Shook, Hardy & Bacon Partner Nicholas Deutsch and Associate Jennifer Spencer have published a Westlaw Journal Toxic Torts article that discusses how multidistrict litigation (MDL) courts select bellwether trials to help manage the large number of cases pending in MDLs. Noting that MDL courts typically use random selection, selection by the parties or judicial selection to choose representative cases--or a hybrid of these methods--the article presents the benefits and drawbacks of each method as well as the effects of voluntary dismissals of plaintiffs on the bellwether process.
"Courts are increasingly faced with an added complexity in the bellwether selection process: after selections are made for bellwether trials, selected plaintiffs may voluntarily dismiss their claims. This tactic has the potential to derail the bellwether process, and MDL courts have dealt with it in a variety of ways," explain the authors. "Going forward, the success of multidistrict litigation will likely depend on ensuring that representative cases are selected for bellwether trials and that once those cases are selected, they are not dismissed en masse."