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Bellwether trials are “test cases” that are tried as part of an MDL. Bellwether trials can provide meaningful “information, experience, and data to allow the parties to make an intelligent and informed decision” about the future course of the litigation. Eldon E. Fallon, Bellwether Trials, 89 UMKC L. Rev. 951, 952 (2021). As the Manual for Complex Litigation puts it, bellwether trials “enable the parties and the court to determine the nature and strength of the claims, whether they can be fairly developed and litigated on a group basis, and what range of values the cases may have if resolution is attempted on a group basis.” Fed. Jud. Ctr., Manual for Complex Litigation § 22.315 (4th ed. 2004) [hereinafter MCL]; see also Bolch Jud. Inst., Duke L. Sch., Guidelines and Best Practices for Large and Mass-Tort MDLs 18 (2d ed. 2018) [hereinafter Bolch Guidelines]. Frequently, bellwether trials help the parties better assess the litigation’s strengths and weaknesses, which, in turn, can help the parties estimate the value of the litigation and promote settlement.
Yet, bellwether trials are only helpful to the extent they are truly representative, and sometimes, they aren’t. Indeed, each side has strong incentives to maneuver the timing and selection processes for bellwether trials so the cases with the strongest facts for their side get tried first, even if such cases are not representative. When tried exclusively in the transferee court, bellwether trials also feature a narrow and possibly unrepresentative jury pool. Additionally, the MDL judge may impose procedural requirements on the trial itself (such as trial time limits) that may skew verdicts. Cf. Nora Freeman Engstrom, The Trouble with Trial Time Limits, 106 Geo. L. Rev. 933 (2018) (discussing consequences of trial time limits). And even if bellwether trial verdicts are representative, extrapolating the results of bellwether trials to
other cases often requires tricky inferences and statistical analyses to distribute compensation among plaintiffs. Alexandra D. Lahav, Bellwether Trials, 76 Geo. Wash. L. Rev. 576, 579 (2008). Such inferences can raise autonomy and due process-based concerns given the lack of individualized consideration.
The sections below outline some basic information about bellwether trials, then discuss how MDL judges have decided whether to conduct bellwether trials, what cases to select, resultant case management questions, and adjacent issues. For more on bellwether trials, see Bolch Guidelines, supra at 17–28; MCL, supra at 360; Fallon, supra; Fed. Jud. Ctr., Bellwether Trials in MDL Proceedings 45 (2023) [hereinafter FJC]; Eldon E. Fallon, Jeremy T. Grabill & Robert Pitard Wynne, Bellwether Trials in Multidistrict Litig., 82 Tulane L. Rev. 2322 (2008).
When MDL courts elect to hold bellwether trials, they (1) identify a pool of cases that is representative of the claims in an MDL; (2) advance those cases for discovery; and (3) select cases from that pool for trial. The FJC provides the following summary:
In general, the bellwether trial process begins with identifying key characteristics of the entire universe of cases in an MDL proceeding. Next, the court and parties create a pool of cases that is representative of these characteristics and advance those cases for discovery. This subset of cases may be referred to by a variety of names, such as a discovery pool, case selection pool, representative trial pool, or bellwether pool. Third, following core case-specific discovery, bellwether cases are selected from that pool and scheduled for trial.
FJC, supra at 4.
MDL judges exercise discretion when deciding whether to hold a bellwether trial(s), as bellwether trials may not be appropriate in every case. When considering whether to hold a bellwether trial, MDL judges generally consider the extent to which bellwether trials will facilitate the MDL’s efficient resolution. As the MCL explains, the purpose of bellwether trials is to “produce a sufficient number of representative verdicts” to “enable the parties and the court to determine the nature and strength of the claims, whether they can be fairly developed and litigated on a group basis, and what range of values the cases may have if resolution is attempted on a group basis.” MCL, supra at 360.
[T]he most critical element of this [bellwether trial selection] plan and the purpose it seeks to serve is for the most representative cases to be selected and for no one to lose sight of that objective.
Bellwether trials are best suited for MDLs that feature cases with similar factual and legal issues. Where the MDL pool consists of cases that are dissimilar, bellwether trials may not provide meaningful guidance. In such instances, remand of cases for trial in the transferor courts may be a better method for resolving the litigation. Bolch Guidelines, supra at 18; FJC, supra at 6–7.
Bellwether trials also are costly and time consuming for both the parties and the court. Other methods may provide the parties with similar information about the value of the plaintiffs’ claims and the strength of their arguments. Alternative techniques that MDL judges may consider include: nonbinding “mini-trials” on singular issues or early decisions on threshold issues. Bolch Guidelines, supra at 27–28; FJC, supra at 6–7. MDL judges may expressly request that the parties consider some or all of those alternative methods, either before initiating a bellwether process or in parallel with it.
The Court finds that bellwether trials will further the goal of effective and efficient case management in this MDL. Among other things, such trials will help the Court and the parties to (a) evaluate the claims and defenses related to common issues in the proceeding; and (b) better understand the costs and burdens of subsequent litigation.
. . .
Notwithstanding the advantages and usefulness of bellwether trials in litigation of this sort, the Court is of the view that there may be other, less expensive means that the Court and parties could and should use—in addition to bellwether trials—to advance the litigation and promote resolution of cases individually or globally, including but not limited to early neutral evaluation and summary jury trials (either on select issues, such as gross negligence and punitive damages, or in select cases). The parties are directed to continue conferring about such additional means and should be prepared at future status conferences to address whether and when such means could or should be used.
While MDL judges may raise the possibility of holding bellwether trials at any point, the FJC encourages judges to raise the subject of a bellwether trial “early on—perhaps at the first case management conference.” FJC, supra at 9. Doing so, the FJC states, “signals to the parties the court’s intention to actively and efficiently manage the litigation.” Id. at 5.
