# Rourke v. Amchem Products, Inc.

> Court of Appeals of Maryland · December 14, 2004 · 384 Md. 329

URL: https://www.frixlaw.com/law-library/cases/9692122

## Case

- **Full name:** Edna O. ROURKE, as Personal Representative for the Estate of Franklin Adams, Et Al. v. AMCHEM PRODUCTS, INC., Et Al.
- **Court:** Court of Appeals of Maryland
- **Decided:** December 14, 2004
- **Citations:** 384 Md. 329; 863 A.2d 926; 2004 Md. LEXIS 791
- **Precedential status:** Published
- **Opinion:** Dissent by Bell
- **Judges:** Wilner
- **Cited by:** 49 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9692122

## How later opinions describe it (automated extraction)

- stating that “[i]t is settled in Maryland ... that a circuit court’s order removing a claim from that court to another — whether to a district court, another circuit court, or to arbitration — constitutes an immediately appealable final judgment on the arbitrability question”
- stating that "[i]t is settled in Maryland ... that a circuit court's order removing a claim from that court to another—whether to a district court, another circuit court, or to arbitration—constitutes an immediately appealable final judgment on the arbitrability question"
- noting, in arbitration context, “the requirement that all provisions of a contract be read together harmoniously, so that each can be given effect”

## Opinion text

*357 BELL, Chief Judge,
dissenting in which CATHELL, J., joins.
This case involves the collateral estoppel effect of a prior judgment, entered in a case in which the defendants in this case participated, 1 and interpreting a settlement agreement, which, except that it was with different plaintiffs, was virtually identical to the one at issue in this case. The issue would be a straight-forward, even simple, issue of a State applying its rules of issue preclusion, but for a complicating and seemingly perpetually confusing factor, the prior judgment was entered by a neighboring State court. While I do not believe that that factor does, or should, change the analysis, the majority does. Thus, it affirms, and on the same rationale, the judgment of the Court of Special Appeals, which, affirming the judgment of the Circuit Court for Baltimore City, but unlike that court, invoked the full faith and credit clause of the United States Constitution. Rourke v. Amchem, 153 Md.App. 91, 116-18 , 835 A.2d 193, 207-208 (2003). Rourke v. Amchem, 384 Md. 329 , 332, 343-52, 863 A.2d 926 , 928, 934-40. For the reasons that follows, I dissent.
Collateral estoppel is an “aspect of the finality of judgments between the parties” to litigation. Welsh v. Gerber Prods., Inc., 315 Md. 510, 517 , 555 A.2d 486, 489 (1989). Often characterized as issue preclusion, id.; Kent County Bd. of Educ. v. Bilbrough, 309 Md. 487, 490 , 525 A.2d 232, 233 (1987). While “[cjlaim preclusion refers to the effect of a judgment in foreclosing litigation of a matter that never has been litigated, because of a determination that it should have been advanced in an earlier suit,” Bilbrough, 309 Md. at 490 , 525 A.2d at 233 , it is “concerned with the issue implications of the earlier litigation of a different case.” Colandrea v. Wilde Lake Community Ass’n, Inc., 361 Md. 371, 390 , 761 A.2d 899, 909 (2000). We have explained the principle as being “that in a *358 second suit between the same parties, even if the cause of action is different, any determination of fact that was actually litigated and was essential to a valid and final judgment is conclusive.” Welsh, 315 Md. at 516 , 555 A.2d at 489 . See Murray International v. Graham, 315 Md. 543, 547 , 555 A.2d 502, 504 (1989), quoting Restatement (Second) of Judgments, § 27 (1982) (“[w]hen an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim.”). See also Janes v. State, 350 Md. 284, 295 , 711 A.2d 1319, 1324 (1998); MPC, Inc. v. Kenny, 279 Md. 29, 32 , 367 A.2d 486, 489 (1977); Frontier Van Lines v. Md. B. & Tr. Co., 274 Md. 621, 624 , 336 A.2d 778, 780 (1975); Travelers Insur. Co. v. Godsey, 260 Md. 669, 676 , 273 A.2d 431 (1971); Sterling v. Local 438, etc., 207 Md. 132, 143 , 113 A.2d 389 , cert. denied, 350 U.S. 875 , 76 S.Ct. 119 , 100 L.Ed. 773 (1955).
