Amicus Curiae Brief — E.I. du Pont de Nemours & Co., Petitioner v. Travis Abbott, et ux.
Supreme Court briefAug 4, 2023
Ask Donna
What actually matters in this document.
Text
No. 23-13
In the Supreme Court of the United States
E.I. DU PONT DE NEMOURS & CO., PETITIONER,
v.
TRAVIS ABBOTT, ET UX., RESPONDENTS.
ON PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
BRIEF OF 3M, BAYER, GLAXOSMITHKLINE, JOHNSON
& JOHNSON, TYCO FIRE PRODUCTS, AND MEDTRONIC
AS AMICI C URIAE IN SUPPORT OF PETITIONER
Katherine C. Yarger
Counsel of Record
LEHOTSKY KELLER COHN LLP
700 Colorado Blvd., #407
Denver, CO 80206
(512) 693-8350
katie@lkcfirm.com
Jonathan F. Cohn
Steven P. Lehotsky
Scott A. Keller
Gabriela Gonzalez-Araiza
LEHOTSKY KELLER COHN LLP
200 Massachusetts Ave., NW
Washington, DC 20001
Counsel for Amici Curiae
T AB LE O F C O N TE N T S
Interest of Amici Curiae................................................... 1
Introduction and Summary of Argument ....................... 3
Argument........................................................................... 5
I. Parklane Hosiery Should Not Apply to MDLs. . 5
A. Parklane Hosiery has tenuous roots and
conflicts with precedent, common law, and
the Seventh Amendment. ................................ 5
B. Parklane Hosiery should not be applied to
MDLs. ............................................................... 7
II. The Sixth Circuit’s Decision Conflicts with
Parklane Hosiery. ............................................... 15
Conclusion ....................................................................... 20
(i)
ii
T AB LE O F A U TH O R I TIE S
Page(s)
Cases
Amchem Prods., Inc. v. Windsor,
521 U.S. 591 (1997) ..................................................... 8, 9
AT&T Mobility LLC v. Concepcion,
563 U.S. 333 (2011) ......................................................... 8
Bigelow v. Old Dominion Copper Mining
& Smelting Co.,
225 U.S. 111 (1912) ......................................................... 6
Blonder-Tongue Laboratories, Inc. v.
Univ. of Ill. Found.,
402 U.S. 313 (1971) ..................................................... 5, 6
Comcast Corp. v. Behrend,
569 U.S. 27 (2013) ..................................................... 9, 10
In re E. I. du Pont de Nemours & Co. C-8
Pers. Inj. Litig.,
54 F.4th 912 (6th Cir. 2022) ............................. 15, 16, 17
Jack Faucett Assocs., Inc. v. Am. Tel. &
Tel. Co.,
744 F.2d 118 (D.C. Cir. 1984) ...................................... 15
Keokuk & W. R. Co. v. Missouri,
152 U.S. 301 (1894) ......................................................... 6
Parklane Hosiery Co. v. Shore,
439 U.S. 332 (1979) ....................... 3, 4, 5, 6, 7, 15, 18, 19
iii
Premier Elec. Const. Co. v. Nat’l Elec.
Contractors Ass’n, Inc.,
814 F.2d 358 (7th Cir. 1987) ........................................ 18
Shady Grove Orthopedic Assocs., P.A. v.
Allstate Ins.,
559 U.S. 393 (2010) ......................................................... 8
Standefer v. United States,
447 U.S. 10 (1980) ........................................................... 6
Syverson v. Int’l Bus. Machines Corp.,
472 F.3d 1072 (9th Cir. 2007) ...................................... 15
Taylor v. Sturgell,
553 U.S. 880 (2008) ......................................................... 9
In re Vioxx Prods. Liab. Litig.,
501 F. Supp. 2d 776 (E.D. La. 2007) ........................... 12
Wal-Mart Stores, Inc. v. Dukes,
564 U.S. 338 (2011) ....................................................... 10
Statutes
28 U.S.C. § 1292 ............................................................ 11, 12
28 U.S.C. § 1291 .................................................................. 11
28 U.S.C. § 1407 ................................................................ 8, 9
Other Authorities
Abbe R. Gluck and Elizabeth Chamblee
Burch, MDL Revolution, 96 N.Y.U. L.
Rev. 1 (2021).............................................................. 7, 10
iv
Andrew D. Bradt, Something Less and
Something More: MDL’s Roots as a
Class Action Alternative, 165 U. Pa. L.
Rev. 1711 (2017) ............................................................ 10
Andrew S. Pollis, The Need for NonDiscretionary Interlocutory Appellate
Review in Multidistrict Litigation, 79
Fordham L. Rev. 1643 (2011) ...................... 8, 10, 11, 12
Byron G. Stier, Another Jackpot
(In)justice: Verdict Variability and
Issue Preclusion in Mass Torts, 36
Pepp. L. Rev. 715 (2009) .............................................. 16
Elizabeth Chamblee Burch, Monopolies in
Multidistrict Litigation, 70 Vand. L.
Rev. 67 (2017) ................................................................ 14
Effect of a Prior Judgment, 20 Fed. Prac.
& Proc. Deskbook § 107 (2d ed.) ................................... 5
Exposing the Extortion Gap: An
Economic Analysis of the Rules of
Collateral Estoppel, 105 Harv. L. Rev.
