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11/4/2020 By Victor Taylor

Every place we turn in the business of asbestos litigation, the consequences of late identification of high-risk cases are plainly visible. These include paying a high settlement as one of the last defendants standing, losing a trial with the consequences of an everlasting elevation of a defendant’s profile, and spending far more money defending a case than may have been necessary with an earlier settlement.

Through our work in this litigation, we see first-hand the excellent work undertaken by defense counsels to execute optimal settlement strategies for their clients.  Even with this diligence, it is always a good idea for a defendant to monitor their riskiest cases with the same information as their defense network so they can collaborate and focus their efforts appropriately.

The large number of complaints can at times be overwhelming for a defendant. Simply managing the day-to-day requirements of discovery and defense for this case load can be all consuming. The constant influx of new case information may make it difficult to identify, triage, and strategize their most dangerous cases. 21st century technology which allows defendants to store and organize their data and documents, report on them in real time, and identify high-risk cases according to their own unique risk profile at the click of a button provides the means by which defendants can triage the most dangerous cases.

Risk factors which may lead to a higher settlement value and overall cost to the defendant are important to identify as early as possible. Some risk factors are common to every defendant, others are unique to the defendant. Common risk factors include:

  • Serious disease diagnosis, especially mesothelioma
  • Age of plaintiff
  • Future earnings potential
  • Number of dependents
  • Few co-defendants
  • Strength of product identification

Jurisdictions that are particularly friendly towards plaintiffs and plaintiff counsels that are known to take a higher portion of their cases to verdict are further considerations when determining the risk value of a case. Risk factors that are unique to the defendant may include certain job sites based on prior litigation and certain products where discovery may be problematic.   

KCIC has pioneered the use of customized algorithms to put triaging analysis into the hands of asbestos defendants. Deploying real-time notifications of high-risk cases based on a specific defendant’s case history and industry trends, KCIC’s Early Identification Tool includes a dynamic dashboard which updates as new claims are filed and as discovery progresses to highlight any cases that pose a high risk to the defendant.

The tool calculates risk using a set of known risk factors and is modified based on trends that KCIC identifies in the defendant’s case history or that are identified by the defendant and its counsel. In addition to real-time notifications, a suite of reports and dashboards is available for all active cases identified as high-risk to ensure that they receive appropriate targeted attention. The same claims data, settlement history and risk factors can be used to place preliminary valuations on a case.

KCIC is committed to continuing to update its algorithms and pull in additional risk factors to continuously improve the triaging tool.  In a world awash with data, getting the right eyes on the right cases early is an essential step forward in the intractable problem of asbestos litigation.

Victor Taylor

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