Environmental torts such as chemical spills or groundwater contamination may result in thousands of lawsuits, often in multiple state and federal forums. These mass torts can involve so many claims that traditional individualized resolution is impossible. In addition, class actions are often inappropriate for these matters. In these situations, courts and litigants may seek to fast-track a manageable number of individual cases for discovery and trial—in so-called “bellwether” proceedings—with the hope that the outcomes will shed light on the large number of cases waiting in the wings.
Although most discussions of bellwether proceedings take the plaintiffs’ perspective, defendants stand to gain or lose just as much from the process. While bellwether proceedings can lead to outcomes paying significant dividends, defendants must also take care that the process is used intelligently and appropriately. Implemented poorly, bellwether proceedings can be not only unproductive but prejudicial to the defendants’ rights. In this legal update, we seek to familiarize defendants with issues that can arise during bellwether proceedings and discuss important considerations from the defendant’s perspective.