Introduction.
In an age of increasing skepticism regarding the use of class actions in our legal regime, the modern multidistrict litigation (MDL) process embodied in 28 U.S.C. § 1407 is emerging as the primary vehicle for the resolution of complex civil cases. In 1968 Congress created the MDL system to establish a centralized forum where civil actions involving one or more common questions of fact are consolidated for the purpose of efficient and effective discovery proceedings and pretrial motions. In theory, this centralized forum, or “transferee court,” as it is known, is a sort of way-station at which the preliminary aspects of the litigation can be more or less completed before individual cases are sent to their final destinations in courts across the country for ultimate resolution. In practice, however, the centralized forum can do more than function as a discovery crucible. Indeed, by establishing a mechanism for conducting “bellwether” or “representative” [“test”] trials, the transferee court can enhance and accelerate both the MDL process itself and the global resolutions that often emerge from that process.
This paper begins with a brief overview of the traditional MDL process. It then traces the rise and development of bellwether trials, from early attempts to bind related claimants to the results of such trials, to the modern information, or nonbinding approach. A typical bellwether case often begins as no more than an individual lawsuit that proceeds through pretrial discovery and on to tiral in the usual binary fashion: one plaintiff versus one defendant. Such a case may take on “bellwether” qualities, however, when it is selected for trial because it involves facts, claims or defenses that are similar to the facts, claims, and defenses presented in a wider group of related cases. The primary argument presented here in support of the information approach is that the results of bellwether trials need not be binding upon consolidated parties with related claims or defenses in order to be beneficial to the MDL process. Instead, by injecting juries and fact-finding into multidistrict litigation, bellwether trials assist in the maturation of disputes by providing an opportunity for coordinating counsel to organize the products of pretrial common discovery, evaluate the strengths and weaknesses of their arguments and evidence, and understand the risks and costs associated with the litigation. At a minimum, the bellwether process should lead to the creation of “trial packages” that can be utilized by local counsel upon the dissolution of MDLs, a valuable by-product in its own right that supplies at least a partial justification for the traditional delay associated with MDL practice. But perhaps more importantly, the knowledge and experience gained during the bellwether process can precipitate global settlement negotiations and ensure that such negotiations do not occur in a vacuum, but rather in light of real-world evaluations of the litigation by multiple juries.
The paper moves on to discuss the primary practical consideration for courts and counsel in employing bellwether trials, namely the method of selecting bellwether cases from a wider group of related lawsuits. Although there is no one trial selection paradigm, the process generally should proceed in three steps. First, the transferee court should catalogue the entire universe of cases that comprise the MDL and attempt to divide the cases into several discrete categories based on prominent variables. Second, the transferee court should create a pool of representative cases, which includes cases from each category, and then place these cases on a fast-track for case-specific discovery. Third, the transferee court must devise the appropriate methodology for selecting a predetermined number of individual cases from the pool for trial. Throughout the entire process, the transferee court can greatly benefit from the assistance of the attorneys involved in the litigation. Indeed, the bellwether process works best when counsel are engaged and devoted to the endeavor from the start.
Introduction to 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. 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. 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. Essentially, a bellwether is a pacesetter of all the trends or key determinant of the practices. In the legal context, a trial is considered a bellwether when the verdicts of constituent sample cases are employed for resolving other cases. Currently, bellwether trials are informally employed by the judges in mass litigation. 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. 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. At the outset, courts attempted to use binding bellwether trials as type of class action adjudication. 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.” 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. 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.” 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.
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. 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.
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. 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.
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.
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. In this respect, some courts consider bellwether trials to be akin to judicial blackmail.
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.
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. 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. For it is only when a “representative … range of cases” is selected may “individual trials … produce reliable information about other mass tort cases.” 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.
Basically, selection of bellwether trial cases should be reflective of the various classifications of cases that constitute the MDL, should evaluate the possibility of success and underscore relative damages of each class and highlight the practical as well as forensic challenges that are associated with presentation of some cases to the jury. Any given trial selection procedure that is not aligned to the preceding procedure is unlikely to be representative in nature and hence its global impact is likely to be insignificant
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. To Begin with, the attorneys and the transferee court need to catalogue the cases that constitute the MDL. Then they must categorize the respective cases in well defined classes in order to make them easily identifiable. In other words, they need to establish the make up of the respective MDL. The underlying reason for cataloguing and division of the cases is very simple. The effectiveness of a given bellwether trial is heavily depended on its ability to determine future trends with utmost accuracy as well as effectuate the end result of the litigation. To attain this, it is vital to be conversant with the types of cases that constitute the MDL.
