She also questioned whether the evidence in the first trial actually supported the jury's conclusion that Bayer was liable for the plaintiff's non-Hodgkins lymphoma based on his exposure to glyphosate, the key ingredient in Roundup.
But on Wednesday, San Francisco Superior Court Judge Suzanne Bolanos made a tentative ruling that could nix that $250 million punitive award and prompt a new trial.
In a written ruling, Bolanas said the plaintiff "presented no clear and convincing evidence of malice or oppression to support an award of punitive damages". 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.
A spokeswoman for Baum, Hedlund, Aristei & Goldman, whose partner R. Brent Wisner won the August 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.
In motions filed after the historic August verdict, Monsanto, urged the judge to strip the $250 million punitive portion of the damages, arguing that a new trial was justified. Attorneys for the company say Johnson failed to prove that Roundup or similar herbicides caused his lymphoma and presented no evidence that Monsanto executives were malicious in marketing Roundup.
What happens with Johnson's case doesn't just affect him - it could set a precedent for more than 4,000 similar cases awaiting trial in federal or state courts.
Plaintiffs responded with opposition papers on October 1. The judge also suggested she may reduce the rest of the award by $31 million if she upholds the jury's decision that Monsanto's weed-killer caused DeWayne Johnson's cancer.
Bolanos tentatively granted Monsanto's request for a JNOV - a judgment notwithstanding verdict.
The tentative order told lawyers to be prepared at the hearing to discuss other arguments, including those addressing liability.
The plaintiff, Dewayne Johnson, was the first among 8,700 people in the US who have made similar cancer claims against Monsanto, which is now owned by Germany's Bayer.
Litzenburg said Johnson is still expecting to get $39 million in compensatory damages, though he "hasn't seen a dime" of that yet because that award is being appealed by Monsanto.