The idea of an MDL is to consolidate discovery, figure out what the cases are about, and whether they can be settled without a gazillion trials. So you do some discovery and, more often than not, you try a few cases and see if you can limit or even eliminate trials getting sent back to their home jurisdictions for trial.
But in any piece of mass tort litigation, the quality of the individual cases is going to vary wildly. There are a lot of reasons for this that are case-specific, but one value driver thread that runs through every case is the quality of the plaintiff. There is no question that juries are going to pay more (and may even be more likely to find liability) in cases where you have a plaintiff that the jury likes and respects. So that begs the question: which cases get tried first? Plaintiffs’ lawyers look for good facts with a Mother Teresa-like plaintiff and defendants look for confounding facts Idi Amin-like. This we know.
So which cases are chosen to go first? One of the authors of the defense-oriented Drug and Device Law Blog crashed the plaintiffs’ attorneys’ seminar, Mass Torts Made Perfect, and listened to what the judges who spoke there had to say. This was their summary:
Judges are all over the map on how to select bellwether trials. There is still some support for letting each side pick their favorite cases, but it is possible that the best cases are not representative enough to mark out settlement values. Plus, plaintiffs can subvert the system by dismissing the defense picks at the last minute. Judges don’t like that. And here’s a piece of good news: most judges think it makes no sense to create a bellwether trial with multiple plaintiffs.
It is a tough issue. The perfect answer would be to pick the “middle of the road” case in different categories of injury. But who picks what the middle of the road is? It is a tough issue and no one really seems to have a great answer for how the picking of bellwether cases should be done.