Bellwether trials are like “test” cases used is big mass torts such as class action MDLs involving hundreds or even thousands of individual plaintiffs. To understand what a bellwether trial is, you need to understand how modern mass tort litigation works.
Understanding Mass Torts
In mass tort litigation, there is a very large group of plaintiffs (anywhere from a few dozen to a few thousand) all of whom have filed lawsuits involving identical tort claims. The most common example is in the pharmaceutical context where thousands of people are injured by a defective drug (e.g., Vioxx) and they all file identical lawsuits around the same time.
Mass torts usually involve just one or a small group of related defendants. Litigating all of these hundreds or thousands of identical lawsuits separately would overwhelm both the defendants and the court system. To alleviate this burden, the cases are consolidated together into a multi-district litigation (MDL), which is similar to a class action.
How Bellwether Trials Work
The term “bellwether” comes from medieval England when shepherds placed bells on the castrated ram in the flock (a “wether”) who the flock followed while grazing. The bell around the “wether” enabled shepherds to keep track of the flock by sound. From that original use, the term bellwether is now used to describe people who influence others to follow.
When you have a mass tort involving hundreds or thousands of individual cases, it simply is not physically possible for each of these cases to go to trial. But the defendants have a right to take the cases to trial and have the issues decided by a jury. The solution is the bellwether trial system.
Since not every case can go to trial, a handful of sample cases a selected out of the thousands of pending cases in the MDL. These cases are intended to be representative of all the other cases in the litigation. Jury trials are then held in this select group of cases. These trials are referred to as the “bellwether” trials.
The results of the bellwether trials give both parties in the litigation a good sample of what they could reasonably expect if all of the other cases went to trial. The sample results from the bellwether trials are then used by lawyers for both sides to help facilitate and shape settlement negotiations.
How Are Cases Selected for Bellwether Trials?
A typical mass tort MDL involves anywhere from 200 to 5,000 plaintiffs, but some MDLs can get even bigger. The largest MDL is history is the 3M earplugs MDL which has about 250,000 plaintiffs. Regardless of size, only a very small handful of cases will be picked out for bellwether trials. The exact number of bellwether trials is up to the MDL judge and usually depends on the overall size of the litigation and the nature of the cases. The general idea is to continue with bellwether trials until a global settlement is reached.
The process of picking a few “sample” cases out of a group of thousands can be very complicated. Ultimately, the MDL judge sets the process for selecting bellwether cases based on certain rules and guidelines set by the Judicial Panel on Multidistrict Litigation.
The selection process usually starts with picking an initial pool of cases to serve as candidates for bellwether trials. The size of this initial pool ranges from 10 to 100. This initial pool of candidate cases can be selected randomly by a computer based on certain fact criteria set by the MDL judge. The goal is to get a good representative sampling of cases that is fair to both sides.
Picking the Final Bellwether Cases for Trial
Once the pool of candidate cases go are prepared for trial, a handful of cases out of the group must be picked to actually go to trial. The process of picking the final trial cases almost always involves some system where the plaintiffs and defendants each get to handpick an equal number of cases (e.g., each side picks 2 cases). The plaintiffs will pick out cases that are most favorable to them and the defense will pick out cases where they have the best chance of winning. Sometimes the MDL judge will also get involved in the selection of bellwether cases. For example, in the 3M earplugs litigation, the opening bellwether trial featured 3 plaintiffs one selected by each side and a third selected by the judge.
- The judge
- The lawyers
- The lawyers AND the judge
Why Do Bellwether Trials Often Help Get Cases Settled?
Cases do not settle for one primary reason: the parties disagree on the value of the claims. The goal of bellwether trials is to give both plaintiffs and defendants a dose of real reality in terms of who is likely to win the case and the amount of damages a jury might award. So the idea of these test balloon trials is to gauge how real juries will decide these cases. Both parties tend to think their side will prevail or that the damages will come out their way.
So the cases picked are a big deal. How bellwether trials are selected has everything to do with the outcome for the entire class, particularly when the number of trials before settlement is small.
Will My Case Be One of the Bellwether Cases?
Statistically, your case is unlikely to be one of the bellwether cases that go to trial. Typically, only a small number of cases are selected so the odds against an individual plaintiff being chosen is low.
When you file your case in an MDL, you are basically putting your name into a bellwether trial lottery pool. Theoretically, your case has the same statistical odds of being selected for a bellwether trial as all the other cases in the MDL. The only thing you can really do to maximize your odds of being selected for a bellwether trial is to make sure that you actively participate in your case and promptly respond to all information requests from your lawyer.
Being a bellwether case is a mixed bag. It certainly gives you the best chance to hit a home run and get full value for your case, an outcome that generally eludes plaintiffs that settle in a class. But there is also the risk of losing the case and getting nothing. Being the bellwether case is high risk and high reward.
One thing that is particularly important to do if you want to increase your odds of being a bellwether plaintiff is to fully and timely complete your plaintiff fact questionnaire for the litigation. Your case will not even be eligible for bellwether selection unless the questionnaire form is completed.
Hypothetical Example of Bellwether Trials and Selection in Mass Tort MDL
Below is a hypothetical example to help illustrate how bellwether trials work and the process of selecting cases for bellwether trials in a large, mass tort MDL, lets go back to our example from above involving the case of Acme Pharma and Drug X.
Acme is the manufacturer of Wonderdrug, a prescription used by millions on a daily basis. Acme recalls Wonderdrug after new scientific studies emerge showing that long-term use of the drug increases the risk of liver and kidney cancer. The recall leads to a wave of product liability lawsuits by individuals who used Wonderdrug and were subsequently diagnosed with liver or kidney cancer.
Within 6 months of the recall, there are 10,000 Wonderdrug lawsuits pending in federal courts across the country. All of the 10,000 lawsuits involve common allegations and factual issues, so the JPML agrees to consolidate them into a new Wonderdrug MDL. The “Wonderdrug MDL” is assigned to a judge in the federal court for the District of Maryland. Maryland is chosen as the venue because Acme is headquartered in Baltimore.
Over the course of the next 18 months, the judge in the MDL oversees a consolidated discovery process in which all cases submit limited discovery information. Meanwhile, new Wonderdrug lawsuits continue to get filed and transferred into the MDL resulting in total pending cases of 25,000.
The judge in the Wonderdrug MDL starts the bellwether selection process by creating an initial pool of 60 bellwether candidate cases. 20 of these cases are randomly selected by a computer. 20 are selected by lawyers for the plaintiffs and 20 are picked by the defense. For the next 8 months, these 60 candidate cases go through a more extensive pretrial discovery process. Each of the plaintiffs in the 60 cases has their deposition taken and submits full medical records.
Once this fact discovery process on the 60 candidate cases is completed, the MDL judge announces that 12 of the 60 cases will be selected for the opening round of bellwether trials. 4 cases will be picked by the plaintiffs. 4 cases will be picked by the defendants and the final 4 will be picked by the judge. The first 3 bellwether trials are scheduled and will feature 1 defense pick, 1 plaintiff pick, and 1 of the cases picked by the judge.
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