Of Mass Torts, Multidistrict Litigation, and Collateral Estoppel: Notes on Justice Thomas’s Dissent from the Denial of Certiorari in E.I. du Pont de Nemours & Co. v. Abbott
As the present Supreme Courtroom time period approaches its remaining stretch, all eyes are on the blockbuster circumstances. By the point it adjourns this summer season, the Courtroom may have determined circumstances involving the prosecution of former President Donald Trump (and subsequently the trail of the following presidential election), the scope of the executive state, and different consequential and controversial points, together with one other case concerning the legality of abortion.
Amid the tumult, it’s simple to miss the “extraordinary” circumstances earlier than the Courtroom. As Civil Process professors, we have been intrigued by the Courtroom’s disposition of E.I. du Pont de Nemours & Co. v. Abbott (“Du Pont”) late final 12 months. The Courtroom denied Du Pont’s request to evaluation the USA Courtroom 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 in opposition to Du Pont. The plaintiffs’ claims arose after prolonged litigation over Du Pont’s discharge of perfluorooctanoic acid, a poisonous “ceaselessly” chemical, into the Ohio River, landfills, and air surrounding the corporate’s plant in West Virginia.
Du Pont concerned greater than a single, easy 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 court docket, consolidation of circumstances in opposition to Du Pont in a federal multidistrict litigation (MDL), and trial of three circumstances. Subsequently, the Abbotts sued Du Pont and persuaded the trial court docket to use collateral estoppel (often known as concern preclusion) and maintain that Du Pont was sure by sure factual findings relating to legal responsibility established within the bellwether circumstances.
After dropping to the Abbotts at trial and within the Sixth Circuit, Du Pont petitioned the Supreme Courtroom, asserting that it was unfair for the corporate to be denied the chance to contest sure factual points by way of the trial court docket’s use of collateral estoppel. The Supreme Courtroom denied Du Pont’s petition for certiorari. As is usually the case, the Supreme Courtroom didn’t clarify why it denied evaluation.
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 properly know, such a dissent “has no implication no matter relating to the Courtroom’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 Courtroom will deal with the problems raised by Du Pont in a future case.
We first take into account why the Supreme Courtroom might have denied Du Pont’s petition for certiorari. We then flip to the equity concern raised by Justice Thomas’s dissent. In our view, Thomas appears to be high-quality with pretrial procedures that promote effectivity in mass tort circumstances till defendant companies are aggrieved. Then, it appears, equity and due course of concerns develop into 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 in opposition to Du Pont earlier than the Abbotts filed swimsuit right into a single paragraph. In doing so, Thomas obscures details which will have led the Courtroom 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 beneath (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 discovered within the Nineteen 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 court docket by “people who had consumed the contaminated water” within the early 2000s. The court docket licensed a category motion in 2002 and “authorized the events’ class-wide settlement settlement” in 2005. This settlement settlement “original distinctive measures to be undertaken over time to acquire scientific and medical data as a way to deal with the harms to the affected employees and communities.” It included the events’ settlement “to a novel process that outlined the parameters of authorized actions the [] plaintiffs may deliver in opposition to Du Pont primarily based on [an] epidemiological examine” carried out as a part of the settlement. This epidemiological examine took seven years.
Subsequently, members of the category “introduced roughly 3,500 circumstances in opposition to 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 court docket then labored with the events to establish six circumstances “for bellwether trials”—basically check circumstances.
The district court docket tried the primary two bellwether circumstances. Each resulted in jury verdicts in opposition to 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 choice in 2017. One other case, not a bellwether, was tried in 2016, and the plaintiff received that case in opposition to Du Pont as properly.
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 novel process to resolve claims in opposition to it, and availed itself of alternatives to contest the plaintiffs’ claims in state court docket and federal court docket. This intensive historical past might have persuaded the Supreme Courtroom 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 which 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 have 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 considered generally as a part of justice. That is significantly true in high-stakes, large-scale tort litigation through which a number of plaintiffs sue a standard defendant. Considerations about inconsistent outcomes for plaintiffs with comparable claims and the useful resource prices and externalities of repeat litigation drive two totally different procedural mechanisms supposed to streamline and regularize mass tort litigation: multidistrict litigation (MDL) and concern preclusion.
