Coblin v. Depuy Orthopaedics, Inc., 2024 U.S. Dist. LEXIS 62114 (E.D. Kentucky April 4, 2024) is the final word dodged bullet.  It’s a part of a multidistrict litigation.  That’s unhealthy sufficient. Then it will get worse.  It’s not simply any MDL, it’s the hip implant MDL. Then it will get even worse. This Coblin choice entails a plaintiff’s movement for partial abstract judgment.  Yikes.  Then it will get even even worse.  The plaintiff in Coblin moved for abstract judgment based mostly on nonmutual offensive collateral estoppel.  What’s so unhealthy – or maybe we should always say offensive – about nonmutual offensive collateral estoppel?  Collateral estoppel is a species of problem preclusion.  It signifies that some problem was determined in a previous litigation, and that call carries ahead to different circumstances.  There isn’t a extra combating over the problem.  It’s established.   Nonmutual collateral estoppel signifies that the celebration invoking problem preclusion was not a celebration to the prior choice. Lastly, offensive nonmutual collateral estoppel signifies that it’s a plaintiff seeking to get the good thing about the prior choice. (We now have written earlier than about how nonmutual offensive collateral estoppel is systematically unfair.) 

The important thing case on nonmutual offensive collateral estoppel is Parklane Hosiery Co. v. Shore, 439 U.S. 322 (1979). We bear in mind finding out the Parklane case in legislation college, and we bear in mind how horrifying nonmutual offensive collateral estoppel appeared to us even then, effectively earlier than we grew to become protection hacks. Parklane set forth a nightmare state of affairs. Think about {that a} defendant will get sued by a number of plaintiffs for related conduct and related accidents. Acquired it?  You might need heard of one thing like that taking place. Now suppose the primary few plaintiffs misplaced.  May the defendant then apply collateral estoppel in opposition to future plaintiffs?  Most likely not.  The brand new plaintiffs didn’t have an opportunity to press their place in these earlier circumstances.  Truthful sufficient.

However what about as soon as a plaintiff wins?  Can a future plaintiff then apply collateral estoppel in opposition to the defendant, arguing that the defendant had a full alternative to litigate its case, so its loss ought to carry ahead? It’s loopy, as a result of a defendant may win, say, 25 consecutive circumstances, however as quickly because it loses one, all future plaintiffs may lock in a win on essential points.  (We had been happy to see the Coblin courtroom embrace a parenthetical quote from Parklane that talked about our Federal Courts professor, the good David Currie.)

In Parklane, the Supreme Courtroom acknowledged that nonmutual offensive collateral estoppel might be pernicious, to say nothing of unfair, for 3 causes: (1) it’d encourage some plaintiffs to put again, wait and see, after which pounce as soon as one other plaintiff received a difficulty; (2) courts shouldn’t clobber a defendant who didn’t have a purpose to defend earlier actions vigorously, significantly if future penalties weren’t foreseeable; and (3) the doctrine shouldn’t apply if the judgment relied upon as a foundation for the estoppel is itself inconsistent with a number of earlier judgments. 

That third Parklane issue is why the plaintiff in Coblin misplaced its try at abstract judgment on the idea of offensive non mutual collateral estoppel. The plaintiff in Coblin sought partial abstract judgment to the impact that the defendant had designed and offered a faulty product.  That will surely be a pleasant head begin for any plaintiff. Within the MDL from which this case was remanded, the plaintiffs didn’t win all of the bellwether trials, and never all their wins held up on attraction.  Particularly, the protection received the primary bellwether trial. The plaintiff received the second, however it was overturned on attraction due to some severe errors by the courtroom and a few significantly shady misrepresentations by the plaintiff.  (See our publish right here.) The plaintiffs received the following two bellwether trials, then settled the circumstances whereas they had been on attraction. 

There are a number of explanation why nonmutual offensive collateral estoppel can be monstrous on this scenario.  As an preliminary matter, MDL bellwether trials aren’t alleged to be binding.  They’re for informational functions solely.  (By no means thoughts whether or not that data is beneficial, and even whether or not it qualifies as misinformation.)  Nor had been any of the prior bellwether trials below the legislation that applies to the Coblin case (Kentucky), although that may not matter a lot right here. However the elementary downside right here is that nonmutual offensive collateral estoppel right here can be unfair.  Aware of Parklane issue three, the courtroom in Coblin refused to “don blinders” within the face of inconsistent judgments and protection wins.  

The plaintiff really requested the Coblin courtroom to don these blinders. The plaintiff recommended that the courtroom ought to disregard the primary trial end result, the place the defendant prevailed.  Why?  The decision type in that case contained a query that mixed design defect and harm. Thus, in line with the Coblin plaintiff, possibly when the jurors within the earlier case answered No to the mixed query, they may have been saying No to harm with out addressing defect.  The Coblin plaintiff’s argument is, after all, rank hypothesis.  It’s a fairly weak stuff to assist one thing as final result dispositive and one-sided as nonmutual offensive collateral estoppel.  Such hypothesis couldn’t erase the easy incontrovertible fact that the protection verdict in that first trial was inconsistent with the later trial outcomes that the Coblin plaintiff sought to use.  

Furthermore, there are some issues with giving preclusive impact to these plaintiff wins. Clearly, a verdict vacated for plaintiff-side misconduct can’t probably be a foundation for collateral estoppel.  Additional, verdicts in circumstances that later settled and didn’t produce judgments are inappropriate for collateral estoppel.  There are some features of the Coblin opinion we don’t love.  There are another circumstances on the market hinting that nonmutual offensive collateral estoppel would possibly apply in some mass torts.  That’s scary stuff.  The last word protection is an attraction to equity.  Fortuitously for the defendant in Coblin, the Parklane choice enshrined such equity concerns, particularly when there are inconsistent outcomes.