 in this regard  because aviation litigation is a target- rich
environment, especially in the period following the disaster , when so much about the
circumstances leading up to the incident is still unknown.  There are few downsides to filing
suit


catastrop he-level losses.  Given that reality, policymakers
desiring to create a functional alternative model for determining responsibility should be less
concerned with building an impregnable wall against ancillary litigation and instead focus


ntained the following features in varying forms:
•!a set of underlying goals for making the effort to change traditional tort
•!various protections for individuals and entities that would otherwise find
themselves embroiled as defendants in liti


the political consensus that supported its creation.  Framework designers
must incorporate realistic means for claimants to seek redress of losses that are no longer
available through traditional tort remedie s. This does not imply that claimants m


king sure that some sort of credible governmental
backstop is in place seems like a necessary component of any framework that purports to deal
with the liability consequences aris ing from a potential catastrophe.
Program designers must also anti


lpful.  Such an ex post,  ad hoc
approach maximizes the  amount of political will that would be needed  to move a radical
proposal through an otherwise -sluggish and suspic ious legislature.  An argument could be made
that, even with foreknowledg


ted external defibrillator
ALJ administrative law judge
APA Administrative Procedure Act
ATSA Aviation and Transportation Security Act
ATSSSA  Air Transportation Safety and System Stabilization Act  of 2001
CAA Clean Air Act
CDC Centers f


There was an implicit assumption that  the resolution of a dispute would affect the interests
and behaviors of the parties alleging and defending such claims almost exclusively because the
concerns and actions of those not directly involved in the


t reimburse  an injured party . It reviews
examples of circumstances in which s tatutory substitutes for the traditional tort system have
been adopted for dealing with at least some of the consequences of widespread harm,
describing the approaches


 elements of negligence, the losses that a plaintiff alleges must be proven t o exist or there
cannot be a finding of legal responsibility on the part of the defendant (in other words, no injury means
no tort).   3 Terminology
Catastrophes and  Di


rom providing assistance , with near -total
disruption of everyday life); and Sugarman, 2007 (major disasters are harms that are catastrophic to many
people and often sufficiently grave to overtax the capacity of moderate and larger communities to


erest in responsibility is  not solely in identifying the root or proximal cause of
a catastrophe.  Actions that are asserted to contribute , to any degree , in the sequence of events
leading to onset are in play, as are postonset  actions that als


ther  process that might be utilized for assigning
responsibility . In Chapter Two, we describe different types of processes in greater detail.
These processes generally have a well -defined  structure . The NTSB does not examine the causes
of tra


ons, if the number of lawsuits filed in courts throughout the country
is any indication.25 And although  NTSB  investigations target the nation ’s most serious aviation,
rail, maritime, highway, and pipeline incidents each year in order to make the


iver was intoxicated . This mosaic of rules and regulations are
the background against which an individual or entity is determined to be responsible for an
accident  and the extent of a responsible party ’s financial  liability for th e resulting


rative  determination, and
the outcome of the civil lawsuit in the example presented above as individual  processes within
the sam e larger framework.  Although the EPA might rely on the outcome of the NTSB
investigation before deciding who should


ance of fairness
•!“leakage ” to the traditional civil litigation system
•!rationalizations offered  for changing traditional legal relationships between parties.
Finally, in Chapter Nine , we provide some concluding comments on the application


n addressing catastrophe -related claims on behalf of themselves and those similarly
situated.  If a judge approves the representative plaintiffs ’ motion for class certification, one or

27 We refer to this


ence  would be presented to the trier of fact . The role of judges in the litigation process has
traditionally been limited to ruling on pretrial  motions and overseeing the conduct of trials .
Juries are typically used to decide questions of fact


d other subjective
complaints) . In most jurisdictions, the trier of fact also has the option of awarding punitive
damages to the plaintiffs, primarily for the purpose of punishing the defendants.
Under certain circumstances, multiple  defendants


licy, the insurer might  pay the defendant’s attorneys’ fees
and litigation  expenses.
Modified Tort Litigation
An argument can be made that seemingly minor modifications to traditional tort liability can
essentially create what amounts to a ve


rtain types of parties might  not be held
liable  for damages arising out of specified acts or omissions.  Intentional acts are
often  excepted.
•!limitations on total financial liability : Liability can attach to certain parties, but they
woul


 similar rule change but only with regard to noneconomic
awards .
•!imposition of a w aiting period : A potential plaintiff  would be prohibited from filing
a new lawsuit until a specific period of time has elapsed from the event , presumably
to


 inspect chemical  facilities ; obtain  samples or equipment ; and examine company records,
inventories, and operating procedures .31 An investigation might take  12 months  before a report
containing  key findings and root causes  of the accident


ite

31 42 U.S.C. § 7412(6)(L); EPA, 2013b, p.  1.
32 CSB, undated .
33 CSB, 2013 , p. 10.
34 42 U.S.C. § 7412(6)(G).
35 MSHA, 2011 , p. 7.  16 physical examination s of the accident site, inspect compan


 reimbursing the costs
of cleanup.  That determination is not a rigidly formal process and might , for example,  simply
come from a quick search of  property records to find out who owned an abandoned oil-storage
facility.
These determinations a


ncy determinations can involve a more extensive and focused investigation, one that might  have a
role for stakeholders.  For example, an EPA designation of a PRP can, should the agency so choose, include
reviewing documents, conducting site invest


cisions , or to the courts ),
have the decision based solely on the record, and receive a statement of reasons for the
decision.45 That said, ordinary criminal and civil proceedings offer par ties far more -liberal
opportunities to defend allegati


ning argument, presentation  of witnesses and exhibits, and opportunities for cross -
examination and evident iary challenges. Closing arguments can take the form of a posthearing
brief submitted by each party , filed at least a month after the con


gulations.  Moving out of the
realm of administrative  law and int o the civil and criminal courts is done to seek the judgment
of a decisionmaker  in a neutral forum that the agency’ s conclusion about a party’ s
responsibility was, in fact, a co


ion, DOJ
will file the recovery action in court.  As was true for the civil penalty actions described above,
at trial , the defendant can challenge its responsibility for the underlying incident  giving rise to
the cleanup operations .


 ’s
perspective) in these proceedings  might  be far more of a co ncern to a corporate defendant  than
the size of any civil or criminal fine.  Convictions can lead to debarment or the loss of an
operating license , events that could  push a once


cceptance of responsibility can also come much later in the process, when it can be a tactical
decision.  In the 200 0 crash of Alaska Ai rlines Flight 261, the airline and the successor to the
manufacturer conceded liability on the eve of trials


 which law, rather than
contract, requires a party to bear some responsibility  for an adverse event that might  arise in
the future, regardless of the party ’s actions.  Under  the Price –Anderson  Nuclear Industries
Indemnity  Act, for example,


this chapter is illustrative rather than
comprehensive and focus es on those that were intended to replace or modify some aspect of
traditional tort litigation (for example, we do not include the legislation that granted the  NTSB
the power  to co


ment of Transportation that an air carrier was a victim of an act
of terrorism limits the carrier ’s responsibility to third parties to a maximum of $10 0 million  in
the aggregate, with the federal government responsible for any liability above th


HSA) of 2002, major legislation enacted in
reaction to the events of September  11, 2001.65 HSA contain s several  provisions related to
vaccine injury liability that we discuss  at length in Chapter Seven, as well as the Support Anti -
Terrorism b


ment of the 1984 Warner
amendment (Pub.  L. No.  98-525, § 1631) , which provided essentially the same protections to government
contractors.
69 Pub. L. No.  105-170 (1998).  28 negligence or intentional misconduct.70 Legislative  history suggest


can submit
evidence opposing a determination of eligibility or later challenge an award by arguing that it
was made based on a mistake of fact or that there has been a change in the claimant ’s medical
condition . The Benefits Review Board can rev


f the amount calculated by
the federal government  as the “maximum probab le loss ” for such claims, $50 0 million , or the
maximum liability  insurance then available on the world market at a “reasonable cost. ” The
federal government provides a


the
providers were complying with national security requirements will trigger a dismissal  of any
civil action , unless the court finds that the certification was not supported by substantial
evidence.
General Aviation Revitalization Act of 1994


ecovering losses related to oil pollution and limitations on the
liability of those deemed responsible for the discharges.83 In Chapter Five, we describe OPA in
detail .
Paul D. Coverdell Teacher Protection Act of 2001
In states that receive fede


duct defect claims  (other than when the firearm was used in the commission of a
crime) , and in certain actions brought by the U.S. Attorney General.85 The act also include s the
Child Safety Lock Act of 2005  as one of its provisions, which exten


ed for
scanning seaborne cargo for the presence of nuclear material might be one such technology).90
The protections apply to all claims against the seller that are related to an act of terrorism
when its DHS -certified technology was deployed in


n, we describe the smallpox vaccine acts in detail.
Terrorism Risk Insurance Act of 2002
The Terrorism Risk Insurance Act (TRIA) provide s a federal government reinsurance “backstop”
for losses associated with acts of terrorism in exchange for req


 of a computer system to appropriately handle date- related data for
the year 2000 and beyond.94
The act includes imposition of a uniform punitive -damage standard of “clear and convincing
evidence ” and, in instances in which the defendant is a s


6-37 (1999).  36 power plant accidents  in Chapter Six), we look at the development of a regime under the Price –
Anderson  Act for addressing liability in the face of accidents at commercial nuclear power
plants.  Finally ( mass vaccine injuries  i


 to adopt (via the r atification of a
treaty) a framework for assessing responsibility to serve  as an alternative to traditional tort.
Legal proceedings  involving  international aviation accidents offer a particularly  interesting case
study be


r. 1991); and El Al Isr. Airlines v. Tsui Yuan Tseng, 525  U.S. 155 (1999).   38 In the 1960s,  a de facto carve- out was created for the liability cap as it pertained to passengers
departing  from or arriving in the United States , made possible by


