July 7, 2009
Latest Use of Bellwether Trials
Bellwether trials are gaining popularity, particularly in Louisiana. After Judge Fallon used the trials to help establish settlement values in the Vioxx litigation, Judge Kurt D. Engelhardt is proposing their use in the litigation over formaldehyde-laden FEMA trailers (FEMA Trailer Formaldehyde Prods. Liab. Litig, MDL No. 1873, E.D. La.). As is typical in bellwether trials, the jury's opinion is advisory only and does not bind the parties for purposes of preclusion. The government has strongly opposed a jury trial given that the jury pool is likely to have strong feelings about the government's handling of pre- and post-Katrina events. Plaintiffs claim that the government-supplied trailers contained toxic materials, including formaldehyde.
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