Judicial Notebook

Last October, Judge Jack B. Weinstein of the U.S. District Court for the Eastern District of New York certified a nationwide class in a lawsuit brought on behalf of smokers of "light" cigarettes. The plaintiffs allege that the defendant cigarette manufacturers violated the Racketeer Influenced and Corrupt Organizations Act (RICO) (Schwab v. Philip Morris, 449 F.Supp.2d 992) by marketing "light" cigarettes as less harmful to smokers health than regular cigarettes.

As described by the court, "[t]he claim is that the carcinogenic and other adverse effects smokers sought to avoid were not reduced by smoking 'light' rather than other cigarettes; that defendants knew this was the case; that they concealed this fact; that they urged plaintiffs-through advertising and other public statements-to smoke these 'lights' knowing smokers were being misled; and that they defrauded purchasers of billions of dollars spent for 'light' cigarettes worth less than their purchase price."

In addition to certifying the class, Judge Weinstein approved the use of statistical samples in determining whether or not the members of the class had relied on the defendants' representations that light cigarettes had less harmful health effects than other cigarettes. In addition, Judge Weinstein approved the use of statistical samples in determining the amount of damages suffered by the class. Thus, rather than making an individualized determination about the reasons each smoker in the class chose to smoke light cigarettes, whether or not each smoker relied on the defendant cigarette manufacturers' statements, or the amount of damages suffered, the court would consider evidence based on samples from the class.

Acceptance of statistical sampling

Evidence based on statistical sampling has had a varied history in the courts. Early cases (such as Elgin National Watch Company v. Elgin Clock Company, 1928; James S. Kirk & Co. v. Federal Trade Commission, 1932) found that survey evidence based on samples was inadmissible as a violation of the hearsay rule-a rule that prohibits the admission of statements made out of court that are "offered in evidence to prove the truth of the matter asserted" (Fed. R. Evid. 801(c), 802). Other concerns related to the departure of sampled evidence from the type of individualized determination valued by courts. However, courts eventually came to accept statistical sampling in cases such as U.S. v.United Shoe Machinery Corp.,1953; Zippo Manufacturing Co. v. Rogers Imports, Inc., 1963) and survey evidence is now generally admissible under the Federal Rules of Evidence (Fed. R. Evid. 703).

As Judge Weinstein noted, evidence based on sampling is now used in a wide variety of cases, including discrimination cases and cases alleging trademark infringement. Despite courts general acceptance of evidence based on statistical samples, however, the use of sampled evidence in mass tort trials has not been widespread.

The potential of sampling

In determining that statistical sampling was appropriate in the case of the light cigarette smokers, Judge Weinstein found that the use of sampled evidence would violate neither the constitutional requirement of due process, nor the 7th Amendment right to a jury trial. The judge maintained that evidence based on statistical samples "may provide a more accurate and comprehensible form of evidence than would the testimony of millions of individual smokers." Indeed, he argued that "[l]itigation of the RICO class claims with full debate over the merits of proffered surveys and statistical models-which the parties have begun may-provide greater safeguards to defendants than would the litigation of a single handpicked sympathetic plaintiffs case who seeks punitive damages for the conduct of defendants towards all possible plaintiffs."

In making his determination, Judge Weinstein also considered the costs involved with individualized proof. He concluded that to require individual determination of the facts would be prohibitive and, as a practical matter, leave the plaintiffs without a remedy. Moreover, he argued that "[i]t is particularly important not to deny the courts the ability to take advantage of cost savings through modern scientific techniques for acquiring information."

The case has not yet gone to trial. The Second Circuit has granted the defendants' request to appeal Judge Weinstein's order and has issued a stay pending resolution of the appeal. Thus, the extent to which evidence based on statistical samples will catch on in this and other mass tort cases remains to be seen. Sampling has the potential to offer great benefits to courts, just as it has to the science of psychology. As courts grapple with the use of statistical sampling in court, social scientists can offer their expertise on sampling practices to the court and can help courts develop sound practices that are responsive to the courts' needs (see Monahan & Walker, forthcoming; Saks & Blanck, 1992; Zeisel & Kaye, 1997).

"Judicial Notebook" is a project of APA's Div. 9 (Society for the Psychological Study of Social Issues).