Judge Catherine Blake, who is overseeing the Smith & Nephew Birmingham hip multi-district litigation in Baltimore, Maryland, recently issued an order setting out the bellwether trial schedule for the Birmingham Hip Resurfacing (BHR) cases.
Just to recap: there are two tracks of cases in the Smith & Nephew Birmingham hip litigation: BHR and THA. BHR refers to cases involving injured people who received Smith & Nephew Birmingham hip components as part of a resurfacing procedure. The BHR resurfacing system is a metal-on-metal (MoM) artificial hip, but in resurfacing procedures the hip “ball” bone is resurfaced with a metal covering and a metal acetabular shell is implanted into the hip socket, thus creating a MoM articulation. Smith & Nephew used cobalt and chromium to construct both of these resurfacing components. As with all metal-on-metal artificial hips, the Smith & Nephew BHR has been shown to wear down and leach metals into the blood and tissue of the patient, a condition called metallosis.
The second track of cases involves total hip arthroplasties (THA) using Smith & Nephew Birmingham components. These total hip replacements are constructed with Smith & Nephew BHR components and non-BHR components, but instead of resurfacing the “ball-bone” with a metal covering the bone is removed and replaced with a metal ball component (a femoral head).
So What is a Bellwether Trial?
A “bellwether” is a thing that shows others what is likely to happen in the future. It is an indicator of trends. In litigation, especially large-scale litigation like MDLs, a bellwether case can be a indicator of how strong or weak a type of case will look to juries. In multi-district litigation, there are simply too many cases to take to a jury verdict. It would take a lifetime to try all the cases in any MDL. For example, if one typical MDL trial lasts three weeks (they often last longer) and there are 1,000 cases in the MDL (the DePuy Pinnacle litigation alone had over 10,000 cases), it would take 57 years to try all those cases. Bellwether trials allow both sides to see (1) how strong is the evidence supporting liability for a defective product, and (2) what value a typical jury might assign to a particular type of injury caused by the product. If juries in bellwether trials consistently find no liability, it is a real signal that the cases may not be viable and certainly may not have much settlement value. On the other hand, if several bellwether trials yield large verdicts, it shows both sides, and especially the defendants, that the remaining cases pose serious financial risk to the manufacturer of the defective product. Bellwether trials provide a window into the challenges the clients face and give realistic expectations for settling cases.
Smith & Nephew Bellwether Trial Schedule
In Judge Blake’s recent order, the first bellwether trial for the BHR (resurfacing procedure) cases is scheduled for November 2, 2020. So a year from now. The second bellwether trial will begin January 11, 2021. The actual cases selected for these bellwether trials will be determined by June 15, 2020. The Order (Case Management Order No. 15) sets out all the key deadlines leading up to these bellwether trials, and I won’t list them all here, but one key date is October 2020, when Judge Blake will hold Daubert hearings to determine the admissibility of the scientific evidence and expert witness testimony. Judge Blake will decide then if the expert testimony is strong enough that it can be presented to a bellwether jury.
Finally, one “THA Track” bellwether trial is scheduled to begin March 1, 2021, but most of that scheduling has been deferred to a later order.
Can a Bellwether Trial Schedule Encourage Settlement?
Sure. Trial is always a motivator to resolve a case. Trials are extremely expensive and time-consuming for both sides. And if one side is aware that the facts don’t look so good for them, the imminent bellwether trial may inspire a renewed vigor to settle all the cases. Currently there is no indication that the Birmingham hip cases will reach a global settlement before the first bellwether trial, but it is certainly possible. I will keep you updated as always. Good luck.