Summary
- Bellwether trials are “test case” lawsuits for mass tort actions
- They give all parties an idea of how future cases may turn out
- They may encourage both sides to settle cases in bulk
Mass torts often involve thousands of plaintiffs pursuing legal action against a single defendant — usually a major manufacturer or other large corporation. Trying each case is usually impractical or even impossible, so many of these cases are consolidated into multidistrict litigation (MDL).
Before most cases go to trial, the involved attorneys and judge will usually choose a few cases to be tried first. These cases, called bellwether trials, help all sides understand how future trials might turn out — and how to prepare accordingly.
Bellwether Trial Meaning
The term “bellwether” originated with 13th-century shepherds. To keep track of their flocks, shepherds would sometimes put a bell around the neck of the flock’s lead wether (a castrated male sheep). Even if they couldn’t see the flock, the shepherd could locate the sheep by the sound of the bell.
“Bellwether” has since come to denote an indicator or predictor. In the legal world, bellwether trials are meant to help predict how future cases in a mass tort action or multidistrict litigation might turn out.
Bellwether trials are especially common in litigation surrounding defective products. For example, before most of the 3M earplug lawsuit cases went to trial, there were sixteen bellwether trials. The plaintiffs won 10 of the 16 trials and recovered almost $300 million in compensation. That success helped plaintiffs’ attorneys go confidently forward with the remainder of the cases.
What Is a Bellwether Case?
Multidistrict litigation surrounding product liability law can involve tens of thousands — and sometimes even hundreds of thousands — of plaintiffs. When the judge and attorneys involved in a case select a handful of cases to be included in bellwether trials, the results of those trials can help the defendant and future plaintiffs decide whether it’s best to settle or take the case to trial.
But how are bellwether cases selected? The judge in the case has the ultimate authority, but usually, they will try to be as fair as possible to all sides. The exact process of selecting bellwether cases can vary depending on the court and the specific circumstances of the case. Often, it works like this:
Step 1: Random Selection of Bellwether Pool
In very large multidistrict litigation proceedings, choosing the best candidates for bellwether cases can be extremely difficult. Often, the judge sets certain criteria and then uses a computer program to randomly select a pool of potential bellwether cases.
Step 2: Narrowing the Pool
Often, the judge will allow attorneys for each side to select an equal number of bellwether cases. The judge also may make some of the selections. For example, if the judge has determined there should be 12 bellwether trials, the defense may choose six, and the plaintiffs choose the other six. Alternatively, the defense, plaintiffs and judge may choose four each.
How Bellwether Trials Shape Multidistrict Litigation
Bellwether cases have benefits for plaintiffs, defendants and the judicial system as a whole. The results of these cases — and how plaintiffs and defendants respond to them — can change the course of the remaining trials in the relevant multidistrict litigation.
Benefits for Plaintiffs
Attorneys for plaintiffs can glean valuable information from bellwether cases:
- They can see how well their arguments do in court
- They can see how the jury responds to different facets of their case
- They can get an idea of what kinds of settlements they can expect
Even if they are successful in bellwether trials, attorneys for plaintiffs will often take the opportunity to sharpen their arguments in preparation for future trials.
Benefits for Defendants
In a bellwether trial, lawyers for the defense have the opportunity to test their arguments against some of the plaintiffs’ strongest cases. Bellwether trials generally happen in sequence (not all at once), so defense attorneys can adapt their strategy over time. If the defense wins even a few bellwether trials, it can show plaintiffs that they aren’t guaranteed to win in court.
Benefits for the Judicial System
Like the concept of multidistrict litigation as a whole, bellwether trials help courts deal with thousands of cases in an orderly fashion. Because bellwether trials are generally an accurate predictor of what future trials will look like, they also encourage all sides to discuss settlements and hopefully settle cases in bulk.
Settling cases reduces strain on the judicial system, and it also enables plaintiffs to recover compensation as quickly as possible. Multidistrict litigation is often time-consuming, so plaintiffs may have been waiting months or years for compensation already.
An Example of Bellwether Trials in Action
The Ozempic lawsuit saga offers some insight into the role bellwether trials play in mass torts and other kinds of multidistrict litigation. For instance, gastroparesis (stomach paralysis) is one of the primary complaints raised by plaintiffs in the Ozempic lawsuits. Ozempic warning labels noted the risk of severe gastrointestinal issues — but not a specific risk of gastroparesis.
In late 2024, Ozempic’s manufacturers tried to convince the judge that plaintiffs should have to prove they had been diagnosed with gastroparesis (and that they weren’t just suffering from other gastrointestinal issues) to pursue legal action.
Plaintiffs argued that bellwether trials were a necessary part of the fact-finding process — and that it would be premature for the judge to make broad decisions on who may pursue legal action.
The litigation is still in its early stages, and given the sheer number of plaintiffs, any decisions the judge makes at this point will likely be precedent-setting. There are more than 1,300 active plaintiffs, and lawyers are still assessing Ozempic eligibility for people considering joining the lawsuits.
Considering Joining a Mass Tort Action?
If you’ve been harmed by a popular product, you may not be the only one. Before proceeding with a product liability lawsuit, your attorney will likely look to see whether there are other people pursuing similar actions.
But how do you choose an attorney to consult in the first place? That’s why we’re here. ConsumerShield connects people like you to experienced, qualified attorneys in their areas. Fill out our form to get started with a free case review.
