Coordination on the part of plaintiffs’ lawyers to press for trials
during a certain period can exacerbate this effect.
A defendant can therefore sometimes to trial with inadequately prepared
face the lawyers,
choice of either
option is thousands
attractive to the of claims without
trial on even one of trial lawyers risks
verdicts are not only costly in and of themselves but also raise
the part of other hand,
other plaintiffs and potentially settling borderline cases sets a
If even weak claims plaintiffs’ counsel
are likely to be settled have incentives to find as
many claims as possible, however weak.
As a result of these effects,
some mass torts can cause larger losses to a defendant than might
otherwise be expected.
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.
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.
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.