Beneath federal legislation, an MDL is a authorized continuing through which circumstances from totally different federal district courts involving frequent questions of truth are consolidated and transferred to a single district court docket for pretrial proceedings. Usually, as within the Du Pont litigation, the defendant petitions for MDL to centralize litigation happening in several fora. The justifications for an MDL are effectivity—in that pretrial proceedings for a lot of circumstances must be cheaper in the event that they happen earlier than a single court docket—and consistency—in that one choose is managing the circumstances and resolving the events’ pretrial disagreements.
Two different elements of MDL litigation are price noting. First, MDL advantages a defendant in that at the very least some circumstances filed in opposition to it are despatched to a discussion board apart from those initially chosen by plaintiffs. Second, though in principle MDL circumstances return to their house districts for trial, many MDL circumstances finish, both by way of international settlement, a dispositive pretrial movement, or different maneuvers round Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach (1998), through which the Supreme Courtroom held that the transferee court docket 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 make the most of collateral estoppel—extra particularly, nonmutual offensive collateral estoppel. This mouthful of a phrase refers to a authorized doctrine, authorized by the Supreme Courtroom in Parklane Hosiery Co. v. Shore (1979), through which a celebration that litigates and loses a difficulty could also be sure by the willpower of that concern in subsequent litigation, even when the following litigation entails a distinct celebration, as long as it’s honest. The rationale for the doctrine is effectivity: Why expend time and sources re-litigating a difficulty that was totally and pretty decided in a previous case?
In his dissent, Justice Thomas complains that the usage of “nonmutual offensive collateral estoppel” within the Du Pont litigation, an MDL, “raises critical due course of considerations.” Effectively, hypothetically, maybe. However we consider that Justice Thomas’s considerations are overstated and never supported by the report within the Abbott litigation.
As a matter of legislation, Parklane provides a district court docket the discretion to resolve whether or not the applying of nonmutual offensive collateral estoppel in a specific case is honest. That’s what the district court docket and Sixth Circuit did in Du Pont. Their evaluation was fact-specific and detailed. To make certain, 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, extra 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 entails an intensive evaluation of the details, claims, and procedural historical past of prior litigation in addition to the case through 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, through which the problems of obligation, breach, and foreseeability relating to Du Pont’s discharge of C-8 have been determined. Du Pont says the problems within the Abbott litigation have been totally different; the decrease courts disagreed. In denying Du Pont’s petition for certiorari, the Supreme Courtroom deferred to the determinations made by the courts most conversant in the details.
Absolutely Du Pont knew that it will be sure by the determinations made within the three circumstances as long as a subsequent court docket concluded that the weather of collateral estoppel have been happy. Within the context of an MDL, through which settlement is the most typical consequence, Du Pont had each incentive to litigate vigorously within the three circumstances that went to trial.
Furthermore, despite the fact that Du Pont was sure by sure determinations made in prior circumstances, it however may contest factual causation and damages at trial in opposition to the Abbotts. Responsibility and breach (and foreseeability, the sine qua non of each obligation and proximate trigger) are points that lend themselves to consistency throughout plaintiffs whose claims allege damage on account of the identical conduct by the identical defendant. To place it one other means, why ought to the Abbotts (and Du Pont and the trial court docket) need to expend time and sources re-litigating points about Du Pont’s conduct that have been totally and pretty decided in prior circumstances?
Justice Thomas notes that there’s an asymmetry with the applying of nonmutual collateral estoppel. A defendant (equivalent 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 following plaintiff, a brand new celebration, will not be sure by determinations made in a case through which the brand new plaintiff was not a celebration. However nonmutual collateral estoppel is one procedural system 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 Courtroom’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 honest.
Source / Picture: verdict.justia.com
