oversight to the collaborating agencies during the 15 development and conduct of the project. 16 meets annually to review study protocols, evaluate study 17 progress and comment on analyses and reports." 18 And it is talking about an advisory panel, "composed of The advisory panel Did I read that correctly? 19 A. Yes, you read that. 20 Q. And the next thing is on the website. 21 mentioned there is an AHS website; is that correct? 22 A. Yes. 23 Q. And there is a description of the advisory group? 24 25 MS. WAGSTAFF: I think you I have no objection to this being published; however, I would object to the continual reference 7 RITZ - CROSS / MATTHEWS JOHNSON 1 to a website. 2 THE COURT: I'm not sure I understand the objection. 3 You don't object to it being published, but you object to how 4 it is described, how it is referenced? 5 MS. WAGSTAFF: I would just -- the continual 6 description of the actual website address with descriptions on 7 how to navigate the website I would object to, but I do not 8 object to this being published. 9 from there. 10 MS. MATTHEWS JOHNSON: So maybe we can just move on What we have up -- if we can 11 switch, I guess, away from it being published so the Court can 12 see. 13 not for the jury, but just for the Court to see. We are talking about slide 26 that should be appearing 14 THE COURT: That's fine. You can publish that. 15 BY MS. MATTHEWS JOHNSON 16 Q. 17 have a description of the advisory group; is that right? 18 A. Yes. 19 Q. And it says: 20 researchers on study implementation, direction, data analysis 21 and reporting. 22 senior scientists with interest or expertise in agricultural 23 science, epidemiology, molecular biology, occupational health 24 and other related fields. 25 from each of the participating states. So here from the Agricultural Health Study website, you "An independent group of experts advises AHS Members of the AHS advisory group include Members also include active farmers 7 RITZ - CROSS / MATTHEWS JOHNSON 1 Did I read that correctly? 2 A. Yes. 3 Q. And now, you served in this capacity from -- you served as 4 a member from 2001 to 2005; is that right? 5 A. Yes. 6 Q. And then in 2005 you became the advisory board chair? 7 A. Yes. 8 Q. Okay. 9 10 Can we go to slide 27, please. Do you see that there, Doctor? A. Yes. 11 12 And we met exactly once while I was chair. MS. MATTHEWS JOHNSON: Okay. May I publish this to the jury? 13 MS. WAGSTAFF: 14 THE COURT: No objection. Go ahead. 15 BY MS. MATTHEWS JOHNSON 16 Q. 17 just marking your service on the advisory board. 18 member in 2001, and then you became chair in 2005; is that 19 correct? 20 A. I can't remember but it might be correct, yes. 21 Q. Okay. 22 A. Let's assume it is correct. 23 Q. And then you have here -- it is a picture of you. 24 just to be clear, is this one of those meetings where you said 25 you met? Okay. Doctor, so here we have the timeline that shows Is this a meeting that you had? You became a And 7 RITZ - CROSS / MATTHEWS JOHNSON 1 A. 2 Jane there, and it looks like we are at the NIEHS, and normally 3 we weren't meeting at the NIEHS. 4 Q. 5 On here you have identified -- are you photographed in this 6 picture? 7 A. 8 there. 9 Q. I wouldn't be able to say that because I see my friend Okay. We were meeting at a hotel. So let's do a couple things just for the record. First thing first, are you in this picture? I presume this is me and not somebody photoshopped me in Right. And what two -- I guess, in the picture to the 10 right in a pattern black-and-white dress, it seems, you said my 11 friend Jane? 12 A. Hoppin. 13 Q. Jane Hoppin. 14 And she is -- is she the co-principal investigator for AHS; is 15 that right? 16 A. No, she hasn't been. 17 Q. She hasn't been. 18 A. I don't know what she was, but from what her complaints 19 about everything was -- as a friend, was that she never had the 20 role she wished she had. 21 study, but she was definitely a member of the investigative 22 team from NIEHS, but the chair was actually Dale Sandler. 23 Q. 24 investigator. 25 Okay. Okay. Just for the record, this is Jane Hoppin. She has never been? So I don't know her titles in the So there is a Dale Sandler, who is the principal So let me just go back and unpack this a little 7 RITZ - CROSS / MATTHEWS JOHNSON 1 bit. 2 co-principal investigator; is that correct? 3 A. Correct, because I don't know what that term means. 4 Q. Okay. 5 A. Yes, I do. 6 Q. Okay. 7 Environmental Health Science epidemiology branch; is that also 8 correct? 9 A. Yes, that's the institute that helped investigate. 10 Q. Okay. 11 to know who the woman to the left is? 12 A. No, no. 13 Q. Okay. You are saying you can't say for certain that she was the 14 But you do know that she was involved in NIEHS? And she also worked in the National Institute of And just so -- just for completeness, do you happen And you may not. You do not know who that is. Now, do you recall whether there was a meeting attended or 15 where a meeting facilitator, Mr. -- maybe Dr. -- Alavanja was 16 present, the same Alavanja who wrote Alavanja 1996? 17 A. He was always present. 18 Q. He was always present. 19 And do you recall at these meetings you and others being 20 asked, do you endorse our plan? 21 right track? 22 Do you think we are on the Do you think that we are doing the right things? Do you recall those kinds of questions being asked? 23 A. He could have asked those, but this was between 2001 and 24 2000 let's say '07, and the baby had already fallen into the 25 well. They had already done the baseline, and they were almost 7 RITZ - CROSS / MATTHEWS JOHNSON 1 done with their second follow-up. 2 came in -­ THE COURT: 3 That's when I came in, and I If I can interrupt you for a moment, her 4 question was simply whether you recall being asked those 5 questions. 6 to elaborate after that, but try to pay attention to the 7 question that is asked of you. 8 THE WITNESS: 9 And I'm sure there will be an opportunity for you Right. No, I don't -- I don't recall being asked these questions. 10 BY MS. MATTHEWS JOHNSON 11 Q. 12 are 13 do you have suggestions for modifications? 14 A. 15 course, the underlying question in the room when you are on an 16 advisory board; but I can't recall that somebody stated that 17 explicitly. 18 Q. 19 in years since whether you ever had any discussions with any of 20 the AHS scientists regarding any study data on glyphosate and 21 non-Hodgkin's lymphoma. 22 had those conversations. 23 A. 24 25 Okay. So you don't recall being asked: Do you think we on the right track, that we are doing the right things, and I don't recall exactly these questions. But that's, of Okay. And there have been times when you have been asked You have been asked before if you ever What are you asking me? THE COURT: I want to remind you that the ground rules we set for this is you are not asking questions about prior 7 RITZ - CROSS / MATTHEWS JOHNSON 1 statements or testimony. 2 MS. MATTHEWS JOHNSON: 3 THE COURT: Yes. You ask them what their testimony is; and 4 then only if you believe that prior testimony is inconsistent 5 with that, will we get into their prior testimony. MS. MATTHEWS JOHNSON: 6 7 rephrase. 8 BY MS. MATTHEWS JOHNSON 9 Q. Yes, Your Honor. I will Dr. Ritz, have you had any discussions with any of the 10 Agricultural Health Study scientists regarding any study data 11 on glyphosate and non-Hodgkin's lymphoma? 12 A. In an official capacity? 13 Q. I'm simply asking yes or no, did you have -­ 14 A. Or as a friend? 15 Q. I'm just asking -­ 16 THE COURT: 17 THE WITNESS: That is a question you can answer. So in an official capacity, no. As a 18 friend, I tried to mention it, yes. 19 BY MS. MATTHEWS JOHNSON 20 Q. 21 to conduct their dose response and analyses of pesticides and 22 non-Hodgkin's lymphoma? 23 A. No. 24 Q. Did the advisory committee, of which you were a member and 25 a chair, make recommendations to the AHS scientists on methods Have you had conversations with AHS scientists about how 7 RITZ - CROSS / MATTHEWS JOHNSON 1 to address exposure misclassification or potential for exposure 2 misclassification that the AHS scientists did not accept? 3 A. 4 of their exposure validation efforts. 5 Q. 6 to the AHS, have you spoken with anyone at AHS to share the 7 opinion that the imputation method that they were using was 8 inappropriate for glyphosate? 9 A. I can't remember that, but I remember a lot of discussions In your role as chair of the external advisory committee The imputation method was published in 2012. We haven't 10 had any meetings in that timeframe. 11 Q. 12 prior testimony, please. 13 from September 18th, 2017, tab 3. 14 with pages 27, lines 11 through 15 and also 28, lines 7 through 15 12 . At this time I would like to draw your attention to some So if we can go to your deposition 16 THE COURT: 17 MS. MATTHEWS JOHNSON: 18 What was the second one? I beg your pardon, Your Honor. It is page 28, lines 7 through 12. 19 20 And I just want to start And it is actually -- yeah, line 8 technically is where the question starts. 21 THE COURT: Any objection to that being read? 22 MS. WAGSTAFF: 23 THE COURT: No objection. Go ahead. 24 BY MS. MATTHEWS JOHNSON 25 Q. So first I would like to read September 18th, 2017, RITZ - CROSS / MATTHEWS JOHNSON 1 page 27, lines 11 through 15: 2 with any of the Agricultural Health Study scientists regarding 3 any study data on glyphosate and non-Hodgkin's lymphoma?" 4 "Have you had any discussions Did I read that correctly, Doctor? 5 A. Yes. 6 Q. And the answer you gave to that question was "No"? 7 A. Yes. 8 Q. If we can go to page 28, lines 7 through 12. 9 And the answer is "No." MS. MATTHEWS JOHNSON: Yes, Your Honor. Technically it is line 8 10 through 12. 11 BY MS. MATTHEWS JOHNSON 12 Q. 13 scientists about how to conduct their dose response analyses of 14 pesticides and non-Hodgkin's lymphoma?" The question: Thank you. "Have you had conversations with the AHS And your answer was "No." 15 16 A. Correct. 17 Q. And then, I believe, for the record -- I'm not sure if I 18 asked this question -- I believe I did ask: 19 the chair to the external advisory committee to the AHS, have 20 you spoken with anyone at the AHS to share the opinion that you 21 have been offering here today that the imputation method that 22 they are using is inappropriate for glyphosate?" 23 I think I asked that question earlier. 24 A. I'm not sure where you are. 25 Q. Okay. Let's go to page 385, please. "In your role as Did I not, Doctor? I think I already RITZ - CROSS / MATTHEWS JOHNSON 1 asked this. 2 A. Same testimony. 3 Q. It is the same. Page 385, lines 3 through 14. 4 THE COURT: Any objection? 5 MS. WAGSTAFF: Let me just -- one second, Your Honor. No objection. 6 7 THE WITNESS: 8 MS. MATTHEWS JOHNSON: 9 385? Where are we? Sorry, Doctor. It is page 385, and it is lines 3 through 14. 10 BY MS. MATTHEWS JOHNSON 11 Q. 12 9: 13 advisory committee to the AHS, have you spoken with anyone at 14 the AHS to share the opinion that you have been offering here 15 today that the imputation method that they are using is 16 inappropriate for glyphosate?" 17 I will read the question first, which is lines 3 through "Dr. Ritz, in your role as the chair of the external And your answer is: "I have not talked to them about 18 glyphosate." 19 A. 20 Q. Is that correct? 21 A. So that is consistent; right? 22 Q. 23 It is not up on my screen. Correct. So if we can go to the timeline, I'm not sure if it is up. 24 There we go. 25 Okay. I lost mine. That's what's throwing me off. Let's remove -- let me be clear. Let's remove RITZ - CROSS / MATTHEWS JOHNSON 1 "co-principal investigator," just to be clear because you are 2 not certain of that title; right, Doctor? 3 A. No. 4 Q. We can take that down and take that out. 5 We know she is with AHS, though; right? 6 A. No, she is not anymore. 7 Q. She is not anymore, but at the 8 picture, as you said -- as you indicated, during that 9 timeframe, she was? 10 A. 11 Q. 12 just want to make sure we are 13 point in time when this She was an investigator. She was an investigator.So maybe "AHS investigator." I being accurate here. Now, we talked about the fact that you did not bring these 14 things -- well, your testimony speaks for itself -- but do you 15 recall that there were a number of publications over the years 16 that dealt with questions -- issues, questions about the 17 questionnaire about exposure; do you recall that? 18 A. Oh, yes. 19 Q. Okay. 20 A. I read them all, with interest. 