Cimino v. Raymark Industries: Propriety of Using Inferential Statistics and Consolidated Trials to Establish Compensatory Damages for Mass Torts
![handle is hein.journals/baylr46 and id is 475 raw text is: CIMINO V. RAYARKIADUS7RIEs. PROPRIETY OF USING INFERENTIAL
STATISTICS AND CONSOLIDATED TRIALS TO ESTABLISH
COMPENSATORY DAMAGES FOR MASS TORTS*
I. INTRODUCTION
The odyssey of asbestos litigation in the Eastern District of
Texas has now entered its third decade. The trek... has
been marked by aimless wandering through the legal wilder-
ness. [Defendants] Raymark, Forty-Eight Insulations,
Unarco, Standard Asbestos, Johns-Manville, Eagle-Picher,
and now Celotex are bankrupt. Other defendants are clearly
in the twilight of their participation. Four hundred and
forty-eight members of the [plaintiff] class have died waiting
for their cases to be heard.' -Judge Robert Parker
The avalanche of asbestos-related claims inundating federal courts
is well-documented.2 Judge Parker, Chief Judge in the Eastern Dis-
trict of Texas, projected that if he could try thirty asbestos cases a
month, the court's docket would be full for over six years.3 The Third
Circuit, facing similar problems and commenting on separate trials
for each claim, noted that [a] clearer example of reinventing the
wheel thousands of times is hard to imagine.4
Willingness to alter procedural rules to accommodate aggregate
treatment of mass torts has been slow and reluctant at best. Judge
Parker points to several missed opportunities in the judicial arena.5
Although a majority for the Fifth Circuit Court of Appeals certified
certain consolidation questions to the Mississippi Supreme Court, that
*The author would like to thank Professor William D. Underwood for his time and
assistance in preparing this Note.
'Cimino v. Raymark Indus., Inc., 751 F. Supp. 649, 650-51 (E.D. Tex. 1990).
'See, e.g., In re Fibreboard Corp., 893 F.2d 706, 707 (5th Cir. 1990) (5,000 asbestos cases
pending in the Fifth Circuit in 1986); Jenkins v. Raymark Indus., Inc., 782 F.2d 468, 470
(5th Cir. 1986) (estimating 21 million workers exposed to asbestos products since 1940
and additional millions exposed through environmental contact); In re New York Asbestos
Litig., 145 F.R.D. 644,648 (S.D.N.Y. 1993) ([E]stimat[ing] ... 'substantial' exposures range
from 70,000 to four million.) (citation omitted); Linda S. Mullenix, Beyond Consolidation:
Postaggregative Procedure in Asbestos Mass Tort Litigation, 32 WM. & MARv L. REv. 475, 477
(1991) (noting 29,466 asbestos cases pending as ofJanuary 1, 1990) [hereinafter, Mullenix,
Beyond Consolidation]; Steve Baughman, Note, Class Actions in the Asbestos Context: Balancing
the Due Process Considerations Implicated by the Right to Opt Out, 70 TEx. L. REv. 211, 211
(1991) (estimating 100,000 asbestos personal injury suits pending in 1991) (citation
omitted).
'Cimino, 751 F. Supp. at 652.
'In re School Asbestos Litig., 789 F.2d 996, 1001 (3d Cir. 1986), cert. denied, 479 U.S. 852,
and cert. denied, 479 U.S. 915 (1986) (two cases).
'Cimino, 751 F. Supp. at 651.](ViewImageLocal?handle=hein.journals/baylr46&div=28&collection=&method=preview&ext=.png&size=3)
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