The defendant in a medical device MDL recently flagged an important and thorny issue that impacts many if not most MDL’s.  And it has to do with bellwether trials and the selection of bellwether plaintiffs.

As we have noted, bellwethers come from the notion that it is highly unlikely, sometimes impossible, that all or even most cases in a multidistrict litigation will go to trial.  The theory is that properly selected bellwether plaintiffs can provide crucial information for the court and the parties that can contribute meaningfully to resolution of the overall litigation.  The selection of bellwether plaintiffs, accordingly, can advance or retard this goal.

Courts and commentators have identified all measure of bellwether selection processes, using multiple different criteria, ranging from random selection, to selection by the court, to suggestions by the parties for selection by the court, a draft system of selection by the parties, and more.  Under almost any selection process, a potential monkey wrench toss occurs based on the fact that a selected plaintiff may, for many reasons, decide not to pursue his or her claim.  Particularly, if a selected plaintiff would not be a good strategic choice for plaintiffs’ counsel or the other plaintiffs, there is tremendous incentive to abandon the claim in some fashion rather than have the trial.

Such abandonments/dismissals create a number of issues, with concerns of plaintiffs gaming the system, of remaining cases not meeting as well the goals of the bellwether process, and of delay. The latter arises because, often, only a subset of cases within the MDL are selected for case-specific discovery, and sometimes only a further subset of those are selected for full trial work-up. Thus the loss of bellwether cases to voluntary dismissal can necessitate a further round of work.  For example in In re: Cook Medical, Inc. Pelvic Repair System Products Liability Litigation, MDL No. 2440 (S.D. W.Va. 5/19/15) (responding to serial abandonment by plaintiffs of their own selections by ordering 253 more cases into the pool).

Defendants’ brief in In Re: Zimmer Nexgen Knee Implant Products Liability Litigation, No. 1:11-cv-05468 (N.D. Ill.) is instructive: apparently more than a dozen bellwether plaintiffs were abandoned as they came up for trial. MDL courts have employed various methods to try to minimize this, such as use of Lone Pine-type orders, loss of draft picks or extra draft picks to the other side (so instead of alternating plaintiff and defendant choices, there may be two selections in a row by one side). None of those procedures are fully effective.

Here, defendant moved to compel participation (leading to dismissal); and then moved to preclude any future withdrawal or dismissal that was linked to any failure on the part of the plaintiff attorney to timely screen the case thoroughly.

It will be interesting to see the reaction and further development of deterrence.