Column: Clarence Thomas has a beef with bellwether trials in mass tort cases

3M Co

21/11/2023 20:42

(The opinions expressed here are those of the author, a
columnist for Reuters)
    By Alison Frankel
       Nov 21 (Reuters) - U.S. Supreme Court Justice Clarence
Thomas expressed grave concerns on Monday about trial judges in
consolidated multidistrict litigation binding defendants to the
outcome of bellwether trials.
    Dissenting from the court's decision not to hear DuPont’s 
challenge to a $40 million jury verdict for Travis Abbott, an
Ohio man who blamed DuPont “forever chemicals” for his
testicular cancer, Thomas warned against the intrusion into MDLs
of “nonmutual offensive collateral estoppel.”
    That’s a phrase that only a civil procedure professor could
love, but the concept isn’t hard to understand. It stems from
the Supreme Court’s 1979 decision in Parklane Hosiery Company v.
Shore, in which the justices ruled that a judgment against
Parklane in a case brought by the U.S. Securities and Exchange
Commission precluded the company from re-litigating the same
issue in a shareholder class action, even though shareholders
had not been not parties in the SEC case. It would waste
judicial resources to let defendants that already had a fair
hearing relitigate identical issues in cases brought by
different plaintiffs, the court said. Thus: nonmutual offensive
collateral estoppel.
    DuPont’s appellate counsel, Paul Clement of Clement &
Murphy, argued in the company’s petition for Supreme Court
review that the 6th U.S. Circuit Court of Appeals had pushed
Parklane precedent too far when the majority on a split
three-judge panel refused to overturn the trial court’s judgment
for Abbott. The trial judge, who had previously presided over a
multidistrict litigation involving the same allegedly
carcinogenic chemical, barred DuPont from contesting key
elements of Abbott’s case based on the company’s losses in two
bellwether trials and a third non-bellwether trial in the MDL.
(Abbott sued DuPont after the company settled with thousands of
plaintiffs in the MDL.)
    DuPont contended that it had been deprived of due process
when the results of two purportedly non-binding bellwether
trials barred the company from relitigating critical defenses in
the Abbott case.
    DuPont told the Supreme Court that the 6th Circuit’s
decision to allow “a few adverse bellwether verdicts to control
countless pending and future cases across an entire MDL” would
have a profound impact across multidistrict litigation, which
now dominates federal civil dockets. For MDL defendants, DuPont
said, bellwethers would present an untenable balance of risk and
reward: Win and you still have to face claims by every other
plaintiffs in the MDL; lose and you may be barred from
contesting liability across the entire consolidated litigation.
    A bevy of amici, including the U.S. Chamber of Commerce, the
Washington Legal Foundation, Lawyers for Civil Justice and a
group of MDL defendants including 3M  MMM.N  , Bayer  BAYGn.DE  
and Johnson & Johnson  JNJ.N , echoed DuPont’s argument, arguing
that defendants will be crippled if courts interpret Parklane
precedent to preclude them from relitigating issues they’ve lost
in bellwether trials.
    Abbott’s appellate lawyers from Gupta Wessler explained in
their brief opposing Supreme Court review that the circumstances
of the DuPont litigation – in which both sides agreed before the
creation of the MDL to be bound by the causation conclusions of
a panel of expert epidemiologist – were unique. Among other
things, they said, DuPont and plaintiffs lawyers spent months
negotiating the selection of bellwether plaintiffs – and one of
the two bellwether losses for DuPont was in its own handpicked
case.
    You never know why the Supreme Court opts not to take a
case, but DuPont failed to persuade four justices to grant
review.
    It did, however, sway at least two. Justice Brett Kavanaugh
disclosed in Monday’s order that he would have taken the case.
And Thomas, in his dissent, completely adopted the arguments of
DuPont and its amici. (Justice Samuel Alito was recused.)
    “Extending Parklane to the MDL context seems illogical and
unfair,” Thomas wrote. “It is quite a stretch to use a mechanism
designed to handle only pretrial proceedings to instead resolve
multiple elements of a claim based on a few nonbinding
bellwether trials. This use of nonmutual offensive collateral
estoppel is far afield from any this court has endorsed.”
    So does Thomas’ warning, along with Kavanaugh’s revelation
that he would have taken the case, portend eventual Supreme
Court review of the preclusive effect of bellwether losses for
MDL defendants?
    Neither DuPont counsel Clement nor Abbott counsel Matthew
Wessler of Gupta Wessler responded to my queries. Mary Massaron
of Plunkett Cooney, who was counsel for two of DuPont’s amici,
said Thomas’ recognition of the “overwhelming importance” of the
issue may serve as a warning to MDL judges to steer clear of
precluding defense arguments based on bellwether verdicts.
    “There is a potentially significant group on the court that
sees the problem,” Massaron said.
    But according to Cornell Law School professor Alexandra
Lahav – who signed an amicus brief backing Abbott when his case
was at the 6th Circuit – DuPont and its backers are asking the
Supreme Court to solve a problem that doesn’t actually exist.
    According to Lahav, the DuPont case is a unicorn: No other
MDL judge has barred a defendant from relitigating important
issues based on bellwether verdicts.
    In fact, she said, it’s more often MDL plaintiffs – not
defendants – who are disadvantaged by issue preclusion. As Lahav
pointed out in her 6th Circuit amicus brief (which several other
law professors joined), more than a few MDLs have been wiped out
entirely by what the law professors called “defensive nonmutual
collateral estoppel”: the extension of summary judgment rulings
on, for instance, the admissibility of expert testimony or the
timeliness of claims, to every case in the consolidated
litigation. 
    Lahav and the other professors who joined her amicus brief
urged the 6th Circuit to continue to allow MDL judges to use
their discretion when it comes to issue preclusion, just as
Parklane dictates.
    The 6th Circuit did just that. And at least for now, the
Supreme Court has agreed to let well enough alone.
    Read more:
    Supreme Court won't review $40 million DuPont PFAS verdict
tied to cancer
    DuPont seeks US Supreme Court review after $40 million PFAS
cancer verdict
    DuPont loses challenge over cancer victim's $40 mln verdict
in PFAS case

 (Reporting By Alison Frankel)