Utilizing Bellwether in Mass Torts in the United States : A Shift from Class Action to Multidistrict Litigation

Abstract

Mass tort litigation emerges when an identifiable event or product injures a large number of people or damages their property. Many people have brought class action lawsuits for claiming damages. The emergence of class certification hurdles for litigants since the end of 1990s has prompted a shift from the use of class action to the use of multidistrict litigation for the resolution of mass tort litigation in the federal courts. Without class certifications, parties are forced to look for other procedures for managing mass tort litigation. Consolidating most or all individual cases through multidistrict litigation may be feasible in mass tort litigation. The resulting efficiencies may be time and cost effective. In cases with large numbers of plaintiffs, the transferee court may consider appointing liaison or lead counsels to manage conflicts between parties. Another option is to order a bellwether trial to select a statistically significant sample of cases for trial and attempt to extrapolate results informally. This procedure can inform settlement negotiations of non-bellwether parties by providing guidance on how similar claims may fare before juries. But unlike the treatment of class actions, there are no safeguards for keeping the fairness, adequacy, or reasonableness of the settlements.