Selecting Cases for Early Trials in Multidistrict Litigation: Which Way Will the Bellwethers Go?

Plaintiffs and defendants have long debated about bellwether trial selection, with each side vying to select the case or cases that will allow them to test their theories and, hopefully, achieve a good outcome. But modern MDLs like the prescription opioid litigation can involve thousands of cases, which makes choosing more complicated. Here we look at how courts and parties cull the cases to select bellwethers and then evaluate how that selection may affect the outcomes of the MDL.

Selecting Bellwether Cases for Trial

While the bellwether selection process may vary in different MDLs, the process usually involves three parts:

• Categorizing the cases
• Determining which categories should get a bellwether trial
• Determining which cases in that category make good bellwethers

Often, as in the opioid MDL, the court and parties address these three considerations at the same time, through case management orders that set briefing, discovery, and trial schedules for specific cases from each category.

First, parties and courts determine how to categorize the plaintiffs in the cases. Individual litigants must show why they are differently situated from other plaintiffs to persuade the court to create a separate category for discovery and briefing purposes. Native American tribe plaintiffs make up one high-profile plaintiff category in the opioid MDL. The tribes argued that they were differently situated from states or local governments because they were disproportionately affected by the opioid crisis. Judge Polster accepted those arguments and allowed briefing in cases brought by tribes. The case management orders in the MDL now distinguish states, Native American tribes, local governments, hospitals, and third-party payors as categories of plaintiffs.

Second, the courts determine which categories merit bellwether trials. In the opioid MDL, Judge Polster has so far scheduled only two bellwether trials. Both trials involve cases brought by local governments, and each trial consolidates cases from a specific state. Judge Polster has not precluded setting bellwether cases for other categories if, after discovery, he determines that a bellwether trial is appropriate.

Third, courts select specific cases for the bellwether trials. Typically, courts and parties select cases that address legal issues that are shared among many of the MDL cases. In the opioid litigation, Judge Polster first selected three cases, dubbed “Track One” cases, brought by local governments in Ohio as bellwethers, setting a consolidated trial schedule. Later, after discovery demonstrated that the original bellwether cases did not reflect all of the legal issues or include all of the defendants, the court announced a second track of bellwether cases, consolidating cases brought by local governments in West Virginia.

Why Bellwethers Matter

The word ‘bellwether’ has a long history. Back in the 13th century, a bellwether was the male sheep that wore a bell around its neck so that shepherds could keep track of their flock. Choosing the right sheep could mean the difference between finding your flock and losing it. Today, bellwethers in the legal context help litigants figure out where the law is headed and understand what facts matter to juries. For these reasons, choosing the right bellwether helps make sure that the eventual outcome is a result that both sides — or all sides — can live with.

Parties can test legal theories in pre-trial briefing, discover facts that could help — or hurt — litigants’ claims in similar cases, predict opponents’ arguments, and fine-tune case strategy for future litigation in other MDL cases.

Bellwether trials are also important for another reason: they are perceived as a means to encourage settlement. For instance, Judge Polster has been very clear that his goal for the opioid litigation is to quickly reach a global settlement. When he announced the first bellwether trial, Judge Polster emphasized that the move was meant to make settlement more likely. The plaintiffs’ attorneys have also expressed a belief that “trial dates tend to force settlement.”

It’s not clear yet whether Judge Polster will achieve his goal of a global settlement before the first bellwether trial, now scheduled to begin on October 21, 2019. Regardless, the bellwether in this MDL may tip off other litigants as to where this MDL is headed.

The authors would like to thank Annie Mose for her help researching this post.