FEDERAL JUDICIAL CENTER

POCKET GUIDE SERIES

Bellwether Trials in MDL Proceedings

A Guide for Transferee Judges

Melissa J. Whitney

Federal Judicial Center

and

Judicial Panel on Multidistrict Litigation

2019

This Federal Judicial Center publication was undertaken in furtherance of the

Center’s statutory mission to conduct and stimulate research and development

for the improvement of judicial administration. While the Center regards the

content as responsible and valuable, this publication does not reflect policy or 

recommendations of the Board of the Federal Judicial Center.
FIRST PRINTING
Contents

Introduction, 1

What Is a Bellwether Trial? 3

Bellwether Process Overview, 4

The Goals of Bellwether Trials, 4

The Limitations of Bellwether Trials, 6

Raising a Bellwether Process Early and Conferring with the

Parties, 9

Addressing Venue and Jurisdiction Issues, 11

Address Lexecon Venue Concerns, 11

Consider Other Jurisdictional Implications, 16

Developing a Bellwether Case-Selection Protocol and CaseManagement Plan, 19

Catalogue and Identify Key Characteristics of All MDL Cases, 19

Determine the Size of the Pool of Potential Bellwether Cases, 19

Confirm Cases Will Be Ready for Trial, 21

Ensure Representativeness of Case Pool, 22

Select Cases to Fill the Bellwether Case Pool, 24

Account for Dismissals and Settlements, 30

Utilize Data-Collection Tools for Case Selection and Monitoring,

31

Choose and Order Bellwether Cases for Any Additional Discovery and Trial from the Case Pool, 33

Selecting Bellwether Trial Structure, 35

Coordinating with State Judges on Related Cases, 37

Mediation, 41

Other Bellwether Trial Considerations, 43

Coordination and Sequencing of General and Case-Specific

Discovery, 43

Settlement, 43

Staying Bellwether Trials for Settlement Discussions, 44

Videotaping Bellwether Testimony, 44

iii
Other Bellwether Trial Considerations, cont’d

Strategic Use of Interlocutory Appeals, 44

Alternatives to Bellwether Trials, 45

Timing for Recommending Remand, 46

For Further Reference, 47

iv
1

Introduction

This pocket guide was created to provide transferee judges handling 

multidistrict litigation (MDL) with an overview of the bellwether 

trial process. Bellwether trials are one of many case-management 

tools available to MDL transferee judges. Although bellwether trials 

are not appropriate for every MDL proceeding, this guide outlines 

practical considerations for establishing and implementing bellwether protocols in proceedings where a court chooses to utilize 

them. Examples of past bellwether protocols are provided throughout the guide as potential models for future orders and to demonstrate the flexibility that courts have in designing bellwether trial 

strategies that are well-suited to the demands of particular MDL 

proceedings.

The Judicial Panel on Multidistrict Litigation (the MDL Panel 

or JPML) was created by 28 U.S.C. § 1407 to allow actions involving 

one or more common questions of fact that are pending in different districts to be transferred to a single district for coordinated or 

consolidated pretrial proceedings. The MDL Panel may order the 

transfer and assignment of cases to a transferee judge when doing 

so will be for the convenience of the parties and will promote the 

just and efficient conduct of the actions.1 Transfer and MDL formation (often referred to as centralization) are designed to avoid 

duplication of discovery, prevent inconsistent rulings, and conserve 

the resources of the judiciary, the parties, and their counsel.2 Centralization of cases provides an “opportunity for the resolution of 

mass disputes by bringing similarly situated litigants from around 

the country, and their lawyers, before one judge in one place at one 

time.”3 Section 1407(b) empowers a transferee judge to exercise all 

powers of the transferor court with respect to pretrial proceedings. 

This includes holding pretrial conferences; setting discovery schedules; resolving pretrial disputes; deciding motions to dismiss, mo1. See 28 U.S.C. § 1407(a).

2. JMPL Overview Brochure, http://www.jpml.uscourts.gov/sites/jpml/

files/JPML-Overview-Brochure-2-23-2016.pdf (last visited Apr. 4, 2019).

3. Eldon E. Fallon, Jeremy T. Grabill & Robert Pitard Wynne, Bellwether 

Trials in Multidistrict Litigation, 82 Tul. L. Rev. 2323, 2340) (2008).
Bellwether Trials in MDL Proceedings

2

tions for summary judgment, and class certification; and facilitating 

settlement discussions.4

4. See id. at 2328.
3

What Is a Bellwether Trial?

The transferee court’s authority over transferred cases generally extends only to pretrial matters. As discussed below, the transferee 

court does not retain jurisdiction over these cases for trial and may 

not transfer cases to itself for trial under § 1404(a).5 However, while 

§ 1407 does not empower the transferee court to self-assign and 

conduct trials of MDL cases, a transferee judge can conduct trials of 

cases originally filed in the transferee district where venue is proper 

or cases in which the parties have waived all objections to venue. A 

trial held in this setting is often referred to as a bellwether trial or 

test case.

Bellwether trials are individual trials that are conducted by MDL 

transferee judges with the goal of producing reliable information 

about other cases centralized in that MDL proceeding. Bellwether is 

derived from the practice of belling a male sheep (a wether) to lead a 

flock; in modern jurisprudence, the concept of bellwether trials developed from “[t]he 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.”6 If bellwether 

5. Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 

40 (1998).

6. In re Chevron U.S.A., 109 F.3d 1016, 1019 (5th Cir. 1997). The term 

bellwether appears in U.S. Supreme Court jurisprudence as early as 1972, in 

Affiliated Ute Citizens of Utah v. United States, 406 U.S. 128, 140 (1972) (selecting twelve plaintiffs as bellwether plaintiffs in claims involving tribal land 

allotments) and even earlier in state and federal courts. See, e.g., Bouknight 

v. Lester, 119 S.C. 466, 473 (1921) (Supreme Court of South Carolina case 

referring to one of a series of cases regarding refusal of right to admission to 

a theater ticket as a “bellwether” in a particular line of jurisprudence); Int’l 

Carbonic Eng’g Co. v. Nat. Carbonic Prod., 57 F. Supp. 248, 251 (S.D. Cal. 

1944), aff’d, sub nom. Int’l Carbonic Eng’g Co. v. Nat. Carbonic Prods., 158 

F.2d 285 (9th Cir. 1946) (referring to a subsidiary’s taking a license for a 

patent as a “bellwether” to indicate to others in the industry that they should 

do the same rather than question that patent’s validity); Ranchers Expl. & 

Dev. Co. v. Anaconda Co., 248 F. Supp. 708, 711 (D. Utah 1965) (regarding a large number of mining claims, “[d]uring pre-trial proceedings, in the 

hope of avoiding unmanageable processing for trial of numerous individual 

claims, six ‘bellwethers’ were selected by the parties (three claims by each 

side) as presenting the major issues of fact and law likely to be encountered 
Bellwether Trials in MDL Proceedings

4

cases are representative of the broader range of cases in the MDL 

proceeding, they can provide the parties and court with information 

on the strengths and weaknesses of various claims and defenses and 

the settlement value of cases.7

Bellwether Process Overview

In general, the bellwether trial process begins with identifying key 

characteristics of the entire universe of cases in an MDL proceeding. 

Next, the court and parties create a pool of cases that is representative of these characteristics and advance those cases for discovery. 

This subset of cases may be referred to by a variety of names, such 

as a discovery pool, case selection pool, representative trial pool, or 

bellwether pool. Third, following core case-specific discovery, bellwether cases are selected from that pool and scheduled for trial.8

A number of tools can assist with this process. This pocket guide 

provides an overview of the practical considerations for establishing 

and implementing bellwether trial protocols that are well suited to 

the demands of particular MDL proceedings. Examples of past bellwether trial protocols are provided throughout as potential models 

for future orders and to demonstrate the flexibility that courts have 

in establishing successful bellwether trial strategies.9

The Goals of Bellwether Trials

Promote Settlement. Bellwether trials can promote global settlement 

by giving the parties an early understanding of the strengths and 

weaknesses of each party’s position and a sense of the value of inin deciding the validity of all of the claims in dispute.”).

7. See Manual for Complex Litigation, Fourth §§ 22.314, 22.315 (2004) 

[hereinafter MCL 4th].

8. See Fallon et al., supra note 3, at 2325–36.

9. Many of the orders referenced in this pocket guide can be found in the 

sample order database maintained on the JPML website for use by transferee 

judges. See http://jpml.ao.dcn/transferee_Judge_Sample_Orders (last visited 

Apr. 4, 2019). Product liability in general and pharmaceutical and healthcare cases in particular have tended to represent a large number of the cases 

centralized in MDL proceedings and thus tend to dominate the examples 

provided here. However, many of these strategies can be adapted to other 

types of litigation where test cases may be helpful.
Bellwether Trials in MDL Proceedings

5

dividual cases.10 They may also help the parties appreciate the costs 

and burdens of subsequent litigation.11 For some cases, bellwether 

trial jury verdicts can provide the raw data around which to construct a global settlement in the form of a grid-based compensation 

system.12 Finally, when parties do not agree to global settlement, 

carefully selected bellwether trials can expedite settlement of particular subsets of cases with similar fact patterns and applicable law.

Manage the MDL Proceeding Effectively. Discussing whether the 

case is suitable for a bellwether trial and setting a bellwether trial 

schedule soon after MDL centralization signals to the parties the 

court’s intention to actively and efficiently manage the litigation. In 

particular, scheduling deadlines for the parties to prepare trial-worthy cases may avoid unnecessary delays by counsel and ensure cases 

move forward with discovery in a timely manner. Bellwether trials 

can be an efficient vehicle to decide common legal issues and rule 

on the admissibility of key evidence in the MDL proceeding. While 

particular rulings during individual trials do not generally bind other plaintiffs, they do signal to the parties how the court is likely to 

rule in future bellwether cases and may provide guidance to transferor judges upon remand of cases.

Assist the Parties and Transferor Courts upon Remand. Bellwether trials provide the parties with the opportunity to develop trial packages

or litigation frameworks that can be used in subsequent bellwether 

trials or in cases remanded to the originating courts.13 Preparing 

for bellwether trials forces the parties to organize and consolidate a 

large volume of materials from pretrial discovery into summary trial packages that can then be used by local counsel to try remanded 

cases. Materials include key documents, expert reports, deposition 

10. See Barbara J. Rothstein & Catherine R. Borden, Fed. Judicial Ctr. 

& JPML, Managing Multidistrict Litigation in Products Liability Cases: A 

Pocket Guide for Transferee Judges 44 (2011) (“Conducting individual trials, sometimes referred to as bellwether trials or test cases, can help facilitate 

resolution of the MDL by testing essential elements of each side’s litigation 

strategy and establishing representative settlement values.”).