21 Q. Okay. So what I would like to do now, then -­ MS. WAGSTAFF: 22 No objection. 23 BY MS. MATTHEWS JOHNSON 24 Q. 25 Alavanja 1996 was an article about general methodology and the And so, Doctor, just as we wait for that slide to come up, RITZ - CROSS / MATTHEWS JOHNSON 1 goals of the AHS. 2 A. Yes. 3 Q. And I can also direct you to the exhibits. 4 record, it is Exhibit 1021. 5 Do you recall that? Just for the Exhibit 1661. 6 A. Which one do you want me to open? 7 Q. The exhibit binder, not your testimony binder, if -- I 8 know they are so big, so -­ 9 A. Number, please. 10 Q. The number is 1661. 11 A. Yes. 12 Q. Okay. 13 of whether the non-responders of the take-home questionnaires 14 were different than those who responded and whether there was 15 an issue with selection bias as a result? 16 A. This is the take-home of the baseline. 17 Q. Okay. 18 about the study and how the study is going to be executed? 19 A. 20 had. 21 Q. But, again, this is a publication about the -­ Yes, you would hope they would publish on that, and they Can we go -­ THE COURT: 22 23 And so Tarone study 1997 published about the issue break? Is now a good time to take an afternoon I think the answer is yes. 24 MS. MATTHEWS JOHNSON: 25 THE COURT: It is perfect. Perfect for me. Why don't we take a 10-minute break. We RITZ - CROSS / MATTHEWS JOHNSON 1 will resume at 1:40. 2 Thank you. (Proceedings were heard out of presence of the jury:) THE COURT: 3 See you in ten minutes. 4 (Recess taken at 1:30 p.m.) 5 (Proceedings resumed at 1:40 p.m.) 6 (Proceedings were heard out of the presence of the jury:) 7 THE COURT: You can bring the jury back in. (Proceedings were heard in the presence of the jury:) 8 THE COURT: 9 10 Okay. I see we have our afternoon coffee. That's good. 11 You can resume. 12 MS. MATTHEWS JOHNSON: Thank you, Your Honor. 13 Q. Dr. Ritz, just for a moment, we're going to return to 14 Exhibit 1089, and if you can look at Exhibit 1089 just briefly. 15 A. Are we done with Tarone? 16 Q. No. 17 a moment, but for just a moment we're going to return to the 18 SEER data and it's Exhibit 1089. 19 A. Okay. 20 Q. And if you would go to the -- I'm not sure they're 21 paginated but, one, two, three, four -- if you would go to the 22 fifth page, you will see at the top "Data Number Per 100,000 23 Persons" and it's 1975 to 2015. 24 top. 25 A. We were on that line and we'll go back there in just The graph? It's the graphics just at the RITZ - CROSS / MATTHEWS JOHNSON 1 2 MS. MATTHEWS JOHNSON: Your Honor, may I approach the witness just so she can see what we're talking about? 3 THE COURT: Sure. 4 MS. MATTHEWS JOHNSON: Thank you. 5 Q. It's this one (indicating). 6 A. Which exhibit? 7 Q. 1089. 8 A. Is it this one (indicating)? 9 Q. I think it's at the top. 10 A. This one (indicating)? 11 Q. Yes. 12 A. MS. MATTHEWS JOHNSON: So may we publish the graph that is at the top of the fifth page? MS. WAGSTAFF: 15 16 Is that good? Yes. 13 14 Is that the one you have? Your Honor, no objection with respect to if the title is removed from the graph. 17 MS. MATTHEWS JOHNSON: 18 THE COURT: Correct, and it is. And it is. Okay. 19 BY MS. MATTHEWS JOHNSON: 20 Q. All right. 21 A. Yes. 22 Q. And what we were talking about here is SEER data. 23 talked about this before, that there is a cancer incidence that 24 is tracked. 25 isn't that right? I believe everyone can see it now, Doctor. We've And what we see with this data is 1975 to 2015; RITZ - CROSS / MATTHEWS JOHNSON 1 A. Yes. 2 Q. All right. Thank you. Oh, I see. Let's keep that up for just a moment if we 3 4 can. 5 Sorry. And just so we can clarify, we don't need to turn to it on 6 the screen, but if you can refer back to what I showed you 7 before, it was also the same data but for a narrower time frame 8 starting in 1992. 9 first page of that exhibit and the bottom table, that date So if you just compare -- if you go to the 10 range was 1992 to 2015. 11 A. Yes. 12 Q. And then if you look further in where we are now on the 13 screen, we're looking at 1975 to 2015; is that correct? 14 A. Correct. 15 Q. Okay. 16 Thank you very much, Doctor. So where we were, Doctor, was looking at a timeline and we 17 were looking at a number of publications, and we just stopped 18 with Tarone. 19 And now I'd like to draw your attention to Exhibit 1156 -­ 20 oh, we're going to -- may we keep that up? 21 be following along with these titles if it's okay. 22 very much. 23 So Exhibit 1156 for you. We're just going to Thank you It's the Dosemeci article. 24 A. Yes. 25 Q. And does this involve an algorithm? This is a publication RITZ - CROSS / MATTHEWS JOHNSON 1 about an algorithm that's used to estimate exposure; is that 2 correct? 3 A. Yes. 4 Q. And, in fact, is the Dosemeci algorithm one that you said 5 that you've used in your research; is that correct? 6 A. 7 doing, uh-huh. 8 Q. 9 we've been through thatone so we're not going to dig back 10 Yes. And so I really like that algorithm for what I've been -- and then we also see here De Roos 2005, and in there. 11 But suffice it to say, that De Roos 2005 came up right 12 while you were in the midst of serving on the Advisory Board 13 and you actually became chair that year; is that correct? 14 A. At the end of that board meeting, yes. 15 Q. Okay. And if we can look, and you can turn in your book, 16 to Exhibit 1112, which is Coble, and that's a 2011 publication, 17 and that was an effort to actually update the Dosemeci 18 algorithm; isn't that right? 19 A. Yes, it was. 20 Q. And so the issue there is trying to figure out what do you 21 put together to really try to get a sense of exposure, and 22 Coble was an updated algorithm; is that right? 23 A. I believe that's correct. 24 Q. Okay. 25 A. Yes. And then if we can look at Exhibit 1258, Heltshe. RITZ - CROSS / MATTHEWS JOHNSON 1 Q. 2 at how the imputation method worked, if it -- and trying to 3 validate that the imputation method had been done correctly, 4 how you dealt with the nonresponders, as you said, to the 5 second questionnaire? 6 A. Emphasis on "trying," yes. 7 Q. Now, AHS, across its many decades and publications, there 8 are about more than 250 papers that have been published arising 9 out of that study; is that right? And Heltshe was an article that was specifically looking 10 A. Yes. 11 Q. And I think we've already heard your testimony concerning 12 the lack of conversations that you've had concerning the 13 concerns about glyphosate that you've articulated here today, 14 and so just the last stamp on our timeline is, I believe you 15 testified to on direct, that in August of 2016 -- did you say 16 the fall or summer of 2016? 17 A. Yes. 18 Q. -- you actually became an expert retained by the 19 plaintiffs; is that correct? 20 A. Yes. 21 Q. Okay. 22 timeline. 23 Yes. Very productive. And I think we can -- if we can mark that on the And at that time, shortly after, I think you were actually 24 contacted by some folks at AHS and you told them that you were 25 now serving in this capacity; and just because I want to be RITZ - CROSS / MATTHEWS JOHNSON 1 clear, these are not my words, your words, you said they kicked 2 you out? 3 A. 4 They actually -- it wasn't the board at all. 5 I was contacted by Laura Beane Freeman to review the 6 Andreotti paper, prereview it, and I said that would be a 7 conflict of interest that I would not want to step into because 8 I've now been retained in this court case. I may have said that, but that's not how it happened. What happened is And as a scientist, I like to not have a conflict of 9 10 interest so I disclosed that I'm now, you know, an expert for 11 the plaintiff and that, therefore, it would be inappropriate 12 for me to actually look at the Andreotti paper. 13 "Thank you and that's really great. 14 Q. 15 actually listed as serving on the Advisory Board. 16 would be an error in your CV, would it not? 17 A. Isn't there an end date? 18 Q. I think you could check it. 19 A. I think that Advisory Board actually doesn't exist 20 anymore. 21 Q. But it shouldn't say "to present"; is that fair to say? 22 A. That's correct. 23 Q. Okay. 24 either? 25 A. And she said, Thanks for telling me." Now, on your CV and I believe in the opening you were So that It hasn't existed in years. And the opening slide shouldn't say "to present" Correct. Actually, the board really hasn't existed in RITZ - CROSS / MATTHEWS JOHNSON 1 more than a decade because they ran out of money. 2 Q. 3 any time in the 2001 to 2017 time frame where you expressed the 4 information that you did today concerning imputation, as you 5 said before, and you said you never talked to them about 6 glyphosate; is that accurate? 7 A. And as you sit here today, you are not able to identify Glyphosate was never on my radar when I talked -­ 8 MS. MATTHEWS JOHNSON: 9 THE COURT: I think that's an answer. I don't -- I mean, that is amenable to a 10 yes-or-no answer. If it's very important to explain something, 11 you can do it, but -­ 12 THE WITNESS: 13 THE COURT: Yeah. -- usually the way it works is the 14 plaintiff's lawyer has an opportunity to allow you to elaborate 15 on some things when they come back up. 16 17 18 19 20 THE WITNESS: I cannot recall ever talking to them about glyphosate. MS. MATTHEWS JOHNSON: May I have just one moment, Your Honor? THE COURT: 21 22 Uh-huh. Sure. (Pause in proceedings.) MS. MATTHEWS JOHNSON: Your Honor, I was just 23 reminded -- I'm sorry -- there is a stipulation that we could 24 either read now or at the conclusion of her testimony. 25 THE COURT: Whatever you prefer. I haven't seen it RITZ - REDIRECT / WAGSTAFF 1 yet I don't think, but you can hand it up to me if you want. 2 MS. WAGSTAFF: Can I see the stipulation? 3 MR. STEKLOFF: It was filed, Your Honor, but if you 4 want a copy, we'll get you a copy and then we can do it at the 5 end of the testimony if that's easier. 6 7 THE COURT: Okay. I can pull it up. while you-all are wrapping up. 8 M R . STEKLOFF: 9 MS. MATTHEWS JOHNSON: 10 I'll pull it up questions at this time. 11 THE WITNESS: 12 Thank you. Dr. Ritz, I have no further Thank you. Thank you. REDIRECT EXAMINATION 13 BY MS. WAGSTAFF: 14 Q. 15 everything that was said so I just want to read back the 16 question and see if you have anything else to say (reading): All right. 17 Dr. Ritz, I have a transcript right here of "As you sit here today, you are not able to identify 18 any time in the 2001 to 2007 time frame" -- "2017 time 19 frame where you expressed the information that you did 20 today concerning imputation as you said before, and you 21 said you had never talked to them about glyphosate; is 22 that accurate?" 23 A. As far as I remember. 24 Q. Okay. 25 wanted to make sure you had an opportunity to finish what you So it seemed like you had more to say, and I just RITZ - REDIRECT / WAGSTAFF 1 needed to say. 2 A. 3 huge study with a lot of people involved, a lot of scientists 4 involved, and a lot of interests and every scientist has a 5 different interest. 6 certain disease. 7 the exposure assessment as right as they can or go out and 8 actually do substudies. 9 So what I'm saying is, as we heard from counsel, this is a Some scientists are interested in a Other scientists are interested in getting A lot of what I heard about at these Advisory Board 10 meetings was about substudies that they were now conducting 11 where they enrolled farmers and watched them while they were 12 applying pesticides to learn more about what went on while they 13 were applying pesticides, but that was all done after they had 14 already asked them in the baseline; right? 15 were enrolled. 16 All these people They had their names and addresses. And then in the time frame from 1997 onward, they might 17 have gone back to a few of them and asked them specifically 18 "Can we come to your farm and can we measure something?" 19 that's usually smaller studies of 100 to 200 people out of the 20 54,000. But 21 And they did that to learn more about how you can protect 22 farmers, and I really admired them for doing that because they 23 came up with a lot of good advice for these farmers of not -­ 24 how not to get exposed. 