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there are different groups of plaintiffs for whom the defendant can observe different case characteristics, the analysis becomes more complicated because different plaintiffs have incentives to pretend to

be

in

higher-valuation

categories

of

plaintiffs.

Distinguishing

between

different classes may incentives to obscure

be difficult and expensive and plaintiffs may have

their

class

membership.

For

example,

other

mass

tort cases may differ not only proof of proximate causation.

as to extent of injury but also as to A former asbestos worker who alleges that

asbestos exposure caused his non-mesothilioma lung

much stronger the defendant claim.

position if he denies smoking.

With

cannot

easily

ascertain

the

strength

cancer might be in a these complications of a plaintiff’s

Here, the relatively direct connection between cerivastatin and rhabdomyolysis and the absence of alternative causes of rhabdomyolysis

facilitated the overall cerivastatin strategy.

The diagnosis of

rhabdomyolysis

and

the

specific

verifiable by

hospital records

plaintiffs to

pretend to be in

opportunistic

behavior.

injuries

suffered

by

the

plaintiffs

and there were limited opportunities another category or for other

were for

Worldwide Publicity Reduced Appeal of Confidentiality to Control Litigation Risk

Similarly, Bayer’s decision not to press for confidentiality agreements is consistent with the literature on secret settlements and is intuitively understandable (Daugherty and Reinganum, 1999); Daugherty

and Reinganum, 2005);

(Shavell, 1997).

This literature concludes that

confidentiality

agreements

are

more

likely

when

they

reduce

the

risk

of

future litigation.

In this instance, the worldwide publicity

surrounding downplaying

Bayer’s withdrawal the problem in the

of cerivastatin made concealing or hopes of considerably reducing overall

Litigation, 560 F.Supp. 943, 947 (Ga. 1979)

(striking down MFN clause

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