Cimino v. Raymark Industries, Inc.

Asbestos litigation in the Eastern District of Texas was ongoing for over 30 years. During that time, seven corporate defendants filed for bankruptcy, and other corporate defendants suffered decline. Additionally, 448 class members passed away while waiting for their cases to be tried. Raymark Industries, Inc. (Raymark) and other companies (defendants) shifted their defense strategy, asserting that they had a right to a trial for every plaintiff’s case individually even though the cases involved the same products, warnings, and behavior. Raymark and the other corporate defendants knew that if the plan used by the court in the case of Claude Cimino (plaintiff) was not upheld by an appellate court, the district court would never be able to try all the cases. As it stood, if the district court tried asbestos cases at a rate of 30 cases per month, it would still take the court over six years to try the existing cases, and by that time, at the current filing rate, there would be 5,000 new cases waiting. The district court’s plan in Cimino’s case involved three phases. In the third phase relating to damages, the district court divided 2,298 class members into five categories according to their diseases: mesothelioma, lung cancer, other cancer, asbestosis, and pleural disease. The district court then took a sample of plaintiffs from each of these categories. The damages cases of these plaintiffs were tried individually, and each plaintiff received the individual award granted by a jury. Then, the court planned to take the average award received by the plaintiffs in each disease category and assign this amount as damages for the remaining plaintiffs in that category. The remaining plaintiffs agreed to this plan, forgoing any right to having their damages assessed individually. Determining damages in the aggregate using statistical sampling was the court’s plan for trying so many cases. Although the corporate defendants used statistics during the trial and submitted medical literature that also employed statistical surveys and related analysis, they asserted that the court’s plan was not suitable for mass tort litigation and asserted that due process required the traditional litigation of 2,298 individual cases despite the common issues. At a posttrial hearing, the court considered the validity of its statistical sampling in phase three.