An initial case management conference will be held in this matter on Wednesday, April 17, 2019 at 9:00 a.m. (CST) in Courtroom 2 of the Winston E. Arnow Federal Building, 100 N. Palafox St., Pensacola, FL 32502…
[Listing items to be discussed at conference.] Additional items to be discussed include…(7) whether “bellwether” discovery and trials would advance the litigation.”
Courts may also raise the issue of bellwether trials when appointing leadership, often by delegating tasks related to bellwether trials to the PSC or lead counsel. For more on MDL leadership, click here.
Co-Lead Counsel are responsible for coordinating the activities of Plaintiffs during pretrial proceedings and shall… coordinate, at the appropriate juncture, the selection of trial team(s) and selection of cases to resolve common issues and “bellwether” trials…
Technically, trials held in parallel state court cases are not part of the federal MDL bellwether trial process. However, just like a federal bellwether, a trial in state court can provide the parties with information about the relative strength of their claims. Indeed, it is helpful for the parties to see how the plaintiffs’ claims fare, when litigated pursuant to various rules, in front of various judges, and assessed by jurors in various parts of the country.
Accordingly, many judges attempt to coordinate state and federal trial schedules. Indeed, the Federal Judicial Center counsels that “[w]hen there is active communication between state and federal judges with related cases, a bellwether process can inform multiple sets of litigations and help contain costs across other jurisdictions as well.” FJC, supra at 37.
Thus, transferee judges often attempt to stay apprised of state court discovery and trial schedules, including by requiring the parties to coordinate scheduling and to provide regular updates.
If any state court in California, Connecticut, Illinois or Nevada (if any cases are filed there) sets a trial (other than the Connecticut trial referenced above) to commence during the current schedule for bellwether trials in this MDL (August 11, 2014 through March 31, 2015), MDL lead counsel shall notify the MDL Court immediately. In such instance, the MDL Court intends to coordinate with such state court, and if necessary, delay the MDL bellwether trial set at the same time as such a state court trial, so that two Pradaxa trials are not simultaneously occurring until the end of the MDL bellwether trial schedule as set forth above concludes March 31, 2015.
In some cases, courts will appoint state-federal liaison counsel to maximize efficiencies between state and federal litigation.
This MDL Proceeding is for testosterone replacement therapy (“TRT”) product liability cases in federal court. The cases were centralized in this district as In re Testosterone Replacement Therapy Products Liability Litigation, MDL No. 2545. Essentially identical cases, involving the same types of claims against the same defendants based on use of the same TRT products, are also pending in various state courts. The state and federal cases began to be filed around the same time, starting in February 2014. . . This Court’s goal is to engage in a cooperative effort to coordinate, to the extent practicable, parallel and overlapping proceedings in the federal and state cases, in order to reduce costs and avoid unnecessary duplication of effort.
[Appointing 4 state-federal liaison counsel]
Plaintiffs’ State-Federal Liaison Counsel (and/or, as appropriate, Plaintiffs’ Liaison Counsel to particular state courts) shall communicate on a regular basis with plaintiffs’ counsel in the state court cases regarding the status, schedule, and developments in the MDL Proceeding and in the state court cases, including all case management orders. . . .
The State-Federal Liaison Counsel for plaintiffs and each defendant shall use their best efforts to coordinate discovery and case schedules in the MDL proceeding with discovery and case schedules in the state court cases, in order to enhance efficiency and avoid undue duplication of effort and unwarranted expense.
If a transferee court decides to hold bellwether trials, it must then choose a representative set of cases that will proceed to discovery, often called a “discovery pool” or “bellwether pool.” Ultimately, the court will select bellwether trial cases from that pool.
When determining the processes to select bellwether pool cases, MDL judges typically solicit party input, often requesting that the parties propose bellwether selection procedures subject to judicial modification. Bolch Guidelines, supra at 20.
This Order sets forth initial procedures to prepare for the selection of the cases that will proceed to personal injury bellwether trials in this multi-district litigation (“MDL”)…
The parties have negotiated bellwether selection procedures and have submitted two versions of an agreed-upon proposal on this subject to the Court. The Court adopts much of the parties’ second bellwether proposal in this Order. The Court does not adopt the parties’ proposal in its entirety, however…
On October 5, 2021, the parties submitted to the Court an agreed-upon proposal for the selection of personal injury cases to proceed to bellwether trials. [] The Court held a hearing on the proposal in an open proceeding through Zoom teleconference on October 25. During the hearing, the parties explained each step of their proposal and answered the Court’s various questions. The parties stated that they were continuing to negotiate certain provisions of the proposal and that they would submit a second proposal following those negotiations. The parties submitted their second bellwether proposal to the Court on November 4. A copy of that second proposal is attached to this Order…
The process of establishing a bellwether plan began with discussions at monthly conferences. At the same time, a number of meetings occurred between the parties in an effort to resolve all their differences on the issues at bar. At the last conference, it was reported that the meet and confer efforts had been exhausted for the most part. The Court directed each side to submit detailed proposals simultaneously and to reply simultaneously. The parties, however, agreed to meet and confer in a last attempt to agree. The dispute is now at issue and the Court, with very detailed submissions from each side of the issue before it as well as the arguments made by each side at the last conference embedded in its
memory, enters this order…
This amended order follows the October monthly status conference, at which the PSC aired a number of issues which it takes with the original order. Despite contradicting much of what it originally advocated, the predominate effect of the Plaintiffs’ position is that they want the trial schedule pushed back four months. In keeping with the aggressive schedule and demeanor all agreed upon when this MDL was established, while keeping fairness and a just adjudication of the issues at the fore, the Court believes it has arrived at a fair adjustment to its previously established plan in order to alleviate Plaintiffs’ concerns yet achieve the goals established early on.
