What happens at a bellwether trial?
The outcome of the initial bellwether trial will also be a significant determining factor or how long the legal process will take. If the early bellwether trial results indicate considerable success for the plaintiffs, the other party will be forced into a settlement with all other cases. Can My Case Be Used as a Bellwether Trial?
What is a bellwether lawsuit?
Usually, a bellwether case is chosen from a larger pool of cases that each side proposes. The lawsuits that will make it to trial are selected based on how similar they are to the rest of the MDL cases. In other words, they’re chosen because they are a good representation of the majority of the lawsuits.
What is a bellwether trial in mass tort law?
Bellwether trials occur when many plaintiffs file lawsuits against the same party or group of parties. These cases act as test cases in extensive mass tort litigation to give everyone involved a clear idea of the compensation each person should receive.
What is an example of a bellwether case?
1.3 An example of a bellwether trial An example of a bellwether case happened in the aftermath of the September 11thattacks. Congress passed a law2that established a compensation fund for the victims of the attacks.
How do bellwether trials work?
A bellwether trial is a sample trial that gives everyone involved a sense of what the future holds. It indicates trends in litigation and can help plaintiffs and defendants determine how they want to proceed. Bellwether trials include a smaller subset from a large group of plaintiffs.
How are bellwether trials selected?
The judge in the Drug X MDL starts the bellwether selection process by creating an initial pool of 60 bellwether candidate cases. 20 of these cases are randomly selected by a computer. 20 are selected by lawyers for the plaintiffs and 20 are picked by the defense.
What does bellwether mean in a lawsuit?
A bellwether trial is a test trial involving a case that derives from a large pool of lawsuits filed against the same party (or group of parties). The bellwether plaintiff is typically chosen because he/she is a typical representative of a large group.
What percent of cases are settled?
According to a paper from the American Judges Association, as many as 97 percent of civil cases that are filed are resolved other than by a trial. While some of these cases are dismissed or are resolved through other means, the vast majority of the cases settle.
Do cases settle before bellwether trials?
As the bellwether pool is selected, the plaintiffs essentially show their hand. By picking cases they feel will resolve favorably, they provide an easy opportunity for defendants to selectively settle the best cases before they ever go before a bellwether jury.
Are bellwether trials binding?
While bellwether trials assist in predicting possible outcomes in future litigations, the verdict issued in a bellwether trial is not binding on the remaining cases in the MDL pool nor does it guarantee the same verdict across the MDL.
What happens after a MDL?
Cases that are filed after the formation of the MDL can later be transferred also—these are called tag-along cases. The MDL judge presides over pretrial motions, discovery proceedings, and settlement conferences.
What bellwether means?
one that takes the lead or initiative: one that takes the lead or initiative : leader also : an indicator of trends.
Where does the term bellwether come from?
The term derives from the Middle English bellewether, which referred to the practice of placing a bell around the neck of a castrated ram (a wether) leading a flock of sheep. A shepherd could then note the movements of the animals by hearing the bell, even when the flock was not in sight.
Why does a judge prefer a settlement over a trial?
Settlements are usually faster and more cost-efficient than trials. They are also less stressful for the accident victim who would not need to testify in front of a judge or hear the defence attempt to minimize their injuries and symptoms.
Why do some cases not settle?
Once lawyers take a case, there are many reasons why a case does not get settled: The plaintiff's lawyer is too high in her evaluation of the value of the case. The plaintiff's lawyer is not too high in her evaluation of the value of the case, but the plaintiff decides to not follow the recommendation of the lawyer.
What is the usual result of a settlement?
After a case is settled, meaning that the case did not go to trial, the attorneys receive the settlement funds, prepare a final closing statement, and give the money to their clients. Once the attorney gets the settlement check, the clients will also receive their balance check.
How many 3M bellwether trials are there?
