Guide On Statistics, id.; Shari Seidman Diamond, Reference
Guide on Survey Research, id.
The trial judge is a primary protector against excessive
transactional costs in litigation. She or he has broad powers
under the Federal Rules of Evidence to regulate the admission of
expensive cumulative evidence at trial. See Fed.R.Evid. 403
(restricting cumulative evidence); Fed. R.Evid. 611 ("The court
shall exercise reasonable control over the mode and order of
interrogation of witnesses and presenting evidence"); Fed. R.
Evid 1006 (allowing writings, recordings, or photographs which
cannot be conveniently examined in court to be presented in the
form of "charts, summaries or calculations").
Although the manner of presenting evidence is best left to
counsel, Rule 611 of the Federal Rules of Evidence entrusts the
trial judge with the "ultimate responsibility" for the efficient
ascertainment of truth by authorizing her or him to exercise
reasonable control over the presentation of evidence. See
Margaret A. Berger, et al., Evidence § 611.02 (2000); Original
Advisory Committee Note to Fed. R.Evid. 611 ("ultimate
responsibility for the effective working of adversary system rest
with the trial judge"); Civil Trial Practice Standard 16 ABA
(1998) (court should encourage multiple parties to cooperate in,
coordinate, and streamline the presentation of evidence). The
wording of Rule 611 is broad enough to authorize innovations in
the presentation of evidence provided the court considers ways to
limit prejudice to the parties. Berger, et al., Evidence §
611.02 (citing cases). Trial court decisions under Rule 611 of
the Federal Rules of Evidence are "virtually immune" from attack
on the grounds of Constitutional due process — particularly in
the civil context — and are only challengeable upon a finding
that the abuse of discretion substantially damaged a party's
right to a fair trial. United States v. Baptista-Rodriguez,
17 F.3d 1354, 1357 (11th Cir. 1994).
B. Appropriateness of Sampling and Survey Techniques
Sampling and survey techniques are a well-accepted alternative
for the trial judge facing crippling discovery and evidentiary
costs. Manual for Complex Litigation, Third §§ 21.422
("statistical sampling techniques may be used to measure whether
the results of the discovery fairly represent what unrestricted
discovery would have been expected to produce"), 21.493 ("The use
of acceptable sampling techniques in lieu of discovery and
presentation of voluminous data from the entire population, may
produce substantial savings in time and expense."); David H. Kaye
& David A. Freedom, Reference Guide On Statistics, supra.;
Shari Seidman Diamond, Reference Guide on Survey Research,
supra; Hans Zeisel & David Kaye, Statistics for Social Science
and Public Policy, Empirical Methods in Law and Litigation
(1997); see, also, e.g., Castaneda v. Partida, 430 U.S. 482, 97
S.Ct. 1272, 51 L.Ed.2d 498 (1977) (using statistical data to
prove discrimination in jury selection) Zippo Manufacturing Co.
v. Rogers Imports, 216 F. Supp. 670 (S.D.N.Y. 1963) (relying on
sampling methodology); United States v. 449 Cases Containing
Tomato Paste, 212 F.2d 567 (2d Cir. 1954) (approving inspector's
testing of samples, rather than requiring the opening of all
cases); Capaci v. Katz & Besthoff, Inc., 711 F.2d 647, 653-57
(5th Cir. 1983) (using census data in gender discrimination
case); Exxon Corp. v. Texas Motor Exch. of Houston, Inc.,
628 F.2d 500 (5th Cir. 1980) (using statistical sampling in trademark
infringement suit); Stewart v. General Motors Corp.,
542 F.2d 445 (7th Cir. 1976), cert. denied, 433 U.S. 919, 97 S.Ct. 2995,
53 L.Ed.2d 1105 (1977); In re Estate of Ferdinand
E. Marcos, Human Rights Litigation, 910 F. Supp. 1460 (D.Haw.
1995) (using sampling to determine compensatory damages through
extrapolating "exposure" element of liability), aff'd sub nom
Hilao v. Estate of Marcos, 103 F.3d 767 (9th Cir. 1996);
Ageloff v. Delta Airlines, Inc., 860 F.2d 379 (11th Cir. 1988)
(using evidence of life-expectancy tables to determine damages);
G.M. Brod & Co., Inc. v. U.S. Home Corp., 759 F.2d 1526,
1538-40 (11th Cir. 1985) (using expert testimony for profit
projections based on industry norms); Newberg on Class Actions
§ 10.05 (when aggregate proof of damages is sought to be proved
on behalf of a class, no special or unique rules of evidence are
involved.). In some cases sampling techniques may prove the only
practicable way to collect and present relevant data. See
Harolds Stores v. Dillard Dep't Stores, 82 F.3d 1533, 1544 (10th
Cir. 1996); Manual for Complex Litigation, Third § 21.493
Surveys and sampling techniques have been admitted in a large
variety of actions to establish causation so long as they accord
with Daubert and Rule 702 of the Federal Rules of Evidence.
