With the recognition by many courts of the inappropriateness of the use of the class action device for personal injury claims, the use of other methods to manage mass torts has emerged.  One approach frequently seen within MDLs is the bellwether trial.  Only a proportion of the cases are selected for case specific discovery; only a fraction of them go into a trial pool; and only a percentage of them are selected for trial, to serve as bellwethers for the remaining cases. The hope is that the trial-selected cases provide sufficient information, about claims and defenses, and case values, to inform and propel the disposition of the remaining cases. Such trials may force plaintiffs’ counsel to prepare their standard trial package, and the trials may give some sense of how sound that package is. The bellwether trials may give the court a context to resolve legal questions that arise at a trial as witnesses begin to take the stand. Bellwether trials may test the expert witnesses and theories, and give both parties a sense of how much it costs to try a case to verdict. In theory, test trials are to produce valuable information that will allow the parties to assess the strength and settlement value of all the related cases. Accordingly, which cases go first, from among the hundreds or thousands in the mass tort can be extremely significant.

The process for selection of the bellwether cases is crucial.  If plaintiffs are permitted to handpick their best cases to go first, the process works only if plaintiffs lose their best cases; if they win their best cases, that comes as no surprise to anyone.  Ideally the court would pick truly representative cases.

A significant, although less well recognized issue, is what happens when a bellwether plaintiff cannot or will not go to trial.  Plaintiffs often adopt this tactic to replace a plaintiff whose claim turns out to be, after discovery, not as strong as originally expected.  In the FEMA trailer formaldehyde MDL, the Fifth Circuit recently confirmed that plaintiffs cannot play fast and loose with the procedure, dropping plaintiffs from the line for trial without some sanction. The court of appeals refused to resuscitate a bellwether claim that was dismissed with prejudice after the plaintiff said he could not go forward with trial. In re: FEMA Trailer Formaldehyde Products Liability Litig., No. 09-31131 (5th Cir. 12/14/10).

Raymond Bell and his mother, like thousands of other plaintiffs, filed suit against multiple defendants who participated in the government’s program to supply temporary housing for victims of the devastating 2005 hurricanes. These cases were assigned by the Multi-District Litigation Panel for pretrial management by Judge Engelhardt in New Orleans. The MDL court set dates in 2009 and 2010 for four bellwether cases, each to be prosecuted by a plaintiff against one of the four trailer manufacturers estimated to have the most units at issue in the suits. The case of Diana Bell, Raymond’s mother, was identified as the bellwether case against Keystone RV, manufacturer of the trailer in which her family had lived.  Diana then dropped out, and voluntarily dismissed her case with prejudice. After consulting with counsel, the court promptly selected Raymond Bell as the next bellwether plaintiff in order to maintain the benefit of trial preparation concerning the particular trailer they both had lived in. The next Bell, however, also moved to substitute a new bellwether plaintiff or obtain a continuance of the 2010 trial date.

He made three arguments in support of this dual motion. He asserted he could not take two weeks off from his job to attend trial;  he could not afford to forego at least one week of income; and the trial dates would interfere with his participation in Community College classes at the beginning of the spring semester.

The trial court concluded that Raymond Bell really did not want to go to trial. He moved for a dismissal without prejudice and attached an affidavit asserting as fact the arguments noted above. He expressed doubt about the curative impact of the judge’s proposed instruction if he were to be absent from part of the trial.  The MDL court noted that plaintiffs’ counsel should take notice that all plaintiffs who assert claims in an MDL have to be ready and willing to serve as bellwether plaintiffs, if called upon to do so. The claims of those plaintiffs who refuse to do so, when called upon, will be dismissed with prejudice.

The reasoning was that the parties had expended much time, effort, and money into readying the case involving the Bell trailer for trial. Based on the decisions of the plaintiffs, all the pre-trial work and discovery relating to the Bell trailer was rendered utterly useless. All of the resources spent in preparing this case for trial had been wasted. Because the parties had to choose another bellwether plaintiff, which will involve conducting discovery on an entirely different trailer and readying a completely different case for trial, the claims of Mr. Bell, like those of Mrs. Bell, should be dismissed with prejudice.   Not doing so would possibly cause other bellwether plaintiffs to “jump ship” at the last minute; this is obviously a tactic that any MDL court does not wish to encourage.

On appeal the Fifth Circuit found that it was not hard to justify the court’s decision to deny the plaintiff’s alternative motions. Raymond Bell’s attempt to withdraw as plaintiff or to continue seemed contrived, especially in light of his mother’s less than diligent prosecution of a claim bearing on the same trailer. Nothing in his motion papers distinguished Bell’s inconvenience in going forward with trial from the inconvenience that any plaintiff may suffer from having to try the case he has filed. The case had been pending for months, the parties had been actively preparing for trial.

Plain legal prejudice would have accrued to defendants from an unconditional dismissal of Raymond Bell’s case without prejudice. The court would have to realign Keystone RV with a new bellwether plaintiff who resided in a different trailer and whose suit would almost surely add a different group of subsidiary defendants. Not only would Bell be able to refile his suit, but the appellees were in no way spared the continuing costs of legal defense. Defendants’  investment in trial preparation for Bell’s case was wasted. Moreover, other plaintiffs in the FEMA trailer formaldehyde litigation were disadvantaged by the tactics employed on Bell’s behalf as they were delayed in acquiring trial information important for their cases. The size and scope of this multiparty litigation inescapably heightened the prejudice from Bell’s motion to dismiss.

Bottom line is that Bell wanted to have his cake and eat it too by withdrawing from a bellwether
trial and then sitting back to await the outcome of another plaintiff’s experience against the appellees. When a plaintiff files any court case, however, sitting back is no option. He must be prepared to undergo the costs, psychological, economic and otherwise, that litigation entails. That the plaintiff becomes one of a mass of thousands pursuing particular defendants lends urgency to this reality. Courts must be exceedingly wary of mass litigation in which plaintiffs are unwilling to move their cases to trial. Any individual case may be selected as a bellwether, and no plaintiff has the right to avoid the obligation to proceed with his own suit, if so selected.