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age verdicts for all the cases from each group over a period of approximately three
months.207 The juries considered the groups in descending order of severity, starting with
the mesothelioma cases.208 Judge Parker reviewed the verdicts and ordered remittiturs in
thirty-four pulmonary and pleural cases and in one mesothelioma case.209 According to
Professor Mullenix, in a case study of Cimino, Judge Parker “used almost every known
technique for aiding jury comprehension, including extensive pretrial and posttrial jury
instructions, jury notebooks, notetaking, interim summations, and witness photographs
to refresh the jury’s memory.”210
Based on statistical evidence presented at a post-trial hearing, Judge Parker found that
the sample cases were in fact representative of the total population on all relevant variables.
211 Defendants did not challenge the statistical evidence. After calculating the
remittiturs and including cases with zero verdicts, the court applied the average damage
awards within each disease category to the remaining cases within that category. Plaintiffs
waived any rights to individual damage determinations.212 Defendants objected on due
process grounds. The court rejected those challenges, saying that “unless this plan or some
other procedure that permits damages to be adjudicated in the aggregate is approved,
these cases cannot be tried.”213
Defendants appealed. The appeal was filed on May 3, 1993, and on August 17, 1998, a
panel of the court of appeals unanimously held that the sampling procedures violated the
Seventh Amendment and also failed to apply Texas law as required by Rules of Decision
Act, 28 U.S.C. § 1652. The court squarely held that “the findings of the actual damages for
each of the individual Phase III plaintiffs cannot control the determination of, or afford
any basis for denial of, Pittsburgh-Corning’s Seventh Amendment rights to have a jury
determine the distinct and separable issues of the actual damages of each of the extrapolation
plaintiffs.”214 Although the court did not directly address defendant’s due process
rights, the court seemed to find a due process violation as well.215
207. See id.
208. See Kenneth A. Bordens & Irwin A. Horowitz, The Limits of Sampling and Consolidation in Mass Tort
Trials: Justice Improved or Justice Altered?, 22 Law & Psychol. Rev. 43, 45–46 (1998).
209. Cimino, 751 F. Supp. at 657.
210. Linda S. Mullenix, Beyond Consolidation: Postaggregative Procedure in Asbestos Mass Tort Litigation,
32 Wm. & Mary L. Rev. 475, 572 (1991).
211. See Cimino, 751 F. Supp. at 664.
212. See id. at 653.
213. Id. at 666.
214. Cimino, 151 F.3d at 320–21.
215. See id. at 311 (“Although we do not separately address the due process contention as such, we conclude
that the Cimino trial plan is invalid in these respects . . . .”).
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Appendix C: Mass Torts Problems & Proposals
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