A. Aggregate ProofProfessors Laurens Walker and John Monahan of the University of Virginia Law School discuss and defend Judge Weinstein's rulingin their article Sampling Evidence at the Crossroads. The abstract of their article reads this way:
Plaintiff's use of aggregate proof does not violate defendants' constitutional rights. The appropriateness of such proof has been analyzed in numerous memoranda. See, e.g., Blue Cross, Appendix B at Part VII and D, infra. Experience with several years of discovery in this and related tobacco cases, and two full trials, has strengthened the conclusion that statistical proof combined with other evidence is a necessary and pragmatic evidentiary approach that reflects full due process in this and many other massive tort cases. It is consistent with defendants' constitutional rights and legally available to support plaintiffs' RICO claims. This case, involving alleged mass market fraud on smokers whose economic injuries, if any, are calculable on an objective basis not involving individualized questions of medical harm, is even better suited than previous cases to such aggregate proof. Cf. Blue Cross, Appendix B, infra (damages sought for all increased payments made to individual insureds by health plan); Simon II, Appendix D, infra (punitive damages class sought based on estimate of compensatory damages due to personal injuries incurred from smoking).
The idea that due process and jury trial rights require a particularized traditional form of evidence for each element would make this case and cases like it impossible to try. There is little harm in retaining a requirement for "particularistic" evidence of causation and damages in sporadic individual accidents where there are but a few medical histories and witnesses; such evidence is almost always available and convenient in such litigation. See, e.g., In re "Agent Orange" Prod. Liab. Litig., 597 F. Supp. 740, 832-34 (E.D.N.Y. 1984). Even in such cases use of almost any experts, whether doctors or DNA experts, depends upon the implied or express probabilistic underpinning of their professional judgments.
In mass fraud cases with hundreds of thousands or millions of injured the cost of one-on-one procedures is insuperable and unsuitable for either a jury or a bench trial. The consequence of requiring individual proof from each smoker would be to allow a defendant which has injured millions of people and caused billions of dollars in damages to escape almost all liability. As Professor Rosenberg noted almost a score of years ago, such restrictions in the form of admissible evidence is impractical and unnecessary. "The concept of 'particularistic' evidence suggests that there exists a form of proof that can provide direct and actual knowledge of [the parties' conduct]. 'Particularistic' evidence, however, is in fact no less probabilistic than is the statistical evidence that courts purport to shun." David Rosenberg, The Causal Connection in Mass Exposure Cases: A "Public Law" Vision of the Tort System, 97 Harv. L. Rev. 851, 870 (1984) (footnotes omitted). Many commentators agree. See, e.g., Peter Tillers, Symposium: Artificial Intelligence and Judicial Proof, 22 Cardozo L. Rev. 1365 (2001) (describing tendency of evidence scholars to rely on mathematical and quantitative methods, such as probability theory, statistics, and decision theory); Louis Kaplow & Steven Shavell, Fairness Versus Welfare, 114 Harv. L. Rev. 961, 1203 n.580 (2001); Laurens Walker & John Monahan, Sampling Liability, 85 Va. L. Rev. 329 (1999) (using statistical evidence is a reliable and practical method for mass trial); Robert G. Bone, Statistical Adjudication: Rights, Justice, and Utility in a World of Process Scarcity, 46 Vand. L. Rev. 561 (1993); Jonathan J. Koehler & Daniel Shaviro, Veridical Verdicts: Increasing Verdict Accuracy Through the Use Of Overtly Probabilistic Evidence and Methods, 75 Cornell L. Rev. 247, 248 (1990) (although courts should carefully determine the validity of probabilistic evidence, "overtly probabilistic evidence is no less probative of legally material facts than other types of evidence"); Michael J. Saks & Robert F. Kidd, Human Information Processing and Adjudication: Trial By Heuristics, 15 L. & Soc'y Rev. 123, 151 (1989-1990) ("Much of the testimony that is commonly thought of as particularistic only seems so. It is far more probabilistic than we normally allow jurors (or judges) to realize."); cf. The Evolving Role of Statistical Assessments as Evidence in the Courts 78-79 (Report of the American Academy of Science Panel on Statistical Assessments as Evidence in the Courts) (Stephen E. Feinberg ed. 1989) (noting the contradiction between some courts' insistence on evidence that seems certain, and such "probabilistic" institutions as plea bargaining, in which decisions are made on the basis of "probable" outcome). But see the objections (generally rejected by academics and courts) in Laurence H. Tribe, Trial by Mathematics: Precision and Ritual in the Legal Process, 84 Harv. L. Rev. 1329 (1971). See generally Federal Judicial Center, Manual for Complex Litigation (Fourth) Section 11.493 (2004) (guidelines for use of sample surveys); David H. Kaye & David A. Freedman, Reference Guide on Statistics, in Reference Manual on Scientific Evidence (Second) 83-178 (Federal Judicial Center, 2000).
