A California judge reduced a $2 billion Roundup verdict to a fraction of that amount on Thursday, but it's Monsanto who is gearing up for an appeal.

Why? Because the judge refused to toss out the verdict altogether and, although she reduced the award to $86.7 million, she also found there was “clear and convincing evidence” that Monsanto's actions were “reprehensible” and showed a “conscious disregard for health.” That finding, Alameda County Superior Court Judge Winifred Smith wrote, sufficiently warranted punitive damages, which she calculated at four times the compensatory damages.

In reaching such a conclusion, Smith rejected Monsanto's argument that the Roundup case was akin to the $417 million talcum powder verdict against Johnson & Johnson that a California Court of Appeal dismissed earlier this month. In that case, Johnson & Johnson acknowledged the scientific studies on whether its baby powder caused ovarian cancer and “drew a conclusion from that science,” Smith wrote.

“In contrast to actions of the defendant in J&J to question the science in public and to influence or persuade public agencies on regulatory decisions, in this case there is evidence that Monsanto made efforts to impede, discourage, or distort the underlying scientific inquiry,” she wrote.

Monsanto parent company Bayer AG, in a statement Thursday, called the reduced award a “step in the right direction” but immediately vowed to appeal, citing the July 9 decision by the Second District Court of Appeal.

That ruling, Bayer wrote, “which found that a dispute over the science does not meet the clear and convincing standard required for a punitive award, supports the company's position that there is no basis to award punitive damages in this case.”

Bayer's next move would be before the First District Court of Appeal. It would be the third appeal for Monsanto, which lost a $289 million verdict last year and an $80 million award this year over Roundup. California judges in those cases reduced the awards to $78 million and $25.3 million, respectively.

Plaintiffs lawyer Michael Baum, president of Los Angeles-based Baum Hedlund Aristei & Goldman, said his clients would be willing to accept Smith's reduced award. In a statement Thursday, his law firm vice president and co-lead trial counsel R. Brent Wisner called her ruling a “major victory.”

“The judge rejected every argument Monsanto raised and sustained a very substantial verdict,” he said.

In the case before Smith, both plaintiffs, Alberta and Alva Pilliod, claimed Roundup caused them to get non-Hodgkin lymphoma. On May 13, the jury awarded its verdict, which included $1 billion in punitive damages to each plaintiff.

In the talcum powder case, a Los Angeles County Superior Court judge in 2017 tossed the $417 million verdict, finding “ongoing debate in the scientific and medical community” over whether talc caused ovarian cancer. The appeals court, in its ruling this month, upheld most of that ruling.

In Roundup, the scientific evidence is “even less favorable” to the plaintiffs, Monsanto's lawyers wrote in a July 15 supplemental brief about the talc decision.

“In summary, the evidence in J&J showed a company 'defending' its product amidst an awareness of studies showing a possible association between the product and cancer, and an ongoing scientific debate as to whether the company's product is carcinogenic,” they wrote.

Smith, however, drew a distinction.

“The distinction she made was the difference between engaging in a public debate of the policy and the public debate of the science, compared to manipulating the science, and Monsanto engaged in manipulating the science,” Baum said. “She also found that the conduct was reprehensible conduct. It was despicable conduct. It showed a conscious disregard.”

That decision, along with similar findings in the two prior Roundup trials, provide a “solid foundation for all the cases going forward,” he said.

Smith's ratio between punitive damages and compensatory damages also was in line with U.S. District Judge Vince Chhabria of the Northern District of California's reduced award in the second trial, which was in the Northern District of California.

But she reduced noneconomic damages for both plaintiffs from $52 million to $17.1 million, plus Alva Pilliod's medical damage from $2.9 million to $50,000.

That might have been one reason why Smith awarded punitive damages at a higher ratio than 1:1, which is what San Francisco Superior Court Judge Suzanne Bolanos did in the first trial, Baum said. In that case, the jury awarded plaintiff Dewayne “Lee” Johnson $39.25 million in compensatory damages.

“Her rationale is she did not touch the compensatory damages, so the compensatory finding of $39.2 million for Lee Johnson she considered high, and we collected already some level of something along the lines of a recognition of reprehensible conduct,” Baum said of Bolanos. “But Judge Smith, on the other hand, reduced the punitive damages into a lower range so that she squeezed out what she thought was a recognition of reprehensible conduct.”

Her ruling might not withstand scrutiny under both California and U.S. Supreme Court law, primarily its 2003 holding in State Farm Mutual Automobile Insurance v. Campbell, which sought to limit punitive damages to less than 10 times the compensatory damages due to constitutional concerns.

“One of the things the court has said in a couple of cases is the amount of punitive damages in a particular case is supposed to be directed at the defendant's conduct toward the plaintiff, not everybody in the whole world,” said Jean Eggen, a professor at Widener University's Delaware Law School. “The Supreme Court would rather see the deterrence value in the punitive damages in the course of conduct in each individual case that's been impacted, each individual person who's been impacted, rather than in a single case actually being the only deterrent.”

Yet a verdict of $86.7 million, as in the earlier Roundup awards, puts little pressure on Monsanto to warn the public about the dangers of its product, Baum said.

“You need to have a more substantial punitive damages award, or they'll keep doing it as business as usual,” he said.