25 Right? And that's what we were mostly discussing, as well as the RITZ - REDIRECT / WAGSTAFF 1 early papers that came out. 2 for example, Anneclaire De Roos' glyphosate paper because that 3 came out in 2005, and I don't think she ever presented that to 4 the board. 5 I can't even recall ever seeing, At the board we were mostly shown not analysis. They 6 really were more interested in us discussing what else can we 7 do to do -- to do better in terms of not only having this 8 baseline questionnaire and doing all the analysis -- that will 9 happen anyhow; right? -- but what else can we go back to the 10 communities to -- back and help them with. 11 And all of these smaller substudies, including the 12 Parkinson study, the exposure measurement studies on the farms, 13 the fungicide studies in the orchard applicators, all of that 14 was broadly discussed and where I gave a lot of input. 15 rarely -- I can't really remember any time that they really 16 discussed with us actual study results. 17 Q. 18 All right. But we Thank you. So we had talked earlier and you were asked questions 19 about meta-analyses and pooled data -­ 20 A. Right. 21 Q. -- by Ms. Johnson. 22 A. Yes. 23 Q. And so I just want to ask you, did you consider the 24 meta-analyses and the pooled data in your opinion that you're 25 giving the jury today and yesterday? Do you remember that? RITZ - REDIRECT / WAGSTAFF 1 A. 2 that's the -- that's the lazy person's way of doing it is go to 3 a meta-analysis, pull out what somebody else says, and then 4 attach your opinion to it. 5 Somebody else did the work for you, gave you a number, and all 6 you do is interpret that number. 7 Absolutely, but I would never just, you know -- sorry, That's not me. And that's not science; right? That's not what I do. I go back and see 8 how the data was generated and then how the data was analyzed 9 in the original studies, and then I look at the meta-analysis 10 and actually look at how they did the meta-analysis and whether 11 they used the appropriate methods and whether I agree with what 12 they did and what the conclusions are. So it's more of a roundabout way of thinking about the 13 14 whole -- as I've shown on these exhibits, think about the data 15 in a broader way; right? 16 generated, who collected it, when did they collect it, what did 17 they collect, and then also how did they put it together, and 18 get a whole picture. 19 Q. 20 that we discussed this morning by Zhang; is that correct? 21 A. Yes, that's correct. 22 Q. Okay. 23 24 25 Okay. Think about how the data was And that includes the most recent meta-analyses MS. WAGSTAFF: I read that with great interest. And, Ms. Melen, if we could turn on the Elmo, please. I'd like to publish the Chang and Delzell meta-analyses RITZ - REDIRECT / WAGSTAFF 1 without any objection. 2 3 MS. MATTHEWS JOHNSON: We object as beyond the scope of cross. 4 MS. WAGSTAFF: 5 THE COURT: 6 for it. 7 BY MS. WAGSTAFF: 8 Q. 9 meta-analysis? All right. I can explain why it's not. Okay. You can kind of lay a foundation Are you familiar with the Chang and Delzell 10 A. Yes, I did read it. 11 Q. Okay. 12 Agricultural Health Study was funded by Monsanto; correct? 13 A. Correct. 14 Q. In fact, I think she asked you questions "So there's no 15 Monsanto money in this study"; right? 16 A. Right. 17 Q. Something like that. 18 A. Uh-huh. 19 Q. If we could -- I didn't have this in my exhibit binder so 20 you'll just have to follow along with me. 21 this an accurate review and copy of the Chang and Delzell 22 meta-analyses? 23 A. As far as I can tell, yes. 24 Q. Okay. 25 And Ms. Johnson asked you whether or not the And this is from -­ MS. MATTHEWS JOHNSON: Objection. If we turn -- is RITZ - REDIRECT / WAGSTAFF 1 2 THE COURT: MS. WAGSTAFF: Okay. So I'd like to go to the conclusion. 5 6 I still don't understand why this is relevant. 3 4 Yeah. THE COURT: Well, I think I would like you to go to sidebar. 7 MS. WAGSTAFF: 8 Okay. We can go to sidebar. (The following proceedings were heard at the sidebar:) 9 10 11 12 13 14 15 16 17 18 19 (The following proceedings were heard in open court:) MS. WAGSTAFF: 20 Thank you, Your Honor. 21 Q. 22 Exhibit 1611. 23 believe she displayed for you this page. 24 A. 25 the top, yes. All right. Ms. Johnson asked you about Trial If you could turn to Trial Exhibit 1611. No, she didn't show it to me. And I Do you recall that? Oh, the top. She showed RITZ - REDIRECT / WAGSTAFF 1 Q. The Advisory Group? 2 A. Yes. 3 Q. So I just wanted to flip the page over, which is the next 4 page. Are you familiar with Matthew Ross? 5 6 MS. MATTHEWS JOHNSON: 7 the scope of cross. 8 THE COURT: 9 THE WITNESS: Objection. Outside -- beyond Overruled. I'm not sure. 10 BY MS. WAGSTAFF: 11 Q. You don't know who Matthew Ross is? 12 A. No. 13 Q. You see he's from the -­ 14 MS. MATTHEWS JOHNSON: 15 MS. WAGSTAFF: 16 THE COURT: Okay. Objection. I'll move on. Move on. 17 BY MS. WAGSTAFF: 18 Q. 19 Ms. Johnson asked you questions about Trial Exhibit 1031. 20 you recall that? 21 A. Yes, the letter. 22 Q. -- response to Sheppard and Shaffer? 23 A. Yes. 24 Q. And I underlined the portion she asked you about. 25 All right. Let's talk about Trial Exhibit 1031. Do This was the letter -­ I wanted to just take you to the end of the study to the RITZ - REDIRECT / WAGSTAFF 1 references. 2 pronounce that Heltshe? 3 A. Heltshe. 4 Q. Heltshe, all right. 5 There's two references and one it says -- you She briefly touched on Heltshe, but why don't you tell the 6 ladies and gentlemen of the jury what Heltshe is, what it did, 7 and how that affected your opinion if at all. 8 A. 9 they actually tried to impute what's called imputation. All right. So Heltshe, et al., that's the paper where It's 10 pretty much guessing what the exposure was when you don't know. 11 So that's -- I tried to explain that to you earlier today. 12 So we have the 63 percent of people who answer the second 13 time and we have 38 percent who didn't come back and didn't 14 answer. 15 And now we're using the data from the 63 percent who 16 answered and come up with a prediction model for their 17 pesticide exposure as they -- so they're trying to predict from 18 the baseline what these people would answer in 2000, 2001, 19 2002; but that is trained on the people, that is made with the 20 people who are actually answering. 21 people you have no second information on. 22 It's not made with the And then you are presuming that that's okay to then use 23 the same prediction model, so like guessing, "You know, I guess 24 that person was exposed. 25 that one must have used 10 days." Ah, that one wasn't exposed. Ah, And all of these guesses RITZ - REDIRECT / WAGSTAFF 1 were taken just from the baseline of the 63 percent who came 2 back, and now I'm using that same baseline for the people who 3 didn't come back and now predict what their answer in the 2000s 4 would have been. 5 It's a guessing game. And there are many, many assumptions -- we call it 6 assumptions -- many things you assume have to be right in order 7 for this to not just be a weird guessing game -- right? -- that 8 doesn't hit the truth. 9 And, in essence, we have to believe the assumptions that the 10 How many times do you hit the truth? people who are playing the guessing game make. 11 And there's a lot of debate among statisticians and 12 scientists about what assumptions to use. 13 method. 14 using -- generating these prediction models; right? 15 gamblers try to predict what the next hit in a roulette -- of 16 the roulette ball might be, and they may think they get really 17 good when they gamble a lot; right? 18 The method is fine; right? Not about the It's just, you know, I mean, But it's the same thing. So you have your -- you use your data to generate this 19 prediction model, but you're making lots and lots of 20 assumptions. 21 initiated is from the statistical point of view where she says, 22 "Yes, you can use these methods but these methods are known to 23 generate bias. 24 you did it in a way that probably generated this bias." 25 Q. And actually the discussion that Dr. Sheppard They are known to generate systematic bias, and And when you formed your opinion that you presented to the PROCEEDINGS 1 jury, had you considered the Heltshe paper? 2 A. Yes. 3 Q. Okay. 4 the last two days while you've been on the stand changed your 5 opinion? 6 A. No. 7 8 And has anything you have been asked or heard over MS. WAGSTAFF: All right. THE COURT: Anything further? 10 MS. MATTHEWS JOHNSON: 11 THE COURT: Okay. 15 16 THE COURT: You can step At the moment I'm going to read a stipulation to you-all. Are you prepared to play some video deposition for the last 20 minutes or so? 18 MS. WAGSTAFF: 19 MS. MOORE: 21 Thank you, Dr. Ritz. (Witness excused.) 17 20 No, Your Honor. down. 13 14 No more questions. 9 12 Thank you. We have a -- I think it's 13 minutes. It's 9 and a half minutes, Your Honor, and it's ready to go. THE COURT: Okay. Let me first read you a 22 stipulation. 23 the instructions just after you were chosen, I gave you an 24 instruction on what is evidence and I told you that, you know, 25 the testimony of witnesses is evidence, the documents that are You may or may not recall that when I read you PROCEEDINGS 1 admitted are evidence that you consider, and another type of 2 evidence that you can consider is a factual stipulation. 3 That's a stipulation of fact agreed to by both sides kind of in 4 an effort to make the process more efficient; and instead of 5 having them bicker with witnesses about it, they just reach a 6 factual stipulation, which you are to deem proved. 7 And the parties have reached a number of them. From time 8 to time I will read you a factual stipulation, and I will read 9 you one right now, and this applies to all the expert testimony 10 in the case. 11 The parties, Edwin Hardeman and Monsanto Company, by 12 counsel, stipulate that their experts have been paid a 13 significant amount for their time in accordance with normal and 14 customary rates. 15 So the purpose of that is to avoid them having to ask a 16 bunch of questions of the expert witnesses about their 17 compensation. 18 19 So with that, do the plaintiffs want to call their next witness? 20 MS. MOORE: Yes, Your Honor. Our next witness is 21 Dr. Daniel Goldstein, and this will be played by video 22 deposition. 23 2017, and November 17th, 2017. 24 25 It's a video deposition taken on November 16th, THE COURT: \\\ Okay. Go ahead and play it. PROCEEDINGS 1 (Video was played but not reported.) 2 3 4 THE COURT: Okay. Is it a good time to wrap up for MS. MOORE: I think so, Your Honor. the day? We would just 5 move to enter into evidence the exhibits from Dr. Goldstein's 6 deposition. 7 THE COURT: Any objection? 8 MR. STEKLOFF: 9 THE COURT: No, Your Honor. Any further objection? 10 Okay. 11 (Trial Exhibit 100 received in evidence) 12 13 14 15 16 17 It's admitted. THE COURT: I should instruct you -- by the way, we probably need an exhibit number for that. MS. MOORE: Your Honor. Am I right? Yes, and I'll give that to Ms. Melen. It's Exhibit 100. THE COURT: Exhibit 100. Let me just mention one thing about that testimony that 18 you just saw. 19 testimony for you rather than having a witness come in here and 20 testify live. 21 be a number of other occasions where that happens. 22 From time to time we will be playing deposition That was the first example of that. There will What you should know about that is that the witness is put 23 under oath before they begin their testimony, and so they are 24 testifying under oath under penalty of perjury just as they 25 would be if they were in court and you should -- and we've PROCEEDINGS 1 reviewed the testimony to ensure that it's admissible in 2 accordance with the rules of evidence, and so you should treat 3 the video deposition testimony that is played for you the same 4 way that you would treat live testimony here in court. 5 keep that in mind as the trial proceeds. 6 And with that, we'll call it a day today. So just Let me just 7 remind you-all once again to avert your eyes if you see any 8 news reports or if you hear any news reports. 