Bellwether trials are basically “test” cases in large mass tort litigation involving thousands of plaintiffs. When you have thousands of individual plaintiffs bringing similar claims (usually product liability) it is not physically possible to take every case to trial.
Instead, a handful of sample cases are tried to give everyone involved in the litigation a clear idea of the settlement compensation payouts victims should receive. These trials are bellwether trials.
In this post, we will explain the bellwether process in mass tort multidistrict litigation (MDL) cases. We will examine the role of bellwether trials and how individual cases are selected to serve as bellwether cases.
Mass Tort MDL Class Action Lawsuits
Bellwether trials are only in mass tort MDLs or other consolidated litigation. Mass tort litigation occurs when a defective product such as a medical device or pharmaceutical drug causes hundreds or thousands of people to suffer similar injuries.
The net result is that thousands of people across the country end up filing virtually identical tort lawsuits against the same defendant (or group of defendants) around the same time.
Example of How a Bellwether Trial Comes About
For example, let’s say Acme Pharma makes a prescription drug called Drug X that is taken every day by 4 million people in the U.S. One day, Acme Pharma suddenly recalls Drug X because studies have shown that it causes liver cancer. Over the next 12 months, 75,000 former users of Drug X file lawsuits against Acme Pharma across the country. Most of the cases against Acme are in federal court.
In this hypothetical situation, the lawsuits against Acme Pharma pending in federal courts around the country will be consolidated into an MDL. MDL stands for “multi-district litigation.” When an MDL is created, all Drug X lawsuits against Acme Pharma will be transferred to a single federal district court and assigned to a single judge.
The MDL judge will then organize a process of consolidated discovery. This consolidated discovery phase can last 1 or 2 years. When the consolidated discovery phase is completed, the MDL judge will then work with attorneys for both sides on a process of selecting a few representative cases to go to trial. These are the “bellwether” cases.
If the cases cannot settle in the MDL, the judge can send them back to the appropriate federal district court for trial.
Bellwether Trials in Mass Tort MDLs
The word “bellwether” originates from medieval England when shepherds would put bells around the neck of the castrated ram (a “wether”) leading a flock of sheep. Putting a bell around the “wether” ram enabled the shepherds to track the flock’s movements when out of sight. Today the term bellwether is used to describe people who set or influence trends.
You Cannot Take Every Case to Trial
In consolidated mass torts (MDLs), there are often hundreds or thousands of individual cases involving identical allegations. Taking all the cases to trial is simply not feasible. Instead, a small handful of representative or “sample” cases are selected out of the larger group. Jury trials are then held in these sample cases. These sample or test trials are referred to as “bellwether” trials.
The outcomes of the bellwether trials are used to give the parties in the larger litigation a sample of what they could reasonably expect if their case 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?
If you have a mass tort MDL class tort action with thousands of individual cases, only a very small handful (usually less than 10) will be picked out for bellwether trials. The exact number of bellwether trials will depend on a lot of variables, including the overall size of the litigation and the willingness of the defendant(s) to settle. The general idea is to continue with bellwether trials until a global settlement is reached.
The process of picking 10 or 20 “sample” cases out of a group of thousands can be very complicated and varied. Ultimately, it is up to the MDL judge to decide on the process of selecting bellwether cases based on certain rules and guidelines set by the Judicial Panel on Multidistrict Litigation.
In most MDLs the bellwether selection process starts with selecting an initial pool of cases to serve as candidates for bellwether trials. The size of this initial pool of candidate cases can vary anywhere from 20 to 100. This initial pool of candidate cases can be selected randomly by a computer or the MDL judge will set up a selection process where plaintiffs pick half and defendants pick the other half. The goal is to get a good representative sampling of cases that is fair to both sides.
Accelerate Discovery for Bellwether Trials
Once the initial pool of candidate cases is selected, lawyers will get a chance to conduct fact discovery to learn more about the cases. This usually involves deposing the plaintiff and reviewing their medical records and other relevant evidence. Once this investigative fact discovery is completed, a subset of cases will be selected out of this candidate pool for the actual bellwether trials.
