Plaintiff DeWayne “Lee” Johnson alleges that exposure to certain Monsanto glyphosate-based herbicides, including Roundup®, caused him to develop non-Hodgkin lymphoma (NHL). Courtesy photo

A San Francisco judge has tentatively struck the punitive damages in a $289 million verdict linking Monsanto Co.'s herbicide Roundup to cancer.

San Francisco Superior Court Judge Suzanne Bolanos, who oversaw the trial, heard arguments in court on Wednesday afternoon. In her tentative ruling, issued ahead of that hearing, the judge addressed Monsanto's two motions –- one for a new trial and one for judgment notwithstanding the verdict. She said the evidence wasn't there to award $250 million in punitive damages.

“The evidence to support the finding of malice or oppression must be clear and convincing,” she wrote. “Plaintiff failed to meet his burden of producing clear and convincing evidence of malice or oppression by Monsanto.”

A spokeswoman for Baum, Hedlund, Aristei & Goldman, whose partner R. Brent Wisner won the Aug. 10 verdict, declined to comment until after the hearing. Wisner represented plaintiff Dewayne “Lee” Johnson, a former school groundskeeper diagnosed with non-Hodgkin lymphoma in 2014 after using Monsanto's herbicide Ranger Pro.

Bayer, which now owns Monsanto, issued a statement: “Bayer agrees with the Court's tentative ruling which, if finalized by the court, would vacate the punitive damages awarded in the Johnson case. The court also is considering Monsanto's motions for a new trial, JNOV and reduction of the compensatory damages.”

Johnson's trial was one of about 150 cases coordinated in California state courts and the first of more than 4,000 lawsuits nationwide to go to trial.

In its motions, Monsanto argued that Johnson's lawyers had failed to provide evidence that glyphosate, the key ingredient in its herbicide products, caused Johnson's cancer. Monsanto also argued that the damages were excessive and unconstitutional, particularly since there was no evidence of malice to warrant punitive damages.

Plaintiffs responded with opposition papers on Oct. 1. However, Bolanos in her tentative noted that the plaintiff had failed to provide evidence that any Monsanto employee believed exposure to its glyphosate -based products would cause non-Hodgkin lymphoma. Monsanto's efforts to test its products, she writes, also are “not consistent with a finding of conscious disregard.”

“Given the state of medical and scientific knowledge, there is no clear and convincing evidence that Monsanto acted with malice or oppression,” Bolanos adds.

At trial, plaintiff's attorneys made much of the fact that Monsanto did not return Johnson's phone calls asking about cancer risks. But Bolanos said, even if that were true, “not returning a phone call does not rise to the level of despicable conduct.”

The tentative order told lawyers to be prepared at the hearing to discuss other arguments, including those addressing liability. The jury's award included $39.2 million in compensatory damages. That included $1 million a year for future noneconomic damages for a healthy adult's life span of 33 years – a calculation that Monsanto argued the jury should have based on Johnson's actual life expectancy of less than two years.

Monsanto also cited “significant prejudicial misconduct” by Wisner that “inflamed the jury.”