“Bellwether Trial” – How It Works in Mass Tort Litigation

Bellwether cases in mass tort litigation are sample jury trials conducted to gauge how jurors react to the evidence and arguments. They are a common part of multidistrict litigation (MDL) that aims to give plaintiffs and defendants an idea of how judges and juries would respond to issues that are present in other cases in the MDL.

Bellwether trials can drastically influence settlement discussions in future cases.

In this article, our mass tort lawyers take a close look at bellwether cases, examine their pros and cons, and explain how they can impact your case if you have been hurt in a mass tort situation like a defective product, medical device, or drug.

• 1. What is a bellwether case?
  • 1.1 Mass torts and multidistrict litigation
  • 1.2 Bellwether cases are test trials
  • 1.3 An example of a bellwether trial
• 2. What are the benefits of bellwether trials?
• 3. What are the cons of bellwether cases?
• 4. How can bellwether trials impact your mass tort claim?
• 5. Contact a personal injury lawyer for help

1. What is a bellwether case?

To understand what a bellwether case is, it is helpful to first see how mass tort litigation happens.

1.1 Mass torts and multidistrict litigation

Mass tort cases are negligent, reckless, or sometimes intentional actions by a single party that hurts a large group of innocent people. Examples of mass torts include:

• A plane crash with dozens of victims,
• A defective product that was sold to thousands of purchasers and is now breaking and hurting innocent buyers (“product liability”),
• A drug or medication that was poorly designed, manufactured, or marketed, and is now causing serious medical conditions for innocent patients.

These innocent victims deserve compensation for their losses and file personal injury lawsuits to get it.

However, because there are hundreds, and sometimes thousands, of lawsuits that all revolve around the same facts and that involve very similar injuries, it would be inefficient and problematic for the legal system for courts to hear every case on its own.

To fix this, federal courts frequently consolidate these lawsuits into multidistrict litigation (MDL) for the early stages of the process. During MDL, a single district court will handle all of the lawsuits.

Evidence gathered for one lawsuit can be used for all the rest of the lawsuits, significantly

• streamlining the pretrial proceedings and
• reducing costs.

As evidence is gathered, the plaintiffs and the defendants will begin settlement discussions.

However, these settlement discussions will be hypothetical – neither side will have a verdict to use as a guideline of how much compensation a victim would get if they took their case to trial.

1.2 Bellwether cases are test trials

To create a guideline for how much a case is worth in the MDL, lawsuits that are fundamentally similar to the other cases in the MDL are brought all the way to trial. This subset of pending cases are called bellwether cases.¹

Bellwether cases are

• representative cases chosen from the larger set of claims in the MDL based on how similar they are to the rest of the lawsuits, and
• a litmus test for the larger group of MDL plaintiffs.

Trials that end with large verdicts for the bellwether plaintiffs and victims often lead to larger global settlements for the other remaining cases in the MDL.²

1.3 An example of a bellwether trial

An example of a bellwether case happened in the aftermath of the September 11^th attacks.

Congress passed a law³ that established a compensation fund for the victims of the attacks. Victims and their families could choose to

• take compensation from the fund, or
• pursue multidistrict litigation in the Southern District of New York for personal injury and wrongful death against the airline companies involved.

After six years, 41 of the cases in the MDL reached an impasse in settlement talks. To move the lawsuits along, the MDL judge and the parties chose six of the lawsuits to take to a bellwether trial.

The trial would not discuss whether the defendants were liable – only the amount of compensation the plaintiffs deserved, were the defendants later found liable.⁴ The verdicts of these bellwether trials could be used – but did not have to be used – by the other plaintiffs in the MDL as a guideline for how much their own case was worth.

After the bellwether trials, many of the cases settled quickly.

2. What are the benefits of bellwether trials?

Bellwether trials are important aspects of multidistrict litigation because they synthesize lots of lawsuits into only a few representative trials. Therefore, the bellwether process carries numerous benefits:

• They speed up the multidistrict litigation process by establishing guidelines for how much compensation representative plaintiffs have recovered, setting precedent for similar cases in the MDL to use during settlement negotiations,
• They reduce the aggregate costs of legal fees for the individual plaintiffs by making settlement easier,
• They reduce the defendants’ legal fees by adding certainty to the settlement process,
• They reduce the time and resources that the judicial system spends on the MDL,
• They add a degree of certainty and closure for plaintiffs and victims by having a judge or jury issue a verdict on a similar case,
• They reduce the amount of time that plaintiffs spend wading through federal legal procedures.

3. What are the cons of bellwether cases?

Bellwether cases are not magical cures for mass tort litigation, though. There are also numerous cons to the practice:

• Because bellwether cases will impact the outcome of the rest of the lawsuits in the MDL, the process of determining which cases proceed to a bellwether trial is likely to be costly, contentious, and critically important for everyone involved,
• Minute differences in the outcome of a bellwether trial will have profound effects as they trickle down into the settlement negotiations of the other MDL lawsuits,
• Victims who are different from the plaintiffs in the bellwether trials can be pressured by the system into a settlement that does not fit the unique aspects of their own case,
• Plaintiffs who are not in the bellwether trials could be potentially deprived of their right to their day in court,
• Proceedings may occur in a different federal district than where many victims are located, making them feel “removed” from the process.

4. How can bellwether trials impact your mass tort claim?

If you are one of the plaintiffs in a mass tort claim that is proceeding through multidistrict litigation, odds are that a bellwether trial will both streamline and simplify the process of recovering compensation.

This is especially likely if your lawsuit is a tag-along claim, or a lawsuit filed long after the MDL has formed. In these situations, a bellwether trial will likely influence your case in the following ways:

• Much of the evidence regarding the defendant’s problematic conduct will have been gathered,
• The link between the defendant’s conduct and your injuries will likely be substantially ascertained,
• Victims will likely have been categorized into different groups, depending on their injuries and backgrounds,
• There will be one or several bellwether cases that involve plaintiffs who endured similar injuries and were in similar situations to your own,
• The awards that these similar plaintiffs will be used as guidelines for your own case,
• Much of your case will involve arguing over differences between the bellwether cases and your own claims, and how much they should alter your award.

However, if your lawsuit is one of the first in an MDL and becomes a bellwether case, you will likely feel far more stress and commit more time and energy to your case than you would have, otherwise. Because your claim will have an outsized impact on the rest of the lawsuits in the MDL, you can expect:

• To be deposed and face far more questions and more contention during the deposition,
• To face far more scrutiny about even the tiniest details of your case,
• Intense investigations into the injuries you have sustained and how much it costs to recover from them,
• More interactions with your lawyer and the other attorneys in the MDL than normal.

While these results can be disconcerting, the reality is that very few cases in a multidistrict litigation are chosen as bellwether trials. In fact, the whole point of bellwether trials is to select as few lawsuits as possible, while still covering as many discreet issues that are present in the MDL.

5. Contact a personal injury lawyer for help

If you have been hurt in a mass tort scenario, or if a loved one has died or suffered injuries so severe that they have been left incapacitated, recovering a large payout can be crucial for your future. The personal injury lawyers at the Shouse Law Office can help.

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