Amicus Curiae Brief — E.I. du Pont de Nemours & Co., Petitioner v. Travis Abbott, et ux.

No. 23-13

IN THE

Supreme Court of the United States

E. I. DU PONT DE NEMOURS & CO.,

Petitioner,

v.

TRAVIS ABBOTT; JULIE ABBOTT,

Respondents.

___________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Sixth

Circuit

BRIEF OF WASHINGTON LEGAL

FOUNDATION AS AMICUS CURIAE IN

SUPPORT OF PETITIONER

CORY L. ANDREWS

JOHN M. MASSLON II

WASHINGTON LEGAL

FOUNDATION

2009 Mass. Ave., NW

Washington, DC 20036

MATTHEW P. STEINBERG

DECHERT LLP

1095 Ave. of the Americas

New York, NY 10036

JONATHAN S. TAM

Counsel of Record

DECHERT LLP

One Bush Street #1600

San Francisco, CA 94104

(415) 262-4518

jonathan.tam@dechert.com

ALLISON K. OZUROVICH

DECHERT LLP

633 West 5th Street

Los Angeles, CA 90071

QUESTION PRESENTED

Whether nonmutual offensive collateral estoppel

can be applied to make the results of a handful of

unrepresentative bellwether trials binding on the

defendant in all pending and future cases in an MDL.

ii

TABLE OF CONTENTS

QUESTION PRESENTED .......................................... i

TABLE OF CONTENTS............................................ ii

TABLE OF AUTHORITIES ..................................... iii

INTEREST OF AMICUS CURIAE ............................ 1

SUMMARY OF ARGUMENT .................................... 2

REASONS FOR GRANTING CERTIORARI ............ 4

I.

DUTY, FORESEEABILITY, AND BREACH

ARE PLAINTIFF-SPECIFIC ISSUES THAT

ARE INCOMPATIBLE WITH NONMUTUAL

OFFENSIVE COLLATERAL ESTOPPEL. ............... 6

II.

NONMUTUAL OFFENSIVE COLLATERAL

ESTOPPEL IS INCOMPATIBLE WITH MASS

TORT CASES................................................... 14

A.

Mass Tort MDLs Are Not Meant To

Function As De Facto Class Actions.

................................................................ 14

B.

Applying Nonmutual Offensive

Collateral Estoppel In Mass Tort

Cases Eviscirates Fairness And

Due Process. .......................................... 18

CONCLUSION ......................................................... 25

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Amchem Prods., Inc. v. Windsor,

521 U.S. 591 (1997) .............................................. 16

Arnold v. Garlock, Inc.,

278 F.3d 426 (5th Cir. 2001) ................................ 22

Cimino v. Raymark Indus., Inc.,

151 F.3d 297 (5th Cir. 1998) ................................ 10

Coburn v. Smithkline Beecham Corp.,

174 F. Supp. 2d 1235 (D. Utah 2001) .................. 23

Cotromano v. United Techs. Corp.,

2018 WL 2047468 (S.D. Fla. May 2,

2018) ..................................................................... 11

Deines v. Atlas Energy Servs., LLC,

484 P.3d 798 (Colo. Ct. App. 2021) ...................... 12

Dodge v. Cotter Corp.,

203 F.3d 1190 (10th Cir. 2000) ............................ 12

Dopson-Troutt v. Novartis Pharms.,

Corp., 2013 WL 5304059 (M.D. Fla.

Sep. 20, 2013) ....................................................... 10

Duffett v. Abdoo,

2010 WL 3820127 (Ohio Ct. App.

Sept. 30, 2010) ........................................................ 7

iv

Est. of Van Dyke ex rel. Van Dyke v.

GlaxoSmithKline,

2006 WL 8430904 (D. Wyo. Nov. 1,

2006) ..................................................................... 11

Friends of the Earth, Inc. v. Gaston

Copper Recycling Corp.,

204 F.3d 149 (4th Cir. 2000) ................................ 11

Garcia v. United States,

986 F.3d 513 (5th Cir. 2021) .................................. 9

Gelboim v. Bank Am. Corp.,

574 U.S. 405 (2015) .............................................. 17

Georgine v. Amchem Prods., Inc.,

83 F.3d 610 (3d Cir. 1996).................................... 14

Hardy v. Johns-Manville Sales Corp.,

681 F.2d 334 (5th Cir. 1982) ................................ 22

Herman v. Welland Chem., Ltd.,

580 F. Supp. 823 (M.D. Pa. 1984) ........................ 11

Home Depot USA, Inc. v. Lafarge N.

