Twice this yr we have now reported on trial-court choices addressing software of offensive non-mutual collateral estoppel—an offensive doctrine that precludes a defendant from relitigating a problem that it misplaced in earlier litigation in opposition to a unique plaintiff. One courtroom utilized it; the opposite refused to. At this time we report on a Sixth Circuit determination that affirmed, over a spirited dissent, software of the doctrine in a follow-on MDL case.
Our earlier posts catalog the doctrine’s unfair, pernicious outcomes. A fast refresher:
Offensive non-mutual collateral estoppel dangers perpetuating an misguided end result by stopping relitigation of points beforehand determined in opposition to a defendant. If utilized, the doctrine may give disproportionate—and doubtlessly dispositive—weight to the choice of a lone decide or jury, regardless of how incorrect that call.
The truth that an hostile judgment in a single case can cripple an organization’s protection in subsequent circumstances has two hostile penalties aside from the hazard of perpetuating error. First, it offers plaintiffs great leverage in settlement negotiations. Second, it induces defendants to spend far more litigating a case than can be warranted by the quantity nominally in dispute.
As a result of it could cripple an organization’s protection, offensive non-mutual collateral estoppel could be end result determinative. Thus, the query whether or not it applies in a selected case is a vital query when it arises. It’s particularly necessary in MDLs (and different coordinated proceedings) given the bigger variety of follow-on circumstances by which the doctrine may theoretically be invoked.
The case we report on at this time, Abbott v. E. I. du Pont de Nemours & Co., — F.4th —-, 2022 WL 17413892 (sixth Cir. 2022), is neither a drug nor medical-device case but it surely underscores the chance posed by offensive non-mutual collateral estoppel. For causes nicely said by the dissenting decide, the case is wrongly determined. Fortuitously, the choice’s attain is proscribed by the bulk’s recognition that its end result rests on “a novel settlement settlement” that resolved an earlier state-court class motion and ruled the following federal MDL. 2022 WL 17413892, at *1.
The Supreme Courtroom has held that in variety circumstances a district courtroom evaluating the applicability of offensive non-mutual collateral estoppel ought to usually comply with “the legislation that may be utilized by state courts within the State by which the federal variety courtroom sits.” Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 508 (2001). That precept, nevertheless, is topic to an necessary limitation: District courts aren’t required to use offensive non-mutual collateral estoppel each time state legislation would condone its use. As an alternative, trial courts have “broad discretion to find out when [the doctrine] must be utilized.” Parklane Hosiery Co. v. Shore, 439 U.S. 322, 331 (1979). When exercising that discretion, “a trial decide shouldn’t enable using offensive collateral estoppel” in circumstances the place its software “can be unfair to a defendant.” Id.
Its protestations on the contrary however, the Sixth Circuit’s determination is just not trustworthy to both of those ideas.
Because the courtroom famous, Ohio courts usually apply difficulty preclusion when the related factual dispute or authorized query “was truly and straight litigated in [a] prior motion” and “essentially” determined in opposition to the defendant after having had a “full and honest alternative” to litigate the problem. Abbott, 2022 WL 17413892, at *5 (citation marks omitted).
The final word difficulty in Abbott was whether or not the defendant’s use and discharge of a chemical—C-8, or perfluorooctanoic acid (PFOA)—negligently brought on the plaintiff’s testicular most cancers. As in all toxic-tort circumstances, the plaintiff needed to set up the existence of an obligation, its breach, and a causal connection between the breach and the plaintiff’s damage. We intentionally say “set up” slightly than “show” as a result of the district courtroom’s software of offensive non-mutual collateral estoppel meant that the plaintiff didn’t must show the existence of an obligation, its breach, or the foreseeability of his damage. The district courtroom held—and the Sixth Circuit affirmed—that the defendant couldn’t contest responsibility, breach, or foreseeability as a result of juries in three prior trials had concluded that the illnesses suffered by the plaintiffs in these circumstances have been the foreseeable consequence of the defendant having breached an obligation to behave as a fairly prudent individual would “underneath the circumstances.” Abbott, 2022 WL 17413892, at *7. The district courtroom additional held, and the Sixth Circuit additionally agreed, that the defendant was not solely precluded from contesting foreseeability however, given the “distinctive” settlement settlement resolving the prior class-action that “informs the appliance of collateral estoppel right here,” additionally precluded from contesting {that a} specific degree of publicity brought on the plaintiff’s most cancers. Id. at *1, 9.