99 Order of Civil Aeronautics Board Approving Increases in Liability Limitations of Warsaw Convention and
Hague Protocol, reprinted in a note following 49 U.S.C. § 40105 (1994).
100 Lloyd v. Am. Airlines (In re Air Crash at Little Rock Ar


without physical injuries  Depends on the state
where the case is
filed; might include
instances in which the claimant
sustained  no physical
injuries Depends on the
state where the
case is filed; might
include instances in which the claimant


urisdiction al
rules
Immediate
payments by
carrier  Required within
15 days Required within
15 days No requirement  No requirement
  41 For some aspects of the litigation that ensued from the Flight  214 incident, where the claim is
brought


gine manufacturers , parts suppliers,
airports, air traffic controllers, hijackers, or other passengers , fall outside of the legal
framework  established by the convention for modified tort litigation . The fourth column of


plier) , Honeywell International, and the San Francisco Fire Department were formal parties.
The investigation was extensive, as evidenced by a docket containing more than 90,000
separate entries logging  evidence submissions, investigatory  event


ries.118 The MDL cases
would not include a lawsuit filed in California state court by the family of a Chinese student
who was killed during the incident ; the suits claim that errors by local first responders (and not
the Montreal -protected carri


hold.  This can be helpful in the context of relatively minor injuries, in
which the complex proof required to show negligence on the part of the carrier might  require
significant legal resources that can overwhelm the potential recovery . The exp


in which the airline was essentially
blameless , at least insofar as monetary claims exceeding the threshold are involved. The many
non-Montreal  claims being brought on behalf of passengers on Asiana Flight  214, a flight
certainly international


unate possibilities. None of these incidents, however, compares with
the national attention and legislative concern triggered by the 1989 grounding of the Exxon
Valdez  and its implications for the environmental health of Prince William Sound, Alas


enses would have no limitation
(recovery costs in CWA, federal and state cleanup costs for OCSLA).  Recoverable damages
would , in every instance , include cleanup costs incurred by the government, but the laws
differed markedly as to wh ether oth


tive and immediate removal of a discharge, and [provide] mitigation or prevention
of a substantial threat of a discharge, of oil or a h azardous substance”131 involving the nation’s
navigable waters, the adjoining shorelines, an exclusive economic


 depend for food, economic security, or other products.  The
crew of a commercial fishing boat might fall under this definition.
•!profits and earning capacity: Any claimant  could recover for lost profits or
diminished earning capacity arising o


ircumstances in which liability can be shifted or eliminated completely can  be narrow.141 A
2004 revision to OPA added an “innocent landowner” defense, in which  a responsible party
could argue that , when the real property where the discharge ema


pe Line Co. v. Conewago
Contractors, Inc. , 1994 WL 539326 [M.D. Pa. Aug.  22, 1994] ).
142 33 U.S.C. § 2703(d).  The 2004 revision mentioned is Coast Guard and Maritime Transportation Act of
2004, Pub.  L. No.  108-293.
143 OPA, §  1003(c).
14


nsible parties to operate within U.S. territory.152 The requirements extend, however, only
to vessels, offshore facilities, and deepwater  ports, and , in some instances , the minimum
insurance level might  be lower than the cap.
The liability ca


 tax on crude oil used in or exported fro m the United States.155 With OPA,
existing environmental cleanup funds (such as the CWA’s  § 311 revolving fund; the DWPA’s
liability fund ; and TAPAA’s Trans -Alaska Pipeline Liability Fund) were subsumed


the OSLTF)  for a determination and would be successful only to the
extent that their losses were not caused by their own gross negligen ce or willful m isconduct.165
There would be a time limit of six years following the end of recovery efforts to


over remova l costs or damages takes place, the action could be brought  in state
court (depending on applicable jurisdictional rules) or federal court.172 A set of time limits
different from  those for bringing claims against the fund exists for f


00.135(c); see also 40 C.F.R. §  300.305(b)(2).
176 U.S. Coast Guard, 2013b.
177 33 C.F.R. §  136.305(a).
178 33 C.F.R. §  136.307.   56 unlike the civil litigation process, in which blanket denials of each allegation and statement of
fact in t


dentified them as responsible and stating that , if the identification was
disputed, evidence would need to be provided.
183 There was no response to the letter.  A
subsequent complaint that DOJ filed on behalf of the Coast Guard sought to recover


e
notice of design ation might get the agency to reconsider, but there does not appear to be any
duty on the agency to do so , at least not one set forth in OPA. Although  the federal APA rules
regardi ng informal agency decisions could be utilize


ent  of the total costs of
damages and re medi ation  (none of these incidents fell into the “mystery spill ” category because
the source of the discharge was always identifiable ).192 In such instances, the OSLTF was able to
cover the remaining 3


 contemplates a situation in which
responsible parties could pay claims for “ interim short- term damages ” without precluding any
future recoveries for losses outside the scope of those interim payments,
194 a situation that
would not be common i


e outside of OPA, but
they might  be subject to restrictions, such as the Limitation of Liability Ac t, which limits all shipowner
liability for damages to the postincident  value of the vessel and its cargo.   60 Taken together, these points sugge


198 “Complaint, ” filed April  21, 2010, in Shane Roshto & Natalie Roshto v. Transocean, Ltd. & BP, plc. , Civil
Action No.  2:10- cv-01156, E.D. La .
199 Some of these consolidated cases had been terminated or transferred by this time


igher than the applicable limits of liability.204 Although  Deepwater Horizon
is obviously the most prominent example o f those 64  events, the 2010 Enbridge pipeline
rupture in Michigan and subsequent release of more than  843,000 gallons of tar


 And often , more than one  agency
conducts its own inquiry.  In Deepwater Horizon , government investigation reports were issued,
for example, by the U.S. Chemical Safety and Hazard Investigation Board, a national commission
formed by the preside


es ”
(46 U.S. Code §  6308[a] ). As a result , a Coast Guard accident report could not be used in a trial for
damages , nor could it be used in an admin istrative proceeding brought by th e designated responsible
party.
208 CSB, 2014; National C


ikely health and public welfare  consequences of a severe nuclear
power plant incident in the United States at the pre sent time range from the modest  to the
horrific, photographic images of the destruction at the  Chernobyl power station and the


er
plant near Pleasanton , California , became the first commercially licensed reactor to supply significant
power to the electric grid.
211 Duke Pow er Co. v. Carolina Envtl. Study Group , 438  U.S. 59, 89 (1978).   66 companions in tort . Altho


mnibus coverage
to deal with future claims due to injury latency.215

212 Pub. L. No.  85-256 (1957). The Price– Anderson Act  has been characterized as a congressional response
to a “ lack of adequate avai


o be promulgated by the AEC.219 Such
standards were subsequently defined as a release related to a “substantial discharge or
dispersal of radioactive material offsite ” that “has resulted or will probably result in substantial
damages to persons o


tion was substantially changed  by congressional
amendment .225 The mi nimum limits of private insurance had risen to $14 0 million , but, instead
of a fixed amount of government financial assurance beyond that point, the basic core of protection i


 process  that sets strict limits on available damages.229 Or it could decide that
massive funding of  radiation cleanup operations completely satisfied its statutory requirement
to protect the public, even if some individuals a nd entities with p


ed until a later date”) , and provide
recommendations of additional sources of funds, such as new revenue measures, to a ddress
potential above -cap losses.231 It would be up to Congress, of course, to enact legislation  to
actually create the com


ntended a
complete bar against punitives; others assert that the prohibition is effective only when the layers of
private insurance and postincident  assessments have been exhauste d, requiring the federal government to
fill in any gap in coverage


the work, such as reporting
potential issues to NRC staff when discovered during the course of an investigation, and the
Office of Investigations can  assist staff in reviewing matters of regulatory concern, but its
primary interest is in law enfo


ensed facility that poses an
actual or a potential hazard to public health and safety, property, or the environment. ”242
An example of an IIT causal investigation involved the June 2011 fire and associated power loss
to certain systems at the For


e being one of the oldest congressionally  created frameworks for
assessing responsibility  following a disaster , actual experience with Price –Anderson  is limited
in this regard.  It has been reported that the insurance pool facilitated by the a


 as “a little judicial jiu -jitsu,” the plaintiffs then seemed to embrace the
defendants ’ theory by disclaim ing any effort to prove that a Price–Anderson  nuclear incident
had occurred  and instead  argued that the verdict should stand because  i


 program or
who will pay for it.  Second, there is no requi rement that the president submit a proposed plan
in advance  of a nuclear crisis  that might involve tens of billions of dollars ’ worth of losses and
widespread calamity . The 1988 amend


ntangible losses (such as for pain, suffering,
disfigurement, or emotional distress ) should  be allowed only under  narrowly defined
circumstances  and, when available, the amounts strictly controlled . A more traditional tort- like
approach woul


in  response to these threats unexpectedly triggers severe illnesses in a substantial
proportion of recipients , causing both significant injuries and widespread economic disruption,
with a latency period that is long enough to allow large numbers


 resulted in a major federal effort, as
President Gerald Ford put it in March of that year when making a request to Congress for
funding, to “inoculate every man, woman and child in the United States. ”258 The proposed
strategy w as for the federa


ndant in any action against a participant.  Because the federal courts would have
exclusive jurisdiction over swine flu vaccine –related claims, cases originally filed in a state
court would be removed to federal court.
Swine flu vaccine –related


ries, is arguably one such exercise in judgment.
265 28 U.S.C. § 2675(a).
266 28 U.S.C. § 2401(b); DuBose v. Kansas City S. R. Co. , 729 F.2d 1026, 1030 (5th Cir. 1984) .  80 months to settle the claim or deny it .267 And, if denied, the claimant


, Civil Division, developed
procedures as claims began to be filed . The procedures were revised as
the claims workload increased . At the time of our review,  the
administrative procedures for processing swine flu claims had not been
documented


 and soreness during the first day or two after vaccination ”
would be “highly unlikely. ”285 The consent form itself simply noted that “most people will have
no side effects from the vaccine, ” although some people (presumably everyone outside of


imately
survived appellate scrutiny.294
As the litigants were engaging in extensive discovery in the MDL proceeding, in June 1978 , HEW
Secretary Joseph  A. Califano Jr. described a new policy under which  GBS claimants need not
prove negligen c


toid arthritis , all common complaints in claims received
by HEW ) had resulted would still need to prove that the facts of the case supported a liability
standard available  to the plaintiff under the appropriate state law where the incident occur


ng Office, 1981 .
301 U.S. General Accounting Office, 1981 , Enclosure  I, p. 5.
302 By late March 1979, there were 1,045  GBS claims among the total of 3,694 and 276  GBS lawsuits out of
464 ( Office of Technology Assessment, 1979, p.  100).
303


l Research Council, 1985 , Table  6.1, p.  91. As of December  15,
1983, 4,152 claims had been filed, with 34 then pending.  Given that  4,179 claims would ultimately be
filed, the 61  claims that , by the end of 1983, were either still pending or


port:
Manufacturers have become concerned not only with the problems of time  and expense
[in dealing with the civil tort system], but with the issue of the availability of affordable
product liability insurance that is used to cover losses relat


ort system. ”
317 Tort
lawsuits were still possible, but the NCVIA required every claimant (which could include the
recipients of the vaccine or their families) to first seek compensation through an administrative
program (described in the act as


