Development of a Framework for Litigation Decision Making

For a top-selling product that remained on the market, we developed a framework for counsel to evaluate the likely consequences of its decisions (e.g., global settlement, piecemeal settlement, litigate all claims). This included attention to the economic consequences for the product, therapeutic franchise, and company as well as the impact of early strategic choices in this context on later financial outcomes. We calibrated our decision tool using a variety of data sources to quantify the expected number of plaintiffs and cost per plaintiff, including:

• Analysis of administrative claims data to assess excess risk of medical injury (i.e., as a basis for estimating the likely number of claimants) and their associated costs
• Estimates of plaintiff attorney advertising compared to flow of past claimants coming forward over time as an indicator of the likely number of future claimants
• Compilations of settlement outcomes in past mass tort cases to determine award amounts and number of claimants
• Analysis of state and federal databases containing thousands of legal decisions in product liability and tort cases to analyze the typical award structure (e.g., compensatory versus punitive damages) in comparable cases

This analysis also provided our client with insight concerning the adequacy of reserve funds against future claims.