In the third bellwether trial, the jury found the company over 60% responsible for the veteran's hearing loss and awarded the plaintiff $1.7 million in compensation. 3M was party to 16 bellwether trials, of which ten ended favorably for the plaintiffs and six in favor of 3M.
What is a bellwether seat in politics?
In politics, the term bellwether often applies in a metaphorical sense to characterize a geographic region where political tendencies match in microcosm those of a wider area, such that the result of an election in the former region might predict the eventual result in the latter.
What is the status of the 3M earplug lawsuit?
August 26, 2022 Update: Today, Judge Graham ruled that 3M will not get bankruptcy protection because its subsidiary declared bankruptcy. The judge found that Aearo's bankruptcy restructuring could proceed along with the continuation of the 3M earplug lawsuits.
Monday, June 15, 2015
Prof. Zimmerman is guest blogging on Prawfsblawg, where this post originally appeared.
The Bellwether Settlement
Prof. Zimmerman is guest blogging on Prawfsblawg, where this post originally appeared.
What is a bellwether trial?
A bellwether trial is a test trial consisting of a small group of lawsuits that are similar to other cases in the MDL. The chosen cases are brought to trial first. Basically, bellwether cases serve as a benchmark for the future of the litigation as a whole. These trials give everyone a sense of how the legal proceedings may turn out.
Mass Torts And Multidistrict Litigation
Mass tort cases are brought on by multiple plaintiffs who have a similar case against makers of defective drugs or medical devices.
The Bellwether Process: How a Case Gets Chosen
In the process of selecting bellwether cases, attorneys from both sides as well as the judge presiding over the MDL are involved. Usually, a bellwether case is chosen from a larger pool of cases that each side proposes.
The Significance Of A Bellwether Case
A bellwether trial is a test case that serves as an important tool in handling a large pool of lawsuits. Its outcome can inform both parties involved if they will proceed with litigation or settle their claims.
What does Bellwether Settlement mean?
After all, what do bellwether settlements mean when the procedures and outcomes lack any connection with a jury trial? By dispensing with the jury entirely, the parties arguably give up procedures that are thought to encourage vigorous advocacy before neutral fact-finders. The prospect of a jury trial also promotes fidelity to law by ensuring that settlements correspond to the merits of the dispute, as well as provides a democratic bulwark against unelected judges who may harbor biases about what makes for a fair outcome.
Why do courts use bellwether trials?
For years, courts have relied on "bellwether trials" to resolve large numbers of similar lawsuits. In a bellwether trial, the parties select a small group of cases for jury trial out of a larger pool of similar claims. Steering committees of plaintiff and defense lawyers to then use information gleaned from those trials to resolve the remaining cases. Bellwether trials have been used in many high-profile cases -- from Vioxx to General Motors's defective ignition switches. They have become incredibly popular, too. In 2004, the Manual for Complex Litigation, which provides the influential guidance for federal courts confronting big cases, endorsed bellwether trials. Today, case management orders in federal multidistrict litigation often include some kind of bellwether trial plan.
How long does it take to get a bellwether mediation?
In In re Stryker Rejuvenate & ABG II Modular Hip Implant Litigation, the bellwether mediation process took place in two stages over 18 months. First, the court and lead attorneys each selected a representative sample of cases based on the parties' age, injury, surgeries, and postoperative recovery. The low cost of mediations, compared to trial, meant that the parties could conduct many of them. Accordingly, a wide variety of plaintiffs and their lawyers participated directly in over 40 separate, individual, and confidential mediations over 18 months .
How much did the Stryker Rejuvenate settlement cost?
Three years ago, in In re Stryker Rejuvenate & ABG II Modular Hip Implant Litigation, lawyers forged a $1 billion global settlement on behalf of nearly 4,000 people with defective hip implants. The final deal looked like many mass tort settlements -- a private settlement facility, using streamlined procedures, would compensate thousands of victims. But the process the parties used to get there did not. The parties did not try a single case. Nor did they head straight to the bargaining table to resolve their dispute in one fell swoop. Rather, parties relied on what the court called an "unprecedented" series of "bellwether mediations."