Am., Inc.,

59 F.4th 55 (3d Cir. 2023) .................................... 17

In re Activated Carbon-Based Hunting

Clothing Mktg. & Sales Pracs. Litig.,

840 F. Supp. 2d 1193 (D. Minn. 2012) ................. 17

In re Bendectin Prods. Liab. Litig.,

749 F.2d 300 (6th Cir. 1984) .......................... 18, 24

v

In re Bridgestone/Firestone, Inc., Tires

Prods. Liab. Litig.,

288 F.3d 1012 (7th Cir. 2002) .............................. 21

In re Chevron U.S.A., Inc.,

109 F.3d 1016 (5th Cir. 1997) .............................. 22

In re Chinese-Manufactured Drywall

Prods. Liab. Litig.,

2017 WL 5971622 (E.D. La. Nov. 30,

2017) ..................................................................... 16

In re Fibreboard Corp.,

893 F.2d 706 (5th Cir. 1990) ................................ 16

In re Fosamax Prods. Liab. Litig.,

248 F.R.D. 389 (S.D.N.Y. 2008) ..................... 15, 16

In re Marriott Int’l, Inc., Customer Data

Sec. Breach Litig.,

2021 WL 3883265 (D. Md. Aug. 31,

2021) ....................................................................... 5

In re Methyl Tertiary Butyl Ether

(MTBE) Prods.,

2007 WL 1791258 (S.D.N.Y. June 15,

2007) ....................................................................... 5

In re Oil Spill by the Oil Rig “Deepwater

Horizon” in the Gulf of Mexico, on

April 20, 2010,

2011 WL 4829905 (E.D. La. Oct. 12,

2011) ................................................................. 9, 10

In re Rhone-Poulenc Rorer, Inc.,

51 F.3d 1293 (7th Cir. 1995) .......................... 23, 24

vi

Liberty Life Ins. Co. v. W. R. Grace &

Co.,

1990 WL 10864882 (D.S.C. Jan. 12,

1990) ..................................................................... 18

Lexecon Inc. v. Milberg Weiss Bershad

Hynes & Lerach, 523 U.S. 26 (1998) .................... 16

Lloyd’s Leasing, Ltd. v. Conoco,

868 F.2d 1447 (5th Cir. 1989) ................................ 8

Lowery v. Enbridge Energy Ltd. P’ship,

898 N.W.2d 906 (Mich. 2017) ............................... 12

Malcolm v. Nat’l Gypsum Co.,

995 F.2d 346 (2d Cir. 1993) .................................. 25

Miller v. A.H. Robins Co., Inc.,

565 F. Supp. 24 (S.D. Fla. 1983) .......................... 23

Ortiz v. Fibreboard Corp.,

527 U.S. 815 (1999) .............................................. 16

Parklane Hosiery Co. v. Shore,

439 U.S. 322 (1979) .................................... 1, 18, 24

Prantil v. Arkema France S.A.,

2022 WL 1570022 (S.D. Tex. May 18,

2022) ............................................................... 11, 12

Ramirez v. E.I. Dupont de Nemours &

Co.,

2010 WL 3467655 (M.D. Fla. Sept. 1,

2010) ..................................................................... 22

vii

Rolling v. Kings Transfer, Inc.,

2020 WL 7090195 (Ohio Ct. App.

Dec. 4, 2020) ........................................................... 7

Stubbs v. Hodge,

1996 WL 732543 (Ohio Ct. App. Dec.

19, 1996) ................................................................. 7

Vadaj v. French,

89 N.E.3d 73 (Ohio Ct. App. Apr. 13,

2017) ....................................................................... 7

Wetherill v. Univ. of Chicago,

548 F. Supp. 66 (N.D. Ill. 1982) ........................... 23

Statutes and Rules

28 U.S.C. § 1407............................................... 2, 14, 16

Federal Rule of Civil Procedure 23 ..................... 14, 15

Other Authorities

12 Bus. & Com. Litig. Fed. Cts. § 128:6

(5th ed.) ................................................................. 16

Burch, Elizabeth Chamblee Judging

Multidistrict Litigation, 90 N.Y.U. L.

Rev. 71 (2015) ......................................................... 2

Burch, Elizabeth Chamblee, Remanding

Multidistrict Litigation, 75 La. L.

Rev. 399 (2014) ............................................... 19, 20

viii

Brief of WLF, Parklane Hosiery Co. v.

Shore, No. 77-1305 (June 15, 1978)

(1978 WL 206990) .................................................. 1

Cavanagh, Edward D., Offensive NonMutual Issue Preclusion Revisited, 38

Rev. Litig. 281 (2019) ........................................... 24

Dooley, Laura G., The Cult of Finality:

Rethinking Collateral Estoppel in the

Postmodern Age, 31 Val. U. L. Rev.

43 (1996) ............................................................... 19

Dooley, Laura G., National Juries for

National Cases: Preserving Citizen

Participation in Large-Scale

Litigation, 83 N.Y.U. L. Rev. 411,

437 (2008) ............................................................. 20

Goodwin, Judge Joseph R., Remand:

The Final Step in the MDL Process—

Sooner Rather than Later, 89 UMKC

L. Rev. 991 (2021) ................................................... 2

Gramlin, Christopher P., et al., Early

Assessment of Claims Can Help

Reduce the MDL Tax, WLF Working

Paper (Mar. 2020)................................................... 1

Hines, Laura J., The Dangerous Allure

of the Issue Class Action, 79 Ind. L.J.

567 (2004) ............................................................. 13

Lahav, Alexandra D., A Primer on

Bellwether Trials, 37 Rev. Litig. 185,

188-89 (2018) .................................................. 21, 22

ix

Lahav, Alexandra D., The Case for Trial

by Formula, 90 Tex. L. Rev. 571

(2012) .............................................................. 20, 21

Posner, Chief Judge Richard A., An

Economic Approach to the Law of

Evidence, 51 Stan. L. Rev. 1477,

1498 & n.45 (1999) ............................................... 19

Saks, Michael J. & Blanck, Peter David,

Justice Improved: The Unrecognized

Benefits of Aggregation and

Sampling in the Trial of Mass Torts,

44 Stan. L. Rev. 815 (1992) .................................. 21

Schuck, Peter H., Judicial Avoidance of

Juries in Mass Tort Litigation, 48

DePaul L. Rev. 479 (1999) ................................... 20

Stier, Byron G., Another Jackpot

(In)Justice: Verdict Variability and

Issue Preclusion in Mass Torts, 36

Pepp. L. Rev. 715 (2009) ........................ 7, 8, 20, 24

Thomas, Margaret S., Morphing Case

Boundaries in Multidistrict

Litigation Settlements, 63 Emory L.J.

1339 (2013) ........................................................... 16

Waggoner, Michael J., Fifty Years of

Bernard v. Bank of America Is

Enough: Collateral Estoppel Should

Require Mutuality but Res Judicata

Should Not, 12 Rev. Litig. 391 (1993) ........... 18, 20

INTEREST OF AMICUS CURIAE*

Washington Legal Foundation is a nonprofit,

public-interest law firm and policy center with

supporters nationwide. WLF promotes free enterprise,

individual rights, limited government, and the rule of

law. To that end, WLF often participates as an amicus

curiae to advocate for rules ensuring that all litigants

are treated fairly and justly. For example, WLF

cautioned this Court that allowing the limited use of

nonmutual offensive collateral estoppel would result

in a diminution of litigants’ constitutional rights. See

Parklane Hosiery Co. v. Shore, 439 U.S. 322 (1979); see

also Brief of WLF, Parklane Hosiery Co. v. Shore, No.

77-1305 (June 15, 1978) (1978 WL 206990).