ong as certain specific conditions were present, the claimant would have no
need to prove causation during the administrative process.  The VICP table described, for each
vaccin e covered by the program, known  adverse side effects and the time per


 have been cause d by other, defined
illnesses or factors and the injury is demonstrated to have met the other requirements of Section  2111
and the Table, the injury is to be deemed to be vaccine -related ”); Bunting v. Sec’y of Dep’t of Health &


ensated claims would have to show that the action was brought in “good
faith ” and with a “reasonable basis ” for the claim in order to recover attorneys ’ fees.
It is important to keep in mind that most of the special rules regarding the types of


ld be outside of the act’s limitations on
liability. But even though the health care provider would not receive the liability protections,
claims agains t the provider would still have to be submitted to the mandatory administrative
claim process


 or administrator, but instead would be
the trust fund , which is  already financed by the per -dose excise tax.
Part of the rationale behind creating the administrative compensation program was to address
a large number of claims that would othe


 m
disorders in children led to the establishment of an Omnibus Autism Proceeding within the Court of Federal Claims to consolidate the processing of more than 5,400  autism -related  cases.
Ultimately , six test cases presenting two different the


njuries Resulting in Autism
Spectrum Disorder or a Similar Neurodevelopmental Disorder , Autism Master File, Office of Special
Masters, U.S. Court of Fede ral Claims.
347 HHS, 2014 . Dismissals include adverse determinations by specia l masters (


ess . Many
had their roots in claims involving the relationship between vaccines and autism, usually turning on the question of whether adulterants or contaminants in the injected materials were
responsible for the alleged injuries.  The argument w


n $20 0 million  defending such claims.358
Such expenditures were likely to be prime motivators behind a few extra sentences added at the last minute to HSA, sweeping  legislation en acted in the shadow of 9/11.
359 Applying to both
pending and fut


as achieved for the more common and somewhat milder form two
decades later.363
Similar efforts were being conducted in other countries, and, by 1980, the World Health
Organization (WHO) formally declared that the disease had been eradicated from t


ior -level
exercise ( “Dark Winter ”) at Andrews Air Force Base that simulated a bioterrorism at tack
involving simultaneous releases of smallpox at shopping malls in three U.S. cities.  The
participants concluded that such an attack could signifi


 event of a terrorist attack.374 That policy shifted
marked ly over the following year, the result of considerable debate within President Bush ’s
administration about whether the risk of a terrorist attack involving smallpox had increased to
the


ing the location of newly discovered infected people .
375 Weisberg, 2008; Stevenson and Stolberg, 2002.
376 Broad, 2002; “The Expanding Smallpox Plan,” 2002 ; Weisberg,  2008.
377 Stevenson and Stolberg, 2002.
378 During a House session on No


inancial exposure of vaccine manufacturers, it could have simply indemnified
the producers from potential liability and reimbursed them for any trial awards or
settlements.385 Instead, it was claimed, making the federal government the sole target o


program !to increase the nation ’s bioterrorism preparedness. ”388 Under
HSA, the IOM suggested, claimants alleging adverse reactions would be limited to lawsuits
based on theories of negligence in manufacturing or administration, and, as a result


ment
and are licensed and are doing everything properly, negligence would not
apply.391
The fallback position for such a result would be a mix of health insurance and workers ’
compensation:
So then the next step is how do these individuals get


ith striking speed, and , on the same day (April  11), the Senate passed the bill by unanimous
consent and the House voted passage without objection.394 When President Bush signed t he act
into law two weeks later, a type of no -fault compensation


er existing 42  U.S.C. § 233(a) , describing USPHS  liability for damages related to
personal injury, including death, resulting from the performance of
medi cal, surgical, dental, or related functions, including the conduct of
clinical studies o


t of 1992, Pub.  L. No.  102-501.
402 HSA § 304(c), amending PHSA, §  224(p)(3).
403 HSA § 304(c), amending PHSA, §  224(p)(2)(B).  The protections would also apply if the administrator had
reasonable grounds to believe that the recipient was in


n January  24 not only set in motion the liability protections contained in HSA; it
arguably expanded their scope beyond what the legislation described.409 As part of the “Policy
Determinations ” in the declaration, the Secretary stated that determ


spect of program design involves the
development of a smallpox vaccine injury table that, like the one used for the VICP, would
identify the types of injuries, illnesses, and other conditions that would be presumed to have
resulted from primary ad


 total ceiling that matched the amount that SEPPA authorize s for death cases.423 In
instances in which  the claimant was actually the survivor of an eligible person , that dea th
benefit would be calculated in a manner modeled after the approach u


ing in the vaccination
campaign, if one of its employees had been inoculated elsewhere and inadvertently was the
source of a secondary transmission.432 The issue of liability protection for th ose falling outside
of a strict official , agent , or


oth Section  304 and SEPPA remain on the books and can be triggered as
circumstances require . However,  although the liability protections of Section  304 could be
available in advance of an actua l attack (any declaration of a potential public he


d. Reg.  61869– 61871
(Oct. 17, 2008).  108 in December 2015 and remains in effect until the end of 2022.440 Given the more -expansive
definitions of what constitutes covered countermeasures in PREPA and the far greater powers
afforded to HHS to s


p the benefits of a fully  featured compensation program (operated at
government expense) that would siphon off the vast majority of claims that would otherwise
manifest themselves as costly lawsuits (regardless of whether compensated) spread acros


ry litigation . Presumably, the autism spike was totally unexpected by those drafting the
legislation and those overseeing the day -to-day operation of the claiming process.
Epidemiologists arguably have a fairly precise view of the most likely in


h risks associated with receiving a particular
type of vaccination . It is unlikely, for example, that parents weighing the risks and benefits of
childhood vaccines take into account the compensation rules, inner workings , and annual
statistics o


  types of mass
adverse events.  A wide range of policy choices  are represented in the case studies, some
affecting the behavior of actors only before the event unfolds (such as with mandatory
insurance coverage),  and some coming into play only


ees
Agency adjudication  OSLTF, although potentially also
parties that the agency later
deem s responsible
Agency -initiated
recovery litigation  Parties deemed responsible by
agency determination
Modified tort  litigation  Parties deemed r


as well as its caps on
financial exposure and modifications to ordinary tort litigation , apply to any party that might
conceivably be liable  for the event.  The funds for compensation would come from Price –
Anderson ’s mandated  mix of private i


mmunity  on manufacturers  of
specified  types of vaccine s, but instead  markedly narrow ing the theories of liability that could
be used against them . Claims for compensation advanced against  those manufacturers  (as well
as vaccine administra


ntly inadequate .443 The story behind OPA is not as
straightforward ; developing a comprehensive and rapid response to immediate needs following
a spill was arguably a motivation of at least equal importance to industry protection, but the


s as
Defendant  Caps on
Aggregate
Liability  Funding for
Losses
Spread
Across Other
Sources Eliminate or
Limit the Use
of Strict
Liability  Punitive
Damages
Prohibited Other Limits on
Bases for
Recovery,
Availabl e
Damages , or
Attor


e trier of fact, the availability of the
often  extremely powerful discretionary- act defense , and a requirement that the claim be
presented to a federal agency for consideration prior to filing suit  (a prohibition on strict -
liability  theories


ld pay claims under the NCVIA’ s administrative  compensation scheme .
At this point , the focus of the protections in Table  8.3 shifts from limiting the exposure of a
favored party to restrictions on individual claims . One approach involves alte


s are clearly off the table for
Montreal,  Price –Anderson , the Swine Flu Act , and the smallpox vaccine acts, although there is
not yet universal agreement on the question of whether OPA permits punitive damages if they
were available under gen


ard or EPA) .

447 On the former assertion, see, e.g., Eisenberg et al., 1997 . On the latte r, see, e.g., Exxon Shipping  Co. v.
Baker , 554  U.S. 471 (2008).
448 Punitive damages are unavailable to claim


king the payment at the time might  seek to
recover the sums advanced down the line . In addition, a requirement that a claimant must first
turn toward  an administrative compensation scheme can go far toward  siphoning off lesser-
value cases that


l PRP
determination of
claims  •!The responsible party is
already identified as a
result of agency
determination .
•!The responsible party is
strictly liable .
•!A wide range of damages
is available, including pure economic loss .
•!The cla


sible
despite a federal
defendant .
•!Strict liability would be
presumed for claims
involving GBS. United States (general fund)
NCVIA: Agency
claim resolutions  Formal adjudication of
claims against the
United States  •!There is no need to


lematic, the value of such a presumption cannot be
overstated.450 But many claims advanced with the benefit of a presumption nevertheless fail
because the claimant cannot or will not (or does n ot understand the need to) provide needed
documentati


iffs in civil litigation instead .
Speed of Determination
Despite the fact that comprehensive data on time needed to reach a decision regarding
responsibility in these frameworks were not always available, it is probably safe to say that the
fas


OPA: Agency -initiated
civil reimbursement
actions Civil lawsuit  brought by an
agency against a PRP for
claims previously paid  For claimants : Not relevant because individual
claims would already have been reso lved
administratively
For


ancial liability for
damages and (in most  instances) recover y costs might  provide considerable incentive to accept
the result except in instances of clear error.
OPA envisions a relatively simple but somewhat more adversarial  process for clai


al significance for the party
because a future ac tion to recover the administrative award is certainly possible).
Once  third -party neutrals  do get involved , time to reach a decision increases markedly.  A claim
presented as part of the NCVI


 of control or opportunity  to participate in the
decisionmakin g.453 The illustrative frameworks we have reviewed differ markedly in the
procedures in place to provide parties with this sense of fairness.  Measured by  the appearance
of impartial


453 See, generally, Longan, 1995, pp.  298– 300. 133 Table 8.7. Fairness-Related Features of the Responsibility Determination Process
Framework and
Activity Process for
Assigning
Responsibility Rights and Limitations of
Parties Oppo


es without
specific regulatory authority .
For PRPs:  Not directly relevant
following substitution of the
United States as defendant -payor  For claimants : Can request
reconsideration ; if a claimant
remains unsatisfied , that
claimant can pr


view
For PRPs: Not directly relevant
following substitution of the
United States as defendant -
payor