This is consistent with the formulation of the test by the United States Supreme Court. In Ashe v. Swenson, that Court stated the principle as follows:
“ ‘Collateral estoppel’ is an awkward phrase, but it stands for an extremely important principle in our adversary system of justice. It means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.”
397 U.S. 436, 443 , 90 S.Ct. 1189, 1194 , 25 L.Ed.2d 469, 475 (1970). It stated the principle a little differently in Montana v. U.S., 440 U.S. 147, 153 , 99 S.Ct. 970, 973 , 59 L.Ed.2d 210, 217 (1979), quoting Southern Pacific R. Co. v. United States, 168 U.S. 1, 48-49 , 18 S.Ct. 18, 27 , 42 L.Ed. 355, 376-377 (1897):
“A fundamental precept of common-law adjudication, embodied in the related doctrines of collateral estoppel and res judicata, is that a ‘right, question or fact distinctly put in issue and directly determined by a court of competent *359 jurisdiction ... cannot be disputed in a subsequent suit between the same parties or their privies....”’
See Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322 , 326 n. 5, 99 S.Ct. 645 , 649 n. 5, 58 L.Ed.2d 552 , 559 n. 5 (1979) (“Under the doctrine of collateral estoppel ... a second action is upon a different cause of action and the judgment in the prior suit precludes relitigation of issues actually litigated and necessary to the outcome of the first action.”).
Underlying the doctrine of collateral estoppel, as well as its cousin, res judicata, are policy, practical necessity and justice considerations. Pat Perusse Realty v. Lingo, 249 Md. 33, 42 , 238 A.2d 100, 106 (1968), quoting Williams v. Messick, 177 Md. 605, 615 , 11 A.2d 472, 476 (1940). Thus, we have stated:
“The functions of this doctrine, and the allied doctrine of res judicata, are to avoid the expense and vexation of multiple lawsuits, conserve judicial resources, and foster reliance on judicial action by minimizing the possibilities of inconsistent decisions.”
Graham, supra, 315 Md. at 547, 555 A.2d at 504 , citing Montana v. United States, 440 U.S. 147, 153-54 , 99 S.Ct. 970, 973-74 , 59 L.Ed.2d 210, 217 (1979). See MPC, Inc. v. Kenny, 279 Md. at 34-35 , 367 A.2d at 490 (public policy against interminable litigation); Pat Perusse, 249 Md. at 45 , 238 A.2d at 107-108 (public policy against repetitive identical litigation, which underlies the rule of res judicata, applies here with logic and force to provide that Perusse’s rights were satisfied by having had its day in court on an issue, and that it is not entitled to another day in court against a particular defendant on that issue”); Prescott v. Coppage, 266 Md. 562, 570-73 , 296 A.2d 150, 154-155 (1972). See also Powers v. State, 285 Md. 269, 283-284 , 401 A.2d 1031, 1039 (1979) (“Thus, the primary purpose of the doctrine of collateral estoppel is to protect an accused from the unfairness of being required to relitigate an issue which has once been determined in his favor by a verdict of acquittal.”). Stated differently, collateral estoppel is “based on the judicial policy that the losing litigant deserves no rematch after a defeat fairly suffered, in adversarial proceed *360 ings, on issues raised” and decided. Colandrea v. Wilde Lake Community Ass’n, Inc., 361 Md. at 391 , 761 A.2d at 909 , citing Department of Human Resources v. Thompson, 103 Md.App. 175, 194 , 652 A.2d 1183, 1192 (1995).
The Supreme Court has articulated the purpose of collateral estoppel in a similar manner:
“Collateral estoppel, like the related doctrine of res judicata, has the dual purpose of protecting litigants from the burden of relitigating an identical issue with the same party or his privy and of promoting judicial economy by preventing needless litigation.”
Parklane Hosiery, 439 U.S. at 326 , 99 S.Ct. at 649 , 58 L.Ed.2d at 559 , citing Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 328-29 , 91 S.Ct. 1434, 1442-1443 , 28 L.Ed.2d 788, 799 (1971). It has concluded, moreover, that “[application of both doctrines is central to the purpose for which civil courts have been established, the conclusive resolution of disputes within their jurisdictions.” Montana, 440 U.S. 147 at 153 , 99 S.Ct. at 973, 59 L.Ed.2d at 217 .