1940 (1992)..................................................................... 18
Fed. R. Civ. P. 23........................................................ 8, 9, 10
Mari Gaines, Roundup Lawsuit Update
July 2023, Forbes (May 23, 2023),
https://perma.cc/9622-DS8W ...................................... 17
v
Matthew Goldstein and Jessica SilverGreenberg, Hedge Funds Look to
Profit from Personal-Injury Suits,
New York Times (June 25, 2018),
https://perma.cc/9T9G-ZY82 ....................................... 13
Melissa A. Waters, Common Law Courts
in an Age of Equity Procedure:
Redefining Appellate Review for the
Mass Tort Era, 80 N.C. L. Rev. 527
(2002) ............................................................................. 11
Michael J. Waggoner, Fifty Years of
Bernhard v. Bank of America Is
Enough: Collateral Estoppel Should
Require Mutuality but Res Judicata
Should Not, 12 Rev. Litig. 391 (1993) .............. 5, 18, 19
NBC News, Xarelto suits: Bayer and
Janssen Agree to $775 Million
Settlement Over Blood Thinner (Mar,
26, 2019), https://perma.cc/6M3V-J4B5 ..................... 19
Outram v. Morewood, 102 Eng. Rep. 630
(1803) ............................................................................... 6
Product Liability Advisory Council,
Comment to the Advisory Committee
on Civil Rules and Its MDL
Subcommittee, https://perma.cc/4FQT4S2V ............................................................................... 14
vi
Report of the MDL Subcommittee of the
Advisory Committee on Civil Rules to
the Standing Committee on Rules of
Practice and Procedure in Committee
on Rules of Practice and Procedure
Agenda Book (Nov. 1, 2018),
https://perma.cc/9KMS-MWJY .................................. 14
Ronald V. Miller, Jr., Monsanto Roundup
Lawsuit Update, Lawsuit Information
Center (Aug. 2, 2023),
https://perma.cc/LR7Y-2HEZ .................................... 17
Roy Strom, Camp Lejeune Ads Surge
Amid “Wild West” of Legal Finance,
Tech, Bloomberg Law (Jan. 30, 2023),
https://perma.cc/Z4P2-KR7D ............................... 13, 14
Samir D. Parikh, Opaque Capital and
Mass Tort Financing, 133 Yale L.J.
Forum (forthcoming 2023) .................................... 13, 14
Sara Randazzo and Jacob Bunge, Inside
the Mass-Tort Machine That Powers
Thousands of Roundup Lawsuits, Wall
Street Journal (Nov. 25, 2019),
https://perma.cc/NSX5-XEGQ ................................... 14
Shari Seidman Diamond, et al., Juror
Judgments About Liability and
Damages: Sources of Variability and
Ways to Increase Consistency, 48
DePaul L. Rev. 301 (1998) ..................................... 16, 17
vii
Tina Bellon, Bayer, J&J Settle U.S.
Xarelto Litigation for $775 Million,
Reuters (Mar. 25, 2019),
https://perma.cc/F2G8-XM6E .................................... 19
U.S. Const. amend. VII ............................................... 4, 5, 7
U.S. Chamber of Commerce Institute for
Legal Reform, MDL Imbalance: Why
Defendants Need Timely Access to
Interlocutory Review (Apr. 2019),
https://perma.cc/3MP4-6LJ2 ................................ 11, 12
U.S. Chamber of Commerce Institute for
Legal Reform, Tort Costs in America:
An Empirical Analysis of Costs and
Compensation of the U.S. Tort System
(Nov. 2022), https://perma.cc/E4JKKFLJ ....................................................................... 12, 13
U.S. Chamber of Commerce Institute for
Legal Reform, What You Need to
Know About Third Party Litigation
Funding (Feb. 7, 2023),
https://perma.cc/753K-5LDN ..................................... 13
U.S. Judicial Panel on Multidistrict
Litigation, MDL Statistics Report Distribution of Pending MDL Dockets
by Actions Pending (July 17, 2023),
https://perma.cc/UT83-LEJB ....................................... 8
viii
U.S. Judicial Panel on Multidistrict
Litigation, Statistical Analysis of
Multidistrict Litigation Under 28
U.S.C. § 1407 Fiscal Year 2021,
https://perma.cc/4LGN-ENBE .................................. 10
I N TE R E S T O F A M IC I C UR IAE
Amici curiae1 3M, Bayer, GlaxoSmithKline PLC,
Johnson & Johnson, Tyco Fire Products LP, and
Medtronic PLC are Fortune 500 companies that have
litigated cases in multidistrict litigation (“MDLs”). They
represent
a
range
of
industries,
including
manufacturing, pharmaceuticals, and medical devices.
The plaintiffs’ bar has been particularly active in these
areas, drawing amici into numerous mass tort litigations.
Indeed, amici are defendants in over 75% of pending
MDL cases across the country, and MDL cases
constitute a majority of private civil cases pending in
federal court. As a consequence, the Sixth Circuit’s
opinion significantly impacts amici.
3M is a multinational company that unlocks the
power of people, ideas, and science and reimagines what
is possible. With corporate operations in 70 countries,
3M’s more than 60,000 products are used in a wide range
of industries, including health care, automotive, and
manufacturing. 3M’s global team uses science to address
the opportunities and challenges of its customers, communities, and planet.
