Friday, January 19, 2007

Beck & Herrmann on Bellwether Trials

Over at the Drug & Device Law Blog, defense lawyers Jim Beck and Mark Herrmann have posted Ruminations on bellwether trials, explaining why they favor bellwether trials in MDL or statewide coordinated proceedings, despite the shortcomings of bellwethers as an approach to resolving mass tort litigation.

On the one hand, they note that trying a few cases does not provide any statistically significant information, both because the sample size is too small and because individual case variations are too great, "so a few early trial results aren't particularly meaningful."  Moreover, early trial results may actually hinder reaching a global settlement:  "A big plaintiff's verdict may unreasonably raise the expectations of the plaintiffs' bar; a resounding defense win may make the defense too stubborn."  But then -- correctly, in my view -- they turn to the other hand:

On the other hand, what's the alternative to holding bellwether trials? Discovering up 5000 cases simultaneously without trying any? That's a disaster. Discovering up 5000 cases and setting them all for trial? That's silly (and impossible). Cobbling together classwide trials in situations that don't merit them? That's both bad law and bad policy. Trying to devise a "trial by statistics" that doesn't suffer from the due process and other concerns discussed by the Fifth Circuit in Cimino v. Raymark, 151 F.3d 297 (5th Cir. 1998), and elsewhere? That's a procedural morass.

And bellwether trials do provide some information. They force plaintiffs' counsel to do the work needed to prepare their standard trial package, and the early trials give some sense of how sound that package is. The bellwether trials force the court to resolve legal questions that arise only as a trial actually approaches and witnesses begin to take the stand. And the bellwether trials test the expert witnesses and give both parties a sense of how much it costs to try a case.

Finally, for a judge who's considering certifying a class, trying one (or several) bellwether trials might be very informative. There's nothing like a real trial to help assess whether plaintiff's proposed class trial plan is workable, whether claims and defenses are in fact individualized, and to shed light on other class certification issues. In some categories of cases, one could reasonably argue that judges should be required to try a case or two before deciding to certify a class.

Bellwether trials are not the perfect way to resolve mass torts, but they're basically all that an MDL judge has to offer. Until someone suggests a viable alternative, we'll settle for the best that's available.

It was Voltaire who warned that we mustn't allow the perfect to become the enemy of the good ("Le mieux est l'ennemi du bien.").  Nowhere is that advice more apt than in trying to find sensible ways to resolve mass torts.  Informal bellwether trials are an imperfect, messy way of trying to move mass tort litigation forward while generating information to facilitate settlement.  But aren't Beck and Herrmann exactly correct that for much mass tort litigation, bellwether trials are less imperfect than the available alternatives?


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