By Dr. Ken Broda-Bahm and Dr. Kevin Boully:
The first bellwether case in Toyota's "Unintended Vehicle Acceleration" litigation has just been selected by a judge in California. To some, that may come as a surprise, since it might have been assumed that these cases would have deflated after the National Highway Traffic Safety Administration (NHTSA) concluded a year ago that there is no electronics-based cause. Then, just last week, an exhaustive investigation by the National Academy of Sciences again failed to find a causal link between vehicle electronic throttle-control and sudden acceleration. Yet still, it appears, the cases have continued like...well, like some kind of unstoppable vehicle. That suggests there may be more to the story than what we're seeing in the press, and we will have to wait on the trials to find out.
The interesting point for me at this stage is the emerging "bellwether" structure. The term originally refers to a sheep that leads other sheep by virtue of a bell around its neck. In litigation, however, the bellwether structure is increasingly used to select a specific case, or a few cases, from among a much larger group of similar cases to be tried first in order to resolve some of the broader issues in the litigation. A finding of liability and general causation, for example, might be established for all plaintiffs, leaving it to the rest of those in the group to just prove specific causation and damages. The practical effect of a bellwether structure is generally to encourage settlement, but for the vast majority of cases that are "nonbellwether," it means that there is at least some chance to go to trial with a number of issues already established by another jury. That is undoubtedly an advantage for plaintiffs, yet it also raises some interesting communication challenges. Is it possible to fully motivate and persuade these nonbellwether juries if they are only hearing part of the story? Does it have an effect on the damages awarded? This post looks at the relevant research, and makes a few recommendations for cases within a bellwether model.