One to watch is E.I. du Pont de Nemours & Co. v. Travis Abbott et al., No. 23-13(U.S. cert. pending). And necessary disclosure your humble blogger co-authored an amicus brief on behalf of PLAC supporting the granting of the defendant’s petition for cert.

The case arises from the typically complex procedural history of an MDL involving multiple claims for alleged injuries arising from alleged water pollution. In short, the MDL court (affirmed by a split panel of the Sixth Circuit) decided to apply offensive preclusion from the results of three bellwether verdicts to bind the defendant throughout the remainder of the entire MDL.

The MDL court had assured the parties that the results of bellwether trials would not be applied to future trials. As is often the case, the cases tried were admittedly known not to be representative of the bulk of the MDL inventory, given the selection process employed. The early trials, like others in most MDLs, were meant to test legal strategies and possibly inform a global settlement. The decision also conflicts with mass tort decisions of other circuits; plaintiffs could not cite a single case where nonmutual offensive collateral estoppel has ever before been permitted in these circumstances. Clearly, applying preclusion to an entire MDL based on a handful of expressly nonbinding bellwethers is fundamentally unfair.

Moreover, if a defendant wins one or more bellwether trials, nothing happens to the rest of the plaintiffs– they still can try or settle their cases as they which. But, according to the Sixth Circuit, it is fair if defendants lose one or a few bellwethers and the game is virtually over.

The decision fundamentally ignores the reality of MDLs- which represent a majority of the cases pending in the federal courts. Approximately 406,000 cases are pending in 179 MDLs. See United States Judicial Panel on Multidistrict Litigation, Pending MDLs by Actions Pending. It ignores plaintiffs’ counsel’s ability to drop or settle risky (for plaintiffs) bellwethers. That gamesmanship is common. It ignores the reality that failing to win a single bellwether out of the first handful of cases does not mean that defendants have a weak overall case and deserve to lose thousands of other cases; history shows that in multiple MDLs plaintiffs’ early success was followed by long defense jury verdict winning streaks. (e.g. Roundup, Vioxx). The risk of unfair preclusion will create incentives for parties to detour from proven approaches that have fostered efficiency, effectiveness, and even a degree of cooperation across multiple MDLs. The panel’s decision is thus a precedent-setting error of exceptional public importance.

The debates about the MDL venue (in cases the JPML finds appropriate for coordination) will, in turn, no longer focus on efficiency-related factors such as location of witnesses and evidence. See David F. Herr, Multidistrict Litigation Manual § 6:5 (2021) (“The Panel has frequently considered the location of documents and witnesses in selecting a transferee district.”). Instead, the Panel will have to wrestle with the possible placement of the cases within a circuit that permits the novel, reverse-course, application of collateral estoppel to bellwether case outcomes, as opposed to the majority of candidate courts that recognize the fairness, notice, due process and practical concerns that should prevent its use. E.g., In re Chevron U.S.A., Inc., 109 F.3d 1016, 1020 (5th Cir. 1997).

Like a solar eclipse the shadow of this unfair possibility will affect MDL discovery (need more), jury verdict forms in bellwethers (must be more specific), and the availability of cases for trial in light of Lexecon (why would a defendant ever consent/waive now?). Most importantly, as Judge Batchelder recognized, dissenting in relevant part, the panel’s decision “essentially guts the utility of informational bellwether trials.” In re E. I. du Pont de Nemours & Co. C-8 Pers. Injury Litig., 54 F.4th 912, 944 (6th Cir. 2022) (Batchelder, J., concurring part and dissenting in part). The bellwether process has become one of the most widely used and effective tools at an MDL court’s disposal.

Let’s hope the cert petition finds receptive ears.