Peter Schuck (1995) argues that over time, a particular mass tort
claims and lawyers have an increasingly large sample of cases that are actually tried to verdict from which to calculate the expected value of
unwritten settlement schedules that, ideally, provide compensation for
the injured while process increases strategy could be
resolving a company’s liability.
maturity of this mass tort.
Rather than generate a workable schedule
after years of litigation, Bayer short-circuited the process and proposed an ostensibly fair way to compensate the injured without unpredictability, variability of outcomes and expense of years of tort litigation.
The limited. nearly as
transparency that the Bayer strategy enabled was importantly Not insisting on confidentiality settlement agreements is not transparent as publicizing the settlements or the schedule on
which they either the
Neither Bayer nor the plaintiffs have publicized
are based. agreements. as a public
Similarly, much discovery was protected by confidentiality In this respect, the strategy is not nearly as transparent trial and adjudication.
In sum, the cerivastatin strategy has both positive and negative
reduced some litigation costs by sooner than they otherwise might
encouraging have. More
plaintiffs to settle intangibly, Bayer’s
suggested some responsibility for provided an informal guarantee of
the harm caused by horizontal equity,
definition of disability among federal benefits statutes and resulting inconsistencies).