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As with the other cases they litigate, plaintiffs’ attorneys will negotiate mass tort settlements to secure maximum compensation for their injured clients. But mass tort cases, for a number of reasons, are more complex to litigate and settle than typical personal injury cases. Two key reasons why are the number of claimants and the range of injuries and damages they’ll be alleging.
Plaintiffs’ attorneys are no strangers to entering mass tort settlement negotiations armed with data in support of their position, such as favorable case law, expert reports, or comparable prior settlement amounts. But when attempting to settle mass tort cases, plaintiffs’ attorneys will need more than the usual data to force defendants’ and insurers’ hands and to obtain maximum value for their clients.
In particular, plaintiffs’ attorneys should consider compiling the following five key data points regarding their mass tort clients’ claims before entering settlement negotiations if they want to establish the strongest negotiating position possible.
Data Point #1 – The Scope of a Defendant’s Liability
For mass tort claims involving products that cause injury or disease, plaintiffs’ attorneys should get a sense of the total universe of potential claims so they can understand the scope of a defendant’s potential liability and the size of their portfolio of clients’ claims in relation to this total universe. This information can be particularly insightful early on in a litigation, but it will still be valuable later after many cases have been filed.
To determine the universe of potential cases, counsel will need data that connects the use of the product at issue to the injuries that it allegedly has caused. This data, unfortunately, rarely comes packaged with a bow. Instead, counsel will need to engage experts who can triangulate information from various data sources, such as the Centers for Disease Control and Prevention, the National Institutes of Health SEER program, insurers, medical billing data clearinghouses, product usage data companies, and location data providers.
With this information, experts can estimate what percentage of the population of product users might be suffering from diseases or injuries caused by a particular product, and what percentage of the overall population uses that product. From there, plaintiffs’ attorneys can determine what kind of liability defendants might be on the hook for given the universe of possible claimants.
Interestingly, as more claims are filed, experts will see just how accurate this analysis is. If the demographics of claimants reflect the demographics predicted by the analysis, the experts and plaintiffs’ attorneys will be more confident about the analysis. If the demographics show the analysis was off, the demographic information provided by claimants as they file will be used to increase the accuracy of the analysis. If there is a demographic gap in the expected filings versus the actual filings identified by the analysis, that information could potentially be used to increase outreach.
Armed with this data, plaintiffs’ attorneys will gain an understanding of how much liability defendants will be on the hook for. Depending on the nature of the mass tort (which we discuss more below), the size of this liability could impact settlement values, the value of releases, particular plaintiffs’ attorneys’ bargaining power, and even whether defendants might attempt to skirt liability for their actions by attempting a Texas Two-Step or another similar evasive action.
Data Point #2 – Does Their Firm Represent a Sizeable Number of Claimants?
In any negotiation, leverage is key. In mass tort settlement negotiations, the firms sitting at the table with a large percentage of clients with cognizable, high-value claims will have the most settlement leverage.
Regardless of how many clients they represent, every plaintiffs’ attorney representing clients in a mass tort should calculate the percentage of total possible clients their firm has signed up in a mass tort based on data they commissioned experts to compile or that co-counsel provided them. This will give an attorney a sense of how much weight the defendants, their co-counsel, and other plaintiffs’ firms involved in the litigation will give their views—and demands—during settlement and throughout the litigation.
Data Point #3 – The Types and Severity of Injuries Suffered by Their Clients
Given the nature of the products at the center of mass tort cases and the wide variety of injuries they will be alleged to have caused, plaintiffs’ attorneys should have a firm grasp of the types and severity of the injuries their clients have suffered before they begin settlement negotiations. Two clients could have been exposed for similar periods of time to the same dangerous/defective product and suffered different sets of injuries.
Some clients may have suffered chronic diseases that are fatal or that are accompanied by painful symptoms. Others might have suffered one-time catastrophic injuries. Then again, still others might have suffered an injury that healed quickly, caused minimal pain, and was more of an inconvenience than anything else.
Likewise, some clients’ injuries might have required ongoing medical treatment and rehab, and significantly disrupted their lives for an extended period of time. Others might have resulted in a trip to the emergency room, and maybe an overnight hospital stay, but nothing beyond that.
Once they compile this data, plaintiffs’ attorneys should value their clients’ injuries with the help of available data from other mass torts, other publicly available information, or with the help of experts. Having this data at their fingertips regarding the variety of injuries their clients suffered will give plaintiffs’ attorneys a starting point for valuing their overall portfolio of claims during settlement negotiations based on a thoughtful analysis instead of a number that defendants and insurers could accuse them of pulling out of thin air.
Data Point #4 – The Nature of Their Clients’ Damages
Going one step beyond the types and severity of their clients’ injuries, plaintiffs’ attorneys should determine the specific types of damages their clients will allege, and the range of values of those damages. After all, two clients facing similar injuries will likely assert different damages given their professional and personal situations.
The factors impacting individual clients’ damages will include:
- The age when they were injured
- The amount of income lost, if any, due to their injuries
- The length of their exposure to the product
- The number of a client’s dependents
- The pain and suffering the product caused
- The cost of living in the area where they live
- Their wages at the time of their injury, assuming the injury caused them to miss work or stop working altogether
Unlike when determining the values of their clients’ injuries, valuing the nature of their clients’ damages will require plaintiffs’ attorneys, and perhaps their experts, to analyze their clients’ particular situations. Though time-intensive, plaintiffs’ attorneys will eventually see patterns emerge across their client base that will assist with developing a formula for valuing damages.
As with valuing their mass tort clients’ injuries, when plaintiffs’ attorneys have a sense of the nature and amount of those clients’ damages, their settlement offers will carry more credibility because they can be backed up with data compiled after an objective analysis.
Data Point #5 – The Strength of Their Clients’ Cases
Damages drive the valuations of a plaintiffs’ firm’s portfolio of mass tort claims. But if many of their clients have weak cases thanks to questions about causation, the firms’ attorneys will have a hard time securing a settlement in line with what their damage analyses suggest the claims are worth.
That’s why plaintiffs’ attorneys will need to analyze the strength of the potential evidence in their clients’ cases. For example, do their clients have a provable pathology? Will their medical records show that they did not previously suffer the injury or develop the disease they are alleging they suffered or developed until they were exposed to the product in question?
In a similar vein, can their clients prove they actually used the product or were exposed to it? For example, can they prove they used Roundup consistently over a particular period of time? Also, can they prove they used the specific brand whose product is at issue and not a competitor’s or a store brand that was not manufactured by the defendant?
Armed with this data, plaintiffs’ attorneys could discount certain clients’ claims by a particular percentage based on concerns about proving the pathology or exposure. By doing so, they would increase the credibility of their settlement valuations should they be asked to provide bases for it.
The Importance of Data When Negotiating Mass Tort Settlements
Even the most seasoned plaintiffs’ attorneys will be hard-pressed to develop a supportable settlement number for a large portfolio of their clients’ claims in mass torts without some number crunching. These five data points will help plaintiffs’ attorneys and their firms accurately value their clients’ mass tort claims, which will allow them to come to the settlement table with credible valuations of their portfolios and thus credible settlement demands. The more stringent their analysis, the harder of a time defendants or insurers will have devaluing their clients’ claims or making grossly inadequate settlement offers.
Edward Silverman is Analytics Manager at Verus, a leading mass tort litigation support services firm. He can be reached at esilverman@verusllc.com.