The “I didn't know” Defense Didn't Help This Expert Witness

Using the “I didn't know” defense may work for a traffic ticket, but it didn't save an expert witness on the stand — more likely it helped spike the case, a colossal loss with a $2-billion punitive damage award.

In the case of Pilliod v. Monsanto Co., No. RG17862702 Calif. Super., Alameda Co., Alberta and Alva Pilliod sued Monsanto, claiming that the company's Roundup herbicide caused their cancers: Alberta was diagnosed with an aggressive form of non-Hodgkin lymphoma concentrated in her brain in 2015, four years after her husband Alva was also diagnosed with non-Hodgkin lymphoma, which is spread around his body.

The plaintiffs' medical experts testified that it couldn't be coincidence that the couple, having lived together in the same environment for decades, using Roundup for 30 some years, developed very similar cancers within a few years of each other.

Monsanto retained Hematology and Oncology expert witness Dr. Celeste Bello who argued that Roundup does not cause cancer.

After Dr. Bello took the witness stand, Monsanto‘s attorney went through the expert's qualifications and interestingly brought up that this was Dr. Bello's first experience as an expert witness in a courtroom, perhaps to help soften the jury.

The plaintiff‘s attorney, Brent Wisner, seized on Dr. Bello's claim to have published more than 50 papers, asking her to clarify as her CV showed half as many. Dr. Bello testified that other academic work had been left off of her CV as she was “not the best at updating it.”

Wisner continued questioning her academic work, asking in particular if she had written any papers examining the causes of non-Hodgkin lymphoma. She admitted that she had not. After the admission, Wisner moved to have Dr. Bello‘s testimony excluded, arguing that she was not an expert in whether chemicals cause cancer, which was the purpose of her testimony. The judge denied the motion.

Dr. Bello disputed the numerous studies that the Pilliods‘ attorneys had presented linking the primary chemical compound in Roundup, glyphosate, to cancer. The only study she could support was a 2018 update to the EPA's Agricultural Health Study (the largest cohort study of the potential carcinogenic effects of glyphosate, funded by the National Cancer Institute and the National Institute of Environmental Health Sciences). The study found no significant association between glyphosate exposure and cancer.

Wisner asked Dr. Bello if she realized that the EPA's initial glyphosate study relied on fraudulent data from Industrial Biotest Laboratories (IBT) in the 1970s. Dr Bello replied that “I don't even know what IBT is.” (It was one of the first laboratory testing frauds, and the largest ever discovered by the EPA, making headlines in 1983).

Wisner went on to question Dr. Bello's admission in her deposition that two pesticides — DDT and malathion — cause non-Hodgkin lymphoma. Dr. Bello said that she misspoke and that, while the two pesticides increase the risk of developing cancer, neither were known to directly cause it. She went on to defend herself, saying that it was her first deposition and that “I didn't know that every word would be micro-analyzed.”

Wisner went on to ask Dr. Bello about the declaration in 2015 by the International Agency for Research on Cancer (IARC) that glyphosate was a probable human carcinogen, Dr. Bello responded that she had never heard of the agency. (It is an arm of the World Health Organization, famous for its tumor classification.)

Wisner acted surprised at Dr. Bello's response, noting that the IARC had looked at hundreds of studies on genotoxicity, and that “you looked at three.”

Long before this trial, Wisner was well known for his aggressive questioning, pilloring even seasoned experts. Putting a totally inexperienced expert on the stand, failing to check and verify her CV, seemingly failing to prepare her for cross-examination — all of it seems puzzling. The plaintiff‘s experts had their own defects to be sure, but the damage Dr. Bello's testimony caused to Monsanto's case cannot be understated: Wisner had asked the jury for $1 billion in punitive damages, they awarded $2 billion.

Dr. Bello‘s performance as an expert witness might be derided, but what of Monsanto's counsel? What were they thinking?