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Because of the lack of confidential settlement agreements and the existence of a schedule, plaintiffs had some assurance that they were not being treated substantially differently than other claimants for

reasons that were unrelated to the injury they marked contrast to the conventional settlement

received.

paradigm

This is in

where

factors

such as the skill and reputation of the plaintiffs’ and defendant’s trial attorneys, the jurisdiction in which the plaintiff filed suit, the judge to which the case is assigned can greatly affect the

and

settlement amount.

46

Plaintiff’s counsel John Ruiz commented that “it

didn’t matter who you were” and contrasted the cerivastatin experience

with other pharmaceutical settlements.

47

In this respect it partially

resembled a private sector version of the 9/11 Victim Compensation Fund

and incorporated some of this approach’s strengths.

48

Eliminating or

of of

$100,000; Level IV: Rhabdomyolysis contemporaneously with ingestion

Baycol.

Hospitalization

was

required.

Person

continues

to

require

permanent dialysis on an ongoing basis or died of a cause directly attributed to rhabdomyolysis Under 30 years of age: $175,000; 31-40 years of age: $165,000; 41-54 years of age $155,000; 55-69 years of

age

$145,000; 70 years of age or more: $130,000; Level V: Rhabdomyolysis contemporaneously with ingestion of Baycol which caused other serious

injury not contemplated in Levels I-IV or claims where cause of rhabdomyolysis is disputed: Claims will be subject to mediation

followed

by binding (“Baycol”) Action.

arbitration if necessary.

Notice to Users of Cerivastatin

in

Canada

and

their

relatives

of

Proposed

Settlement

of

Class

46 The perception of horizontal equity, in addition to substantive horizontal equity, is independently important to the perceived

legitimacy of the legal system. Interview with John Ruiz 47 48 , February 19, 2008. Comparing the nature of the transparency that resulted from the VCF to the transparency that resulted from the Bayer settlement strategy

is interesting and illustrates the priorities of the structuring

authorities.

In

the

VCF,

the

Special

Master

sought

high

participation

among eligible claimants, but did

commitment

tool.

Accordingly,

he

not attempt published a

to use the schedule as preliminary table that

a

served as an initial bargaining position.

agreements

with

VCF

claimants

concealed

the

Required

precise

confidentiality amounts agreed upon.

In contrast, Bayer sought to use the schedule had no desire for publicity for its own sake.

as a commitment tool but It therefore did the

exact opposite of the but generally used no

special master – it did not publish the schedule confidentiality agreements following agreement.

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