In product liability matters it is often the case that some harm or cost is alleged to have been caused, either directly, because of production or consumption of the product, or indirectly, in the form of a “negative externality.” But it is often the case that, distinct from any litigation, health economists and health researchers have studied the topic and derived national estimates of attributable harms or costs and published the results in professional peer-reviewed journals. Insofar as these studies are reliable (and there are ways of assuring that they are), then these studies can provide an abatement cost “ceiling.” In other words, the sum of the costs of the harms attributable to the product or intervention, to the extent that there are any such costs, cannot logically be significantly more than the total amounts already calculated by experts in the field. We see this, for example, in the national opioid litigation, where an extrapolation to the national level of publicly reported abatement-related settlement payments would likely sum to substantially more than the published cost estimates for opioid-attributable costs.
If there are several studies of total costs already published, it is possible to conduct a meta-analysis and combine those results. Another option is to select the “best” or most comprehensive of the published studies. It is also possible to adjust those published amounts to align them with the specific attributes of the cases. These types of “cost ceiling” models are reasonable and accurate ways of deriving maximum plausible damage amounts without implying that the maximum is the “true” amount; it is only the maximum amount. This type of model may be useful in cases where the “sum of the parts” is leading to implausibly high total damages.
(By John E. Schneider, PhD, and Ryan Bresnahan, MS) (2023)