Bellwether Trials:

Bellwether Trials:

At a time when employment of class actions within the legal sphere is increasingly being compounded by skepticism, the current multidistrict litigation (MDL) process that is defined in 28 U.S.C 1407 is gaining prominence as the most viable way of resolving complex civil cases. This was created in 1968 by the Congress and its main aim was to provide a central forum for handling civil cases. In particular, it provided a platform upon which various common questions were consolidated in order to enhance the effectiveness and efficiency of pretrial motions as well as discovery proceedings[1]. From a theoretical point of view, the central forums, also known as transferee courts, provide a viable environment where preliminary aspects pertaining to any litigation are addressed prior to sending individual cases to various destinations for resolution. Practically, the transferee courts perform various other purposes in addition to acting as a discovery point. In this regard, the court develops viable ways for conducting the representative or bellwether trials and thereby enhances and speeds up the MDL process as well as global resolutions that transpire along the way.

The purpose of this paper is to explore the advantages and disadvantages of bellwether cases and to review how the cases are chosen to ensure fair representation. To enhance a harmonic consideration, it begins by detailing the historical background of bellwether cases. In particular, it reviews early attempts that were geared towards binding related claimants to trial verdicts and the modern non binding approach that simply benefits from the information that the cases generate. Basically, a bellwether cases in most cases begin as a normal lawsuit. It then proceeds to the pretrial discovery stage and later to trial using a single plaintiff as well as defendant.  The case qualifies to be a bellwether when its defenses, claims and facts are similar to those of the wider group of other related cases. The information approach in this regard is based on the recognition that the outcomes of the bellwether cases do not necessarily need to be binding of related cases for them to benefit the MDL process.

By incorporating fact finding and jury influence in the MDL, the bellwether cases are instrumental in enhancing maturation of disputes. This is so because they provide the coordinating counsel with the opportunity to coordinate the pretrial common discovery products analyze the strengths as well as shortcomings of their evidence and arguments and understand and appreciate the costs as well as risks that are related to the litigation. Typically, the bellwether process needs to culminate in the formation of ‘trial packages’. These are employed by the local counsel after the MDLs have been dissolved. Of great importance however is the experience and knowledge that is gained during the bellwether trial process.  This has the ability to enhance global settlement negotiations. In addition, they ensure that the respective settlement process does not take place in a vacuum but in an actual environment characterized by analysis of the respective litigation process by a host of juries.

Then, the paper proceeds to evaluate the various practical considerations that the counsel and the courts employ during bellwether trials. In particular, it underscores the methods that the preceding parties employ in selecting representative bellwether cases from the universe. The trial processes are wide and varied although an ideal method needs to ensure that the cases are representative of the entire claimants. This paper analyzes the various methods in a bid to identify the most viable method that would ensure that bellwether cases truly perform their roles as such.

1. Development of Bellwether Trials.

For a significant period of time, the federal courts and the state have persistently grappled with the unusual problems that stem from mass tort litigation[2]. To address the issues in an effective manner, the courts are currently opting to use simple as well as complex creative procedures like the bellwether trial[3].  The concept ‘bellwether’ is derived from the tradition of using a rope to fasten a bell around the castrated male sheep’s neck that is usually chosen to act as a lead or head of the rest of the flock[4]. Essentially, a bellwether is a pacesetter of all the trends or key determinant of the practices[5]. In the legal context, a trial is considered a bellwether when the verdicts of constituent sample cases are employed for resolving other cases[6].  Currently, bellwether trials are informally employed by the judges in mass litigation[7]. In this regard, they are useful for valuing the cases as well as encouraging settlement.  Regardless of the fact that the origin of the concept of ‘bellwether’ is compounded by certain complexities, employment of bellwether trials especially in mass tort litigation has increasingly gained momentum.

