Bellwether Mediation: An Innovative Approach to Mass Tort Resolution

The innovative bellwether mediation process is a proven tool for identifying representative cases, determining their true value, and driving mass tort resolution faster and more efficiently than a bellwether trial. While the bellwether trial approach has its benefits, it frequently generates inconsistent results, requires an incredible amount of resources, strains an already burdened court system, and delays resolution for non-bellwether plaintiffs. Conversely, bellwether mediations can resolve a significant number of cases in the time it takes to bring one bellwether case to trial. The parties can also leverage the information gained from the bellwether mediation process to structure a broader settlement. Taking the bellwether process out of the courtroom and into the conference room can indeed minimize the burden to the court system, while driving resolution for a broader number of claimants.

Mass torts are unique from class actions in that every plaintiff retains their individual claim. See 28 U.S.C. §1407. The parties, therefore, must develop a method to resolve each mass tort case. The bellwether trial process in a mass tort requires the parties to select a pool of cases for trial work-up that is representative of either all or a portion of the cases pending in the litigation. See Amir Seyedfarshi, “Binding Bellwether Trials in Multidistrict Litigation and the Right to Jury Trial,” 17 W. Mich. Cooley J. Prac. &; Clinical L. 295, 297; 298-304 (2015); Jonathan Steinberg, Note, “The False Promise of MDL Bellwether Reform: How Mandatory Bellwether Trial Consent Would Further Mire Multidistrict Litigation,” 96 N.Y.U.L. Rev. 809, 826 (2021) (discussing importance of trial plan in creating representative plaintiff pool). The goal of the bellwether trial is to generate information about the strengths, weaknesses, and values of claims. At the conclusion of this process, the parties and the court use this information to develop a plan for resolving the mass tort. Adam S. Zimmerman, ”Civil Litigation Ethics at a Time of Vanishing Trial: The Bellwether Settlement,” 85 Fordham L. Rev. 2275, 2289. Frequently, however, mass torts include plaintiffs with a variety of distinct products and injuries, requiring the parties to identify and try multiple pools of bellwether cases in order to obtain the data that the bellwether process is designed to generate. See Steinberg, 96 N.Y.U.L. Rev. at 826 (noting limitations of bellwether trials include developing representative claimant pools, restrictions on venue, and binding non-bellwether plaintiffs to trial results). The bellwether trial process, therefore, is expensive, time consuming, and prone to gamesmanship by both sides. Moreover, the lopsided verdicts that bellwether trials generate are difficult to extrapolate over large, diverse plaintiff populations and can hinder rather than promote final resolution.

The idea of a bellwether mediation is similar to that of a bellwether trial, but with a shared goal of potentially resolving, not “winning,” the selected cases. Like a bellwether trial, it is a court-managed process where the parties and the court select a pool of representative cases based on set parameters. Through the representative mediation process, the court and the parties are able to identify the types of claims that are conducive to settlement and their representative value. A successful bellwether mediation process requires the managing judge’s imprimatur and the cooperation of other coordinating courts, plaintiffs’ leadership, defendants, and individual plaintiffs’ counsel. The process is appropriate after the parties have completed at least some discovery to hone their theories of the case, and it can proceed in parallel with active discovery.

Critically important is the service of plaintiff-specific damages discovery so the parties can craft a successful mediation protocol, adequately assess each case, and prepare for mediation. In the In re Stryker Rejuvenate Hip Stem and ABGII Modular Hip Stem Litigation venued in Bergen County, New Jersey (Master Docket No. BER-L-936-13) (the ABG II/Rejuvenate MCL), at the managing judge’s urging, the parties agreed to an initial mediation consent order setting out agreed-upon mediators, cost sharing, confidentiality, and the initial criteria for inclusion in the first mediation pool. Plaintiffs counsel also had to obtain individual consent from their clients in order to opt in to the process. After the initial pool was identified, the parties agreed to a hybrid approach for case selection that included six cases randomly selected by the court, two cases selected by the plaintiffs, and two cases selected by the defendant. This hybrid selection approach was an interesting initial test. First, the parties were likely to pick their best cases—the highest-value cases for the plaintiffs and the lowest-value cases for the defendant—which likely would generate skewed results. By adding in six cases chosen at random, the process was more likely to produce a representative range of case values. It also tested whether the parties could resolve cases that they had not handpicked.

