A bellwether trial is a test trial involving a case that originates from and is factually representative of a large pool of lawsuits that are filed against the same party (or group of parties) over the same product or action that forms the basis of legal liability. 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 so that the parties can evaluate the amount of liability the defendants are exposed to, if any. Bellwether trials are commonly used in mass tort actions, which occur when thousands of individuals are injured by the same defective product and the federal courts consolidate them into one giant case called an Multi-District Litigation (MDL).
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 bellwether 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 to Plaintiffs?
Bellwether trials are beneficial for the plaintiffs because they allows the opportunity to test a few of the stronger cases and the weaker cases to get an idea of what the realistic settlement value is for the bulk of the cases. Bellwether trails allow the plaintiffs to select the strongest cases to go first so that they know that early results and expectations are not determined by poor quality cases and/or inexperienced attorneys.
What are the Benefits of a Bellwether Trial to Defendants?
For the defendant, a Bellwether trial provides the option to test the strength of the Plaintiff’s stronger cases while also putting up the cases they see as stronger to show that the cases are not all a guaranteed win for the plaintiffs. It also enables them to prepare a defense for each case in a timely manner vs being overwhelmed by trial after trial all falling at the same time in courts across the entire country.
What are the Benefits of a Bellwether Trial for the Judicial System?
For the judicial system, holding bellwether trials allows the cases to be disposed of in an orderly fashion without inconsistent rulings across different courts muddying the waters for evaluation. By trying them in a set determined order in the same court, the parties gain the opportunity to evaluate the cases in bulk and hold settlement discussions about the cases in bulk–thereby increasing the chances of settlement. Additionally, key issues on the reliability and admissibility of expert testimony can be tested and resolved in one hearing that applies to all cases vs having to have the same hearing in ever single case.
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 Get My Case to Be 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 the bellwether cases and what the process will be.
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