Win One or Lose Them All: Attempts to Use Nonmutual Offensive Collateral Estoppel in MDL Bellwether and Other Trials

Nonbinding bellwether trials have long been used in MDLs and other consolidated proceedings to inform the parties on the strengths and weaknesses of the claims and defenses. Recently, in In re E. I. du Pont de Nemours & Co. C-8 Pers. Inj. Litig., 54 F.4th 912 (6th Cir. 2022), the Sixth Circuit affirmed a district court's decision to apply nonmutual offensive collateral estoppel to preclude a bellwether-losing defendant from contesting certain liability issues in any future trial involving an MDL plaintiff. The Supreme Court is currently considering a certiorari petition challenging the Sixth Circuit's ruling. Regardless of the outcome of that petition, MDL defendants going forward will have to be cognizant of the possibility that losing a bellwether trial may have far greater implications than in the past. The issue is not limited to the US as defendants in Canada and elsewhere are facing similar attempts to apply foreign judgments to claims brought in their countries.

This moderated panel, which includes a MDL practitioner, a lawyer from Canada, and an in-house counsel, will discuss the du Pont case, the doctrine of nonmutual offensive collateral estoppel in various jurisdictions, and suggest best practices when clients face multiple actions.