“Collateral estoppel is not concerned with the legal consequences of a judgment, ... only with the findings of ultimate fact ... that necessarily lay behind that judgment.” Colandrea v. Wilde Lake Community Ass’n, Inc., 361 Md. at 391 , 761 A.2d at 909 , citing Burkett v. State, 98 Md.App. 459, 465 , 633 A.2d 902, 905 (1993), cert. denied 334 Md. 210 , 638 A.2d 752 (1994). It is, rather, a tool that is designed to facilitate and promote the most efficient and most productive processing of cases by a court system. When applied effectively, it results in the most effective and productive allocation of judicial resources. Thus, collateral estoppel, true also of res judicata, is a judiciary’s docket and workload control device; it is not a tool designed to assess the effect or effectiveness of foreign judgments. This is evident by the test that this Court has developed to test the applicability of collateral estoppel in a given fact situation. That test is set out in Washington *361 Suburban Sanitary Commission v. TKU Associates, 281 Md. 1, 18-19 , 376 A.2d 505, 514 (1977):
“1. Was the issue decided in the prior adjudication identical with the one presented in the action in question?
“2. Was there a final judgment on the merits?
“3. Was the party against whom the plea is asserted a party or in privity with a party to the prior adjudication?
“4. Was the party against whom the plea is asserted given a fair opportunity to be heard on the issue?”
A corollary to the rule of res judicata and collateral estoppel is, and has been, the theory of mutuality. Pat Perusse, 249 Md. at 35 , 238 A.2d at 102 . That corollary is, “estoppels must be mutual and one ... who himself was bound by the prior judgment cannot assert res judicata against him to whom it was adverse.” Id. Its rationale is straightforward:
“Justice requires that every cause be once fairly and impartially tried; but the public tranquility demands that having been once so tried, all litigation of that question, and between those parties, should be closed forever. It is also a most obvious principle of justice, that no man ought to be bound by proceedings to which he was a stranger.”
Cecil v. Cecil, 19 Md. 72, 79 , 1862 WL 2345 , *5 (1862). Thus, in its most rigid form, “the mutuality requirement provided a party who had litigated and lost in a previous action an opportunity to relitigate identical issues with new parties.” Parklane Hosiery, 439 U.S. at 327 , 99 S.Ct. at 649 , 58 L.Ed.2d at 559-560 . Moreover, “[b]y failing to recognize the obvious difference between a party who has never litigated an issue and one who has fully litigated and lost, the mutuality requirement was criticized almost from its inception.” Id.
Like the rules to which it is corollary, the theory of mutuality is also:
“based upon policy and practical necessity and justice ... and on the same grounds of policy and justice there would be no objection to departing from it where the party affected has been given an adequate opportunity to be heard either personally or by representation.”
*362 Pat Perusse, 249 Md. at 42 , 238 A.2d at 106 . Relevant to the policy and justice grounds is the determination of “the desirability of granting or imposing the benefit or burden of issue preclusion in situations where there is not a complete identity of parties.” Welsh v. Gerber, 315 Md. at 517, 555 A.2d at 489 . In that regard, it is clear that a critical determinant is whether the party to be bound, estopped, had a full and fair opportunity to litigate the issue in question. Id.; Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. at 329 , 91 S.Ct. at 1443 , 28 L.Ed.2d at 799 . Another policy consideration was identified by the Supreme Court: “whether it is any longer tenable to afford a litigant more than one full and fair opportunity for judicial resolution of the same issue.” Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. at 328 , 91 S.Ct. at 1442 , 28 L.Ed.2d at 799 . 2
*363 Fueled by the criticism of the mutuality principle and policy and justice concerns, the principle of non-mutual collateral estoppel 3 relatively recently has developed, as an exception to the mutuality principle. After noting the exceptions and modifications that had been made to the theory of mutuality, over time, and the reasons therefor, Pat Perusse, 249 Md. at 35-41 , 238 A.2d at 102-105 , this Court upheld the application of defensive non-mutual collateral estoppel. Id. at 45 , 238 A.2d at 107-108 . Subsequently, acknowledging the validity of the criticism of the mutuality doctrine, the Supreme Court abandoned the mutuality requirement, also in the case of defensive non-mutual collateral estoppel. Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. at 328-334 , 91 S.Ct. at 1434-1445 , 28 L.Ed.2d at 799-803 .
