The art of negotiating claim settlements in complex medical and exposure-related cases has been discussed by many parties in the Insurance and legal communities over many years. My experience in handling and negotiating asbestos claims on behalf of over 50 defendants for over 20 years in both state and federal courts has allowed me to gain a perspective of how negotiations take place in today’s world of pharmaceutical, environmental, and other mass torts litigation.
Whereas products liability defendants don’t always negotiate a claim’s resolution from a position of strength, they are typically better organized than their adversaries in the plaintiffs’ bar (particularly the newer and smaller plaintiffs’ firms). This is due to the fact that they have greater access to more detailed information relating to the product(s) at issue in any given claim. Amongst the information readily available to the defendants are the product’s composition; years of manufacturing/marketing; geographic distribution; and primary applications. Knowledge of these facts can assist in formulating an appropriate response to plaintiff’s allegations and preparing a persuasive defense. Furthermore, it can aid the defendant in determining the relative strengths/weaknesses of the plaintiff’s case.
Equally important to product knowledge is the defendant’s ability to access data and statistics to determine how similarly situated claims were previously resolved so as to predict future outcomes. Such information provides the defendant’s with a strong guideline insofar as arriving at a claim’s evaluation. Predictive analytics is a particularly useful tool in demonstrating to an arbitrator or mediator the rationality of the defendant’s valuation and/or the unreasonableness of the plaintiff’s valuation.
Many of the newer and smaller plaintiffs’ firm do not have access to such data and would be well served through the use of analytics. Analytics can be used by such firms to become more knowledgeable about certain types of cases and better predict the outcome from the beginning. Such an ability allows these firms to keep their cases in-house as opposed to referring them out to the more “experienced” firms. It also helps to reduce costs incurred by protracted litigation and negotiations as a more accelerated resolution of the claim can be made.