Fundamentally, the courts seek to use the outcomes of bellwether trials to formally bind related claimants[8]. In a binding bellwether trial procedure, the courts begin by choosing certain cases that they seek to present to the jury during trial. The judge then divides the selected cases in two phases; liability and damages. Alternatively, the judge might decide to classify these in three categories of causation, liability or damages. After this, the court proceeds to trying the bellwether cases in stages while the jury provides a verdict of each case at each stage. In the end, the outcomes of the trials are inferred to the rest of the plaintiffs.[9]  At the outset, courts attempted to use binding bellwether trials as type of class action adjudication. [10]  Despite the fact that there was no class certification, courts employed the binding approach on the premise that trying representative cases was sufficient to have a binding impact on all the related cases.  However, the appellant courts doubted the credibility of the binding approach.  For instance, in Cimino v. Raymark, the United States Court of Appeals for the Fifth Circuit refers to the majority opinion in earlier Fifth Circuit case, In re Chevron U.S.A., Inc., to clarify that Judge _____’s language favoring the binding use of statistically representative bellwether plaintiffs is “plainly dicta, certainly in so far as it might suggest that representative bellwether verdicts could properly be used to determine individual causation and damages for other plaintiffs.”[11]  Other circuits have also recognized that the results of bellwether trials are not properly binding on related claimants unless those claimants expressly agree to be bound by the bellwether proceedings. For instance, in In re Hanford Nuclear Reservation Litigation, the Ninth Circuit held that the results of the Hanford bellwether trial would not be binding on the remaining plaintiffs.[12]  Along the same lines, in In re TMI Litigation, the Third Circuit held that “absent a positive manifestation of agreement by Non-Trial Plaintiffs, we cannot conclude that their Seventh Amendment right not compromised by extending a summary judgment against the Trial Plaintiffs to the nonparticipating, non-trial plaintiff.”[13]  Such experimentation of the binding strategy by courts did no last for long. It was terminated by the decision by the Fifth Circuit which deemed the practice unconstitutional based on the provisions of the Seventh Amendment.[14]

Today courts use no longer use bellwether trials for the purpose of resolving thousands of related cases pending in a MDL in one “representative” proceeding, but rather to provide meaningful information and experience to everyone involved in the litigations – the nonbinding informational approach.  Although cases addressing a particular issue are chosen and reviewed, their outcomes or verdicts are non-binding and do not influence the rest of the litigants in the respective category in any way.  Usually, relative outcomes are useful in helping the parties to arrive at a common and undisputable settlement. Alternatively, the respective parties are free to ignore the outcomes completely and instead undertake individual trials.

• Advantages of Bellwether Trials.

Bellwether trials benefit the litigation process as well as the involved parties in different ways.  As aforementioned, bellwether trials within the MDL context can be effectively employed for nonbinding informational reasons. For instance, they can be useful for testing a host of theories, strategies and defenses in a real live trial. In this respect, bellwether trials are useful for enhancing the experience, capacities and competencies of the involved parties.[15]  While the outcomes of such bellwether trials can only bind the specific bellwether cases, they can still benefit the related claimants and the MDL procedure. The Fifth Circuit best illustrates the importance of bellwether trials in this regard:

The notion that the trial of some members of a large group of claimants may provide a basis for enhancing prospects of settlement or for resolving common issues or claims is a sound one that has achieved general acceptance by both bench and bar …. The reasons for acceptance by both bench and bar are apparent.  If a representative group of claimants are tried to verdict, the results of such trials can be beneficial for litigants who desire to settle such claims by providing information on the value of the cases as reflected by the jury verdicts[16].

Also worth recognizing is that bellwether trials provide a vehicle upon which litigation theories can be effectively put in practice.  However, it is well known that the trial environment is not only dynamic but very complex and as such, trials generally do not proceed as intended by the parties or their respective attorneys. Besides the unforeseen logistical issues, the effects of evidence and facts upon the court and jury remain uncertain. During multidistrict litigation, the preceding uncertainties are usually made worse by the differences that exist among the circumstances of consolidated claimants and by the volume of pertinent evidence produced during the course of the discovery.  Bellwether trials aid in alleviating such uncertainty and by giving the coordinating counsel the chance to organize the products of pretrial discovery, assess the strengths and weaknesses of their arguments, strategies, and evidence, and internalize the risks and costs involved in the trial process.[17]  In the long run, all parties are not only prepared but also well informed about the litigation process. Certainly, the employment of bellwether trials is beneficial and has the capacity to speed up and improve the MDL process in two main ways.    Firstly, they give the coordinating counsel a chance to perfect their presentations for future trials, potentially resulting in the creation of “trial packages” that will likely prove useful to local counsel upon the dissolution of MDLs.   Secondly, by indicating future trends, such as how a certain claims may fare before the jury, bellwether trials have the potential to inform and trigger settlement negotiations.[18]

1. The Trial Packages

Bellwether processes benefit the MDL process by motivating the attorneys to develop ideal trial packages. As indicated before, bellwether trials compel the litigants to streamline, restructure and systemize comprehensive material and information that are generated during the pretrial discovery phase of the MDL. These packages are an invaluable resources and can be employed by local counsel or litigants once the MDL is dissolved and hen the individual cases have been remanded for trial to transferor courts. A series of bellwether trials give the counsel an opportunity to perfect their presentations by making minor adjustments usually based on litigation realities or on previous performances.