Bayer is a multinational pharmaceutical and biotechnology company and one of the largest pharmaceutical
companies in the world. Bayer’s areas of business include
pharmaceuticals, consumer healthcare products, agricultural chemicals, seeds, and biotechnology products. Its
products and services are designed to help people and
the planet thrive by supporting efforts to master the
In accordance with Rule 37.6, no counsel for any party has authored this brief in whole or in part, and no person or entity, other
than amici or their counsel, has made a monetary contribution to the
preparation or submission of this brief. Counsel of record received
timely notice of the intent to file this brief pursuant to Rule 37.2.
1
(1)
2
major challenges presented by a growing and aging
global population. Throughout the world, the Bayer
brand stands for trust, reliability, and quality.
GlaxoSmithKline LLC (“GSK”) is a biopharma company with a purpose to unite science, technology, and talent to get ahead of disease together. GSK is dedicated to
the development of transformational products for patients with its leading portfolio of vaccines and specialty
and general medicines.
For more than 135 years, Johnson & Johnson has
aimed to keep people well at every age and every stage
of life. Today, as the world’s largest, most diversified
healthcare products company, Johnson & Johnson is
committed to using its reach and size for good. Its more
than 150,000 employees worldwide strive to improve access and affordability, create healthier communities, and
put a healthy mind, body, and environment within reach
of everyone, everywhere.
Tyco Fire Products LP, part of the Johnson Controls
family of companies, manufactures and delivers an unmatched range of fire detection and suppression systems, extinguishing agents, sprinkler systems, valves,
piping products, fittings, fire-fighting equipment, and
services that help its customers save lives and protect
property. As an industry leader, Tyco uses its global
scale and deep expertise to drive innovation, advance
safety and solve the unique challenges of customers
throughout the world.
Medtronic PLC is the world’s largest medical-technology company. Its products are used in numerous clinical settings, including cardiovascular, neurological,
spine, surgical, and diabetes care, transforming the lives
of two patients every second. With over 95,000 employees in 150 countries, Medtronic is transforming
3
healthcare worldwide, improving outcomes, expanding
access, and enhancing value in fulfillment of its mission
to alleviate pain, restore health, and extend life.
I N TR O D UC T IO N A N D S UM M AR Y O F A R G U M E N T
The Sixth Circuit’s decision further skews an already
tilted playing field. With billions of dollars on the line,
the court decided that three early defense losses were
enough to trigger an automatic loss in every case that
follows. Regardless of whether judicial economy favors
this result, the Constitution and common law do not.
Worse, under the judicial invention of nonmuutal
offensive collateral estoppel, which the Sixth Circuit
extended, lower courts can set off this severe result in
only one direction. The estoppel is a one-way ratchet.
Thus, no matter how many trials the defendant wins, the
defendant must either try another case or settle with the
remaining plaintiffs. Complete victory is never an option.
The merits of the underlying claims are irrelevant. The
advantage that the Sixth Circuit has conferred on
plaintiffs can never apply to defendants.
As a result, MDL defendants need to win from the
get-go. There is no opportunity to test alternative trial
strategies or theories. There is no ability to assess
whether jury pools or trial judges in other jurisdictions
might render a different result. And there is no forum
for revealing those plaintiffs with weak or nonexistent
claims. Early losses bind the defendant, whereas the
plaintiffs—who are inevitably acting in concert through
a plaintiffs’ steering committee—are always able to fight
another day.
To be sure, the decision below has the notional benefit
of “promoting judicial economy,” Parklane Hosiery Co.
v. Shore, 439 U.S. 332, 347 (1979), but so would a rule that
the defendant always loses. The dynamic created by the
4
Sixth Circuit’s rule makes the extraordinary pressure
that already exists for defendants to settle practically
insurmountable.
Efficiency is undoubtedly an important value. But it
cannot be the only, or even the paramount, value,
especially when it handicaps the rights of one side for the
benefit of the other. Accordingly, the Court should grant
certiorari and reverse for two reasons.
First, Parklane Hosiery should not apply to MDLs.
A judicial creation of 1970s, Parklane Hosiery conflicted
with prior precedent, common law practice, and the
Seventh Amendment. Even if permitted to stand,
Parklane Hosiery should not apply in the MDL context,
where its effects are enormous and the procedural
protections are thin. MDLs exist to advance procedural
goals, not to allow the playing field itself to be tilted.
Second, even under Parklane Hosiery, the Sixth
Circuit’s decision fails. As this Court noted, nonmutual
offensive collateral estoppel is inappropriate when it is
“unfair to a defendant.” For a variety of reasons, the
Sixth Circuit’s decision is fundamentally unfair to
defendants, including because it applies estoppel after a
tiny sample size of cases (supposedly “nonbinding”
bellwether trials, in this case), which are not necessaily
predictors of future trial outcomes, and because of the
intense one-sided settlement pressures it creates.
5
A R G UM E N T
I. Parklane Hosiery Should Not Apply to MDLs.
A. Parklane Hosiery has tenuous roots and conflicts with precedent, common law, and the
Seventh Amendment.
Until the 1970s, this Court had never applied nonmutual collateral estoppel. See Parklane Hosiery, 439 U.S.
at 347 (Rehnquist, J., dissenting) (“It was not until 1971
that the doctrine of mutuality was abrogated by this
Court in certain limited circumstances.”); see also Michael J. Waggoner, Fifty Years of Bernhard v. Bank of
America Is Enough: Collateral Estoppel Should Require
Mutuality but Res Judicata Should Not, 12 Rev. Litig.
391, 435-36 (1993); Effect of a Prior Judgment, 20 Fed.
