Bellwether Mediations As An Alternative To Bellwether Trials

Conceptually, the goal of bellwether mediations is the same as that of its counterpart (a trial): to develop an objective way to value a disparate set of cases to facilitate settlement. As with bellwether trials, the issues of when and how are paramount to give the process the needed credibility for future settlements. Knowing how the cases are selected, who is participating, what proof is being used and when in the process the mediations are being conducted are all crucial.

Using mediation as the vehicle for evaluation has certain advantages. It can be employed earlier in the litigation process because full-blown trial presentations do not have to be formulated and made. This can reduce costs for all parties involved, making a net settlement far more valuable. The process and the outcome are confidential, unlike a jury trial. And there are no issues related to the potential collateral estoppel effect of an adverse adjudication in the next case or cases. To make this option effective, there must be buy-in from both sides, and respected and effective mediators must be used. The Stryker hip implant litigation is a good case study on how this process can help resolve mass tort litigation.

In July 2012, Stryker Orthopedics issued a voluntary recall of its modular Stryker Rejuvenate and ABGII hip stems due to fretting and corrosion near the implant’s modular neck-stem junction. The first lawsuit was filed in Bergen County, New Jersey, in August 2012. By January of 2013, hundreds of cases pending in New Jersey were coordinated before Judge Brian R. Martinotti. Another set of cases was coordinated in a federal multidistrict litigation (MDL) in Minnesota. In October of 2013, Judge Martinotti issued a case management order to try to arrive at an early resolution, identifying ten cases for mediation: six selected by Judge Martinotti and two cases each by plaintiffs and Stryker. The judge thought that if the mediations were successful, they could possibly provide a framework for a global resolution by informing counsel about the range of injuries, the impact of those injures on the plaintiffs and determining what would be an acceptable settlement to the individuals who suffered those injuries. If no agreements were reached, then the representative cases would proceed to bellwether trials.

Many of the claimants were older, and the likelihood of protracted litigation was not appealing. When given the individual choice to settle or litigate for years the participating plaintiffs themselves had the opportunity to make that personal decision. Because of the early success of the first cases the pool was expanded to 21 cases. In over four months, 20 of 21 individually mediated cases were settled. These cases presented a representative sampling of the full docket ranging from people who needed relatively uncomplicated revision surgeries to those facing more difficult complications, treatments and outcomes. There was also a full range of ages of the plaintiffs, from people in their early thirties to people in their eighties. Stryker’s in-house counsel personally appeared at each mediation. In the end, the bellwether mediation model was particularly effective in helping the parties assess what individual plaintiffs would accept by way of settlement. It also provided significant information on what the issues were on causation and damages, and produced baseline numbers for various injury claims. This information then became the backdrop for the global discussions and ultimate resolution.

The global settlement discussions that followed the bellwether mediations were lengthy (taking five months) and included a negotiating team of eight plaintiffs’ lawyers, four from leadership in the MDL and four from the New Jersey MCL. The parties ultimately reached agreement on behalf of more than 3,000 plaintiffs. The settlement provided for a gross base award, additional compensation for claimants who suffered complications during revision surgery and other amounts for future surgeries caused by complications. It also included compensation for individuals who needed a revision but were medically unable to undergo the surgery.

While the bellwether mediation approach may not be suitable for every mass tort action, the Stryker litigation demonstrates that it provides another strategic option for resolving multi-plaintiff proceedings. The option worked in this case because of the allegations in the underlying lawsuits, the makeup of the plaintiff pool, the commitment to the process by counsel (for both sides) and Stryker and the conscientious and coordinated approach taken by the judges and the mediator. The end result produced an effective way to value the most significant categories of cases, thereby paving the way for global resolution of both the state litigation and the MDL.