There have been multiple bellwether trials reported lately – most notably for C. R. Bard’s Avaulta vaginal mesh and Johnson & Johnson’s Ethicon mesh. A judge in West Virginia, meanwhile, has had trouble selecting appropriate cases in Boston Scientific’s vaginal mesh bellwether trials.
In a way, bellwether trials are a practice run.
What is a bellwether case, though?
Think of them as a form of rehearsal, but with real money on the table. Bellwether trials are used in large and often complicated mass torts, where the number of plaintiffs and lawsuits can number in the hundreds or thousands. Bellwether cases, selected to be representative of the plaintiffs, are used to indicate possible trends in litigation. When all the plaintiffs’ claims are similar or identical – such as in the multidistrict litigation (MDL) mesh cases – bellwether trials ‘test the water’ to see how juries will react, how the law can be interpreted, and how much money will be awarded. It also gives both sides a chance to see the evidence being presented and the arguments being offered. Because selected lawsuits are meant to represent the all plaintiffs, it’s assumed that the direction of bellwether cases is a pretty solid indicator of future decisions. Usually, three or four cases are chosen from however many have been filed, although judges can ask for more, or even fewer. It depends on the issue at hand.
After bellwether trials have been completed, both sides are much better equipped to determine whether a settlement should be agreed, upon and how much it should be. In a way, bellwether trials are a practice run, although the cases are genuine and all verdicts are legally binding. Just last week, a jury awarded $250,000 in compensatory damages and a further $1.75 million in punitive damages in the first bellwether trial for C. R. Bard’s mesh. If the following bellwether cases return similar decisions, it’s a fair assumption that the impetus will be on Bard to reach agreements with other plaintiffs, and to save the expense and hassle of further court dates.
Bellwether trials remain only an indicator, however. The results of bellwether trials shouldn’t be ignored, as there are few chances to predict how certain cases will be resolved. It’s for that reason that the transvaginal mesh bellwethers are being so closely watched right now; thousands of women allegedly injured by the product will want to know how likely it is they’ll receive compensation.