## Facts

- Thousands of asbestos personal-injury cases accumulated in the Eastern District of Texas, ultimately totaling 3,031 claims.
- The district court entered pretrial orders consolidating the 3,031 cases and adopting a three-phase trial structure to address common issues and overall liability.
- Phase I proposed trying common issues (including general defenses) and punitive damages on a class-wide basis.
- Phase II proposed trying a limited set of representative (“bellwether”) plaintiff cases to the same jury and using statistical/representative evidence to determine “omnibus” class-wide liability and damages for the entire group.
- Phase III proposed administering and allocating any aggregate damages award among individual claimants using post-verdict distribution methods.
- Multiple asbestos defendants petitioned the Fifth Circuit for writs of mandamus directing the district court to vacate the portions of its trial plan authorizing the Phase II aggregate procedure.

## Issues

1. Whether Rule 23 and consolidation permit a Phase II trial that extrapolates from representative cases and statistical proof to determine class-wide (“omnibus”) liability and damages for thousands of tort claimants.
2. Whether such a procedure impermissibly alters substantive Texas tort-law requirements of individualized causation and damages in violation of the Rules Enabling Act.
3. Whether the Phase II plan threatens defendants’ due process and Seventh Amendment jury-trial rights by replacing individualized adjudication with aggregate extrapolation.

## Decision

- The Fifth Circuit granted mandamus in substantial part.
- The court prohibited the proposed Phase II “omnibus” liability/damages trial from proceeding as ordered.
- The court rejected the use of representative trials and statistical extrapolation to set class-wide tort liability and damages for thousands of absent claimants.
- The court did not foreclose using class or consolidated procedures for genuinely common issues, but held the Phase II aggregation model exceeded permissible federal case-management authority.

## Legal Principles

- Federal procedural devices, including Rule 23, cannot be used to abridge, enlarge, or modify substantive rights; they may not be deployed to change what elements state tort law requires a plaintiff to prove.
- In Texas products-liability/asbestos tort claims, individualized proof of exposure/causation and individualized damages are substantive requirements that cannot be replaced by aggregate extrapolation from a sample of cases.
- Statistical or representative proof cannot substitute for individualized adjudication of core liability and damages elements merely by characterizing the approach as a different “mode of proof.”
- Federal Rule of Evidence 1006 permits evidentiary summaries of voluminous materials but does not authorize using statistical projections to replace individualized proof of tort elements.
- Due process and the Seventh Amendment constrain trial plans that shift juries from deciding individual controversies to determining global liability and damages for large groups based on representative evidence.

## Conclusion

The Fifth Circuit used mandamus to block a consolidated asbestos trial plan’s Phase II procedure that would have relied on representative trials and statistical extrapolation to impose aggregate, class-wide tort liability and damages, holding that the approach exceeded federal procedural authority and conflicted with Texas substantive tort-law requirements and constitutional trial protections.


In re Fibreboard Corp., 893 F.2d 706 (5th Cir. 1990)