Additionally, WLF has filed formal comments with

the Advisory Committee on Civil Rules stressing the

need to reform multidistrict litigation proceedings to

ensure fairness and justice for all MDL litigants. See,

e.g., Comments to Advisory Committee on Civil Rules,

WLF (Sept. 23, 2019). WLF has also published articles

by outside experts on the need to ensure that civil

litigation—including MDL—proceeds in a just and

constitutional manner. See, e.g., Christopher P.

Gramlin et al., Early Assessment of Claims Can Help

Reduce the MDL Tax, WLF Working Paper (Mar.

2020).

* No counsel for any party has authored this brief in whole or

in part. No person, other than amicus or its counsel, made a

monetary contribution to the preparation or submission of this

brief. All parties received timely notice of amicus’s intent to file

this brief under Rule 37.2.

2

While MDLs were created to “promote the just and

efficient conduct” of similar civil actions “pending in

different districts,” see 28 U.S.C. § 1407(a), courts

have increasingly focused on achieving efficiency in

MDL proceedings at all costs. Often, as here, judicial

aspirations for efficiency come at the cost of due

process. Indeed, judges presiding over mass tort cases

have adopted procedures aimed at avoiding trials on

the merits, with an eye toward exacting tremendous

pressure—especially on defendants—for global

settlement. See, e.g., Judge Joseph R. Goodwin,

Remand: The Final Step in the MDL Process—Sooner

Rather than Later, 89 UMKC L. Rev. 991, 995 (2021)

(discussing how modern MDLs have a “singular

emphasis on settlement”); see also, e.g., Elizabeth

Chamblee Burch, Judging Multidistrict Litigation, 90

N.Y.U. L. Rev. 71, 73-74 (2015) (discussing how

current MDL practices “entrench repeat players, who

are often settlement artists and may be more

concerned about pleasing judges, fostering reciprocity

among fellow attorneys, and positioning themselves

for future appointments than advancing plaintiffs’

heterogeneous interests”).

If this troubling trend goes unchecked, it will

continue to erode fundamental notions of fairness

enshrined in the Due Process Clause and spiral many

MDLs out of control.

SUMMARY OF ARGUMENT

The Petition raises an issue of exceptional

importance: whether bellwether trials should serve as

nonbinding data points that can help guide MDLs

with differently situated plaintiffs toward resolution;

3

or, whether bellwether trials should serve as a brute

force mechanism to dragoon MDL litigants into

settling, regardless of the unique circumstances

underpinning each plaintiff’s case and the inherent

variability of jury trials.

The history and purpose of bellwether trials in mass

tort litigation, as well as basic due process

considerations, dictate that bellwether trials should

be informational and nonbinding. But the decision

below casts the history and purpose of bellwethers—

as well as defendants’ due process rights—aside. It

also encourages a troubling trend of judicially

invented procedures aimed at avoiding trials on the

merits, with an eye toward exacting tremendous

pressure—especially on defendants—for global

settlement.

More fundamentally, the Sixth Circuit erred in two

critical respects.

First, the panel majority ignored settled law

establishing that mass torts implicate plaintiffspecific issues. This precludes courts from applying

nonmutual offensive collateral estoppel in any toxic

tort or products liability case—just as it precludes any

such case from being resolved on a class-wide basis.

And for good reason. Using the results from a handful

of nonrepresentative bellwether trials to resolve

claims—that turn on plaintiff-specific facts—across

hundreds of heterogeneous cases creates a process

that is fundamentally unfair to defendants, and

violates the Due Process Clause. It also injects an

untenable amount of bias and statistical unreliability

4

into the MDL process, as it draws inferences from a

woefully small sample of cases decided by jurors whose

views may not be reflective of their broader

communities or where the alleged conduct occurred.

Second, the panel majority breached the clear line

this Court has drawn between class actions and

MDLs, as its decision turns MDL bellwether trials into

de facto class actions. This is particularly troubling, as

class actions have largely been rejected in mass tort

litigation—due to well-founded concerns that they

prevent parties from attaining individualized justice.

At bottom, the Sixth Circuit’s decision is as

egregious as it is novel. If left to stand, the ability of

MDLs to produce fair and just results will be even

further diminished. Indeed, as Judge Batchelder aptly

noted in her dissent, the majority’s decision endorses

“something that no other circuit court has . . . allowed”

and creates asymmetric risks that would make it

irrational for any defendant to agree to bellwether

trials, meaning that “the age of bellwethers will come

to an end.” Pet. App. 56, 63 (Batchelder, J., dissenting

in part). That is precisely why this Court should grant

review.

REASONS FOR GRANTING CERTIORARI

Unless this Court grants review, the two core

purposes of bellwether trials will be upended—if not

eliminated—by the Sixth Circuit.

By way of background, a core purpose of bellwether

trials is to help parties evaluate certain claims in an

MDL, and the strength of their positions on those

5

claims. See Pet. 20-21. In other words, bellwether

trials “allow the parties to test the sufficiency of a

select set of claims without litigating all the claims at

once.” In re Marriott Int’l, Inc., Customer Data Sec.

Breach Litig., 2021 WL 3883265, at *3 (D. Md. Aug.

31, 2021). And, by fostering a learning process that

permits parties to litigate “major arguments . . .

without facing the daunting prospect of resolving

every issue in every action,” bellwether trials can help

facilitate global settlement. See In re Methyl Tertiary

Butyl Ether (MTBE) Prods., 2007 WL 1791258, at *12 (S.D.N.Y. June 15, 2007).

Another core purpose is to enable the parties “to

learn from the experience” of trying the bellwether

cases and “reassess their tactics and strategy.” Pet. 7,

21 (quoting In re Cox Enters., Inc. Set-top Cable

Television Box Antitrust Litig., 835 F.3d 1195, 1208

(10th Cir. 2016)).

Neither

purpose

demonstrates—or

even

suggests—that the results from a handful of

bellwether trials can establish liability for core issues

in mass tort cases. This should come as no surprise, as

the core issues in mass tort cases turn on plaintiffspecific facts, which precludes liability from being

resolved on a class-wide basis.

Absent this Court’s review, the Sixth Circuit’s

decision will force a sea change in how over 40% of the

entire federal docket is litigated, see Pet. 34-35, all

while trammeling the due process rights of thousands

of litigants. The Court should not permit such an

6

affront to the fairness of the judicial system to go

unchecked.

I.