11. See MCL 4th § 22.315.

12. See Fallon et al., supra note 3, at 2342.

13. See id. at 2325, 2338–40.
Bellwether Trials in MDL Proceedings

6

testimony, and attorney work product summarizing such materials. 

The bellwether process allows parties to streamline case-specific 

pretrial discovery for future trials and helps transferor courts and 

local counsel prepare to try cases upon remand. For example, the 

court can encourage the parties to use videotaped expert testimony 

or prepare a standard set of exhibits when appropriate for use in 

multiple trials with similar legal and factual issues in play.14

The Limitations of Bellwether Trials

The appropriateness and utility of bellwether trials will depend on 

the unique facts and circumstances of the proceeding, but several 

common limitations should be noted. First, in general, bellwether 

trials do not have a preclusive effect on other cases in an MDL proceeding. In many proceedings, a focus on dispositive motions may 

be a more efficient use of the transferee court’s resources in moving 

the litigation forward.15 In addition, the parties may attempt to engage in unproductive gamesmanship in their bellwether trial strategies, including case selection, case ordering, and the scheduling of 

bellwether cases and related state court cases. For example, the parties may attempt to stall bellwether trials in favor of trying cases in 

the state courts perceived to be most favorable.

Alternatively, the parties’ roles as advocates during bellwether 

case selection may skew the information produced from the bellwether process. If not managed effectively, the bellwether process 

could instead showcase extreme cases on both sides that do not 

reflect reasonable settlement values nor the merits more generally. 

For this reason, bellwether case selection demands careful consideration. Another limitation arising from the MDL transfer process 

is that venue objections by the parties may limit the number and 

variety of cases available for bellwether trials.

14. See MCL 4th §§ 12.13, 23.345.

15. However, a pattern of dismissals in several bellwether cases might 

still prove valuable and signal to the court that additional focus and effort 

should be expended on dispositive motion practice more generally. Other 

mechanisms, such as orders to show cause why similar claims or cases should 

not be dismissed, can also ensure that bellwether trials promote efficiency by 

streamlining future cases and weeding out invalid claims.
Bellwether Trials in MDL Proceedings

7

Finally, in some instances, efficiency may argue against an early 

bellwether process. For example, the court must also consider

• whether there may be more efficient means to resolve the litigation or certain subsets of cases (e.g., would it be helpful 

to hold a consolidated trial on a common claim or bifurcate 

discovery and decide general causation or another threshold 

issue first?)

• whether a focus on scientific evidence issues, including early 

Daubert motions, may be a more efficient means of promoting 

settlement than bellwether trials

• whether highly divergent, state-specific case-law issues are 

central to the claims or defenses in an MDL proceeding such 

that that the transferor court might be a better venue for trials

• whether, in balancing the competing demands of general fact 

and expert discovery, the legal and factual issues involved suggest that case-specific discovery should take a secondary role

Nonetheless, prior proceedings have demonstrated that bellwether trials can be an effective strategy in some instances, even 

while the court simultaneously juggles other aspects of the MDL 

proceeding, such as overseeing class-certification discovery and 

briefing or deciding dispositive motions. The MDL statute expressly 

directs transferee judges to remand cases for trial upon conclusion 

of pretrial coordination, but the vast majority of MDL cases are resolved before ever being remanded for trial.16 Bellwether trials can 

facilitate such resolutions.

16. See, e.g., Catherine R. Borden, Emery G. Lee III & Margaret S. Williams, Centripetal Forces: Multidistrict Litigation and Its Parts, 75 La. L. Rev. 

425, 443 (2014).

9

Raising a Bellwether Process Early and

Conferring with the Parties

Transferee judges can raise the possibility of a bellwether process 

proactively with the parties and seek their views on the utility of 

bellwether trials whenever it seems that bellwether trials might be 

beneficial. By introducing the court’s interest in employing a bellwether trial process early on—perhaps at the first management conference—the court can set the tone for moving the litigation forward.

If the court decides to engage in a bellwether process, ensure 

that the parties are given sufficient time to confer and propose a 

joint bellwether selection protocol and trial schedule.17 Having invested in the bellwether process and collaborated in negotiating and 

formalizing a bellwether trial protocol, the parties may be more 

likely to consent to having cases tried and issues decided in a binding manner before the transferee court, rather than requesting that 

the transferee court suggest to the JPML that cases be remanded to 

the transferor courts. Note, however, that when seeking the input of 

the parties on bellwether calendars and case selection protocols, the 

court will also need to be aware of perceived party advantages and 

the potential for gamesmanship.18

17. MCL 4th § 22.93; see also Duke Law Center for Judicial Studies, 

MDL Standards and Best Practices [hereinafter Duke MDL Practices], Best 

Practice 1E, at 16 (Sept. 11, 2014). Note that the Duke MDL Practices 

provide guidance suggested by a number of legal practitioners; however, such 

guidance should be used only when the litigation-specific circumstances 

suggest they could serve the fundamental purposes for MDL proceedings 

and comport with the Federal Rules of Civil Procedure. The Duke MDL 

Practices are not a substitute for the Federal Rules or the lessons provided by 

prior judicial experience. 

18. See Jaime Dodge, Facilitative Judging: Organizational Design in 

Mass-Multidistrict Litigation, 64 Emory L.J. 329, 346–47 (2014) (noting 

that early on, “it is exceedingly difficult for a transferee judge to know why 

parties are taking the strategic positions they do. Most commonly, judges 

have asked why parties are opposing measures that are intended to streamline 

litigation. For example, why do defendants in some cases oppose delaying 

inquiries into subgroups or individual claims until after the general questions 

are resolved? Why do plaintiffs at times oppose partial settlements?”); see also
Bellwether Trials in MDL Proceedings

10

Requiring that the parties submit detailed bellwether trial 

plans can also assist the court and parties in determining what issues, claims, and defenses may apply across groups, whether certain groups of claimants are particularly suitable for early trials, and 

the discovery necessary to prepare for individual bellwether trials.19

Proposing a bellwether trial process also encourages the parties to 

organize, track, and continue to move individual cases forward early in the MDL process.

While bellwether trials can provide momentum in reaching a 

resolution, sufficient time should still be allowed for discovery prior 

to commencing bellwether trials in order for the parties to assess 

the composition and strength of the docket. The parties must have 

a reasonable grasp of key factual issues to ensure that they are comfortable with extrapolating case-specific findings and valuations 

from bellwether cases to other cases in the litigation. If a party is 

not receptive to extrapolating to the larger docket, the bellwether 

process could slow, rather than facilitate, a global resolution.

Friends for All Children, Inc. v. Lockheed Aircraft Corp., 87 F.R.D. 560, 

564 (D.D.C. 1980) (establishing proposed interlocutory relief plan when 

parties engaged in burdensome settlement and trial-delaying tactics, and noting, “These cases are not games, yet they are being played by some as if they 

were. The Court is not required to stand by and referee these games when it 

can resolve the impasse and prevent unjust wind-falls, irreparable injury, and 

serious congestion of the docket of this busy federal court.”)

19. MCL 4th § 22.93.
11

Addressing Venue and Jurisdiction Issues

Address Lexecon Venue Concerns

In Lexecon Inc. v. Milberg Weiss,

20 the Supreme Court held that a 

transferee judge cannot “self-transfer” an MDL action to his or her 

district for the purpose of conducting a trial.21 Courts should anticipate and resolve, if possible, any Lexecon-related concerns at the 

outset of the litigation.22

Since Lexecon, transferee judges have developed a number of 

methods for working within the confines articulated by the Supreme Court. First, if the MDL contains actions that were properly 

filed in the transferee district in the first place, the transferee judge 

can conduct one or more bellwether trials from those cases.23 Second, the Supreme Court’s ruling in Lexecon does not prohibit parties from waiving venue objections when the transferee court has 

subject-matter jurisdiction. Lexecon waivers allow the parties to 

consent to trial in the transferee court, where venue would otherwise be improper. The court should discuss Lexecon waivers early 

in the process to ensure that cases are available for inclusion in the 

bellwether selection pool and for core, case-specific discovery.24

Courts can draw from the experience of a variety of past cases in 

crafting orders to facilitate Lexecon waivers. Examples include

• In re Chantix (Varenicline) Prods. Liab. Litig. (MDL No. 2039) 

(N.D. Ala.), Pretrial Order No. 9: Selection of Bellwether 

Plaintiffs for Discovery & Trial (Mar. 10, 2011):

20. 523 U.S. 26 (1998).

21. Id. at 40 (1998) (“In sum, none of the arguments raised can unsettle 

the straightforward language imposing the Panel’s responsibility to remand, 

which bars recognizing any self-assignment power in a transferee court[.]”).

22. See Ten Steps to Better Case Management: A Guide for Multidistrict 

Litigation Transferee Judges 8 (2d ed. 2014).

23. See MCL 4th §§ 20.132, 22.315, 22.93.

24. See Fed. Judicial Ctr. & JPML, Fallon et al., supra note 3, at 2359 

(recommending that Lexecon waivers be obtained prior to case-specific 

discovery to avoid a situation where the side with the least favorable facts 

objects to venue later on during the bellwether trial selection process after 

significant discovery efforts have been made).
Bellwether Trials in MDL Proceedings

12

Any Plaintiff in a case selected for the Discovery Pool who 

wishes to assert an objection under Lexecon Inc. v. Milberg 

Weiss Bershad Hynes & Lerach, 523 U.S. 26 (1998), to his/

her case being tried by this Court must do so in writing to 

Defendant’s Lead Counsel by 5:00 p.m. CST on June 15, 

2011. Plaintiffs who do not assert an objection by this time 

will be deemed to have waived any rights under Lexecon

and to have agreed to have his/her case tried by this Court.

• In re GM LLC Ignition Switch Litig. (MDL No. 2543) 

(S.D.N.Y.), Order No. 25 Regarding the Selection of Personal 

Injury and Wrongful Death Bellwether Cases and Early Trial 

Scheduling (Nov. 19, 2014):

[F]or a claim to be eligible for inclusion in the Initial Discovery Pool, plaintiffs and defendants involved in the claim 

must waive any applicable venue and forum non conveniens

challenges and agree that the claim can be tried in the United States District Court for the Southern District of New 

York without remanding the case to the transferor forum as 

required under Lexecon, 523 U.S. at 34.25

• In re Tylenol (Acetaminophen) Mktg., Sales Practices & 

Prods. Liab. Litig. (MDL No. 2436) (E.D. Pa.), Case Management Order No. 15: Bellwether Case Selection Plan and Core 

Case-Specific Discovery (Oct. 4, 2013):

For the six cases consisting of the Eligible Trial Pool, it shall 

be deemed that: a. The parties have consented to personal 

jurisdiction and venue in the Eastern District of Pennsylvania; and b. The parties agree to a limited Lexecon waiver for 

this purpose only, such that a case may be tried before this 

court in the event the action is selected for trial as part of 

the Bellwether Trial Program.