9 your own research. Don't do any of Don't talk to anybody about the case. And 10 also avert your ears if you happen to, you know, see or hear 11 somebody related to the case in the building that might be 12 talking about the case. 13 they will try, of course, to stay away from you. 14 15 16 So with that, thank you very much. 8:30 sharp tomorrow. We'll begin at Have a good evening. (Proceedings were heard out of the presence of the jury:) 17 18 Kind of stay away from those folks and THE COURT: Okay. Have a seat. So we can chat about a couple of things now, and then I 19 have a criminal matter at 2:45; and then right after that 20 criminal matter, we can proceed with the Order to Show Cause 21 hearing. 22 The couple items that I wanted to mention just while it's 23 on my mind, number one, I want to make clear for the record 24 that, you know, I think there was an allusion to the fact that 25 Mr. Hardeman is almost in remission. At some point -- maybe it PROCEEDINGS 1 was during Monsanto's opening statement, maybe it was during 2 some of the initial testimony, I can't quite recall; but, in 3 any event, the fact that Mr. Hardeman is almost in remission is 4 not relevant to Phase I and there should be no allusion to that 5 during any of the testimony, including the testimony of 6 Mr. Hardeman. 7 we're clear. 8 I wanted to make sure that's on the record so I also want to -- sorry? MS. MOORE: 9 Your Honor, with that in mind, then, we 10 probably will need to do some recuts to the doctors' 11 depositions. 12 questions asked about remission to Dr. Ye that Monsanto did, 13 and so we would need to go back and do that -­ We had some objections to that. There were some 14 THE COURT: Yeah. 15 MS. MOORE: -- which I would like to do, but I just 16 want to make sure that that's -­ 17 THE COURT: Yes. And I apologize. I may have allowed 18 those in when I ruled on the depo designations, but it dawned 19 on me when we were having a sidebar on the topic that it really 20 is not relevant to Phase I. 21 MS. MOORE: 22 23 that. That's fine. We can go ahead and fix Thank you. MR. STEKLOFF: 24 Your Honor's ruling. 25 THE COURT: I'm sure we can work that out based on We have no objection to that. Okay. PROCEEDINGS 1 And then I want to just remind everybody with respect to 2 expert testimony, we do not begin a question by referencing the 3 expert's prior testimony and saying "You know, you previously 4 said blah, blah, blah, blah, blah," and then start asking them 5 questions about it. 6 The point is to elicit direct testimony on the stand about 7 what their testimony is today. 8 testimony today is different from something they said before, 9 you can then impeach them with it, but you should not be If it turns out that their 10 starting off questions by saying "You previously said blah, 11 blah, blah." 12 expert witness in my view. 13 That's not an appropriate way to cross-examine an And then, finally, I want to say to everybody in the 14 courtroom, including in the gallery, everybody needs to 15 remember to be careful when you are in this building talking 16 about this case. 17 cafeteria, the jurors are sometimes riding in the elevator, and 18 you need to make absolutely sure that you are not talking about 19 the case in a way that can be overheard by somebody. 20 The jurors sometimes go down to the And I'll remind -- I see the courtroom is a little 21 smaller, the crowd is a little smaller today than it was this 22 morning, so I will repeat that instruction in the morning. 23 any of your friends who are not in the courtroom now but are 24 coming in the courtroom later, please remind them of that as 25 well. For PROCEEDINGS 1 And, let's see... Oh, one last thing. I do think, based 2 on the way the evidence has come in so far -- we had a sidebar 3 earlier that I don't believe was on the record in which I 4 stated that the plaintiffs should not be permitted to elicit 5 from Dr. Ritz the fact that Dr. Blair was the chair of the IARC 6 Working Group for the glyphosate monograph. 7 I do believe that the way the evidence has come in, I 8 believe it would be appropriate to elicit that bare fact from 9 Dr. Weisenburger, but obviously consistent with my prior 10 rulings, which have been very clear not to go into the process 11 of the IARC Working Group's decision about glyphosate or its 12 general process. 13 And on that point, let me just say that Dr. Ritz provided 14 some testimony that was strongly supportive of my ruling 15 limiting the amount of evidence that comes in about the EPA and 16 the IARC. 17 somebody else's work. 18 not proper science. 19 She said: It would be lazy to rely simply on That would be a lazy scientist. That's I have to look at the studies myself. And that is, of course, what we are doing here in this 20 trial, and so I just wanted to emphasize the support that 21 Dr. Ritz provided for my ruling that we're not getting into the 22 details or the analyses or the processes of the EPA or the IARC 23 in this Phase I. 24 25 So with that, I'll see you-all -- we can say that the show cause hearing will take place at 3:00 o'clock if that would be PROCEEDINGS 1 2 3 4 more convenient for you to have something predictable. Anything else, though, to discuss in the next few minutes? MR. STEKLOFF: Your Honor. 5 THE COURT: 6 MR. STEKLOFF: 7 Okay. The first is, I guess as we think through this issue of the two-day/10-day issue -­ 8 THE COURT: 9 MR. STEKLOFF: 10 I had two just brief issues, Yes. -- I understand the discussion we've had already and -­ 11 THE COURT: Can I add one point to that discussion? 12 MR. STEKLOFF: 13 THE COURT: Yes. Which is that, you know, I think 14 Dr. Ritz's testimony on this was elucidating for me as well 15 because what it supports is the idea when epidemiologists 16 testify about studies, they say "This study shows X. 17 study shows Y." 18 words; right? 19 of times, "This shows, you know, 20 This Even if they disagree with it, they use those Dr. Ritz used those words about the AHS a number .8. This shows .76." She doesn't agree with it, but that's the way 21 epidemiologists talk. 22 supports my idea that when experts are talking about general 23 causation, to speak in those terms and to speak about the 24 numbers is probably okay; but where you have problems, where 25 you run into problems is when the specific causation experts So I think, to me at least, that PROCEEDINGS 1 start speaking in those terms because their testimony is 2 directed specifically to Hardeman and you cannot reach any sort 3 of quantitative conclusion about Hardeman based on the McDuffie 4 and Eriksson dose-response numbers. 5 So I'm sort of -- I'm happy for you to think about it more 6 and for us to have further discussion about it, but I just 7 wanted to share those thoughts and let you know that that sort 8 of idea is crystallizing in my mind that that is probably the 9 best way to approach it. 10 11 So that would involve a little bit of a tweaking of my ruling on the issue pretrial. MR. STEKLOFF: Understood, Your Honor. And what I 12 want to flag is that -- and we've already raised in our letter 13 the way that Dr. Ritz described various odds ratios when she 14 was talking through the chart. 15 Today I wanted to add sort of an addition because I think, 16 in my view, it was a little bit different even from what 17 Your Honor is describing now, which is that, and I don't have a 18 page number, but at 11:00 o'clock in using the Bradford Hill 19 criteria, for the strength of association criteria, she was 20 first describing never/ever users and then she went on to say, 21 and I tried to write it down word for word: 22 When you're going to regular users -- and so she's talking 23 now about the dose-response users -- it's actually strong 24 because it's more than 2 for regular users. 25 So I think that differentiated in terms of testimony where PROCEEDINGS 1 she's trying to rely on the unadjusted doubling of the risk in 2 the dose-response context to describe regular users. 3 unadjusted numbers are not, I think, according to Your Honor's 4 ruling, even in general causation a reliable basis. 5 It's okay to say that there's a dose-response. And those It's okay 6 that people who use it more in her view, therefore, are more 7 likely to have an association, but it's not okay to single it 8 out about the doubling of the risk. 9 sort of the record that we've already described. 10 THE COURT: So I want to add that to And if you describe that correctly, I 11 think you have a point; right? 12 inconsistent with the point that I was making, which is when 13 they're talking about individual studies, the language that 14 they use is "This study shows... 15 study shows"; right? 16 agree with that," or they may go on to say, "I disagree with 17 that," whatever; right? And it's not necessarily This study shows... This And then they may go on to say, "And I 18 So merely saying, "Hey, McDuffie did a dose-response 19 analysis and showed, you know, 2.0," or whatever it was, "for 20 greater than two days," spoken in the general causation context 21 I don't think is a big deal; but it may be that what you're 22 describing, if you are remembering it accurately, is 23 problematic. 24 25 And so, you know, we can have a continuing conversation about that and think about I think the instruction that you PROCEEDINGS 1 proposed in your letter is not appropriate, I believe, and it 2 may be that no curative instruction is needed but we just need 3 to sort of zero in a little more specifically on the guidance 4 that we're providing the experts, but that point is perhaps 5 well taken, yeah. 6 MS. WAGSTAFF: So, Your Honor, if I may, I think the 7 point that you made about these 8 or -- these 2 and 10 days are 8 goalposts a few hearings ago was when Dr. Weisenburger was on 9 the stand, if I remember correctly, during Daubert. 10 And I didn't hear one question on cross about the 11 significance of any of this to Dr. Ritz. 12 question asked to Dr. Ritz, "Well, how can you say a doubling 13 of the risk over two days didn't -- you know, isn't the above 2 14 days, 3 days, and 30 days or 3 days and 2 years?" 15 hear any of that or any of that with respect to Eriksson. 16 THE COURT: I didn't hear one I didn't Right, but you would think that from a 17 strategic standpoint, you know, the defense may not want to 18 dive into that. 19 have the right to impeach somebody on sort of the kind of, I 20 think, you know, junk science statements that Nabhan and others 21 were making about Eriksson and McDuffie, but the point from 22 Monsanto is that they're trying not to get into that. 23 don't want to get into that, and so they want to establish some 24 ground rules for what the experts can and can't say about that. 25 And so the fact that they didn't cross-examine her on it I I mean, the whole point is that -- again, they They PROCEEDINGS 1 2 think is a reasonable strategic choice to not open the door. MS. WAGSTAFF: All right. And I would agree with your 3 initial reaction. 4 studies, and it would be impossible almost to ask them to 5 change all of their lingo to come into court and talk 6 differently. 7 8 9 10 That is how epidemiologists talk about these So with that, I will -- nothing more on this. THE COURT: Okay. Well, who's -- you said you had one other thing? MR. STEKLOFF: It's really just an open discussion about what is happening tomorrow because -­ 11 THE COURT: 12 MR. STEKLOFF: That's what I was going to ask. -- I think we have now you've seen half 13 of the Portier deposition. 14 at 2:00 o'clock to try to get you the rest as soon as possible, 15 but that's the only other issue. 16 MS. MOORE: And I think the parties are meeting Your Honor, if you would indulge us for 17 any kind of guidance because I know you have several things to 18 rule on, is that the priority obviously would be Dr. Portier. 19 And we're hopeful, based on what Mr. Wisner was telling 20 you earlier and you came back after you looked at it, is that 21 we can get the direct ready to play first thing in the morning. 22 And I think there's -- I think that's pretty manageable. 23 We'll report back to the Court once they finish their meet 24 and confer -- that's where Mr. Wisner is right now -- and turn 25 that cross over to you as well. PROCEEDINGS 1 2 3 4 5 I think that that -­ THE COURT: Okay. But I just want to make absolutely clear, you can't play the direct until I've ruled on the cross MS. MOORE: I understand, Your Honor. I understand, Your Honor 6 THE COURT: All right. 7 MS. MOORE: We have backup plans in place. 