DUTY, FORESEEABILITY, AND BREACH ARE

PLAINTIFF-SPECIFIC

ISSUES

THAT

ARE

INCOMPATIBLE WITH NONMUTUAL OFFENSIVE

COLLATERAL ESTOPPEL.

The decision below rewrites black-letter tort law.

While courts have historically recognized that issues

of duty, breach, and foreseeability turn on facts

peculiar to each plaintiff, the panel majority departed

from that precedent. Specifically, the majority found

that each plaintiff’s “individual circumstances” are

irrelevant to issues of “duty, breach, and

foreseeability,” as it held that such issues turn

exclusively on a defendant’s alleged conduct. Pet. App.

20. In so holding, the majority quoted the bellwether

jury instructions—while ignoring their plain text.

Indeed, the bellwether jury instructions expressly tied

determinations of duty, foreseeability, and breach to

the position of each specific bellwether plaintiff. For

example, the Bartlett jury instructions stated that:



A duty exists where “a reasonably prudent

person would have foreseen that injury was

likely to result to someone in Mrs. Bartlett’s

position from DuPont’s conduct”; and



An act is a proximate cause when a similarly

positioned actor “should have foreseen or

reasonably anticipated that injury would

result from the alleged negligent act” under

the circumstances.

7

See Pet. App. 18-19 (emphasis added) (quoting the

Bartlett jury instructions). The reason foreseeability

was at the heart of the jury instructions for both duty

and proximate cause was because of the applicable

state law, which provides that a “lack of foreseeability

negates both the existence of an underlying duty and

the element of proximate cause necessary to establish

a prima facie case of negligence.” See, e.g., Duffett v.

Abdoo, 2010 WL 3820127, at *2 (Ohio Ct. App. Sept.

30, 2010) (citation omitted); see also, e.g., Vadaj v.

French, 89 N.E.3d 73, 77 (Ohio Ct. App. Apr. 13, 2017)

(“Similar to the element of duty, the concept of

proximate cause is dependent upon the notion of

foreseeability.”). Cf. Rolling v. Kings Transfer, Inc.,

2020 WL 7090195, at *3 (Ohio Ct. App. Dec. 4, 2020);

Stubbs v. Hodge, 1996 WL 732543, at *2 (Ohio Ct. App.

Dec. 19, 1996).

True, when determining the existence of a duty,

the test is whether a reasonably prudent person would

have foreseen that the alleged conduct was likely to

injure someone in the plaintiff’s position—and not

whether a reasonably prudent person would have

foreseen that the exact plaintiff was likely to be

injured by the alleged conduct. But that positional test

invariably implicates a plaintiff’s particular

circumstances. Indeed, to determine whether any two

plaintiffs in a toxic tort case were similarly positioned

(such that they were just as likely to be injured by the

defendant’s alleged conduct), a court must consider

their “location, exposure, timing, and toxicity.” Cf. Pet.

App. 20; Byron G. Stier, Another Jackpot (In)Justice:

Verdict Variability and Issue Preclusion in Mass

Torts, 36 Pepp. L. Rev. 715, 750 & n.175 (2009)

8

(suggesting that single-accident mass torts, unlike

products liability or toxic exposure mass torts, may

involve plaintiffs who are very similarly situated). The

majority cited no authority in support of its contrary

holding. That is because its holding diverges from

what other circuit and district courts have

consistently held.

Consider Lloyd’s Leasing, Ltd. v. Conoco, which

arose out of an oil tanker spilling “65,500 barrels of

crude oil into the waters of the Gulf of Mexico” after it

ran aground. 868 F.2d 1447, 1448-50 (5th Cir. 1989).

Several types of claimants sought to recover for

alleged injuries, including “claimants who suffered

damages from oil tracked onto their premises by

tourists and beachgoers.” Id. The district court

granted the defendants’ motion for summary

judgment on those claimants’ allegations, finding that

“the damage to them was, as a matter of law, not

foreseeable” since they were too far removed from the

site of the spill. See id. The Fifth Circuit affirmed,

emphasizing that the shoreline of the Gulf of Mexico

was largely undeveloped—including the area near

where the tanker ran aground—which meant that the

shipowner “had no reason to have anticipated that the

oil would probably wash ashore in a heavily populated

area [70 miles away] and then be tracked into

businesses and homes.” Id.

Had the claimants been located 1,500 feet from the

site of the spill, the rationale of Lloyd’s Leasing

suggests that the harm to the claimants could have

been foreseeable. Indeed, other Fifth Circuit decisions

re-affirm that, when a lawsuit involves alleged

9

conduct that spans a broad geographic area, the

plaintiffs must prove that it was foreseeable that the

alleged conduct would injure someone in their

particular location.

This is illustrated by Garcia v. United States,

where a U.S. Coast Guard vessel patrolling a 17-milelong channel at midnight “struck and killed Patricia

Guadalupe Garcia Cervantes, a Mexican citizen who

was attempting to enter the United States illegally by

swimming across the Channel.” 986 F.3d 513, 519 (5th

Cir. 2021). In addressing a negligence claim brought

against the United States, the Fifth Circuit performed

a foreseeability analysis. Id. at 525-30. The Fifth

Circuit focused on the risk of collision to the “general

class” of persons in Cervantes’ position and, citing

Lloyd’s Leasing, found that foreseeability and duty

were lacking as: (i) the channel at issue “is 17 miles

long and approximately 500 feet wide,” meaning that

“the Coast Guard patrols of the [channel] cover a route

of approximately 34.2 miles,” which is “a very large

area to cover”; and (ii) “the cited evidence here may

show that the Coast Guard might reasonably have

anticipated encountering undocumented aliens

somewhere in the [channel], but the Coast Guard did

not have knowledge to anticipate where exactly in the

[channel] the undocumented aliens would be

swimming.” Id. (emphasis added); see also, e.g., In re

Oil Spill by the Oil Rig “Deepwater Horizon” in the

Gulf of Mexico, on April 20, 2010, 2011 WL 4829905,

at *4-6 (E.D. La. Oct. 12, 2011) (discussing additional

Fifth Circuit authority), aff’d, 500 F. App’x 355 (5th

Cir. 2012).

10

Similar principles can be found in Cimino v.

