Kaufman and Montenegro Suggest Strategies for Countering Collateral Estoppel in Mass Tort Product Liability Cases

Shook Partner Chris Kaufman and Associate Mayela Montenegro have authored an article for DRI's Rx For the Defense newsletter providing insight into how companies can defend against collateral estoppel. "In mass tort product liability litigation, the plaintiffs’ bar often has hundreds—if not thousands—of opportunities to secure a single jury verdict finding that the product at issue is somehow defective in its design, manufacture, and/or warnings," they write. "And if/when such a verdict is reached, some plaintiffs have sought to offensively invoke the doctrine of collateral estoppel in a non-mutual setting to establish that the product is now defective as a matter of law—thereby precluding manufacturers from re-litigating the issue of defect in all subsequent cases. If successful, the only remaining issues to litigate in future cases would be specific causation and damages."

Kaufman and Montenegro provide several strategies for identifying weaknesses in plaintiffs' arguments for collateral estoppel, including that the issues in each case are not identical. "[E]ven small differences in the products at issue have the potential to have a meaningful impact on whether the issues between the prior case and the present case are identical to warrant application of collateral estoppel," they explain. In addition, companies can point out "differences in the product defect and causation theories (usually offered by expert witnesses) to illustrate why the issues in the prior verdict are not identical to those in the present case. Differences in the expert witnesses themselves and nuanced differences in their experience, opinions, and bases for their opinions may also provide a basis to argue that the issues are not identical."

'If every plaintiff could invoke collateral estoppel against a product manufacturer based on a single, prior adverse verdict, mass torts and federal multidistrict litigation (“MDL”) would not exist in their current form. Offensive use of the doctrine would obviate the need for coordinated proceedings once a verdict in favor of a single plaintiff is reached," the authors conclude. "[M]anufacturers should remain vigilant to attempts by plaintiffs to establish the existence of a product defect as a matter of law."