Herding Sheep-Shaped Cats (And Other Creatures): Bellwether Trial Selection as Sampling to Estimate the Settlement Value of Mass Tort MDLs
Soorim (Cat) Song
The multidistrict litigation (MDL) process allows the nationwide consolidation of cases that share certain factual issues. Mass tort claims are often consolidated as MDLs and eventually resolved through mass settlement due to individual issues of causation and defenses that prevent class certification. Before settlement, courts and parties often select a small subset of cases to be tried in ‘bellwether trials’ that are intended to provide information about remaining claims in the MDL, including the circumstances of individual plaintiffs and the theories of liability and causation. However, due to practical limitations on the total number of cases that can be tried and the lack of common issues that predominate, bellwether trials cannot be used as a comprehensive overview of the MDL without exposing parties to the risk of inadequate settlement, which is exacerbated when cases are selected by parties. This Note proposes that the role of bellwether trials in a mass tort MDL should be limited to estimation of the settlement amount, and that the cases should be a representative sample selected through statistical methods. Through a scheme that combines simulation with random and stratified sampling, bellwether trials can provide litigants with a high-quality estimate of the total settlement value, which can in turn be allocated among plaintiffs according to extraneous information obtained outside the courts.