Lawsuits filed by those alleging personal injuries initiated after the completion of the
administrative claim resolution  processes under t


al industry . . . . Lawmakers designed vaccine court to favor
payouts, but the government fights legitimate claims and fails its obligation to publici ze
the court, worried that if they concede a vaccine caused harm, the public will react by
skipp


nd the NCVIA because  any compensation to be paid actually comes out of the
existing trust fund , not the pockets of any private party.  That said, the  situation for responsible
parties under OPA and the NCVIA (defined here as the source of the di


n erroneous  decision  on a claim . Providing at least the opportunity for a responsible party to
intervene in an earlier administrative  process in which a claimant  is seeking compensation from
the fund !a proceeding in which the responsible part


ay in accepting that
responsibility  could have adverse consequences.457
Leakage to Civil Liti gation
Another area  we wish to explore in this chapter involves the degree to which the frameworks
fully address the responsibility -assignment  need


cine claims , but there have been many attempts to
advance autism and thimerosal lawsuits .
Smallpox
vaccine acts Low There is little reason to go outside the act.
Price –Anderson  has also had low leakage historically because the definition of w


tages compared to having their legal relationships determined
by traditional tort liability.458 In the discussion that follows , we describe some of the rationales
that have been offered in support of these outcomes .
Table 8.9. Potential Consequ


ater Montreal , facilitate maritime activities involving oil propulsion or
production or trade by protecting shipowners and certain other parties from unlimited liability
through OPA, encourage commercial nuclear power by facilitating insurance pro


459 Arguably , the Black Lung Benefits Act of 1972  could also be considered a type of framewo rk with
retrospective application. One of its provisions is that the last coal mine in which the worker was  142 r


ments of national policy to assist in a n
entirely governmental task ” in which the “government sets policy, makes decisions, and controls activities
and circumstances ” (H.Rept  98-124, Part  1 [1983] ).
461 See, e.g., Popper, 1998, p.  134: The


 U.S. companies would be at a competitive disadvantage in the global marketplace in
the conduct of these risky but important activities without the benefit of similar limitations.467
Price increases would be one negative result of the reduced level


situation, although they could provide bene ficial
competition in a stronger U.S. market.   144 caps argue that , although  smaller companies (or U.S. companies generally , if the competition
threat is global) might  be forced to engage in other ac


471 See, e.g., Thompson, 2010:
If we make companies responsible for 10 0 percent  of damages, they might pay more on
both safety measures and insurance . . . . That could discourage smaller start -ups and raise
the cost of exploration and drilli


le for injury claims below the current threshold of about $153,000, thus
eliminating the difficult task of proving negligence.  Absent narrowly drawn circumstances,
vessel and oil production facility owners and operators are deemed responsible unde


e smallpox vaccine acts), and, although the third (the NCVIA) offered a
form of strict liability in an administrative setting, it applied to only a narrow set of
circumstances , and the money to pay claims came not from the manufac turer or distrib


n the injuries and times of onset are listed in the programs ’ respective vaccine tables.
From a claimant ’s perspective, the  flip side of these potentially positive features is, of course,
the same liability limitations that work to the benefit


481 See, e.g., La Fetra, 2003 (arguing that the NCVIA , Biomaterials Access Assurance Act  of 1998, a nd
General Aviation Revitalization Act  of 1994 constitute the “three narrow areas in which Congress has


t produced
the catastrophe is repeated daily. In addition, existing procedures for resolving disputes might
not be well  suited to handling the flood  of claims that could arise following a major disaster,
possibly generating substantial legal an


ular industry , product, or  activity.  At least within the confines of this
particular report, we are not in a position to opine about whether such concerns are valid ones
or whether the underlying issues in play (such as the promotion of  childho


p.  524 ( “highly individualized and very generous tort system in the United
States  . . . remains the most prominent system for awarding financial compensation to victims ” of human-
caused  disasters); and Rabin and Bratis, 2006, p.  353 ( “Virtua


l either look elsewhere to adjudicat e their disputes  or refrain from conducting
the types of activities the alternative framework was designed to support .
Creating a Viable Alternative to Traditional Tort
What does it take to put a  comprehens


n the aftermath of the 9/11 disaster has been told
many times, but it too reflects a period in U.S. history when the nation was essentially on a war
footing.491 Had the requisite political will to move the act from a blank sheet of paper to fully


on Fund), and  153 of liability shield without creating any sort of  offsetting opportunities for those who would find
the courthouse door at least partially shut when looking for full redress of their grievances.  But,
for the most part, the poten


ct of 2002 do not prohibit or
cap tort claims , although the former substitutes the United States as the defendant while the latter created
an exclusive federal cause of action for terrorism -related claims (it should be noted that the Atomic
Test


lm of the possible . Similar problems with planning
ahead can be found in the Swine Flu Act saga, when an unexpected surge in GBS claims
overwhelmed an already- stressed administrative claim handling program  that had been largely
developed on the


e
of a f avored party without including some sort of corresponding compensation program . In the
shadow of a looming national emergency or when it is likely  that the restrictions would
adversely affect few  individuals or businesses , widespread


s often because their designers did
not fully flesh out necessary details in their haste to change the status quo or because they did
not consider how the program ’s features would play out under real-world  conditions and when
involving actual, r


ext of a dramatic and unforeseen spike in demand, with perhaps
two exceptions.
First was Price –Anderson ’s experience with TMI . The act was designed from day  1 to act as the
primary foundation for addressing legal questions arising from a major


 when subjected to stresses arising not from the
most likely  worst -case scenario  (the one imagined during program design) but instead from the
worst -possible -case scenario . A type of red-team analysis might  be required, one that forces
desi


on
benefits  would be a sufficient  and no-cost (at least to PRPs ) avenue  for satisfying claimants
turned away from courthouse doors, underscores the dangers of ignoring the problem.
It is also important to  make sure that the program can oper


 purposes .
Administrators need this sort of general road map  to help guide their design decisions, judges
require it as well to more accurately interpret how the law should be app lied, and the public at
large is no less deserving of legislative


 justice, on the other hand,  would seek to make the victim
whole via a “more fulsome process to ensure that the claimant really is a victim and that the person
against whom a claim is made really is a responsible party ” (p. 586).
505 Price– And


ations?  Parties will not hesitate to bypass the framework in
favor of alternative approaches that they perceive to be fairer, quicker, more certain, capable of
greater finality, or less expe nsive . What is to stop the local courts from being clog


 correction s to fix ill -considered language is not a process
the public welfare can afford.
Looking Forward
It is worth reflecting how fortunate this country was to have some of the best legal minds in
play when drafting  ATSSSA legislation  f


ank page .511
In that light , essentially three options are available to policymakers in the context of planning
for legal determinations following a disaster. First, they could cross their fingers and hope that
what is already in place will work


r 11th Victim
Compensation Fund of 2 001 would never have made it out of committee  before the tragic
events of that day unfolded . The problem is that the window of opportunity will be short, and
little time would be available for any sort of tho


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https ://www.asme.org/getmedia/3663519d -0882- 4b7e -ab6c -f036b080cfdd/
128-Vallecitos -Boiling -Water -Reactor -1957.aspx
“Amtrak Bill Clears in Final Hours,” CQ Almanac 1997, 53rd ed., March  22–28,


p://www.nytimes.com/2002/07/07/us/
us-to-vaccinate -500000- workers -against -smallpox.html
Broad, William  J., and Judith Miller, “Government Report Says 3  Nations Hide Stocks of
Smallpox,” New York Times , June  13, 1999. As of September  12,


:
https://www.citizen.org/article/
letter -transportation -secretary -rodney -slater -opposing- corporate- welfare -and-liability
Cohen,  Henry, Making Private Entities and Individuals  Immune from Tort Liability by  Declaring
Them  Federal E


. As of July  22, 2017:
https://www.uscg.mil/foia/docs/DWH/2886.pdf
Director, NPFC —See Director, National Pollution Funds Center.
Dupree, James  H., president, BP Exploration and Production, “Deepwater Horizon,” letter to
Thomas Morrison, chi


 Journal of Empirical Legal Studies , Vol. 6, No.  4, December 2009,
pp. 637– 686.
Garvin Law Firm, “Florida Supreme Court to Rule on Medical Malpractice Damage Caps ,”
November  21, 2011. As of Apr il 25, 2016:
http://www.garvinlegal.com/blog/c


//www.washingtonpost.com/local/trafficandcommuting/
amtrak -faces-95-million -hit-as-congress- celebrates -new-highway- bill/2015/12/10/
1a33379c -9a8f-11e5- 8917- 653b65c809eb_story.html
Harvey, Steve, “California’s Legendary Oil Spill,” Los A


rticles/
law-clouds -compensation -for-amtrak -crash -victims -1431636543
Klein, Jerome  O., and Charles  M. Helms, “Strengthening the Supply of Routinely Administered
Vaccines in the United States: Progress and Problems —2005,” Clinical Infectiou


e Safety and Health, Coal Mine
Safety an d Health, Accident/Illness Investigations Procedures , Handbook  PH11 -I-1, June 2011.
As of July  22, 2017:
https://arlweb.msha.gov/READROOM/HANDBOOK/PH11-I- 1.pdf
Minority staff , Committee on Governm


,
NTSB/AAR -14/01, June 24, 2014a.  As of Jul y 22, 2017:
https://www.ntsb.gov/investigations/AccidentReports/Reports/AAR1401.pdf
———, “ NTSB Finds Mismanagement of Approach and Inadequate Monitoring of Airspeed Led
to Crash of Asiana Flight 21


org/futures/globalprospects/37944611.pdf
Orin, Deborah, “Bush: All Americans Are Troops vs.  Terror,” New York Post , Nov ember  9, 2001.
As of Dec ember  8, 2014:
http://nypost.com/2001/11/09/bush -all-americans- are-troops -vs-terror/
Ornste


, New
York: Springer, 2006 , pp. 303– 360.
Ramseur, Jonathan L., Oil Spills in U.S. Coastal Waters: Background, Governance, and Issues for
Congress , Washington, D.C.: Congressional Research Service, Report  7-5700, Apr il 30, 2010.
As of July


m/2014/01/20/asiana -flight- 214-passengers -sue-boeing/
Schleifstein, Mark,  “Federal Judge Dismisses Most of Remaining Katrina Damage Lawsuits,”
Times -Picayune, Dec ember  27, 2013 (updated March  2, 2017) . As of July  28, 2014:
http://www.n


ays Out Plan on Smallpox Shots; Military Is First,” New York Times , Dec ember  14, 2002. As
of November  1, 2014:
http://www.nytimes.com/2002/12/14/us/
threats -responses -vaccinations -bush- lays-plan- smallpox -shots- military -first.html
S


Pollution Funds Center, “RE: J05003 -0021,” letter to IMC Shipping , October 15,
2013a (copy  on file with the authors) .
———, National Pollution Funds Center, “ Oil Pollution Act (OPA) Frequently Asked Questions ,”
October 22, 2013b (last modifie


chair, U.S. House of Representatives Committee on Interstate and Foreign
Commerce Su bcommittee on Energy and Power, and Bob Eckhardt, chair, U.S. House of
Representatives Committee on Interstate and Foreign Commerce Subcommittee on
Oversight and


