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One inescapable fact of life in mass tort litigation is the bellwether trial.  In almost every mass tort, at least in federal court, the judge tries to select a representative cross section of the actions that have been filed in order to get a handle on the validity, and thus the value, of the cases and also the strength of our side’s defenses.  There are various different ways of accomplishing this, but any representative method (even letting each side pick its “best cases”) carries with it the risk that the plaintiffs will try to manipulate the bellwether process by sabotaging any cases that they don’t like.  That way they can skew the “value” of the cases actually tried by keeping weak cases (the vast majority of cases in any mass tort) from seeing the light of day prior to settlement.

We don’t see too many appellate cases that shoot down this sort of sabotage of the bellwether trial selection process, so we thought In re FEMA Trailer Formaldehyde Products Liability Litigation, No. 09-31131, slip op. (5th Cir. Dec. 14, 2010), worthy of comment.  We’ll call the case Bell because that’s the name of the malcontent plaintiffs.  The plaintiffs in Bell were, of course, “nominated” as bellwether plaintiffs.  That occurred in April, 2009, with trial to commence in January, 2010.  Because the disposition of a bellwether plaintiff’s case will (and is intended to) affect the value of all the rest of the cases in the mass tort, they assume outsized importance.  Thus, both sides plunged into in-depth discovery of the plaintiffs and their allegedly contaminated trailer.

Then came the sabotage.

Five months after designation, the first of three Bells tried to bail.   Momma Bell refused to cooperate in discovery, failed to submit expert reports and finally dismissed her case with prejudice – the typical way that plaintiffs try to ditch inconvenient bellwether picks.  Slip op. at 3.  Papa Bell, “another resident of the trailer and plaintiff in the suit, refused to serve as the trial plaintiff.”  Id. at 7. That left Sonny Bell, another resident in the same trailer with his own case, so the judge substituted him in order to salvage as much of the already-done case-specific discovery as possible.  Id. at 3.  Sonny came up with a host of excuses the court characterized as “flimsy” in trying to get out of his bellwether role.  Id. at 11.  Even though the judge offered to instruct the jury that any absences from trial would be excused, Sonny Bell refused to go forward.  He sought a voluntary dismissal without prejudice, claiming that the lawyers, not he, had agreed to him replacing Momma as a bellwether.  Id. at 4.

The judge said “Hell no,” and threw him out with prejudice.  The integrity of the MDL process required bellwether plaintiffs to proceed with their cases:

[A]ll plaintiffs who assert claims in this MDL shall be ready and willing to serve as bellwether plaintiffs in this matter, if called upon to do so, as any other plaintiff would be expected to do in an ordinary case. The claims of those plaintiffs who refuse to do so, when called upon, will be dismissed with prejudice.

Slip op. at 4.  Plaintiffs selected as bellwethers were not allowed to “jump ship.”  Id. at 5

Sonny Bell appealed, claiming he had some sort of right to lie in the weeds and participate in an MDL settlement without any risk of ever trying his own case.  The Fifth Circuit affirmed the with prejudice dismissal.

The Fifth Circuit first observed the likelihood that that plaintiffs were trying to sabotage the bellwether process.  “The court selected Bell over the plaintiffs’ alternative choice,” slip op. at 6, and had deliberately chosen “family” cases so that one plaintiff’s hardship would not derail a case.  Id.  In an MDL, once a plaintiff is selected as a bellwether, s/he is obligated to follow through:

It is not hard to justify the court’s decision to deny these alternative motions.  Raymond Bell’s attempt to withdraw as plaintiff or to continue seemed contrived, especially in light of his mother’s less than diligent prosecution of a claim bearing on the same trailer.  Nothing in his motion papers distinguishes Bell’s inconvenience in going forward with trial from the inconvenience that any plaintiff may suffer from having to try the case he has filed. The case had been pending for months, the parties had been actively preparing for trial . . . [so] selection of a substitute bellwether plaintiff would inflict considerable inconvenience on the defendants.

Slip op. at 7-8.

Thus it was proper to penalize any defecting bellwether plaintiff with dismissal with prejudice.  There was lots of prejudice to the defendants – their substantial “investment in trial preparation for Bell’s case was wasted.”  Slip op. at 9.  And it was proper to consider prejudice to the MDL as a whole.  Id. (“size and scope of this multiparty litigation inescapably heightened” the prejudice from the dismissal).

MDL plaintiffs have no right to “sit back” when called forward:

When a plaintiff files any court case, however, sitting back is no option. He must be prepared to undergo the costs, psychological, economic and otherwise, that litigation entails.  That the plaintiff becomes one of a mass of thousands pursuing particular defendants lends urgency to this reality.  Courts must be exceedingly wary of mass litigation in which plaintiffs are unwilling to move their cases to trial.  Any individual case may be selected as a bellwether, and no plaintiff has the right to avoid the obligation to proceed with his own suit, if so selected.

Slip op. at 10 (emphasis added).  It was correct for the MDL court to focus on the overall context of mass litigation in punishing the recalcitrant plaintiff.  “[T]he court correctly saw this case as part of a much larger picture.”  Id. at 11.  Dismissal with prejudice of an AWOL bellwether plaintiff “was not so much a sanction against Bell as a necessary device to maintain an orderly resolution of the massed cases.”  Id.

The result in FEMA Trailer is not everything we would have wanted.  In the overall context of an MDL the mere sacrifice of one of the plaintiff side’s many pawns isn’t going to put a stop to the strategic game playing that causes sabotage of the bellwether trial mix.  But it’s a necessary first step towards truly meaningful sanctions that might.

Any time the plaintiff’s side strategically dismisses one of the bellwethers, the defendant should get to pick the replacement, and counsel should have to pay the defendant’s fees and costs in the dismissed action.  We’ve been there and done that, and the expense of investigating a bellwether case isn’t small.  Finally, an MDL court should also ensure that the defaulting bellwether plaintiffs receive absolutely nothing for their participation – no “walking away money” under the table from anybody for taking one for the team.