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case.

Peter Schuck (1995) argues that over time, a particular mass tort

litigation

may

“mature”:

judges

create

mechanisms

to

handle

the

mass

of

claims and lawyers have an increasingly large sample of cases that are actually tried to verdict from which to calculate the expected value of

a

particular

claim

(Schuck

1995).

Repeat

players,

judges

and

lawyers,

work

with

each

other

to

minimize

transactions

costs

and

develop

informal

unwritten settlement schedules that, ideally, provide compensation for

the injured while process increases strategy could be

resolving a company’s liability.

Ideally, this

horizontal

equity.

The

cerivastatin

settlement

seen

as

a

successful

attempt

to

vastly

accelerate

the

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 mass

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

are based.

specifics

of

Neither Bayer nor the plaintiffs have publicized

the

settlements

nor

the

schedule

on

which

they

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

implications

for

public

welfare.

On

the

positive

side,

the

strategy

reduced some litigation costs by sooner than they otherwise might

encouraging have. More

plaintiffs to settle intangibly, Bayer’s

cases

approach product,

suggested some responsibility for provided an informal guarantee of

the harm caused by horizontal equity,

its and

was

definition of disability among federal benefits statutes and resulting inconsistencies).

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