To be sure, the Court, in Parklane Hosiery, identified the difference between the use of non-mutual collateral estoppel for defensive purposes and for offensive purposes and cata-logued some of the problems that may be encountered when non-mutual collateral estoppel is used offensively. 439 U.S. at 329-331 , 99 S.Ct. at 650-51, 58 L.Ed.2d at 561-562 . Nevertheless, the Court did not preclude the use of offensive non-mutual collateral estoppel, rather it:
“concluded that the preferable approach for dealing with these problems in the federal courts is not to preclude the use of offensive collateral estoppel, but to grant trial courts broad discretion to determine when it should be applied.... The general rule should be that in cases where a plaintiff could easily have joined in the earlier action or where, either for the reasons discussed above or for other reasons, the application of offensive estoppel would be unfair to a defen *364 dant, a trial judge should not allow the use of offensive collateral estoppel.”
Id. at 331 , 99 S.Ct. at 651-52, 58 L.Ed.2d at 562 .
The Court of Appeals discussed non-mutual collateral estop-pel in Welsh v. Gerber Prods., Inc., 315 Md. 510 , 555 A.2d 486 , supra, a case involving a certified question from the federal court which required the Court to address the attempted defensive use of non-mutual collateral estoppel. In addition to defining the two kinds of non-mutual collateral estoppel, id. at 517 n. 6, 555 A.2d at 490 n. 6, and noting the pertinent developments, including the Supreme Court’s refusal, despite its recognition of problems in its implementation, to preclude use of non-mutual offensive collateral estoppel, id. at 517-18, 555 A.2d at 489-90, pertinent to this case, we said:
“Conceptually, there will be instances in which a party who has had the benefit of a full and fair adjudication of an issue should be bound by that adjudication, even in a subsequent proceeding involving a different party. The difficulty is, however, that there are many situations where application of the doctrine of nonmutual collateral estoppel would be manifestly unfair.”
Id. at 517, 555 A.2d at 489. The Court also emphasized the necessity that “the party to be bound must have had a full and fair opportunity to litigate the issue in question,” characterizing that requirement as “[t]he foundation of the rule of nonmutual collateral estoppel.” Id. at 518, 555 A.2d at 490. Accordingly, characterizing the Welsh v. Gerber case, the Court of Special Appeals correctly observes, that this Court “has indicated that [non-mutual offensive collateral estoppel] may be employed under proper circumstances.” Amchem I, 153 Md.App. at 112 , 835 A.2d at 204 .
While it set out the test developed by this Court to determine the applicability of collateral estoppel, addressed some of the factors, enumerated the arguments of counsel on the point and reviewed some of the pertinent facts concerning the Virginia litigation, contrasting it to that in this case, id. at 108-115 , 835 A.2d at 202-206 , rather than determining the correctness of the trial court’s refusal to apply offensive non- *365 mutual collateral estoppel, the intermediate appellate court decided the case on the basis of a full faith and credit analysis, 4 thus adopting one of the two arguments advanced by the appellees.
The majority follows suit, “agreeing] with the intermediate appellate court that, under both a full faith and credit and a *366 common law collateral estoppel analysis, Maryland is not required to give, and, indeed, may not ordinarily give, any greater preclusive effect to the Virginia judgment than Virginia would give it, and that, in resolving that issue, we must apply Virginia, not Maryland, collateral estoppel law.” 384 Md. at 343, 863 A.2d at 934. The majority, unlike the Court of Special appeals, may have discussed common law collateral estoppel, at least from the federal perspective, nevertheless, it grounds its decision on the same basis as the intermediate appellate court. The common thread binding the majority and the Court of Special Appeals is the conclusion, reached by both, that, in this case, Maryland is required to follow the Virginia law of collateral estoppel.
