From Volume 80, Number 5 (July 2007)
McLaughlin v. Phillip Morris USA, Inc., has been certified as a nationwide class action on behalf of an estimated 50 million “light” cigarette smokers. Plaintiffs seek more than $280 billion in damages, to be trebled to over $800 billion. In certifying this mass tort, District Judge Jack B. Weinstein announced his plan to completely abandon individualized adjudication in favor of aggregate factual determinations based on evidence from statistical samples. Prior to McLaughlin, at least two federal trial judges had permitted the use of sampled evidence in major consolidated or class action trials, but both included some adjudication of individual claims. In McLaughlin, Judge Weinstein’s plan would entirely eliminate proof of individual class member claims in the face of the overwhelming cost of gathering such evidence from tens of millions of plaintiffs. The central issue in the interlocutory appeal now before the Second Circuit is the legality of Judge Weinstein’s plan to use sampled evidence to determine whether the plaintiff class members relied on representations by the defendants that “light” cigarettes were less harmful than regular cigarettes, and, if so, to determine the aggregate amount of damages.
In this Article, we address and defend Judge Weinstein’s controversial proposal to statistically sample evidence, rather than to obtain evidence on an individualized, case-by-case basis. We endorse his view that statistical sampling combined with other evidence “is a necessary and pragmatic evidentiary approach that reflects full due process in this and many other mass tort cases.”