In that litigation, somewhat to the surprise of the parties and their counsel, the initial pool of bellwether mediation cases resolved. With that success in mind, the court and the parties continued to test the process by identifying new mediation pools based on key data points, including the age of the plaintiff and alleged injury characteristics. The parties also continued to use the hybrid court-party selection approach used in the first phase. At the conclusion of the process, the parties successfully resolved approximately 20 cases. These cases provided the parties’ leadership with invaluable data points. Importantly, the collaborative process of implementing the bellwether mediation process also fostered a good working relationship not just between the parties’ leadership and plaintiffs’ individual counsel, but also with the panel of mediators and the court. Ultimately, the parties successfully negotiated a settlement that provided fair compensation for a vast majority of claimants in the New Jersey MCL and a related federal multidistrict litigation (MDL).

Not to be overlooked is the speed by which this process moved. The Iinitial mediation consent order was entered four months after the New Jersey MCL was formed. Just over one year later, approximately 20 cases were resolved. Roughly six months after that significant milestone, the parties announced a global settlement that was open to all qualifying plaintiffs in the New Jersey and federal coordinated litigations. Remarkably, in the time that it typically takes one mass tort bellwether case to be tried, the parties resolved the vast majority of the MCL and MDL litigations and quickly compensated non-bellwether mediation plaintiffs. The parties achieved these results without the resources and delays associated with lengthy depositions, expert discovery, and the prolonged trial process needed to resolve a bellwether trial case.

The likelihood of success of a bellwether mediation process undoubtedly hinges on the cooperation of the court, the chosen mediators, and the parties. Also, a “successful” process does not require a 100% resolution rate—any meaningful resolution success provides helpful information. Timing depends on the facts of the case and whether additional work needs to be done to define the true claims at issue and identify the viable plaintiff population. Regardless of when the process is employed, based on our experience, we believe that bellwether mediations can be more effective than bellwether trials because they are more likely to produce award ranges that reflect the true settlement value of the cases. A successful bellwether mediation process also cuts expenses for both parties and significantly accelerates the time by which individual plaintiffs can receive compensation. Accordingly, we believe the bellwether mediation process should be seriously considered in any mass tort case management plan.

From the defense perspective, if you are considering adding bellwether mediation to your case management plan, we suggest the following:

Maintain an open dialogue with your client. How and when a mass tort is resolved depends on the facts of the case and the practical business implications, which evolve as a mass tort proceeds. Keeping an open dialogue with your client about resolution opportunities and the company’s goals is key to initiating a successful bellwether mediation process.

Effectively track your cases. Tracking the cases in a mass tort should go beyond the basics. By maintaining a detailed inventory of your cases from an early stage, you have a better handle on the plaintiff population. Good data helps you advise your client and the court about litigation management and case selection. As cases settle, adding the settlement data, including the resolution ranges, to the existing plaintiff data helps with broader settlement discussions.

Engage effective and committed mediators. The bellwether mediation process requires the assistance of several mediators from across the country. Keep note of the effective mediators you have encountered, because each side has to suggest several before the final roster is set. In addition, as the bellwether mediation process moves forward, you realize which mediators work well with both sides, seem to really understand the case, and are committed to the process. These are the mediators you may want to engage for subsequent broader settlement discussions should you reach that goal.

Keep the court updated and engaged in the process. Successful bellwether mediation requires active oversight and support by the managing court and any other coordinating courts. Informing the courts of this relatively unknown mediation approach early in the litigation and keeping the courts updated as the mediations proceed likely encourages the courts to give the parties the support they need to continue the bellwether mediation process and potentially pursue a broader settlement result.

Note: Gibbons P.C. is counsel for defendant Howmedica Osteonics in the In re Stryker Rejuvenate Hip Stem and ABGII Modular Hip Stem Litigation (Master Docket No. BER-L-936- 13).

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Reprinted with permission from the December 12, 2022 issue of the New Jersey Law Journal. © 2022 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved. For information, contact 877-257-3382 or reprints@alm.com or visit www.almreprints.com.