Mediator extraordinaire Kenneth (Ken) Feinberg on mass tort and disaster settlements

One of the most difficult tasks facing our legal system is determining the compensation to provide individual victims of many of the large-scale tragic events that our country has faced in recent years.  In this episode of Law, disrupted, John is joined by attorney Kenneth (Ken) Feinberg, a mediator extraordinaire who has settled some of the most high-profile mass tort and disaster disputes the US legal system has ever seen as well as managing the claims administration programs for terrible events that did not result in litigation. He has managed the victim compensation funds in high-profile tragedies including the 9/11 Victim Compensation Fund, the BP oil spill fund, and the victim assistance funds established in the wake of the Boston Marathon bombings and the Sandy Hook shooting. Mr. Feinberg also resolved victim compensation issues in the General Motors ignition switch cases, the VW diesel emissions cases, the Boeing 737 MAX crash cases, the Eli Little DES cases, the Shoreham Nuclear Plant cases, Agent Orange, asbestos, among many others.  

The conversation begins with exploring the ways that cases come to Mr. Feinberg, including defendants who realize they need to resolve a situation but first have to resolve how to divide the money they have available, plaintiffs who wish to avoid years of uncertain, costly litigation or when the government allocates money to compensate victims of a tragedy without any adversarial proceedings at all.  The two then discuss the need to establish consensus on clear procedures for the mediation before turning to the merits of the dispute and why 90 percent of cases settle on the second day of mediation.

Mr. Feinberg and John then explore the extremely emotional and complicated problem of allocating the money among hundreds or thousands of claimants in these cases.  In particular, they explain the crucial role that transparency of the process plays in assuring claimants that there is no hidden agenda in how the proceeds will be divided up.  They detail how issues of criteria of eligibility, the methodology for calculating damages, proof requirements, and the right to a hearing all must be established at the outset for a settlement to succeed.  They then turn to objective ways to calculate damages for the death of a loved one and injury damages for large numbers of claimants without evaluating medical charts for every claimant.

The two men then explore how these principles played out in high profile cases including the Boston Marathon bombings, the Pulse Nightclub attack, the Virginia Tech shootings, the 9/11 fund and the BP oil spill.  They explain how, in some cases, the number of potential cases might require hiring thousands of claims adjusters to determine which claimants are eligible for compensation and to screen for fraud as well as the need for a procedure to hear the appeals of those who believe their compensation under the process is not adequate.  Mr. Feinberg also explores in detail why, despite the magnitude of the disaster, the speed at which the families of the affected would receive the payment is vital in maintaining trust and belief in the entire process.

Together, Mr. Feinberg and John examine potential court oversight to the process including situations such as 9/11 where there was no such oversight, identifying comparisons with the examples of the BP oil spill and the General Motors car recall. Throughout the podcast and especially at the end, Mr. Feinberg provides specific examples of the devastating personal stories he has heard from the victims of these horrific events and they discuss the emotional toll claims can and have had on Ken.

Podcast Link: Law-disrupted.fm
Host: John B. Quinn
Producer: Alexis Hyde
Music and Editing by: Alexander Rossi