• In re Bard IVC Filters Prods. Liab. Litig. (MDL No. 2641) (D. 

Ariz.), Case Management Order No. 11: Bellwether Selection 

Process (May 5, 2016):

It is important for the use of the bellwether process that is

contemplated by this Order that both sides waive applicable 

25. See generally the official GM Ignition Switch Litigation website, 

maintained by the parties at the request of MDL Transferee Judge Furman of 

the U.S. District Court for the Southern District of New York, http://gmignitionmdl.com/ (last visited Apr. 4, 2019).
Bellwether Trials in MDL Proceedings

13

venue and forum non conveniens challenges  ... and stipulate that the initial scheduled trials can be conducted in 

the District of Arizona without remanding any case to the 

transferor forum under Lexecon v. Milberg Weiss (“Lexecon 

Waiver”). Accordingly, the selection of any case for inclusion ... constitutes a Lexecon Waiver by the side/party selecting the case. Upon receipt of the list of cases from opposing counsel, each side will have five (5) business days 

to notify the other side if they do not agree to waive Lexecon with respect to any of the cases selected by the other 

side. Plaintiffs’ Co-Lead Counsel and the Plaintiffs’ Steering 

Committee shall use best efforts to secure a Lexecon Waiver 

for any case selected to be included ... by Defendants. Defendants’ counsel shall use best efforts to secure a Lexecon 

Waiver by Defendants for any case selected to be included ... by Plaintiffs. If a plaintiff in a case selected for inclusion ... by Defendants does not provide a Lexecon Waiver, 

the plaintiff or his/her counsel shall show cause why a Lexecon Waiver is not being made. If Defendants do not provide a Lexecon Waiver for any case selected for inclusion ... 

by Plaintiffs, Defendants’ counsel shall show cause why a 

Lexecon waiver is not being made in that particular case. 

Any party required to show cause must appear in person 

or by telephone before the Court to explain why a Lexecon 

Waiver may not be made in the particular case.

For cases filed after the JPML orders MDL centralization, the 

transferee court could issue a pretrial order that allows for direct 

filing of cases. Such orders would allow plaintiffs to either (1) waive 

all venue-related objections or (2) stipulate that direct filing into the 

MDL does not constitute a waiver of venue-related objections as to 

trial. Even when the parties expressly reserve the right to object to 

venue as to trial, the court can follow up at a later time to ask that 

the parties consider waiving venue-related objections if a case looks 

like it would be worthy of inclusion in a bellwether case pool. This 

type of direct filing process may provide speed and cost benefits in 

larger MDL proceedings compared to a process that utilizes standard case transfers and blanket Lexecon waivers. However, while 

parties in directly filed cases could theoretically waive venue-related 

objections as to trial at any point, such a waiver is unlikely when 
Bellwether Trials in MDL Proceedings

14

there are strong strategic advantages to forum-shopping for a different trial venue.

As a later option following completion of MDL pretrial proceedings and following remand, the transferee court could suggest that a 

transferor court transfer the action back to the transferee judge for 

trial, pursuant to 28 U.S.C. § 1404 or 1406 (as long as the case might 

have been brought originally in the transferee district, all parties 

consent, or under §1406(b), the parties fail to interpose a timely and 

sufficient objection to the venue).26 Under this scenario, the original 

transferor judge would have the option of transferring the case back 

to the transferee district and judge for trial.

Finally, to avoid Lexecon issues altogether, the MDL transferee judge could hold bellwether trials in the federal districts where 

the cases were originally filed. To do so, the transferee judge would 

need to obtain an intercircuit or intracircuit assignment to sit by 

designation under 28 U.S.C. § 292. The resources of the courts and 

convenience of the parties should be considered when taking this 

approach.27

Examples of proposed intercircuit or intracircuit assignments 

include:

• In re Fluoroquinolone Prods. Liab. Litig. (MDL No. 2642) (D. 

Minn.), Second Amended Pretrial Order No. 13 on Bellwether 

Discovery and Trials (Jun. 5, 2017):

The Bayer Defendants have indicated their intent to not 

waive Lexecon for any case in the MDL. Therefore, the 

above-trial schedule will also be subject to approval of the 

intracircuit and/or intercircuit assignment of this Court to 

conduct the trials in the judicial districts where the Cipro 

Only Bellwether Trial Cases were originally filed and courtroom availability.28

• In re Skechers Toning Shoe Prods. Liab. Litig. (MDL No. 

2308) (W.D. Ky.), Order Regarding Early Mediation and Case

26. See MCL 4th § 20.132.

27. See MCL 4th § 20.132.

28. See generally the District of Minnesota’s MDL website, http://www.

mnd.uscourts.gov/MDL-Fluoroquinolone/ (last visited Apr. 4, 2019), where 

all pretrial orders and minutes are posted publicly.
Bellwether Trials in MDL Proceedings

15

Selection for Trial (Doc. No. 76) (May 3, 2012):

The Court may try any cases originating in the Western 

District of Kentucky without raising the Lexecon issue, but 

absent agreement of the parties, the Court may not try any 

case arising outside of and transferred to this district .... 

When meeting and conferring about the case selection 

process, the parties shall also consider the possibility of intercircuit or intracircuit assignment pursuant to 28 U.S.C. 

§§ 292 or 294. This process would allow the MDL judge 

to try agreed upon cases in the districts where they originated.29

• In re Xarelto (Rivaroxaban) Prods. Liab. Litig. (MDL No. 

2592) (E.D. La.), Case Management Order No. 2 (Doc. No. 

1305) (Sept. 18, 2015): The court announced its intent to hold 

four bellwether trials—two in the Eastern District of Louisiana (the transferee district) and one each in Mississippi and 

Texas (specific districts to be determined).

The Court’s selection of the locations for the third and 

fourth trials is subject to change, in the discretion of the 

Court, if (a) the Court is not able to obtain a temporary 

assignment to try a case in another district pursuant to 28 

USC 292, (b) the parties agree to waive Lexecon permitting 

the trial of a non-Louisiana plaintiff ’s case in the Eastern 

District of Louisiana, or (c) the Court determines after input from the parties that trial of a plaintiff ’s case in another 

venue is more appropriate.

• In re Boston Scientific Corp. Pelvic Repair Sys. Prods. Liab. 

Litig. (MDL No. 2326) (S.D.W. Va.), Pretrial Order No. 91: Order Consolidating Above Cases For Trial on All Issues (Apr. 

11, 2014): “At the conclusion of pretrial proceedings, it will 

be necessary to remand the cases to the Southern District of 

Florida, and I intend to try the consolidated cases there by 

intercircuit assignment with a planned trial date beginning on 

September 29, 2014, at 8:30 a.m.”

29. See generally the Western District of Kentucky’s MDL website, http://

www.kywd.uscourts.gov/multidistrict-litigation/mdl-2308 (last visited Apr. 

4, 2019), providing the master docket, orders, associated cases, and other 

information on the proceedings.
Bellwether Trials in MDL Proceedings

16

Consider Other Jurisdictional Implications

A district court sitting in diversity typically must apply the substantive law, including choice-of-law rules, for the forum state in which 

it sits. However, when transfer results in a change of venue for purposes of MDL pretrial proceedings, the transferee judge “generally 

must apply the substantive law of the transferor forum, including 

that forum’s choice-of-law rules and appropriate state law.”30 Thus 

for diversity-of-citizenship cases and in matters of state law, the 

transferee judge must apply the law that the transferor court would 

have applied, including its choice-of-law rules. For federal-question 

cases, the transferee judge generally applies the law of the judge’s 

own circuit.31

This pocket guide assumes that all MDL cases were properly 

filed in the transferor district court (i.e., that personal jurisdiction 

lies with the original transferor court) and does not address such jurisdictional challenges. Transferee judges, however, should be aware 

of the implications that recent Supreme Court decisions may have 

for the filing practices of parties, particularly in cases removed from 

state to federal court and then subsequently centralized in an MDL 

proceeding.32

30. Fed. Judicial Ctr. & JPML, supra note 21 at 8–9.

31. See MCL 4th § 20.132 (“Where the claim or defense arises under federal law, however, the transferee judge should consider whether to apply the 

law of the transferee circuit or that of the transferor court’s circuit, keeping 

in mind that statutes of limitations may present unique problems.” (citations 

omitted)); see also In re Sulfuric Acid Antitrust Litig., 743 F. Supp. 2d 827 

(N.D. Ill. 2010) (noting that in federal-question cases centralized under a 

multidistrict litigation, the law of transferor court warrants close consideration but does not bind the transferee court).

32. See Bristol-Myers Squibb Co. v. Superior Court of Cal., San Francisco 

Cty., 137 S. Ct. 1773 (2017) (holding that due process did not allow for 

exercise of specific personal jurisdiction in California state court over nonresident consumers’ product liability claims); BNSF Ry. Co. v. Tyrrell, 137 

S. Ct. 1549 (2017) (holding that the state of Montana could not exercise 

personal jurisdiction over a railroad under the Federal Employers’ Liability 

Act where the railroad did business, had employees, and operated on tracks 

in Montana, but where injuries did not occur in the state and the railroad 

was neither incorporated in nor maintained its principal place of business in 

Montana).
Bellwether Trials in MDL Proceedings

17

The transferee judge should also consider how substantive law 

variations will impact the liability and potential value of bellwether 

cases and determine where applicable law differs substantially between originating districts on key liability issues. For example, the 

availability of certain claims, defenses, and punitive damages may 

all differ.

To improve the ability to extrapolate from bellwether trial results to the larger docket, where Lexecon waivers have been executed, the transferee judge should consider selecting cases from jurisdictions that follow a “majority rule” on key liability issues. When 

jurisdictions are fairly split on a key issue of liability, consider including cases from both types of jurisdictions. Finally, when there 

are no pronounced differences in the substantive law of the various 

jurisdictions and enough cases exist, consider selecting bellwether 

cases from those originally filed in the transferee court. This avoids 

venue objections altogether and may be especially efficient in situations where the substantive law to be applied follows the majority 

rule for pertinent liability and defense doctrines.

19

Developing a Bellwether Case-Selection

Protocol and Case-Management Plan

Catalogue and Identify Key Characteristics of All MDL 

Cases

Consider requiring that plaintiffs collect data and provide the court 

with information on the composition of MDL cases. Alternatively, 

direct the parties jointly to collect and maintain information on the 

composition of MDL cases, perhaps with the assistance of electronic 

data-collection tools or third-party vendors, and to provide regular 

updates to the court. Requiring that the parties collect and routinely report information on the composition of the MDL docket will 

assist the court in identifying key variables that will allow for categorization of cases into major subsets or groups. Such variables may 

include plaintiff or defendant characteristics, the type of injury, the 

claims brought, the time when claims arose or a case was filed, or 

the availability of certain defenses.