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updated December


.S. civil litigation system might not always be the most effective and efﬁcient means for assigning
responsibility following a catastrophic event and providing just compensation to large numbers of affected individuals and entities. Some have argued


CORPORATION
Modeling the Economic
Impact of a California Workers’ Compensation Formulary
Andrew W. Mulcahy, Simon Hollands, Erin L. Duffy, Aaron Strong,
Barbara O. WynnLimited Print and Electronic Distribution Rights
This document and tradem


g in a wide range of policy domains, including civil and criminal justice, infrastructure protection and homeland security, transportation and energy policy, and environmental and natural resource policy.
This report also drew on the expertise in RA


. 22

Table 3.5. Share of Volume and Spending Meeting Special Fill Criteria and Listed as
Special Fill Drugs, 2014 WCIS Data .................................................................................... 23

Table 3.6. Share of Volume


 (IMR) appeals.
Assembly Bill (AB) 1124 requires the Division of Workers’ Compensation (DWC) in
California’s Department of Industrial Relations to implement a drug formulary no later than July 1, 2017. The legislation intended that the formulary f


escriber decisionmaking and, ultimately, prescription fills and spending. The magnitude and direction of the adjustments are informed by a review of the literature on the effects of formularies and utilization management tools on prescription drug vo


third module reduces prescription fill volume for drugs subject to PR after shielding prescription fills subject to special and perioperative fill rules (as in the first module). Some of the reduction in volume is shifted to preferred drugs in the s


p two therapeutic classes by total 2014 spending were opioid analgesics and
nonsteroidal anti-inflammatory drugs (NSAIDs). These two classes accounted for 39 percent of California WC payments and 48 percent of both California WC prescription bill li


alculating the maximum amounts that Medicaid programs pay for certain multisource drugs. In most cases, these changes reduce the maximum amount paid for drugs based on the previous formula. Because the WC fee schedule is based on MediCal prices, and


ical prescription bill data subject to modeling steps and
assumptions described above.
The change in WC employer costs in the 12 months immediately following the full
implementation of the formulary is by assumption half of the reduction in medic


S guidelines, and the formulary listing is publicly available at no cost. In terms of changes in per-prescription frictional costs, it is not clear how insurers/pharmacy benefit managers (PBMs) will implement PR, although this process is similar to “


report.
Rosalie Malsberger provided invaluable programming assistance. We would also like to thank our peer reviewers, Frank Neuhauser (UC Berkeley) and Christine Buttorff (RAND).

   xvii Abbreviations
AB Assembly Bill
ACOEM American College


ical treatment for work-related injuries and illnesses that
includes both physicians and other ancillary providers.
There must be a written agreement between the employer
and the provider, and the provider must agree to provide
care consistent wi


al properties and clinical use. Drugs assigned
to the same therapeutic class are often therapeutic
alternatives.
therapeutic equivalent This term refers to FDA-designated “AB” substitutable versions of the same active ingredient (that is, drugs t


r therapies, an injured worker is entitled to pharmaceuticals that are
indicated for his or her injuries and prescribed and dispensed consistent with the MTUS guidelines. However, there have been concerns over both the rising cost per claim for phar


(PR)3 and other utilization management
tools to confirm medical necessity and encourage appropriate use. Insurers often conduct drug utilization review to monitor prescription activity relative to the formulary. When implemented in conjunction with


ith an independent six-member Pharmacy & Therapeutics (P&T) committee. These updates are exempt from rulemaking and may be implemented through orders posted on the DWC website.
In addition to the Labor Code revisions, AB 1124 expresses legislative


ent and update the formulary, and made recommendations for the formulary implementation policies and updating process (Wynn et al., 2016). This report estimates the impacts of the formulary on the volume of and spending on prescription drugs, as well


 developed five separate modeling steps (or “modules”) that we apply sequentially to the
baseline data (Figure 1.1). These modeling steps incorporate the various provisions of the formulary, such as requiring PR for physician-dispensed prescriptions


stem assigns identifiers to specific drug products and is maintained by the U.S. Food and Drug
Administration (FDA).  Physician
  Dispensing
  Module

Generic
  Subs titution
  Module

Prospective
  Review
  Module

Bulk
  Drug
  Mod


and pharmacy-dispensed fills recorded as prescription bill lines. Each medical bill includes information on the injured worker and provider, diagnosis and procedure codes, the provider’s charges, actual payments to providers, and codes explaining th


 the drug ingredient or drug ingredient route
of administration level into our NDC-level WCIS data. This step required several adjustments so that drug ingredients matched between the California WC drug listing and Truven’s RED BOOK data, due to dif


for example, 5-mL
increments of volume for liquid and topical formulations)—was almost always reported for pharmacy-dispensed fills but was often missing for physician-dispensed fills. We imputed quantity for physician-dispensed fills using a combin


iber would have written two prescriptions—one for the initial four-day supply and another for the remaining 26 days. In reality some prescribers will not write the second prescription at all, while others may write a full 30-day prescription as the s


rescribed in conjunction with opioid and
NSAID analgesics to control side effects from these drugs.
• “Psychotherapeutic agents” includes primarily selective serotonin reuptake inhibitors (SSRIs)/serotonin-norepinephrine reuptake inhibitors (SNRIs


Skin/Mucous
   Membrane
   Ag.,
  Misc.
   4.79
   37,696
   4.33

Antihyperlipidemic
   Drugs
   4.34
   23,198
   3.88

Cardiac
  Drugs
   4.16
   56,919
   7.95

Antiemetics
   3.50
   12,059
   0.41

Antivirals


nsdermal.
  15
 Table 3 .3. Spending and Volume for the T op 20 Drugs by Volume, 2014 WCIS Data
Drug Ingredient  Form  Route Drug Class  Spending
($millions) Bill
Lines Imputed
Standard Units
(millions)
Acetaminophen/Hydrocodone Bitartrate


y equivalent to reference drugs and often less expensive, payers often encourage the use of generics to control costs. CA Labor Code Section 4600.1 requires dispensing of FDA-approved substitutable generics unless a generic is not available or the pr


 implicitly recognizes physician in-office dispensing in Section
4600.1 (dealing with generic drugs) and Section 5307.1 (dealing with the Official Medical Fee Schedule or OMFS).
Physician dispensing is facilitated by FDA-approved “repackagers,” wh


hysician-dispensed drugs account for more than half of total spending for most of these classes plus skeletal muscle relaxants.  0%
  10%
  20%
  30%
  40%
  50%
  60%
  70%
  80%
  90%
  100%
  Share
  of
  Generic
  and
  Brand
  Sp


ecial and Perioperative Fills Before for All Drugs
A small share of prescription volume (in standard units) and spending meets the special or
perioperative fill criteria (regardless of whether they are listed as being eligible for either
provision


lume and Spending Meeting Special and Perioperative Fill Criteria for
Selected Therapeutic Classes, 2014 WCIS Data (%)

  Share of V olume (standard units)  Share of S pending

  Perioperative  Special  Perioperative  Special
Total  0.7 2.5 1.


Meeting Perioperative Criteria a nd Listed as P erioperative Drugs, 2014 WCIS Data

  Spending
  ($mils)
  Periop.
  Share
  of

Spending
  (%)
  Volume
  (000’s
  of

standard
  units)
  Periop.
  Share
  of

Volume
  (%)


12 106.20 1.66
2013 103.4 3 1.61
2014 101.9 5 1.59
NOTES : RAND analysis of 2012 through 2014 WCIS pharmacy and medical prescription bill
data for outpatient drugs. Reported prices are calculated as the sum of total payments divided
by the sum o


ily a single brand-name drug [pregabalin]).   27
 Table 3 .8. Spending and Volume by Therapeutic Class, Selected Classes,
2014 WCIS D ata With and W ithout 2017 FUL P rices Applied
 Observed
Spending W ithout
2017 FUL P rices
($millions) Spen


inator. In cases where we found tentative approvals in the 2015 through 2017 range, we conducted a broader Internet search to find news articles, court decisions, and industry reports to identify a likely date for first marketing.
Through this proce


were informed by our review of the
literature and our expert opinion. The literature review focused on peer-reviewed studies
evaluating the impacts of prior authorization (that is, PR in the California WC context) on utilization and spending for dr


ird of prescriptions was not written.
Finally, we reviewed a recent report from the Texas Department of Insurance Workers’
Compensation Research and Evaluation Group documenting the impacts of a recently implemented (in 2011) formulary for its WC p


riptions to avoid the time costs of PR. In addition, the formulary will help prescribers more easily identify preferred drugs that are consistent with MTUS guidelines. For these reasons, we expect prescribers will shift to preferred drugs and will wr


rcent) to other drugs in the same class. We report results assuming (a) a 10 percent discontinuation rate and a 25 percent switch rate to other drugs in the same class; and (b) a 30 percent discontinuation rate and a 75 percent switch rate to other d


ding first fill and perioperative prescriptions where appropriate. Next, we aggregated these reallocated prescriptions at the therapeutic class level. We then allocated these prescriptions to preferred drugs in the same class based on volume shares.


ate analysis of all calendar year 2014 WCIS medical data (to be included in a forthcoming report), RAND estimated total 2014 WCIS medical spending to be $4.2 billion. Before implementing spending changes to reflect new FUL prices and generic entry, w


California. Macroeconomic impacts are modeled within an input-output model, IMPLAN. IMPLAN assumes a linear relationship between production and consumption and bridges these two via local production and consumption as well as sector-specific imports


  3
  4
  5
  6

Baseline
  (2014

utilization
  at

2017
  fee

schedule
  prices)
  After
  Physician

Dispensing

Module
  After
  Generic

Substitution

Module
  After

Prospective

Review
  Module
  Af


ptions  tend to have modest effects on estimating changes in utilization and costs. The combination of  all lower- and upper-bound estimates, however, results in a significant range in estimates.  For example, the lower- and upper-bound reductions in


ng the full
implementation of the formulary is half of the reduction in medical spending, or $22.7 million.
Over the longer term, a larger share of the prescription drug spending reduction may accrue to California businesses and insurers, although


algesic spending and utilization in particular is reduced in each module, especially when we allow for substitution to NSAIDs. The estimated changes in California WC prescription drug spending and net revenue for California providers dispensing presc


l liens. Liens can include payments for prescription drugs. If the formulary reduces prescription utilization contributing to medical liens—particularly for compounded drugs or drugs with particularly high per-unit prices—our results will underestima


ated to prescribing or specific formulary provisions. For example, because the special fill policy could have the unintended effect of increasing the number of office visits (particularly in the cases of physician dispensing) for practitioners to wri


eferred
  Ciclesonide  Non-Preferred
  Cimetidine  Preferred
  Ciprofloxacin  Preferred
  Ciprofloxacin Hydrochloride  Preferred
  Citalopram Hydrobromide  Non-Preferred
  Clarithromycin  Non-Preferred
  Clindamycin Hydrochloride  Prefe


red
  Hydrocortisone  Non-Preferred  Yes
 Hydromorphone Hydrochloride  Non-Preferred
  Hypromellose  Preferred
  Ibandronate Sodium  Non-Preferred
  Ibuprofen  Preferred
  Imipramine Hydrochloride Non-Preferred
  Indomethacin  Preferred


