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Statistical Determination of Mass Tort Damages: Coming Soon to a Court Near You?

By Jerome M. Staller, Ph.D. and Lawrence M. Santucci

Traditionally, courts have been reluctant to consider the use of statistical tools such as sampling to determine damages in class action litigation and other cases involving large groups of plaintiffs. Arguments against the practice include the fact that it seemingly flies in the face of the Seventh Amendment, and that damages, by their very nature, are peculiar and specific to each individual plaintiff.

However, as Federal District Judge Jack B. Weinstein observed in a ruling in a huge, ongoing consumer-fraud class action against Big Tobacco, “mass tort cases have stripped the ability of the common law, with its relatively rigid adherence to precedent, to fashion remedies that adequately redress the harms of modern technological society.” In re: Simon II Litigation, No. 00-CVBB5332, 2002 U.S. Dist LEXIS 19773 (E.D.N.Y. 2002).

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