To further assist with this process, the court can direct the parties, or appoint a special master, to identify relevant characteristics 

and specify the common issues that should be tested in a bellwether 

process.33 Having the parties identify such characteristics will allow 

the court to recognize patterns, consider aggregation of similar cases, and gain an understanding of what “representativeness” of claims 

and injuries means in a particular MDL proceeding.

Determine the Size of the Pool of Potential Bellwether Cases

First, ensure that a large enough pool of potential bellwether cases is chosen to capture the variety of fact and legal patterns comprised by the total set of MDL cases. The court should anticipate 

that some cases will drop out or will be deemed unrepresentative 

after case-specific discovery is completed. The court can structure a 

bellwether case-management plan so that it provides for early identification of such cases and ensures that a large enough case pool 

remains after the exclusion of any outliers. The case pool’s size will 

33. See MCL 4th § 22.316.
Bellwether Trials in MDL Proceedings

20

depend on the variety of claims and injuries in the proceedings. For 

example, in a mass, acute event or an industrial accident, causation 

issues may be nearly identical for all cases and the damages fairly 

homogenous. In other instances, where the types of exposures vary, 

the injuries alleged are diverse, or there is the need to rule out a 

number of alternative causes for individual cases, the case pool size 

may need to be much larger.

The court should also keep in mind that the bellwether case 

pool size chosen may impact the parties’ subsequent litigation strategies.34 While the size of the bellwether case pool will depend on 

litigation-specific factors, past MDL proceedings and guidance offer 

some suggestions, including the following examples:

• Judge Fallon noted that past MDLs suggested that a pool of 

twenty cases “should be satisfactory for situations in which the 

transferee court intends to hold approximately six trials, with 

four to five major variable groupings, while giving each side of 

attorneys a few vetoes or strikes during the final trial-selection 

phase.”35

• In re Xarelto (Rivaroxaban) Prods. Liab. Litig. (MDL No. 

2592) (E.D. La.), Case Management Order No. 3 (Nov. 20, 

2015): Judge Fallon ordered that the bellwether discovery pool 

should consist of forty cases from which to select four individual bellwether trial cases. Of the forty, ten cases were chosen 

by plaintiffs, ten were chosen by defendants, and twenty were 

randomly selected from particular categories based on overall 

MDL case characteristics.36

• In re Fosamax Prods. Liab. Litig. (MDL No. 1789) (S.D.N.Y.), 

34. See Loren H. Brown, Matthew A. Holian & Arindam Ghosh, 

Bellwether Trial Selection in Multi-District Litigation: Empirical Evidence in 

Favor of Random Selection, 47 Akron L. Rev. 663, 671 (2014) (“Selecting a 

small number of bellwether cases increases the stakes for both sides, whereas 

selecting a larger number of cases distributes the risk, but may be less manageable.”)

35. See Fallon et al., supra note 3, at 2347.

36. See generally the Eastern District of Louisiana’s MDL website, http://

www.laed.uscourts.gov/xarelto (last visited Apr. 5, 2019), posting information on developments, the litigation calendar, and pretrial, case management, 

and other orders.
Bellwether Trials in MDL Proceedings

21

Case Management Order No. 9 (Early Trial Selection Process) 

(Jan. 31, 2007): The parties picked twenty-five trial cases to 

proceed through expert discovery and from which three cases 

were to be selected for trial.

Confirm Cases Will Be Ready for Trial

Cases chosen for the initial pool must be sufficiently “trial-ready.” 

These selected cases must be suitable for fast-tracking case-specific discovery or already have had sufficient discovery completed to 

allow for trial within a reasonable time frame. The venue also must 

lie with the transferee court, or the parties must waive venue objections as to the selected case pool. Early individual case workups to 

ensure trial readiness also can help to ensure that any inaccuracies 

and misrepresentations in filings or plaintiff fact sheets are caught 

sufficiently early that they do not disrupt the bellwether case pool or 

trial sequencing process.37

Examples of past MDL orders addressing issues of trial readiness include the following:

• In re Actos (Pioglitazone) Prods. Liab. Litig. (MDL No. 2299) 

(W.D. La.), Scheduling Order: Pilot Bellwether Program (First 

Trial) (Feb. 19, 2013): Here, the court required that “Pilot Bellwether Discovery Pool Cases” include only non-class-action 

plaintiffs who had completed a fact sheet and medical record 

authorizations and where nominating counsel certified that 

the case could be ready for trial by a court-established cutoff 

date.

• In re Propecia (Finasteride) Prods. Liab. Litig. (MDL No. 

2331) (E.D.N.Y.), Discovery & Trial Plan, Practice and Procedure Order No. 10 (2d Amended) (Mar. 16, 2016):

Neither party may select a case for the Case Pool unless the 

Plaintiffs supplied to Counsel for Merck both: (i) substan37. See Dodge, supra note 18, at 352 (“[I]t is not unusual for a case to 

settle as the parties discover that it bears little resemblance to its [fact] sheet. 

The late discovery of these inaccuracies can substantially disrupt not only 

that bellwether trial but the sequencing of other bellwethers, and perhaps 

even the coordination of timing between the MDL and parallel state court 

proceedings.”).
Bellwether Trials in MDL Proceedings

22

tially completed medical record authorizations (meaning 

authorizations for the prescribing physician, the primary 

care physician, and pharmacy records), and (ii) a Plaintiff ’s 

Profile Form by no later than January 1, 2015.

Ensure Representativeness of Case Pool

In order to provide reliable information about the strengths and 

limitations of claims or defenses or global settlement value, bellwether cases must be representative of the range of cases included 

in the MDL proceeding. In addition, to have a meaningful impact 

on reaching global settlement, both sides must consider the selected 

bellwether case pool a fair sample of the docket, likely to provide 

an unbiased valuation of claims and the likelihood of success of defenses.38

Representativeness is litigation- and fact-specific. Relevant factors to consider when creating a representative case pool may include

• plaintiff characteristics

• injuries

• type(s) of claims brought

• date when claims arose or case was filed (e.g., before or after 

regulatory action, label change, or other major event)

• applicable law

• circumstances of exposure (e.g., length of exposure, dose, particular product at issue, particular indication for use)

• type of defendant

• defendant’s market share

• availability of affirmative defenses

Representativeness must also include the substantive law that 

will be applied. Generally, the transferee judge must use the transferor forum’s choice-of-law rules to determine which substantive 

38. “If the parties do not believe that their interests will be adequately 

represented in the bellwether trial process, they will not accept that the 

results are generalizable to other cases, making the process less likely to facilitate the resolution of many cases.” Brown et al., supra note 34, at 670 (citing 

Alexandra D. Lahav, Bellwether Trials, 76 Geo. Wash. L. Rev. 576, 637–38 

(2008)).
Bellwether Trials in MDL Proceedings

23

laws should apply. Substantive law may differ in a number of ways, 

including the availability of certain doctrines of liability, certain defenses, and punitive damages.

The court should watch for unique issues of causation, damages, 

or theories of liability that would make a case an outlier or facilitate grouping of certain subsets of cases. Consider creating multiple 

pools for bellwether case selections if the types of cases presented 

are particularly diverse; the types of settlement likely to be reached 

differ by injury, plaintiff, or defendant; or trial verdicts are likely to 

differ based on key characteristics (e.g., based on jurisdiction, types 

of relief available, or different legal theories at play). Where categories of cases are based on different scientific theories or evidence, 

consider asking the parties to present a science tutorial prior to finalizing a bellwether selection process in order to better understand 

the science and select the correct variables or parameters for representativeness.

The court should also note the origin of bellwether pool cases, 

that is, whether a particular plaintiff is represented by a solo practitioner, a member of the plaintiff steering committee, or a firm with 

a large number of cases filed in the litigation. If leading players are 

involved in the bellwether trial process, results may be perceived as 

providing more valuable information to facilitate global settlement. 

However, the court must also balance issues of fairness in the division of plaintiffs’ firms’ labor and ensure that all individual plaintiffs’ interests are addressed, not only those represented by the firm 

or firms with the largest number of cases in the MDL proceeding.

Finally, the transferee judge can reinforce the importance of 

representativeness through case management and bellwether trial 

selection orders. For example, in In re Yasmin and Yaz (Drospirenone) Marketing, Sales Practices and Products Liability Litigation

(MDL No. 2100) (S.D. Ill.), Amended Case Management Order No. 

24 (Oct. 13, 2010), the MDL transferee judge emphasized,

[T]he most critical element of this plan and the purpose it seeks 

to serve is for the most representative cases to be selected and 

for no one to lose sight of that objective. The Plaintiff ’s Steering Committee has a role to competently represent, at the very 
Bellwether Trials in MDL Proceedings

24

least administratively, all of the plaintiffs in this litigation. Defendant’s leadership committee must competently represent the 

defendants. Together, however, they share a common interest in 

this phase of the litigation, which is to put together a list of cases 

that most accurately represent the typical case at issue in this litigation. Successful fact gathering during the bellwether process 

could well lead to an earlier conclusion to this litigation rather 

than a protracted litigation process, thereby conserving precious 

resources, redirecting resources, shaping expectations and serving the ends of justice for all concerned. Little credibility will be 

attached to this process, and it will be a waste of everyone’s time 

and resources, if cases are selected which do not accurately reflect the run-of-the-mill case. If the very best case is selected, the 

defense will not base any settlement value on it as an outlier. If a 

case is picked that is dismissed on summary judgment, after the 

Plaintiff ’s evidence or a jury’s verdict when it is obviously a weak 

case, the [plaintiffs’] side will look upon it as an outlier as well.39

Select Cases to Fill the Bellwether Case Pool

The MDL framework provides flexibility for the transferee judge to 

tailor the case-pool selection process to best facilitate resolution of 

a particular MDL proceeding. For example, “ideal” bellwether cases 

may differ based on whether the goal is to evaluate the viability of 

a range of claims, resolve particular contested issues, evaluate the 

strengths and weaknesses of “average” cases, or determine ranges 

of damages juries are likely to award.40 While the “best” case pool 

in some instances may be one in which the parties and the court 

all agree on the included cases, if the parties are unable to select 

representative cases jointly, other strategies are available. Possible 

case-selection methods and their pertinent considerations include 

the following:

39. Amended Case Management Order No. 24, at 4–5.

40. See Bolch Judicial Institute & Duke Law School, Standards and Best 

Practices for Large and Mass-Tort MDLs [hereinafter Duke Mass-Tort Practices], at 23 (Dec. 19, 2014) (“For example, does the judge want the parties 

to propose their strongest cases, or does the judge want to see cases that teeup particular contested issues?”).
Bellwether Trials in MDL Proceedings

25

1. Allow one side to pick all cases. This method may generally lead 

to bias in favor of the controlling party and may discourage the 

other party from participating in a bellwether trial process to 

the fullest extent possible, frustrating resolution of the MDL 

instead of providing a vehicle for global settlement. However, 

in some instances, it may be appropriate for one party to select 

a few test cases, particularly where a novel, unique theory of 

liability warrants separate testing.41

2. Divide case selection between the two sides. Simply permitting 

the plaintiffs and defendants to each choose some number of 

cases for the bellwether pool may similarly skew the information that is produced, leading to a pool that contains only extreme cases for each side. In theory these two extremes might 

average out to reasonable assessments of the value of a docket, 

or at least provide data on the outer boundaries of settlement 

values. However, in practice, the parties may be introducing 

additional bias to this process through advocacy. For example, 

one party may have an informational advantage in selecting favorable individual cases from the docket. Additionally, a party 

may choose to dismiss cases to skew the case pool in its favor 

after the case-pool selection process has been implemented.42

3. Have the court select representative cases to include in the case 

pool. In larger MDL proceedings, however, the transferee 

court may not have sufficient, requisite familiarity with individual cases to select cases for the pool without assistance 

from the parties.

