The asbestos litigation that began in the 1980’s and continues to this day is the original mass tort. We should know, because we have been involved since the early days.
Verus’ founders were pioneers of the original mass tort — they helped design some of the first-ever mass tort settlements and in the process, administered more than 450,000 asbestos personal injury claims and disbursed more than $6 billion in settlement funds and expenses. Today, we continue to focus on helping those whose lives have been impacted by defective products – including medical devices and dangerous drugs. Besides the important role class action and mass tort lawyers play in helping the injured achieve justice, the similarities between their cases are also steeped in how data is being leveraged in the outcomes.
Let’s back up a bit.
The analysis of data plays a key role in valuation as it relates to settlements for the claimant by helping to assign a dollar value for the settlement. For example, a settlement may vary because of the time in life a claimant was diagnosed, where the claimant lives, the extent of their injuries or illness, and their financial obligations. A valuation model would take into account settlement and/or verdict history to examine many such factors and determine whether they are correlated to higher or lower settlement values.
By way of example, back in the heyday of the asbestos litigation, it was not uncommon for asbestos defendants to attend settlement conferences with State Court Judges, Mediators, and Arbitrators armed with reams of paper reports that supported their position that the value of a group of cases, or of an individual trial set case, was fair and reasonable based on historical data of comparable cases. The historical data was analyzed based on a number of historical factors, including claimants’ occupation, claimants’ disease, the values in a given jurisdiction, and the past settlement values with a particular law firm.
Defendants would typically attempt to resolve cases that fell into three categories, cases that were scheduled for trial, cases that were in different phases of discovery, and newly filed cases. Defendants would analyze the data on these three populations of cases in an effort to minimize their future liability by resolving key cases or targeted cases early in the lifecycle of the discovery process. Later, plaintiff lawyers caught on and caught up – turning to data analytics to use information that is rationally defensible, objective, structured and more consistent to guide settlement strategy. And despite the fact that the modeling techniques continue to improve and the available data continues to change, too, statistical modeling is simply a more just and efficient way to arrive at those decisions.
And the evolution continues.
Today, we are seeing mass tort law firms make use of data analytics very early in the litigation to help them get a handle on just how much future settlements may be worth. Data science can be useful both in determining the settlement value and in structuring settlement metrics for determining payouts to individual claimants. In each case similar information about the claims, such as injuries incurred, medical costs and procedures, confounders, medical reports, product information, history of the product and/or drug, litigation status, epidemiological information, and demographics all can play a role in providing valuable information.