Prac. & Proc. Deskbook § 107 (2d ed.). The first departure occurred via Blonder-Tongue Laboratories, Inc. v.
University of Illinois Foundation, 402 U.S. 313 (1971),
which applied non-mutual defensive collateral estoppel
“in certain limited circumstances.” Parklane Hosiery,
439 U.S. at 347 (Rehnquist, J., dissenting) (citation omitted).
In Blonder-Tongue, neither party sought to reject
mutuality until the Court sua sponte raised the issue at
oral argument. Waggoner, Fifty Years of Bernhard v.
Bank of America Is Enough, 12 Rev. Litig. at 436. Thus,
the Court made its decision to jettison mutuality without
the benefit of the decisions of the lower courts. Id. And
the decision is based largely on an unexplained presumption that the first court or jury’s verdict on an issue is the
correct one. Id. In Blonder-Tongue, a plaintiff sought to
enforce its patent. 402 U.S. at 314-16. But instead, the
Court remanded the decision so that the defendant could
6
plead estoppel based on a prior decision from a different
court that the patent was invalid. Id. at 327, 350.
Eight years later, over a dissent from then-Justice
Rehnquist, the Supreme Court nevertheless continued
down this path by creating nonmutual offensive collateral estoppel. The majority based its innovation on little
more than the Court’s own criticism of mutuality in
Blonder-Tongue and a single decision by the California
Supreme Court. Parklane Hosiery, 439 U.S. at 327. The
Court did so despite acknowledging two major pitfalls.
“First, offensive use of collateral estoppel does not promote judicial economy in the same manner as defensive
use does.” Id. at 329. And second “it may be unfair to a
defendant.” Id. at 330.
The Court’s groundbreaking ruling overturned centuries of precedent and departed from common law practice. In 1912, the Court had referred to the mutuality of
estoppel as “a principle of general elementary law.” Bigelow v. Old Dominion Copper Mining & Smelting Co.,
225 U.S. 111, 127 (1912); see also Keokuk & W. R. Co. v.
Missouri, 152 U.S. 301, 317 (1894) (“The operation of an
estoppel must be mutual.”); Outram v. Morewood, 102
Eng. Rep. 630, 633 (1803) (“[E]stoppel precludes parties
and privies from contending to the contrary [on a] point,
or matter of fact, which having been once distinctly put
in issue by them, or by those to whom they are privy in
estate or law, has been, on such issue joined, solemnly
found against them.” (emphasis added)). And then-Justice Rehnquist’s dissent noted that “the development of
nonmutual estoppel is a substantial departure from the
common law . . . .” Parklane Hosiery, 439 U.S. at 350
(Rehnquist, J., dissenting); see also Standefer v. United
States, 447 U.S. 10, 21 (1980) (“The doctrine of
7
nonmutual collateral estoppel was unknown to the common law.”).
Parklane Hosiery’s nonmutual offensive collateral
estoppel also conflicts with the Seventh Amendment. See
Parklane Hosiery, 439 U.S. at 350 (Rehnquist, J., dissenting) (observing that nonmutual offensive collateral
estoppel “completely deprives petitioners of their right
to have a jury determine contested issues of fact”). Nonmutual collateral estoppel is not just a matter of “common law qua common law,” but rather of the Constitution, and “no amount of argument that the device provides for more efficiency or more accuracy or is fairer
will save it if the degree of invasion of the jury’s province
is greater than allowed in 1791.” Id. at 346. The Seventh
Amendment, which “preserve[s]” “the right of trial by
jury” carries with it the protection against any “procedural” reform that might diminish the right, or in this
case, eclipse it entirely. See id. at 354-46; U.S. Const.
amend. VII. By bypassing the Seventh Amendment’s
protections, Parklane Hosiery’s “procedural reform”
tramples substantive Constitutional rights. Parklane
Hosiery, 439 U.S. at 346 (Rehnquist, J., dissenting).
B. Parklane Hosiery should not be applied to
MDLs.
Because of Parklane Hosiery’s tenuous roots, the decision must be applied with extreme circumspection, if it
is to be applied at all. Two features of MDLs make Parklane Hosiery particularly ill-suited for application in that
context.
1. First, the stakes in MDLs are enormous and the
procedural protections thin. “MDLs include the largest
tort cases in U.S. history but without the authority of the
class-action rule.” Abbe R. Gluck and Elizabeth
8
Chamblee Burch, MDL Revolution, 96 N.Y.U. L. Rev. 1,
1 (2021). Far from Parklane Hosiery’s “familiar example” of “50 passengers” injured in a railroad collision,
MDLs can encompass thousands or even hundreds of
thousands of plaintiffs. For example, as of July 2023, the
Aqueous Film-Forming Foams Products Liability Litigation, where both 3M and Tyco Fire Products are
among the defendants, covers 5,227 claims. U.S. Judicial
Panel on Multidistrict Litigation, MDL Statistics Report
- Distribution of Pending MDL Dockets by Actions
Pending (July 17, 2023), https://perma.cc/UT83-LEJB.
Johnson & Johnson’s talcum powder MDL stands at
37,543 actions. Id. And 3M’s Combat Arms Earplug
products liability litigation, the largest in MDL history,
currently includes 257,449 actions. Id.
