Bellwether Cases: Fair or Foul for Participants?

In complex cases involving large numbers of persons, courts struggle to manage their resources. If a drug is alleged to have caused injuries to millions of patients, potentially each individual could bring a lawsuit.

This would overwhelm most court systems. In response to mass tort litigation, such as Vioxx or the Toyota unintended acceleration cases, the courts have developed a system known as Multidistrict Litigation (MDL).

A panel of judges assigns cases when it appears that an issue with strong common features has happened. This allows a single judge to control the litigation for all similarly situated cases. This conserves judicial resources and prevents the duplication of the same issues being tried in hundreds of courts nationwide.

Because these cases involve potentially thousands, if not millions, of claimants, with hundreds of lawyers, to further improve the efficiency of the process, courts also use "Bellwether" cases, where a representative sample of the overall pool of cases is chosen to be tried.

The Bellwether Case

These cases are tried in an effort to move the parties to settlement. Trials are time consuming and expensive, and thousands of trials involve massive expenditures of both time and money. If a dozen cases can be tried, the real issues, the strengths and weakness, can become clearer, and motivate the parties to a reasonable settlement.

A Reuter's story discusses the developments in Fosamax osteoporosis treatment drug. Plaintiffs recently lost another bellwether trial against Merck in a New York federal court. Merck has won four of the five trials.

The jury decided there was insufficient evidence that Fosamax caused a Florida women's jaw damage.

Merck still faces 1,600 cases involving Fosamax. An attorney in the recent loss complained of court imposed rules on the bellwether cases. He is quoted as saying, "I've been trying these cases with one arm tied behind my back and another holding a bag of concrete."

Trend or Aberration?

There are no disinterested parties in litigation; even the judges have an interest in cases moving. Depending on which side is asked, these cases indicate the litigation is baseless or that valid claims are being tossed out due to technical, procedural rulings by the court that makes it impossible for plaintiffs to prevail.

Because of the complexity of these issues, it may be impossible to determine with absolute fairness. Defendants do not always win, as Merck's loss of a majority of bellwether cases in the Vioxx litigation proved, which led to a $4.85 billion settlement.

Source: Reuters, Analysis: Corporate defendants rack up wins in "test" trials, Moira Herbst, 10/31/11