4. Randomly select cases from the entire MDL proceeding. As a 

general statistical principle, random sampling is considered 

the standard method for helping ensure that a sample is representative of the population. Additionally, random selection 

prevents gamesmanship by the parties during case selection 

and may prevent certain attorneys from filing questionable 

41. See King ex rel. King v. Sec’y of Health & Human Servs., No. 03-

584V, 2010 WL 892296, at *8–9 (Fed. Cl. Mar. 12, 2010) (adopting an 

approach by which the petitioners’ steering committee designated three 

“test cases” to be brought before special masters in order to test three unique 

causation theories regarding an alleged link between childhood vaccines and 

autism).

42. See Brown et al., supra note 34, at 676–77.
Bellwether Trials in MDL Proceedings

26

cases and remaining silent until a broad settlement comes 

within reach. Under a random selection process, such cases 

would be subject to scrutiny (and dismissal) early on, especially if they represented a large enough percentage of the 

docket that selection of such a case were likely.43 This approach 

was endorsed previously in the Manual for Complex Litigation

and has been used by transferee judges.44 However, recent 

guidance suggests that random selection might not necessarily lead to representative cases and verdicts to assist in reaching 

global settlement. In theory, if 90% of litigants suffer one type 

of injury and 10% suffer another type, then a bellwether case 

pool chosen at random would also follow the same representative 90/10 pattern. However, for small case pools drawn from 

large MDL proceedings, this ideal scenario will very rarely, if 

ever, pan out due to random chance and variability.45

43. See Dodge, supra note 18, at 350–51 (noting “there are a small group 

of counsel that do not exercise diligence on the front end to catch those 

individuals that are seeking to file false claims.” This may in part be because 

“highly coveted leadership positions are appointed, in part, based upon the 

size of counsel’s inventory.” It may also be due to a lack of resources as the 

size of a firm’s inventory increases, failure to work up each individual claim, 

and a strong incentive to rapidly develop large inventories of claimants. For 

nonleadership plaintiff attorneys, “the financial incentive is to invest as little 

as possible in the individual case, as any time invested will not impact their 

ultimate payout—as only time spent on developing generic assets, and not 

individual cases, is compensable as common-benefit work.”).

44. See MCL 4th § 22.315 (“To obtain the most representative cases from 

the available pool, a judge should direct the parties to select test cases randomly or limit the selection to cases that the parties agree are typical of the 

mix of cases.”); In re Chevron U.S.A., 109 F.3d 1016, 1019 (5th Cir. 1997) 

(“A bellwether trial designed to achieve its value ascertainment function 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.”).

45. See Fallon et al., supra note 3, at 2348 (“If cases are selected at random, there is no guarantee that the cases selected to fill the trial-selection 

pool will adequately represent the major variables.”); Fed. Judicial Ctr., Nat’l 

Ctr. for State Courts & JPML, Coordinating Multijurisdiction Litigation: A 

Pocket Guide for Judges 12 (2013), (“Selecting cases randomly ... is unlikely 
Bellwether Trials in MDL Proceedings

27

5. Adopt a modified approach to randomization. For example, establish multiple pools or subsets of cases based on key characteristics, such as plaintiff demographics, claims, available 

defenses, type of injury sustained, or governing law, and then 

randomly select cases from those subsets to help ensure the 

representativeness of cases selected. This type of stratified or 

cluster sampling based on key characteristics or demographics 

may help to ensure that the bellwether case pool reflects the 

frequency of these characteristics in the total set of MDL cases. 

Such sampling may preserve many of the benefits of random 

selection while ensuring that certain plaintiffs, claims, defenses, injuries, or other key litigation attributes are represented in 

the bellwether case pool.46

6. Utilize a grid system to select cases with certain characteristics.

Where the ultimate goal is to extrapolate bellwether results to 

conduct a valuation of the docket as a whole and reach a global 

settlement, the bellwether case pool can be selected with a potential global settlement structure in mind. For example, the 

court may consider creating a grid or categorization of cases, 

similar to global settlement grids, to test potential settlement 

categories. The parties can then select a certain number of cases that fall within each grid category to develop further for 

trial, from which bellwether cases can then be selected.47

Any of these strategies may be combined or modified to produce a hybrid approach. For example, the court could allow both 

parties to select some cases and reserve others for the court to select 

or for random selection. Alternatively, the court could propose the 

global case-pool grid or case characteristics from which subsets of 

to produce a representative set of verdicts that will assist the parties in reaching a global settlement.”).

46. See, e.g., Meranus v. Gangel, No. 85 CIV. 9313 (WK), 1991 U.S. 

Dist. LEXIS 8731, at *4 (S.D.N.Y. June 26, 1991) (“Because clusters of 

plaintiffs may have different attributes, then, stratified random sampling 

rather than pure random selection may be necessary. This, in turn, requires 

identification of the pertinent characteristics and categorization of the plaintiffs according to those factors.”).

47. See Duke Mass-Tort Practices, supra note 40, at 24; Dodge, supra note 

18, at 378 (“[I]t may be more helpful to create a sample case grid, selecting 

cases that represent each of those imagined subgroups.”).
Bellwether Trials in MDL Proceedings

28

cases could be chosen, and the parties could select cases to fill this 

grid. Other variations on the above strategies that have been used in 

past MDL proceedings include the following:

• Allow each side to recommend a set number of cases for the 

pool, but allow the other side strikes or vetoes over a certain 

number of selections to curb the parties’ inclination to put 

forth their best—but potentially unrepresentative—cases.

• Require that each side provide a written report to the court on 

how its selections are statistically and qualitatively representative of the MDL.

• Allow one side to pick the cases that go into the initial discovery pool and the other side to select the bellwether cases from 

that pool.

• Allow each side to exercise alternating picks for the case pool 

and/or the cases selected from the pool to schedule for trial.

• Pick cases at random, but then allow each side a certain number of vetoes of cases where there are sufficient facts to support 

the parties’ view that a selected case is not representative.

• Pick a larger set of cases at random, and then allow the parties 

to propose a subset of those that they deem most representative. Include in the final case pool the set of cases on which 

plaintiffs and defendants agree.48

Regardless of the case-pool or trial-selection measures used, the 

ultimate goal should be to obtain representative data to assist with 

global settlement or move the MDL proceeding forward efficiently. 

The judge must consider whether to override the parties’ picks when 

it appears the parties have yielded to the pressures of advocacy by 

picking their best cases without regard to their representativeness.

Examples of the above bellwether pool selection strategies 

employed in past MDL proceedings include

• In re Bextra & Celebrex Mktg. Sales Practices & Prod. Liab. 

Litig. (MDL No. 1699) (N.D. Cal.), Pretrial Order No. 18: Initial Selection of Plaintiffs for Discovery and Trial Pool (Nov. 

17, 2006): The transferee judge adopted a bellwether selection 

method that relied in part on a random-case-selection meth48. Adams v. Shell Oil Co., 136 F.R.D. 588, 597 (E.D. La. 1991).
Bellwether Trials in MDL Proceedings

29

od using randomization software. The parties each chose ten 

plaintiffs and twenty-five plaintiffs were randomly selected, 

for a bellwether case pool of forty-five plaintiffs in total.

• In re Chantix (Varenicline) Prods. Liab. Litig. (MDL No. 2092) 

(N.D. Ala.), Pretrial Order No. 9: Selection of Bellwether 

Plaintiffs for Discovery & Trial (Mar. 10, 2011): The discovery pool consisted of twenty-eight cases, fourteen chosen by 

the plaintiffs’ counsel and the other fourteen by the defendant. 

Each set of fourteen cases was required to include four suicide 

cases, three attempted suicide cases, and seven neuropsychiatric injury cases.

• In re FEMA Trailer Formaldehyde Prods. Liab. Litig. (MDL 

No. 1873) (E.D. La.), Pretrial Order No. 28 (Feb. 10, 2009): 

The court required that the parties submit the names of at 

least fifty potential bellwether trial plaintiffs for four trials, 

with trailer manufacturer defendants for those four trials to be 

the four estimated to have the largest numbers of emergency 

housing units at issue in the proceedings.

• In re Fluoroquinolone Prods. Liab. Litig. (MDL No. 2642) (D. 

Minn.), Second Amended Pretrial Order No. 13 On Bellwether Discovery and Trials (Jun. 5, 2017): Two separate bellwether case pools were established based on product use, one for 

“Avelox Only Discovery Cases” and one for “Cipro Only Discovery Cases.”

• In re Medtronic Implantable Defibrillator Prod. Liab. Litig.

(MDL No. 1726), No. CIV 05MDI726, 2007 WL 846642, at 

*3 (D. Minn. Mar. 6, 2007): The selection protocol utilized a 

combination of joint party selection, random selection, and 

case preemptory strikes by each side to arrive at bellwether 

cases.