This “aggregation of the cases also means aggregation of the amount at stake.” Andrew S. Pollis, The Need
for Non-Discretionary Interlocutory Appellate Review
in Multidistrict Litigation, 79 Fordham L. Rev. 1643,
1668 (2011). And the astronomical exposure alone can
create tremendous settlement pressure. Cf., e.g., AT&T
Mobility LLC v. Concepcion, 563 U.S. 333, 350 (2011)
(noting the “risk of ‘in terrorem’ settlements that class
actions entail”); Shady Grove Orthopedic Assocs., P.A. v.
Allstate Ins., 559 U.S. 393, 445 n.3 (2010) (Ginsburg, J.,
dissenting) (noting that class certification “places pressure on the defendant to settle even unmeritorious
claims” because of “‘potentially ruinous liability’” (citation omitted)).
Compounding the problem, MDLs lack the protections of Rule 23—the class action rule. Rule 23(a) imposes four “[p]rerequisite[],” “threshold requirements
applicable to all class actions”: numerosity, commonality,
typicality, and adequacy of representation. Amchem
9
Prods., Inc. v. Windsor, 521 U.S. 591, 613 (1997); cf. 28
U.S.C. § 1407(a) (joining “civil actions involving one or
more common questions of fact . . . for coordinated or
consolidated pretrial proceedings” in an MDL). These
prerequisites “assure the class cohesion that legitimizes
representative action in the first place,” and preclude
classes when members’ claims have factual and legal idiosyncrasies that defeat class unity. Id. at 623. Rule 23’s
rigorous requirements are “grounded in due process.”
Taylor v. Sturgell, 553 U.S. 880, 901 (2008); Comcast
Corp. v. Behrend, 569 U.S. 27, 33 (2013).
Moreover, certification of classes seeking damages
requires that “questions of law or fact common to class
members predominate over any questions affecting only
individual members.” Fed. R. Civ. P. 23(b)(3). And Rule
23(f) adds an additional layer of protection by “permit[ting] an appeal from an order granting or denying
class-action certification.” These protections exist because class actions circumvent “the usual rule that litigation is conducted by and on behalf of the individual
named parties only.” Comcast, 569 U.S. at 33 (cleaned
up); Taylor, 553 U.S. at 901 (observing that Rule 23’s rigorous requirements are “grounded in due process”).
MDLs offer none of these protections, despite courts
hearing claims, making legal conclusions, compelling settlement on a mass scale, and (in light of the Sixth Circuit’s opinion) imposing liability across thousands of
cases based on a limited set of verdicts for the plaintiff.
Indeed, MDLs were not originally designed as a forum
for trying cases but instead for simply aggregating “pretrial proceedings” in cases that share “one or more common questions of fact . . . pending in different districts.”
28 U.S.C. § 1407(a). The concept was that an MDL would
resolve pretrial issues and the cases would then be
10
remanded to their jurisdictions of origin for trial. Gluck
and Burch, MDL Revolution, 96 N.Y.U. L. Rev. at 12
(citing Andrew D. Bradt, Something Less and Something More: MDL’s Roots as a Class Action Alternative,
165 U. Pa. L. Rev. 1711, 1731-37 (2017)).
But, despite the original intentions for MDLs to be
remanded to their home courts for trial, as of 2021, only
1.6% of MDL cases have been remanded.2 See also Gluck
and Burch, MDL Revolution, 96 N.Y.U. L. Rev. at 12
(“[An MDL’s] formal grounding [is] in individual actions
but [a] de facto practice of centralization” is the “reality.”). Full resolution by MDL judges has become the
norm. See Pollis, The Need for Non-Discretionary Interlocutory Appellate Review in Multidistrict Litigation,
79 Fordham L. Rev. at 1669.
As two commentators put it, MDL judges have “resorted to extraordinary procedural exceptionalism to
settle cases on a national scale.” Gluck and Burch, MDL
Revolution, 96 N.Y.U. L. Rev. at 12. Consequently,
MDLs have sometimes become quasi-class actions, but
without the strictures of Rule 23(a) and (b) and without
the appellate opportunity afforded by Rule 23(f).
Whereas this Court has recognized the need for “rigorous analysis” of class action requirements, Comcast, 569
U.S. at 35; Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338,
351 (2011), those protections are not afforded when aggregating and litigating disparate cases in an MDL.
As of 2021, the JPML has, since its inception, centralized 1,056,706
civil actions for pretrial proceedings and remanded a total of 17,357
(or 1.6%) of those. See U.S. Judicial Panel on Multidistrict Litigation, Statistical Analysis of Multidistrict Litigation Under 28
U.S.C. § 1407 Fiscal Year 2021 3, https://perma.cc/4LGN-ENBE.
2
11
Moreover, erroneous rulings on, for instance, Daubert or preemption are typically multiplied and propagated across a broad MDL docket, and not corrected on
appeal. See, e.g., Melissa A. Waters, Common Law
Courts in an Age of Equity Procedure: Redefining Appellate Review for the Mass Tort Era, 80 N.C. L. Rev.
527, 530 (2002) (noting how MDL judges are innovating
the rules that govern mass tort, while “appellate courts
are still constrained by the inflexible rules of traditional
common law practice, which discourages appellate involvement in the pretrial process in favor of post-trial review upon final judgment”). Although a plaintiff who
loses a dispositive motion may appeal the final order, see
28 U.S.C. § 1291, a defendant may not. Instead, the defendant must wait until the final decision, which may be
years in the future, assuming the case does not settle
first (like it usually does). U.S. Chamber of Commerce
Institute for Legal Reform, MDL Imbalance: Why Defendants Need Timely Access to Interlocutory Review 5
(Apr. 2019), https://perma.cc/3MP4-6LJ2 [hereinafter
“MDL Imbalance”].