In order to better understand the universe of potential bellwether pool cases, MDL judges may collect, or direct the parties to collect, information about the cases in the MDL. Often, this is done through case censuses and/or plaintiff fact sheets, which are discussed in more detail here.
The Court has approved a Short-Form PFS that includes document requests and a variety of written authorizations for the release of records (“Authorizations”).[] Each Plaintiff must submit a completed Short-Form PFS, executed Authorizations, and documents responsive to the requests in the Short-Form PFS (“Responsive Documents”) pursuant to the terms of this Order.
If MDL judges collected plaintiff fact sheets early on, they will simply draw on those fact sheets while creating the bellwether pool.
Amended Case Management Order No. 24, In re Yasmin and Yaz (Drospirenone) Marketing, Sales Prac., and Prod. Liab. Litig., MDL No. 2100 (S.D. Ill. Oct. 13, 2010) (setting forth eligibility criteria for bellwether pool cases and requiring fact sheets for eligible plaintiffs).
If a plaintiff is identified as eligible pursuant to paragraph 7, but has not yet provided a PFS substantially complete in all respects and/or failed to properly fill out and sign the medical authorizations accompanying the PFS, as provided for by CMO No. 12, by the date of this Order, such discovery shall be due on the earlier of (1) its original due date under CMO No. 12, or (2) twenty-one (21) days after entry of this Order, provided that an Answer has been filed in her case…
Bellwether case selection “can be difficult.” Bolch Guidelines, supra at 18. For one, the process is subject to gamesmanship, as parties may attempt to select bellwether cases that are not representative, but are instead unduly favorable to their side. Id. at 19. And, the bellwether pool selection process has high stakes. If the pool is not representative, the parties and court may spend considerable time and effort preparing a case for a trial that, ultimately, fails to have a meaningful impact on the MDL’s efficient resolution.
To ensure that the bellwether process is productive, MDL judges have employed a wide variety of processes for selecting bellwether pool cases. Those include judicial selection, random selection, party selection, and category-based selection. Often, as evidenced in the exemplar orders below, MDL judges use some combination of these methods.
Judicial Selection. In some cases, MDL judges chose bellwether pool cases themselves, without input from the parties. While this method may be efficient, parties might perceive bias in the selection outcome, which can lead to frustration and erode trust. An MDL judge also might not have the same understanding of the variations among cases as the parties do, leaving her less equipped to select truly representative cases.
Order, In re Welding Fume Prods. Liab. Litig., MDL No. 1535 (N.D. Ohio Aug. 28, 2006).
On March 31, 2006, the Court entered a “Case Administration Order” which, among other things, set out the Court’s conclusion that “certain case-specific discovery should commence” in this MDL. The Court explained:
In particular, the Court intends to identify, in the near future, a batch of 100 cases. Counsel for plaintiffs will promptly work to obtain medical authorizations from the plaintiffs in those cases, so that defendants may begin gathering the plaintiffs’ medical records. The Court will also identify 15 cases within this batch of 100 cases. Counsel for the parties will then begin all case-specific discovery as to those 15 plaintiffs. The Court will endeavor to choose cases with a broad variety of diagnoses, plaintiffs’ attorneys, and applicable states’ law. The Court will conduct a status conference approximately 90 days after this case-specific discovery begins, to assess progress and determine a date by which a next wave of cases shall be designated for and begin their case-specific discovery.
The Court now designates the first such 100–case batch. Attached to this Order is a list of 100 cases—spread across 19 plaintiffs’ attorneys and 39 states—designated for medical records discovery. The parties will work to reach a joint agreement on the process of production.
In some cases, the MDL judge may task the parties with identifying an initial pool of cases—and then, prior to selecting final cases for trial, review the parties’ selections to ensure that they are representative.
[O]n or before January 31, 2019, the Parties shall simultaneously identify six Representative Plaintiff candidates for the Bellwether Discovery Cases, for a total of twelve cases to be worked up for case-specific discovery (“Bellwether Discovery Pool Plaintiffs”). The parties will identify these twelve cases to the Court in one filing. The Court will review the twelve Discovery Pool Plaintiffs selected by the Parties to ensure that they represent a sample of the cases currently pending in this MDL and are consistent with the guidelines set by the Court. The Court may in its sole discretion substitute any case on a Party’s list with another case of its choosing and may request input from the Parties in doing so. The Court will issue an order identifying the twelve Bellwether Discovery Pool Plaintiffs. The deadlines in Sections III to IV will only apply to the Bellwether Discovery Pool Plaintiffs. In the event that a case selected for the Bellwether Discovery Pool is dismissed before July 12, 2019, the Court may at its discretion allow the selection of a replacement case by the Defendants or Plaintiffs depending upon the circumstances of the dismissal or otherwise adjust the balance of selections or the terms of this CMO to ensure the integrity of the bellwether process.
The Court will conduct four bellwether trials following the conclusion of discovery. Two cases will be selected by Plaintiffs, and cases will be selected by Defendants. The parties shall file a joint letter submitting their proposed bellwether cases by November 6, 2017.
Random Selection. Some MDL judges may randomly select which cases are “bellwether candidates.” Particularly if the sample is large, random selection can help to ensure that bellwethers are representative. Cf. In re Chevron U.S.A., 109 F.3d 1016, 1019 (5th Cir. 1997) (“[T]he sample must be a randomly selected one of sufficient size so as to achieve statistical significance to the desired level of confidence in the result obtained.”). This method is endorsed by the Manual for Complex Litigation. MCL, supra at 360.