If this is not done, the attorneys and the transferee courts risk trying a case that is compounded by various anomalies. This is not sustainable because it wastes significant resources that would have otherwise been employed for other purposes. In order to ensure that the cases that are selected to undergo ultimate trial are representative of other cases in the MDL, the attorneys and transferee court need to verify the cases in the MDL before they proceed to other trial selection phases. To attain optimal results in this regard, both the attorneys and the transferee court should individually undertake a census of the litigation and cite all the main variables. To carry out this initial step effectively, the attorneys need to be well versed with the contents of individual cases of the MDL. In the case of the Vioxx MDL, the exchange of defendant and plaintiff profile forms enhanced the attainment of this.
Within an MDL, there are usually various factors that differentiate cases from each other. Instead of placing undue emphasis on each variable, the transferee court and attorneys should emphasize on factors that are easily identifiable, those that are vitally important and those that provide clear demarcation. Put differently, they should solely focus on the main variables. The respective groups or classes act as guideposts and help in directing the attorneys on the most important litigation issues. After the attorneys and transferee courts have individually analyzed the main variables and MDL composition, they need to hold a status conference to jointly discuss the variables in a bid to determine and agree on those that are important and predominant. By the end of this meeting, the court needs to have determined the manner in which the MDL would be divided and the attorneys should be aware of the reasons for the choices.
After successfully establishing the constituents of MDL and developing classifications that categorize the MDL, the coordinating counsel together with the transferee court should start the process of coming up with a manageable group of cases from which bellwether cases would ultimately be selected. The respective group needs to be reflective of different classes and should contain cases that are worthy of being tried in the MDL as well as those that are almost trial-ready. After assembling the trial selection pool, individual cases should be exposed to case-specific discovery. The discovery process is typical to the one that occurs in normal circumstances. Towards the end of case-specific discovery process, attorneys and the transferee court would then make the selection of 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.
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. 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. 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.” In essence, bellwether verdicts should be used to “develop a pattern for evaluation.” Each of the four bellwether selection methods will be evaluated below.
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. 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.
Random selection is a valid and credible strategy that is usually pursued in two main ways. It can be undertaken in a direct manner that is commonly referred to as ‘out of hat’. Alternatively, more sophisticated or complex methods can be employed in choosing the sample. Regardless of the type of methods employed, it is generally agreed that random sampling is not only a fair approach but it is also rational because of the fact that each case in the population is given an equal chance to be a part of the sample. In addition, it is simple, devoid of in depth analyses by the attorneys or judges, straight forward and makes sure that ideal cases that are representative in nature are chosen. Also worth mentioning is the fact that random sampling helps to filter the cases by separating the credible cases from fraudulent ones and thereby reducing relative costs. In this regard, costs are saved when the fraudulent cases are exposed to intense scrutiny and investigation to ensure that selected cases are based on credible grounds. Nonetheless, random selection is also compounded by two main shortcomings.
To begin with, random selection has the potential to alienate attorneys from the entire procedure. In this respect, it is worth appreciating that defeats and victories are not the sole reasons why bellwether cases are tried. The process of trial gives the attorneys a chance to prepare their cases prior to trial and familiarize themselves with wide ranging vital decisions that need to be made upfront. Allowing attorneys to participate in choosing the cases that they would try gives them an opportunity to further their individual selfish interests. In essence, random selection prevents coordinating attorneys from exploring various methods of trial and determining their practicality before a jury, hence inhibiting a possibility for mass resolution at the end of the trial. Secondly, it is posited that random selection culminates in a possibility of unequal representation of bellwether plaintiffs in the sample. Ideally, a typical random sample is likely to comprise of two of the five needed variables. Undoubtedly, this undermines the credibility of the entire process.
