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agreement.

42

Miami plaintiff’s attorney John Ruiz explained: “Bayer has

responded in good conscience.

They knew they had a problem and admitted

they were wrong.

In general the plaintiff’s attorneys are pretty

satisfied.”

He

contrasted

this

behavior

with

the

actions

of

American

Home Products in fen-phen litigation (Kay, 2003). favorably upon the speed and efficiency with which

Ruiz also commented the settlements were

processed.

43

Similarly, Bayer did not attempt to conceal its

settlements by requiring confidentiality agreements.

Like the existence

of a schedule, this action conveys the message of taking responsibility

for wrongdoing. agreements that

This contrasts with the sweeping confidentiality are often sought with settlements.

Bayer’s actions convey this social meaning even if it has nothing

to do with strategy.

Bayer management’s subjective motivations for pursuing It may be that Bayer pursued this strategy purely as a

this way of

44 minimizing overall payouts. Second, Bayer’s approach provided at least the appearance of

horizontal equity: treating similarly situated plaintiffs similarly.

45

____________

42 43 44 E-mail communication with George Lykos, September 27, 2007. Interview with John Ruiz, February 19, 2008. Of course, the “subjective” motivations of a corporate defendant are difficult to ascertain -- or even conceptualize.

45 Absent access to the settlement data, it is impossible to confirm this.

Interestingly, the horizontal equity may have been only within

national borders: Canadian substantially less than US

plaintiffs appear to have

plaintiffs.

According

to

been offered the publicly

filed

class action notices, Canadian plaintiffs’ “Level I: Rhabdomyolysis contemporaneously

payments were as follows: with ingestion of Baycol.

No

hospitalization required: $10,000; Level II: contemporaneously with ingestion of Baycol.

Rhabdomyolysis Hospitalization

was

required

but

no

dialysis

was

necessary:

$25,000

plus

$1000

for

each

day

initial in-patient hospitalization for treatment of Rhabdomyolysis (specifically excluding rehabilitative care and chronic care); Level III: Rhabdomyolysis contemporaneously with ingestion of Baycol.

Hospitalization was required and dialysis or treatment was necessary: $50,000; plus $1000

other exceptional hospital for each day of initial in-

patient hospitalization for treatment of Rhabdomyolysis (specifically excluding rehabilitative care and chronic care) plus $2000 for each dialysis treatment to a maximum of $50,000; for a maximum total payment

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