“Bellwether” cases are an important case management tool in many MDL proceedings, which typically include numerous individual claims. A bellwether is the sheep that leads the flock, and in an MDL, these lead “test” cases may shed important light on how a jury will react to the parties’ themes, how credible and persuasive their experts are, and how the court views key legal issues.  This information can at times be as, if not more, important as the amount of the actual verdict.  But to shed meaningful light, the bellwether trials must produce a sufficient number of outcomes to provide relevant guidance, given the variety of fact patterns in a typical MDL.  Outcomes in this context might include motions practice, but often does really mean verdicts.

Recently, the judge overseeing the device MDL, In re Cook Filter MDL (amended bellwether), No. 1:14-ml-02570 (MDL S.D. Ind.)(Third Amended CMO #27, 10/26/2020), has had to confront two issues affecting the litigation’s bellwether case management plan.  The first three bellwether cases ended before trial, and now the pandemic is impacting how a new bellwether trial might proceed.  Accordingly, he issued an order amending the bellwether case process, in essence asking the parties to provide additional information for the selection of viable and appropriate bellwethers.

Cases selected for bellwether treatment can go away for any number of reasons, including settlement, voluntary dismissal, and involuntary dismissal (such as summary judgment).  Much has been written about the first two, voluntary ways a defendant or plaintiff may yank a case out of line. This certainly creates opportunities for the parties to try to impact or even manipulate the bellwether process.  More so the plaintiff steering committee, of course, because even if a defendant could offer to settle what it views as a strong bellwether case for the plaintiffs, the plaintiff has to agree. Conversely, plaintiffs could dismiss what they view as weak bellwether cases.  Your humble blogger had the opportunity to serve as a team leader for the second edition of GUIDELINES AND BEST PRACTICES FOR LARGE AND MASS-TORT MDLS (Bolch Judicial Institute, Duke Law School 2d ed. 2018).  The Guidelines note that the transferee judge must carefully consider how the bellwether selection process will work, and how to address cases that drop out of the pool, to minimize the influence of strategic behavior and enhance the value of the bellwether process.

There may be practical  limits to what the MDL court can do about this.  But one lever is the process for selecting a replacement case.  The court might allow the other side to select the replacement from the pool of available cases.  See generally In re FEMA Trailer Formaldahyde Prods. Liab. Litig., 628 F.3d 157, 163-64 (5th Cir. 2010) (discussing a party’s “manipulate[ing] the integrity of the court’s bellwether process” through voluntary dismissal of selected cases). That being said, sometimes when a bellwether case is voluntarily dismissed before trial, the dismissal itself can be of some predictive value, particularly if the court has already made pretrial rulings. Certainly, any repeated voluntary dismissals may be an important signal that the PSC lacks confidence in certain types of cases, or that those types of cases remaining in the MDL are good candidates for dispositive motions.

Regarding involuntary dismissal (e.g. motions practice), again the fact that the bellwether has not gone to verdict does not mean that all important information about the inventory is automatically lost. But, as noted in the Manual for Complex Litigation, the purpose of bellwether trials is to produce a sufficient number of representative verdicts to enable the parties and the court to determine the nature and strength of the claims, whether they can be fairly developed and litigated on a group basis, and what range of values the cases may have if resolution is attempted on a group basis.  An MDL court’s best avenue to minimizing these types of drop-out cases is in the original screening and selection process. Useful, informative Plaintiff Fact Sheets, along with a timely and rigorous fact sheet deadline/enforcement process can help sharpen assessments of the propriety and focus of the bellwether process. It is also important for the MDL court to  select a sufficiently large pool of cases to be individually worked up for possible bellwether trials, recognizing that some will resolve at various points in the bellwether litigation process. And, as noted below, there are some other tools to enhance the process.

So back to Indiana, where the court had granted the defendants’ motion for summary judgment in the first case, based primarily on the statute of repose. Plaintiff voluntarily dismissed the second bellwether, citing rulings on statute of limitations in other IVC Filter cases.  And then the MDL court granted a motion to voluntarily dismiss the third bellwether in line, with prejudice (which is essential to help avoid gamesmanship). After discussion and considering the arguments of all parties, and with due consideration given to the impact of COVID-19 on the ability of the courts to conduct a jury trial in the near term, the MDL court concluded that the MDL would benefit from a  new staged approach to resolving the cases, including initial screening for time-barred cases, hearings on the issue of whether cases in the pool presented a compensable injury, and then moving to new bellwether trials in 2021.

To make this happen, the court directed plaintiffs to conduct a thorough review of the pool of cases to determine if they are barred by the applicable statute of repose or statute of limitations, in light of the prior rulings in this litigation. Those cases get taken out of the pool.  Then, before further significant pre-trial activity occurs, the court will address general procedural and/or substantive issues raised by the parties that may inform the parties of the merit of certain cases, and with the further goal of reducing the number of new filings, resolving certain sub-groups of cases, and thus avoiding unnecessary trial-related  expenses.

Because some of the pool cases implicated the defendant’s position that a certain alleged injury (an asymptomatic perforation alone) does not constitute a compensable injury as a matter of law, the court will tackle this as the next stage, with dismissals to follow if the court should find that asymptomatic perforation does not constitute a compensable injury.  This stage could become a mini-trial or evidentiary hearing, if expert testimony is necessary on the issue. The court also may at its discretion appoint an independent expert to testify at the hearing.

After that, the parties will designate their entries into a new pool, and the court will use random selection to identify 32 cases from the pool lists  constituting the new “Initial Bellwether Discovery Cases.” After an update of records, the parties will get a chance to “strike” 8 cases each from the pool.  Interestingly, any case in the pool as to which a party refuses to waive the venue rights recognized under Lexecon, such a refusal will constitute a strike for that side.  This strikes us (couldn’t resist) as perhaps a kind of unfair penalty or condition on a party exercising its constitutional rights, but may be an effective tactic.  Following that,  each side will get to submit a single brief on the parties’ positions on why any of the remaining cases should or should not be selected as a bellwether trial case.