Often, random selection is used in conjunction with other methods. For instance, once a judge identifies bellwether candidates, other methods will be utilized to further winnow the sample to identify which “candidates” are actually slated for trial. Or, a judge might randomly select various cases to be considered alongside the parties’ hand-picked selections. Or, once a judge randomly selects various cases, the parties may exercise strikes, to exclude randomly-selected candidates from the bellwether pool. Many of these methods retain the benefits of random selection while minimizing the risk that an outlier will be selected for trial. Bolch Guidelines, supra at 20
On December 16, 2019, there were 139,693 claimants registered in MDL Centrality in connection with the 3M litigation. The Court, with the assistance of BrownGreer PLC, randomly selected 1% of that population—1,397 claimants—for consideration as potential bellwether candidates. Next, a series of prevalence analyses were conducted on the entire population of claimants with completed census forms, to identify the individual plaintiff characteristics that were most representative of the whole, in terms of branch of service, age, and injury. The analyses revealed that the most representative claimant is between the ages of 30 and 49, serves or served in the Army, and alleges a combination of tinnitus and hearing loss. Of the randomly selected 1%, 175 cases met the three criteria. Those 175 cases, which are identified on Exhibit A, comprise the first potential bellwether candidate pool for this litigation.
Selection of Bellwether Discovery Pool: On or before December 15, 2020, a total of 24 personal injury cases will be selected for the initial bellwether discovery pool. Plaintiff will select 6 cases, Defendants will collectively select 6 cases, and the Court will select 12 cases through a random selection process after excluding the 12 cases selected by the parties.
Order, In re Johnson & Johnson Talcum Powder Prods. Marketing, Sales Prac. & Prods. Liab. Litig., MDL No. 2738 (D. N.J. May 15, 2020) (using a random sample to select 1,000 cases for initial consideration as bellwether pool cases).
Stage 1 – Plaintiff Profile Forms
From among cases pending in this MDL proceeding as of May 1, 2020, 1,000 shall be randomly selected (the “Selected Cases”). Plaintiffs in each of the Selected Cases, shall complete a Plaintiff Profile Form (“PPF”) and produce the core records specified in paragraph 2 and a signed medical records authorization (which is not a substitute for production of medical records as required herein). The parties shall meet and confer on the list of cases from which the random selection shall be made, the random selection procedure, and the form of the PPF and shall submit to the Court their recommendations on those issues and a proposed order within one week.
. . .
Stage 2 – Discovery Pool Cases
From among the Selected Cases, a group of 30 representative cases shall be selected for further work up (the “Discovery Pool Cases”). The parties shall meet and confer regarding the process for selecting the Discovery Pool Cases, the timing of that selection, and the scope of case-specific discovery for the Discovery Pool Cases, and shall submit to the Court their recommendations on these issues and a proposed order within 60 days of the date of this Order. From the selected Discovery Pool Cases, bellwether trial cases will be selected by a process to be decided at a later date.
The pool of potential trial cases will be composed of Plaintiffs who:
I will provide the parties a list of cases that involve Arkansas residents who have filed cases in Arkansas. The parties will mark the cases on the list that meet the fourth and fifth criteria listed above and return the list to me within fourteen (14) days of the date of this order.
From this list of cases, I will randomly draw from a hat (literally) fifteen cases. Upon designation of these cases as potential bellwether cases, initial scheduling orders will be issued and the parties must commence “full speed ahead” discovery.
IT IS HEREBY FURTHER ORDERED that on or before January 8, 2016, the Court shall randomly select 30 cases that by December 31, 2015 have been filed and served on at least one Defendant.
IT IS HEREBY FURTHER ORDERED that on or before January 22, 2016, Plaintiffs and Defendants shall each strike 5 cases from the Court’s list of 30 cases.
IT IS HEREBY FURTHER ORDERED that the remaining 20 cases shall be the bellwether cases.
Allowing the parties to each select their own cases at the outset of the bellwether process will result in bellwether trials in only the cases that the parties find most favorable to their respective sides, rather than cases of average and representative merit (see the Court’s initial experience in In re NexGen Knee Implant Prods. Liab. Litig., MDL No. 2272). Therefore, the Court will instead use a bellwether selection process involving: (1) random selection of an initial pool of potential cases; (2) strikes by the parties to remove the most unrepresentative cases from the initial pool; and (3) ultimately, Court selection of the bellwethers from the remaining cases. At a status conference to be scheduled in September of 2019, the Court will use a random selection process to identify 8 cases from Category One and 8 cases from Category Two. By 5 PM ET on a date 16 days after the status conference at which random selection occurs, each party will file a Notice of Bellwether Strikes in which they strike 2 cases from Category One and 2 cases from Category Two. Then, on a date 10 days after the parties exercise their strikes, the parties will file briefs with the Court on the propriety of the remaining 8 cases (assuming the parties do not strike the same cases) for bellwether trial. Based on the parties’ briefing, the Court will select 2 cases from each Category for final workup and trial.
Plaintiffs and Defendants may each strike one randomly selected plaintiff without cause. If a strike is exercised, it will be replaced by a randomly selected plaintiff properly venued in the same district. Challenges to party selections or additional challenges to random selections will be permitted only by agreement of the parties or on motion to the Court for cause.
II. SELECTION OF PLAINTIFFS FOR DISCOVERY POOL
3. Methods for Selection of Discovery Pool. The initial pool of cases eligible for discovery shall consist of forty-five product liability Plaintiffs with cases pending in the MDL that have been filed and served as of 60 days before the date this Order is signed by the Court and served on the parties via the Court’s electronic case filing (“ECF”) system. Ten of the Plaintiffs shall be selected by the Plaintiffs’ Steering Committee (“PSC”) (“the PSC selections”); ten of the Plaintiffs shall be selected by the Pfizer Defendants (“the Pfizer selections”); and twenty-five of the Plaintiffs shall be selected randomly (“the random selections”). The PSC selections, the Pfizer selections, and the random selections shall constitute the cases eligible for discovery (“the Discovery Pool”).