8 9 10 11 12 And so -- but that's the plan, just so I don't want you to take your time on that. And then assuming that we can get you -­ THE COURT: So you want me to make the first priority Portier's direct? 13 MS. MOORE: Yes, Your Honor. 14 THE COURT: Okay. 15 MS. MOORE: Yes, Your Honor. 16 THE COURT: And then if it comes in, second priority 17 is Portier's cross? 18 MS. MOORE: That's correct, Your Honor. 19 THE COURT: Okay. 20 MS. MOORE: The third would be Dr. Reeves, and we have And what's third priority? 21 redone that; and I will check to make sure that's all been 22 given to M s . Melen, but that may -- 23 THE COURT: I think it came in this morning. 24 MS. MOORE: Okay. 25 priority, Your Honor. So that would be the third PROCEEDINGS 1 2 THE COURT: Okay. And then are there any other depo designations outstanding? 3 MS. MOORE: Yes, Your Honor, there's several. 4 THE COURT: Do I have Blair? 5 MS. MOORE: You do have Blair, and I will -- I have -­ 6 THE COURT: I don't think I have a hard copy. 7 MS. MOORE: I have hard copies and I'm going to make 8 sure I hand you the right one, Your Honor, so give me a second. 9 When we come back for the show cause, I'll have that for you. 10 THE COURT: Yes. Just make sure it's not a mess. 11 MS. MOORE: I will, Your Honor. 12 THE COURT: Okay. 13 MS. MOORE: Okay. I think -- and then the parties are 14 still meeting and conferring on the others so we'll get those 15 to you. 16 THE COURT: Okay. And then you have -- you still have 17 the treating physicians you need to tweak a little bit based on 18 what I just said. 19 MS. MOORE: Right. 20 THE COURT: Oh, yes. 21 22 That won't take very much time. That reminds me of one other -­ the treating physicians, that reminds me of one other thing. I think as the evidence has come in, there's another thing 23 I should consider about the treating physicians, and that is 24 Dr. Ye's -- is it Dr. Ye, the oncologist? 25 MS. MOORE: He is, Your Honor. PROCEEDINGS 1 THE COURT: -- testimony about age being a risk 2 factor. 3 way the testimony has come in now with Dr. Portier -- I mean, 4 excuse me, Dr. Ritz having clearly identified that as a risk 5 factor, I don't think it's as controversial a concept as I was 6 assuming it was. 7 between a colloquial understanding of age as a risk factor and 8 a scientific one as I thought, and so I think it would be 9 appropriate. 10 That was something that I excluded, but I think the I don't think there's as much of a difference Let me put it this way: Under Rule 403, it would not 11 be -- it's not necessary to exclude Dr. Ye's testimony about 12 age as a risk factor under Rule 403. MS. MOORE: 13 And, Your Honor, our objection was 14 twofold. 15 Dr. Ye is played, that that will be cumulative and a waste of 16 time for the jury; and then the second piece of that was he is 17 a treating physician. 18 witness, and the questioning continued where he was asked "Have 19 you reviewed any of the literature regarding whether 20 glyphosate-based products cause NHL?" 21 One, it was under 403 because we believe that when THE COURT: He's not being called as an expert And his answer was "No." Yet he knows that age is a risk factor for 22 NHL, which is relevant. 23 treating oncologist, knows that age is a risk factor and 24 doesn't know that something else is a risk factor, it seems to 25 me is relevant The fact that the oncologist, the PROCEEDINGS 1 MS. MOORE: And, Your Honor -- 2 THE COURT: -- and not unduly prejudicial in this MS. MOORE: And, again, I do think it's cumulative, 3 context. 4 5 6 Your Honor, and that would make it prejudicial in this sense. I would like to go back when I'm looking at the remission 7 parts of the testimony and look at that because I think the way 8 it came in, it was in the context of something else, and we 9 could revisit that, Your Honor, after court tomorrow because 10 we're not going to play that tomorrow. 11 THE COURT: That's fine, but as of now, my ruling is 13 MS. MOORE: I understand. 14 THE COURT: -- that passage, which I'm remembering 12 15 that -- quite well, comes in 16 MS. MOORE: Okay. 17 THE COURT: It was just one passage and it was about 18 half a page or two thirds of a page. 19 MS. MOORE: That's correct, Your Honor. 20 correct. 21 I want to look at that. 22 23 24 25 That's It's just in the context of something up above it so THE COURT: I don't want to misspeak. All right. So I'll see you at 3:00 o'clock. THE CLERK: Court is in recess. (Recess taken at 2:35 p.m.) PROCEEDINGS 1 (Proceedings resumed at 3:06 p.m.) 2 (Proceedings were heard out of presence of the jury:) 3 THE CLERK: Court is back in session. 4 THE COURT: Okay. So I sort of made clear, I think, 5 in my written order and in my comments yesterday why I think 6 that Ms. Wagstaff should probably be sanctioned. 7 received -- since then I have reviewed the transcript of the 8 opening statement, and I have also received Ms. Wagstaff's 9 response. I have So the question is why shouldn't you be sanctioned. 10 MS. MOORE: Your Honor, I would like to address that. 11 THE COURT: Sure. 12 MS. MOORE: If I may, Your Honor, I would like to 13 introduce who else is joining us at counsel table this 14 afternoon. 15 local counsel here from Oakland, and Ms. Wagstaff's partner 16 came in from Denver to be with us here today, Vance Andrus. Of course Ms. Wagstaff, Ms. Andrus, who is our 17 THE COURT: Hello. 18 MS. MOORE: And, then, of course, Mr. Hardeman did 19 make the trip down, and he is here on time. THE COURT: Well, did you -- what about that guy from 22 MS. MOORE: From Hastings? 23 THE COURT: Didn't you guys bring -- didn't you guys 20 21 24 25 Hastings? hire someone from Hastings when Mr. Wisner was in trouble? MS. WAGSTAFF: Your Honor, we are going to keep those PROCEEDINGS 1 incidents separate. 2 Hastings. I was not involved with the guy from 3 THE COURT: All right. 4 MS. MOORE: I feel like there is a story there, but I 5 don't really want to get into that. 6 MS. WAGSTAFF: 7 MS. MOORE: 8 9 Honor. I have Ms. Moore as my counsel. I know what you are referring to, Your No, we are not going to go there. Okay. Your Honor, thank you for indulging us. This is a 10 very serious matter and we take it very seriously. 11 Ms. Wagstaff takes it very seriously. 12 the Court knows, is very clear that it is an abuse of 13 discretion to award Rule 11 sanctions for conduct during 14 opening statements. 15 THE COURT: 16 17 Okay. The Ninth Circuit, as So what about under my inherent authority? MS. MOORE: Under your inherent authority, Your Honor, 18 it is a high threshold, and it should be exercised with 19 restraint and discretion. 20 there is absolutely no evidence of bad faith on the part of 21 Ms. Wagstaff. 22 And in here, our position is that I have known Ms. Wagstaff personally for over five years. 23 THE COURT: That is not relevant. 24 M S . MOORE: Okay. 25 THE COURT: What is relevant is her conduct, which I PROCEEDINGS 1 think is objective evidence of bad faith. 2 documents in opening statement slides that have been excluded 3 by pretrial -- through pretrial rulings. 4 MS. MOORE: I mean, I -- quoting Well, Your Honor, if I can direct the 5 Court's attention to your pretrial order Number 81, which was 6 entered a little over the week ago on February 18th, 7 docket 2775. 8 limine -- andthis is 11.1, it is on page 3 9 tumor references. 10 THE COURT: ruling in it. -- to exclude magic Let me just go grab my binder with my Sorry. MS. MOORE: 13 14 in Do you want me to wait, Your Honor? 11 12 And as the Court will recall, Monsanto moved Iwill be back in 30 seconds. No problem. (Whereupon, a brief pause was had.) 15 THE COURT: Sorry about that. 16 MS. MOORE: No problem, Your Honor. 17 THE COURT: Go ahead. 18 MS. MOORE: Under Monsanto's motion in limine 11.1, as 19 the Court will recall, they moved to exclude references to 20 magic tumor; and the Court denied that for both phases of the 21 trial. 22 on notice that this type of argument or description may not be 23 used during opening statements. And the parties -- and you said, Both the parties are 24 And by saying that, Your Honor, it was our understanding 25 that we cannot use the word "magic" during opening statement, PROCEEDINGS 1 which Ms. Wagstaff never referred to the Knezevich -- I can 2 never say that right -- & Hogan mouse study as a magic tumor 3 study. So that is -­ 4 THE COURT: 5 that is -- is not a problem. 6 maybe I should just -- what you are saying is not responsive to 7 the misconduct that Ms. Wagstaff engaged in. 8 just lay it out for you a little more clearly with numerous 9 acts of conduct that Ms. Wagstaff engaged in during her opening 10 I think you are responding to something I mean, there were -- let me -­ So maybe I should statement, and then I will give you a chance to respond. 11 MS. MOORE: That would be helpful, Your Honor. 12 THE COURT: Just to make sure that you provide a 13 direct response, because it seems like you are -- what you are 14 providing now is non-responsive. 15 MS. MOORE: And, Your Honor, that would be helpful 16 because, as you know, this happened yesterday. We had to write 17 a brief by 8:00 p.m. last night. 18 clarity and precision are particularly important when limiting 19 what lawyers may argue to the jury. The Ninth Circuit states that 20 THE COURT: Yeah. And -­ 21 MS. MOORE: It was hard to respond -­ 22 THE COURT: And I limited what could be argued to the 23 jury with precision in my pretrial rulings. 24 there is any lack of precision or any ambiguity in it at all. 25 So I don't think So, number one, Ms. Wagstaff spoke to the jury about what PROCEEDINGS 1 Phase Two would involve. 2 discussions pretrial, as well as the instruction we hashed out, 3 that I would give to the jury about phasing, that that would 4 not come in. 5 We -- it was very clear from our Second, Ms. Wagstaff spent a significant amount of time at 6 the beginning of her opening detailing Mr. Hardeman's personal 7 history and the circumstances surrounding when he learned of 8 his cancer, even though that clearly is not relevant to 9 Phase One. 10 I will add that I -- I jumped in and told Ms. Wagstaff to 11 move on, and she did not move on. 12 that path to the point that I had call a sidebar. 13 She continued to go down Third, I ruled pretrial in very clear language that the 14 Gingerich memo from 1985 and other similar internal documents 15 are likely to waste time and distract the jury under Rule 403 16 and would not, at this stage, be admitted, but that I would 17 later evaluate whether they could be introduced. 18 she quoted the memo on her opening slide and read the quote 19 from the memo to the jury -- along with, by the way, other 20 similar internal Monsanto documents that fell within the same 21 pretrial ruling. 22 Despite that, Fourth, I made a -- I clearly ruled pretrial that the 23 evidence -- that evidence about IARC and its analysis and its 24 process would be strictly limited during Phase One; that the 25 only thing that would come in during Phase One is -- was the PROCEEDINGS 1 fact of the IARC conclusion and discussion of the independent 2 meta-analysis that IARC made. 3 ruling by going into detail about the IARC's analysis and the 4 process by which it reached its conclusion, not to mention the 5 composition of the IARC working group. 6 Yet, Ms. Wagstaff violated this And then -- and then I issued a pretrial order clearly 7 limiting evidence about the EPA's analysis of glyphosate, and 8 she violated that by attempting to tell the jury that the EPA 9 is vulnerable to political shifts and had internal 10 11 disagreements. All of those -- then there was, of course, you know, the 12 issue about the quantitative conclusions from Eriksson and 13 McDuffie, which, as I said yesterday, I'm willing for purposes 14 of this discussion to chalk that up to just being a difficult 15 issue. 16 last three -- are just such blatant and obvious violations of 17 my pretrial ruling, and they were premeditated because they 18 were in the opening slides. 19 But the other ones that I described -- particularly the So those are the violations that I'm talking about, and my 20 pretrial ruling on referring to the mouse tumor as the magic 21 mouse tumor has nothing to do with any of those. 