For decades, courts overseeing mass tort litigation have struggled with how to identify the right plaintiffs for early trials. These initial trials, often called “bellwether” trials, are intended to help the parties evaluate the merits of other cases in the same litigation. But a successful bellwether process depends heavily on the method by which the trials are selected. A process that all litigants regard as fair and that results in the selection of plaintiffs who are representative of the claims of other plaintiffs can help to facilitate the resolution of an entire mass tort docket, whereas a process that is unfair or that results in a sample of plaintiffs whose claims are outliers in either direction will not. To explore these issues in more detail, Part II of this article begins with a brief overview of the history and purpose of the bellwether trial process. Part III summarizes the various methods that courts and litigants have used to select bellwether plaintiffs and describes the theoretical advantages and disadvantages of each. Part IV presents our empirical analysis from the Bextra and Celebrex litigation. Ultimately, we conclude that if a party selection process both produces unrepresentative bellwether cases and disadvantages one party disproportionately, then such a process cannot fulfill the fairness and information-gathering purposes of bellwether trials. Accordingly, we urge courts to employ random selection procedures where possible.
Brown, Loren H.; Holian, Matthew A.; and Ghosh, Arindam
"Bellwether Trial Selection in Multi-District Litigation: Empirical Evidence in Favor of Random Selection,"
Akron Law Review: Vol. 47
, Article 2.
Available at: http://ideaexchange.uakron.edu/akronlawreview/vol47/iss3/2