Coblin v. Depuy Orthopaedics, Inc., 2024 U.S. Dist. LEXIS 62114 (E.D. Kentucky April 4, 2024) is the last word dodged bullet. It’s a part of a multidistrict litigation. That’s unhealthy sufficient. Then it will get worse. It’s not simply any MDL, it’s the hip implant MDL. Then it will get even worse. This Coblin resolution entails a plaintiff’s movement for partial abstract judgment. Yikes. Then it will get even even worse. The plaintiff in Coblin moved for abstract judgment primarily based on nonmutual offensive collateral estoppel. What’s so unhealthy – or maybe we must always say offensive – about nonmutual offensive collateral estoppel? Collateral estoppel is a species of concern preclusion. It signifies that some concern was determined in a previous litigation, and that call carries ahead to different instances. There isn’t a extra preventing over the problem. It’s established. Nonmutual collateral estoppel signifies that the occasion invoking concern preclusion was not a celebration to the prior resolution. Lastly, offensive nonmutual collateral estoppel signifies that it’s a plaintiff seeking to get the good thing about the prior resolution. (We have now written earlier than about how nonmutual offensive collateral estoppel is systematically unfair.)
The important thing case on nonmutual offensive collateral estoppel is Parklane Hosiery Co. v. Shore, 439 U.S. 322 (1979). We bear in mind finding out the Parklane case in regulation faculty, and we bear in mind how horrifying nonmutual offensive collateral estoppel appeared to us even then, properly earlier than we grew to become protection hacks. Parklane set forth a nightmare state of affairs. Think about {that a} defendant will get sued by a number of plaintiffs for related conduct and related accidents. Acquired it? You might need heard of one thing like that occuring. Now suppose the primary few plaintiffs misplaced. May the defendant then apply collateral estoppel towards future plaintiffs? In all probability not. The brand new plaintiffs didn’t have an opportunity to press their place in these earlier instances. Honest sufficient.
However what about as soon as a plaintiff wins? Can a future plaintiff then apply collateral estoppel towards the defendant, arguing that the defendant had a full alternative to litigate its case, so its loss ought to carry ahead? It’s loopy, as a result of a defendant might win, say, 25 consecutive instances, however as quickly because it loses one, all future plaintiffs might lock in a win on necessary points. (We have been happy to see the Coblin courtroom embody a parenthetical quote from Parklane that talked about our Federal Courts professor, the nice David Currie.)
In Parklane, the Supreme Court docket acknowledged that nonmutual offensive collateral estoppel might be pernicious, to say nothing of unfair, for 3 causes: (1) it’d encourage some plaintiffs to put again, wait and see, after which pounce as soon as one other plaintiff received a difficulty; (2) courts mustn’t clobber a defendant who didn’t have a purpose to defend earlier actions vigorously, significantly if future penalties weren’t foreseeable; and (3) the doctrine mustn’t apply if the judgment relied upon as a foundation for the estoppel is itself inconsistent with a number of earlier judgments.
That third Parklane issue is why the plaintiff in Coblin misplaced its try at abstract judgment on the premise of offensive non mutual collateral estoppel. The plaintiff in Coblin sought partial abstract judgment to the impact that the defendant had designed and offered a faulty product. That will surely be a pleasant head begin for any plaintiff. Within the MDL from which this case was remanded, the plaintiffs didn’t win all of the bellwether trials, and never all their wins held up on enchantment. Particularly, the protection received the primary bellwether trial. The plaintiff received the second, however it was overturned on enchantment due to some severe errors by the courtroom and a few critically shady misrepresentations by the plaintiff. (See our put up right here.) The plaintiffs received the subsequent two bellwether trials, then settled the instances whereas they have been on enchantment.
There are a number of explanation why nonmutual offensive collateral estoppel can be monstrous on this state of affairs. As an preliminary matter, MDL bellwether trials should not alleged to be binding. They’re for informational functions solely. (By no means thoughts whether or not that data is helpful, and even whether or not it qualifies as misinformation.) Nor have been any of the prior bellwether trials below the regulation that applies to the Coblin case (Kentucky), although which may not matter a lot right here. However the basic downside right here is that nonmutual offensive collateral estoppel right here can be unfair. Aware of Parklane issue three, the courtroom in Coblin refused to “don blinders” within the face of inconsistent judgments and protection wins.
The plaintiff truly requested the Coblin courtroom to don these blinders. The plaintiff instructed that the courtroom ought to disregard the primary trial end result, the place the defendant prevailed. Why? The decision kind in that case contained a query that mixed design defect and harm. Thus, in keeping with the Coblin plaintiff, perhaps when the jurors within the earlier case answered No to the mixed query, they may have been saying No to harm with out addressing defect. The Coblin plaintiff’s argument is, after all, rank hypothesis. It’s a fairly weak stuff to assist one thing as final result dispositive and one-sided as nonmutual offensive collateral estoppel. Such hypothesis couldn’t erase the straightforward indisputable fact that the protection verdict in that first trial was inconsistent with the later trial outcomes that the Coblin plaintiff sought to use.
Furthermore, there are some issues with giving preclusive impact to these plaintiff wins. Clearly, a verdict vacated for plaintiff-side misconduct can’t presumably be a foundation for collateral estoppel. Additional, verdicts in instances that later settled and didn’t produce judgments are inappropriate for collateral estoppel. There are some elements of the Coblin opinion we don’t love. There are another instances on the market hinting that nonmutual offensive collateral estoppel would possibly apply in some mass torts. That’s scary stuff. The last word protection is an enchantment to equity. Happily for the defendant in Coblin, the Parklane resolution enshrined such equity concerns, particularly when there are inconsistent outcomes.
