Document Type

Article

Disciplines

Litigation

Abstract

When the Judicial Panel on Multidistrict Litigation (JPML) transfers pools of thousands of similar cases pending in different districts to a single district court pursuant to 28 U.S.C. § 1407, the transferee judge needs a speedy and effective means of resolving these multidistrict litigations, or MDLs. Some MDLs, especially those involving products liability claims, are enormous, consisting of tens of thousands or even hundreds of thousands of claims. The MDL statute, however, limits the transferee court’s power to pretrial proceedings. Judges managing MDLs will promote settlement by fast-tracking several cases for trial, either in their own district (if they have jurisdiction) or by transferring these cases back to their district of origin. These fast-tracked cases are known as bellwether trials.

MDL procedures are governed by the MDL statute, the Federal Rules of Civil Procedure, and case law. Judges also have a great deal of discretion in structuring the bellwether trial procedure, and their approaches vary. Successful bellwether trial procedures are often copied by other MDL judges and become a form of “soft” precedent.

There are two dominant methods for selecting bellwether cases. The first method is selection by counsel, in which lawyers for the plaintiffs’ management committee and the defendant each pick the cases the judge will try. The second method is random sampling, in which cases are randomly selected for trial.

This Note presents an empirical review of judicial practices and finds that when judges have smaller case pools, they tend to allow counsel to select bellwether cases. When the case pool exceeds 10,000, judges will use modified random sampling to select bellwether cases. Evaluating the two methods, this Note argues that random sampling is the superior method and should be applied uniformly.

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