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Sixth Circuit Applies Offensive Collateral Estoppel in Subsequent Mass Tort Proceedings


The Sixth Circuit recently affirmed a district court’s application of nonmutual offensive collateral estoppel to negligence claims arising out of an MDL—potentially raising the stakes for bellwether trials that are not considered binding by the district court at the outset and the impact that rulings in those cases could have on later decisions.

The case involved a complicated procedural history.  Before the filing of this suit, DuPont entered into a unique class-wide settlement agreement subject to the following terms:  (i) the plaintiffs could bring individual personal injury and wrongful death claims against DuPont based only on claims where a panel of scientists determined a “Probable Link finding” between exposure to a chemical, C-8, and a particular disease; and (ii) DuPont agreed not to contest general causation in those cases but retained its right to contest specific causation.  After the scientific panel made a “Probable Link finding” for six diseases, 3,500 cases were consolidated into an MDL in the Southern District of Ohio.  DuPont lost the first two bellwether trials.  It appealed one of those trials on the basis that the district court had engaged in a “threshold contract interpretation error [that] eliminated the heart of a critical defense for DuPont,” but later settled the remaining MDL cases, and ultimately withdrew its appeal (after oral argument) following those settlements.

Following the MDL settlement, the Abbott plaintiffs filed this suit, and the district court granted partial summary judgment in favor of plaintiffs’ negligence claims.  It did so on offensive collateral estoppel grounds—i.e., the outcome of the prior unanimously resolved jury trials in favor of different plaintiffs in the MDL (as to the same questions of duty, breach, and foreseeability) was binding as to the Abbott plaintiffs’ negligence claims. 

On appeal, the Sixth Circuit rejected DuPont’s argument that additional due process constraints should be applied where plaintiffs assert offensive collateral estoppel in a subsequent mass tort proceeding.  See In re E. I. du Pont de Nemours & Co. C-8 Pers. Inj. Litig., 2022 WL 17413892, at *10–11 (6th Cir. Dec. 5, 2022).  Instead, the Court held that trial courts have “broad discretion” and concluded that under Ohio law and the Supreme Court’s guidance in Parklane Hosiery Co. v. Shore, 439 U.S. 322 (1979), all factors—e.g., DuPont vigorously litigated the same negligence claims in prior trials, selected half of the bellwether cases, and engaged in similar conduct in relation to all bellwether plaintiffs—weighed in favor of collateral estoppel. 

The Sixth Circuit also rejected DuPont’s argument that the trial court erred in excluding DuPont’s expert testimony contesting plaintiffs’ proof of general causation, finding that such testimony was offered in violation of the settlement agreement.  Notably, the Court explained that because DuPont failed to challenge the district court’s collateral estoppel order in this appeal, the argument that the district court improperly applied collateral estoppel to the contract-interpretation issue was forfeited.

While class-action settlements may allow defendants in mass tort cases to narrow certain issues before trial, defendants should be careful when limiting claims to ensure that key defenses—such as causation—are adequately preserved.  That is particularly true in light of the Sixth Circuit’s ruling that offensive nonmutual collateral estoppel may be applied in subsequent proceedings, even where prior bellwether trials were not considered binding at the outset. 


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