Why Bellwethers Matter In The Opioid MDL

Law360

Parties engaged in multidistrict litigation face a crucial decision: Which case or cases should be tried first? For both plaintiffs and defendants, bellwethers — the first trial or trials from the similar cases making up the MDL— can determine how the rest of the cases proceed.

One current headlining case — the prescription opioid MDL pending before Judge Dan Polster in federal district court in Ohio — shows both how hard it is to select bellwethers and why bellwethers matter.

Plaintiffs and defendants have long debated about bellwether trial selection, with each side vying to select the case or cases that will allow them to test their theories and, hopefully, achieve a good outcome. But modern MDLs like the prescription opioid litigation can involve thousands of cases, which makes choosing more complicated. Here we look at how courts and parties cull the cases to select bellwethers and then evaluate how that selection may affect the outcomes of the MDL.

Selecting Bellwether Cases for Trial

While the bellwether selection process may vary in different MDLs, the process usually involves three parts:

Categorizing the cases;
Determining which categories should get a bellwether trial; and
Determining which cases in that category make good bellwethers.

Often, as in the opioid MDL, the court and parties address these three considerations at the same time, through case management orders that set briefing, discovery and trial schedules for specific cases from each category.

First, parties and courts determine how to categorize the plaintiffs in the cases. Individual litigants must show why they are differently situated from other plaintiffs to persuade the court to create a separate category for discovery and briefing purposes. The opioid MDL aggregates suits brought by diverse plaintiffs, and while some groups of plaintiffs will now proceed in their own litigation categories, not all groups of plaintiffs have been successful in their bids for distinct categorization.

For instance, attorneys representing children born with neonatal abstinence syndrome, or NAS, after their mothers used prescription narcotics were unable to convince Judge Polster to create a separate track for their clients. Attorneys argued that children born with NAS had a unique need for direct compensation related to out-of-pocket costs for opioid-weaning treatment, for which the children’s attorneys planned to seek to create a court-administered medical trust to fund research and treatment for NAS. Judge Polster rejected those arguments.[1]

Later, the children’s attorneys sought unsuccessfully to create a second MDL. Attorneys for the babies expressed frustration that, without a separate category, the particular needs of babies with NAS would be drowned out by states and local governments, which make up the majority of plaintiffs in the MDL.

On the other hand, another high-profile plaintiff category — Native American tribes — successfully argued for their own category in the opioid MDL. The tribes argued[2] that they were differently situated from states or local governments because they were disproportionately affected by the opioid crisis.

Judge Polster accepted those arguments and allowed briefing in cases brought by tribes.[3] The case management orders in the MDL now distinguish states, Native American tribes, local governments, hospitals and third-party payors as categories of plaintiffs.

Second, the courts determine which categories merit bellwether trials. In the opioid MDL, Judge Polster has so far scheduled only two bellwether trials. Both trials involve cases brought by local governments, and each trial consolidates cases from a specific state. Judge Polster has not precluded setting bellwether cases[4] for other categories if, after discovery, he determines that a bellwether trial is appropriate.

Third, courts select specific cases for the bellwether trials. Typically, courts and parties select cases that address legal issues that are shared among many of the MDL cases. In the opioid litigation, Judge Polster first selected three cases,[5] dubbed “Track One” cases, brought by local governments in Ohio as bellwethers, setting a consolidated trial schedule.

However, discovery later demonstrated that the original bellwether cases did not reflect all of the legal issues or include all of the defendants. While most plaintiffs in the MDL focused on opioid manufacturers as defendants, the West Virginia counties directed their claims against wholesale distributors of opioid medications and retail pharmacies. Recognizing this difference, the court announced a second track of bellwether cases,[6] consolidating cases brought by local governments in West Virginia.

Why Bellwethers Matter

The word “bellwether” has a long history. Back in the 13th century, a bellwether was the male sheep that wore a bell around its neck so that shepherds could keep track of their flock. Choosing the right sheep could mean the difference between finding your flock and losing it. Today, bellwethers in the legal context help litigants figure out where the law is headed and understand what facts matter to juries. For these reasons, choosing the right bellwether helps make sure that the eventual outcome is a result that both sides — or all sides — can live with.

Parties can test legal theories in pretrial briefing, discover facts that could help — or hurt — litigants’ claims in similar cases, predict opponents’ arguments and fine-tune case strategy for future litigation in other MDL cases.

Bellwether trials are also important for another reason: They are perceived as a means to encourage settlement. For instance, Judge Polster has been very clear that his goal for the opioid litigation[7] is to quickly reach a global settlement. When he announced the first bellwether trial, Judge Polster emphasized that the move was meant to make settlement more likely.[8] The plaintiffs attorneys have also expressed[9] a belief that “trial dates tend to force settlement.”

Recently, Purdue Pharma, the manufacturer of OxyContin, a prescription opioid, settled a law suit brought in Oklahoma state court by Oklahoma’s attorney general. The allegations in the Oklahoma case resembled those made by states and local governments in the federal MDL. That settlement was reached after Purdue lost its bid to delay the trial, which was expected to start less than two months later, fueling speculation that Purdue and other MDL defendants will reach settlement as the trial date for the first bellwether in the MDL approaches.[10]

Still, it’s not clear yet whether Judge Polster will achieve his goal of a global settlement before the first bellwether trial, now scheduled to begin on Oct. 21, 2019. Regardless, the bellwether in this MDL may tip off other litigants as to where this MDL is headed.

Originally published on Law360 (Subscription required)

[1] https://www.law360.com/articles/1058686?scroll=1&related=1

[2] https://www.law360.com/articles/1045153?scroll=1&related=1

[3] Case Management Order Number Five, In Re National Prescription Opiate Litigation, No. 1:17-MD-2804 (N.D. Oh. Transferred from JPML Dec. 17, 2017), available at https://www.ohnd.uscourts.gov/sites/ohnd/files/17-2804cmo5.pdf

[4] Case Management Order Number Six, In Re National Prescription Opiate Litigation, No. 1:17-MD-2804 (N.D. Oh. Transferred from JPML Dec. 17, 2017), available at https://www.ohnd.uscourts.gov/sites/ohnd/files/770.pdf.

[5] Case Management Order Number One, In Re National Prescription Opiate Litigation, No. 1:17-MD-2804 (N.D. Oh. Transferred from JPML Dec. 17, 2017), available at https://www.ohnd.uscourts.gov/sites/ohnd/files/cmo%201.pdf.

[6] https://www.law360.com/articles/1114551/2nd-bellwether-track-set-in-opi…

[7] https://www.law360.com/articles/1038711?scroll=1&related=1

[8] Case Management Order Number One, In Re National Prescription Opiate Litigation, No. 1:17-MD-2804 (N.D. Oh. Transferred from JPML Dec. 17, 2017), available at https://www.ohnd.uscourts.gov/sites/ohnd/files/cmo%201.pdf.

[9] https://www.law360.com/articles/1009123

[10] https://www.npr.org/sections/health-shots/2019/03/26/706848006/purdue-p…