By Joe Fantini July 29, 2019

Earlier this year, Alva and Alberta Pilliod were awarded $2 Billion in punitive damages at the close of their Roundup trial. That punitive award has been reduced. On appeal, a federal judge slashed the payout to $86.7 Million, explaining that the initial jury award was excessive and in violation of standards set by the Supreme Court.

Judge Refused to Toss Punitive Damages in Their Entirety

When Bayer appealed the $2.055 Billion verdict, it asked the court to reverse the decision in its favor. In the event that the court declines, the company asked to have all of the punitive damages stripped from the case. Bayer not only maintains that Roundup is safe to use, but also that the company and its employees never engaged in conduct that would warrant punitive damages.

In reviewing the jury’s decision to award punitive damages, Superior Court Judge Winifred Smith agreed that the punishment was appropriate. “In this case,” she explained, “there was clear and convincing evidence that Monsanto made efforts to impede, discourage, or distort scientific inquiry and the resulting science.”

In California, punitive damages can be awarded when, by clear and convincing evidence, a plaintiff can show that the defendant acted with oppression, fraud, or malice. Here, Smith agreed with the jury that the plaintiff succeeded in meeting this burden.

Calculating an Appropriate Award of Punitive Damages

The Supreme Court has, on several occasions, explained that a punitive award that is “grossly excessive” violates the Fourteenth Amendment to the United States Constitution.

The Court has also established a three-part test to determine if a punitive award is unconstitutional.

  1. How reprehensible was the defendant’s conduct?
  2. What’s the ratio of punitive damages to the actual harm suffered?
  3. How have similar acts of misconduct been punished with punitive damages in the past?

To make things even easier, the Court has held that punitive awards should typically not exceed four times the amount of any compensatory damages awarded in the same case. Only under extraordinary circumstances could a punitive award nine times the compensatory damages be appropriate.

So, in most cases, punitive damages can’t be more than four times the amount of other damages awarded to a plaintiff.

Alberta and Alva Pilliod were each awarded $1 Billion in punitive damages. Alva was also awarded $18 Million in compensatory damages. Alberta was awarded $37 Million. Following the Supreme Court’s guidelines, Alva’s punitive award should not exceed $72 Million, and Alberta’s should be no greater than $148 Million. Anything greater would be considered excessive.

Juries Continue to Side With Injured Roundup Users

This marks the third time a judge has stepped in to reduce a jury award extended to Roundup plaintiffs. However, this doesn’t appear to have had any impact on jury deliberations. Juries are using their power to award punitive damages to send a message to Bayer. Even if the award is reduced down the line, their message is clear: conduct like Bayer’s will not be tolerated.

Bayer is rumored to be increasingly interested in settling the thousands of Roundup injury lawsuits that are still pending. Settlements might be the company’s only way to limit the damage and costs of litigation.