More particularly, the majority posits that its conclusion is required by the reasoning of the Supreme Court, which, it says, “has made clear that, in determining the preclusive effect to be given to the judgment of a State court, the claim and issue preclusion rules of the State that rendered the judgment must govern.” 384 Md. at 344, 863 A.2d at 935. It relies on Board of Public Works v. Columbia College, 84 U.S. 521 , 17 Wall. 521 , 21 L.Ed. 687 (1873), which it says first made the point, and subsequent Supreme Court cases, decided pursuant to 28 U.S.C. § 1738 , in which the Court addressed the extent to which federal courts must give preclusive effect to State court judgments. E.g., Kremer v. Chemical Construction Corp., 456 U.S. 461, 481-82 , 102 S.Ct. 1883, 1897 , 72 L.Ed.2d 262, 280 (1982); Migra v. Warren City School Disk Bd. Of Ed., 465 U.S. 75, 85 , 104 S.Ct. 892, 898 , 79 L.Ed.2d 56, 64 (1984); Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 380 , 105 S.Ct. 1327, 1332 , 84 L.Ed.2d 274, 281 (1984). Not only are these cases consistent with the Supreme Court’s Constitutional full faith and credit cases, the majority submits, 384 Md. at 347-48, nn. 8 and 9, 863 A.2d at 937, nn. 8 and 9, but they have been followed by lower federal courts, state courts and are consistent with our cases. To demonstrate the latter, the majority dtes Weinberg v. Johns-Manville Sales Corp., 299 Md. 225, 234 , 473 A.2d 22, 27 (1984); Jessica G. v. Hector M., 337 Md. 388, 405 , 653 A.2d 922, 931 *367 (1995); Wernwag v. Pawling, 5 G. & J. 500, 507 (Md.1833); Brengle v. McClellan, 7 G. & J. 434, 440-41 (Md.1836); Madden v. Cosden, 271 Md. 118, 125 , 314 A.2d 128, 132 (1974). The proposition for which these cases stand, it says, 384 Md. at 347, n. 9, 863 A.2d at 937 n. 9, is, “Under principles of full faith and credit, a state court is generally required to give judgments rendered in other states the same effect that they have in the rendering state.” Weinberg, 299 Md. at 234 , 473 A.2d at 27 .
At the outset, I want to be clear, I do not believe that collateral estoppel impacts, in any way, the “effect” of the Virginia judgment. That judgment remains valid and effective, and enforceable against the appellees, just as it would be in Virginia. Application of the doctrine offensively has, to be sure, collateral consequences, but those consequences do not result in the judgment not being given full effect. Those collateral consequences are driven, not by a desire or intent not to give the judgment full faith and credit or effect, but by a policy rationale aimed at case/docket management and the economical and judicious use of scarce judicial resources, counter-balanced, of course, by a desire to ensure that justice is accomplished. That is the same purpose of the collateral estoppel policy adopted by Virginia, I would submit.
By not permitting the use of offensive non-mutual collateral estoppel, Virginia does not render, or, indeed, intend to render, the judgment it entered invalid or ineffective as to the parties as which the judgment was entered, in this case, the appellees; it simply has chosen to utilize its scarce judicial resources in a different manner than Maryland has, to reliti-gate issues already decided, presumably because, given its conception of it, it believes to do so will serve the ends of justice. I certainly do not believe that the Virginia policy choice is tied to any sense that justice was not done in the case which resulted in the judgment that is the source of the issues sought to be used offensively. There is nothing, moreover, in this record to suggest that the Virginia collateral estoppel policy is premised on an intent to shield those with Virginia judgments from the stricter preclusive collateral estoppel poli *368 cies of other States. In any event, to give a foreign judgment full faith and credit does not mean that the receiving court is compelled to subordinate its local policies to the policies and laws of the rendering State. Williams v. State of North Carolina, 317 U.S. 287, 296 , 63 S.Ct. 207, 212 , 87 L.Ed. 279, 284 (1942) (“Nor is there any authority which lends support to the view that the full faith and credit clause compels the courts of one state to subordinate the local policy of that state, as respects its domiciliaries, to the statutes of any other state.”).
Critical to the achievement of the policy objective of collateral estoppel is ensuring that the party who will be bound by the doctrine has a fair and full opportunity to litigate the issue in question. While the appellees are unhappy with the result in the Virginia litigation, there is nothing in this record to indicate that they did not have a full and fair opportunity to litigate the case. They have had the benefit of a review of the proceedings by the State’s highest court. And, of course, the Virginia defendants, as far as the record reflects, did not try the Virginia case with an expectation that, should they lose, they would receive the benefit of the more lenient Virginia preclusion rule. Such an expectation simply is not, and would not have been, reasonable.
