Bayer’s Ability to Credibly Litigate All Other Cases was a Prerequisite to this Strategy
Finally, Bayer’s preparation for extensive litigation made credible their threat to litigate every non-rhabdomyolysis case and
every rhabdomyolysis case for which
plaintiffs at several
did not accept the high-profile early
to risk Bayer’s
trials even in historically plaintiff-friendly jurisdictions. retention of outside trial lawyers and preparations for training
the necessary number of additional lawyers also signaled to plaintiffs that Bayer was prepared and able to defend these cases at trial without
settling. discovery defendant
In some other mass torts, the sheer number of claims, requests, and trial dates led to the perception that a given was unable to credibly defend the number of cases and was
GENERAL PUBLIC WELFARE IMPLICATIONS OF BAYER’S STRATEGY
Effective commitment strategies of this kind have mixed effects on
They may reduce delay costs because plaintiffs have to engage in posturing about the amounts for which they
will settle (Spier 2003).
As a result, cases that would otherwise
only on the eve of trial settle
earlier because there is things being equal, this
both wasteful transaction costs of litigation (e.g., hiring lawyers posture about reservation prices) and the costs of delay (the harm caused by delaying compensation to the injured).
However, an effective commitment strategy may lead a defendant to
take a reduce
more aggressive posture and take more cases to trial.
____________ Interview with Gary McConnell, 2007. 39