A few months ago, we reported on what we believed—and still believe—was an abusive application of offensive non-mutual collateral estoppel, Freeman v. Ethicon, Inc., 2022 WL 3147194 (C.D. Cal. 2022), which precluded those defendants in one of their numerous pelvic mesh cases from disputing at a jury trial certain factual findings entered by a state-court judge after a bench trial in an earlier non-products-liability action. We “have a very different notion of fairness” than the judge who decided Freeman.
Issue preclusion on the scale imposed by Freeman can have a disastrous effect on the defense of a case, so we followed Freeman with interest. An effect certainly occurred, but it ultimately did not have the intended effect on the case’s progression and outcome. However, based on the recent success that the Ethicon Defendants (Johnson & Johnson and Ethicon) have had with juries in similar cases, perhaps it should not have come as that much of surprise—these defendants prevailed for the fifth time (out of five) this year.
Before Freeman went to trial, the Ethicon Defendants challenged the application of collateral estoppel on multiple fronts beyond those we discussed previously. First, they sought a continuance until defendants’ anticipated petition for certiorari concerning the state-court judgment was resolved, because the judgment was not “final”—therefore not capable of being preclusive—until all appeals were completed. That failed. Next, defendants filed a motion for interlocutory appeal under 28 U.S.C. §1292(b), and again sought a stay, arguing that there is “a substantial ground for difference of opinion” on the application of Parklane’s fairness factors and the question of finality under California law. No dice. Go try the case with one hand judicially tied behind the defendants’ collective backs.
Predictably, plaintiffs’ trial strategy highlighted those factual findings subject to preclusion, confirming the fundamental unfairness of Parklane non-mutual collateral estoppel. The jury had no leeway, being instructed that they “must accept as true” the following state-court “factual” findings: the supposedly “dangerous properties” of defendants’ polypropylene mesh products, a list of non-surgical complications that those products can cause, and the defendants’ purported pre-existing knowledge of those properties and possible complications. In effect, the jury was instructed that defect, causation, and notice were all pre-determined. Each juror even received his or her personal copy of the deemed “facts” they were required to accept to consult during their deliberations—despite multiple other juries in product liability trials involving the same pelvic mesh products having found in the defendants’ favor, implicitly rejecting those same purported facts. See Wright & Miller, 18A Fed. Prac. & Proc. §4465.2 (3d ed. Apr. 2022 Update) (contrary verdicts are “the single most easily identified fact that suggests strongly” that preclusion should never have been applied).
The Ethicon Defendants won anyway, something we were not really expecting.
Despite having been instructed to accept as true a laundry list of “dangerous properties” and possible severe complications (like “debilitating/life changing/chronic pain”), the jury returned a complete defense verdict without even reaching the case-specific questions of causation. In particular, the jury found that plaintiffs did not prove that defendants “negligently designed the [particular] device” or that defendants “did not adequately warn physicians of the potential risks associated with the [particular] device.” The jury further found that plaintiffs did not prove that defendants made an express warranty about the device, nor that it failed to perform as stated. Under California law, prescription-only pelvic mesh products are unavoidably unsafe, meaning that the mere possibility of severe complications—or the absence of particular adjectives like “life-changing” and “debilitating” from a product IFU—does not render a product negligently designed or otherwise defective. And the jury so found.
We hope this will be the last we hear of offensive non-mutual collateral estoppel, in this litigation, anyway.
To really win (as opposed to settle) a mass tort, a defendant cannot be afraid to try cases—even (perhaps especially) tough cases. As we’ve mentioned before, it helps to be as big as J&J when pursuing such a strategy. It’s not a strategy for everyone. But. the decision to try pelvic mesh cases seems to be working here for the Ethicon Defendants, validating their refusal to be browbeaten into a global MDL settlement. The Freeman jury is by no means an outlier in that regard (although the degree of difficulty was greater). Adding Freeman, the Ethicon Defendants are five for five in pelvic mesh trials in 2022: five trials leading to five total defense verdicts in remanded federal cases in five different states: West Virginia, Ohio, Colorado, Arizona and California.
With that kind of success, the Ethicon Defendants should, if the law were really unbiased, be asserting offensive non-mutual collateral estoppel against the plaintiffs. Unfortunately, however, only plaintiffs get to play that game in mass tort cases.
The only downside is that, since the Ethicon Defendants won the trial, it is quite unlikely that the Ninth Circuit will ever get a chance to correct the gross abuse of collateral estoppel, and the Parklane fairness factors, that occurred in Freeman. That means that we have to cross our fingers that, particularly in light of the last five verdicts, future litigation will give those factors more weight than in Freemen. That is, assuming plaintiffs continue to bang their heads against the Ethicon Defendants’ increasingly firm-looking brick wall.