However, the risk of having an unrepresentative set of bellwether plaintiffs may be remedied by using scientific statistical evidence, also known as stratified random sampling. Some circuits have recognized the use of inferential statistics with random sampling as a valid method of selecting bellwether plaintiffs. In Cimino v. Raymark Industries, Inc., Judge Parker used statistical sampling by Professor Ronald G. Frankiewicz to select the representative plaintiffs whose claims would be tried in the asbestos litigation. Dr. Frankiewicz attested to the use of stratified random sampling, an approach used by the United States Census Bureau that sets the total group of plaintiffs as component populations, each of which is sampled using a simple random plan. He suggested that the plaintiffs be stratified into smaller groups according to (i) primary medical complaint and (ii) severity of the medical condition, and sampled at random to attain a group of representative bellwether plaintiffs. The use of statistical random sampling enabled Judge Parker to establish that his plaintiff selections were reliable to a 99% confidence interval. Furthermore, such statistical random sampling has been approved by significant legal scholars such as Professor Saks and Blanck, who describe the procedure as follows:
Mass torts represent a sampling theorist’s dream. The population of cases from which the sample is to be drawn is known with unusual completeness. This provides the sampling frame from which any type of case sampling proceeds. In addition, many details are known or can be learned about each member of the population. Thus, the degree to which the sample is representative of the population can be known with near certainty – a great improvement over most sampling situations. Representativeness is the touchstone of good sampling.
[Concluding sentence]
Test cases should produce a sufficient number of representative verdicts to enable the parties to determine what range of value the cases may have if resolved in the aggregate. Manual for Complex Litigation (4th) § 22.315. If the cases are randomly selected, they will reflect the full range and diversity of the claims at issue, including in terms of factual issues, choice of law, legal theories and defenses, and perhaps counsel as well.
2. Selection by the Transferee court
This is a step wise process that begins by the attorneys either individually or jointly preparing reports about every case included in the trial-selection pool. These reports outline various factors ranging from the facts that are related to each case (both those that are contentious and those that have been agreed on) to the main legal issues surrounding each case and their personal positions regarding why each case needs to be selected or exempted from being employed as a bellwether case by the respective transferee court. The main advantage of this approach is that it allows the transferee court to make sure that all predetermined variables are analyzed by all parties at the trial. This ensures that the ultimate selection is fair and just to both sides.
The main weakness of this approach pertains to its tendency to minimize attorney participation. However, compared to random selection, this allows the attorneys to present an argument for or against the selection of the respective cases. It gives them a chance to voice their individual reasons pertaining to why they think certain cases need to be tried or not tried. However, it should be appreciated that allowing the attorneys to voice their personal views regarding the cases does not mean that the respective views would be effected. Also, in some instances, attorneys may not be willing to voice their internal motives or share their personal views with the opposing counsel or transferee court. Moreover, the process is likely to be time consuming and hence may not be appropriate for attorneys and the transferee court. This is because it requires the affected attorneys to prepare comprehensive reports for every case. The transferee court on the other hand is required to critically evaluate the merits or advantages of each case.
Selection by Attorneys
Selection by attorney is pursued by allowing a single side to make the entire selection of the required bellwether cases or allowing both sides to engage in alternate selection of the bellwether cases. However, it is worth acknowledging that is usually better if the attorneys responsible for coordinating the process mutually agree on the cases that need to be included in the bellwether trials. Irrespective of the fact that the preceding preposition is the most desirable, it is not achievable from the practical point of view. This is because the relative stakes are likely to be enormous and their values so divergent that it becomes difficult for the attorneys to arrive at a mutual agreement regarding the cases. An example that best illustrates this is the Vioxx Litigation where the first case only was agreed upon and ultimately selected.
Under one category of this selection strategy, one side of the attorneys responsible for coordinating the process is allowed to make the selection of the entire bellwether cases. This reasoning is based on the premise that if one side only is allowed to select all the required bellwether cases and the respective side eventually looses all or a significant percentage of the selected trials, it can be concluded that the theories employed by the respective side are not credible. This strategy was employed in Propulsid MDL.
This approach has two advantages that play an instrumental role in enhancing its credibility. To begin with, it is efficient because it employs only a single side during the trial selection step. However, both sides of the coordinating attorneys need to evaluate the strengths and shortcomings of the selected cases. Then, it gives a single side of the coordinating attorneys the capacity to actively participate in the process. The disadvantage of this approach is that it greatly favors the participating side at the expense of its counterpart. Furthermore, the credibility of the process may be undermined by the fact that the participating side is likely to select the cases that further their good because they have the powers to. In the process, they might omit important variables from a sample that would be representative of the entire population.
The second variety of this strategy requires that both coordinating attorneys participate in the selection process by alternating picks. Compared to the preceding approach, this is fairer because
