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Cognitive Psychology, Litigation Investment, and Imperfections in the Tort System Cognitive Psychology, Litigation Investment, and Imperfections in the Tort System
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Daubert and the Accuracy of Information about Claim Value Daubert and the Accuracy of Information about Claim Value
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Rhone-Poulenc, Aggregation, and Amplification Rhone-Poulenc, Aggregation, and Amplification
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III: Regulating Development Indirectly
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Published:October 2007
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Abstract
This chapter draws a conceptual connection between two developments previously seen as separate by scholars: the Supreme Court's landmark 1993 evidentiary decision in Daubert v. Merrell Dow Pharmaceuticals, Inc, and the ongoing controversy over whether certification of nationwide class actions in the mass tort area exerts inappropriate pressure upon defendants to settle. Both Daubert and Rhone-Poulenc Rorer, Inc. raise serious concerns of institutional capacity and legitimacy when seen as vehicles to regulate the development of mass tort litigation. The silicone gel breast implant litigation shows one avenue for amplification: inaccurate information provided by lawsuits at the immature stage. The Court's decision in Daubert undoubtedly focused the attention of both judges and lawyers on the importance of scrutiny for expert testimony. Both Daubert and Rhone-Poulenc regulated the transition from a litigation stage focused on the exploration of claim merit to one directed predominantly toward comprehensive settlement.
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