The DRI Center for Law and Public Policy filed an amicus curiae brief in support of E.I. Du Pont de Nemours & Co., jointly with Lawyers for Civil Justice, in support of DuPont’s petition for certiorari. DuPont seeks Supreme Court review of a Sixth Circuit decision applying nonmutual offensive collateral estoppel to thousands of claims against DuPont, essentially deciding key elements of liability against DuPont based on these a few unrepresentative cases.
The DRI Center for Law and Public Policy and Lawyers for Civil Justice have worked collaboratively on the abuses in multidistrict litigation (MDL) for years. Their past work and interests in a fair and even playing field for litigants allowed them to argue that review is needed because of the American civil justice system depends on fundamental fairness; that is, the parties are entitled as a matter of due process to get a fair shake on an even playing field. But MDL has been described as the “wild West” because normal rules are ignored or don’t seem to fit. Courts, encouraged to be creative and flexible, all too often latch on to novel approaches that are fundamentally unfair—all to try to assure speedy settlements before cases are returned to the transferor jurisdictions for trial.
The litigation history here illustrates these problems. So, The Center and LCJ urged the Supreme Court to grant certiorari to avoid drastic consequences to DuPont and to the entire MDL process. They argued that binding 75,000 claims against DuPont based on a handful of unrepresentative cases through the use of nonmutual offensive collateral estoppel, contrary to the earlier agreement of the district court and the parties, is staggering and contrary to law. Such powerful asymmetries have prompted courts to refuse to apply nonmutual offensive collateral estoppel in these circumstances.
The Center and LCJ took the position that when nonmutual offense collateral estoppel is applied in the context of mass torts in an MDL, the disproportionate effect on defendants renders its use a violation of due process regardless of the selection process for bellwether trials. It violates due process for all plaintiffs to retain their right to their day in court, even if hundreds of other plaintiffs have lost at trial, while a defendant can succeed on hundreds of cases but then be bound as to thousands more because it lost a single case tried before an aberrant jury.
The Center and LCJ also pointed out the devastating effects of the Sixth Circuit decision. As entities with deep knowledge of litigation strategy, The Center and LCJ explained to the Court that review is needed because no defendant would agree to a bellwether trial if it can potentially bind the defendant on thousands of future cases even when the parties and court initially agree that it will not be binding. They contended that defendants already face an uneven playing field in MDL proceedings because of pleading problems that allow for a high proportion of meritless claims to be filed. They offered insight into the many factors that can result in aberrant jury verdicts and thus make such broad application of nonmutual offensive collateral estoppel problematic and unfair to defendants.
The Center and LCJ also argued that the lack of notice of the binding outcome made the outcome even more problematic. The parties and district court judge all agreed that bellwether trials would not be binding, and no effort was made to ensure that the cases selected as bellwethers were representative. An after-the-fact ruling that a few early losses bind the defendant on key liability issues is the antithesis of the rule of law. A federal judge going back on his word in the most consequential way undermines faith in the integrity of the judiciary. The Center and LCJ were able to explain in practical terms how a defendant’s strategy for a bellwether would likely have differed if the broad binding effect had been disclosed before the trials. And they argued that, regardless of the knowledge of the parties or the steps taken to try to assure representative cases were tried first, such broad asymmetries violate due process.
The brief of The Center and LCJ was authored by former DRI President Mary Massaron of Plunkett Cooney PC in Bloomfield Hills, Michigan.