If you’ve followed news about Fosamax lately, you’ve probably heard the term “bellwether trial” thrown around. The judge in that case has ordered two more bellwether trials in addition to the five that have either already been decided or will be decided later this year. So…
Basically, a bellwether trial is a trial to indicate future trends in a specific litigation. They are used when a large group of plaintiffs have filed suit based on the same theory or claim and the only feasible way to handle the caseload is through a bellwether trial.
Think of it this way—NASA has flight simulators. Marketing departments have focus groups and in-home trials. Pharmaceutical companies have clinical trials. And your local car dealership hands you the keys for a test drive. Law schools may have mock trials, but the only way to really get a sense of how a major lawsuit is going to play out is the bellwether trial.
In a bellwether trial, a small group of plaintiffs is chosen to represent the group. Those plaintiffs are chosen because their issues are common amongst all the plaintiffs. Most large-scale lawsuits, such as asbestos or Fosamax, will run three to five bellwether trials, although the judge can order more or fewer.
Also, because a major lawsuit can take a long time to wind its way through the legal process, the bellwether trials become a key milestone for both plaintiffs and defendants–and are, therefore, eagerly awaited by all involved. For example, talk of Yaz lawsuits (or Yasmin lawsuits for that matter) has been going on for a while. But the first Yaz bellwether trial is scheduled to take place later this year, on September 12, 2011 for pulmonary embolism side effects; that will be followed by one set for January 9, 2012 and finally a Yaz thromboembolic case on April 2, 2011. Given such a drawn out timeline, it’s no wonder everyone looks to the bellwether trials to try to get a sense of where their own case might stand and/or how it might turn out…
That’s right—the bellwether trial is a bit of a litmus test. The bellwether trials allow both the plaintiffs’ attorneys and those of the defendants to predict how future court cases will go. If, for example, all five bellwether cases are found for the plaintiffs, the defendant might take that as a sign that they will lose most, if not all, future litigation and settle with all the plaintiffs rather than facing potentially high jury awards and court costs.
If three of five cases are determined in favor of the plaintiff, the defendant might take that into consideration and offer a smaller settlement or not settle at all. Meanwhile, plaintiffs can determine whether it’s worth it to continue with their individual cases.
At a bellwether trial, both sides get to see what evidence the other side has, how the courts (that is, how the juries or judges) are finding and, if they are finding for the plaintiffs, how high the awards are. Losing a bellwether case does not necessarily mean the defendants won’t pay anything or offer to settle. Based on the evidence against them, they may still decide to settle rather than facing the cost of litigation. But the bellwether trials give both sides in a lawsuit an idea of how future litigation might go.