Commentary and analysis of the Fifth Circuit Court of Appeal’s decision in Cimino v. Raymark Industries, 5th Cir. Aug. 17, 1998), rejecting the use of statistical sampling to prove up damages in a mass tort class action. After a decade of litigation, the Fifth Circuit rejected a novel trial plan that used sampling to calculate damages in aggregate asbestos litigation that had been approved by district court Judge Robert Parker. As a result of the court’s decision in Cimino, innovative trial plans intended to streamline the disposition of mass tort claims through the use of damage sampling may now be derailed. The Cimino decision questions whether sampling techniques may be used to determine damages by extrapolation for groups of claimants. Judge Reynaldo Garza’s concurrence, however, suggests that a proper trial plan could use sampling methodology. The Fifth Circuit’s decision will cause lawyers and judges to rethink whether it is possible in diversity-based mass tort class actions to fashion a trial plan that does not violate either the Erie doctrine or the Seventh Amendment right to trial by jury, two reasons the Fifth Circuit gave for rejecting the district court’s plan. Along with the Supreme Court’s decision in Amchem Prods. Inc. v. Windsor (1997), the Fifth Circuit’s Cimino decision calls into question the judiciary’s ability to fashion procedural means to resolve tort claims collectively. This article discusses the factual and procedural background in the underlying Cimino litigation and the multiphase trail plan approved by Judge Parker and its subsequent implementation in the Cimino trial. It concludes with a discussion of the implications of the Cimino decision for mass tort litigation, and other class actions generally.
Linda S. Mullenix, Federal Practice--Complex Litigation: 5th Circuit Rejects Trial Plan for Asbestos Class, National Law Journal, Sept. 21, 1998, at B6.