In the long run, trial package safeguard the knowledge and information that is acquired or developed by the coordinating counsel. This is particularly important because the respective knowledge is likely to be lost in instances when global resolution my no be attained by the transferee court. In instances where the cases under trial are remanded, trial packages are useful as they ensure pretrial common discovery products do not override the capacity of the coordinating counsel. Certainly, the bellwether processes ensures the effective functioning of the transferee court and eventual attainment of its goals with regards to preparing the cases for trial at the local district level efficiently and simplifying pretrial discovery.

1. Global Settlement

Essentially, the goal of a mass tort trial is to attain a settlement through harmony. In light of the MDL Panel, the transferee court provides the most viable environment for global settlement negotiations. This is because it provides room for a central forum comprising of lawyers and litigants from across the nation. These assemble before one judge and the settlement process takes place ago. Transferee courts can play a leading role in necessitating fulfillment of relative goals by creating and managing bellwether trials. Nonetheless, it should be appreciated that the process can be undermined counter arguments by the appellate[19]. In this respect, some courts consider bellwether trials to be akin to judicial blackmail[20].

In sum, the concept of bellwether trial process stemmed from the custom of tying a bell around the male sheep’s neck. This male sheep was considered to be the leader of the flock and the bell was used as an identification of the respective flock. Likewise, the verdicts of bellwether trials were employed as determinants of the fate of a host of claimants. During their experimentation, the credibility bellwether trials were doubted by the appellate and the Fifth circuit demanded their prohibition due to the fact that they were unconstitutional. Regardless of this, the bellwether trials have various benefits to the to the MDL process. As indicated in the preceding review, they are not only employed as non binding informational approaches but they also aid in testing of theories. Most importantly, they help in creation of the trial packages that ease the litigation process in various ways. Nevertheless, it should be acknowledged that they still face opposition from the appellate that considers them to be forms of judicial blackmail.

1. The Bellwether Selection Process.

After the threshold determination to utilize bellwether trials, the transferee court and coordinating counsel should focus on the mechanics of the trial selection process.  The process of selecting representative bellwether plaintiffs is a highly controversial issue in mass tort proceedings.  Bellwether trials must produce valuable information that will allow the parties involved to evaluate the strength and settlement value of all the related cases.   In order for bellwether trials to fulfill their valuable purpose of being “informative indicators of future trends” and “catalysts for an ultimate resolution”, it is critical that the transferee court and attorneys involved formulate a trial selection process that will be fair to all parties involved and most importantly render a representative set of bellwether plaintiffs.[21]  Thus, selecting cases for bellwether trials and constructing litigation strategies require thoughtful consideration by both plaintiffs and defendants.  However, for this to occur it is imperative that there be a sufficient number of cases tried, and that the cases selected be representative of the range of cases, in order to enable the parties to determine what range of value the cases may have if resolved in the aggregate. [22]  For it is only when a “representative … range of cases” is selected may “individual trials … produce reliable information about other mass tort cases.”[23]  The Manual for Complex Litigation instructs that in the selection of bellwether cases

Sampling and surveying can be used to obtain information useful both for settlement and for bellwether trials of the sample cases or for a class trial.  Whether the aim is settlement or trial, the court should ensure that the sample is representative of all claims encompassed in the particular proceedings with respect to relevant factors, such as the severity of the injuries, the circumstances of exposure to the product or accident, applicable state law, and the products and defendants alleged to be responsible.[24]

Ideally, the trial selection process should accurately reflect the individual categories of cases that comprise the MDL, illustrate the likelihood of success and measure of damages within each respective category, and illuminate the forensic and practical challenges of presenting certain types of cases to a jury.  Any trial selection process that strays from this path will likely resolve only a few independent cases and have a limited global impact.[25]

