What is a Bellwether Trial?
A bellwether trial is a test trial involving a case that derives from a large pool of lawsuits filed against the same party (or group of parties). The bellwether plaintiff is typically chosen because he/she is a typical representative of a large group. The bellwether cases are used as test cases in an attempt to foresee how future litigation may turn out. Bellwether trials are used in mass tort actions, which occur when thousands of individuals are injured by the same defective product.
Where Does the Term ‘Bellwether’ Come From?
The term ‘bellwether’ dates back to the 13th century when farmers began placing bells around the lead sheep in a flock so that the flock could be tracked and monitored. Similarly, bellwether trials are used to track and monitor the potential outcome of a widely contested claim. When thousands of lawsuits are filed against one party, bellwether trials allow all parties involved to litigate a few, select cases in order to predict how the rest of the pending cases will turn out.
What is Multi-District Litigation?
A Multi-District Litigation is a federal legal procedure that helps speed up the litigation process when a plethora of claims are made against one party in different federal district courts. An MDL Panel, consisting of 7 judges from different circuit courts, decides whether or not an MDL is necessary. Once an MDL is established, it is up to the judge and related attorneys to choose which lawsuits will be included in the bellwether trials. The cases chosen are meant to represent the broad range of cases related to the MDL.
What are the Benefits of a Bellwether Trial?
The benefits of a Bellwether trial span across all parties involved. For the plaintiffs, a Bellwether trial allows the opportunity to present evidence and focus their claims on what will be the most successful in court. For the defendant, a Bellwether trial provides the option to pursue litigation with the other cases filed or settle out of court. For judges and legislators, bellwether trials serve as an indicator of future trends in the legal industry. Bellwether trials provide a unique advantage to the legal system when no other options are available for handling a massive caseload. Bellwether trials do not guarantee the same verdict across an MDL; they simply serve as a representative example of the situation at hand and how best to handle it.
Examples of Mass Tort Claims With Bellwether Trials
There have been many mass tort claims in recent history that involve bellwether trials. Several of these are still ongoing multidistrict litigation cases. Some examples of recent bellwether trials include the ongoing 3M Dual-sided Earplug trials, the Bard hernia mesh bellwether trials, and the Johnson & Johnson Talc bellwether trials. Bellwether trials are anticipated to come shortly in these mass tort litigations:
- Lawsuits Over Baby Formulas Causing NEC in Premature Babies
- Lawsuits Over Firefighter Foam Causing Cancer
- Lawsuits Over Hair Relaxers Causing Cervical Cancer
- Lawsuits Over Bard Hernia Mesh
How Do I Become the Bellwether Case?
You cannot simply decide to be the bellwether case. The bellwether cases are usually chosen by a method set out by the judge that is decided upon after the judge confers with the plaintiffs’ and the defendants’ representative counsel. Usually, the judge will let the plaintiffs’ steering committee select some, the defense attorneys select some, and the judge will select some. It is not uncommon for the judge to select six, the plaintiffs’ steering committee to select six, and the defense to select six. Then, the cases are tried one by one until a global settlement is reached or they are all tried.
What is a Plaintiffs’ Steering Committee?
The plaintiffs’ steering committee is a group of attorneys representing plaintiffs in the MDL who have been chosen to represent the “class” in making decisions about which cases will be tried and what the process will be.