## Facts

- Thousands of asbestos personal injury and wrongful death actions by insulation and construction workers (and survivors/household members) were pending in federal court under diversity jurisdiction, governed by Texas substantive law.
- The district court consolidated roughly 3,031 cases for trial of purportedly common issues and certified a Rule 23(b)(3) class.
- The court adopted a three-phase trial plan: Phase I tried ten representative plaintiffs and sought class-wide findings on defect, warnings, and punitive damages; Phase II (craft/jobsite exposure issues) was dropped by stipulation.
- Phase III tried 160 “sample” cases across five disease categories, with juries determining only the individual plaintiff’s actual damages in those tried cases.
- After a brief bench proceeding, the court found the 160 cases “reliably representative” and ordered that approximately 2,128 remaining “extrapolation” cases would receive judgments for actual damages equal to the average verdict for their assigned disease category.
- Defendants stipulated to comparative percentages of liability for purposes of the plan while preserving objections to the plan’s legality.
- Pittsburgh Corning Corp. and Asbestos Corp. Ltd. appealed final judgments challenging, among other matters, the use of sample-case averages to fix damages for untried plaintiffs.

## Issues

1. Whether the district court could enter judgments for thousands of untried plaintiffs by assigning them average damages derived from verdicts in 160 sample trials.
2. Whether resolving plaintiff-specific elements (exposure, causation, and damages) through statistical extrapolation complied with the Seventh Amendment, due process, the Federal Rules, and Texas substantive law.
3. Whether Rule 23(b)(3) certification and consolidation were proper given the predominance of individualized issues.

## Decision

- The Fifth Circuit reversed key aspects of the trial plan and set aside judgments resting on extrapolated damage awards.
- The court held that using sample-case verdict averages to determine damages for untried plaintiffs impermissibly displaced jury findings required for each plaintiff’s claim.
- The court concluded the plan conflicted with Texas law’s requirements for plaintiff-specific proof of exposure, producing cause, and damages.
- The case was remanded for further proceedings consistent with the requirement of individualized adjudication on essential elements.

## Legal Principles

- The Seventh Amendment protects a defendant’s right to have a jury determine liability and the amount of damages on each individual plaintiff’s claim; those determinations cannot be replaced by judicial assignment of statistical averages.
- Bellwether trials may inform settlement, but verdicts in tried cases cannot be made binding to decide damages for nontried plaintiffs who did not present individualized evidence to a jury.
- Under Texas asbestos causation and damages rules, each plaintiff must prove exposure to a defendant’s product, producing cause, and the plaintiff’s own compensatory damages; categorical averaging cannot substitute for that proof.
- Rule 23(b)(3) requires predominance and manageability; a plan’s reliance on extrapolation to avoid individualized trials indicates that individualized issues predominate and that the class device is not superior for adjudicating the claims.
- Aggregation mechanisms and procedural innovations may not abridge substantive rights or deny defendants a fair opportunity to contest plaintiff-specific evidence relevant to causation and damages.

## Conclusion

The Fifth Circuit rejected a mass-tort trial structure that converted sample asbestos verdicts into binding, average damage awards for thousands of untried plaintiffs, holding that the approach violated the jury-trial right and displaced Texas law’s plaintiff-specific requirements for proving causation and damages.


Cimino v. Raymark Indus., Inc., 151 F.3d 297 (5th Cir. 1998)