It’s arduous to reconcile both holding with the information and legislation.
Do not forget that for offensive non-mutual collateral estoppel to use, the related difficulty will need to have been “straight litigated in [a] prior motion” and “essentially” determined in opposition to the defendant. Abbott, 2022 WL 17413892, at *5. Right here, the prior jury verdicts that purportedly estopped the defendant from disputing responsibility, breach, and foreseeability have been basic verdicts discovering the defendant negligent. The jury in every case was instructed that the defendant owed an obligation of care if “a fairly prudent individual would have foreseen that” the defendant’s conduct “was possible” to trigger somebody “in [the plaintiff’s] place” damage and that its breach of that responsibility was a proximate reason for the plaintiff’s damage if the defendant “ought to have foreseen or fairly anticipated that damage would end result” from the alleged breach. Id. at *7–8.
It boggles the thoughts that not one however two courts—the Southern District of Ohio after which the Sixth Circuit—discovered that the overall verdicts returned within the prior circumstances primarily based on these directions “essentially … decided” that the defendant was negligent and will have foreseen damage to somebody within the Abbott plaintiff’s place. First, solely one of many three earlier plaintiffs appears to have suffered the identical kind of most cancers because the Abbott plaintiff. Second, solely one of many three earlier plaintiffs drank from the identical contaminated water provide because the Abbott plaintiff. Third, in contrast to at the very least two of the three earlier plaintiffs, who argued that the defendant ought to have foreseen their accidents as a result of it was conscious that the focus of PFOA of their respective water provides exceeded the corporate’s inner guideline, the Abbott plaintiff conceded that the focus in his water provide by no means exceeded the rule of thumb and that the corporate was unaware of its presence in his water provide till a sure date.
In keeping with the Sixth Circuit, these factual variations have been immaterial as a result of the prior, basic verdicts rested on jury directions that, supposedly, “flip[ed] on [the defendant’s] conduct, not the particulars of [the prior plaintiffs’] particular person circumstances.” Abbott, 2022 WL 17413892, at *8. Huh?? As recounted above, the jury directions explicitly outlined responsibility, breach, and foreseeability when it comes to conduct vis-à-vis “somebody in [the particular plaintiff’s] place.” Id. at 7 (emphasis added). The Sixth Circuit’s evaluation doesn’t stand up to even minimal scrutiny.
The dissent referred to as the bulk out, observing that “the exact problems with responsibility, breach, and foreseeability raised in Abbott” had “not been truly litigated and endlessly determined” by the prior trials as a result of they “used basic verdict kinds and resulted in plaintiff-specific verdicts.” Abbott, 2022 WL 17413892, at *23 (Batchelder, J., dissenting). Because the dissent identified, the prior trials “concerned distinct, plaintiff-specific information that bear closely on negligence,” together with “every plaintiff’s” proximity to discharge supply, “the size and timing of his or her publicity to C-8,” the defendant’s response, “its data about which places have been uncovered to C-8 (and at what ranges).” Id. at *24. “Every of those factual variations,” the dissent famous, “can have an effect on the responsibility and foreseeability parts of negligence.” Id. This issues, the dissent mentioned, as a result of “[i]f divergent information in later circumstances may lead juries to achieve totally different conclusions, then collateral estoppel is inappropriate.” Id. at *25.
Notably, the dissent didn’t restrict itself a case-specific critique of the bulk opinion. Moderately, it additionally challenged the bulk’s conclusion that no concerns of equity past these particularly talked about in Parklane Hosiery restrict a district courtroom’s discretion in making use of offensive non-mutual collateral estoppel. The dissent argues that, within the context of “mass-tort multidistrict litigation,” due course of prohibits a district courtroom from giving preclusive impact to a verdict returned in a bellwether trial except it determines after correct inquiry that the bellwether case is “fairly consultant” of the case by which collateral estoppel is subsequently sought. Abbott, 2022 WL 17413892, at *18, 23 (Batchelder, J., dissenting).
Absent such inquiry and dedication—which is absent in Abbott—offensive non-mutual collateral estoppel is, mentioned the dissent, “basically unfair” to the defendant and a “violation of due course of.” Id. We agree.
