- Categorizing the cases
- Determining which categories should get a bellwether trial
- Determining which cases in that category make good bellwethers
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Wednesday, May 1, 2019
Selecting Cases for Early Trials in Multidistrict Litigation: Which Way Will the Bellwethers Go?
Parties engaged in multidistrict litigation (MDL) face a crucial decision: which case or cases should be tried first? For both plaintiffs and defendants, bellwethers — the first trial or trials from the similar cases making up the MDL — can determine how the rest of the cases proceed. One current headlining case — the prescription opioid MDL pending before Judge Polster in federal district court in Ohio — shows both how hard it is to select bellwethers and why bellwethers matter.
Plaintiffs and defendants have long debated about bellwether trial selection, with each side vying to select the case or cases that will allow them to test their theories and, hopefully, achieve a good outcome. But modern MDLs like the prescription opioid litigation can involve thousands of cases, which makes choosing more complicated. Here we look at how courts and parties cull the cases to select bellwethers and then evaluate how that selection may affect the outcomes of the MDL.
Selecting Bellwether Cases for Trial
While the bellwether selection process may vary in different MDLs, the process usually involves three parts:
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