Raymark Indus., Inc., where the Fifth Circuit

addressed causation in the context of an asbestos

related mass tort. 151 F.3d 297, 315-17 (5th Cir. 1998).

As relevant here, the Fifth Circuit discussed how

plaintiffs had to prove that they worked in a particular

area of a site where they were “in proximity to some

specific item of defendants’ asbestos containing

product”—as there were differences between the

twenty-two sites at issue, differences within the sites

at-issue (some of which “covere[d] several square

miles”), and differences in the asbestos use at each site

at various points in time. Id. Under the district court’s

trial plan, there was no determination that any

plaintiff provided individualized proof on these

geographic and temporal issues, so the Fifth Circuit

held that the trial plan was improper and violated the

Seventh Amendment. Id. The Fifth Circuit was

“aware of no appellate decision approving such a

group, rather than individual, determination of cause

in a damage suit for personal injuries to individuals at

widely different times and places.” Id. (emphasis

added).

Many other courts have held that duty and

foreseeability implicate individualized geographic or

temporal considerations, including when evaluating

the applicability of nonmutual offensive collateral

estoppel. Take, for example:



Dopson-Troutt v. Novartis Pharms., Corp.,

where a district court aptly observed that “the

scope of [a defendant’s] duty to warn also

depends on whether [the defendant] knew the

11

risks of [the alleged injury] at the time [the

particular plaintiff] used [the at-issue drug],”

and rejected the application of nonmutual

offensive collateral estoppel to plaintiffs who

used the drug at other times. 2013 WL

5304059, at *2 (M.D. Fla. Sep. 20, 2013); see

also, e.g., Est. of Van Dyke ex rel. Van Dyke v.

GlaxoSmithKline, 2006 WL 8430904, at *5 (D.

Wyo. Nov. 1, 2006) (similar).



Herman v. Welland Chem., Ltd., where a

district court found that the plaintiffs’ precise

distance from a chemical spill impacted

whether a jury could find that they were

foreseeable plaintiffs. 580 F. Supp. 823, 827

(M.D. Pa. 1984); see also, e.g., Friends of the

Earth, Inc. v. Gaston Copper Recycling Corp.,

204 F.3d 149, 162 (4th Cir. 2000) (noting that

a distance of eighteen miles between a

plaintiff and the site at-issue may be “too large

to infer causation,” in contrast to a distance of

two-to-four miles).



Cotromano v. United Techs. Corp., where a

district court denied class certification

because there was no evidence that the

contamination

at

the

defendants’

manufacturing plant had spread so much that

“all property owners in [a] 60-square-mile

expanse” were in a “geographic zone of

danger.” 2018 WL 2047468, at *2-3, *11-12

(S.D. Fla. May 2, 2018); see also, e.g., Prantil

v. Arkema France S.A., 2022 WL 1570022, at

*1, *31-32 & n.23 (S.D. Tex. May 18, 2022)

(similar).

12



Dodge v. Cotter Corp., where the Tenth Circuit

underscored that, in a toxic tort case, one

prerequisite to applying nonmutual offensive

collateral estoppel is a prior determination

that “the same released contaminants in

whatever directions or forms or times

amounted to negligent conduct as to each

[individual] plaintiff.” 203 F.3d 1190, 11981200 (10th Cir. 2000). Even if a substance is

released in a general area, a defendant should

be able to contest whether the “range of its

[alleged] conduct and duties” extended to

differently situated plaintiffs. See id.; see also,

e.g., Lowery v. Enbridge Energy Ltd. P’ship,

898 N.W.2d 906, 908-09, 913-14, 919-20 (Mich.

2017) (Markman, C.J., concurring) (discussing

how, in a toxic tort case, even general

causation requires proof that someone in the

plaintiff’s specific position could have been

harmed).



Deines v. Atlas Energy Servs., LLC, where the

Colorado Court of Appeals surveyed authority

holding that when a “defendant’s negligent

conduct is separated by substantial time and

distance from the accident that caused the

plaintiff’s injuries” it creates, at a minimum, a

question of fact for a jury to resolve. 484 P.3d

798, at ¶¶ 30-32 (Colo. Ct. App. 2021).

At bottom, these cases confirm that Judge

Batchelder was right to consider the variances in each

plaintiff’s location, while the majority was wrong to

dismiss those variances as irrelevant. As Judge

Batchelder observed, Mr. Abbott grew up and lived

13

around “Pomeroy, Ohio, which is 56.9 river miles away

from DuPont’s Washington Works plant,” and his

water “was sourced from wells ranging anywhere from

14 to 56 miles away from source of C-8 emissions.” Pet.

App. 60-61 (Batchelder, J., dissenting in part). In

contrast, “Freeman and Vigneron drank water

sourced from wells much closer to DuPont, only about

1,500 feet away from the Washington Works plant.”

Id. The considerable distance between Mr. Abbott’s

home and DuPont explains why his own experts

conceded that the C8 levels in his water never

exceeded DuPont’s voluntary safe exposure guideline.

See Pet. App. 17. Yet the experts of plaintiffs who lived

closer to DuPont—such as Freeman and Vigneron—

made no such concessions. Id.

Had the MDL court required bellwether juries to

use detailed verdict forms with special interrogatories,

the plaintiff-specific nature of these issues should

have been readily apparent. See Pet. 12-13. Still,

detailed verdict forms with special interrogatories are

not a cure-all. See, e.g., Laura J. Hines, The Dangerous

Allure of the Issue Class Action, 79 Ind. L.J. 567, 574

(2004). As shown above, mass torts involving

allegations of toxic exposures (like this case) or

defective products will invariably implicate plaintiffspecific issues. Accordingly, even a special

interrogatory worded to resolve such issues for all

plaintiffs would be improper (absent a multi-faceted

evidentiary presentation tailored to each plaintiff), as

it would be contrary to settled law. Moreover, it would

transform many mass tort cases into de facto class

actions; and, as discussed below, MDLs are a tool

intended to facilitate the “just and efficient conduct” of

14

individualized claims. See 28 U.S.C. § 1407(a). MDLs

are not meant to function as another mechanism for

litigating claims on a class-wide basis.

II. NONMUTUAL

OFFENSIVE

COLLATERAL

ESTOPPEL IS INCOMPATIBLE WITH MASS TORT

CASES.