Defendants may attempt an appeal through other
mechanisms, such as 28 U.S.C. § 1292(b), but this depends on both the district court and the appellate court
accepting the appeal, which almost never happens in the
context of an MDL. Id.; Pollis, The Need for Non-Discretionary Interlocutory Appellate Review in Multidistrict
Litigation, 79 Fordham L. Rev. at 1658. For instance,
one 2018 review of 127 MDL dockets found only 15 instances where § 1292(b) certification requests were
made and none that were granted. MDL Imbalance at 6;
see also Waters, Common Law Courts in an Age of Equity Procedure, 80 N.C. L. Rev. at 530-31 (“Because
mass tort litigation almost exclusively emphasizes
12
pretrial maneuvering and settlement, appellate courts
never effectively review many of the most controversial
rulings and innovations of mass tort trial judges.”).
Most often, the district court refuses to certify issues
for appeal in the first place. See Pollis, The Need for NonDiscretionary Interlocutory Appellate Review in Multidistrict Litigation, 79 Fordham L. Rev. at 1658 (“Trial
judges[’] . . . consistent[] refus[al] to certify legal questions for discretionary review under § 1292(b), render[s]
that avenue useless.” (internal quotation marks omitted)
(citation omitted)). Declining certification allows district
courts to insulate their rulings from appellate review and
maximize settlement pressure on the parties. Id. at 1670.
Thus, errors on dispositive issues are seldom corrected,
further increasing the pressure on defendants to settle
meritless claims.3
2. Second, although MDLs comprise individual claimants, the reality is a heavily coordinated effort by sophisticated plaintiffs’ attorneys often working together with
litigation financiers and claims aggregators.
Third-party litigation funders are typically hedge
funds or other financial institutions that invest in lawsuits by advancing money to plaintiffs or law firms to
reap a percentage of the settlement or judgment. 4 See
Take, for example, the Vioxx MDL. See In re Vioxx Prods. Liab.
Litig., 501 F. Supp. 2d 776 (E.D. La. 2007). In that case, the defendant was unable to appeal an issue that would have been preclusive
of more than 10,000 claims. MDL Imbalance at 11. In a case like
that, defendants must theoretically continue litigating those claims
until they are able to appeal from the final judgment, only after incurring the expense of litigation.
3
One analysis calculates that the aggregate tort costs in the United
States in 2020 totaled $443 billion. U.S. Chamber of Commerce Institute for Legal Reform, Tort Costs in America: An Empirical
Analysis of Costs and Compensation of the U.S. Tort System 24
4
13
U.S. Chamber of Commerce Institute for Legal Reform,
What You Need to Know About Third Party Litigation
Funding (Feb. 7, 2023), https://perma.cc/753K-5LDN.
This industry’s growth has exploded in the last two decades, and recent estimates say it is a $13 billion industry
in the United States alone. See Matthew Goldstein and
Jessica Silver-Greenberg, Hedge Funds Look to Profit
from Personal-Injury Suits, New York Times (June 25,
2018), https://perma.cc/9T9G-ZY82; U.S. Chamber of
Commerce Institute for Legal Reform, What You Need
to Know About Third Party Litigation Funding,
https://perma.cc/753K-5LDN.
These investments are then used to recruit claims.
“Claim aggregators” or “lead generators” secure as
many plaintiffs as possible, often with minimal vetting.
See Roy Strom, Camp Lejeune Ads Surge Amid “Wild
West” of Legal Finance, Tech, Bloomberg Law (Jan. 30,
2023), https://perma.cc/Z4P2-KR7D. The claim aggregators spend huge sums of money recruiting via direct
phone calls, television ads or infomercials, posts on social
media, websites, or emails. Samir D. Parikh, Opaque
Capital and Mass Tort Financing, 133 Yale L.J. Forum
(forthcoming 2023) (manuscript at 19 (citation omitted))
(available at https://perma.cc/G8CJ-Q7QJ). For example, claim aggregators have spent over $145 million in
television and social media advertising for the Marine
Corps Base Camp Lejeune water contamination litigation. Strom, Camp Lejeune Ads Surge Amid “Wild
(Nov. 2022), https://perma.cc/E4JK-KFLJ. Of that amount, only
53% goes towards compensating claimants. Id. And the remaining
47% goes towards payment of legal costs and insurance.
14
West” of Legal Finance, Tech, Bloomberg Law,
https://perma.cc/Z4P2-KR7D.
These claims are then sold to law firms who strategically leverage the size of the claim groups. See id. Claim
size is often used to determine leadership positions
among plaintiffs’ attorneys in an MDL, allowing those
plaintiffs’ attorneys a greater opportunity to steer the
litigation. Parikh, Opaque Capital and Mass Tort Financing, 133 Yale L.J. Forum (forthcoming 2023) (manuscript at 17-18). Moreover, “repeat players” are favored
in MDL leadership positions. Elizabeth Chamblee
Burch, Monopolies in Multidistrict Litigation, 70 Vand.
L. Rev. 67, 80 (2017) (finding that over 60% of available
plaintiffs’ leadership positions in MDLs were held by repeat players). A larger claim size also provides plaintiffs’
attorneys with greater bargaining power for settlement.