22 So can you explain to me how, despite my pretrial rulings, 23 it was even a close question whether it would be appropriate 24 for Ms. Wagstaff to say any of those things during her opening 25 statement? PROCEEDINGS 1 2 3 4 MS. MOORE: Thank you for the clarification, Your honor. Let me start with number one. THE COURT: Let me just say, you didn't need any 5 clarification. 6 obvious yesterday. 7 Ms. Wagstaff was saying yesterday what the issues were, what 8 the violations were. 9 those were the violations, but go ahead. 10 11 It was obvious. MS. MOORE: It was obvious and it was It was obvious based on my reaction to what It is not news to you right now that Okay. I'm going to go through each one. Phase two, Your Honor, you are referring to a slide where 12 we were -- she had Phase One and Phase Two up. 13 that was taken down once the Court interjected, and I will note 14 the Defendant did not object on that. 15 THE COURT: 16 the Defendant didn't object. 17 experienced trial lawyer. 18 19 20 MS. MOORE: Immediately Oh, yeah, thank you for mentioning that My sense is that you are an Yes, Your Honor. I have been practicing for over 20 years. THE COURT: So you know that when the other side is 21 making an opening statement, the last thing you want to do is 22 stand up and interrupt and object. 23 the things you do when the other side is saying something 24 inappropriate is you look at the judge with an alarmed look on 25 your face and hope that the judge steps in so that you don't And so you know that one of PROCEEDINGS 1 have to be perceived as interrupting opposing counsel's opening 2 statement, and that is precisely what Monsanto's lawyers did 3 over and over again. 4 you, but it was so obvious that these were blatant violations 5 that I was -- that I was compelled to step in and interrupt. 6 7 MS. MOORE: They were uncomfortable with interrupting I didn't realize that there were those exchanges, Your Honor. 8 On Phase Two she immediately took down that slide. 9 of that slide on Phase Two was read to the jury, Your Honor. 10 11 None of those bullets points were read. Number two, I will say -­ 12 THE COURT: Hold on a second. 13 M S . MOORE: Okay. 14 15 16 None Hold on a second. Your Honor, if I may just get the transcript and follow along with you? THE COURT: Of course. So you showed a slide to the 17 jury, and I stepped in and required you to take it down. 18 Mr. Stekloff actually objected to that. 19 MS. MOORE: Okay. I apologize. 20 THE COURT: And so you are right, she didn't read it 21 because I, at that point, was on high alert based on the 22 misconduct that Ms. Wagstaff had already engaged in earlier in 23 her opening statement; and I jumped in to prevent her from 24 actually reading the slide to the jury although she showed the 25 slide to the jury. PROCEEDINGS 1 MS. MOORE: 2 your instruction, Your Honor. 3 instruction on that. Well, it was immediately taken down per She complied with your 4 THE COURT: Are you -- you think she gets credit -­ 5 MS. MOORE: I'm not saying -­ 6 THE COURT: -- for my saying take that slide down? 7 MS. MOORE: -- that, Your Honor. 8 I'm just stating the facts. 9 I'm not saying that. And I think the conduct you are referring to before 10 Phase Two is when she tried to explain to the jury how 11 Mr. Hardeman found out that he had non-Hodgkin's lymphoma, and 12 I understand what the Court has said about that. 13 I will just note that this is an unusual trial in the 14 sense that it is phased, and there has been several times by 15 both sides, and this Court, acknowledging, trying to figure out 16 what will come in in Phase One and what will come in in 17 Phase Two. 18 all the damages in in Phase One and the Court said no, damages 19 are not coming in. 20 In fact, the Defendant at one point wanted to get THE COURT: So there are a lot of times -­ The difference is that there are many 21 things that you have made clear that you desperately want to be 22 part of Phase One, and I have made very clear that they cannot 23 be part of Phase One, and yet Ms. Wagstaff made them part of 24 Phase One in her opening statement. 25 MS. MOORE: Well, let me go through -- PROCEEDINGS 1 2 3 THE COURT: And that is -- that is relevant to intent. That is relevant to bad faith. The fact that the Plaintiffs have made so clear that they 4 are so desperate to get this information into Phase One is 5 evidence that it was not just a mistake that they happen to put 6 this information in their opening statements. 7 MS. MOORE: Your Honor, I did not say we were 8 desperate. What I was trying to explain is that the way the 9 trial is set up is unusual. And I think, Your Honor, that you 10 recognize that after the bifurcation order came out; that this 11 is a unique situation where you limit a trial when we are 12 talking about product case like this to only science in the 13 first phase, and it has created confusion on both sides of the 14 aisle. 15 THE COURT: You know, and as I said, there are some 16 areas where it may be difficult to draw the line; but these 17 ones don't even come close to the line. 18 anybody -- you don't have to be in law school to know which 19 side of the line this falls on. 20 graduated from high school to figure out what falls on the 21 wrong side of the line. 22 the evidence is that this was intentional. 23 premeditated. 24 25 MS. MOORE: "premeditated." I mean, this -­ You don't have to have The only conclusion objectively from It was Your Honor, I would disagree with the word I mean, that is making it sound criminal, and PROCEEDINGS 1 it is not. 2 was any recklessness on the part -- I'm sorry, that there was 3 any intent on the part of Ms. Wagstaff. 4 Circuit has clearly stated, recklessness is not bad faith. 5 may disagree with her style. 6 presented her opening statement to the jury, but recklessness 7 does not equate to bad faith under the Ninth Circuit, 8 Your Honor. 9 10 I mean, there is absolutely no evidence that there THE COURT: And as the Ninth You You may disagree with the way she I don't see a shred of evidence that this was merely reckless. 11 MS. MOORE: Well, let me go through -­ 12 THE COURT: All arrows point to this being bad faith, 13 including, by the way, Ms. Wagstaff's reactions to the 14 objections. 15 herself for the fact that I was going to come down hard on her. 16 And she was -- to her credit perhaps, she was very steely in 17 her response to my coming down hard on her because she knew it 18 was coming and she braced herself for that. She was clearly ready for it. MS. MOORE: 19 She clearly braced Well, I -- Your Honor, I don't think that 20 is not fair; and that is based on assumptions on the Court's 21 part. 22 23 24 25 THE COURT: That is based on my observations of body language and facial expressions. MS. WAGSTAFF: Well, actually, Your Honor, I would just like to talk about that for just one moment. PROCEEDINGS 1 The fact that I can handle you coming down in front of a 2 jury should not be used against me. 3 front of you now for, what, three years. 4 communication back and forth. 5 for anything that you had to say to me -- and that you 6 interrupted my opening statement a few times in a row -- should 7 not be used against me. 8 you are attacking me, it should not be used against me. THE COURT: 9 I have been coming in So I'm used to this And the fact that I was prepared The fact that I have composure when I was not attacking you. 10 the rules, the pretrial rules. 11 MS. WAGSTAFF: I was enforcing You just said the fact that I was able 12 to compose myself is evidence of intent, and that is just not 13 fair. 14 THE COURT: Okay. Anything else? 15 MS. MOORE: Yes, Your Honor. If I can continue to go 16 on, with regard to point three that you raised, I would draw 17 the Court's attention to motion in limine number 16. 18 order, pretrial order 81, this is on page 7. Your 19 THE COURT: Wait. Hold on just one second. 20 M S . MOORE: Okay. 21 THE COURT: Okay. 22 MS. MOORE: And as the Court will recall, after we had 23 the bifurcation order, the parties asked for clarification as 24 to how the trial would be -- would be brought before the jury, 25 and especially given that Plaintiff, you know, we represent PROCEEDINGS 1 Mr. Hardeman, how we are going to present his case to the jury 2 as we have the burden of proof. And so the Court entertained 3 each side presenting evidence to determine whether that will 4 come in in Phase One. 5 One of the pieces of evidence that we asked to consider 6 whether it would come in in Phase One is the Knezevich & Hogan 7 mouse study of 1983. 8 during Phase One surrounding the re-review of the 1983 9 Knezevich & Hogan mouse study, including Monsanto's role in And the Court ordered that evidence 10 pushing for a re-evaluation of the tumor slides based on its 11 concern about the regulatory consequences of that study is 12 granted. And I will continue to read on. 13 THE COURT: Can you read the next two sentences? 14 MS. MOORE: Absolutely, Your Honor. 15 It appears the Plaintiffs will be able to convey this 16 information, and then in parentheses, through evidence, 17 stipulation or some combination of the two, end parentheses, 18 without introducing the February 22nd, 1985 memo from Lyle 19 Gingerich or other similar internal documents which are likely 20 to waste time and distract the jury under Rule 403. 21 And then you continue by saying, The parties are ordered 22 to confer on this before the start of trial. 23 are unable to convey the relevant information without this 24 document, the Court will re-evaluate whether they might be 25 introduced. If the Plaintiffs PROCEEDINGS 1 2 3 4 5 At no point did Ms. Wagstaff violate this rule intentionally. If there was any confusion -­ THE COURT: She created a slide, or somebody created a slide, that she presented to the jury quoting from this memo. MS. MOORE: She was quoting from the deposition of 6 Dr. Reeves, Your Honor. And that was the corporate 7 representative deposition that was taken about a month ago. 8 THE COURT: But -- but the quote was from the memo. 9 MS. MOORE: There was examination by Mr. Wisner to 10 Dr. Reeves about that -- and I'm not trying to be cute, 11 Your Honor. I'm saying that that -- she was trying to explain 12 that study. And when you take in conjunction when I started 13 this -- and I understand you didn't want me to talk about 14 this -- when you read Monsanto 11.1, the magic tumor, in 15 conjunction with Plaintiff's motion in limine number 16, it was 16 our understanding, Ms. Wagstaff's understanding, that the mouse 17 study could be discussed during opening statement. 18 not in any way intent -­ 19 20 THE COURT: This was The mouse study could be, yeah. not what -- that's not the problem. 21 MS. MOORE: Well -­ 22 THE COURT: I mean, you keep arguing against 23 24 25 That's allegations of misconduct that I'm not making. MS. MOORE: want to add to that? There was no -- there was no -- do you PROCEEDINGS 1 2 MS. WAGSTAFF: Yeah, I would like to add to this since it seems to be my intent right now that we are talking about. 3 THE COURT: Yes. Although, I do want to say that you 4 didn't create these slides on your own. 5 this opening statement on your own, and we will get to that in 6 a minute, but go ahead. 7 MS. WAGSTAFF: You didn't prepare As lead trial counsel in this case, I 8 will take all the blame for anything that happens, and my team 9 should actually just be left alone, and it can all fall on me. 10 11 12 I'm fine with that. If you want to go one by one and we can talk about my intent on each one, we certainly can. 13 THE COURT: Go ahead. 14 MS. WAGSTAFF: Okay. The first one you identified was 15 the Phase Two slide. 16 I did not ever know that I couldn't mention what was going to 17 go on in Phase Two. 18 merge us presenting part of the evidence to the jury, that is 19 not fair. 20 thought that we could explain that there was going to be a 21 Phase Two and what was presented in Phase Two. 22 It was actually not my understanding, and We have made numerous motions that would So I thought -- I will just keep it to me -- I THE COURT: We spent a lot of time talking about how 23 the jury would be instructed about the way the trial was going 24 to go. 25 to -- the first phase is going to be about causation, and then We hashed out an instruction that said we are going PROCEEDINGS 1 2 we will get to other issues later. MS. WAGSTAFF: Well, so, if you look at my slide, I 3 just named what those other issues were. 4 reckless, but it was not intentional. 