Fed. R.Evid. 702; Daubert, 509 U.S. 579, 113 S.Ct. 2786, 125
L.Ed.2d 469 (1993); see also Reference Manual, supra; Castaneda
v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977)
(statistical data to prove discrimination in jury selection);
Zippo Manufacturing Co. v. Rogers Imports, Inc., 216 F. Supp. at
670 (survey data in trademark infringement case). Properly
developed survey evidence is admissible subject to arguments
regarding its weight and probative value. Schering Corp. v.
Pfizer, Inc., 189 F.3d 218, 224 (2d Cir. 1999) (citing cases);
McNeilab Inc. v. American Home Prods. Corp., 848 F.2d 34, 38
(2d. Cir. 1988). The question of whether such surveys in
combination with other evidence is legally sufficient is to be
left to the jury in accordance with the "general standards for
judgment as a matter of law," once the court has determined the
study is viable under Federal Rule of Evidence 702. In re Joint
E. & S. District Asbestos Litig., 52 F.3d 1124, 1132 (2d Cir.
1995) (permitting statistical evidence to go to jury); see
generally Michael O. Finklestein & Bruce Levin, Statistics for
Lawyers vii (2d ed. 2001) (wide expansion of statistics used in
trials over past decade).
American manufacturers now mass produce goods for consumption
by millions using new chemical compounds and processes, creating
the potential for mass injury. Modern adjudicatory tools must be
adapted to allow the fair, efficient, effective and responsive
resolution of the claims of these injured masses. See, e.g., In
re DES Cases, 789 F. Supp. 548 (E.D.N.Y. 1992) (market share
liability applied in suits for defective design of
diethylstilbestrol (DES)); In re Joint E. & S. District Asbestos
Litig., 726 F. Supp. 426 (E.D.N.Y. 1989) (computation of damages
for Brooklyn Navy Yard asbestos victims); In re "Agent Orange"
Product Liability Litig., 689 F. Supp. 1250 (E.D.N.Y. 1988)
(distribution scheme for victims of agent orange); see also
Manual for Complex Litigation, Third § 33.21-29 (2000) (mass
torts); Kenneth R. Feinberg, Lawyering in Mass. Torts, 97 Colum.
L.Rev. 2177, 2177 ("mass torts [litigation] requires more than
the traditional view of lawyering. . . ."); see generally
Richard A. Nagareda, In the Aftermath of the Mass. Tort Class
Action, 85 Geo. L.J. 295 (1996).
State legislatures, courts, and commentators have recognized
that aggregate tools are especially helpful in the context of
consumer fraud, when the low value of specific claims or the
litigation advantages of a well-financed defendant can discourage
individuals from pressing their claims in court. See Fla. Stat.
Ann. § 409.910(9)
(West 1998) (developing aggregate procedures for recovery of
medical expenses resulting from alleged tobacco fraud); Md. Code
Ann., Health-Gen. I § 15-120 (West 1998) (same); Vt. Stat. Ann.
tit. 33, § 1911(f)(5) (same); see also Group Health Plan v.
Philip Morris Inc., 621 N.W.2d. at 15 ("To impose a requirement
of proof of individual reliance in the guise of causation would
reinstate the strict common law reliance standard that we have
concluded the legislature meant to lower for these statutory
actions."); Walker v. Nat'l. Recovery Inc., 200 F.3d 500 (7th
Cir. 1999); Agency for Health Care Admin. v. Associated Indus.
of Florida, 678 So.2d 1239 (Fla. 1996) (aggregation of fraud
claims to recover medical expenses conformed to due process),
cert. denied, 520 U.S. 1115, 117 S.Ct. 1245, 137 L.Ed.2d 327
(1997); Samuel Issacharoff, Group Litigation of Consumer Claims:
Lessons From the U.S. Experience, 34 Tex. Int'l L.J. 135 (1999)
(limited resources and incentives for consumers acting
individually); Laurens Walker & John Monahan, Sampling
Liability, 85 Va. L.Rev. 329 (1999).
The Defendants cite City of Birmingham v. American Tobacco
Co., 10 F. Supp.2d 1257 (N.D.Ala. 1998), for the proposition that
the plaintiff must provide the factual circumstances for each
smoker on whose behalf it now sues. That case does not address
the issue of statistical sampling. The court held — at the
pleading stage — that the city could not recover for all
employees under its state statute, only for some. The denial of
summary judgment as to some of the city's claims in that case did
not disallow the use of aggregate proof to try the remaining
In the bulk of the third-party tobacco cases that contemplated
discovery and trial, courts properly limited the level of
individual proof available. Northwest Laborers Employers Health
and Sec. Trust Fund v. Philip Morris Inc., No. C97-849
(W.D.Wash. Mar. 18, 1999) (Order On Defendants' Motion to Compel
Discovery Re Individual Fund Participants) ("[d]efendants' motion
to compel discovery regarding individual fund participants would
impose an enormous burden on all parties and effectively would
bring the litigation to a halt"); West Virginia-Ohio Valley Area
IBEW Welfare Fund v. American Tobacco Co., No. 97-0978
(S.D.W.Va., May, 1999) (rejecting defendants' motion to depose
every member of union trust fund); In re Mike Moore, Attorney
General ex rel. State of Mississippi Tobacco Litigation, No.