These bloated claim numbers are especially problematic because a significant percentage of the stockpiled
cases lacks merit. The MDL Subcommittee to the Advisory Committee on Civil Rules notes that 20-30%, or perhaps as many as 40-50%, of MDL claims involve “unsupportable claims.” Report of the MDL Subcommittee of
the Advisory Committee on Civil Rules to the Standing
Committee on Rules of Practice and Procedure in Committee on Rules of Practice and Procedure Agenda Book
at 142-43 (Nov. 1, 2018), https://perma.cc/9KMS-MWJY;
see also Product Liability Advisory Council, Comment to
the Advisory Committee on Civil Rules and Its MDL
Subcommittee, https://perma.cc/4FQT-4S2V. In the Vioxx painkiller litigation, for instance, after a $4.85 billion
settlement, it was revealed that nearly one-third of plaintiffs who had filed claims were ineligible for relief. Sara
Randazzo and Jacob Bunge, Inside the Mass-Tort Machine That Powers Thousands of Roundup Lawsuits,
15
Wall
Street
Journal
(Nov.
25,
2019),
https://perma.cc/NSX5-XEGQ.
Regardless, because the interests of MDL plaintiffs
are fundamentally advanced in a coordinated effort, the
Parklane Hosiery rule is inappropriate in the MDL context. Early losses bind only the defendants, but not the
plaintiffs’ steering committee and its team of financiers
and aggregators, which collectively can choose to shift or
refine trial strategies or simply live to litigate another
day. Because the one-way ratchet of Parklane Hosiery
further skews an already lopsided playing field—binding
one side but not the other—the Court should grant certiorari and hold that Parklane Hosiery does not apply to
MDLs.
II. The Sixth Circuit’s Decision Conflicts with Parklane Hosiery.
Even if Parklane Hosiery were to apply to MDLs,
the underlying decision should be reversed. Parklane
Hosiery, as the Sixth Circuit recognized, enumerated instances in which nonmutual offensive collateral estoppel
should not be applied. In re E. I. du Pont de Nemours &
Co. C-8 Pers. Inj. Litig., 54 F.4th 912, 922 (6th Cir. 2022)
(citing Parklane Hosiery, 439 U.S. at 330-31). The Court
expressed the “general rule” that “a trial judge should
not allow the use of offensive collateral estoppel” when
“for other reasons, the application of offensive estoppel
would be unfair to a defendant.” Parklane Hosiery, 439
U.S. at 331; see also Jack Faucett Assocs., Inc. v. Am.
Tel. & Tel. Co., 744 F.2d 118, 125 (D.C. Cir. 1984) (collecting cases). “[A]llowing plaintiffs to cherry-pick favorable decisions to preclude issues in an ongoing or subsequent litigation raises serious fairness concerns.” Syverson v. Int’l Bus. Machines Corp., 472 F.3d 1072, 1080
16
(9th Cir. 2007) (rejecting the doctrine’s application in a
putative collective action); see also Jack Faucett Assocs.,
744 F.2d at 124 (noting, in a class action, that the doctrine
of nonmutual, offensive collateral estoppel is “detailed,
difficult, and potentially dangerous”). This is to say nothing of the unfairness of the Sixth Circuit using what were
supposed to be nonbinding bellwethers to apply nonmutual offensive collateral estoppel. See In re E.I. du Pont
Nemours and Company C-8 Personal Injury Litigation,
54 F.4th at 938 (Batchelder, J., dissenting). The Sixth
Circuit’s decision is fundamentally unfair and should be
reversed.
First, the Sixth Circuit decided, without giving any
prior notice, that just three plaintiff victories were sufficient to estop defendant in future litigation. This places
immense pressure on defendants to succeed in the earliest cases and gives no guidance as to when defendants
are clear from the threat of nonmutual offensive collateral estoppel. The decision also is premised on a dubious
notion that three early trials—with two plaintiffs being
picked by the plaintiffs’ steering committee—are a reliable predictor of future litigation outcomes. See generally Byron G. Stier, Another Jackpot (In)justice: Verdict
Variability and Issue Preclusion in Mass Torts, 36
Pepp. L. Rev. 715, 741 (2009).
A miniscule handful of early verdicts is not indicative
of future jury verdicts either way. For one thing, different decisionmakers will consider the same facts and evidence differently. And further, almost by definition,
MDLs contain plaintiffs with distinct factual scenarios;
whereas if common issues predominated, there would
likely be a class.
Reflecting the likelihood of disparate results, one
study presented 1,042 individuals with the same evidence
17
and arguments summarized from asbestos products liability cases as if they were members of a jury. Shari Seidman Diamond, et al., Juror Judgments About Liability
and Damages: Sources of Variability and Ways to Increase Consistency, 48 DePaul L. Rev. 301, 304 (1998).
Fifty-one percent of the “jurors” favored a verdict for
the plaintiff. Id. at 305.
Bayer’s Roundup litigation provides a useful realworld example of how early decisions are not predictors
of subsequent trials. Early in the litigation, three juries
(including in one MDL bellwether) entered verdicts for
plaintiffs. A 2018 verdict awarded plaintiff almost $300
million in damages, and two others awarded $86.7 million
and $20 million, respectively. Mari Gaines, Roundup
Lawsuit Update July 2023, Forbes (May 23, 2023),
https://perma.cc/9622-DS8W. But as of May 2023, Bayer
proceeded to win seven consecutive trials. Ronald V. Miller, Jr., Monsanto Roundup Lawsuit Update, Lawsuit
Information
Center
(Aug.