A.

Mass Tort MDLs Are Not Meant To

Function As De Facto Class Actions.

The Sixth Circuit’s decision transforms bellwether

trials from an informational tool to assess the merits

of a litigation’s core claims, and the parties’ trial

strategies, into a de facto class action. The majority’s

holding thus contravenes longstanding precedent

emphasizing the individuality of each mass tort

plaintiff’s injuries. It also flouts the clear distinction

this Court has drawn between class actions—where

named plaintiffs bring suits on behalf of a putative

class of similarly-situated plaintiffs—and mass torts

consolidated into MDLs—where hundreds or

thousands of individual plaintiffs bring suits in which

they retain their own identity while pretrial issues are

resolved together.

For over fifty years, courts have emphasized the

importance of distinguishing between MDLs and class

actions, based largely on procedural due process

requirements. To that end, the advisory notes to the

1966 amendment to Federal Rule of Civil Procedure

23 “caution against certifying class actions involving

mass torts.” See Georgine v. Amchem Prods., Inc., 83

F.3d 610, 627-28 (3d Cir. 1996). In the context of Rule

23(b)(3), specifically, which governs class actions

15

where “questions of law or fact common to class

members predominate over any questions affecting

only individual members,” the advisory committee

explained how mass torts are “ordinarily not

appropriate for” class certification “because of the

likelihood that significant questions” as to liability,

defenses, and damages “would be present, affecting

the individuals in different ways.” Fed R. Civ. P. 23

advisory committee’s note to 1966 amendment. In

these circumstances, a nominal class action would

“degenerate in practice into multiple lawsuits

separately tried.” Id.

The thrust of the advisory committee’s note is that,

in most mass torts, individual issues may outnumber

common issues. In those instances, “[n]o single

happening or accident occurs to cause similar types of

physical harm or property damage,” “[n]o one set of

operative facts establishes liability,” and “[n]o single

proximate cause applies equally to each potential class

member and each defendant.” In re Fosamax Prods.

Liab. Litig., 248 F.R.D. 389, 396 (S.D.N.Y. 2008)

(quoting In re Am. Med. Sys., Inc., 75 F.3d 1069, 108485 (6th Cir. 1996)). And separate from a plaintiff’s

prima facie case, “the alleged tortfeasor’s affirmative

defenses (such as failure to follow directions,

assumption of the risk, contributory negligence, and

the statute of limitations) may depend on facts

peculiar to each plaintiff’s case.” Id. (same).

Thus, in almost all instances, “mass torts cannot

qualify for class action treatment because they are

unable to satisfy [Rule 23’s] standards”—namely

“numerosity, commonality, typicality, adequacy of

16

representation, predominance and superiority.” See,

e.g., In re Chinese-Manufactured Drywall Prods. Liab.

Litig., 2017 WL 5971622, at *14 (E.D. La. Nov. 30,

2017). Indeed, numerous plaintiffs have tried—yet

failed—to obtain a class-wide resolution in mass torts

because of the highly individualized inquiry necessary

for each plaintiff’s action, see, e.g., In re Fibreboard

Corp., 893 F.2d 706, 707 (5th Cir. 1990), particularly

after this Court’s class certification decisions in the

late 1990s, see, e.g., 12 Bus. & Com. Litig. Fed. Cts. §

128:6 (5th ed.) (discussing the impact of Amchem

Prods., Inc. v. Windsor, 521 U.S. 591 (1997) and Ortiz

v. Fibreboard Corp., 527 U.S. 815 (1999) on mass

torts); see also, e.g., In re Fosamax Prods. Liab. Litig.,

248 F.R.D. at 396 & n.8. Over the past two decades, as

“[t]he prospect of certifying nationwide classes or

settlement-only classes in mass torts has waned. . . .

[the] MDL has ascended as the most important federal

procedural device to aggregate (and settle) mass

torts.” See, e.g., Margaret S. Thomas, Morphing Case

Boundaries in Multidistrict Litigation Settlements, 63

Emory L.J. 1339, 1346-47 (2013).

Against this backdrop, it is no surprise that the

legislation authorizing MDLs sought only to

coordinate pretrial issues—not to resolve issues

“common” to a group of disparate plaintiffs at trials.

Indeed, as this Court recognized in Lexecon Inc. v.

Milberg Weiss Bershad Hynes & Lerach, the

legislative history of 28 U.S.C. § 1407 confirms that

the original intent of the statute was such that § 1407

“affects only the pretrial stages in multidistrict

litigation.” 523 U.S. 26, 39-40 (1998) (emphasis

added). That is because “[t]he primary purpose behind

17

assigning multidistrict litigation to a transferee court

is to promote efficiency through the coordination of

discovery.” In re Activated Carbon-Based Hunting

Clothing Mktg. & Sales Pracs. Litig., 840 F. Supp. 2d

1193, 1198 (D. Minn. 2012) (citation omitted)

(collecting authority).

In sum, while class actions may proceed to

determine issues common to all class members, MDLs

are comprised of separate cases brought together for

pretrial proceedings that “retain their separate

identities.’” Gelboim v. Bank Am. Corp., 574 U.S. 405,

413 (2015). To that end, the global impact of judicial

decisions in MDL proceedings is coterminous with an

MDL court’s mandate to resolve only common pretrial

issues, and should not be stretched to such an extreme

that a bellwether jury’s decision is binding on all other

cases in an MDL.

Yet the decision below improperly attempts to

“meld [one] action and others in the MDL into a single

unit.” See id. at 414. Thus, this Court should grant the

Petition to prevent further distortions to MDL practice

and black-letter tort law. This Court should intervene

and clarify that “neither MDL centralization nor any

other procedural device can ‘impose the heavy toll of a

diminution of any party’s rights.’” See Home Depot

USA, Inc. v. Lafarge N. Am., Inc., 59 F.4th 55, 62, 64

(3d Cir. 2023) (citation omitted). This necessarily

includes a defendant’s right to evaluate the merits of

(and defend itself against) each mass tort plaintiff’s

individualized claims and circumstances—which

invariably encompasses issues of duty, breach,

foreseeability, and causation.

18

B.

Applying

Nonmutual

Offensive

Collateral Estoppel In Mass Tort

Cases Eviscirates Fairness And Due

Process.