4. Random Selection of Twenty-Five Plaintiffs. The random selections shall be made as follows:
Category-Based Selection. Some MDL judges categorize cases into “buckets” based on various characteristics, then choose bellwether pool cases out of each bucket. Bolch Guidelines, supra at 20. These characteristics can include, for instance, the plaintiff’s injury type, the plaintiff’s age, the date of their injury, and so on. Id.
3. The bellwether case pool is divided into five categories depending on the product, the date of implant surgery, and the post-revision outcome as more fully described below. The order in which the categories appear is insignificant, and in no way reflects an agreement by the parties on the order in which bellwether trials should be conducted. (See Paragraph #6, below.) The categories are:
. . .
5. Three lead cases from each of the five bellwether categories shall be selected for discovery and trial as follows: Counsel shall confer and attempt to agree upon three cases that should be designated as lead cases in each of the five categories. To qualify for such designation, a case should be reasonably representative of the other cases in the category. If counsel are not able to agree upon which cases in each category should be designated as lead cases, counsel shall file with the Court on or before July 21, 2014, the names of the three cases each contends should be the lead cases in each category with a brief description (not to exceed 300 words per case) why each case should be so designated. Counsel may file with the Court on or before July 28, 2014, a letter not exceeding three pages explaining why one or more of the cases designated by the opposing side should not be a lead case. Thereafter, the Court will set this matter for a telephonic hearing on a date to be selected by the Court, if available, after August 5, 2014, and before the regularly scheduled status conference for the month of August. It is the intention of the Court to issue an Order that identifies three lead cases in each of the five bellwether categories prior to the August status conference.
The Bellwether Selection Pool is divided into two categories depending on the product.
[Noting that the parties and court would ultimately select 8 cases from each category for the bellwether pool.]
The ideal size of a bellwether pool is MDL-dependent. Ideally, the case pool should reflect the variety of fact and legal patterns in the total set of MDL cases. Accordingly, the case pool may be larger when the injuries alleged are diverse or when questions of specific causation loom large.
The pool should also be large enough to account for that fact that numerous cases are likely to “resolve themselves along the way, whether because of errors in the plaintiff or defendant fact sheet, individualized factors that strengthen or weaken the case during discovery that were not anticipated at the outset, the parties’ decision to settle particular cases, the plaintiff’s decision to voluntarily dismiss, or because of the court’s early rulings.” Bolch Guidelines, supra at 18.
Judge Fallon suggests a rule of thumb: “[A]ssuming the goal is to try five or six bellwether trials, a workable discovery pool would be about thirty cases.” Fallon, supra at 953.
Given the high stakes in determining which individual cases will be selected for bellwether workup and trials, parties look for opportunities to shape the process to their clients’ advantage. MDL courts sometimes impose requirements to restrict these efforts.
The plaintiff leadership team—and the Early Vetting Subcommittee, in particular—has been tasked with assisting in the timely submission of Bellwether Selection Forms. To protect the integrity of the bellwether selection process, members of the plaintiff leadership team are prohibited from investigating any potential bellwether candidate and/or claim at this time, beyond obtaining responses to the questions on the Bellwether Selection Form.
One method by which plaintiffs may attempt to gain an advantage is by voluntarily dismissing weak cases selected for the bellwether pool. Some MDL judges have established procedures to deter these strategic dismissals.
Order No. 27 – Supplementing MDL Order No. 25, In re Zofran (Ondansetron) Prods. Liab. Litig., MDL No. 2657 (D. Mass. Oct. 9, 2020) (defendants permitted to seek fees and costs arising from plaintiffs’ voluntary dismissals of defense-selected bellwether trial pool cases).
GSK [the defendant, a pharmaceutical company] may file a motion for fees and expenses related to any case voluntarily dismissed for good cause shown. Any such motion must be filed within 28 days of the entry of a voluntary dismissal. Plaintiffs must file any opposition to any motion for fees and expenses within 14 days.
After a case is selected for inclusion in the Second Disposition Pool, a case may not be voluntarily dismissed without prejudice without a showing of good cause.
In Lexecon Inc. v. Milberg Weiss, 523 U.S. 26 (1998), the Supreme Court held that a transferee judge cannot transfer an MDL action to her district for the purpose of conducting a trial. MDL courts often engage with the parties at the outset of the litigation to identify any Lexecon-related issues and account for such issues in formulating the bellwether case pool.
There are numerous methods to ensure that bellwether trials do not run afoul of Lexecon. We focus on a few here. For detailed examination of Lexecon and its nuances, see FJC, supra at 11–17.
First, if the MDL already contains actions that were properly filed in the transferee district, the transferee judge can conduct one or more bellwether trials from those cases in her district. Bolch Guidelines, supra at 21.
Second, MDL judges commonly employ Lexecon waivers, in which the parties waive the right to object to venue before the MDL court. Bolch Guidelines, supra at 21. As the Bolch Guidelines state, “this option is attractive to many judges because it allows selection for bellwether trial of any case in which the parties have executed such a waiver.” Id. Some parties may resist Lexecon waivers if they wish for a trial in the jurisdiction in which their case was originally filed, perceiving, for example, that it may present a more favorable jury pool. Thus, the Bolch Guidelines counsel that a “request for waivers should be made early to ensure that a clearly defined pool of cases are available for trial in the MDL court’s district.” Id.
The National Preliminary Pool shall be all other cases as defined in paragraph 1 [defining cases eligible for bellwether trials] where a Lexecon waiver would be required for trial by the MDL Court. It shall consist of 12 cases – 8 randomly selected, 2 plaintiff picks, and 2 defense picks. As to those cases the parties will have 15 days to advise as to whether they will waive Lexecon. If either side refuses to waive Lexecon in an individual case, such a refusal will (a) constitute a strike(s) for the other side, or, (b) in the alternative, the opposing side will receive an additional strike for each non-waiving party, with the party refusing to waive Lexecon selecting between alternatives (a) and (b). Further, the case for which there is no Lexecon waiver will be replaced by the method it came into the pool (e.g. random, plaintiff pick or defense pick).
