What Is a Bellwether Trial?

Bellwether trials are test cases that provide parties in a mass tort lawsuit with important information that can guide future litigation.

Topic overview

A bellwether trial is a test case in a mass tort lawsuit. A bellwether trial can tell parties more about the strength of the evidence in their case, how a jury might rule on remaining cases in the tort and the potential amount of future settlements or verdicts. Bellwethers are common in multidistrict litigation (MDL) and some state consolidations.

Key takeaways about bellwether trials

• Bellwether trials can be part of the mass tort litigation process. They’re more common in MDLs and can be used in class action lawsuits, too.
• Bellwether trial cases are selected to represent the mass tort as a whole. Their outcomes provide parties with information that can guide future litigation for cases remaining in the tort.
• Bellwether trials can encourage global settlements or educate the parties about the potential value of the cases.

What’s the definition of a bellwether trial?

A bellwether trial is a test case.

Bellwether trials are used in mass tort litigation to gather information about the strengths and weaknesses of a case and to understand how juries might rule on future litigation.

What’s the purpose of a bellwether trial?

The purpose of a bellwether trial is to provide the courts and the parties involved in a lawsuit with information.

Courts use bellwethers when there are hundreds (or even thousands) of civil lawsuits against the same defendant(s) that involve similar harms and common questions of fact. During the bellwether trial process, the courts or the parties select several representative cases from this group of lawsuits and try them.

Typically, the defense and plaintiff legal teams each pick a few cases for bellwethers. The judge generally gets final say on which cases will be selected for the bellwether pool.

The outcomes of these cases tell the courts, plaintiffs and the defendants how juries might rule on the remaining cases. They also provide information about the strengths and weaknesses of legal arguments and potential settlement amounts.

Bellwether trials are often used in mass tort litigation and other similar state court consolidations.

What is a mass tort?

A mass tort is a type of civil litigation that combines numerous individual cases involving a similar complaint against the same defendant(s).

Mass torts usually address injuries or harm caused to a large number of people by a dangerous drug or medical device, a defective product, toxic exposure or an environmental hazard. Sometimes, they involve catastrophic events, such as commercial aviation accidents.

Mass torts can be grouped as either class action lawsuits, multidistrict litigation (MDL), or state consolidations, which function differently. MDLs consolidate cases from multiple federal  district courts into a single federal court for pretrial matters. State court consolidations are similar to MDLs, but the cases remain in state court; not federal court.

MDLs and state court consolidations keep cases separate but enable the courts to rule on common questions of fact in a single court. Bellwethers are more commonly used in MDLs and state court consolidations, though they can also be a part of class actions.

MDLs and state court consolidations benefit the courts and litigants by streamlining the legal process. They lessen the burden on individual courts and can save the involved parties time and money.

Class action lawsuits allow a larger group to be represented by a smaller “class” of plaintiffs.

How do courts select bellwether cases?

Bellwether trials in multidistrict litigation may occur after pretrial proceedings.

During the pretrial process, some lawsuits are disposed of, either through dismissal, summary judgment or a global settlement. Cases that are not settled can be transferred back to their original district courts, or several representative cases may be selected for bellwether trials.

Bellwether trial cases can be selected through different methods, and several factors can influence the selection. The selection methods can include:

• Random selection: Random selection is exactly like it sounds. The MDL judge will randomly choose cases from a previously established selection pool (sometimes called the discovery pool). The judge could use a method as simple as drawing them from a hat. The problem with random selection is that it may not lead to a mix of cases that accurately represent all of the lawsuits in the MDL.
• Selection by the attorneys: This method allows counsel for the plaintiffs and defendants to have the most influence in the selection of bellwether trials in MDL proceedings, which can benefit their clients. Attorneys can alternate their case selections, or one side can select all of the cases. The reasoning behind the second option is that if one side chooses all of the lawsuits and loses most of them, it is a pretty clear indication that the cases lack merit. However, this method could give the selecting side an unfair advantage. Sometimes attorneys use MDL steering committees to guide their choices.
• Selection by the judge: The MDL judge will select cases based on briefs prepared by the attorneys for each lawsuit. These briefs include the attorneys’ opinions on why a case should or should not be included, but ultimately, it is up to the judge.

The MDL judge chooses which selection method to use, with input from the attorneys. The judge will usually also allow each side a certain number of vetoes or “strikes” it can use on cases from the selection pool.

The size of the selection pool will depend on the number of lawsuits in the MDL and other litigation-specific factors. Pools could have 40 to 60 cases, of which four to six may be chosen as bellwethers. But there are no hard-and-fast rules. The goal is to select a mix of cases large enough to represent all of the types of claims in the MDL.

How long do bellwether trials last?

As with all lawsuits, how long a bellwether trial lasts varies from case to case. They could take several weeks to several months, depending on factors like the complexity of the legal issues or the amount of evidence. Sometimes, bellwether cases are settled the night before going to trial.

All the legal actions that must occur before a bellwether trial, such as discovery and case selection, can add several more months to the timeline.

What happens after a bellwether trial?

A bellwether trial is a test case. Afterwards, the parties involved in the litigation will use the outcome to determine the strategy for remaining lawsuits. Bellwether trials can set precedents for the remaining cases and tell plaintiffs and defendants:

• The strengths and weaknesses of each side’s case
• The potential cost of continuing the litigation
• How future settlements may be structured (based on the bellwether jury’s verdict)

Bellwether trials can encourage global settlements. After a bellwether, if a global settlement is offered, plaintiffs can opt in or out. When parties do not agree to a global settlement, the case can go back to its original district to seek an individual settlement or go to trial. Either way, the bellwether’s outcome provides insight into what may happen and the amount of compensation likely to be recovered.

Our experience with complex litigation

Motley Rice has extensive experience with mass tort litigation, consolidated trials, multidistrict litigation and class action lawsuits. Our attorneys have taken leadership roles in MDLs, and we have fought for people across the country injured by harmful medical devices, dangerous drugs, defective products and toxic exposure.

If you or someone you love has been injured, we could discuss your legal options and tell you more about mass tort litigation. Contact our team by filling out our online form or calling 1.800.768.4026.

Read more about our leadership in complex litigation and MDLs.

Sources

1. Federal Judicial Center and Judicial Panel on Multidistrict Litigation. Bellwether Trials in MDL Proceedings A Guide for Transferee Judges.
2. Legal Information Institute. class action.
3. Legal Information Institute. mass tort.
4. Legal Information Institute. multidistrict litigation.
5. Stanford Law School. Bellwether Trials.
6. Tulane Law Review. Bellwether Trials in Multidistrict Litigation.