  Non-Preferred
  Rabeprazole Sodium  Preferred
  Ranitidine Hydrochloride  Preferred
  Rimexolone Non-Preferred
  Risedronate Sodium Non-Preferred
  Rivaroxaban  Non-Preferred
 Yes
Salmeterol Xinafoate  Non-Preferred
  Salsalate  Pref


(Lu et al., 2010)
(McCombs et al., 2002)
(Louder et al., 2011)
(Workers’ Compensation Research Institute, 2014)
(Texas Department of Insurance, 2013) 51
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2018 Chiefs’ Panel on Priority Law Enforcement Issues and Needs
John S. Hollywood, Sean E. Goodison, Dulani Woods, Michael J. D.


 skills, abilities, andexperiences that are most useful to have in today’s policingenvironment
•develop a continually updated inventory of law enforcementinformation analysis tools. This process should also highlightgaps in the available tools.Key Fi


ciated interventions to improve trust, as well as improved, more-realistic interaction skills training.
 −The need for longer-term reform.  To get at the underly -
ing causes of distrust, panelists called for a systematic review of the criminal justi


ntire community of practice. PCJNI reports on prior sector-wide panels for law enforcement include the following:
• High-Priority Information Technology Needs for Law Enforcement , which identified needs for innovation broadly
related to IT and data


did not attempt to recruit a representative sample of executives, nor should the results be considered representative of law enforcement practitioners’ general opinions on technologies. Instead, the results reflect the expertise and experience of the


riority needs and issues identified in the previous law enforcement Workshop Participants
Richard Biehl
Dayton, Ohio, Police Department
Jean-Michel Blais
Halifax Regional Police
Jimmy Chapman
Roanoke County, Virginia, Police Department
John Donohue
N


s, the panelists rerated the need based on what they heard. Following the second round of voting, we used a clustering algorithm to group the needs into three tiers (Tier 1, high EV; Tier 2, medium EV; and Tier 3, lower EV). In the third and final ro


he development of use cases and meshing new tools with
existing practices
• difficulties in acquisition processes
• cybersecurity and interoperability issues
• unintended consequences (e.g., floods of body-worn cam -
era data challenging data manage


 discussed the fact that technology providers have such an advantage in technical expertise and resources that it is often the vendors who set the requirements and directions of law enforcement technology.
Market power.  Panelists noted that law enf


dards and certifi -
cation schemes for various technologies in partnership with associations and industry because NIJ did this effectively with body armor. That said, panelists mentioned the downside that standards development, maintenance, and compl


the value and appropriateness of capturing and showing video evidence from body-worn cameras. One panelist noted that he or she quickly realized that the videos shown on cameras often did not reflect the real situation experienced by officers (becau


ithholding those data. However, a key challenge to such national guidelines is the wide variation in state and local laws dictating retention and release that are currently in place. One point of concern was the growing call for officers filming or o


internet-enabled devices in cars and clothing—is growing. There also are increasing numbers of programs and apps being run on these devices, such as officer-installed apps with unknown data reten -
tion and cybersecurity protections. These, in turn,


igative resources.
It was noted that the current state of affairs often leads to
victims of cybercrime being frustrated when their local agency has no means or resources to investigate incidents in which they were harmed. It was further noted that


eed for this topic:  research to
develop a general strategy on which organizations should take the lead regarding various cybercrimes and how that would be determined. It was of middling priority to the panel (Tier 2), possibly trading off the growi


o be able to return DNA profiles of arrestees, as well as matches to crime-scene DNA stored in an FBI database, within two hours (FBI Laboratory Services, undated).
In this area, panelists specifically focused on issues sur -
rounding rapid DNA iden


 reported feeling that agencies and, hence, officers themselves did not have sufficient resources to respond to this environment.
These pressures, combined with a lack of resources, were
seen as likely to have negative effects on officers’ physical


omen in law enforcement.
Panelists noted that the recommended assessments should reflect and support the growing presence of women in policing.
Family involvement.  Panelists suggested that involv -
ing officers’ families in new health strategies i


etail in the following sec -
tions.
Theme 6: A Systematic Review of the
Criminal Justice System and the Roles of All Stakeholders in It Is Needed
Discussion on this topic began with comments that those
concerned with trust commonly focus on bias in


lved shootings. For an outside perspective, they also sug -
gested looking at community-led ways to improve public safety without having to resort to traditional policing tactics.
Agencies Need Assistance in Improving
Communication with Communities


rch and Training on Reducing
Bias and Use of Force
Panelists emphasized the importance of methods to reduce
officer-involved shootings and officer bias resulting in dispa -
rate outcomes. They emphasized that such methods need to be realistic and r


practices, and techniques.
Given the breadth of this challenge, discussions have been
similarly broad. These discussions included such topics as
• difficulty developing solutions relevant to departments of
two to 2,000 officers
• models including


urces and improve effectiveness for core missions.16Theme 9: There Is a Need to Specify How
to Select and Train Officers of the Future Selecting Officers of the Future
Given the discussion about officers needing problem-solving
and soft skills (eit


cal or hard skills; soft skills, e.g., empathy and communication; life experience; and technology skills.Need:  Conduct research to identify the sets of
skills, abilities, and experiences that are most useful to have in today’s policing environment.


 of dissemi -
nating evidence-based business cases to share specified types of information in specific ways. The second motivation was the concern that those receiving law enforcement–sensitive infor -
mation would not protect it appropriately or tha


ders. On the issue of analytic quality, including building capabilities for independent review of privately provided tools, panelists proposed law enforcement application to ensure that quality and accuracy were sufficient. Other proposals focused on


ated to Addressing the Flood
of Information
óóóó (Tier 1) Issue:  Officers and agencies are often
unaware of the tools, systems, and processes
available to them.Need:  Develop a continually updated
inventory of law enforcement information analysi


. That said, according to one panelist, “there is more information out there that is still hard to get,” and readers needed help not only with finding research but also in deter -
mining which results are “meaningful to me as a police chief [or other


at emerged from the workshop lacked
priority needs for innovation. These top issues can be priori -
tized for further consideration in terms of the types of innova -
tions that might help:
• training on digital evidence
• determining state and law


sure that high-demand closed publications are converted to open access (e.g., by paying for them).21Table 1. Themes and Priority Needs for Innovation
Topic Themes High-Priority Needs
Using new
technologies while responding to technological changes i


ps should be repeated.
• 6A. (óóó ) Call for a National Commission on
Criminal Justice to evaluate the current state of criminal justice practices and the equity, efficacy, and legitimacy across the entire criminal justice system.
7 . Better strate


em (typically from crash scenes).
a
13. Agencies need assistance in order to interact more effectively with social media companies. • 13A. (óóó ) Conduct research to identify the
legislative gaps in order to standardize when and how emergency or inv


e top-three needs from the panel was in this area: calling for research and evaluation of public-sentiment moni -toring tools. This panel also called for research on improved training to reduce bias and uses of force.
Panel members then expanded wha


tainty about how to ensure that vendors provide data in the event of a lethal crash and, if they do provide such data, that the data are in a form that could be understood by investigators. They also called for creating liaisons between law enforceme


ould accept that regulation.
A Lack of Easy Solutions to Top Challenges
Second, despite the range of innovation needs, the panel discus -
sion reflected the reality that some of the most pressing chal -
lenges were not found to have easy, short-term


om presentations at other national conferences, with an emphasis on the annual International Association of Chiefs of Police Technology meet -
ings. Given the scope of this workshop, searches were restricted to law enforcement invitees without inclus


ext sec -
tion.
At the end of the meeting, panelists were asked to react to
the prior two days of discussion and findings and provide top takeaways for readers. These takeaways were captured in the conclusions section of this report.
Prioritizatio


ium, and low EV groupings. The use of three EV tiers is manageable and provides a clear focus for decision -
makers (e.g., the needs in the high-EV tier); it is also consistent with prior PCJNI studies. Figure A.2 shows a histogram of the needs’ over


 (NIJ), the Priority Criminal Justice Needs Initiative has carried out research to assess
and prioritize technology needs across the criminal justice community. The fundamental goal is to enable innovation in the U.S.
criminal justice community—fro


” to optimize forensic analyst labor across state and local demandsNeed to develop best practices and best practice business rules for body-worn camera videoInvite researchers and organizations (e.g., International Association of Chiefs of Police, PE


 alerts)
dynamically tailored to individual officers both in the field and at headquarters. Should automatically generate alerts when people of interest (such as parolees) have made contact with police
Need educational materials for key web technolo


wledge across the systemUtilize existing software tools for analysis of data sets like cell tower data. Examples exist that are web-based and can be bought on a
case-by-case basis, but knowledge of what is available is limited
Departments must acqui


 being developed (who needs what information with what
attributes) by different groups (National Public Safety Telecoms Council, FirstNet, Global, etc.). Need to include concepts, policy, and procedures for mutual aid networks. Must explicitly consi


ility movement”—get to consensus on tools being used, quality assurance, protections against bias,
and civil liberties protections.
Conduct a gap analysis on existing automated social monitoring tools to determine the shortcomings for criminal justi


ards for
handling and securing public data held by law enforcement.
3. Law enforcement is challenged by the rise of cybercrimes.
• Law enforcement is not prepared for cyber threats, especially threats from the IoT.
• Law enforcement’s role in fighti


ate of criminal jus -
tice practices and the equity, efficacy, and legitimacy across the entire criminal justice system.
7 . Better strategies, tactics, and tools to improve community relations and public trust.
• Agencies need assistance in improvi


p a federal law enforcement infor -
mation protection law, because it might facilitate the sharing of information that is protected by other laws (e.g., HIPAA, FERPA).
• 10B. (ó) Collect and publicize “success stories”
that occurred as a result of p


n the detection of basic activities like walking, running, throwing, entering and exiting a car, carrying an object, handing off an object, and assembling and dispersing (Intelligent Systems Laboratory, undated).
3    For a general characterization


t C. Davis, and Brian A. Jackson, Digital
Evidence and the U.S. Criminal Justice System: Identifying Technology and Other Needs to More Effectively Acquire and Utilize Digital Evidence , Santa Monica, Calif.: RAND Corporation, RR-890-NIJ,
2015. As


