Strong closing rebuttals often combine memorable rhetorical devices with a counterpunch that both undercuts a defense’s argument and bolsters the plaintiff’s own case. In a groundbreaking trial against Monsanto over the cancer allegedly caused by the agrichemical giant’s weed killer, Brent Wisner used a strong rhetorical hook as part of a closing rebuttal that helped secure a nine-figure verdict for his client.
DeWayne Johnson, a former groundskeeper, claims his exposure to Monsanto’s Roundup and Ranger Pro weed killer caused his non-Hodgkin’s lymphoma.
At issue in the case, the first of its kind to go to trial against Monsanto, was whether glyphosate, in combination with other ingredients in the weed killer, was carcinogenic. During closings, the defense highlighted evidence it said proved there was no link between its weed killer and cancer.
“What we just saw was a fantastic use of the [ellipses],” Wisner, of Baum, Hedlund, Aristei & Goldman, told jurors as he began his rebuttal. “Almost every one of the quotes used by [the defense attorney] had an ellipses, and the dot-dot-dot tells the whole story.”
“The [defense] theory is that Mr. Johnson’s treating doctors, right, all told him it was not Roundup that caused his cancer,” Wisner said. “Ironically, they didn’t call any of those treating doctors to the stand, even though they’re just down the street. And the reason why they didn’t is because the evidence actually shows that they didn’t know if it caused cancer. Because they’d never researched the issue.”
Wisner argued one of the “worst” use of ellipses during the defense closing served to twist the conclusions of plaintiff’s expert oncologist, Dr. Chadhi Nabhan, who linked the weed killer to Johnson’s cancer. “They go, ‘Even Dr. Nabhan said that [the treating doctors] said it wouldn’t cause it,’ and they gave a quote and then there was a dot-dot-dot,” Wisner said, after he read the portion of Nabhan’s testimony highlighted by the defense.
“That’s what Mr. Lombardi chose to say to you.” Wisner told the jurors. But, Wisner said the defense’s ellipses hid the true meaning of Nabhan’s testimony. “But what’s after the dot?” Wisner asked, before reading Nabhan’s testimony that the ellipses had omitted: “’Again, none of them really reviewed the epidemiological literature. As I told you before, even before I reviewed the literature myself in the Spring of 2016, I was not aware of the association,’” Wisner read from Nabhan’s more complete testimony. “’But, after reviewing the literature, I became aware. So I don’t know if they actually had a chance to review all of the literature that we went through today,’ OK—and then [Nabhan] got cut off by Mr. Lombardi,” Wisner said.
“That’s the dot. That’s the story that’s not being told to you,” Wisner added.
Wisner said the cherry-picking of testimony was just one example of misleading defense tactics, and he used that ellipses example to springboard to other defense points he argued failed to counter plaintiff’s evidence linking the weed killer to cancer.
“Don’t forget the ellipses,” Wisner urged jurors.
Jurors carried that admonition into deliberations before handing down a $289 million verdict against Monsanto.
Email Arlin Crisco at acrisco@cvn.com
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