Which Lawsuits Are Selected as the Bellwether?
The process of selecting bellwether trial cases out of the candidate pool almost always involves some arrangement where the plaintiffs and defendants each get to handpick an equal number of cases (e.g., plaintiffs pick 4 cases and defense picks 4 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.
How Many Bellwether Trials Can You Expect?
The purpose of bellwether trials is to facilitate a global settlement of all the cases in the litigation. Bellwether trials give the litigants a glimpse of what to expect so that they can start negotiating a settlement. Of course, this leads to an obvious question. How many bellwether trials will there be? The answer is as many (or as few) as is necessary to bring about a global settlement.
The number of bellwether trials you can expect in an MDL will depend heavily on the circumstances of the litigation and the early results of the bellwether trials. As a general rule, the bigger the MDL the more bellwether trials you can reasonably expect. The 3M Combat Arms Earplugs MDL is the largest mass tort MDL ever with nearly 300,000 cases. So far there have been 15 bellwether earplug trials as of May 2022. But the Roundup class action settled for $11 billion after only 3 trials.
The outcome of the initial bellwether trials can often have an even larger impact on how many trials are needed before a global settlement of the class action is reached. If the first few bellwether trials result in massive verdicts for the plaintiffs, the defense will often have no choice but to negotiate a global settlement as soon as possible. This is exactly what happened in the Roundup litigation where 3 blockbuster verdicts in the opening bellwether trials effectively forced Bayer to negotiate a global settlement.
How Can Your Case Get Selected for a Bellwether Trial?
If you are one of the thousands of plaintiffs with a pending case in a mass tort MDL, it may seem unfair to see other plaintiffs get picked for bellwether trials and win big verdicts while you sit and wait on the sidelines. It’s only natural to wonder what, if anything, you can do to get your case picked for a bellwether trial. Unfortunately, there is very little you can do to get picked as a bellwether plaintiff.
When you filed your lawsuit in a mass tort MDL, you are effectively putting your name into a bellwether trial lottery pool. Theoretically, your case has the same statistical chance 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.
One thing that is particularly important to do if you want to increase your odds of being a bellwether plaintiff is to fully complete your plaintiff fact questionnaire and make sure you timely submit it to your lawyer. In most MDLs, cases will not be eligible for bellwether selection unless the plaintiff has submitted a complete questionnaire form.
Hypothetical Example of Bellwether Trials and Selection in Mass Tort MDL
To 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 Pharma is the maker of Drug X, a popular prescription drug that is used on a daily basis by approximately 4 million people. Five years after the release of Drug X, news breaks that several studies have shown a clear link between Drug X and higher rates of liver, kidney, and colon cancer. The studies force Acme Pharma to recall Drug X leading to a wave of product liability lawsuits by individuals who used Drug X and were subsequently diagnosed with liver, kidney or colon cancer.
Within 6 months of the recall, there are 20,000 Drug X lawsuits filed and pending in federal courts across the country. All of the 20,000 Drug X lawsuits involve common allegations and factual issues, so the JPML agrees to consolidate all 20,000 cases into a new Drug X MDL. The “Drug X MDL” is assigned to a judge in the federal court for the District of Maryland. Maryland is chosen as the venue because Acme Pharma is headquartered in Baltimore.
Over the course of the next 18 months, the judge in the Drug X MDL oversees a consolidated discovery process in which all cases in the Drug X MDL submit limited discovery information. Meanwhile, new Drug X lawsuits continue to get filed and transferred into the MDL resulting in total pending cases of 25,000.
The judge in the Drug X 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.
What Is the Difference Between a Class Action and an MDL?
An MDL consolidates a group of lawsuits for pre-trial discovery and bellwether trials. But the cases are still individual lawsuits. A class action lawsuit combines multiple plaintiffs in a single lawsuit and single trial.
That is the technical definition. Lawyers and plaintiffs use class action and MDL interchangeably in the real world as I do in this post.