This “Court [has] explicitly stated that offensive

collateral estoppel could not be used in mass tort

litigation.” In re Bendectin Prods. Liab. Litig., 749

F.2d 300, 305 n.11 (6th Cir. 1984) (citing Parklane

Hosiery, 439 U.S. at 330 n. 14). And for good reason.

“[T]he use of offensive collateral estoppel in mass tort

cases such as the present action could well foster

behind-the-scenes posturing by both plaintiffs and

defendants to advance their ‘best’ cases to trial first,

so as to gain (or avoid) the benefit of issue preclusion

as to liability in subsequent cases,” which creates an

“element of unfairness” that this Court “expressly

recognized” in Parklane Hosiery. See, e.g., Liberty Life

Ins. Co. v. W. R. Grace & Co., 1990 WL 10864882, at

*3 (D.S.C. Jan. 12, 1990); see also, e.g., Michael J.

Waggoner, Fifty Years of Bernard v. Bank of America

Is Enough: Collateral Estoppel Should Require

Mutuality but Res Judicata Should Not, 12 Rev. Litig.

391, 413-17 (1993). Indeed, Parklane Hosiery held that

lower courts should avoid applying nonmutual

offensive collateral estoppel where it would encourage

“a wait and see attitude” among potential plaintiffs

hoping “that the first action by another plaintiff will

result in a favorable judgment.” 439 U.S. at 330.

Besides creating a “wait and see attitude” that is

fundamentally unfair to defendants, applying

nonmutual offensive collateral estoppel in mass torts

creates a process prone to bias and statistical

unreliability—particularly where, as here, only a

19

handful of nonrepresentative bellwether trials have

occurred. See Pet. 8 n.2.

Begin with bias. By precluding hundreds of cases

from being resolved on their own merits after a

handful of juries—in one judicial district—find for

plaintiffs, it will almost invariably tether the

resolution of a mass tort to results drawn from a

biased population. That is because the views of a few

dozen people are unlikely to be representative of the

communities they reside in—or the communities in

which the parties to the litigation reside. Employing

collateral estoppel in this manner can inject an

intolerable amount of bias into even the most localized

of mass torts, as “[c]ommunities—even within a single

state—can vary dramatically,” and a smattering of

empaneled juries is unlikely to capture this variation.

See, e.g., Elizabeth Chamblee Burch, Remanding

Multidistrict Litigation, 75 La. L. Rev. 399, 408-09

(2014); Laura G. Dooley, The Cult of Finality:

Rethinking Collateral Estoppel in the Postmodern Age,

31 Val. U. L. Rev. 43, 58-59 (1996); see also, e.g., Chief

Judge Richard A. Posner, An Economic Approach to

the Law of Evidence, 51 Stan. L. Rev. 1477, 1498 &

n.45 (1999). The issue of bias is amplified in MDLs,

where bellwether trials typically occur in only the

judicial district in which the cases have been

aggregated for pretrial proceedings. To be sure,

“bellwether trials in the [MDL court’s] forum provide

the public and the nonparticipating plaintiffs a

glimpse into the contested issues”; but, when the

resolution of an MDL hinges almost entirely on the

outcomes of such bellwethers, and cases are never

remanded to transferor courts for trial, it vitiates the

20

individualized justice and fairness that should be at

the forefront of MDL proceedings and “undermine[s]

democratic values of communal participation and fact

finding by citizens nationwide.” See, e.g., Burch,

Remanding Multidistrict Litigation, supra, at 408-09;

see also, e.g., Laura G. Dooley, National Juries for

National Cases: Preserving Citizen Participation in

Large-Scale Litigation, 83 N.Y.U. L. Rev. 411, 437, 441

(2008).

As for statistical unreliability, while “[p]ermitting

a small sample of cases to go forward on a limited

basis, even if the results cannot be reliably

extrapolated across cases, can be very useful in case

coordination and issue refinement,” courts must

nevertheless “recognize the limits of an approach that

does not use a reliable sample.” See, e.g., Alexandra D.

Lahav, The Case for Trial by Formula, 90 Tex. L. Rev.

571, 631-32 (2012). This is not an illusory issue,

particularly in the context of mass torts. Various legal

scholars have chronicled how “[e]vidence of verdict

variability can [easily] be gleaned from [reviewing]

multiple mass tort [cases]” and how “[e]xperimental

research on the behavior of juries has also shown

variation, even when juries hear the same evidence.”

See, e.g., Stier, Another Jackpot (In)Justice: Verdict

Variability and Issue Preclusion in Mass Torts, supra,

at 726-27; see also, e.g., Peter H. Schuck, Judicial

Avoidance of Juries in Mass Tort Litigation, 48

DePaul L. Rev. 479, 484 (1999) (noting “the great

variability in jury verdicts in mass tort cases”);

Waggoner, Fifty Years of Bernard v. Bank of America

Is Enough: Collateral Estoppel Should Require

Mutuality but Res Judicata Should Not, supra, at 413-

21

17 (same). So too have many judges, including Judge

Batchelder and Judge Easterbrook. In her dissent

below, Judge Batchelder underscored how it is

“Statistics 101 that a small, unrepresentative sample”

of cases, like the bellwethers at issue here, “cannot

yield reliable inferences as to a larger group.” Pet.

App. 54 (Batchelder, J., dissenting in part). Likewise,

in In re Bridgestone/Firestone, Inc., Tires Prods. Liab.

Litig., Judge Easterbrook articulated—for the panel—

how “only ‘a decentralized process of multiple trials,

involving different juries, and different standards of

liability, in different jurisdictions’ will yield the

information needed for accurate evaluation of mass

tort claims.” 288 F.3d 1012, 1020 (7th Cir. 2002)

(citation omitted).

Moreover, even those who advocate for a formulaic

resolution of mass tort cases recognize that—to ensure

statistical reliability—multiple bellwether trials must

be held for each type of plaintiff bringing suit. See, e.g.,

Lahav, The Case for Trial by Formula, supra, at 62933; Michael J. Saks & Peter David Blanck, Justice

Improved: The Unrecognized Benefits of Aggregation

and Sampling in the Trial of Mass Torts, 44 Stan. L.