In addition, I am persuaded by Finley v. Kesling, 105 Ill.App.3d 1 , 60 Ill.Dec. 874 , 433 N.E.2d 1112 (1982). 5 That a judgment has no constitutional claim to a greater effect in the state in which enforcement is sought than it had in the state from which it issued, the court noted, does not mean that a state “cannot give greater effect to the adjudication of the issue therein than would the [rendering] state.” Id. at 1117. It reasoned:
*369 “Finley has cited no case, and we have found none, which holds that a state is barred either by the Full Faith and Credit Clause or by section 1738 of the United States Code of Judiciary and Judicial Procedure (Title 28 U.S.C. s 1738 ), (which, enacted, pursuant to the constitutional mandate, requires that such acts, records and judicial proceedings have the same full faith and credit as in the courts of the state from which they were taken) from applying its own doctrine of collateral estoppel but instead must give effect not only to the judgment of the first state but to the rules of that state as to when collateral estoppel is to be applied.”
Id. The Finley v. Kesling court cited Hart v. American Airlines, 61 Misc.2d 41 , 304 N.Y.S.2d 810 (Sup.Ct.1969) 6 and Clark v. Clark, 80 Nev. 52 , 389 P.2d 69 (1964) as recognizing that the forum state may apply its own rules of collateral estoppel.
In Hart , the court put it thusly:
“Defendant’s reliance on ‘full faith and credit’ to defeat the application of collateral estoppel herein is misplaced. This is not a situation where the judgment, as such, of the Texas court is sought to be enforced. What is here involved is a policy determination by our courts that ‘One who has had his day in court should not be permitted to litigate the question anew’ ... and, further, refusal ‘to tolerate a condition where, on relatively the same set of facts, one fact-finder, be it court or jury’ may find a party liable while another exonerates him leading to the ‘inconsistent results which are always ways a blemish on a judicial system’.... It is in order to carry out these policy determinations in the *370 disposition of cases in this jurisdiction that an evidentiary use is being made of a particular issue determination made in the Texas action.”
Id., 61 Misc.2d at 44 , 304 N.Y.S.2d at 813-814 (citations omitted). The Clark court reached a similar conclusion with respect to the effect of full faith and credit on the question of choice of law:
“However, we do not believe that the constitutional command of full faith and credit poses a choice of law problem .... Rather, the mandate of full faith and credit to judgments is limited to their effect as res judicata, and should not be extended to include questions of choice of law which may later arise.”
Clark, 389 P.2d at 71 (citations omitted). I am not persuaded by the cases on which the Majority relies. I find many of them inapposite. In Columbia College , for example, the Virginia Court of Appeals, at that time the highest court of Virginia, stated in its order that the judgment rendered by the Circuit Court was interlocutory and not final, and thus non-appealable. It was in this context that the Court commented:
“... [T]he complainant, relying upon the decree of the court as evidence of his demand' against Withers, invoking for it full faith and credit under the clause of the Constitution, cannot object to the character which the highest court of Virginia has given to it, or insist that it is entitled to any other consideration or weight. No greater effect can be given to any judgment of a court of one State in another State than is given to it in the State where rendered. Any other rule would contravene the policy of the provisions of the Constitution and laws of the United States on the subject.”
84 U.S. at 529 , 21 L.Ed. at 691 (footnote omitted). The case on which Columbia College relied, Suydam v. Barber, was to similar effect. Rather than having the limitation of the judgment noted in the court order, the law of Missouri clearly stated the limitation, thus both the plaintiff and the defendant to the action were on notice of that limitation. In this case, *371 there is neither a notation of the effect of the judgment in the court order, nor is there a law to that effect passed by the Virginia Legislature.
As the majority acknowledges, § 1738 requires federal courts to give the same preclusive effect to state court judgments as those judgments are given in the states in which entered. 384 Md. at 343-14, 863 A 2d at 934-35; Kremer, 456 U.S. at 466 , 102 S.Ct. at 1889 , 72 L.Ed.2d at 270 . By contrast, the courts of each State have the right to determine the preclusion rules applicable to judgments in that State. Therefore, I do not agree that the analysis is the same.