What is bellwether mediation?
Enter bellwether mediation. In bellwether mediation, no jury decides the merits or value of a case. Rather, the parties -- supervised by the court -- rely on a structured sample of mediated settlements involving representative plaintiffs. The different settlement outcomes, much like a series of bellwether trials, are intended to offer the parties crucial "building blocks" of information to globally resolve the remaining cases. In so doing, the process attempts to (1) yield important information about claims, remedies, and strategies that parties often would not share in preparation for a high-stakes trial; (2) avoid outlier verdicts that cause negotiations to break down, threatening a global resolution for all the claims; and (3) build trust among counsel in ways that do not usually occur until much later in the litigation process.
Why are bellwether trials important?
They continue to serve a valuable purpose by creating a deliberative, democratic process to determine parties' rights and responsibilities -- not to mention practical leverage to get parties to the bargaining table. But, over the years, bellwether trials have struggled to increase representative outcomes, promote input, and curb strategic behavior between and among counsel.
Do bellwether trials sound like bells?
Still, bellwether trials have not completely lived up to their promise. In fact, bellwethers rarely sound much of a bell at all. Because of the substantial risk and expense associated with "bet-the-company litigation," parties rarely conduct more than a handful of bellwether trials and get very mixed results when they do. Many end up settling on the eve of trial.
How to minimize the risk of a bellwether trial?
Second, the parties could use high–low agreements as a way to minimize the risk, thus offsetting some complaints of parties who would hope to selectively settle rather than try the bellwether case. Third, in conjunction with the information generated by the bellwether trial itself (the value of the verdict, potential trial packages, and the like), the values of the high–low agreements could also be required to be made public. This, in addition to the value of the verdict, would provide useful information for all parties involved in the bellwether process for future settlement.
How does strategic conduct affect the bellwether trial?
By engaging in strategic conduct, however, parties are able to “selectively settle” plaintiff picks in the bellwether-trial process. For instance, rather than trying a representative subset of cases, the defendant could choose to settle all of the cases that carry the most risk if taken to trial. In turn, only those cases that are most favorable to the defendant are tried. This allows defendants to manipulate and distort the information that results from this process, which destroys much of the intended benefit of the process.
What happens if settlement values are made public?
Further, if settlement values are made public, defendants may no longer be willing to settle the cases before trial for the value they would have if the settlements had remained confidential. It seems likely that part of the value of the settlement for the defendants is not only avoiding a large verdict, but also preventing the information from getting out in the first place. If avoiding having verdicts or settlement values become public is largely the motivation underlying selective settlement, then removing this motivation may remove the incentive to settle bellwether cases before they go to trial.
What is a plaintiff pick case?
These cases are typically composed of “plaintiff pick” and “defendant pick” cases, and they are supposed to represent the universe of claims ranging from bad to good. By picking “plaintiff” and “defense” cases, ideally a bias towards an overall plaintiff- or defendant-friendly series of bellwethers is avoided.
Should bellwether trials be reformed?
If bellwether trials exist to provide accurate informational benefits for the use of all parties in the MDL, and the information is distorted by these settlements, then either (1) the bellwether process should be abandoned or more cautiously used, or (2) the bellwether process should be reformed.
Is there a problem with bellwether process?
The problem of defendants settling cases before the plaintiff picks reach trial at least has the potential to undermine the entire point of the bellwether process. If bellwether trials exist to provide accurate informational benefits for the use of all parties in the MDL, and the information is distorted by these settlements, then either (1) the bellwether process should be abandoned or more cautiously used, or (2) the bellwether process should be reformed. A number of potential solutions have been offered, but none seem to fully address this problem.
Is selective settlement real?