Plaintiffs’ Lead Counsel shall obtain any necessary waiver of Lexecon from the plaintiffs in the nine (9) cases they designate [for the bellwether pool] pursuant to Section I.A and the four (4) cases they designate pursuant to Section II.A, prior to such designation, For the cases selected by Defendant in Section I.A and II.A, Plaintiffs will recommend a Lexecon waiver and will use good faith efforts to obtain a Lexecon waiver. Plaintiffs will advise Defendant of Lexecon waiver for each defense-pick case within fourteen (14) days of the selection in Section I.A and II.A. If a plaintiff does not waive Lexecon, his/her case will be removed from the initial Discovery Pool, and Defendant shall designate a replacement case within ten (10) days of the notice from Plaintiffs’ Lead Counsel. The process in this paragraph shall continue until a total of eighteen (18) cases with any necessary Plaintiffs’ Lexecon waivers are included in the initial BHR Track Discovery Pool (nine (9) designated by each side), and a total of eight (8) cases with any necessary Plaintiffs’ Lexecon waivers are included in the initial THA Track Discovery Pool (four (4) designated by each side).
If a party in a Second Disposition Pool case that is later selected for trial refuses to waive venue objections and consent to trial in the Southern District of New York, that party will be expected to consent to trial by the undersigned in the district where venue is proper.
By 4 p.m. Eastern on August 28, 2015 or 30 days after selection for the Second Disposition Pool, whichever comes later, the parties will inform the Court and opposing counsel by email whether they agree to waive any venue objections and consent to trial in the Southern District of New York. Ifa party declines to waive its venue objection, the party shall identify the
district in which it believes venue is proper.
Third, some MDL judges elect to personally oversee bellwether trials in the federal districts where the cases originated. Bolch Guidelines, supra at 21. To do this, the MDL judge must obtain an intercircuit or intracircuit assignment to sit by designation under 28 U.S.C. § 292.
At the conclusion of pretrial proceedings, it will be necessary to remand the cases to the Southern District of Florida, and I intend to try the consolidated cases there by intercircuit assignment with a planned trial date beginning on September 29, 2014, at 8:30 a.m.
The Court’s selection of the locations for the third and fourth trials is subject to change, in the discretion of the Court, if (a) the Court is not able to obtain a temporary assignment to try a case in another district pursuant to 28 USC 292, [going on to note that the location could also change if the parties agreed to waive Lexecon or if the Court later determined that another venue was more appropriate].
Fourth, as discussed further in later in this module, some judges—most notably, Judge Dan Polster in the National Prescription Opiate MDL—utilize a “hub-and-spoke” model; these judges strategically disaggregate the litigation by remanding various cases for trial in handpicked transferor courts. This approach avoids Lexecon issues and allows the parties to try their claims before a diverse set of federal judges. For more on this model, see D. Theodore Rave & Francis E. McGovern, A Hub and Spoke Model of Multidistrict Litigation, 84 L. & Contemp. Probs 21 (2021).
[Recommending remand of cases to the Northern District of California, the Northern District of Illinois, and the Eastern District Oklahoma)]
City of Chicago v. Purdue Pharma L.P. focuses on manufacturer defendants. The transferor court oversaw substantial discovery and motion practice before the case was transferred to the MDL… The case should be remanded [to the Northern District of Illinois] now.
Cherokee Nation v. McKesson Corp. is an Indian Tribe case, with distinctive Tribal issues. This case is the consensus pick of the Indian Tribe leadership committee. The Plaintiff has agreed not to seek remand to state court and to try the case in the federal transferor court… The case should be remanded [to the Eastern District of Oklahoma] now.
City and County of San Francisco, Cal. v. Purdue Pharma L.P. names manufacturer, distributor, and pharmacy defendants, many of whom have completed or nearly completed global discovery… The case should be remanded [to the Northern District of California] now.
Finally, if a case is filed after the MDL is centralized, transferee courts may issue an order allowing for direct filing in the MDL. Those orders can allow plaintiffs who directly file in the MDL court to waive any venue-related objections—essentially, doing the same work as a Lexecon waiver. FJC, supra at 13. Direct filing, however, can cause choice-of-law and jurisdictional issues. See, e.g., Looper v. Cook Inc., 20 F.4th 387, 389 (7th Cir. 2021) (reversing a district court to hold that a defendant impliedly consented to apply the originating states’ statutes of limitations where claims were directly filed in an MDL). MDL judges should plainly outline the choice-of-law principles that will govern directly filed cases: “Without clear advance guidance from a transferee judge and consent from the parties about how the MDL court should decide choice-of-law issues in directly filed cases, there are substantial risks of confusion and unfairness.” Id. at 394. For more on direct filing, see Andrew D. Bradt, The Shortest Distance: Direct Filing and Choice of Law in Multidistrict Litigation, 88 Notre Dame L. Rev. 759 (2012).
The initial bellwether pool is typically winnowed down as discovery proceeds. Sometimes, after an initial phase of discovery, the court will ask the parties to identify the cases that they would like to see proceed to the next phase.
After Core Discovery occurs for the twelve Bellwether Discovery Pool Plaintiffs, the Parties shall each simultaneously identify a list of three cases for trial consideration, for a total of six cases. The six cases selected will be referred to as the “Bellwether Trial Pool Plaintiffs.” The deadlines in Sections VI to IX will only apply to the Bellwether Trial Pool Plaintiffs. The parties shall make these selections on July 12, 2019, and shall jointly notify the Court of the six cases on that day.
The Court will select three of the Bellwether Trial Pool cases for bellwether trials. The cases shall be selected following briefing by the parties and shall be selected by the Court by February 14, 2020, and shall proceed to final pretrial and trial as set forth below in Sections X to XII.