2,
2023),
https://perma.cc/LR7Y-2HEZ.
Application of the Sixth Circuit’s erroneous decision
would not have given Bayer a chance to prevail in these
trials. Instead, application of nonmutual offensive collateral estoppel would have bound Bayer by the initial verdicts, providing plaintiffs a windfall worth billions of dollars.
Second, the Sixth Circuit’s decision is unfair because
it deprives the defendant of the opportunity to use early
trials, and bellwether trials, to calibrate trial strategy.
Bellwether trials are “meant to help the parties gather
information, value the cases, test legal theories, and, ultimately, reach a global settlement with minimal costs.”
In re E. I. du Pont Nemours and Company C-8 Personal
Injury Litigation, 54 F.4th at 938 (Batchelder, J.,
18
dissenting). But the Sixth Circuit’s opinion eliminates
this opportunity by precluding defendants from refining
their tactics and themes in subsequent litigation.
Whereas the plaintiff can “test legal theories” and pursue alternative strategies, the defendant cannot.
Third, nonmutual offensive collateral estoppel cannot
escape the fundamental unfairness that it benefits only
plaintiffs and never defendants, no matter how many
verdicts defendants may win. See Waggoner, Fifty Years
of Bernard v. Bank of America Is Enough, 12 Rev. Litig.
at 408; see also Parklane Hosiery, 439 U.S. at 327 n.7. If
defendants choose litigation over settlement, they simply
must continue the Sisyphean task of defending trial after
trial (and hope that they do not accumulate enough losses
for a court to choose to apply nonmutual offensive collateral estoppel).
“[T]he use of non-mutual, offensive issue preclusion
might leave the defendant being pecked to death by
ducks. One plaintiff could sue and lose; another could sue
and lose; and another and another until one finally prevailed; then everyone else would ride on that single success.” Premier Elec. Const. Co. v. Nat’l Elec. Contractors
Ass’n, Inc., 814 F.2d 358, 363 (7th Cir. 1987). And “[a]s a
matter of probabilities,” defendants are unlikely to maintain such a winning streak. Exposing the Extortion Gap:
An Economic Analysis of the Rules of Collateral Estoppel, 105 Harv. L. Rev. 1940, 1958 (1992). To illustrate,
even “a defendant with a fifty-fifty chance of prevailing
at trial has only a 1 in 32 chance of winning five such trials.” Id. at 1958 n.42. The pressure is on the defendants
to win every lawsuit, particularly early-on. This is especially daunting for MDL defendants. Products liability
19
MDLs can include thousands or hundreds of thousands
of plaintiffs. Defendants will not win all of them. 5
The risk of collateral estoppel creates immense pressure for defendants to settle. Since defendants may not
use nonmutual offensive collateral estoppel, defendants
are faced with a choice between voluminous, costly litigation (that now carries the risk of estoppel), or settlement. This is no choice at all. Defendants are already settling unmeritorious claims because of the high volume
and heavy burden of MDLs. For example, in the Xarelto
litigation, Bayer and Johnson & Johnson won the first six
trials. See NBC News, Xarelto Suits: Bayer and Janssen
Agree to $775 Million Settlement Over Blood Thinner
(Mar, 26, 2019), https://perma.cc/6M3V-J4B5. Nevertheless, the defendants decided to settle the case for $775
million dollars. They did not admit fault as part of the
settlement and maintained throughout that the suits
were meritless. See Tina Bellon, Bayer, J&J Settle U.S.
Xarelto Litigation for $775 Million, Reuters (Mar. 25,
2019), https://perma.cc/F2G8-XM6E. If armed with nonmutual offensive collateral estoppel, plaintiffs would
have an even bigger advantage in settlement—imposing
even more pressure on defendants to settle meritless
claims.
Parklane Hosiery acknowledged the threat of applying offensive
nonmutual collateral estoppel where there have been “inconsistent”
verdicts but provided no guidance as to how that threat affects application of the doctrine. 439 U.S. at 330. There, the Court cited a
hypothetical railroad collision with 50 separate actions against the
railroad. Id. at 330 n.14. If the railroad won the first 25 suits and a
plaintiff won suit 26, “offensive use of collateral estoppel should not
be applied so as to allow plaintiffs 27 through 50 automatically to
recover.” Id. Even if this guidance were binding on lower courts, it
would not be of any assistance. Asking defendants to win 25 consecutive lawsuits is unreasonable.
5
20
The Sixth Circuit’s application of the already questionable doctrine established in Parklane Hosiery has
serious and far-reaching consequences. The decision is
wrong, and only this Court can correct it. Especially considering the paucity of MDL appeals, see supra, immediate review is necessary.
C O N C L US IO N
The petition for a writ of certiorari should be granted.
Respectfully submitted.
Katherine C. Yarger
Counsel of Record
LEHOTSKY KELLER COHN LLP
700 Colorado Blvd., #407
Denver, CO 80206
(512) 693-8350
katie@lkcfirm.com
Jonathan F. Cohn
Steven P. Lehotsky
Scott A. Keller
Gabriela Gonzalez-Araiza
LEHOTSKY KELLER COHN LLP
200 Massachusetts Ave., NW
Washington, DC 20001
Counsel for Amici Curiae
AUGUST 2023
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.