We have a weak spot for criminal cases. We also have a weak spot for doom-scrolling, inevitably provoked by the country’s insane politics over the last eight years. And we have a weak spot for visiting nearby Delaware, home of tax-free shopping, excellent beaches, Dogfish Head Brewery, and judges who know corporate law. We live
We have not been terribly shy in voicing our concerns over certain practices we see in drug and device MDLs. Some of these concerns are directed to plaintiff lawyers, some to the judges overseeing the MDLs, and some to both. For instance, we think many MDL judges are far too lenient in allowing plaintiffs…
Twice this year we have reported on trial-court decisions addressing application of offensive non-mutual collateral estoppel—an offensive doctrine that precludes a defendant from relitigating an issue that it lost in earlier litigation against a different plaintiff. One court applied it; the other refused to. Today we report on a Sixth Circuit decision that affirmed, over a spirited dissent, application of the doctrine in a follow-on MDL case.
Our earlier posts catalog the doctrine’s unfair, pernicious results. A quick refresher:
Offensive non-mutual collateral estoppel risks perpetuating an erroneous result by preventing relitigation of issues previously decided against a defendant. If applied, the doctrine can give disproportionate—and potentially dispositive—weight to the decision of a lone judge or jury, no matter how wrong that decision.
The fact that an adverse judgment in one case can cripple a company’s defense in subsequent cases has two adverse consequences apart from the danger of perpetuating error. First, it gives plaintiffs tremendous leverage in settlement negotiations. Second, it induces defendants to spend much more litigating a case than would be warranted by the amount nominally in dispute.Continue Reading Divided Sixth Circuit Affirms “Unique” Application of Offensive Non-Mutual Collateral Estoppel
Two weeks ago we reported on a case that refused to apply offensive non-mutual collateral estoppel, the doctrine that prevents a defendant from relitigating an issue that it lost in earlier litigation against a different plaintiff. Although we weren’t impressed by that decision’s analysis, its outcome was one we could endorse. Today we report on…