Before selecting the actual bellwether, the transferee court and coordinating counsel must take preparatory steps to ensure the selection of a representative sample of bellwethers.  First, the transferee court and attorneys must catalogue the entire universe of cases that comprise the MDL and then divide the cases into several distinct, easily ascertainable categories of cases, meaning they must ascertain the makeup of the MDL. The rationale behind cataloguing and dividing the entire universe of cases within the MDL is simple. A bellwether trial is most effective when it can accurately inform future trends and effectuate an ultimate culmination to the litigation; therefore, it is imperative to know what types of cases comprise the MDL.  Otherwise the transferee court and the attorneys risk trying an anomalous case, thereby wasting substantial amounts of both time and money.  Thus to ensure that the cases ultimately tried are emblematic of all the cases comprising the MDL, the transferee court and the attorneys must determine the composition of the MDL prior to engaging in any further trial selection steps.  To discharge this task effectively, the transferee court and the attorneys should each conduct a census of the entire litigation and identify all the major variables.  This initial step in the bellwether process will require that the attorneys have some knowledge about the individual cases in the MDL.  In the Vioxx MDL, this was achieved with limited case-specific discovery through the exchange of plaintiff and defendant profile forms.[26]

In any given MDL, there will be innumerable variables differentiating each case from the others.  Rather than attempt to delineate every identifiable variable, the transferee court and the attorneys should focus on those variables that can be easily identified, are substantively important, and provide clear lines of demarcation – i.e., the major variables.  To put it summarily, these groupings will act as guideposts, focusing the attorneys on the most predominant and important issues in the litigation.  After the transferee court and the attorneys have each separately evaluated the composition of the MDL and considered all the major variables, the transferee court should hold a status conference at which time it and the attorneys should discuss all of the relevant variables in an attempt to reach a consensus on which variables are the most predominant and important.  By the conclusion of this status conference, the court should determine how the MDL will be divided and, more importantly, the attorneys should know why the groupings have been chosen.

After determining the composition of the MDL and creating groupings by which to divide the MDL, the transferee court and coordinating counsel should begin the process of creating a manageable pool of cases from which the bellwether cases will eventually be selected.  This pool of cases will reflect the various categories and contain cases that are both amenable to trial in the MDL and close to being trial-ready.  Once the trial selection pool has been assembled, each of the cases within the pool must undergo case-specific discovery.  This discovery process will typically be no different from that which occurs in an ordinary case, and thus requires no additional explanation here.  Near the conclusion of the case-specific discovery, the transferee court and attorneys will select the bellwether cases.   The next section will explore the various bellwether selection methods that have been used, in an effort to determine which method is likely to produce the most representative set of bellwether plaintiffs.

1. Selecting the Bellwether Plaintiffs

There are essentially four basic approaches to selecting bellwether plaintiffs: (1) random selection, (2) selection by transferee judge, (3) selection by plaintiffs’ counsel, and (4) selection by plaintiffs and defense counsel. [27]  Additionally, the transferee court may allow the attorneys to exercise a predetermined number of strikes or vetoes to eliminate potential bellwether cases in the pool, from consideration prior to the actual selection.[28]   While all these selection methods have been utilized over the years, mere usage does not prove/confirm their reliability.  Rather, at issue is whether any of the selection methods reliably produces a true bellwether verdict.  A bellwether verdict generated by an improper selection method has the potential to skew not only the verdict but also any results influenced by it.  It is always important to keep in mind the goal – the selection of typical cases “which when decided and reviewed may provide a legal and factual pattern against which the remaining issues in the pending cases may be subsequently matched.”[29]  In essence, bellwether verdicts should be used to “develop a pattern for evaluation.”[30]   Each of the four bellwether selection methods will be evaluated below.

1. Random Selection.

Legally, it is widely agreed that for bellwether cases to be valid and representative of the population, they need to be not only sufficient in number but also selected randomly[31]. The Manual for Complex Litigation accredits random selection to be the most ideal method of attaining effective representation especially during identification of cases. According to it, the credibility of bellwether cases is greatly determined by equal representation of the plaintiffs and well as their claims in the cases employed as samples. Further, it cites that the tendency of some judges to allow the plaintiffs and defendants to determine the cases needed to undergo initial trial undermines the credibility of the end result. The manual insists that effective or equal representation of cases can only be attained if the judge directs the relevant parties to employ random selection or use a couple of cases that are considered by all parties to be an ideal mix[32].

Random selection is a valid and credibl.............