#11101 - Use Of Bellwether Trials - Complex Litigation

Use of Bellwether Trials

1. In General

   1. The term bellwether is derived from the ancient practice of belling wether (male sheep) selected to lead his flock. In re Chevron (CB 588).

   2. The ultimate success of the wether selected to wear the bell was determined by whether the flock had confidence that the wether would not lead them astray, and so it is in the mass tor context. In re Chevron (CB 588).

   3. The notion that the trial of some members of a large group of claimants may provide a basis for enhancing prospects of settlement or for resolving common issues or claims is a sound one that has achieved general acceptance by both bench and bar. In re Chevron (CB 588).

      1. The reasons for acceptance by bench and bar are apparent. In re Chevron (CB 588).

      2. If a representative group of claimants are tried to verdict, the results of such trials can be beneficial for litigants who desire to settle such claims. In re Chevron (CB 588).

      3. Common issues or even general liability may also be resolved in a bellwether context in appropriate cases. In re Chevron (CB 588).

   4. “A bellwether trial designed to achieve its value ascertainment functions for settlement purposes or to answer troubling causation or liability issues common to the universe of claimants has as a core element representativeness–that is, the sample must be a randomly selected one of sufficient size so as to achieve statistical significance to the desired level of confidence in the result obtained.” In re Chevron (CB 589).

      1. Such samples are selected by the application of the science of inferential statistics. In re Chevron (CB 589).

      2. The essence of the science of inferential statistics is that one may confidently draw inferences about the whole from a representative sample of the whole. In re Chevron (CB 589).

      3. The applicability of inferential statistics has long been recognized by the courts. In re Chevron (CB 589).

   5. Before a trial court may utilize results from a bellwether trial for a purpose that extends beyond the individual cases tried, it must, prior to any extrapolation, find that the cases tried are representative of the larger group of cases or claims from which they are selected. In re Chevron (CB 589).

      1. Typically, such a finding must be based on competent, scientific, statistical evidence that identifies the variables involved and that provides a sample of sufficient size so as to permit a finding that there is a sufficient level of confidence that the results obtained reflect results that would be obtained from trials of the whole. In re Chevron (CB 589).

         1. It is such findings that provide the foundation for any inferences that may be drawn from the trial of sample cases. In re Chevron (CB 589).

      2. Without a sufficient level of confidence in the sample results, no inferences may be drawn from such results that would form the basis for applying such results to cases or claims that have not been actually tried. In re Chevron (CB 589).

2. TWO FUNCTIONS:

   1. Hard-Edged Version: Under the hard-edged version, the function of bellwether trials is for the judgment in such trials to have some preclusive effect in a much larger number of untried individual cases.

      1. Common issues or even general liability may be resolved in a bellwether context in appropriate cases. In re Chevron (CB 588).

      2. Before a trial court may utilize results from a bellwether trial for a purpose that extends beyond the individual cases tried, it must, prior to any extrapolation, find that the cases tried are representative of the larger group of cases or claims from which they are selected. In re Chevron (CB 589).

         1. Typically, such a finding must be based on competent, scientific, statistical evidence that identifies the variables involved and that provides a sample of sufficient size so as to permit a finding that there is a sufficient level of confidence that the results obtained reflect results that would be obtained from trials of the whole. In re Chevron (CB 589).

            1. It is such findings that provide the foundation for any inferences that may be drawn from the trial of sample cases. In re Chevron (CB 589).

         2. Without a sufficient level of confidence in the sample results, no inferences may be drawn from such results that would form the basis for applying such results to cases or claims that have not been actually tried. In re Chevron (CB 589).

      3. In In re Chevron, the court held that the trials were not bellwether trials, because they were not representative. In that case, the trial plan contemplated that there would be 15 trials chosen by the plaintiffs and 15 chosen by the defendants. Because these trials were not a representative sample of the other related cases, they could have no preclusive effect. (CB 589).

      4. Statistical Adjudication

         1. In Hilao, the court found that the bellwether trials were representative where a sample of 137 claims (out of 9,541 total claims) were randomly selected by a computer and an expert on statistics testified that a random sample of 137 claims would achieve “a 95 percent statistical probability that the same percentage determined to be valid among the examined claims would be applicable to the totality of claims filed.” (CB 598).

         2. When state claims are involved, there is always a risk that sampling might alter state substantive law in violation of Erie’s dictates. See Cimino (CB 604).

         3. Statistical Sampling re Backpay Awards Under Title VII

            1. In Dukes, the Court disapproved of the use of statistical sampling to adjudicate backpay awards under Title VII. The court held that “[b]ecause the Rules Enabling Act forbids interpreting Rule 23 to ‘abridge, enlarge or...