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Coblin v. Depuy Orthopaedics, Inc., 2024 U.S. Dist. LEXIS 62114 (E.D. Kentucky April 4, 2024) is the ultimate dodged bullet.  It is part of a multidistrict litigation.  That’s bad enough. Then it gets worse.  It’s not just any MDL, it’s the hip implant MDL. Then it gets even worse. This Coblin decision involves a plaintiff’s motion for partial summary judgment.  Yikes.  Then it gets even even worse.  The plaintiff in Coblin moved for summary judgment based on nonmutual offensive collateral estoppel.  What is so bad – or perhaps we should say offensive – about nonmutual offensive collateral estoppel?  Collateral estoppel is a species of issue preclusion.  It means that some issue was decided in a prior litigation, and that decision carries forward to other cases.  There is no more fighting over the issue.  It is established.   Nonmutual collateral estoppel means that the party invoking issue preclusion was not a party to the prior decision. Finally, offensive nonmutual collateral estoppel means that it is a plaintiff looking to get the benefit of the prior decision. (We have written before about how nonmutual offensive collateral estoppel is systematically unfair.) 

The key case on nonmutual offensive collateral estoppel is Parklane Hosiery Co. v. Shore, 439 U.S. 322 (1979). We remember studying the Parklane case in law school, and we remember how horrifying nonmutual offensive collateral estoppel seemed to us even then, well before we became defense hacks. Parklane set forth a nightmare scenario. Imagine that a defendant gets sued by multiple plaintiffs for similar conduct and similar injuries. Got it?  You might have heard of something like that happening. Now suppose the first few plaintiffs lost.  Could the defendant then apply collateral estoppel against future plaintiffs?  Probably not.  The new plaintiffs did not have a chance to press their position in those earlier cases.  Fair enough.

But what about once a plaintiff wins?  Can a future plaintiff then apply collateral estoppel against the defendant, arguing that the defendant had a full opportunity to litigate its case, so its loss should carry forward? It’s crazy, because a defendant could win, say, 25 consecutive cases, but as soon as it loses one, all future plaintiffs could lock in a win on important issues.  (We were pleased to see the Coblin court include a parenthetical quote from Parklane that mentioned our Federal Courts professor, the great David Currie.)

In Parklane, the Supreme Court recognized that nonmutual offensive collateral estoppel could be pernicious, to say nothing of unfair, for three reasons: (1) it might encourage some plaintiffs to lay back, wait and see, and then pounce once another plaintiff won an issue; (2) courts should not clobber a defendant who did not have a reason to defend earlier actions vigorously, particularly if future consequences were not foreseeable; and (3) the doctrine should not apply if the judgment relied upon as a basis for the estoppel is itself inconsistent with one or more previous judgments. 

That third Parklane factor is why the plaintiff in Coblin lost its attempt at summary judgment on the basis of offensive non mutual collateral estoppel. The plaintiff in Coblin sought partial summary judgment to the effect that the defendant had designed and sold a defective product.  That would certainly be a nice head start for any plaintiff. In the MDL from which this case was remanded, the plaintiffs did not win all the bellwether trials, and not all their wins held up on appeal.  Specifically, the defense won the first bellwether trial. The plaintiff won the second, but it was overturned on appeal because of some serious errors by the court and some seriously shady misrepresentations by the plaintiff.  (See our post here.) The plaintiffs won the next two bellwether trials, then settled the cases while they were on appeal. 

There are several reasons why nonmutual offensive collateral estoppel would be monstrous in this situation.  As an initial matter, MDL bellwether trials are not supposed to be binding.  They are for informational purposes only.  (Never mind whether that information is useful, or even whether it qualifies as misinformation.)  Nor were any of the prior bellwether trials under the law that applies to the Coblin case (Kentucky), though that might not matter much here. But the fundamental problem here is that nonmutual offensive collateral estoppel here would be unfair.  Mindful of Parklane factor three, the court in Coblin refused to “don blinders” in the face of inconsistent judgments and defense wins.  

The plaintiff actually asked the Coblin court to don those blinders. The plaintiff suggested that the court should disregard the first trial result, where the defendant prevailed.  Why?  The verdict form in that case contained a question that combined design defect and injury. Thus, according to the Coblin plaintiff, maybe when the jurors in the earlier case answered No to the combined question, they might have been saying No to injury without addressing defect.  The Coblin plaintiff’s argument is, of course, rank speculation.  It is a pretty weak stuff to support something as outcome dispositive and one-sided as nonmutual offensive collateral estoppel.  Such speculation could not erase the simple fact that the defense verdict in that first trial was inconsistent with the later trial results that the Coblin plaintiff sought to exploit.  

Moreover, there are some problems with giving preclusive effect to those plaintiff wins. Obviously, a verdict vacated for plaintiff-side misconduct cannot possibly be a basis for collateral estoppel.  Further, verdicts in cases that later settled and did not produce judgments are inappropriate for collateral estoppel.  There are some aspects of the Coblin opinion we don’t love.  There are some other cases out there hinting that nonmutual offensive collateral estoppel might apply in some mass torts.  That is scary stuff.  The ultimate defense is an appeal to fairness.  Fortunately for the defendant in Coblin, the Parklane decision enshrined such fairness considerations, especially when there are inconsistent outcomes.