Selection of Trial Plaintiffs Against the Sanofi Defendants
The parties have submitted to the Court the following cases, whose original jurisdiction and venue is in the Eastern District of Louisiana:
[listing cases]
The above cases will be subject to phased discovery as set forth in a protocol established by the parties and submitted to the Court. All cases identified herein will be subject to the first phase of discovery which will conclude on February 6, 2018. By February 12, 2018, the parties shall nominate to the Court and rank in order of preference the four (4) cases that will proceed to the second phase of discovery…
Order, In re Johnson & Johnson Talcum Powder Prods. Marketing, Sales Pracs. and Prods. Liab. Litig., MDL No. 2738 (D.N.J. Mar. 3, 2021) (choosing “Stage 3” cases from the bellwether pool).
On March 23, 2021, plaintiffs’ co-lead counsel and the Johnson & Johnson defendants shall each select four cases from those listed above for a total of eight cases.
On March 30, 2021, plaintiffs’ co-lead counsel and the Johnson & Johnson defendants may then strike one case each from the list, leaving six cases.
Those six remaining cases (the “Stage Three” cases) shall be worked up for trial, as detailed below.
If any Stage Three case is voluntarily dismissed, the Johnson & Johnson defendants will select a replacement case from among the cases listed above in subparagraph a.
As previously discussed, only a subset of the cases in the broader bellwether pool will be selected for trial. Many will resolve through motions practice, voluntary dismissal, settlement, or other means, sometimes being replaced by additional cases, until a final pool of trial-ready cases remains.
In selecting cases for trial from the bellwether pool, judges use many of the same strategies discussed above, the including party selection (with or without strikes from opposing parties), court selection, and random selection. The following orders illustrate some of these approaches.
Bellwether Cases. Parties will make presentations to the Court on August 1, 2013 on all Trial Pool cases, and the Court shall select a total of five (5) to be Bellwether trial cases.
Pretrial Order #54, In re Boston Scientific Corp. Pelvic Repair Sys. Prods. Liab. Litig., MDL No. 2326 (S.D. W.Va. Aug. 29, 2013) (following up on Pretrial Order #32, above).
Pursuant to PTO ##s 32 and 51, following multiple submissions from the parties, bellwether presentations and careful consideration of the same, it is ORDERED that the following cases are selected for the first and second bellwether trials in this MDL:
I will try the first and second rounds of cases, set to begin on February 11, 2014, and June17, 2014, respectively, from the list of cases above and in the order above, beginning with Fawcett on February 11, 2014. If Fawcett is not ready, has settled or is otherwise dismissed, I will move to Sanchez and so on. I have reserved a trial date of September 9, 2014, for a third round of Boston Scientific bellwethers, but at this time, find that I cannot chose a representative bellwether from the cases put forth by the parties.
Case Management Order No. 9 (Early Trial Selection Process), In re Fosamax Prods. Liab. Litig., MDL No. 1789 (S.D.N.Y. Jan. 31, 2007) (describing procedure in which trial cases would be selected from the bellwether pool).
After fact discovery is completed, the three trial cases, to be tried separately before different juries in this Court, will be selected. The PSC shall select one case, Merck counsel shall select one case, and the Court shall select a third case. The Court will randomly select the order in which each of the three cases will be tried. If Defendant settles any particular case within the three cases selected for trial, then the PSC shall have the right to select a replacement from the remaining twenty-five. Likewise, if any particular plaintiff dismissed his case without settlement, then Merck shall have the right to select the replacement case from the remaining twenty-five cases in the trial selection batch.
After four (4) months of discovery in these [bellwether trial pool] cases, the parties must “meet and confer” and, if possible, together select five (5) cases that: (1) are most likely to be ready by the July 31, 2006 trial date and (2) involve representative plaintiffs—as nearly so as possible. If the parties can’t agree or I feel that the proposed cases are not representative enough, I will review and select appropriate cases.
Judges have used several different methods to structure bellwether trials.
Scheduling a series of individual trials on all issues. Courts may schedule successive trials on all issues. Such trials inform parties about likely court rulings and the range of jury verdicts that may be expected in similar cases.
Bifurcation, with early evaluation of certain issues. Some courts bifurcate bellwether trials on issues of liability (particularly general causation). Bifurcation, however, may “slant the playing field away from plaintiffs and toward defendants” by preventing plaintiffs from important individualized evidence in the initial trial. Nora Freeman Engstrom, The Diminished Trial, 86 Fordham L. Rev 2131, 2146 (2018).
Monsanto’s request to bifurcate the three bellwether trials, with the first phase to address causation only and the second phase to address all remaining liability and damage issues, is granted. Although this type of bifurcation is unusual and should be done with caution—both generally and in the context of MDL bellwether trials—it is warranted here. A significant portion of the plaintiffs’ case involves attacks on Monsanto for attempting to influence regulatory agencies and manipulate public opinion regarding glyphosate. These issues are relevant to punitive damages and some liability questions. But when it comes to whether glyphosate caused a plaintiff’s NHL, these issues are mostly a distraction, and a significant one at that.
[going on to reject the Plaintiffs’ arguments as to why causation should be tried alongside other issues.]
Order, In re Nat’l Prescription Opiate Litig., MDL No. 2804 (N.D. Ohio. Jun. 2, 2020) (bifurcating common law public nuisance claims against one subset of defendants who operated chain pharmacies (the “Pharmacy Defendants”) for bellwether trial at plaintiffs’ request).
Plaintiffs’ proposal is permissible under Rule 42(b), as it will expedite and economize the resolution of these two cases and possibly the MDL. Narrowing claims and defendants will avoid combining issues that may confuse the jury, such as the legal obligations of Pharmacy Defendants distinct from those of other defendants. Bifurcation also will avoid delays in discovery and allow the parties to proceed to trial more efficiently because numerous issues have been resolved and substantial discovery completed in other MDL cases involving common law public nuisance claims against Pharmacy Defendants. Finally, as Plaintiffs state, “it is possible, even likely, that no future trial of Plaintiffs’ remaining claims will be necessary if the bellwether trials lead to a resolution of the MDL.” Doc. #: 3310 at 2. Thus, bifurcation may result in all parties avoiding the cost of litigating the other claims in this case and approximately 1,400 similar cases.