Rev. 815, 833-35, 848-49 (1992). Indeed, one such

scholar has discussed how “[e]xperience indicates that

mass tort plaintiff populations tend to be

characterized by significant variance across numerous

relevant variables” and “an uneven distribution,”

which means that in most mass tort cases “a

significant number of trials will need to be held to

obtain a valid picture of the population.” See

Alexandra D. Lahav, A Primer on Bellwether Trials,

37 Rev. Litig. 185, 188-89, 197 (2018).

22

Given these issues, other courts have refused to

apply nonmutual offensive collateral estoppel in mass

tort cases.

For example, in Hardy v. Johns-Manville Sales

Corp., the Fifth Circuit held: “The injustice of applying

collateral estoppel in cases involving mass torts is

especially obvious.” 681 F.2d 334, 346 n.13 (5th Cir.

1982). And subsequently, in Arnold v. Garlock, Inc.,

the Fifth Circuit held that: “The passage of time has

not weakened the teachings of Hardy.” 278 F.3d 426,

443 (5th Cir. 2001). Indeed, “no matter how creative

the procedural avenue, and in spite of the fact that this

[mass tort] litigation would benefit from a uniform

approach, at almost every turn this circuit has

rejected attempts at aggregation and issue preclusion

in asbestos cases” due to its judicious “concern that no

one be deprived the right to a full and fair opportunity

to litigate their claims.” Id. Both holdings are in accord

with Judge Jones’ concurrence in In re Chevron

U.S.A., Inc., where she expressed “serious doubts”

that a court could ever rely on bellwether trials to

“extrapolate findings relevant to and somehow

preclusive upon a larger group of cases,” and where

she rejected a district court’s plan to hold binding

bellwether trials as an “all-or-nothing” approach that

would exert “enormous” settlement pressure on

defendants. 109 F.3d 1016, 1021-22 (5th Cir. 1997)

(Jones, J., specially concurring).

Similarly, “the Eleventh Circuit has explicitly

barred the application of the doctrine of collateral

estoppel in products liability cases.” Ramirez v. E.I.

Dupont de Nemours & Co., 2010 WL 3467655, at *3

23

(M.D. Fla. Sept. 1, 2010) (citing Deviner v. Electrolux

Motor, AB, 844 F.2d 769, 774 (11th Cir. 1988), which

held that “[t]he doctrine of collateral estoppel . . .

should not be extended indiscriminately to tort cases

where the factual circumstances in each case differ

and no hard and fast legal standard has emerged from

the developing case law”).

As another example, in Coburn v. Smithkline

Beecham Corp., the district court rejected plaintiffs’

argument for nonmutual offensive collateral estoppel

because: (i) the plaintiffs consumed the at-issue drug

at different times; and (ii) even if all the other

prerequisites for it had been met, applying collateral

estoppel offensively and non-mutually would have

been “fundamentally unfair,” as it is “contrary to

public policy to allow a single jury verdict to brand an

entire product defective throughout the country,

particularly when there exists a significant and

ongoing debate in the scientific and medical

community about the issues involved.” 174 F. Supp. 2d

1235, 1239-41 (D. Utah 2001). In fact, there is a long

history of courts rejecting the applicability of

nonmutual offensive collateral estoppel in the context

of products liability or toxic exposure mass torts (postParklane Hosiery). See, e.g., Miller v. A.H. Robins Co.,

Inc., 565 F. Supp. 24, 26-27 (S.D. Fla. 1983); Wetherill

v. Univ. of Chicago, 548 F. Supp. 66, 68-70 (N.D. Ill.

1982).

As several legal commentators have observed,

Judge Posner’s rationale for denying class certification

in Rhone-Poulenc applies equally to the doctrine of

nonmutual offensive collateral estoppel and provides

24

further support for the doctrine’s inapplicability to

mass tort cases. Although “[o]ne jury” can “hold the

fate of an industry in the palm of its hand . . . in our

system of civil justice” it “need not be tolerated when

the alternative exists of submitting an issue to

multiple juries constituting in the aggregate a much

larger and more diverse sample of decision-makers.”

In re Rhone-Poulenc Rorer, Inc., 51 F.3d 1293, 1300

(7th Cir. 1995) (emphasis added). Though this would

not be feasible when individual claims are worth little,

it is feasible when “[e]ach plaintiff if successful is apt

to receive a judgment in the millions.” Id. When the

stakes are so high, as can be the case in mass tort

litigation, “it is not a waste of judicial resources to

conduct more than one trial, before more than six

jurors, to determine whether a major segment of the

international pharmaceutical industry is to follow the

asbestos manufacturers into Chapter 11.” Id.; see also,

e.g., Edward D. Cavanagh, Offensive Non-Mutual

Issue Preclusion Revisited, 38 Rev. Litig. 281, 316-17

(2019); Stier, Another Jackpot (In)Justice: Verdict

Variability and Issue Preclusion in Mass Torts, supra,

at 742.

For these reasons, the majority erred when it

stated that: “No court has followed the Bendectin

footnote [regarding the impropriety of nonmutual

offensive collateral estoppel in mass tort cases] beyond

agreeing that courts should not use offensive collateral

estoppel in mass tort cases in ways inconsistent with

the Parklane Hosiery factors.” Pet. App. 15. Such a

statement not only ignores practical and statistical

considerations, but it also flouts the responsibility of

the judiciary to ensure that “[t]he systemic urge to

25

aggregate litigation” is not “allowed to trump our

dedication to individual justice.” See Malcolm v. Nat’l

Gypsum Co., 995 F.2d 346, 350 (2d Cir. 1993).

CONCLUSION

The Petition should be granted.

Respectfully submitted,

CORY L. ANDREWS

JOHN M. MASSLON II

WASHINGTON LEGAL

FOUNDATION

2009 Mass. Ave., NW

Washington, DC 20036

MATTHEW P. STEINBERG

DECHERT LLP

1095 Ave. of the Americas

New York, NY 10036

August 4, 2023

JONATHAN S. TAM

Counsel of Record

DECHERT LLP

One Bush Street #1600

San Francisco, CA 94104

(646) 731-6172

jonathan.tam@dechert.com

ALLISON K. OZUROVICH

DECHERT LLP

633 West 5th Street

Los Angeles, CA 90071