Today’s guest post is by the Reed Smith team of Shana E. Russo, Jennifer A. Eppensteiner, and Kathy I. Oviedo. It is about multi-district litigation (“MDL”) practice, and specifically, compares and contrasts various ways of selecting plaintiffs for possible bellwether trials. It also useful in providing links to orders entered in a
This post comes from the Cozen O’Connor side of the blog.
After two months, the third bellwether trial in the Pinnacle Hip Implant MDL is coming to an end. The jury heard closing arguments yesterday and began deliberating late in the afternoon. They start up again this morning.
Much like the second bellwether trial, this trial was not without controversy. The signs were ominous before it began. Two weeks before trial, the court issued a sua sponte order consolidating six separate plaintiffs for the trial, close to any defendant’s worst nightmare. The court also ruled that plaintiffs could serve notices that would require company witnesses who were outside the geographic reach of the court to nonetheless testify live via satellite. Defendants could not substitute trial depositions for the satellite testimony, even though trial depositions had already been taken, complete with cross-examination of the witnesses by plaintiffs’ counsel. This order was sufficiently controversial that a Fifth Circuit judge, while concurring with his colleagues’ decision to reject defendants’ writ of mandamus challenging the order, chose to issue a one-sentence concurring opinion saying that the MDL judge got it wrong.
This post comes from the non-Reed Smith side of the blog.
We suggested in our most recent post on the Pinnacle Hip Implant MDL that, the sooner the Fifth Circuit weighs in on the evidentiary and procedural concerns being raised by the defense, the better. The defense is trying for sooner.
On Thursday, the defense filed in the Fifth Circuit a Petition for a Writ of Mandamus to the MDL court. This isn’t a petition asking the Fifth Circuit to review the evidentiary and procedural rulings that the defense has been raising since the second bellwether trial was scheduled. It couldn’t do that. But the petition does ask the Fifth Circuit to order the MDL court to do the things that are necessary to allow the Fifth Circuit to conduct that review. And it asks that, in the meantime, the Fifth Circuit stop the bellwether process:
Petitioners seek a writ from this Court directing the district court to: (1) vacate its Order on Bellwether Trials, dated June 10, 2016, which scheduled a trial for September 6, 2016 (Exhibit A); (2) rule promptly on petitioners’ pending post-trial motions in the last bellwether trial; and (3) enter judgment in those cases so that an appeal may follow, see Fed. R. Civ. P. 58(b).
Petition at 1.
It seems that a significant amount of paperwork has been piling up on the MDL court’s desk. The MDL court hasn’t entered final judgment on the first bellwether trial, even though that verdict will soon be two years old. The MDL court has also not ruled on the post-trial motions from, or entered judgment on, the second bellwether trial, the one that raised so many procedural and evidentiary concerns and resulted in a half-billion dollar verdict.
We wrote recently on Lone Pine orders and the role they might play in today’s world of inventory litigation. You know what we are referring to – the mass litigation that occupies much of our time, where some people would say that the number of cases involving similar products is more important than whether any particular case has arguable merit. We are not among the people who subscribe to that view, but it got us to thinking about resolution, and particularly about trials, and particularly about bellwether trials, which have become common in multidistrict litigation and other coordinated pretrial proceedings. Bellwether trials are supposed to result in bellwether verdicts, which are intended to provide benchmarks against which to measure the resolution value of similar cases.
It is an imperfect concept, which we have noted multiple times (including here and here ). But it is the system that we have, and it has gained both legitimacy and traction. Following a number of trials in the Vioxx MDL – an MDL that saw the resolution of a great many cases – Judge Fallon and his clerks published an article in the Tulane Law Review (available here) providing very thoughtful commentary on the entire process. For our part, we have participated in the selection and trial of bellwether cases, and sometimes multiple claims get resolved in the aftermath, and sometimes they do not.
Which leads to our question for today: Has the bellwether trial process lost its luster? We have not yet formed a strong opinion one way or another, but we raise the issue now because of an order entered earlier this month in the Cook Medical pelvic repair system MDL in the Southern District of West Virginia. See Pretrial Order #59, In re Cook Medical, Inc. Pelvic Repair System Prods. Liab. Litig., MDL No. 2440, 2015 WL 3385719 (S.D. W. Va. May 19, 2015). There, the district court set up a bellwether trial process that largely followed the approach that Judge Fallon and his co-authors set forth in their article. The court first selected a pool of 30 cases to be worked up in discovery, with each side selecting 15 cases. That was about 20 percent of the then-pending cases, which is a significant number, and from that group the district court selected four “bellwether cases” that would be tried to verdict and provide the benchmarks that the bellwether process aims to provide. (Id. at pp. 1-2)