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As the present Supreme Court docket time period approaches its ultimate stretch, all eyes are on the blockbuster circumstances. By the point it adjourns this summer time, the Court docket can have determined circumstances involving the prosecution of former President Donald Trump (and subsequently the trail of the subsequent presidential election), the scope of the executive state, and different consequential and controversial points, together with one other case in regards to the legality of abortion.
Amid the tumult, it’s simple to miss the “extraordinary” circumstances earlier than the Court docket. As Civil Process professors, we had been intrigued by the Court docket’s disposition of E.I. du Pont de Nemours & Co. v. Abbott (“Du Pont”) late final 12 months. The Court docket denied Du Pont’s request to assessment the US Court docket of Appeals for the Sixth Circuit’s judgment affirming the jury’s $40 million award in favor of plaintiffs, a married couple, asserting negligence claims towards Du Pont. The plaintiffs’ claims arose after prolonged litigation over Du Pont’s discharge of perfluorooctanoic acid, a poisonous “without end” chemical, into the Ohio River, landfills, and air surrounding the corporate’s plant in West Virginia.
Du Pont concerned greater than a single, simple environmental tort case. The Abbotts introduced their claims after intensive litigation over Du Pont’s conduct that included settlement of a category motion in state courtroom, consolidation of circumstances towards Du Pont in a federal multidistrict litigation (MDL), and trial of three circumstances. Subsequently, the Abbotts sued Du Pont and persuaded the trial courtroom to use collateral estoppel (also referred to as problem preclusion) and maintain that Du Pont was sure by sure factual findings concerning legal responsibility established within the bellwether circumstances.
After shedding to the Abbotts at trial and within the Sixth Circuit, Du Pont petitioned the Supreme Court docket, asserting that it was unfair for the corporate to be denied the chance to contest sure factual points by means of the trial courtroom’s use of collateral estoppel. The Supreme Court docket denied Du Pont’s petition for certiorari. As is usually the case, the Supreme Court docket didn’t clarify why it denied assessment.
Two Justices, Clarence Thomas and Brett Kavanaugh, would have granted Du Pont’s petition for certiorari. (Justice Samuel Alito took no half within the case.) Thomas wrote a brief dissent from denial of the petition. As appellate legal professionals effectively know, such a dissent “has no implication no matter concerning the Court docket’s views on the deserves of a case,” as Justice Felix Frankfurter wrote in a 1950 dissent from a denial of certiorari.
4 Justices should vote to grant a petition for certiorari—two greater than would have granted Du Pont’s petition. So, within the parlance of Dashiell Hammett in Pink Harvest (and later the Coen brothers in “Miller’s Crossing”), what’s the rumpus over Du Pont?
Justice Thomas’s dissent is a flare that illuminates the chance that the Supreme Court docket will deal with the problems raised by Du Pont in a future case.
We first take into account why the Supreme Court docket might have denied Du Pont’s petition for certiorari. We then flip to the equity problem raised by Justice Thomas’s dissent. In our view, Thomas appears to be nice with pretrial procedures that promote effectivity in mass tort circumstances till defendant firms are aggrieved. Then, it appears, equity and due course of concerns turn out to be paramount. Nonetheless, to paraphrase Justice Stephen Breyer, writing in Heffernan v. Metropolis of Patterson, shouldn’t sauce for the goose be sauce for the gander?
In his dissent, Justice Thomas compresses the procedural historical past of the litigation towards Du Pont earlier than the Abbotts filed swimsuit right into a single paragraph. In doing so, Thomas obscures information that will have led the Court docket to disclaim Du Pont’s certiorari petition. Here’s a extra detailed account of the litigation, set out by the Sixth Circuit in its opinion under (although it should be acknowledged that even this abstract doesn’t cowl all of the nuances of greater than twenty years of litigation):
Within the Fifties, Du Pont “started utilizing [perfluorooctanoic acid, also known as] C-8 to fabricate Teflon merchandise” at its West Virginia plant. Though “Du Pont realized within the Sixties that C-8 was poisonous to animals and was reaching groundwater within the communities surrounding the plant,” the corporate “discharged C-8 into the air, the Ohio River, and landfills with out limits till the early 2000s.”
