Recent methods employed in selecting bellwether cases in mass tort litigation

March 1, 2016

5274If 5000 cases are pending in a product liability multidistrict litigation (MDL), how can you move them toward trial?  This is a trick question as the answer is you can’t.  All recent mass tort cases have employed the method of selecting lead cases to go forward, a process universally known as bellwether selections.  I discuss this process at length in my book on mass tort litigation (chapter 9), but here I want to cover some recent developments.

In the Benicar litigation, a recently started MDL in federal court in New Jersey, involving a drug causing intestinal damage, the judge adopted the method of random selection.  Some 30 cases were selected by random draw for  full pretrial development.  This was over the objection of the plaintiffs who wanted to pick their own cases (no doubt the best) and let the defendant select an equal number (which would no doubt have some sort of defect in them).  The random approach ran into immediate problems as it led to a large number of picked cases being dismissed with prejudice by plaintiffs’ counsel—cases which it was pretty obvious should never have been filed.

A more sophisticated method of selection of bellwether cases is to select the cases pursuant to some meaningful criteria. The criteria should correspond to foreseeable issues in the case, such as type or severity of injury, or time of injury (in relation to possible changing liability), or location of plaintiff (so that the transferee can try the cases).  This approach was very recently utilized in the Xarelto litigation,  which involves thousands of suits by users of this blood thinner alleging bleeding episodes.  The MDL is in the Eastern District of Louisiana.  Judge Fallon used an outside service, Brown Greer, to gather the relevant data on the pending cases, and then selected cases with specific injuries or state location.  State of residence was important as to determining cases which a transferee MDL judge can try.

The most frequent selection method, however, remains that of allowing each side to pick its own cases, and then allows a method of striking the extremes.  No matter what method is used, the aim should be to bring to trial first a few cases which are truly representative of the mass of cases, and to avoid cases the resolution of which will not help the parties and the court  move toward a global settlement. If a midline case is tried, the parties will be informed both as to liability and damage range.