The problem of selective settlement is real and has been recognized by both practitioners and academics . If the integrity of the bellwether process is to be preserved, it needs to be addressed. One obvious solution is to abandon the bellwether-trial process entirely. But the problem of selective settlement seems neither so great that it justifies abandoning the process, nor so great that it remains unsolvable.
Why settle a personal injury case?
Settling can avoid the expense, time and uncertainty of going to trial. Even though trials are unpredictable, the defendant will try to gauge your chances of winning at trial before making a settlement offer. Similarly, when you're deciding whether to accept the offer or negotiate for more, you should consider the strength of your case—for instance, whether you have solid evidence that the product was defective or unreasonably dangerous, and a clear medical diagnosis linking your harm to the product.
What happens if there is a settlement?
If there's a settlement, it will apply to all members of the class (unless they've taken steps to opt out). The judge must approve the settlement as adequate and fair to the class members. However, the injuries caused by some defective or dangerous products can be very different from one person to the next.
What is an MDL case?
In an MDL, after a number of individual plaintiffs file separate lawsuits against the same defendant over similar facts (such as being injured after using the same product), the cases are consolidated and transferred to one federal judge, who oversees the discovery process and works to encourage settlement.
How to level the playing field in a class action lawsuit?
One way to level the playing field is to join with a large number of other plaintiffs in a single class action lawsuit against the product manufacturer or distributor. In order to qualify for a class action, the plaintiffs must have suffered the same type of injury.
What happens when there are trials in other cases?
When there have been trials in other cases involving the same product that caused your illness or injuries, both you and the defendant might use the outcome of those trials as a rough gauge for estimating the settlement value of your case. For instance, if other plaintiffs with similar circumstances lost their cases, the defendant might offer you a small settlement—or none at all. But if those trials have resulted in jaw-dropping awards for the plaintiffs, that probably puts you in a stronger position to negotiate a substantial settlement amount.
What will both sides take into account when deciding if you would win a case?
Both sides will take into account the chances that you would win your case if you went to trial, as well as the extent of your damages (what you've suffered or lost as a result of using the defective or dangerous product).
What happens if you don't agree to a settlement?
If you don't agree to the settlement—or if there isn't a global settlement at all—the judge will send your case back to the original court for a trial. Unlike in class action lawsuits, the judge doesn't usually need to approve the global settlement in an MDL.
Why did the judicial system design bellwether trials?
The judicial system designed bellwether trials to “test the waters,” so to speak, to determine how courts and juries will decide cases with similar injuries and facts.
How does Bellwether trial work?
After painstakingly sifting through facts from all of the cases, attorneys for both the plaintiffs and defendants submit potential bellwether cases to the court. Ultimately, the court decides which cases will go to trial.
What is Onderlaw?
OnderLaw represents clients in some of the largest mass tort cases taking place in the United States today. Our attorneys are fighting for the rights — and sometimes lives — of people in cases that involve 3M Earplugs, Johnson & Johnson Talc, Bayer-Monsanto Roundup, and numerous dangerous drugs and defective medical devices. In all of these cases, bellwether trials are an important part of the process.
How long does it take to get a mass tort case?
Many mass torts involve tens of thousands of plaintiffs. If each case went to trial individually, the process would literally take hundreds of years. Of course, that would not be practical, and such a timeline would deny justice to those who deserve it.
How to contact Onderlaw?
If you have been injured by a defective product or dangerous drug, or if someone else is responsible for causing injury or death to someone you love, contact OnderLaw at 314-963-9000, or click here for a free, no-obligation consultation. We don’t get paid unless you win your case. We will fight for you.
Why are corporations hit hard enough?
Because we have been willing to fight the good fight, corporations that make billions of dollars in profits have been hit hard enough in court to change the way they do business. They’ve been forced to make responsible decisions to protect consumers, and they’ve been held accountable to the public for what they’ve done.
Do plaintiffs know what settlement they will get?
Of course, there is no guarantee that the defendants will settle, and plaintiffs’ attorneys have no way of knowing what amount of compensation, if any, each client will receive.