5 to the point where I should be sanctioned for it. 6 number one. 7 8 9 10 THE COURT: It was at most It was not intentional So that's Well, you are taking them one by one. we have to consider them all in totality; right? MS. WAGSTAFF: THE COURT: Well, the trial -­ Perhaps that was -- if that were your only 11 transgression, I would say, yeah, that was probably just 12 reckless. 13 But MS. WAGSTAFF: Okay. So the next one, I have never 14 been in a trial before, Your Honor, where I wasn't allowed to 15 introduce the Plaintiff and give some color to who we are 16 actually here for. 17 line of upsetting you to the manner that I did, or anywhere 18 near the line of crossing -­ 19 THE COURT: 20 I didn't know that I was anywhere near the Again, it is not about upsetting me. is about disregarding the rules. 21 MS. WAGSTAFF: 22 THE COURT: 23 It And -­ And I told you in the middle of that to move on and you didn't. 24 MS. WAGSTAFF: 25 THE COURT: You continued to -­ Well -- -- go on about stuff that is not relevant PROCEEDINGS 1 2 to Phase One. MS. WAGSTAFF: Actually, what I think I did -- and we 3 can look at the transcript. 4 got to his NHL diagnosis, which is relevant to Phase One. 5 fact that he has NHL is relevant to Phase One. 6 at the transcript if you would like. 7 8 9 10 11 THE COURT: I think what I did was I clearly The So we can look You have this long speech about needles going -- coming in and out of his neck. MS. WAGSTAFF: Well, let's look after your objection and see how -- after you -- do you know what page that is on? THE COURT: Yeah, it is on page 319: "Ms. Wagstaff, 12 can you limit the opening statement to the topic that Phase One 13 is about as we have discussed?" 14 And by the way, you started to testify during opening 15 statement about a conversation that you had with either 16 M r . Hardeman or Mrs. Hardeman. 17 MS. WAGSTAFF: I mean -- That is actually not what happened. 18 was about a conversation I had with Dr. Ritz, and I very 19 clearly moved on. So I think after you -­ 20 THE COURT: 21 MS. WAGSTAFF: Told you to move on. I think I did. I think I went straight 22 to his diagnosis, and then I moved on. 23 was diagnosed with NHL I think is actually relevant to 24 Phase One. 25 THE COURT: It And the fact that he He goes to the ENT doctor and he starts PROCEEDINGS 1 getting needles drawn, and then starts getting needles poked in 2 there. 3 want to figure out what is going on in his neck. 4 drawn. 5 come back and the tissue is dead, so he has to go back in and 6 get drawn again. 7 Biopsies taken. They want to pull out tissue. He has to wait for the results. They Blood is Finally the results Get needles poked back into his neck again." MS. MOORE: Your Honor, that is the testimony that is 8 coming into Phase One from Dr. Turley. And he may not use the 9 word "poked," but all the testimony about biopsies, that has 10 already been admitted -- or not admitted -- but approved by the 11 Court that is going to be played in Phase One. 12 that that was designated for Dr. Turley. 13 14 15 THE COURT: That he was diagnosed. We submitted We did a biopsy and we diagnosed him with NHL. MS. MOORE: It was two -- it was two biopsies. The 16 testimony that the first biopsy came back that the cell -- the 17 tissue was necrotic. 18 him come back and do another biopsy that then went to 19 pathology, and then they determined it was NHL. 20 the Turley designation that was approved to play for the jury. It was dead tissue, so they had to have That is all in 21 THE COURT: Okay. 22 MS. MOORE: And then -- so if I can go back, and then 23 if there is something we need from Ms. Wagstaff, she can 24 interject on that. 25 The next one was IARC. And we understand from Monsanto's PROCEEDINGS 1 motion in limine number 1 your order on that. 2 publish the Monograph, which was the order. 3 Monograph itself will not be admitted as an exhibit. 4 not put that up in the opening statement. 5 And we did not However, the So we did You did -- we thought that under the order, in the second 6 paragraph it says -- we talked about this yesterday -­ 7 witnesses who participate in IARC may testify that they are 8 members of IARC and may further explain -- it goes on from 9 there -- the membership supports their credibility but they 10 must limit their scientific testimony to their own scientific 11 conclusions. 12 THE COURT: How do these slides relate to that? 13 mean, I don't understand how you can argue that these two 14 slides about IARC fit in with it. 15 MS. MOORE: I Well, the first slide, Your Honor, just 16 simply introduces who IARC is to the jury, which I don't think 17 there is anything wrong with saying what IARC stands for. 18 THE COURT: What suggested to you that -- that it 19 would be relevant in Phase One that Monsanto sent an observer 20 and participated in the program? 21 order suggested to you that that would be relevant? 22 23 24 25 MS. MOORE: What aspect of the pretrial Well, there is not anything in the pretrial order that says that that is not. THE COURT: It explains what the testimony is going to be limited to, the fact that the IARC's conclusion and your PROCEEDINGS 1 experts establishing that they were stating that they were 2 members of the IARC to bolster their conclusions. 3 MS. MOORE: The fact that Monsanto also participated 4 and observed the IARC, that to me -- under the reading of the 5 order and -- you know, again, this is not anything intentional. 6 If anything, that would be that we needed to have 7 clarification. 8 Again, that is not showing an intent. 9 Maybe we should have sought clarification. So on the IARC stuff, again, it was -- there was no 10 violation there from our perspective. 11 introduce IARC. 12 It was very limited to And then with respect to the EPA, Your Honor, on the EPA 13 we had moved to exclude two specific documents of the EPA, and 14 that was Plaintiff's motion in limine number 5, which was 15 granted in part. 16 this is on page 6 of the MIL order -- it is the second sentence 17 of paragraph 5: 18 approval is admissible at both phases but the documents 19 themselves are not." 20 And that's where you say -- Your Honor, and "As with the IARC Monograph, the fact of EPA We did not show any EPA documents. We did not show any 21 IARC documents in the opening statement, but we also did not 22 think that -­ 23 THE COURT: Wait a minute. 24 MS. MOORE: Do you want me to continue with the -- 25 THE COURT: Well, I have a question about that. PROCEEDINGS 1 M S . MOORE: Okay. 2 THE COURT: Because I'm looking at the -­ 3 MS. MOORE: I think it is after the IARC, Your Honor. 4 THE COURT: What is that? 5 MS. MOORE: I think it is after the IARC part. 6 THE COURT: Yeah. 7 8 9 I mean, I'm looking at the slide on Knezevich & Hogan which quotes the EPA. MS. MOORE: Yes, Your Honor. And if you will recall, in your order granting us to be able to present evidence of 10 that study, it continued by saying "including Monsanto's role 11 in pushing for re-evaluation." 12 They were pushing the EPA. 13 Well, who are they pushing? So I don't think that's a violation of that order. 14 have to be able to say who they were pushing. 15 incomplete and causes jury confusion. 16 We Otherwise, it is I will tell you, Your Honor, all this -- as you may 17 recall, back in late December when we presented a joint case 18 management conference statement to the Court, Plaintiff's 19 position was let's exchange slides from the opening PowerPoint. 20 That's what we wanted to do. 21 the Court agreed with that; and so the parties were not 22 directed to exchange slides. 23 Monsanto refused to do that, and In fact, I even asked to exchange slides last night and 24 Monsanto refused to give me their slides that they published to 25 the jury yesterday. So they won't give those to us. PROCEEDINGS 1 So this could have all been avoided with a simple exchange 2 of the PowerPoint ahead of time, as we had offered in December. 3 We did exchange -- 4 5 THE COURT: But not exchanging is not permission to violate pretrial rulings. MS. MOORE: 6 7 I'm not saying that, Your Honor. We did exchange exhibits, and there was one exhibit that 8 they objected to. 9 were exhibits that we objected to that they removed beforehand. 10 THE COURT: We immediately removed that slide. There You didn't immediately remove that slide. 11 It was raised pretrial and I said, of course, you can't present 12 that slide. 13 MS. MOORE: Well -­ 14 THE COURT: I mean, raised before -- raised the 15 morning of opening statement. And I said, of course that is 16 not relevant to Phase -­ 17 MS. MOORE: 18 Right, and we removed it. Just like we asked for them to remove certain slides, too, 19 they removed them. And, you know, in fact, one of the slides 20 we had asked -- they had said they were going to show medical 21 records of Mr. Hardeman. 22 opening, tell us which records you are going to show to the 23 jury. 24 records. 25 were going to show. And we asked them the night before And they sent us an e-mail. They didn't send us the They sent us the e-mail and said which records they We asked to confirm they were redacted, PROCEEDINGS 1 and we were told they were. 2 redacted, as the Court is aware. 3 And as it turns out, they were not Asking to exchange the PowerPoint shows that we were not 4 trying -- we didn't have any kind of -- an intent to violate 5 any kind of order. 6 And, unfortunately, that was not what had happened because 7 Monsanto had refused that. 8 9 10 THE COURT: We wanted everything to be out in the open. Do you want to try one more time to explain how it is appropriate to include a quote from the 1985 memo -­ 11 MS. MOORE: Sure, Your Honor. 12 THE COURT: -- in the slides in light of the pretrial MS. MOORE: I will, Your Honor. 13 14 15 ruling? It was not quoted from the memo. It was quoted from 16 Dr. Reeves's deposition. 17 you have acknowledged, we have been moving at an incredibly 18 fast speed over the last two months, but particularly so in the 19 last week when we had the order -- this is no way to say 20 anything about the Court. 21 to you as quickly as we can. 22 then we got the summary judgment denial on Sunday. 23 THE COURT: And I will just say, Your Honor, as I know we are all getting everything We got the ruling last week, and Yeah, but I'm not talking about the 24 summary judgment denial. 25 limine that were filed by both sides that we spent hours and I'm talking about the motions in PROCEEDINGS 1 hours arguing about and a ruling in which I issued in plenty of 2 time for you to absorb and incorporate into your opening 3 statement. 4 MS. MOORE: Right. And that was the order that was 5 issued on February 18th, Your Honor. 6 were going to be doing here in Phase One based on our 7 understanding on that order. 8 shows that there may be some recklessness, but there is no 9 evidence at all of an intent on the part of Ms. Wagstaff to 10 11 And we did revise what we At a minimum, Your Honor, it violate this Court's order. And then the last thing you mentioned, EPA analysis and 12 you talked about political shifts, Your Honor. 13 where that probably came from. 14 being cross-examined by Monsanto's counsel, they asked a 15 question and they prefaced it with "That was during the Obama 16 Administration EPA, wasn't it?" 17 I will tell you Last week when Dr. Portier was So that, I believe, is where that bullet point came from 18 on the slide. 19 make an issue about the political nature of the EPA. 20 focus on Obama -- President Obama -- excuse me, Your Honor -­ 21 because of where this trial is located -­ 22 It was anticipating that Monsanto was going to THE COURT: And to And maybe that is relevant to Phase Two. 23 That is totally non-responsive to the -- to the -- to the 24 misconduct that occurred here because this is about including 25 that in Phase One, not about including that. It may be PROCEEDINGS 1 appropriate to talk about the EPA being vulnerable to political 2 shifts in Phase Two. 3 it, it would be subject to a 403 ruling, but it may be 4 appropriate. 5 see how anybody could not have understood that. 6 Probably if you spend too much time on Clearly inappropriate for Phase One, and I don't MS. MOORE: Well -- and, Your Honor -- and, 7 Your Honor, that was never actually said to the jury. 8 on -- I will acknowledge it was on the slide, but it was not 9 said out loud to the jury. 10 or prejudice there. 