• In re Pradaxa (Dabigatran Etexilate) Prods. Liab. Litig. (MDL 

No. 2385) (S.D. Ill.), Case Management Order No. 11: Unified 

Case Management Plan for Boehringer Ingelheim International GmbH (Oct. 19, 2012): The transferee judge required that 

the parties submit to the court a proposed order identifying 

the “process and parameters” for selecting bellwether plaintiffs, including “(i) categories from which bellwether plaintiffs 

shall be selected; (ii) characteristics which can be used to de-
Bellwether Trials in MDL Proceedings

30

lineate said categories; and (iii) numbers of plaintiffs.”49

• In re Tylenol (Acetaminophen) Mktg., Sales Practices and 

Prods. Liab. Litig. (MDL No. 2436) (E.D. Pa.), Case Management Order No. 15: Bellwether Case Selection Plan and Core 

Case-Specific Discovery (Oct. 4, 2013): The court stated the 

goal of trying “cases that are both instructive and meaningful to the resolution of all cases in this MDL”; noted that the 

“vast majority” of cases involved over-the-counter (OTC)

Tylenol products; and required that bellwether trials involve 

OTC Tylenol and the two most-frequently named defendants 

instead of less-frequently named co-defendants and less-frequently used prescription products.

Account for Dismissals and Settlements

Representativeness should be maintained throughout the selection 

and trial process, including the replacement of any cases that drop 

out of the pool. The transferee judge should consider mitigating the 

gamesmanship behavior of dismissing or settling unfavorable cases 

on the eve of trial and thereby distorting the case pool, by allowing plaintiffs to choose the replacement case where defendants settle and allowing defendants to choose the replacement case where 

plaintiffs voluntarily dismiss a bellwether case.50 In addition, the 

court could require that the parties certify that the cases they propose for the bellwether case pool are intended for trial and are not 

likely candidates for early settlement.51

The court should familiarize itself with the bellwether pool generally, including those cases that leave the pool prior to trial. Set49. See generally Pradaxa MDL website, S.D. Illinois, available at http://

www.ilsd.uscourts.gov/mdl/mdl2385.aspx (last visited Apr. 5, 2019).

50. See Duke Mass-Tort Practices, supra note 40, at 30 (“Although there 

may be good-faith reasons for settling or voluntarily dismissing a test case, 

there could be instances in which the parties do so to manipulate the takeaways from the bellwether process.”).

51. See, e.g., In re Actos (Pioglitazone) Prods. Liab. Litig. (MDL No. 

2299) (W.D. La.), Scheduling Order: Pilot Bellwether Program (First Trial) 

(Feb. 19, 2013) (requiring that case-nominating counsel certify that the 

discovery pool nominee could be ready for trial by a set date, that counsel 

intends to try the case (not settle or dismiss), and that counsel has no reason 

to believe that the case will settle individually prior to trial).
Bellwether Trials in MDL Proceedings

31

tled or dismissed cases may suggest that there are certain clusters 

of cases that are particularly strong or weak for a given party compared to those that remain in the bellwether trial pool. Settlement 

or dismissal can inform the court’s role as gatekeeper and provide 

a data point for global settlement. For example, repeated voluntary 

dismissals may signify that a type of case has significant weaknesses 

and may be a candidate for dispositive motion practice or a consolidated trial under Federal Rule of Civil Procedure 42(a).52

Utilize Data-Collection Tools for Case Selection and

Monitoring

There are a number of data-collection tools and strategies that the 

transferee judge can utilize to ensure that the bellwether selection 

pool is appropriately selected and that chosen pool cases progress 

efficiently toward trial. As a general principle, the court should establish a system to obtain, on an ongoing basis, information jointly 

from the parties as to the status of cases centralized in the MDL proceeding, including information on dismissal, settlement, discovery, 

and injury type. For individual cases, the transferee judge should 

also ensure that any necessary medical or employment record authorizations are submitted in a timely manner to provide sufficient 

evidence about plaintiffs’ claims and to determine whether they 

should be included in a bellwether pool.

In addition, the court can encourage the parties to adopt electronic data-collection tools to better track and understand the cases 

that have been filed and to help identify major variables on which 

individual case outcomes may turn. For example, several transferee 

52. See Duke Mass-Tort Practices, supra note 40, at 21 (“Many bellwether 

cases resolve along the way, whether because of errors in the plaintiff fact 

sheet, special factors that strengthen or weaken the case during discovery 

that were not anticipated at the outset, or because of the court’s early rulings. 

These cases should not be regarded as failures. Instead, they are important 

data points, helping the lawyers better understand the ground reality of the 

cases—which may vary considerably from the hypothetical plaintiff that has 

been the idealized subject of early negotiations. Indeed, the reasons these 

cases drop out—gamesmanship, good advocacy, plaintiffs disappearing, the 

outcome of preliminary motions—all provide insights into how the broader 

pool of cases may fare.”).
Bellwether Trials in MDL Proceedings

32

judges have adopted the use of early, electronic plaintiff fact sheets 

to facilitate bellwether case-pool selection.53 Some courts have requested that the parties utilize software that gathers and groups data 

from those electronic fact sheets and produces summary reports on 

them, to help guide bellwether case-pool selection. Sampling techniques, surveys, and questionnaires are other possible measures that 

can help facilitate test-case selection and identify subsets of cases 

that might require different considerations in the bellwether selection and trial process.54

Examples of the use of such data-collection strategies include

• In re Xarelto (Rivaroxaban) Prods. Liab. Litig. (MDL No. 2592) 

(E.D. La.), Case Management Order No. 3 (Nov. 20, 2015):

All party selections and all random selections must come 

from representative categories utilizing data generated from 

MDL Centrality [a litigation management platform the parties previously agreed to use]. Pursuant to Case Management Order 2 the parties will advise the Court prior to the 

December 21, 2015 status conference whether they have 

agreed upon eligibility requirements and substantive categories for the 40 discovery pool plaintiffs.

• In re Gen. Motors LLC Ignition Switch Litig. (MDL No. 2543) 

(S.D.N.Y.), Order No. 25 Regarding the Selection of Personal 

Injury and Wrongful Death Bellwether Cases and Early Trial 

Scheduling (Nov. 19, 2014):

To facilitate efficient review of claim information, Lead 

Counsel shall place all Short-Form PFSs submitted by the 

deadline in an electronic and searchable database .... Immediately after the electronic and searchable fact sheet database is made available to counsel for the MDL Defendants, 

Lead Counsel and counsel for the MDL Defendants will 

meet and confer regarding (a) the type of alleged defects 

that should be encompassed within the scope of the bellwether trial plan and (b) the categorization of claims in the 

plan.

53. See Rothstein & Borden, supra note 10, at 41 (“In many MDL mass 

torts, courts have ordered claimants to complete plaintiff fact sheets, disclosing critical information such as the circumstances of their exposures and 

the severity of their injuries, to facilitate settlement negotiations or improve 

claim administration following settlement.”).

54. See id. at 36.
Bellwether Trials in MDL Proceedings

33

Choose and Order Bellwether Cases for Any Additional 

Discovery and Trial from the Case Pool

After completing core case-specific discovery for the bellwether case 

pool, a subset of cases from the pool must be selected and ordered 

for any additional discovery and trial. Strategies similar to the ones 

outlined above for case-pool selection are also suitable for picking 

bellwether trial cases. Past guidance has recommended to the transferee judge,

If possible, require counsel to agree on all bellwether cases. If the 

attorneys fail to agree, you may permit the plaintiffs and defendants to each choose some of the cases to try. This could skew 

the information that is produced, but by permitting each side a 

certain number of vetoes, you can minimize the chances of an 

unrepresentative case serving as a bellwether trial.55

By the time that plaintiffs are selected and ordered for the first 

bellwether trials, the transferee judge also has the benefit of additional factual information from discovery to more effectively exclude outliers that are not representative of the larger docket.

A sampling of past orders selecting plaintiffs for bellwether trials include

• In re Actos (Pioglitazone) Prods. Liab. Litig. (MDL No. 2299) 

(W.D. La.), Scheduling Order: Pilot Bellwether Program (First 

Trial) (Feb. 19, 2013): From among the ten cases in the case 

pool, plaintiffs identified the nominee for the first bellwether trial and defendants identified the nominee for the second 

bellwether trial.

• In re Chantix (Varenicline) Prods. Liab. Litig. (MDL No. 2092) 

(N.D. Ala.), Pretrial Order No. 9: Selection of Bellwether 

Plaintiffs for Discovery & Trial (Mar. 10, 2011):

After initial discovery, the parties shall provide the Court 

with (a) a summary of the Discovery Pool cases, including 

key medical records ... and (b) briefs from each side setting forth the parties’ respective positions on which cases 

are most representative of the then-existing docket. After 

consideration of those summaries and briefs . . . the Court 

will select [the bellwether cases to be tried].

55. See id. at 45–46.
Bellwether Trials in MDL Proceedings

34

• In re Fosamax Prods. Liab. Litig. (MDL No. 1789) (S.D.N.Y.), 

Case Management Order No. 9 (Early Trial Selection Process) 

(Jan. 31, 2007):

After fact discovery is completed, the three trial cases, to be 

tried separately before different juries in this Court, will be 

selected. The PSC shall select one case, Merck counsel shall 

select one case, and the Court shall select a third case. The 

Court will randomly select the order in which each of the 

three cases will be tried.... Once the three trial cases are 

selected, expert discovery will proceed in all three cases.
35

Selecting Bellwether Trial Structure

The structure, timing, and issues to be decided in bellwether trials 

are flexible and can be adapted to the circumstances or needs of a 

particular MDL. Federal Rule of Civil Procedure 42(b) allows multiple actions to be joined for trial for “any or all matters at issue” and 

for bifurcation or further division into separate trials on any issues 

or claims in actions “[f]or convenience, to avoid prejudice, or to 

expedite and economize[.]” For example, bellwether trials may be 

consolidated, bifurcated or multifurcated by issue or damages, handled in a class format, or conducted separately as single, individual 

trials. In some instances, a joint trial of common issues may be feasible, with separate trials following for remaining issues.56 Based on 

the circumstances, the transferee judge’s potential bellwether trial 

plans might include the following:

• Schedule a series of individual trials on all issues. While such 

trials will not have a preclusive effect on other MDL cases, they 

can inform parties about likely court rulings and the range of 

jury verdicts that may be expected in similar cases.

• Bifurcate trials on issues of liability and damages.57

• Conduct a consolidated or joint trial on a common issue,58

56. See MCL 4th § 22.93 (“In pursuing traditional or test case trials, the 

judge may conduct a unitary trial, bifurcate liability and damages, or create 

other helpful trial structures.”).

57. Note, however, that if bifurcation will require the parties to present 

duplicative evidence, it could create inefficiencies that MDL proceedings 

in general and bellwether trials in particular were designed to prevent. See 4 

William Rubenstein, Alba Conte & Herbert B. Newberg, Newberg on Class 

Actions § 11:17 (5th ed. 2014).

