Winning Mass Tort Litigation Strategies

1. Jeff Hines WinningMassTortLitigationStrategies

2. Philly’s Complex Litigation Center Judicial Hellhole Massive Filing Fees Economic Stimulus Judge Sandra Mazer Moss

3. Philly’s Complex Litigation Center Expediency over Fairness Multiple and Overlapping Trials Good luck challenging Venue 4,790 Cases HRT YAZ

4. Early Bird Gets the Worm Gather Information Quickly Assemble Litigation Team Develop Initial Defense Strategy Get Experts Beware eDiscovery Sanctions

5. WYETH “BAD DOCUMENT”

6. It Takes a Village- The Litigation Team Client National Counsel Local Counsel Virtual Law Firm

7. Just Pay The Bills and Shut Up - Insurance Who is funding the defense and potential liability? Coverage in Place Agreements Communication

8. Know When to Hold ‘em, Know When to Fold ‘em - Defense Strategy Bayer Baycol Litigation U.S. Silica  $0 for post 1985 YOFE Telectronics  Summary Jury Trial

9. Accufix Protrusion

10. Different Strokes for Different Folks • Flexible Strategies • Case Study - Wyeth

11. Screening Tests Are Reliable? Diagnostic tests used by expert can be altered to produce a desired result.

12. Left Atrium Mitral Right Atrium Aortic Pulmonic Tricuspid Left Ventricle Right Ventricle

13. Mitral Regurgitation Left Atrium Right Atrium Right Ventricle Left Ventricle 145002.13 13

18. “The Court also grants Wyeth’s motion for the appointment of an expert or experts to aid it in determining the propriety of Wyeth’s challenges.”

19. In Phase I, the issues of whether Plaintiff has suffered a compensable injury resulting from the use of diet drugs and, if so, the amount of compensatory damages, shall be tried. In Phase II, which shall take place only if Plaintiff prevails in Phase I and the Wyeth Defendants then elect to contest negligence, the issue of whether the Wyeth Defendants were negligent in a manner causally related to Plaintiff’s use of the drugs shall be tried.

20. The First Time Better be the Right Time…. (or else) -Identifying Company Witnesses • Who is going to tell your story? • Salesman? • General Counsel? - waiver • Prepare for the Future - consulting agreements for retirees

21. We Are No Longer in Kansas -Technology Database creation historical documents litigation documents medical and scientific literature Web sites Trial Graphics Virtual Law Firm

22. All for One and One for All -- Sometimes • Identify general areas for cost sharing • Combine efforts to identify and workup experts with similarly situated defendants • Isolate the turncoat defendant • Benefits – centralized decision making • Costs – centralized decision making!

23. Public Relations Strategy • Why Deal with the Media? • Plaintiffs can, plaintiffs do and plaintiffs will. • "I was feeding a lot of information to European and U.S. papers. It was part of my strategy to affect the stock price, which I was very successful at.“–Mikal Watts, plaintiffs’ attorney (WSJ 5/3/04) • “Do unto them before they do unto you.”

24. The Three Big Lies • We can’t comment on matters before the court. • It’s not appropriate to try this case in the media. • We expect to be fully vindicated in court.

25. Silica Litigation • Defendants went on the offensive first. • Claims v. government statistics • Asbestos retreads • Doctors withdrawing diagnoses • Built case with statistics and court documents, not press releases. • More than 125 news articles and 17 newspaper editorials. • It’s been a winning strategy: at least 65% of the silica MDL claims have been dismissed.

26. 19,389 5,051 5,218 1,800 1,600 1,400 1,200 1,000 800 600 400 200 0 1968 1970 1972 1974 1976 1978 1980 1982 1984 1986 1988 1990 1992 1994 1996 1998 2000 2002 2004 Number of deaths, by year Number of plaintiffs, by year As silicosis deaths decline, litigation increases

27. Legislative Relief

28. Common Provisions • Qualified Physician • Anti-Screener Provisions • Impairment • Joinder and Nexus