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Coordination on the part of plaintiffs’ lawyers to press for trials

during a certain period can exacerbate this effect.

21

going

A defendant can therefore sometimes to trial with inadequately prepared

face the lawyers,

choice of either

or

settling.

Neither

option is thousands

attractive to the of claims without

defendant.

Going to

having

well-prepared

trial on even one of trial lawyers risks

setting

informal

precedent

and

headline-grabbing

verdicts.

Large

trial

verdicts are not only costly in and of themselves but also raise

expectations on

juries.

On

the

the part of other hand,

other plaintiffs and potentially settling borderline cases sets a

other negative

precedent of

its own.

without much

scrutiny,

If even weak claims plaintiffs’ counsel

are likely to be settled have incentives to find as

many claims as possible, however weak.

22

As a result of these effects,

some mass torts can cause larger losses to a defendant than might

otherwise be expected.

23

Moreover, Daugherty and Reinganum (2007) argue that mass torts that rely upon epidemiological evidence of causation can create an “externality,” an indirect effect that generally benefits plaintiffs. If liability hinges in part on the proportion of the population exposed

to the product that is harmed by it, then an injured plaintiff will

rationally extrapolate from other cases of which she is aware estimate the likelihood of liability ultimately being found.

to Thus

the

more cases filed, the higher being found at trial and the

the plaintiffs’ more aggressive

prediction of the plaintiff

liability will behave.

____________ Interview of Gary McConnell, Bayer Legal Department, 2007. Bayer lawyers whom I interviewed emphasized Bayer’s immediate 21 22

preparation for potential trials all over the natio emphasized, made their threat to litigate credible.

n.

This, they If, in contrast,

plaintiffs’ lawyers believed that Bayer was not prepared to aggressively litigate, the plaintiffs’ lawyers may have discouraged their clients

23 from accepting settlements. In some instances (e.g. breast implant

, asbestos) mass tort

defendants have chosen or been forced to choose bankruptcy.

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