58. See, e.g., In re Welding Fume Prods. Liab. Litig. (MDL No. 1535) 

(N.D. Ohio), Case Administration Order, Document No. 1724 (March 

31, 2006) (“The Court discussed with the parties the concept of holding a 

‘common issues trial,’ pursuant to Fed. R. Civ. P. 23(c)(4)(A). The use of a 

common issues trial has been very effective at achieving resolution in certain 

litigations.... Accordingly, the Court directs the parties to submit an agreed 

briefing schedule for the filing of simultaneous briefs, followed by simultaneous response briefs, addressing all practical considerations relevant to 

the conduct of a common issues trial in this MDL.... The Court seeks help 

from the parties in answering the following questions, as well as identifying 

any other questions that are relevant. Assuming the Court chooses to pursue 
Bellwether Trials in MDL Proceedings

36

then conduct separate trials later to resolve any individualized 

issues or unique fact patterns, claims, or injuries.

• Decide Daubert motions in the context of the first bellwether, or alternatively, hold Daubert hearings and decide summary judgment first on threshold issues for the entire MDL 

proceeding and then conduct bellwether trials to decide any 

remaining issues.59

Note, however, that the Seventh Amendment right to a jury trial 

limits the ability to extrapolate causation and damages findings by a 

jury in one personal injury trial to other cases in the MDL proceeding without clear consent by the parties that such outcomes will be 

binding.60

the idea, what common issues should be addressed? Should it be a trial to 

a jury or the bench? What might jury instructions and interrogatories look 

like? What other practical, procedural, and substantive matters must be addressed? The parties need not address the question of whether the Court has 

the authority to conduct a common issues trial.” (citations omitted)).

59. See In re Genetically Modified Rice Litig. (MDL No. 1811) (E.D. 

Mo.) (Judge Perry first denied class certification and then held bellwether 

trials. In the first trial, Judge Perry issued a detailed opinion on summary 

judgment and Daubert motions, which could also be applicable in large part 

to subsequent cases that went forward.).

60. See MCL 4th § 22.93.
37

Coordinating with State Judges on Related 

Cases

Whenever feasible, the transferee court should work actively with 

state courts that express interest in coordinating discovery activity 

and trial schedules. When there is active communication between 

state and federal judges with related cases, a bellwether process can 

inform multiple sets of litigations and help contain costs across other jurisdictions as well.61 For example, early state trials may inform 

MDL bellwether case selection and strategy. In some instances, 

state-federal coordination may lead a transferee judge to postpone 

MDL bellwether trials and allow judges more familiar with particular governing state law to conduct early trials.62

To facilitate state-federal coordination, the transferee judge 

should require that the parties identify related proceedings in state 

courts in order to coordinate bellwether trial schedules and avoid 

scheduling scenarios that might inadvertently give one party or set 

of parties a strategic advantage. The court can also appoint state-federal liaison counsel. Finally, where other courts are amenable to 

coordination, the court could issue joint coordination orders with 

state courts on pretrial and discovery matters, including orders on 

61. For a comprehensive general resource on state-federal coordination, 

see Fed. Judicial Ctr., Nat’l Ct. for State Courts & JPML, Coordinating 

Multijurisdiction Litigation: A Pocket Guide for Judges (2013). Model 

orders relating to state-federal coordination can be found at https://multijurisdictionlitigation.wordpress.com/ (last visited Apr. 5, 2019). “Effective coordination between the federal and state courts in an MDL action 

promotes cooperation in scheduling hearings ... [and] conducting and 

completing discovery, facilitates efficient distribution of an access to discovery work product, avoids inconsistent federal and state rulings on discovery 

and privilege issues, if possible, and fosters communication and cooperation 

among litigants and courts that may facilitate just and inexpensive determination.” Duke MDL Practices, supra note 17, at 71.

62. See MCL 4th § 20.312; see also Duke MDL Practices, supra note 

17, at 76 n.231 (citing silicone gel breast implant and diet drug litigations 

as “models for state-federal cooperation” in which “the transferee judge 

took the lead in implementing a comprehensive state-federal discovery plan 

while state judges presided over individual trials and settlements” in order to 

conduct efficient, consolidated discovery while still thoroughly developing 

individual cases to inform aggregate settlements (citations omitted)).
Bellwether Trials in MDL Proceedings

38

bellwether case-pool discovery, trial selection, and trial schedules.

The transferee judge can also use a number of informal strategies 

to keep state judges and parties informed about the MDL proceeding and avoid trial scheduling conflicts. For example, apprise state 

courts of MDL developments by maintaining an MDL website and 

updating it as soon as new orders are issued. The transferee judge 

could also contact state court judges with related cases directly. In 

addition, the transferee judge may consider conducting “periodic 

teleconferences in which all the parallel court judges participate to 

make sure that the cases are moving along at about the same pace 

and, if not, ensuring that the judges are aware of the divergence and 

the impact it may have on the parties’ actions in their own cases.”63

Examples of past federal-state joint coordination orders include

• In re Gen. Motors LLC Ignition Switch Litig. (MDL No. 2543) 

(S.D.N.Y.), Joint Coordination Order, Order No. 15 (Sept. 24, 

2014):

[I]n order to achieve the full benefits of this MDL proceeding, the MDL Court has and will continue to encourage coordination with courts presiding over related cases, to the 

extent that those courts so desire, up to and including issuance of any joint orders that might allow full cooperation 

as between and among the courts and the parties.... As the 

MDL Court indicated at the initial case management conference, and has been reiterated thereafter, the MDL Court 

intends to work actively to reach out to any court that is 

interested in coordinating discovery activities. The MDL 

Court expects counsel for parties in the MDL proceeding to 

help ensure that such coordination is achieved wherever it 

is practicable and desired by a given court or courts.

• In re Zimmer NexGen Knee Implant Prods. Liab. Litig. (MDL 

No. 2272) (N.D. Ill.), Agreed Case Management Plan Regarding Coordination with Other Litigation: CMO 5 (Aug. 29, 

2012):

In order to achieve the full benefits of this MDL proceeding, this Court may make efforts to coordinate with state 

courts presiding over related cases, to the extent such state 

courts so desire, such as through joint orders that will allow 

the parties in the state court actions to fully utilize any dis63. Duke Mass-Tort Practices, supra note 40, at 93.
Bellwether Trials in MDL Proceedings

39

covery conducted in the MDL proceedings and vice versa, 

without prejudice to either the state or federal court actions. 

The Court expects counsel for parties in the MDL proceeding to take reasonable steps to assure such coordination is 

achieved wherever it is practicable. To that end, lead counsel for the parties shall jointly submit to the Court as needed 

a status report on the state court cases, along with contact 

information for all state court judges presiding over such 

cases.

• In re Testosterone Replacement Therapy Prods. Liab. Litig. 

(MDL No. 2545) (N.D. Ill.), Amended Case Management Order No. 17, Coordination with State Court Cases—Appointing Indiana and California Liaison Counsel, Document No. 

542 (Jan. 7, 2015): “The State-Federal Liaison Counsel for 

plaintiffs and each defendant shall use their best efforts to coordinate discovery and case schedules in the MDL proceeding 

with discovery and case schedules in the state court cases, in 

order to enhance efficiency and avoid undue duplication of 

effort and unwarranted expense.”

• In re Pradaxa (Dabigatran Etexilate) Prods. Liab. Litig. (MDL 

No. 2385) (S.D. Ill.), Case Management Order No. 11 (Unified 

Case Management Plan for Boehringer Ingelheim International GmbH) (Oct. 19, 2012):

If any state court in California, Connecticut, Illinois or Nevada (if any cases are filed there) sets a trial (other than the 

Connecticut trial referenced above) to commence during 

the current schedule for bellwether trials in this MDL (August 11, 2014 through March 31, 2015), MDL lead counsel 

shall notify the MDL Court immediately. In such instance, 

the MDL Court intends to coordinate with such state court, 

and if necessary, delay the MDL bellwether trial set at the 

same time as such a state court trial, so that two Pradaxa 

trials are not simultaneously occurring until the end of 

the MDL bellwether trial schedule as set forth above concludes .... It is the intent of the parties that no other trial 

dates earlier than those set in this Order except as may be 

required pursuant to California Civil Practice Section 36 or 

in comparable, in extremis situations in other jurisdictions 

take place.

• In re Syngenta AG MIR162 Corn Litigation (MDL No. 2591) 
Bellwether Trials in MDL Proceedings

40

(D. Kan.), Coordination Order (Document No. 1099) (Oct. 

21, 2015):

[T]oday the MDL Court is filing its Scheduling Order No. 

2 which, highly summarized, establishes a protocol for 

a smaller pool of ‘bellwether’ cases for discovery purposes .... Thousands of state court actions related to the MDL 

Proceeding already are pending in Minnesota, while other 

actions are pending in Louisiana, and additional actions 

may be filed in the future (the ‘Related Actions’)  .... To 

achieve the full benefits of this MDL proceeding, the MDL 

Court has and will continue to encourage coordination 

with courts presiding over Related Actions to coordinate 

discovery activities and other pretrial activities wherever 

it is practicable and desired by a given court or courts ....

The coordination of pretrial proceedings in the MDL Proceeding and the Related Actions will likely minimize undue 

duplication of discovery and undue burden on courts, parties, and non-parties in responding to discovery requests, 

save substantial expense by the parties and non-parties, and 

produce substantial savings in judicial resources.
41

Mediation

Bellwether trials are just one of the many case-management practices available for MDL proceedings. One alternative to trial is to 

suggest that the parties resolve at least some claims or cases through 

mediation or another form of alternative dispute resolution. Mediations can be scheduled as an alternative to bellwether trials, or 

concurrently with them, and can be utilized even where global settlement seems unlikely.

Coordinating mediation and trial schedules in the MDL proceeding can offer several advantages. First, mediation values obtained through a more methodical, overseen third-party process 

may better inform global settlement than settlements reached in 

individual cases on the eve of a bellwether trial. Mediations also do 

not require Lexecon waivers. Plaintiffs can always opt out and preserve their right to a trial. Confidential mediation may also encourage greater cooperation and candor among the parties.

Note, however, that for mediation to succeed, the parties must 

be open to settlement of at least some subset of representative cases. 

For this reason, mediation may be more viable when enough discovery has been completed that the parties are prepared to engage 

in substantive discussions regarding case merit and value; when the 

parties do not contest questions of liability or causation and instead 

dispute the degree or value of damages; when the outcomes of other 

products in a class also subject to litigation have resulted in trials 

and settlements already; or when any contested issues regarding liability have already been decided or subjected to dispositive motions.64 The court should keep such considerations in mind when 

developing bellwether trial schedules, encouraging settlement, appointing special masters, ordering mediation and settlement negotiations, or encouraging the parties to consider other forms of alternative dispute resolution.

