In 2008, the Tulane Law Review published a paper discussing the rise of “bellwether trials” that I co-authored with Judge Eldon E. Fallon (U.S. District Judge for the Eastern District of Louisiana) and Robert Pitard Wynne. See Bellwether Trials in Multidistrict Litigation, 82 Tul. L. Rev. 2323 (2008). The paper is publicly available on the Judicial Panel on Multidistrict Litigation’s “legal resources” website. Since the paper was published, courts across the country have been increasingly employing the use of bellwether trials in complex product liability litigation.
As we noted in the introduction to the Tulane Law Review paper, a bellwether case “often begins as no more than an individual lawsuit that proceeds through pretrial discovery and on to trial in the usual binary fashion: one plaintiff versus one defendant.” However, such a case may take on “bellwether” qualities “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.” In short, courts that are faced with the prospect of overseeing hundreds or thousands of related individual product liability lawsuits arising from an alleged defect or problem with a particular product (typically via a multidistrict litigation consolidation pursuant to 28 U.S.C. § 1407) are increasingly choosing to manage such litigation by setting several representative cases for early trials with the hope that the results of such bellwether trials will encourage discussions about settlements in the related lawsuits.
For example, the bellwether trial approach has been recently used in MDLs in the Eastern District of Missouri in the genetically modified rice litigation and in the NuvaRing contraceptive litigation. Several bellwether trials have also been held recently in the Fosamax pharmaceutical litigation in the Southern District of New York. The implications of this trend for product manufacturers are clear–courts are becoming more adept at efficiently managing large/complicated litigations and, therefore, defendants must ensure that they are familiar with these new methods and adapt their strategies as may be necessary.