The Rise of Bellwether Trials

March 14, 2013

gavelBy: Mark P. Chalos

[Disclosure: The author represents or has represented injured persons involved in the litigations discussed in this post.]

As centralized litigation becomes more prevalent, litigants and courts continue to explore creative methods for managing and resolving claims. One such method is the use of bellwether trials – that is, trials of selected representative cases. Bellwether trials can, in appropriate circumstances, provide important information about the merits of claims and defenses, as well as relative values of particular categories of cases.

Several pending multi-claimant litigations highlight the significance of early, representative trials.

In February 2013, in multi-venue litigation involving a medical product, transvaginal mesh, a treatment for pelvic organ prolapse reportedly linked to a variety of serious complications, a New Jersey state jury in a bellwether trial found the manufacturer liable for more than $11 million in damages. Additional bellwether trials are set in 2013, including in the federal Judicial Panel on Multidistrict Litigation (MDL).

Similarly, Johnson & Johnson faces more than 10,000 lawsuits related to its metal-on-metal Depuy hip products, spread among a federal MDL and various state courts.  In a recent early trial – not a true bellwether trial – a California state jury found J&J liable for $8.3 million in compensatory damages.  The first bellwether trial is scheduled in federal court in May.

Bellwether Trials Emerge as a Useful Case Management Tool

Used for decades in various contexts, bellwether trials rose to prominence around the turn of the 21st century. See Eldon E. Falon, et al, Bellwether Trials in Multidistrict Litigation, 82 Tul. L. Rev. 2323 (June 2008)

For example, the federal Populsid litigation, centralized in 2000, involved allegations that the prescription heartburn medication caused serious heartbeat irregularities. The MDL court conducted one bellwether trial, resulting in a defense verdict.  The next two bellwether selections resulted in defense summary judgments. The federal litigation resolved shortly thereafter; a resolution of related state court actions followed in the next year, 2005.

Similarly, in the Vioxx litigation, arising out of claims that drug maker Merck’s pain reliever caused heart attacks and strokes, the federal MDL court conducted six bellwether trials – five of which resulted in defense verdicts. Thirteen additional cases were tried in various state courts.  Despite vowing to “try every case,” following the numerous bellwether trials, Merck settled most cases.

The Bellwether Trial Process

Where the parties and court conclude that bellwether trials could provide important information that would likely advance the litigation toward resolution, the utility of the trials depends in significant part on the reliability of the selection process. U.S. District Judge Eldon Fallon, an authority on the use of bellwether trials in MDLs, suggests a three-stage process:

(1) cataloguing the universe of cases and dividing them into distinct, easily ascertainable categories;

(2) selecting a manageable pool of potential trial cases, in which case-specific discovery should be fast-tracked; and

(3) selecting trial cases from the trial pool.

A significant challenge parties and courts face when undertaking a bellwether trial process is that a single court might not be the proper venue to conduct all bellwether trials.  The Supreme Court held in Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach that the statute authorizing federal pre-trial MDLs does not itself establish the MDL court as the proper venue to try all the centralized actions.  Absent a party waiver of any venue objection, the general federal venue dictates where the cases must be tried. Likewise, related cases might also be pending in various state courts. In such fragmented litigation, close coordination between the judges and counsel in the various fora can nevertheless produce an effective series of bellwether trials in multiple courts.

Summary

As litigants and courts embrace centralized litigation as an efficient dispute resolution mechanism in appropriate circumstances, bellwether trials will continue to serve an important function of gathering information and moving litigation towards resolution.