John Monahan

Sampling Evidence at the Crossroads

Southern California Law Review


The use of sampled evidence in mass tort cases is at the crossroads. In McLaughlin v. Phillip Morris, Judge Jack B. Weinstein of the Eastern District of New York certified a nationwide class action on behalf of an estimated 50 million "light" cigarette smokers. In the face of the overwhelming cost of gathering evidence from tens of millions of plaintiff class members, he announced a dramatic trial plan to completely abandon individualized adjudication in favor of aggregate factual determinations based on evidence from statistical samples. The central issue in the interlocutory appeal now before the Second Circuit is the legality of statistical sampling. This Article strenuously defends Judge Weinstein's strategy of relying on evidence produced through proven methods of sampling. Such an aggregate strategy is not only much more cost-effective than case-by-case evidence gathering, it is also much more likely to arrive at an accurate determination of damages. By laying out a comprehensive proposal for the use of sampled evidence in litigation, the authors hope to hasten the day when legal decision makers finally accept a practice than has been a hallmark of scientific decision making for the past sixty years.


John T. Monahan & W. Laurens Walker, Sampling Evidence at the Crossroads, 80 Southern California Law Review 969-995 (2007).

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