1. EARLY RESOLUTION OF MASS TORT CASES A Case Study: In Re: NHC-Nashville Fire Litigation David A. King

2. Quick Facts High Rise Nursing Home Fire 16 Deaths/Multiple Injuries 32 Consolidated Lawsuits Liability Issues: electric bed maintenance, staffing, lack of sprinklers Significant media coverage and scrutiny 30/32 cases settled within one year Consensus of Plaintiff Lawyers on Case – Total Settlement was 50% of Case Value

3. Seven Steps to Success 1.Aggressive Early Investigation 2.Proactive Media Relations Strategy 3.Comprehensive Evidence Review and Retention Procedures 4.Continuous Communication with Senior Management/Risk Management/Insurer 5.Preliminary Steps with Court and Counsel 6.Limited and targeted discovery 7.Creative Mediation Procedures and Strategies

4. Aggressive Early Investigation Witnesses –Interviews –Affidavits? –Third Party Requests? Government Investigators –Identify Contacts –Establish Rapport –Discuss Evidence Retention –Discuss Witness Interviews Consulting Experts –Identify the necessary specialties –Retain early

5. Media Relations Strategy Key: Stay Ahead of the Story!! Retain Media Relations Consultant Identify and Make Contact with Key Reporters Identify Key Drivers for Follow-Up Reporting and Stay Ahead of Them Help the Reporters Understand the Established Facts Engage Court to Keep Media from Driving the Litigation –Protective Orders –“Gag” orders

6. Evidence Review & Retention Procedures Identify and give notice to all of the “players” as soon as possible Establish a strict procedure for evidence access Establish a procedure for information exchange with interested non-parties Don’t let evidence issues and non-party information requests use up key resources

7. Client/Insurer Communications Key: Must Understand the Client Dynamics: –SEC reporting for public companies –Senior Management/Board Relations –Ultimate Decision Makers –All costs of protracted litigation –Timeline for Decisions –Insurance Coverages/Layers/Decision-makers Who is the “face” of the Company for media interaction? Who is the “face” of the Company for mediation?

8. Preliminary Steps with Court and Counsel Manage case transfers/consolidations Help with selection/de-selection of Lead Plaintiff’s counsel Push for early scheduling order geared towards mediation Seek Court’s assistance in managing dissemination of court materials to media (see Court of Appeals decision) Consider pre-mediation dispositive/partially dispositive motions

9. Limited And Targeted Discovery Key Questions: What does each side really need to know/establish before mediation? What is the most efficient way to obtain/establish this information? EXAMPLES: NEXT OF KIN: Meetings v. Depositions EXPERTS: Disclosures v. Affidavits v. Depositions

10. Mediation: Thinking Outside the Box EXAMPLES: Lawyer-only or Lawyer/Expert day with Mediator to argue overall liability/expert issues Meeting with families of deceased patients in advance of mediation to “hear their stories” Strategically establishing the order of Mediations –Easiest v. hardest first? –Most difficult v. least difficult attorneys first? Establishing Other Procedures to Drive Mediation Dynamics –Each settlement confidential or not? –How to deal with unresolved claims going forward?

11. CONCLUSION Difficult, complex cases require creative thinking Creative thinking can pay significant dividends Must establish sufficient trust with client/insurer decision-makers to put your ideas into action and hopefully reach a successful early resolution of cases that need it. 10192913