Bellwether trial selection in multi-district litigation: empirical evidence in favor of random selection

Litigation Alert

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In mass torts with numerous plaintiffs, courts increasingly select representative or “bellwether” plaintiffs for initial trials to give the parties information about the strength of their claims and defenses, with the goal of applying the results from those initial trials to the docket as a whole.

In an article entitled “Bellwether Trial Selection in Multi-District Litigation: Empirical Evidence in Favor of Random Selection” just published in the Akron Law Review, Loren Brown (Co-Chair of DLA Piper’s US Litigation practice, who is based in New York), Matt Holian (a Litigation partner in DLA Piper’s Boston office) and Arindam Ghosh (a former consultant to the firm, now at the Federal Trade Commission) analyze the results of different bellwether selection methods used in a multidistrict product liability litigation, in which plaintiffs selected some plaintiffs, the defense selected some plaintiffs and some plaintiffs were selected randomly.

The authors found that plaintiffs’ trial selections differed significantly from the random selections, while the defense selections did not. As a result, they concluded that random selections are the most likely to yield representative plaintiffs, while party selection methods may disadvantage the defense disproportionately and undermine the fairness required for the bellwether process to be effective.

The article appears to be the first empirical evidence evaluating the respective selection methods, which may be useful for clients facing bellwether trials in multi-district litigation.

Loren and Matt would welcome the opportunity to speak with you further about the article. Please feel free to contact either of them or your client relationship partner.

Read the article.

DLA Piper thanks the Akron Law Review for its permission to use the article “Bellwether Trial Selection in Multi-District Litigation.”