The Maryland cases and their reference to giving a foreign judgment the same effect that judgment has in the State from which it issued are not inconsistent with my position. The effect to which they refer pertains to the judgment itself, not to any collateral rules or policy of that State as to when collateral estoppel may be applied. The point is well made by the Court in Brengle , wherein the Court stated the scope of the full faith and credit requirement: “the doctrine has never been carried further, than to give to the judgment of another State, the same conclusive effect, and obligatory force in every State in the Union, that it had in the State where it was rendered.” 7 G. & J. at 439-40 , 1836 WL at *1. Stated differently, quoting 3d Story’s Comm, on the Constitution U.S. 183:
“ ‘If a judgment is conclusive in the State where it was pronounced, it is equally conclusive every where. If re-examinable there, it is open to the same inquiries in every other State. It is therefore put upon the same footing as a domestic judgment.’ The terms ‘faith and credit,’ as used in the Constitution and act of congress, evidently point to the attributes and qualities, which such records and judicial proceedings shall have as evidence, and such appears to have been the construction given to them in the Commentaries.”
Id. at 440 , 1836 WL at *4. The Court also opined on what “effect” does not mean in the full faith and credit context:
*372 “ ‘can it be supposed, that [the founding fathers] intended, or contemplated to vest in Congress the power of giving to a judgment obtained in one State, all the legal properties, rights, and attributes, when used in another State, to which it was entitled by the law of the State where it was rendered? We think that such could not have been the purpose or intention of those enlightened men who framed that instrument; more especially, as such a principle in its tendency and operation, might lead to a conflict and collision between the laws of the different States, in the administration of their internal policy, and domestic concerns; and it would in effect, put it in the power of one State, to pass laws to regulate and control the administration of assets in another State; which would be an anomaly in jurisprudence, and a violation of the genius and spirit of all our institutions.’ ”
Id. at 441-442 , 1836 WL at *5.
While I am inclined to believe, given the office of collateral estoppel and the fact that these appellees have once already litigated the identical issue, that the record in this case presents at least a good reason to apply the doctrine of offensive non-mutual collateral estoppel, at the very least, I would remand the case to the Court of Special Appeal for its review, on the merits, unobscured by full faith and credit and other such concepts, of the trial court’s refusal to apply the doctrine.
Judge CATHELL joins in the views herein expressed.
. The majority points out that not all of the appellees in this case were actual parties in the Virginia case. Rourke v. Amchem Products, Inc., 384 Md. 329, 340-41 , 863 A.2d 926, 932-33 . It also points out, and this is more to the point, that no issue has been presented with respect to the privity of these appellees to the parties in the Virginia case.
. The Supreme Court’s response was emphatic, strongly suggesting that the answer to the question posited should be, "no.” Parklane Hosiery, 439 U.S. at 328 , 99 S.Ct. at 650 , 58 L.Ed.2d at 560 . The Court’s response was:
"In any lawsuit where a defendant, because of the mutuality principle, is forced to present a complete defense on the merits to a claim which the plaintiff has fully litigated and lost in a prior action, there is an arguable misallocation of resources. To the extent the defendant in the second suit may not win by asserting, without contradiction, that the plaintiff had fully and fairly, but unsuccessfully, litigated the same claim in the prior suit, the defendant’s time and money are diverted from alternative uses — productive or otherwise— to relitigation of a decided issue. And, still assuming that the issue was resolved correctly in the first suit, there is reason to be concerned about the plaintiff’s allocation of resources. Permitting repeated litigation of the same issue as long as the supply of unrelated defendants holds out reflects either the aura of the gaming table or ‘a lack of discipline and of disinterestedness on the part of the lower courts, hardly a worthy or wise basis for fashioning rules of procedure.' Kerotest Mfg. Co. v. C-O-Two [Fire Equipment] Co., 342 U.S. 180, 185 , 72 S.Ct. 219, 222 , 96 L.Ed. 200 , 204 (1952). Although neither judges, the parties, nor the adversary system performs perfectly in all cases, the requirement of determining whether the party against whom an estoppel is asserted had a full and fair opportunity to litigate is a most significant safeguard.”
Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 329 , 91 S.Ct. 1434, 1443 , 28 L.Ed.2d 788, 799-800 (1971).
