Professor Byron Stier, of Southwestern Law School, has written an interesting article entitled, Another Jackpot (In)Justice: Verdict Variability and Issue Preclusion in Mass Torts.

In it, he notes that if there are no prior inconsistent verdicts, non-mutual offensive issue preclusion generally allows a finding by a single jury to bar re-litigation, in future cases, of the issue by the defendant who lost in the prior case. This approach, however, ignores the possibility that the first verdict delivered may have been an outlier, a fact that would be shown only if further verdicts were permitted to be delivered. In mass tort litigation, such a flawed approach may result in critical issues such as defect or negligence being resolved by only six jurors, when the potentially outlier verdict is then potentially applied to resolve the cases of thousands, perhaps bankrupting a company or an industry — even when most juries would not so hold.

Focusing on mass tort litigation, this article by Professor Stier presents some growing empirical evidence of verdict variability and then critiques the use of issue preclusion, whose downside is applied only against defendants, not plaintiffs, because only defendants were parties to the prior action. As a result, the article argues, courts should exercise their discretion to deny issue preclusion in mass tort litigation. Instead, he asserts, courts should join the emerging consensus of mass tort management that ultimately better serves the goals of efficiency and public respect supposedly underlying issue preclusion: allow multiple verdicts to unfold a more balanced view of liability that will frequently be used for well-informed and far-reaching settlements.

Given the administrative burden that mass torts can place on the courts, even with the use of management techniques such as an MDL, the temptation to use short-cuts to the traditional day in court promised all litigants and demanded by fundamental fairness can be immense. The professor offers some powerful arguments against one such short-cut.