The Court discussed with the parties the concept of holding a “common issues trial,” pursuant to Fed. R. Civ. P. 23(c)(4)(A).18 The use of a common issues trial has been very effective at achieving resolution in certain litigations. See Simon v. Philip Morris Inc., 200 F.R.D. 21, 44 (E.D.N.Y. 2001) (“[t]he very nature of injuries arising from mass production and mass marketing efforts makes trial judges’ discretion to sever issues for trial one of the most necessary and natural in their arsenal of tools required for the shaping of these types of cases for efficient adjudication”); James A. Henderson Jr. et al., Optimal Issue Separation in Modern Products Liability Litigation, 73 Tex. L. Rev. 1653, 1680 (1995) (“[i]n mass products liability litigation, when all of the individual cases share a number of discreet, potentially dispositive issues, the system-wide savings resulting from trying these common issues in consolidated trials can be compelling”). At this juncture, however, the parties were unable to agree on whether a common issues trial was a good idea, or on what the scope of any such trial would be. The parties did agree that briefing on these questions would be appropriate.
[Footnote 18] An example of a common issues trial is found at In re: Richardson-Merrell, Inc. “Bendectin” Prods. Liab. Litig., 624 F. Supp. 1212 (S.D. Ohio 1985), aff’d sub nom. In re: Bendectin Litig., 857 F.2d 290 (6th Cir. 1988), cert. denied, 488 U.S. 1006 (1989). A fairly recent critical discussion of the concept is found at Laura J. Hines, Challenging the Issue Class Action End-Run, 52 Emory L.J. 709 (2003).
After four (4) months of discovery in these [bellwether trial pool] cases, the parties must “meet and confer” and, if possible, together select five (5) cases that: (1) are most likely to be ready by the July 31, 2006 trial date and (2) involve representative plaintiffs—as nearly so as possible. If the parties can’t agree or I feel that the proposed cases are not representative enough, I will review and select appropriate cases.
Bellwether trials are not always tried by the judge overseeing the MDL. As previously discussed, Lexecon requires that, absent a waiver, bellwether trials be held in the district from which they were transferred. Thus, MDL judges sometimes apply to oversee bellwether trials by designation in one or more transferor districts outside their own (for more on this practice, click here).
An MDL judge also may request that the Judicial Panel on Multidistrict Litigation (JPML) remand bellwether trials to the transferor district for trial, even prior to the completion of all “pretrial proceedings” in the MDL. Judge Dan Aaron Polster took this approach in the Opiate MDL, determining that doing so would allow that exceedingly large and complex MDL to proceed efficiently.
Suggestions of Remand, In re Nat’l Prescription Opiate Litig., MDL No. 2804 (N.D. Ohio Nov. 19, 2019) (recommending remand of cases back to N.D. Ill., E.D. Okla., and N.D. Cal., respectively).
The Judicial Panel on Multidistrict Litigation (“JPML”) transferred the three above-listed actions to the undersigned for coordinated or consolidated pretrial proceedings. For the reasons stated below, and pursuant to Rule 10.1(b)(i) of the Rules of Procedure of the JPML, the undersigned transferee judge now suggests that these three cases be remanded to their respective transferor courts.
. . .
An extremely simplified list of Opiate MDL litigation matters over which the undersigned has so far presided is as follows:
Due to severance and dismissal of various claims and parties, the jury in the Track One bellwether trial was scheduled to decide only two or three claims against five defendants: three distributors, a manufacturer, and a pharmacy. This structure was designed to inform the Court and the parties regarding a central cross-section of the evidence, the parties, and the claims. The parties and the Court planned on additional litigation to address other legal theories and other defendants. As it happened, however, all but the pharmacy defendant in the Track One bellwether trial settled less than 10 hours before opening statements. The Court postponed trial and, as explained below, will schedule a new Track One trial against all of the pharmacy defendants.
What the Court has learned is that, if it proceeds with the bellwether trial process as it has so far, it will simply take too long to reach each category of plaintiff and defendant, much less each individual plaintiff and defendant. Meanwhile, the Opioid Crisis shows no sign of ending. Accordingly, the Court asked the parties to submit proposals regarding limited, strategic remands of specific cases, in order to allow other federal judges to help resolve specific portions of the Opiate MDL in parallel. The Court suggested, for example, that there could be a remand of: (1) a case focused on manufacturers; (2) a case focused on distributors; (3) a case focused on pharmacies; (4) a case brought by an Indian Tribe; and so on.
. . .
Having reviewed carefully all of the parties’ proposals, the undersigned believes resolution of substantial portions of the Opiate MDL will be speeded up and aided by strategic remand of certain cases at this time, and very probably additional strategic remands in the future. While the transferor courts preside over these cases on remand, the undersigned will be working in parallel, trying other segments of the case and also pursuing global settlements. Although this Court is normally hesitant to suggest remand of any case until all “pretrial proceedings” have been addressed, see 28 U.S.C. §1407(a), the global discovery, pretrial rulings, and other litigation matters over which the undersigned has already presided provide a good base upon which the transferor courts can build. Accordingly, the undersigned suggests three remands occur immediately; the Court expects it will suggest other remands later. Specifically:
In sum, the Court believes that strategic remand of certain cases is the best way to advance resolution of various aspects of the Opiate MDL. The undersigned will remain as the “hub” of the MDL litigation and also the locus for global settlement, while the selected transferor courts will act as “spokes” supporting this global effort.