Du Pont was sued in West Virginia state courtroom by “people who had consumed the contaminated water” within the early 2000s. The courtroom licensed a category motion in 2002 and “permitted the events’ class-wide settlement settlement” in 2005. This settlement settlement “normal distinctive measures to be undertaken over time to acquire scientific and medical data in an effort to deal with the harms to the affected employees and communities.” It included the events’ settlement “to a singular process that outlined the parameters of authorized actions the [] plaintiffs might convey towards Du Pont based mostly on [an] epidemiological examine” performed as a part of the settlement. This epidemiological examine took seven years.
Subsequently, members of the category “introduced roughly 3,500 circumstances towards Du Pont pursuant” to the settlement settlement. “At Du Pont’s request, the federal courts consolidated these circumstances in an MDL within the Southern District of Ohio.” The district courtroom then labored with the events to determine six circumstances “for bellwether trials”—primarily take a look at circumstances.
The district courtroom tried the primary two bellwether circumstances. Each resulted in jury verdicts towards Du Pont. Du Pont appealed the judgment within the first case however settled it and the opposite MDL circumstances earlier than the Sixth Circuit issued its determination in 2017. One other case, not a bellwether, was tried in 2016, and the plaintiff gained that case towards Du Pont as effectively.
The developments described within the previous 4 paragraphs occurred earlier than the Abbotts sued Du Pont in 2017. They present that over the course of the litigation, Du Pont vigorously asserted its rights, labored with the plaintiffs to develop a singular process to resolve claims towards it, and availed itself of alternatives to contest the plaintiffs’ claims in state courtroom and federal courtroom. This intensive historical past might have persuaded the Supreme Court docket to disclaim Du Pont’s petition for certiorari. On the very least, the corporate’s claims of unfairness within the Abbott litigation arose in a really particular, even distinctive, context that will have made the case inappropriate for setting legislation nationwide.
What of Justice Thomas’s rivalry that it was unfair for Du Pont to be sure within the Abbotts’ case by factual determinations made within the earlier circumstances that Du Pont litigated and misplaced? Mass tort circumstances current an acute administrative problem for courts in that they need to stability the demand for justice with the necessity for effectivity.
In a world of more and more complicated litigation, effectivity has been elevated as a precedence and is seen generally as a element of justice. That is notably true in high-stakes, large-scale tort litigation by which a number of plaintiffs sue a standard defendant. Issues about inconsistent outcomes for plaintiffs with related claims and the useful resource prices and externalities of repeat litigation drive two totally different procedural mechanisms meant to streamline and regularize mass tort litigation: multidistrict litigation (MDL) and problem preclusion.
Below federal legislation, an MDL is a authorized continuing by which circumstances from totally different federal district courts involving frequent questions of reality are consolidated and transferred to a single district courtroom for pretrial proceedings. Sometimes, as within the Du Pont litigation, the defendant petitions for MDL to centralize litigation going down in several fora. The justifications for an MDL are effectivity—in that pretrial proceedings for a lot of circumstances needs to be cheaper in the event that they happen earlier than a single courtroom—and consistency—in that one choose is managing the circumstances and resolving the events’ pretrial disagreements.
Two different features of MDL litigation are price noting. First, MDL advantages a defendant in that at the very least some circumstances filed towards it are despatched to a discussion board apart from those initially chosen by plaintiffs. Second, though in principle MDL circumstances return to their residence districts for trial, many MDL circumstances finish, both by means of world settlement, a dispositive pretrial movement, or different maneuvers round Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach (1998), by which the Supreme Court docket held that the transferee courtroom in an MDL might not assign itself a transferred case for trial.
