Utilizing Statistics and Bellwether Trials in Mass Torts: What do the Constitution and Federal Rules of Civil Procedure Permit?

Traditional judicial mechanisms that preserve litigants' rights to due process and a jury trial challenge courts to provide litigants their day in court in an efficient and timely manner. This challenge is made exponentially harder where the litigation concerns tortious conduct affecting a large number of persons and giving rise to latent injury. In response to the recent increase in mass tort filings, courts have sought an alternative means of adjudication-the extrapolation of a statistically average, representative plaintiff to other plaintiffs. This Note examines the problems associated with mass tort actions and how two circuit courts of appeals have implemented the use of statistically representative bellwether plaintiffs in resolving mass tort issues.

After comparing the use of bellwether plaintiffs to traditional mass tort mechanisms in questioning whether statistical representation violates due process and the right to a jury trial, the Note concludes with a proposition for the proper role that the use of extrapolating statistics to non-bellwether plaintiffs should take in mass tort litigation.