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

1. EARLY RESOLUTION OFMASS TORT CASESA 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 • Aggressive Early Investigation • Proactive Media Relations Strategy • Comprehensive Evidence Review and Retention Procedures • Continuous Communication with Senior Management/Risk Management/Insurer • Preliminary Steps with Court and Counsel • Limited and targeted discovery • 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