In our previous blog post about multidistrict litigation (MDL), we discussed the problem of identifying meritless claims and how social media evidence can help counsel identify those claims. But what happens next? After the universe of suitable claims has been determined, how do litigants and courts decide what to do with those consolidated cases? Should they be tried? Settled? Dismissed out of hand?

The point of MDL is to bring “civil actions involving one or more common questions of fact” together in a single court “for coordinated or consolidated pretrial proceedings … for the convenience of parties and witnesses and [to] promote the just and efficient conduct of such actions.” 28 U.S.C. § 1407.

Still, it’s not as if it would be very “just and efficient” for the parties to simply complete discovery and then ask the court to remand all of those cases back to their originating courts. What the courts and the litigants need—and generally want, so they don’t have to try hundreds or thousands of cases—is a way to take the temperature of a few cases and use that information to decide what should happen with the group as a whole.

That’s why MDL proceedings typically involve choosing a sample of representative claims for bellwether trials: trials that will set the path for the rest of the claims that will follow. The key is to ensure that those bellwethers are, in fact, a fair representation of the rest of the MDL.

Unfortunately, given the number of plaintiffs in an MDL and the dearth of information about any of them, finding appropriate bellwethers can be challenging. So what can litigants on both sides do to choose better bellwethers—and how do they find the information they need to reach those decisions?

WHAT DO LITIGANTS NEED FROM A BELLWETHER CLAIM?

Most MDL judges rely on bellwether claims to gather information about the merits of an MDL claim and their potential damages. Some randomly select cases to serve as bellwethers—which might sound like a good idea in theory, but the truth is that a random selection won’t necessarily be representative. Besides, bellwether selection is too important to leave to chance. Most judges skip the dartboard and instead ask both plaintiffs’ counsel and defense counsel to suggest representative cases.

What’s interesting is that litigants view bellwether claims both as practice or test runs and, simultaneously, as critical determinants for the strength and value of the entire MDL.

On the one hand, bellwether claims can be a bit experimental, as litigants figure out how best to try their cases. They can test the structure of their arguments, asking whether a jury will buy a specific connection between a cause and an effect. Which facts are compelling? How well does a particular type of evidence work in real life? What evidentiary issues do the litigants encounter? How can they fine-tune their strategies in the remaining cases?

On the other hand, bellwether claims can end up determining what happens to thousands of other claims. Plaintiffs may decide, based on the outcome of the bellwether trials, that the entire MDL is a waste of time and money that isn’t worth pursuing. (Okay, they rarely just roll over and walk away, but they could!) More commonly, defendants that encounter abject failure—and substantial damages for the plaintiffs—may conclude that they should settle the remaining cases as quickly as possible.

For many judges, that’s the goal: bellwether trials should serve as a kick in the seat to get parties started on settlement negotiations. For example, in the ongoing opioid litigation, “Judge Polster has been very clear that his goal … is to quickly reach a global settlement.”

Since bellwethers can, and often do, set the stage for how the entire MDL will unfold, they should fairly and accurately represent the types of cases included in the MDL—which is harder than it would seem.

LACK OF INFORMATION HAMPERS BELLWETHER SELECTION

Litigants want to find “typical” cases that have correspondingly typical injuries and damages for their bellwether cases. Of course, once they actually start trying those cases, they may learn that what seemed typical was anything but. Maybe this plaintiff had a preexisting condition that exacerbated the effect of a drug. Maybe another plaintiff used the product in an off-label application that contributed to his injury. Or a plaintiff might have claimed severe, life-limiting injuries, even while he continued going on vigorous hiking and skiing trips.

Determining who’s truly typical is hard enough, but it’s made nearly impossible in light of the limited information that MDL counsel on both sides tend to receive about individual plaintiffs. It’s a good strategic decision to push for more in-depth information at the outset, but not all courts will allow it. And this doesn’t apply solely to defense counsel; counsel for the plaintiffs may represent so many people that they’re similarly in the dark about the specifics of their clients’ claimed injuries or medical backgrounds.

What both sides need is more information about the potential bellwether plaintiffs. Fortunately, that detailed information, in the plaintiff’s own words and images, often exists—if counsel just know where to look for it.

LISTEN IN ON-DEMAND

THE IMPACT OF MERITLESS CLAIMS ON MDLS AND HOW SOCIAL MEDIA INVESTIGATIONS CAN HELP