If a defendant sued in a number of circumstances across the nation favors an MDL, plaintiffs in such circumstances search to benefit from collateral estoppel—extra particularly, nonmutual offensive collateral estoppel. This mouthful of a phrase refers to a authorized doctrine, permitted by the Supreme Court docket in Parklane Hosiery Co. v. Shore (1979), by which a celebration that litigates and loses a difficulty could also be sure by the willpower of that problem in subsequent litigation, even when the next litigation includes a special social gathering, as long as it’s truthful. The rationale for the doctrine is effectivity: Why expend time and assets re-litigating a difficulty that was absolutely and pretty decided in a previous case?
In his dissent, Justice Thomas complains that using “nonmutual offensive collateral estoppel” within the Du Pont litigation, an MDL, “raises severe due course of considerations.” Properly, hypothetically, maybe. However we imagine that Justice Thomas’s considerations are overstated and never supported by the file within the Abbott litigation.
As a matter of legislation, Parklane offers a district courtroom the discretion to resolve whether or not the appliance of nonmutual offensive collateral estoppel in a specific case is truthful. That’s what the district courtroom and Sixth Circuit did in Du Pont. Their evaluation was fact-specific and detailed. To make sure, one Sixth Circuit choose disagreed with the bulk’s evaluation and wrote an equally fact-specific and detailed dissent as to why collateral estoppel shouldn’t apply within the Abbotts’ case.
The worth of recent, further guidelines to make clear whether or not and when collateral estoppel ought to apply in an MDL could also be illusory, because the evaluation inevitably includes an intensive evaluation of the information, claims, and procedural historical past of prior litigation in addition to the case by which the plaintiff seeks to invoke collateral estoppel.
That is demonstrated by Du Pont’s litigation with the Abbotts. Du Pont litigated and misplaced three circumstances, together with two bellwether trials, by which the problems of responsibility, breach, and foreseeability concerning Du Pont’s discharge of C-8 had been determined. Du Pont says the problems within the Abbott litigation had been totally different; the decrease courts disagreed. In denying Du Pont’s petition for certiorari, the Supreme Court docket deferred to the determinations made by the courts most accustomed to the information.
Absolutely Du Pont knew that it might be sure by the determinations made within the three circumstances as long as a subsequent courtroom concluded that the weather of collateral estoppel had been glad. Within the context of an MDL, by which settlement is the most typical end result, Du Pont had each incentive to litigate vigorously within the three circumstances that went to trial.
Furthermore, though Du Pont was sure by sure determinations made in prior circumstances, it nonetheless might contest factual causation and damages at trial towards the Abbotts. Responsibility and breach (and foreseeability, the sine qua non of each responsibility and proximate trigger) are points that lend themselves to consistency throughout plaintiffs whose claims allege damage because of the identical conduct by the identical defendant. To place it one other method, why ought to the Abbotts (and Du Pont and the trial courtroom) must expend time and assets re-litigating points about Du Pont’s conduct that had been absolutely and pretty decided in prior circumstances?
Justice Thomas notes that there’s an asymmetry with the appliance of nonmutual collateral estoppel. A defendant (corresponding to Du Pont within the C-8 circumstances) could also be sure by sure determinations if it loses however doesn’t profit from a win as a result of the subsequent plaintiff, a brand new social gathering, isn’t sure by determinations made in a case by which the brand new plaintiff was not a celebration. However nonmutual collateral estoppel is one procedural gadget amongst many—together with, for instance, dispositive pretrial motions wielded by defendants such because the Rule 12(b)(6) failure to state a declare and the Rule 56 movement for abstract judgment, in addition to the MDL—that goals to advertise effectivity within the pursuit of justice. The Court docket’s denial of Du Pont’s certiorari petition might have adopted from the acknowledgment that plaintiffs in mass tort circumstances have the identical proper to an environment friendly process as company defendants, as long as its use is truthful.
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