. In Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322 , 326 n. 4, 99 S.Ct. 645 , 649 n. 4, 58 L.Ed.2d 552 , 559 n. 4 (1979), the Court observed:
"In this context, offensive use of collateral estoppel occurs when the plaintiff seeks to foreclose the defendant from litigating an issue the defendant has previously litigated unsuccessfully in an action with another party. Defensive use occurs when a defendant seeks to prevent a plaintiff from asserting a claim the plaintiff has previously litigated and lost against another defendant.”
. The majority characterizes the Court of Special Appeals' consideration of the Constitutional full faith and credit issue as brief and suggests that that court also decided this case on the basis of common law collateral estoppel. Rourke v. Amchem Products, Inc., 384 Md. 329, 343 , 863 A.2d 926, 934 . While, when considered in the context of the entire discussion, the full faith and credit portion may have been brief, approximately 2 of the 1016 pages devoted to the subject of “Offensive Non-mutual Collateral Estoppel,” Rourke v. Amchem. Products, Inc., 153 Md.App. 91, 108-118 , 835 A.2d 193, 202-208 (2003), the fact is, it was that discussion that was dispositive.
The record does not support the majority's suggestion that the intermediate appellate court relied on common law collateral estoppel for the decision in this case. As indicated, the discussion of offensive non-mutual collateral estoppel covered some 1016 pages. To be sure, the intermediate appellate court acknowledged the pedigree of collateral estoppel, noting its common law beginnings, id. at 109 , 835 A.2d at 203 , citing Colandrea v. Wilde Lake Community Ass’n, Inc., 361 Md. 371, 387 , 761 A.2d 899, 907 (2000); however, the balance of the discussion, see 153 Md.App. at 113 , 835 A.2d at 205 , involved the review of the arguments of counsel and of the doctrine of non-mutual collateral estoppel and a discussion of Parklane Hosiery, and Welsh v. Gerber. Then, after stating that it was going to "find use of the doctrine inappropriate to the circumstances of this case,” 153 Md.App. at 113 , 835 A.2d at 205 , the Court of Special Appeals discussed the test for collateral estoppel, the Virginia Supreme Court decision and the arguments of counsel on the issue of the appropriateness of applying offensive non-mutual collateral estoppel. Id. at 113-115 , 835 A.2d at 205-206 . The last portion of the discussion was introduced, as follows: "We address the two arguments they [presumably, the appellees] present that we find pertinent to this case: the effect of conflicting opinions and the proper application of Full Faith and Credit.” Id. at 115 , 835 A.2d at 205 . After rejecting the conflicting prior opinions rationale, id. at 115-116 , 835 A.2d at 206 , the court concluded:
“Although Maryland may not require mutuality of parties in actions invoking collateral estoppel, Virginia does. Full Faith and Credit commands that we apply Virginia law to determine the preclusive effect of the Amchem decision. Virginia would not permit appellants to invoke collateral estoppel in order to prevent appellees from relit ¡gating the arbitrability of the dispute over the liability of CCR's Producer Members for he debts of former members. We, therefore, decline appellants’ invitation to give the Virginia decision greater effect than it would have in that state.” Id. at 118, 835 A.2d at 208 .
. Although acknowledging that Finley v. Kesling, 105 Ill.App.3d 1 , 60 Ill.Dec. 874 , 433 N.E.2d 1112 (1982) stands for the contrary proposition to that espoused by it, the majority dismisses it, noting that it "is simply not persuasive in light of the overwhelming contrary authority.” 384 Md. at 351 n. 11, 863 A.2d at 939 n. 11. The persuasiveness of an authority is not judged, however, by the numerical strength of its supporters, but rather by the logic of its reasoning.
. The majority is unimpressed by Hart v. American Airlines, 61 Misc.2d 41 , 304 N.Y.S.2d 810 (Sup.Ct. 1969) because it is a trial court decision, involved not with full faith and credit, but comity, as a federal court decision was the prior decision, and it believes that it is inconsistent with a subsequently decided New York Court of Appeals case, Schultz v. Boy Scouts of America, Inc., 65 N.Y.2d 189 , 491 N.Y.S.2d 90 , 480 N.E.2d 679 (1985). As indicated, it is the analysis that counts, not the level of court. Notwithstanding that the case is not a full faith and credit case, its analysis is relevant and instructive. Nor do I agree that it is in conflict with Schultz .

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9692122. Public record. Not legal advice.