5. As of November 5, 2018: https://www.rand.org/pubs/research_reports/RR928.html
IJIS Institute, homepage, undated. As of May 22, 2019:
https://www.ijis.org/
International Association of Chiefs of Police, “IACP Introduces
National Criminal Justice


html
Violanti, J. M., “Coping Strategies Among Police Recruits in a High-
Stress Training Environment,” Journal of Social Psychology , Vol. 132,
No. 6, 1992, pp. 717–729.
Vincent, James, “U.S. Lawmakers Say AI Deepfakes ‘Have the
Potential to Dis


 Criminology and Criminal Justice.
Dulani Woods  is a data science practitioner adept at data acquisition, transformation, visualization, and analysis. His primary areas of
research have included homeland security and justice policy. He has a master


ersonal use only, as long as it is unaltered and complete. Permission is required from RAND to reproduce, or reuse in another form, any of our research documents for commercial use. For information on reprint
and linking permissions, please visit ww


SOCIAL AND ECONOMIC WELL-BEING
Decision Support Tool for
the San Francisco Bay-Delta Levees Investment Strategy
Documentation and Use
David G. Groves, Nidhi Kalra, James Syme, Hollie Ellis, Charles L. Gardiner,
Lawrence H. Roth
Sponsored by the Del


he world. This research was conducted in the Community Health and
Environmental Policy Program within RAND Social and Economic Well -Being. The program
focuses on such topics as infrastructure, science and technology, community design, community he


tate’s water supply, flooding important habitat, or compromising the Delta’s historic towns, prime agricultural land, or public roadways.
The possible investments to mitigate these risks are numerous, and they will affect Delta risks differently. Th


 Expected Annual Fatalities
SLR sea level rise
   1 1. Introduction
Sacramento –San Joaquin Delta Levees
The Sacramento–San Joaquin Delta comprises over 100 islands and tracts northeast of the
San Francisco Bay (Figure 1.1). Most are below sea l


ty vs. risk
to water supply vs. risk to habitat) and assumptions about future risks to enable a transparent
comparison of results across different metrics. Such an exploratory modeling approach is suited
for long-term policy questions in which the


e metric or time
period), set metric weights for island rank and investment rankings, define portfolios of levee investments,  and explore different trade -offs across the portfolios. Figure 1 .2 summarizes the
inputs, discussion  and analysis, an


itation timing and patterns, including extended periods of
drought; earthquake hazards; ecosystem factors; or project costs could be assimilated into the
DST to inform revised priorities.
1 See the Project Documents section of the Delta S tewardsh


physical processes. Many of these characteristics—such as biodiversity, water
quality, habitat structure and connectivity, food web dynamics, nutrient cycling, and species
population dynamics—could be used to measure ecosystem function and flood ri


e depends only on river stage), a population proportion at risk given
the warning time, proportions of the population considered willing and able to evacuate
given warnings, and a mortality function, which is used to estimate the mortality rate giv


s south of the Delta and within the Delta. Levee breaches and resulting floods threaten
to disrupt water supply.
Ideally, one would measure the risk to water supply as a product of the probability of levee
failure and the consequence of that fai


 and biologically appropriate habitats, functional corridors,  and
ecosystem processes (Delta Stewardship Council , 2013). The elements that create ecosystem
value are complex. For decisionmakers and stakeholders to understand and trade off the imp


ial tidal habitat.
Risk to DAP
The State Legislature recognizes “the unique cultural, historical, recreational, agricultural,
and economic values of the Delta as an evolving place” (California Water Code Section 29702).
As such, the Council provi


ddresses two questions. First, what are the risks now, and
what will they be in 2030 and 2050 if the State does not make levee investments? This is the risk
in a future without action. Second, what would the risks be now and what would they be in 2


 however, is uncertain.
There is much uncertainty about how future risks will evolve over time. For instance, while
sea levels will increase, the magnitude and timing of these increases are uncertain. As another
example, the likelihood of the magn


ethodology Report
(Arcadis, 2017b). Specifically, the report describes six uncertain factors that could affect the
calculations of probability of flooding:
• Discharge-Recurrence: frequency of peak river flows
• Stage-Discharge: relationship betw


pecified
weights to develop an aggregate risk metric. The aggregate risk ranking is then used to classify
the islands into three priority categories, per Council request:
• Very High Priority
• High Priority
• Other Priority.
To aggregate risk


year  Reduction in flooded acres/ million
dollars  invested

The DST ranks investments first by their effect with respect to risk reduction. Then the DST
allows the user to construct portfolios by including projects that are cost-effective above


map of the Delta study area and allows the user to highlight islands and tracts by
name and to filter the islands shown by levee status (e.g., unleveed, leveed, or flooded) and area
(Figure 3.2). There are 170 islands and tracts included in the stu


hat about $30 billion of assets is vulnerable
to flooding across the entire Delta. As with population, most of the assets are on the eastern
edges of the Delta—namely North and Central Stockton and West Sacramento and Maintenance
Area 9 North.


roup. This was determined in consultation with the Council, DWR, user groups, and
other stakeholders. The version below shows the many islands important to the State Water
Project/Central Valley Project (SWP/CVP), colored by the various functions e


H
EGBERT TRACT
EMPIRE TRACT
HASTINGS TRACT
HOLLAND TRACT
HOLT STATION
HONKER LAKE TRACT
Performs Function?
Yes
No
Islands Important for Water Supply for Different User Groups
Filters and Options
Water Supply Users
Antioch
CCWD
EBMUD
North Delta
Sacra


results indicate the number of legacy
Figure 3.8 . Legacy Towns ( DAP) (Panel 2.9a)

Delta as Place
Legacy Towns (#) Island/Tract
0 1 2
Delta As Place Asset
[number; acres; 1/0]GRAND ISLAND
BETHEL ISLAND
BRANNAN-ANDRUS
DLIS-07 (KNIGHTSEN A..
DL


-27DLIS-28
DLIS-31 (GARABALDI ..
DLIS-32DLIS-33
DLIS-43 (POTRERO HIL..
DREXLER TRACT
EHRHEARDT CLUB
FABIAN TRACT
GLANVILLE
GLIDE DISTRICT
GRAND ISLAND1
111
1
11
1
1111111111111111Delta As Place Assets
Legacy Towns (#)
Prime Agricultural Land (acres)


. Islands shaded darker red are estimated to
have higher expected annual fatalities. In general, these risks increase under later years and
the high SLR scenario, as selected on the left. Three islands under baseline conditions have
EAF greater th


 S..
SHIN KEE TRACT
DLIS-41 (JOICE ISLAND A..
DLIS-34
GLANVILLE
STATEN ISLAND
EMPIRE TRACT
WINTER ISLAND
DLIS-44 (HILL SLOUGH U..
MCCORMACK-WILLIAMS..
DLIS-33
DEAD HORSE ISLAND
RIO BLANCO TRACT
DLIS-40
DREXLER TRACT
PROSPECT ISLAND
KASSON DISTRICT10.


aseline
2030, nominal
2030, high
2050, nominal
2050, high
0.0 4.0Expected Annual Fatalities

Risk to Property
Island or Tract
$0.0M $20.0M $40.0M $60.0M
Expected Annual Damage [$]MAINTENANCE AREA 9 N..
NORTH STOCKTON
BISHOP TRACT/DLIS-14
RECLAMAT


AND
WEBB TRACT
CLIFTON COURT F..
TWITCHELL ISLAND
MCDONALD ISLAND
BACON ISLAND
BYRON TRACT
HOLLAND TRACT
BETHEL ISLAND
MANDEVILLE ISLAN..
SHERMAN ISLAND
HASTINGS TRACT
WOODWARD ISLAND
JERSEY ISLAND
JONES TRACT
UNION ISLAND WES..
VICTORIA ISLAND
MAINT


eton, Rio Vista, Knightsen,
and Bethel Island).
Click on the next "Risk to
Delta as Place" panel aboveto advance.Year & SLR Scenario
2012, baseline
2030, nominal
2030, high
2050, nominal
2050, high
2.0% 10.0%Probability of Flooding 30 This panel show


e threshold value are deemed high risk
for the specific metric. The DST allows the user to adjust the thresholds and explore how the
settings affect the analysis. Table 3.1 shows results for the default thresholds. These thresholds
are set so that


The visualization shows the amount of risk for each
island and metric (length of horizontal bars) and defined threshold (vertical red bars). Bars shaded in dark red represent risks that are greater than the threshold. The user can sort the islands b


ore of 4.0, followed by Byron Tract and Maintenance Area 9 North.
Figure 3. 20. Identify Islands Have the Most Risk Across All Risk Metrics to
Create a Composite Risk Score  (Panel 4.2)

Section 5. Ranking Islands by Risk
The DST next maps and


ight
1
Property Weight
1
Water Supply Weight
1
Non-Tidal
Habitat Weight
1
0.0 2.0 4.0
Composite Risk
ScoreMAINTENANCE AREA 9 SOUTH
BYRON TRACT
MAINTENANCE AREA 9 NORTH
BRANNAN-ANDRUS
GRAND ISLAND
SHERMAN ISLAND
BETHEL ISLAND
BISHOP TRACT/DLIS-14
NORT


tial
Other PriorityShow High Tidal
Habitat Potential
Don't Show
ShowYear & SLR Scenario
2012, baseline
2030, nominal
2030, high
2050, nominal
2050, high
5.3) Tiered Ranking of Islands
                            JERSEY ISLAND  (2.0)CENTRAL STOCKTON


c events. See Chapter One  for
additional information on the PL84 -99 guidelines. Panel 6.1) Islands and Tracts with Investments , 76Legacy Towns
198,433139,97872,298Prime Agricultural LandThis panel reports out the
impact of the ranking on
Delta as


r which islands a
PL84-99 (or other) investment is
defined. The bar chart and map shading
indicates the cost of the investment.
PL84-99 guidance is a minimum
requirement established by the U.S.
Army Corps of Engineers (USACE) for
levees in its Rehabi


 Scenario
2012, baseline
2030, nominal
2030, high
2050, nominal
2050, highOptions and Filters Island/Tract
0.000 0.020 0.040 0.060
EAF Reduction [lives/year]BRANNAN-ANDRUS
GRAND ISLAND
TERMINOUS TRACT
BETHEL ISLAND
HOLT STATION
NEW HOPE TRACT
WALNUT


