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Similarly, Kuran and Sunstein (1999) explain how “availability cascades” can cause the public to overestimate a particular risk. These

occur when people estimate the plausibility of a risk based on how

readily they can call an occurrence to highly publicized, people will tend to

the

risk.

In

the

mass

tort

context,

a

mind.

If even a small risk

overestimate

the likelihood

jury is more

likely to find

is of for

the plaintiff if they have heard of the both of these ways, mass torts can have even large corporate defendants to fear

danger occurring elsewhere. a “snowball” effect and lead them.

In

UNDERSTANDING WHY LIMITED TRANSPARENCY WAS IN BAYER’S INTEREST

At first, it appeared as though cerivastatin would follow the

pattern

of

other

mass

torts.

Plaintiffs

in

jurisdictions

believed

to

be

plaintiff-friendly in Texas were being recruited by newspaper,

billboard, television, and website. capitalization, Bayer’s stock price

Despite was down

its huge market appreciably -- apparently

as

a result of the

to

general counsel

uncertainty and the large expected losses. for Bayer, plaintiffs’ counsel were willing

According to settle

the stronger rhabdomyolysis cases only if Bayer would also settle the much weaker non-rhabdomyolysis cases where cerivastatin was alleged to

have caused other injuries.

24

Instead of seeking a global settlement, Bayer announced to plaintiffs’ counsel the creation of a schedule of damages for rhabdomyolysis cases and the fact that it was not generally seeking

confidential settlement agreements. (including some involving plaintiffs that Bayer won, the vast majority of

After a handful of trials that suffered from rhabdomyolysis) plaintiffs accepted the scheduled

a m o u n t s . 2 5 W h y ?

24 25 ____________ Interview with George Lykos (2007). Interview with Gary McConnell (2007).

See also Langley (2004).

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