The Bellwether Trial: What Is It & How Does It Work in Mass Tort Litigation

The Bellwether Trial: What Is It & How Does It Work in Mass Tort Litigation

Posted on Wednesday, July 12th, 2023 at 8:38 pm    

In mass tort cases, a large group of plaintiffs bring many individual cases against the same defendant or defendants. These cases can stem from a variety of causes of harm, but often involve a defective medical device, a defective product, or exposure to a toxic substance.

If you have been harmed by a company’s negligence or fraud, reach out to Wallace Miller at 312-261-6193 or fill out our online questionnaire for a free and confidential consultation. Eligible clients will work with a personal injury lawyer throughout the process. There are no out-of-pocket expenses or initial legal fees associated with filing a claim with our company. We only get paid if we win your case.

What is a bellwether trial?

In a litigation comprised of many individual cases, a bellwether trial is essentially a test trial that helps the attorneys involved get a sense of how other cases will go.

The name bellwether derives from a Middle English practice of tying a bell to the neck of the lead sheep in a flock. Even if the herd is out of sight, the shepherd can still tell where they are and what direction they’re moving.

Photograph by Pixabay.

Similarly, bellwether cases can help the attorneys determine which way a litigation is heading. By conducting a few bellwether trials that are representative of many others, both the plaintiffs and the defense can get a sense of how successful their arguments are likely to be in future jury trials and how likely the larger litigation is to result in a settlement.

Understanding federal legal procedure and multidistrict litigation

When there are a large number of lawsuits filed against the same defendant or set of defendants alleging similar injuries, it’s inefficient for the courts to investigate each of the cases separately. In these situations, mass torts may be consolidated into a multidistrict litigation (MDL). MDLs are similar to class actions in that they involve many individuals, but they don’t meet the criteria (such as a consistent injury across all participants) to be a class action. For more details on mass tort litigation and class actions, check out this article.

During an MDL, a judge oversees a consolidated discovery process and pretrial proceedings in a single federal district court. For example, Wallace Miller is currently participating in a litigation against manufacturers of toxic hair relaxers. More than 100 plaintiffs have brought mass torts against the defendants, and so those cases have been consolidated in the Northern District of Illinois under a single MDL judge.  Similar consolidations can also occur in state courts.

Under the supervision of the judge, the plaintiff attorneys usually file a joint complaint and the defendants file an answer in the federal courts. The attorneys on both sides conduct fact discovery and gather information that applies to all cases, often referred to as “general liability” discovery. And the judge sets up a bellwether process to select and try bellwether cases in the MDL. Throughout this process, the cases of the individual plaintiffs remain separate and, at the close of the MDL process, may be sent back to their district courts to be tried.

How do courts select a bellwether plaintiff?

The methods by which cases in the MDL are selected for a bellwether depend on the specific litigation process of the federal district courts. One common practice is that plaintiffs’ and defendants’ lawyers will each select an equal number of bellwether cases.  Alternatively, the MDL judge may select a pool of cases that the judge thinks are representative of the litigation as a whole. And in some cases, this pool of test cases is selected randomly by a computer.

Regardless of the method, after a pool of potential bellwether cases has been selected, the lawyers on both sides investigate the claims in an extensive pretrial discovery process. After discovery has been taken in the bellwether pool cases, both the plaintiffs’ and the defendants’ lawyers are given the opportunity to select cases for test trials that they think will help them obtain a positive verdict for their clients.

Photograph by Pixabay.

What are the benefits of a bellwether trial?

The decision of the court on a bellwether trial helps everyone involved in the process foresee how future litigations are likely to go. While these cases don’t guarantee the outcomes of any later trials, they do provide a representative sample for future lawsuits with the same general circumstances.

For defendants, the outcome of bellwether trials can help them assess whether they want to settle out of court or pursue future litigation. For plaintiffs, bellwether trials are opportunities to see how effective their arguments and evidence are and determine the most successful strategies. The bellwether process can also be useful for judges and legislators, because it allows them to get a sense of trends in the legal system as a whole.

Will my case be one of the bellwether cases?

The selection of bellwether trials depends on the overall circumstances of the MDL, the specific cases nominated by the attorneys, and the MDL judge overseeing the litigation. Out of all the cases filed as part of an MDL, your case is just as likely to get selected as any other. As a plaintiff, you have no real control over the bellwether trial selection.

However, it is more likely that a case will be selected for a bellwether trial if the attorneys have complete information about the plaintiffs’ situation. While there is no guarantee that your case will be chosen as a bellwether, responding to attorney communications promptly and carefully filling out all questionnaires and requests for information makes it more likely that your case will be eligible. Being chosen as a bellwether case means that your litigation will likely proceed more quickly, as bellwethers are the first to be tried.

How do bellwether trials affect your case?

The bellwether trials do not guarantee the outcomes of any future cases. However, if the bellwether trials favor the plaintiffs in your MDL, it becomes more likely, though not certain, that the defendants will offer a global settlement. If this does happen, the overall litigation process will probably begin to move more quickly. This means that plaintiffs may receive a settlement sooner than they would otherwise.

It is difficult to predict exactly how many bellwether trials will be chosen in a given mass tort MDL. The initial pool of representative cases can be anywhere from 10 to 100 depending on the number of parties involved. From there, lawyers from both sides will work to get a fair representative sampling to be tried in federal court.

A sheep’s bell. Photograph courtesy of the Index of American Design.

What happens after a bellwether trial?

What happens after a bellwether trial depends on the litigation results. There are often several bellwether trials, so other plaintiffs and defendants may wait until all the proceedings are complete before they make any moves. These delays may be frustrating for those whose cases haven’t been resolved yet—but ultimately, bellwethers are a tool to make the overall process move more quickly. By enabling attorneys to gain further insight on the likely outcomes of large numbers of future cases, bellwethers can prevent a lengthy and time-consuming trial process for each and every case. So, while the bellwether trials may feel like a delay, they usually help the great majority of clients to receive their settlements sooner.

If most of the trials are decided in favor of the bellwether plaintiffs, it lets the defense attorneys know that they are unlikely to win many of the cases and gives them a reasonable idea of how much settlements may be on average. This makes it more likely that they will begin settlement negotiations. The results of the bellwether trials are also influential in determining how much money will be awarded in settlements.

On the other hand, if most of the bellwether trials are decided in favor of the defendants, the remaining plaintiffs will need to reassess the strength and value of their claims.

Wallace Miller: Your personal injury legal team

Wallace Miller is proud to represent plaintiffs in mass tort litigations across the US. Our law firm is focused on protecting the victims of negligence and fraud through consumer protection, product liability, employment, environmental and toxic harm, and personal injury litigation.

We know that there are many choices available to you when looking for a lawyer to represent you in a mass tort. What sets us apart from others is our commitment to our clients, our ability to handle complex high-stakes litigation, and our outstanding track record of success.

Wallace Miller attorneys (left to right) Jessica Wieczorkiewicz, Mark R. Miller, Molly Condon Wells, Edward Wallace, Timothy E. Jackson. Not pictured, Nicholas P. Kelly.

Questions about your potential case? Call our office at 312-261-6193 or fill out our online questionnaire to receive a confidential and free consultation in minutes.










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