The following are examples of bellwether trial and mediation 

coordination:

64. See Adam S. Zimmerman, The Bellwether Settlement, 85 Fordham L. 

Rev. 2275, 2286–87, 2298 (2017).
Bellwether Trials in MDL Proceedings

42

• In In re Baycol Product Liability Litigation, the court established a settlement and mediation program. A special master 

and five attorneys (two selected by plaintiffs, two by defendants, and one by the court) developed the settlement program and recommended mediators for appointment, subject 

to the court’s approval. The program was overseen by the special master.65 Soon after, the court also established a separate 

protocol for bellwether trials.66

• In In re Skechers Toning Shoe Products Liability Litigation, the 

Court ordered that the parties confer regarding mediation 

early in the MDL process, stating, “Early mediation can serve 

as a powerful tool for finding a global resolution of these proceedings, so much so, that the Court mandates the parties to 

meet and confer about the possibility of early mediation.”67

• In In re Zimmer NexGen Knee Implant Products Liability Litigation (MDL No. 2272) (N.D. Ill.), Judge Pallmeyer required 

that the parties engage in mediation between two sets of bellwether trials.68

65. See In re Baycol Prod. Liab. Litig. (MDL No. 1431) (D. Minn.), 

Pretrial Order No. 59 (Settlement Mediation Order) (Jan. 2, 2003); see also

Pretrial Order No. 64 (implementing and further clarifying the Court-Sponsored Baycol Settlement and Mediation Program).

66. See id., Pretrial Order No. 89 (July 30, 2003) (establishing a case-selection protocol for trials in the transferee court).

67. In re Skechers Toning Shoe Prod. Liab. Litig. (MDL No. 2308) (W.D. 

Ky.), Order Regarding Early Mediation and Case Selection for Trial (Doc. 

No. 76) (May 3, 2012).

68. See In re Zimmer NexGen Knee Implant Prod. Liab. Litig. (MDL No. 

2272) (N.D. Ill.), Case Management Order 10 (Jan. 22, 2016).
43

Other Bellwether Trial Considerations

Coordination and Sequencing of General and Case-Specific 

Discovery

The sequencing of general and bellwether case-specific discovery 

will depend on whether certain dispositive issues could eliminate 

certain groups of claims entirely and on the goals in mind if the 

court contemplates holding early trials. The court should communicate with the parties to determine the purposes—including motion 

practice and early trials—and proper ordering for discovery.

If the focus remains on holding early bellwether trials, the court 

will need to determine what information will be needed for those 

trials and schedule accordingly. Sequencing is very litigation-specific, and MDL proceedings have the flexibility to allow the court to 

schedule and coordinate discovery in a manner that serves the ends 

of efficiency and resolution.69

Settlement

The MDL transferee judge need not remand cases to the original 

court so long as “coordinated or consolidated pretrial proceedings” 

remain ongoing. Pretrial proceedings have been interpreted broadly 

to include facilitating settlement and oversight of individual nonglobal settlement or subgroup settlement discussions.70 The court 

should remain informed about settlement discussions between the 

parties and suggest additional potential settlement opportunities 

where appropriate.

Bellwether trial preparation alone may help prepare the par69. See Dodge, supra note 18, at 377 (“If the defendant cannot establish that the generic evidence supports the dismissal of all claims, then the 

litigation will naturally proceed toward understanding the types of questions 

that may resolve the case as to particular groups of claims.... If early trials are 

to occur, the facilitative judge will again consider the parties’ endgame and 

structure the trials to promote the generation of the requisite information”).

70. See Fed R. Civ. P. 16(a)(5) (pretrial management includes ordering 

that the parties appear for such purposes as facilitating settlement); see also

In re Patenaude, 210 F.3d 135, 145 (3d Cir. 2000) (holding that coordinated pretrial proceedings had not concluded in asbestos exposure cases where 

settlement negotiations were ongoing in plaintiffs’ individual cases).
Bellwether Trials in MDL Proceedings

44

ties to discuss the strengths and limitations of the MDL cases and 

consider global settlement. If the MDL proceeding involves class 

actions, the court will also need to ensure that any proposed settlement is fair, reasonable, and adequate, and will need to assess 

whether the interests of the class or proposed class are better served 

by settlement than by further litigation, including trial.71

Staying Bellwether Trials for Settlement Discussions

When settlement discussions arise in the context of bellwether cases, the judge must consider whether to entertain requests to stay a 

trial or trial(s), how long of a stay to issue, the number of cases implicated by the settlement discussions (global settlement, settlement 

of a particular class of cases, or individual case settlement), and the 

likelihood of success of settlement discussions.

Advancing a litigation through fact and expert discovery may 

provide parties with the information necessary to inform settlement 

discussions. Keeping bellwether trials on track despite settlement 

discussions may also apply the pressure needed to move toward resolution of the MDL proceeding. On the other hand, should a bellwether jury verdict lie outside the range contemplated by the parties 

in settlement discussions, that verdict could derail settlement discussions and encourage the winning side to sideline negotiations 

and pursue trying additional cases.

Videotaping Bellwether Testimony

When conducting a bellwether trial, consider videotaping testimony, particularly of expert witnesses, for use at subsequent trials in 

transferor courts after remand as another means to expedite trials 

and avoid unnecessary duplicative effort.72

Strategic Use of Interlocutory Appeals

The Supreme Court has decided that, for purposes of appeal, a final 

decision in one of a collection of cases in an MDL proceeding is 

subject to immediate review in the court of appeals with authority 

71. See Fed. R. Civ. P. 23.

72. MCL 4th § 20.132.
Bellwether Trials in MDL Proceedings

45

to review the decisions of the transferee district court, even if other 

cases in the MDL proceeding are still pending.73 While the ability to 

appeal final decisions in individual bellwether cases is well-defined, 

circuits differ in their receptiveness to truly interlocutory appeals in 

the MDL setting. An interlocutory appeal generally should not be 

allowed if it will delay or halt other aspects of the MDL proceeding 

or compromise efficiency.

Late appeals may erase the efficiencies created by earlier bellwether trials. In some circumstances, however, an interlocutory appeal on issues critical to the litigation may be warranted—for example, when the relevant claim or issue is grounded in federal common 

law. Alternatively, if a key issue turns on an unresolved question of 

state law, the transferee court could consider certifying the issue to 

the relevant state court. The suitability or availability of interlocutory appeals for MDL pretrial orders is not yet settled and may be 

the subject of future rule revisions and clarifications. This pocket 

guide addresses interlocutory appeals only to note that the transferee judge should be aware that this issue may arise in the bellwether 

trial process.

Alternatives to Bellwether Trials

Other strategies, in addition to or in lieu of bellwether trials, may 

help advance the litigation and promote resolution. For example, in 

In re General Motors LLC Ignition Switch Litigation, Judge Furman 

observed that, “Notwithstanding the advantages and usefulness of 

bellwether trials in litigation of this sort, the Court is of the view 

that there may be other, less expensive means that the Court and 

parties could and should use—in addition to bellwether trials—to 

advance the litigation and promote resolution of cases individually or globally, including but not limited to early neutral evaluation 

and summary jury trials (either on select issues, such as gross negligence and punitive damages, or in select cases).” Judge Furman then 

directed the parties to continue conferring about such additional 

means and to be prepared at future status conferences to address 

73. See Gelboim v. Bank of Am. Corp., 135 S. Ct. 897 (2015).
Bellwether Trials in MDL Proceedings

46

whether and when such means could or should be used.74

Timing for Recommending Remand

When it appears that there may be only limited benefit remaining 

from continued centralization and common issues no longer predominate, the transferee court must determine whether remand to 

the transferor courts for trial would be more efficient than continuing with a bellwether process in the MDL proceeding. At that point, 

the transferee judge should consider filing a suggestion of remand 

with the JPML.75 As part of that procedure, transferee judges should 

include in the suggestion of remand, or elsewhere in the record, a 

brief description of the pertinent events that have taken place in the 

MDL proceeding, including key evidentiary and legal rulings, as 

well as recommendations regarding any additional steps that they 

believe are necessary to ensure that remaining cases are ready for 

trial.

74. In re Gen. Motors LLC Ignition Switch Litig. (MDL No. 2543) 

(S.D.N.Y.), Doc. No. 422 (Nov. 19, 2014). See also In re FEMA Trailer 

Formaldehyde Prods. Liab. Litig. (MDL No. 1873) (E.D. La.), Doc. No. 

13872, Pretrial Order No. 64 (Apr. 28, 2010) (setting forth rules and procedures for conducting voluntary summary jury trials).

75. See J.P.M.L. R.P. 10.1.
47

For Further Reference

Sample orders for bellwether case selection for district judges’ use 

are available at http://jpml.ao.dcn/transferee_Judge_Sample_Orders?field_judge_name_value=&field_order_sub_category_value=-

Bellwether+Trials%2FTrial+Procedure&items_per_page=35&=Apply (last visited April 5, 2019).

Bolch Judicial Institute & Duke Law School, Standards and Best 

Practices for Large and Mass-Tort MDLs (Dec. 19, 2014).

Duke Law Center for Judicial Studies, MDL Standards and Best 

Practices (Sept. 11, 2014).

Eldon E. Fallon, Jeremy T. Grabill & Robert Pitard Wynne, Bellwether Trials in Multidistrict Litigation, 82 Tul. L. Rev. 2323 

(2008).

Federal Judicial Center & Judicial Panel on Multidistrict Litigation, Ten Steps to Better Case Management: A Guide for Multidistrict Litigation Transferee Judges (2d ed. 2014).

Federal Judicial Center, National Center for State Courts & Judicial Panel on Multidistrict Litigation, Coordinating Multijurisdiction Litigation: A Pocket Guide for Judges (2013) and related resources available at https://multijurisdictionlitigation.

wordpress.com/ (last visited Apr. 5, 2019).

Manual for Complex Litigation, Fourth (2004).

Barbara J. Rothstein & Catherine R. Borden, Federal Judicial 

Center & Judicial Panel on Multidistrict Litigation, Managing 

Multidistrict Litigation in Products Liability Cases: A Pocket 

Guide for Transferee Judges (2011).

Barbara J. Rothstein & Thomas E. Willging, Federal Judicial 

Center, Managing Class Action Litigation: A Pocket Guide for 

Judges (3d. ed. 2010).

4 William Rubenstein, Alba Conte & Herbert B. Newberg, Newberg on Class Actions, §§ 11:11–11:20 (5th ed. 2014).

Adam S. Zimmerman, The Bellwether Settlement, 85 Fordham L. 

Rev. 2275, 2298 (2017).
The Federal Judicial Center

Board 

The Chief Justice of the United States, Chair

Magistrate Judge Tim A. Baker, U.S. District Court for the Southern District of

Indiana 

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James C. Duff, Director of the Administrative Office of the U.S. Courts 

Director 

John S. Cooke

Deputy Director

Clara Altman

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recommendation of the Judicial Conference of the United States. 

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