11 THE COURT: It was So I don't think there is any harm Well, that may get to whether there needs 12 to be some sort of curative instruction or whether you opened 13 the door, but it doesn't really get to the question of whether 14 Ms. Wagstaff and possibly her team engaged in bad faith 15 misconduct. MS. MOORE: 16 And, Your Honor, and then the last thing 17 you raised the McDuffie and Eriksson. 18 understood, but I just want to clarify that the sidebar that we 19 had yesterday where you acknowledged it was a difficult line to 20 dance, and then I think you also said today after Dr. Ritz's 21 testimony that you were reconsidering some of that because of 22 her testimony today -- I mean, that is a difficult issue to 23 figure out how do we say it because that's what the studies 24 say. 25 than two days and more than ten days, and then the percentages. And I think I Those are the numbers the epidemiologists use on the more PROCEEDINGS 1 So I -­ 2 THE COURT: I agree that that's a difficult issue. 3 think what Ms. Wagstaff said about them clearly crossed the 4 line. 5 clearly crossed the line. 6 It's a difficult line to draw. I What Ms. Wagstaff said If you put a gun to my head and forced me to bet, I would 7 bet that that's bad faith also, but I'm willing to assume for 8 purposes of this discussion that that was not an act of bad 9 faith because it's kind of a difficult issue. MS. MOORE: 10 11 Okay. Thank you, Your Honor. Again, going back to a phrase Your Honor used on the 12 totality, I've gone through each of these individually. 13 understand that the Court said on the first one in isolation 14 would not amount to bad faith and that the last one would not 15 amount to bad faith in isolation. 16 I The other ones, whether it's in isolation or totality, 17 considering those, again, each time Ms. Wagstaff complied. 18 moved on. 19 stated to the jury. She That some of this was not even read to jury or There is absolutely no evidence of intent. 20 And as I stated, Your Honor, the Ninth Circuit is very 21 clear, and this is from the Keegan Management case, and the 22 cite is -- oh, let's see -- 78 F.3d 431, is that recklessness 23 is not bad faith. 24 THE COURT: I understand that. 25 MS. MOORE: And given that, you know, we would, on PROCEEDINGS 1 behalf of Mr. Hardeman, who has made the trip down today just 2 to be here for the show cause as the Court ordered him to be, 3 and that given that the Christian versus Mattel case says that 4 it's abuse of discretion to award Rule 11 sanctions for conduct 5 during opening statements, we would ask the Court, we would 6 implore the Court not to issue sanctions against Ms. Wagstaff 7 because of what she may have had on a slide or may have said at 8 times during her opening statement. 9 10 THE COURT: Okay. Let me ask you a couple additional questions. 11 M S . MOORE: Sure. 12 THE COURT: Number one is on the amount of the 13 sanction. 14 this was bad faith conduct, you know, I'm thinking back to -­ 15 there was only one other time that I had to sanction a lawyer 16 during trial for bad faith conduct, and it was a fellow by the 17 name of Gilbert Purcell. 18 an asbestos plaintiffs' lawyer, and I sanctioned him $500. 19 Assuming I disagree with you and I conclude that I don't know if you know him. And I'm thinking about his misconduct. He's I mean, 20 Ms. Wagstaff's misconduct, I think, was far more egregious than 21 Mr. Purcell's. 22 misconduct. I mean, Mr. Purcell's was one act of 23 What do you think is the appropriate -- assuming I 24 disagree with you, do you have any argument about what is the 25 upper end in terms of the amount of money that I should PROCEEDINGS 1 2 sanction her? MS. MOORE: Well, Your Honor, it's my position she 3 shouldn't be sanctioned at all. Awarding monetary sanctions 4 for something that's said or done during opening statement is, 5 in my view, completely inappropriate, especially given the 6 unique nature of this trial and especially given the commitment 7 that Ms. Wagstaff has to her client and to her entire team. 8 think it is extremely prejudicial to the plaintiff for that to 9 be imposed upon her, especially given that the defendant also 10 had a slide that was excluded, had references to excluded 11 testimony, and there was not the same level of admonition. 12 THE COURT: I Are you referring to -- well, first of 13 all, I interrupted the defendant's opening statement on my own 14 to put a stop to the use of prior deposition testimony by 15 experts; and, number two, I told them to take the slide down 16 when it included some private medical information about 17 M r . Hardeman. 18 19 Surely you are not suggesting that that was bad faith on the part of the defendant. 20 MS. MOORE: I don't think either side committed bad 21 faith yesterday, Your Honor. 22 defense had slides that the Court had specifically excluded -­ 23 had references to evidence the Court specifically excluded in 24 Plaintiffs' Motions in Limine Number 6, 11, and 12, and we had 25 asked to see those ahead of time. I'm merely pointing out that the That was refused by PROCEEDINGS 1 Monsanto. 2 We were assured that there would be no references to the 3 excluded materials evidence, and it was still there. 4 objected and, yes, Your Honor, you told them to take down the 5 slide and it was taken down. 6 imposed by any means on Mr. Stekloff for that, just like I 7 don't think sanctions should be imposed on Ms. Wagstaff. 8 9 10 We I don't think sanctions should be I mean, this is -- sometimes you have to make good faith judgment calls on what to do and how to present your case, and lawyers need leeway to be trial lawyers. 11 And Ms. Wagstaff is, in my view, one of the finest trial 12 lawyers in this country and is well-respected, especially among 13 the women's bar. 14 her. 15 16 17 18 19 20 Women lawyers all over the country respect And -­ THE COURT: Are you suggesting I should apply a different standard because she's a member -­ MS. MOORE: No, not at all, Your Honor. I'm just saying from my personal experience and what I have observed. And that -- no, I don't think you should apply a different 21 standard at all. 22 standard for defense and for the plaintiff, and I was pointing 23 out that there were errors or there were, you know, mistakes or 24 confusion on both sides of the aisle, and that this does not 25 warrant the level of bad faith. In fact, what I'm asking is to apply the same PROCEEDINGS 1 And it absolutely was not intentional or malfeasance on 2 the part of Ms. Wagstaff to defy this Court in any way, shape, 3 or form, and we would ask that sanctions not be awarded, and 4 that our response to the show cause be considered by the Court 5 in its totality and that sanctions not be awarded. THE COURT: 6 One last question, which is, I mean, 7 obviously Ms. Wagstaff didn't prepare this opening statement on 8 her own. 9 slides were put together by the team, and so the team of some 10 11 Obviously she practiced it in front of the team. The unknown number of lawyers was complicit in this. Why -- I appreciate Ms. Wagstaff falling on her sword and 12 saying, "I'm the lead trial lawyer and if anybody should be 13 sanctioned, it should be me, although I don't agree that 14 anybody should be sanctioned," I appreciate that but it's not 15 really responsive because it seems to me that every lawyer on 16 the team is potentially responsible for the deliberate 17 premeditated misconduct that occurred during the opening 18 statement. 19 MS. MOORE: And, Your Honor, again, I would disagree 20 with your adjectives there. 21 "complicit," and I don't think that's a fair way to describe 22 the way that attorneys prepare their opening statements. 23 You used "deliberative" and Again, we're trying to find the best way in this unusual 24 circumstance where we can only talk about science in Phase I 25 and still try to represent Mr. Hardeman to the best of our PROCEEDINGS 1 abilities. 2 why we're here. 3 take that very seriously, Your Honor. 4 5 Because at the end of the day, Your Honor, that's Our job is to represent Mr. Hardeman and we THE COURT: Your job is to represent Mr. Hardeman consistent with the Court's rulings -­ 6 MS. MOORE: Absolutely, Your Honor. 7 THE COURT: -- in how the trial is going to go. Your 8 job is not to violate the Court's rulings because you think 9 it's more important for Mr. Hardeman to win. 10 11 12 MS. MOORE: That's not what I said, Your Honor. That's not what I'm implying whatsoever. And, Your Honor, we take this matter very seriously. I 13 devoted several hours yesterday to this instead of preparing 14 for the trial today. 15 And I will just say that with respect to the team, we have 16 an amazing team representing Mr. Hardeman and to start the 17 trial off is very prejudicial to this team. 18 THE COURT: To start the trial off? 19 MS. MOORE: To start the trial off and award 20 21 22 sanctions. THE COURT: Okay. about this? 23 MR. STEKLOFF: 24 THE COURT: 25 Does Monsanto want to say anything something to you. No, Your Honor. Okay. Mr. Hardeman, I would like to say PROCEEDINGS 1 MR. HARDEMAN: 2 THE COURT: Yes, Your Honor. Sometimes lawyers forget that their client 3 is in charge. 4 believe that you are approaching this case in bad faith in any 5 way, but you are in charge of this case and you have hired 6 these lawyers and ultimately you are responsible for what these 7 lawyers do in this courtroom. 8 9 It's their client's case. I have no reason to And it seems to me that you have a decision to make at this point. Either you can tell your lawyers to continue to 10 conduct themselves the way they conducted themselves yesterday 11 or you can tell them to play it straight. 12 for you. You are in charge. 13 MR. HARDEMAN: 14 THE COURT: That is a decision Okay? Yes, Your Honor. And I have the authority to dismiss your 15 case with prejudice if your lawyers continue to engage in 16 misconduct during this trial. 17 not just a question of sanctioning the lawyers. 18 a question of taking money out of the lawyers' pockets. 19 sanctions don't work, if the sanctions don't work, I have the 20 authority to dismiss your case, which means you lose. 21 MR. HARDEMAN: 22 THE COURT: 23 It's not just If the I understand, Your Honor. Okay. So it really is up to you how your lawyers conduct themselves for the rest of this trial. 24 25 So I want you to know that it's MR. HARDEMAN: to them. I understand, Your Honor. I will talk PROCEEDINGS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: Okay. Thank you. Anything else to discuss before we proceed tomorrow? MR. STEKLOFF: Your Honor, on a completely unrelated issue, can we approach the sidebar just briefly? THE COURT: Yes. (Pages 779 through 781 were placed under seal by Order of the Court and bound separately.) PROCEEDINGS 1 (The following proceedings were heard in open court:) 2 THE COURT: So my job is to go back and look at the 3 Portier direct examination, and I'm still waiting for the 4 cross; is that right, Mr. Imbroscio? 5 MS. MOORE: 6 MR. IMBROSCIO: 7 I think we have an update, Your Honor. Mr. Wisner upstairs. 8 THE COURT: 9 MR. IMBROSCIO: 10 We just spent a couple hours with Was it fun? More than you can imagine, Your Honor. Our staff are working to sort of document what was said 11 and we can try to get something to you as quickly as we humanly 12 can tonight. 13 THE COURT: 14 MR. IMBROSCIO: 15 Okay. It will be the entire examination days one and two. THE COURT: 16 So I'll get to work on the Portier direct. 17 I'll turn to the Portier cross as soon as it comes in. I'll 18 get you the Portier direct as soon as it's done regardless of 19 whether I've received the cross with the understanding that the 20 rulings are tentative. 21 M S . MOORE: Okay. 22 THE COURT: And then I'll turn to Reeves after that; 24 MS. MOORE: Yes, Your Honor. 25 THE COURT: Okay. 23 right? PROCEEDINGS 1 MS. MOORE: That sounds good. 2 THE COURT: Okay. Thank you, Your Honor. Thank you. 3 (Proceedings adjourned at 3:56 p.m.) 4 -- oOo-- 5 6 7 CERTIFICATE OF REPORTERS 8 9 I certify that the foregoing is a correct transcript from the record of proceedings in the above-entitled matter. 10 11 DATE: Tuesday, February 26, 2019 12 13 14 15 16 Jo Ann Bryce, CSR No. 3321, RMR, CRR, FCRR U.S. Court Reporter 17 18 19 20 21 22 23 24 25 Marla F. Knox, RPR, CRR U.S. Court Reporter