Bellwether Trials and Multidistrict Litigation

Multidistrict litigation or MDL is one way to resolve complex civil cases or mass tort litigation. It is an alternative to the well known Class Action lawsuit. Class Action lawsuits must meet specific statutory requirements (i.e. particular number of class members, common issue, claims and defenses representative of group as whole, and the law firm/attorney on record must meet certain requirements). In a class action the individual plaintiffs are not named, there is an individual who is listed as the plaintiff that is suppose to be representative of the entire group or class, whereas, in an MDL every individual has their own lawsuit and is named as a plaintiff. MDLs are useful in that they provide a centralized forum for preliminary matters to be decided.

One of the most interesting aspects of MDLs is the use of Bellwether trials. The name Bellwether comes from the practice of belling a whether (a male sheep) who is selected as the sheep who leads his entire flock. The Bellwether trial is analogous to Belling a sheep because Bellwether trials are trials that are suppose to be representative of the rest of trials in the MDL and are suppose to lead to settlements of the larger lot of cases. Meaning you try one case and all of the other similar cases should follow behind and derive a similar outcome. Generally the Plaintiff and the Defendant have the chance to select particular number of individual lawsuits that are to be used as the bellwether or representative trials. The number of lawsuits selected and the way in which they are selected depends on the judge and the type of issues at hand. Some of the variables used in selecting cases for Bellwether Trials (or the representative cases) in pharmaceutical drug litigation are:

  1. type of injury
  2. period of ingestion (short term versus long term)
  3. age group (older or younger than 65),
  4. prior health history
  5. date of injury.

See In re Vioxx Prods. Liab. Litig., 501 F. Supp. 2d 789 (E.D. La. 2007). This allows the court to separate the litigation into meaningful divisions and hopefully ensure that the cases tried are representative of the entire census.

In the Cook IVC filter MDL in Case Management Order #12, it was agreed that the Plaintiffs will select a total of two cases and the Defendants will select a total of two cases to be Bellwether cases. The Parties have to prepare a memo by March 17, 2016, in regards to their proposals for the Bellwether trials. Although the Bellwether trial outcomes are only binding on the cases that are tried, it is important to keep an eye on these cases because they may affect the outcome of hundreds of other cases that are found to have similar variables.