Flooding of Non -Tidal Habitat  with
Investments (Panel 6 .6)

Change in Flooding for Islands Posing Greatest Water Supply Risk with Investments
Filters and Options
Year & SLR Scenario
2012, baseline
2030, nominal
2030, high
2050, nominal
205


nt Priorities  (Panel 7)

Section 8. Developing a Portfolio  of Levee Investment s
Section 8 of the DST—Developing a Portfolio of Levee Investments—allows the user to
develop portfolios that cost-effectively reduce risk to lives, property, water


Very High SHERMAN ISLAND $1.3M 0.1%
MCCORMACK-WILLIAMSON.. $3.6M 1.8%
TWITCHELL ISLAND $4.2M 0.3%
JERSEY ISLAND $2.4M 0.1%
High TERMINOUS TRACT $18.1M 1.5%
GLANVILLE $6.4M 3.4%
TYLER ISLAND $6.2M 0.8%
LITTLE EGBERT TRACT $2.3M 4.4%
DREXLER TRACT $5.3


and other factors, before approving projects at high priority or other priority tracts. If available funds are sufficient to fully fund levee improvements at the very high priority tracts, then funds for improvements or major rehabilitation of lev


alog.data.gov/dataset/public-and-conservation-trust-lands
———, California EcoRestore Fact Sheet, 2015.
http://resources.ca.gov/docs/ecorestore/ECO_FS_Overview.pdf
Council—See Delta Stewardship Council.
CRA—See California Resources Agency.
Delt


s and Applications,” Environment International, Vol. 32,
2006, pp. 1072–1093.
NAS—See National Academy of Sciences.
National Academy of Sciences, Sea-Level Rise for the Coasts of California, Oregon, and
Washington, 2012.   49 National Research Co


Lloyd Dixon, Kathryn Kuznitsky Emerging Trends
in Compensation  for Widespread LossesCORPORATIONLimited Print and Electronic Distribution Rights
This document and trademark(s) contained herein are protected by law. This representation of RAND
inte


AND Institute for Civil Justice
ICJ was founded in 1979, and it has been dedicated to making the civil justice system more
efficient and more equitable by supplying government and private decisionmakers with the results of empirical analyses and a


and obvious mass tort
situation. Everybody started simultaneously off to the races: the federal government, the
state government, and private plaintiffs. It ended up being a missed opportunity for
coordination. The government was able to extract s


e, comprehensive settlement.
Is Coordination Becoming More Common?
Participants agreed that coordination between public and private litigants is becoming more
common, but that it is not new (particularly in environmental cases) and it does not


Factors That Prompted Coordination of Regulators and Individual
Claimants in the Volkswagen Case
Although the panelists covered a wide range of recent examples of how regulators and
litigants have interacted in mass litigation, the Volkswagen “


judge for the Northern District of California, presided over the case. One participant observed that some judges would have been more passive and allowed parties to “run wild,” but Judge Breyer saw the importance of a global resolution. The court no


fs, and to the regulators. But there was another interesting problem: a continuing problem with respect to damages. In the Volkswagen case, there were vehicles on the road that were continuing to pollute, and that was a problem that had to be address


 the key to the whole case was that EPA and CARB needed to approve the method for fixing the cars.
A different participant pointed out that one size does not fit all. There are cases in which one
would absolutely want to stage compensation. One wou


nmental harm, they knew that they had an opportunity to work together with government prosecutors to ameliorate that harm, and they knew they had an opportunity to work with the Federal Trade Commission to compensate consumers. Everyone knew that all


ccording to one participant, is for the federal courts to move
quickly. But they can only move quickly if they have the cooperation of the litigants, and cooperation is not a given; it can be urged, but it is not necessarily achieved. The way it was


olkswagen diesel emissions case.
Lack of Transparency
When regulators and public agencies are involved in the settlement process, transparency is
important. The need for transparency is somewhat unusual in the settlement process because
settle


at contracts with the government. While the government will sometimes administer a claims process (either directly or through a contract), it is not something the government prefers to do, particularly for claims programs that can go on for years.


worked on the defense side for many years observed that liens were not part of the conversation with pharmaceutical and medical device claims that were settled years ago—they were the plaintiffs’ and plaintiffs’ lawyers’ problems. Then Medicare and


osited that there will be more and more attempts by Medicare to
articulate how it can assert rights to reimbursement for future medical costs.
One participant observed that Medicaid increasingly has the same status as Medicare
regarding liens. Me


utting out bids for contractors to do liability set asides. This will be an issue moving forward.
One participant foresaw problems with future medical costs on the private side. For example,
could a private health care insurer file a lien for fut


y plan has the responsibility to make payment. Yet Medicare seems to ignore that and instead demands payment regardless of the limits of the defendant’s liability (e.g., when the defendant is only 45 percent liable).
Another participant agreed, sta


column one and held back column two. If plaintiffs’ lawyers did not want to work with a claim resolution company, they needed to work with the lawyers for the lienholders to resolve the lien. Once the liens were resolved, any amount remaining in colu


l rules and other procedures were originally tailored to a civil
litigation paradigm of one plaintiff, one defendant, and two lawyers. However, the paradigm is changing, and it has become increasingly common to see litigation with large numbers of c


ers and judges involved in MDLs is small,
and this “repeat player effect” has resulted in outcomes that are in the interest of lawyers and judges but not the injured parties. Many academics criticize judges for using too many “innovative” procedures


e the elements of their claims).
3
Inventory Settlement: Paxil Birth Defects Litigation
The Paxil birth defect litigation did not use an MDL, class action, or quasi–class action;
rather, it used an inventory approach. The defense’s strategy w


 always result in payments. Many cases are vigorously defended and result in no payment or very limited payments to a limited set of people.
A potential advantage of class actions is something approaching global peace. One
participant pointed out


result can be claims for injuries that are not caused by the product in question. In Vioxx, for example, about one-third of the claimants could not produce medical records that they had taken Vioxx. For many products, there are no signature symptoms


ers wanting a return on their up-front investments.
Further work is also warranted on alternative systems around the world for processing mass
claims—specifically, on the New Zealand system. American scholarship has not looked at New Zealand’s sy


rss  iinn  SSeettttlleemmeennttss
• Moderator: Nicholas Pace, Social Scientist, RAND Corporation
• The Honorable Charles R. Breyer,  Senior Judge,  United States District Court for the
Northern District of California
• Elizabeth J. Cabraser,  Partn


 explored the role o f liens in
the settlem ent process and how different aggregation processes (class action, multidist rict litigation,  and inventory
settlement) affec t compensation. Multiple participants argued that collec ting more data on th


Fostering
Innovation  in U.S. Law Enforcement
Identifying High-Priority
Technology and Other Needs  for Improving Law Enforcement Operations and Outcomes
John S. Hollywood, Dulani Woods, Sean E. Goodison, Andrew Lauland,
Lisa Wagner, Thomas J. W


t a research effort to assess and prioritize technology and related needs across the criminal justice community. This initiative is a component of NIJ’s National Law Enforcement and Corrections Technology Center (NLECTC) system and is intended to sup


2016.
• Schwartz, Heather L., Rajeev Ramchand, Dionne Barnes-Proby, Sean Grant, Brian A. Jackson, Kristin Leuschner, Mauri Matsuda, and Jessica Saunders, The Role of Technol -
ogy in Improving K–12 School Safety , Santa Monica, Calif.: RAND Corporati


.................... 82
  D.3.  Identifying Special Priority Needs—Operational  ............................................. 83
  D.4.  Identifying Special Priority Needs—Strategic and Administrative  ......................... 84
  D.5.  Low-Hanging


or service  to help solve an operational problem facing law
enforcement or take advantage of an opportunity (such as new technologies coming on line). Products and services can include materiel items, such as improved equipment or software, and nonm


 driven
largely by the social and political tensions raised in recent years, in the wake of officer-involved shootings and civic unrest in Ferguson, Missouri, and Baltimore, Maryland. Under this theme, panelists had Tier 1 needs on improving how age


ociation of Chiefs of Police (IACP).
There is a need to improve dispatch center operations.  Tier 1 needs include calls to
assess costs and benefits of consolidating dispatch operations, as well as improve the question trees used by 911 call operato


ry) that include sustainment costsWork with other government agencies and associations to prepare the model language and identify examples.
Knowledge of effective practices and technologies: improving management practicesBrief explanation of evidence


d staff who provided guidance and suggestions during all parts of the project. We specifically recognize Steven Schuetz and William Ford, who were most involved in this effort.
We would like to acknowledge the reviewers, Elizabeth Groff at Temple Uni


 in comparison, covered a full range of law enforcement problems, opportunities, and responses, including needs related to vehicles, facilities, personal equipment, personnel development, and training, as well as IT.
LEAP 2 took place over the cours


ders, and themselves during enforcement activity. More broadly, they are charged with maintaining positive relations and trust with the communities they serve, giving life to the widely cited “Principles” statement that “the police are the public and


ncounter and then share that recording with the world through social media. Cam -
eras of all types, including police body-worn and dashboard-mounted cameras, have given the public a never-before-seen view into police work and have raised the expecta


 leaders of other organizations) over the past few years, backed with evidence captured in a range of scholarly articles.
Chapter Three describes the current state of law enforcement technology and practice, as
well as previously generated needs fo


been motivated by anti-police hatred tied to use-of-force incidents (Fernandez, Pérez-Peña, and Bromwich, 2016). This environment may have contributed to increas -
ing fear among officers for their own safety , as measured in a recent Pew poll (Morin


 even more critical, and more challenging, in the future.
The purpose of this chapter is to provide a contemporary narrative review of modern
American policing. This modern history and associated challenges have been directly influ -
enced by polic


he country.
In the process, the term “Ferguson” would become shorthand not just for the Michael
Brown shooting and its immediate aftermath. It would come to represent the beginning of an intensive public examination of police use-of-force policies,


Vaughn, and Lim, 2014) or limited pool of incidents (Nix et al., 2017; Hine et al., 2016). But, for the profession as a whole, the new national system should help answer fundamental questions about police use-of-force trends.
Another federal respons


te video, agencies must expect that the video will be viewed almost instanta -
neously by thousands of people across the country and around the world. They must also know that, in today’s environment, a single controversial incident captured on video


 both criminal and internal probes of the incident (Miller, Toliver, and Police Executive Research Forum, 2014).
A growing number of jurisdictions are enacting laws or regulations governing when and
how videos will be released (National Conference


ce and found vast differences of opinion between African-Americans and whites. Seventy-five percent of whites said the police treat different racial and ethnic groups fairly; three-quarters of whites also said police use the right amount of force for