The Federal Rules of Civil Procedure and the Federal Rules of Evidence grant district judges broad authority to shape the nature and scope of admissible evidence for trial. Scientific evidence--such as sampling and statistical extrapolations--is well suited to mass tort actions. It is particularly appropriate in massive consumer fraud cases, so long as it passes the gatekeeping criteria described in the Federal Rules of Evidence and Daubert v. Merrell Dow Pharms., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993) and related cases. Many states have provided special mechanisms for handling consumer fraud claims in the aggregate, recognizing that many such claims cannot be economically tried individually. When, as in the case at bar, the plaintiffs are a widely spread group complaining of injury from a common course of conduct by defendants, statistical analysis may provide a more accurate and comprehensible form of evidence than would the testimony of millions of individual smokers. See Blue Cross & Blue Shield of N.J., Inc., 133 F. Supp. 2d at 172 (explaining propriety of statistical extrapolation for entity suffering damages in aggregate); Blue Cross & Blue Shield of N.J., Inc., 36 F. Supp. 2d at 575 (E.D.N.Y. 1999) ("The aggregation of millions of alleged injuries in the instant suit can be expected to yield more accurate results with respect to the causation issue since projections based upon a large statistical base will be available, thus reducing the size of the possible error.").
Resolving mass tort disputes on a case-by-case basis may create a systematic bias against plaintiffs because, "[w]hile defendants spread the risk of adverse judgments across all test trials, each trial decides the fate of each plaintiff party on a single roll of the dice." David Rosenberg, Mass Tort Class Actions: What Defendants Have and Plaintiffs Don't, 37 Harv. J. on Legis. 393, 430 (2000); Marc Galanter, Why the "Haves" Come out Ahead: Speculations on the Limits of Legal Change, 9 L. & Soc'y Rev. 95 (1974) (importance of defendants' roles as repeat players). The defendant who successfully resolves a mass tort dispute with aggregate tools enjoys the economic benefit of a final resolution to all proceedings, not just a single case. Cf. Simon v. Philip Morris Inc., 200 F.R.D. 21, 43-46 (E.D.N.Y. 2001) (discussing public policy supporting aggregation).
The use of sampled evidence in mass tort cases is at the crossroads. In McLaughlin v. Phillip Morris, Judge Jack B. Weinstein of the Eastern District of New York certified a nationwide class action on behalf of an estimated 50 million "light" cigarette smokers. In the face of the overwhelming cost of gathering evidence from tens of millions of plaintiff class members, he announced a dramatic trial plan to completely abandon individualized adjudication in favor of aggregate factual determinations based on evidence from statistical samples. The central issue in the interlocutory appeal now before the Second Circuit is the legality of statistical sampling. This Article strenuously defends Judge Weinstein's strategy of relying on evidence produced through proven methods of sampling. Such an aggregate strategy is not only much more cost-effective than case-by-case evidence gathering, it is also much more likely to arrive at an accurate determination of damages. By laying out a comprehensive proposal for the use of sampled evidence in litigation, the authors hope to hasten the day when legal decision makers finally accept a practice than has been a hallmark of scientific decision making for the past sixty years.