94-1429 (Miss. Apr. 18, 1996) (Order on Defendant's Motion to
Compel Initial Discovery Limited Number of Medicaid Recipients on
Health Care Provided by the State of Mississippi) (permitting
disclosure of identity and information of limited number of
Medicaid recipients); State v. Philip Morris Inc., No.
Cl.-94-8565 (Minn. Dec. 21, 1995) (Order to Compel Limited
Depositions of Medicaid Recipients) (limiting depositions for
defendants); see Sampling Liability, 85 Va. L.Rev. 329 (1999)
(approving the use of sampling in pre-trial and at trial in
Tobacco litigation). Such limits on individualized proof is used
in other cases as well. See Howard Ross Cabot & Alan A.
Matheson Jr., The Use of Statistics to Wrest Control Over the
Trial of Mass. Damage Claims, 7 Inside Litig. at 16 (Mar. 1993)
(dealing with approximately 17,000 property damage subrogation
lawsuits arising from a chemical explosion, proposed trial plan
would use stratified sampling of the insurance claims at issue).
Against this backdrop, the use of statistical evidence in the
instant case violates neither the constitutional guarantee of due
process nor the constitutional right to a jury trial. See In re
Chevron U.S.A., Inc., 109 F.3d at 1020 ("[t]he applicability of
inferential statistics have long been recognized by courts";
collecting cases); Laurens
Walker & John Monahan, Sampling Damages, 83 Iowa L.Rev. 545
(1998) ("[A] complete solution of the numbers problem in mass
torts can only be achieved by . . . randomly sampling damages
without apology."); cf. In re Matter of Rhone-Poulenc Rorer
Inc., 51 F.3d 1293, 1304 (7th Cir. 1995) (noting with approval
idea of a "sample of trials"); Consorti v. Armstrong World
Industries, 72 F.3d 1003 (2d. Cir. 1995) ("consolidation permits
the federal court to furnish trials in hundreds, even thousands
of cases it might otherwise not reach for many years. If
carefully and properly administered . . . consolidation is also
capable of producing, with efficiency and greatly reduced expense
for all parties, a fairer, more rational and evenhanded delivery
of justice."), rev'd on other grounds 518 U.S. 1031, 116 S.Ct.
2576, 135 L.Ed.2d 1091 (1996).
The use of aggregate proof at trial was consistent with due
process and jury trial rights. It was legally sufficient to
support the plaintiff's verdict under New York General Business
Law section 349.
1. Due Process
Defendants claim that due process required individual
adjudication of millions of smokers' claims implicated in the
action, and discovery from millions more — family, friends,
coworkers, and doctors. The reasons for rejecting this approach
were set out at length in a memorandum denying summary judgment.
See Blue Cross & Blue Shield of N.J., Inc., 113 F. Supp.2d at
At summary judgment, the court balanced the due process
interests of allowing more individualized discovery and more
individualized proof at trial. Id. It was determined that the
interests of the private parties, the accuracy of the procedures,
and an efficient use of court resources counseled in favor of
using statistical models along with individual deposition lay
testimony, expert testimony, and documentary evidence. Id.
(citing Connecticut v. Doehr, 501 U.S. 1, 11, 111 S.Ct. 2105,
115 L.Ed.2d 1 (1991)); see, also e.g., Hilao, 103 F.3d at 786
(balancing due process interests). Michael J. Saks & Peter David
Blanck, Justice Improved, 44 Stan. L. Rev. 815, 826-32 (1992)
(statistical sampling comports with due process in mass
aggregation cases). That reasoning is worth recounting here.
The court first noted that consideration of the private
interests involved favored the utilization of statistics:
Tobacco admittedly has an interest in not paying for
damages in excess of what its alleged misconduct may
have caused; that interest would be furthered by
Tobacco's confronting (before the jury) each of the
hundreds of thousands of Empire's insured who
suffered smoking-related illnesses about their
reliance on Tobacco's misstatements and omissions,
and about their discovery of their injuries (so as to
precisely determine in each instance when the statute
of limitations started to run).
Practical considerations temper the weight of
Tobacco's interest, however. If such a process were
undertaken, it would have to continue beyond all
lives in being. Assuming Tobacco was willing to
expend the resources and monies necessary both in
discovery and at trial to mount such an undertaking,
the litigation costs in doing so would far exceed any
monies saved by avoiding erroneous payments given
Empire's four year limitation on recovery . . .
The interest of Empire in avoiding the additional
litigation costs that would arise if Tobacco was
permitted to confront each Plan member at trial is
enormous, particularly since Empire is
presently a nonprofit entity with limited annual
income appropriately dedicated to covering Plan
members' health care costs. The necessary additional
litigation costs Empire would have to bear would
consume much of any recovery from Tobacco, making
continued pursuit of the litigation fruitless . . .
The interests of the injured smoking Plan members
must be considered. Requiring individual proof as to
each claim would unnecessarily intrude on the lives
of hundreds of thousands of people. Examining each of
the grains of sand on the beach is too burdensome.
Blue Cross & Blue Shield of N.J., 113 F. Supp.2d at 372-73.