Just a few months in the past, we reported on what we believed—and nonetheless consider—was an abusive utility of offensive non-mutual collateral estoppel, Freeman v. Ethicon, Inc., 2022 WL 3147194 (C.D. Cal. 2022), which precluded these defendants in considered one of their quite a few pelvic mesh instances from disputing at a jury trial sure factual findings entered by a state-court choose after a bench trial in an earlier non-products-liability motion.  We “have a really totally different notion of equity” than the choose who determined Freeman.
Situation preclusion on the dimensions imposed by Freeman can have a disastrous impact on the protection of a case, so we adopted Freeman with curiosity.  An impact definitely occurred, nevertheless it finally didn’t have the meant impact on the case’s development and final result.  Nevertheless, based mostly on the current success that the Ethicon Defendants (Johnson & Johnson and Ethicon) have had with juries in related instances, maybe it shouldn’t have come as that a lot of shock—these defendants prevailed for the fifth time (out of 5) this yr.Â
Earlier than Freeman went to trial, the Ethicon Defendants challenged the appliance of collateral estoppel on a number of fronts past these we mentioned beforehand.  First, they sought a continuance till defendants’ anticipated petition for certiorari in regards to the state-court judgment was resolved, as a result of the judgment was not “closing”—due to this fact not able to being preclusive—till all appeals have been accomplished.  That failed.  Subsequent, defendants filed a movement for interlocutory attraction beneath 28 U.S.C. §1292(b), and once more sought a keep, arguing that there’s “a considerable floor for distinction of opinion” on the appliance of Parklane’s equity elements and the query of finality beneath California legislation.  No cube. Go strive the case with one hand judicially tied behind the defendants’ collective backs.
Predictably, plaintiffs’ trial technique highlighted these factual findings topic to preclusion, confirming the elemental unfairness of Parklane non-mutual collateral estoppel. The jury had no leeway, being instructed that they “should settle for as true” the next state-court “factual” findings:  the supposedly “harmful properties” of defendants’ polypropylene mesh merchandise, an inventory of non-surgical issues that these merchandise could cause, and the defendants’ purported pre-existing information of these properties and doable issues. In impact, the jury was instructed that defect, causation, and see have been all pre-determined. Every juror even obtained his or her private copy of the deemed “details” they have been required to just accept to seek the advice of throughout their deliberations—regardless of a number of different juries in product legal responsibility trials involving the identical pelvic mesh merchandise having discovered within the defendants’ favor, implicitly rejecting those self same purported details. See Wright & Miller, 18A Fed. Prac. & Proc. §4465.2 (3d ed. Apr. 2022 Replace) (opposite verdicts are “the one most simply recognized reality that means strongly” that preclusion ought to by no means have been utilized).
The Ethicon Defendants received anyway, one thing we have been probably not anticipating.
Regardless of having been instructed to just accept as true a laundry record of “harmful properties” and doable extreme issues (like “debilitating/life altering/persistent ache”), the jury returned a full protection verdict with out even reaching the case-specific questions of causation.  Particularly, the jury discovered that plaintiffs didn’t show that defendants “negligently designed the [particular] machine” or that defendants “didn’t adequately warn physicians of the potential dangers related to the [particular] machine.”  The jury additional discovered that plaintiffs didn’t show that defendants made an specific guarantee in regards to the machine, nor that it did not carry out as said.  Beneath California legislation, prescription-only pelvic mesh merchandise are unavoidably unsafe, which means that the mere risk of extreme issues—or the absence of explicit adjectives like “life-changing” and “debilitating” from a product IFU—doesn’t render a product negligently designed or in any other case faulty.  And the jury so discovered.
We hope this would be the final we hear of offensive non-mutual collateral estoppel, on this litigation, anyway.
To actually win (versus settle) a mass tort, a defendant can’t be afraid to strive instances—even (maybe particularly) powerful instances. As we’ve talked about earlier than, it helps to be as large as J&J when pursuing such a method. It’s not a method for everybody. However the choice to strive pelvic mesh instances appears to be working right here for the Ethicon Defendants, validating their refusal to be browbeaten into a world MDL settlement. The Freeman jury is under no circumstances an outlier in that regard (though the diploma of problem was larger).  Including Freeman, the Ethicon Defendants are 5 for 5 in pelvic mesh trials in 2022: 5 trials resulting in 5 complete protection verdicts in remanded federal instances in 5 totally different states: West Virginia, Ohio, Colorado, Arizona and California.
With that sort of success, the Ethicon Defendants ought to, if the legislation have been actually unbiased, be asserting offensive non-mutual collateral estoppel in opposition to the plaintiffs. Sadly, nonetheless, solely plaintiffs get to play that sport in mass tort instances.
The one draw back is that, because the Ethicon Defendants received the trial, it’s fairly unlikely that the Ninth Circuit will ever get an opportunity to right the gross abuse of collateral estoppel, and the Parklane equity elements, that occurred in Freeman.  That signifies that now we have to cross our fingers that, notably in mild of the final 5 verdicts, future litigation will give these elements extra weight than in Freemen.  That’s, assuming plaintiffs proceed to bang their heads in opposition to the Ethicon Defendants’ more and more firm-looking brick wall.
