The terms “class action” and “bellwether” have been made popular largely in part through movies and late-night infomercials produced over the last 50 years. Erin Brockovich’s fight against water contamination began with a class action lawsuit in 1993, which led to far more than Hollywood accolades. More than $333 million was ultimately awarded to plaintiffs in California.
But mass tort verdicts don’t come quick and easy, and many cases begin with a bellwether trial, a “test” case to gauge how juries will react to evidence and arguments. They also aid in ascertaining the value of monetary damages for settlement purposes. Since the outcome of bellwether cases helps determine the result of subsequent cases and corresponding damages awarded, their influence on future litigation cannot be overstated.
To understand what a bellwether case is, you must first understand what a mass tort case is. Most people are familiar with a class action lawsuit. A class action involves multiple plaintiffs being represented as a single “class” or entity against one defendant, and if that class prevails, one large sum is awarded to be divvied amongst the members of the class. In a mass tort case, on the other hand, multiple plaintiffs file individually against a company and individual sums are awarded to each prevailing plaintiff. The unifying fact of a mass tort case is the act or omission that harm was caused to the plaintiffs, although the harm may be of varying degrees.
2022 in Review
After the COVID-induced quiet year in 2020, 2022 was an active year for bellwether test trials. One of the notable bellwether matters of the past year involved 3M earplugs. Currently there are over 270,000 individual lawsuits against 3M for claims alleging that the company’s earplugs caused hearing damage. In May of last year, the 16th and final 3M earplug bellwether trial ended with the largest verdict to date at $77.5 million.
Two bellwether trials were also conducted regarding claims against hernia mesh devices, manufactured by C.R. Bard. To date, there are 18,000 lawsuits pending, 176 of which were filed just in the last 30 days. The last bellwether trial in Rhode Island state court ended in a $4.8 million verdict. With the next trial set for May, the number of claims will only increase.
On the Horizon
We may see global settlements in several major mass tort multi-district litigation in the near future, specifically related to hair relaxers, Camp LeJeune water contamination, talcum powder and several medications for pain and heartburn.
With each of these will be lessons learned for both plaintiffs and defendants of current and future cases. Specifically:
- The length of time between an initial bellwether trial and the final verdict. Prepare clients for the long haul of getting to a conclusion and the realities of what these cases entail: time, patience and diligence.
- The mapping of networks. Whether plaintiff or defense, mapping jurisdictions, witnesses and information is crucial to telling a story. Develop a template to follow for each new contact or piece of evidence collected.
- Know precedent. Do your research on what has been tried before and especially of late in the recent cases of 2022. Talk with other attorneys through associations and online communities about past experience.
At Gryphon, our diverse global teams bring deep expertise and a range of perspectives to their work in complex due diligence, internal investigations, cutting-edge data mining and analytics, litigation support and global strategic and political risk advisory. Reach out today to learn more.