Our mass tort clients frequently ask us about the trial selection process. The sheer volume of mass tort cases requires case management procedures to ensure efficiency with discovery and pre-trial matters. Case Management Orders or “CMOs” are orders that the court utilizes to guarantee that certain tasks are completed on a timetable to prepare cases for trial. CMOs often vary and can include issues ranging from status conference topics, discovery plans, selection of lead, liaison and coordinating counsel, preservations orders and many other subject matters.
CMOs will frequently call for “waves” or “phases” of discovery. Certain cases may be selected for discovery or pre-trial work-up in different phases. For example, a Judge may issue an order requiring 100 cases to be worked up to phase I, which could be initial discovery, such as an exchange of Plaintiff Fact Sheets or Profile Forms and may issue and order that an additional 50 cases be worked up to phase II, which could be an initial discovery exchange and depositions of all parties and fact witnesses.
The Court may select the cases to be worked up for these phases in a variety of ways. Some litigations have shown judges giving preference to elderly, very ill and living plaintiffs, as was the case in the fen-phen litigation. Other judges may select cases that they believe are representative of the vast majority of cases. The Judge may consider injury types, damages and causation. These cases are typically referred to as “bellwether” cases.
Although the selection of “bellwether” cases may vary, it generally involves Plaintiffs’ counsel selecting cases and Defendants’ counsel selecting cases. As you can imagine, Plaintiffs’ counsel will typically choose their best cases and Defendants’ counsel will choose Plaintiffs’ worst cases. Once those cases have been selected, the Judge will then narrow the cases and choose several Plaintiff pick bellwether cases and several Defendant pick bellwether cases. This is the most common scenario in Multi-District Litigations or “MDLs” (you can see our previous post on what is an MDL here).
In many litigations, there are “MDLs” and state court consolidations. This has been a much more frequent occurrence in recent years, as seen in the DePuy ASR Litigation, Zoloft Birth Defect Litigation, Actos Bladder Cancer Litigation, Yaz Birth Control Litigation and Transvaginal Mesh Litigation. In these cases, Judges will frequently select cases in “FIFO” order, otherwise known as “first in, first out.” Through this process, earliest filed actions proceed first through discovery and trial.
Bellwether cases can have a significant impact on mass tort litigation. They have the power to resolve the entire litigation or they can result in postponement of resolution. For this reason, both sides attempt to put their best foot forward when it comes to trial selection.