Damages

1. Damages Justin Waldie

2. Cimino v. Raymark Industries, Inc., • US District Court, E.D. TX, 1990

3. Facts Scientific community agrees that: • There is no safe level of exposure to asbestos • Dose/response relationship which manifests itself either in the latency period or type disease that one may contract • Asbestos is a competent producing cause of mesothelioma, asbestosis, lung cancer, and pleural disease.

4. Cimino v. Raymark Industries, Inc. Procedure • On Feb. 19, 1990, Court certified a 23(b)(3) class consisting of 3,031 plaintiffs with existing cases in the E.D. of TX • All plaintiffs claimed an asbestos-related injury or disease resulting from exposure to defendant’s asbestos containing insulation products. • 733 cases were severed, settled or dismissed

5. Cimino v. Raymark Industries, Inc. Issues: (1) When does prejudgment interest begin accruing? (2) Can non-settling defendants be made liable for insolvent defendants settlement amount? (3) How should punitive damages be applied? (4) Does use of damage verdicts offend Due Process? Held: (1) Six months after a plaintiff's last exposure. (2) Yes – shifts risk on to offending party. (3) Apply the multiplier only to the defendant's allocated share of actual damages. (4) No – b/c sample has 99% confidence interval.

6. Cimino v. Raymark Industries, Inc. • Phase I – Negligence inquiry by jury. • Phase II – Apportionment of causation among defendants. Done by stipulation rather than jury. • Phase III – Ct created 5 disease categories and took random samples from each. Used 160 individual trials to extrapolate to 2,138 remaining cases.

7. Cimino v. Raymark Industries, Inc. Phase II: • Court compiled a list of worksites and job classifications. • Parties stipulated that jury would have apportioned causation among the defendants in the amounts of 10% causation for each non-setting defendant and 13% for the settling defendant Johns-Mansville Corp.

8. Cimino v. Raymark Industries, Inc. Disease Sample Pop. Average verdict Phase III: Extrapolation

9. Cimino v. Raymark Industries, Inc. Variables 1. Gender 2. Race 3. Whether living 4. Whether ever smoked 5. Whether was a wage earner 6. Age 7. First year of exposure 8. Last year of exposure 9. Total years of exposure 10. Latency 11. Pack years smoked 12. Trade and predominant craft

10. Cimino v. Raymark Industries, Inc. Post-trial hearing: Experts • Professor Ronald G. Frankiewicz testified that, with two minor exceptions, the samples achieved a 99% confidence level. • But gave no opinion as to probative value of variables chosen • Also, stated that none of what he did “related to magnitude of verdicts.”

11. Cimino v. Raymark Industries, Inc. Post-trial hearing: Experts • Dr. Dement • Concluded that from an epidemiological point of view the distribution of certain important “risk factors” in the sample cases was representative of the distribution of those same factors among the extrapolation cases • Analysis was limited to increased risk and said nothing of actual injuries

12. Cimino v. Raymark Industries, Inc. • “Defendants complain about the 1% likelihood that the result would be significantly different. However, plaintiffs are facing a 100% confidence level of being denied access to the courts.” - J. Parker, Cimino, 751 F. Supp. at 665.

13. Cimino v. Raymark Industries, Inc. • US 5th Circuit (1998) • Issue: Was the trial plan consistent with the 7th Amendment and with Texas law? • Held: No and no. • Analysis: 7th Am requires jury trial and under Texas law causation must be determined as to “individuals, not groups.” Fibreboard.

14. Cimino v. Raymark Industries, Inc. • Recommendations: • More explicit definition of meanings of variables (such as total exposure, wage earner, etc) • Further stratification to ensure that sample matches population for all relevant variables • Degrees of exposure, not simply length • Control for other sources of exposure

15. In Re Estate of Ferdinand E. Marcos Human Rights Litigation, District of Hawai’i, 1995 • Facts: • Marcos was twice elected president of the Philippines (1965, 1969). • Imposed martial law from 1972-1986. • Detained, tortured and killed many Philipino citizens. • Eventually fled to Hawaii in 1986.

16. In Re Estate of Ferdinand E. Marcos Human Rights Litigation Classified per 23(b)(3) and tried in three phases: • Liability - Defendant found liable to 10,059 plaintiffs by a jury • Exemplary (punitive) damages - Jury awarded $1.2 billion • Compensatory damages • Torture victims • Families of subjects of summary execution • Families of those who disappeared

17. In Re Estate of Ferdinand E. Marcos Human Rights Litigation • James Dannemiller – inferential statistics expert • Used KISH formula for his survey sample • 137 randomly selected valid claims from pool of 9,541 – 95% confidence level • Sol Schrieber – Special Master • Oversaw depositions • Served as expert on damages (FRE 706) • Made compensatory damage recommendations for the 137 claimants as well as remaining class members

18. In Re Estate of Ferdinand E. Marcos Human Rights Litigation • Torture victims • Ranked 1 – 5 (5 being the worst abuse) • Standard damage amount awarded to each victim within that grouping • Consider: • Physical torture • Mental abuse • Amount of time torture lasted • Length of detention • Physical and/or mental injuries • Victim’s age • Actual losses • Summary execution / disappearance victims • Consider: • torture prior to death • actual killing or disappearance • family’s mental anguish • lost earnings (cap of $120,000)

19. In Re Estate of Ferdinand E. Marcos Human Rights Litigation • Jury received Special Master’s report, instructed to accept, modify or reject Special master’s recommendation. Delivered verdict for $766 million. • Each plaintiff in the random sampling group was awarded individual verdict. • All other plaintiffs were awarded average verdict for sample group members in their class (torture victim; disappearance; summary execution).

20. In Re Estate of Ferdinand E. Marcos Human Rights Litigation • Issue: Is use of aggregate procedures, with help of an inferential statistics expert in field, for determining class compensatory damages proper w/r/t DP and 7th Am? • Held: Yes. • “An acceptable due process solution to the troublesome area of mass tort litigation.” • “Neither side was deprived of a jury trial.”

21. Hilao v. Estate of Marcos Ct of Appeals, 9th Circuit, 1996 Issues: • Is use of sample unprecedented in class action? • Is method ‘inappropriate’ because class consists of various members with numerous subsets of claims? • Is Estate’s right to due process violated by the method? Held: • No (see Cimino). Even if it was, this isn’t grounds for reversal. • No, methodology accounts for this. • No, under balancing test set forth in Mathews and Doerh.

22. Hilao v. Estate of Marcos Dissent (J. Rymer) • We shouldn’t compromise the judicial model to try to solve mass tort problems. Instead, preserve court’s institutional values.

23. Comparison • Why was statistical sampling allowed in Marcos Estate but ultimately not in Cimino? • 9th Circuit v. 5th Circuit • Individual causation significantly more tenuous in Cimino. • TX state law requires individualized causation and individual damages (Fibreboard).