The Sixth Circuit recently affirmed a district court’s application of nonmutual offensive collateral estoppel to negligence claims arising out of an MDL—potentially raising the stakes for bellwether trials that are not considered binding by the district court at the outset and the impact that rulings in those cases could have on later decisions.

The case involved a complicated procedural history.  Before the filing of this suit, DuPont entered into a unique class-wide settlement agreement subject to the following terms:  (i) the plaintiffs could bring individual personal injury and wrongful death claims against DuPont based only on claims where a panel of scientists determined a “Probable Link finding” between exposure to a chemical, C-8, and a particular disease; and (ii) DuPont agreed not to contest general causation in those cases but retained its right to contest specific causation.  After the scientific panel made a “Probable Link finding” for six diseases, 3,500 cases were consolidated into an MDL in the Southern District of Ohio.  DuPont lost the first two bellwether trials.  It appealed one of those trials on the basis that the district court had engaged in a “threshold contract interpretation error [that] eliminated the heart of a critical defense for DuPont,” but later settled the remaining MDL cases, and ultimately withdrew its appeal (after oral argument) following those settlements.

Following the MDL settlement, the Abbott plaintiffs filed this suit, and the district court granted partial summary judgment in favor of plaintiffs’ negligence claims.  It did so on offensive collateral estoppel grounds—i.e., the outcome of the prior unanimously resolved jury trials in favor of different plaintiffs in the MDL (as to the same questions of duty, breach, and foreseeability) was binding as to the Abbott plaintiffs’ negligence claims. 

On appeal, the Sixth Circuit rejected DuPont’s argument that additional due process constraints should be applied where plaintiffs assert offensive collateral estoppel in a subsequent mass tort proceeding.  See In re E. I. du Pont de Nemours & Co. C-8 Pers. Inj. Litig., 2022 WL 17413892, at *10–11 (6th Cir. Dec. 5, 2022).  Instead, the Court held that trial courts have “broad discretion” and concluded that under Ohio law and the Supreme Court’s guidance in Parklane Hosiery Co. v. Shore, 439 U.S. 322 (1979), all factors—e.g., DuPont vigorously litigated the same negligence claims in prior trials, selected half of the bellwether cases, and engaged in similar conduct in relation to all bellwether plaintiffs—weighed in favor of collateral estoppel. 

The Sixth Circuit also rejected DuPont’s argument that the trial court erred in excluding DuPont’s expert testimony contesting plaintiffs’ proof of general causation, finding that such testimony was offered in violation of the settlement agreement.  Notably, the Court explained that because DuPont failed to challenge the district court’s collateral estoppel order in this appeal, the argument that the district court improperly applied collateral estoppel to the contract-interpretation issue was forfeited.

While class-action settlements may allow defendants in mass tort cases to narrow certain issues before trial, defendants should be careful when limiting claims to ensure that key defenses—such as causation—are adequately preserved.  That is particularly true in light of the Sixth Circuit’s ruling that offensive nonmutual collateral estoppel may be applied in subsequent proceedings, even where prior bellwether trials were not considered binding at the outset. 

Photo of Andrew Soukup Andrew Soukup

Andrew Soukup has a wide-ranging complex litigation practice representing highly regulated businesses in class actions and other high-stakes disputes. He has built a successful record of defending clients from consumer protection claims asserted in class-action lawsuits and other multistate proceedings, many of which…

Andrew Soukup has a wide-ranging complex litigation practice representing highly regulated businesses in class actions and other high-stakes disputes. He has built a successful record of defending clients from consumer protection claims asserted in class-action lawsuits and other multistate proceedings, many of which were defeated through dispositive pre-trial motions.
Andrew is co-chair of the firm’s Class Action Litigation practice group.

Andrew has helped his clients achieve successful outcomes at all stages of litigation, including through trial and appeal. He has helped his clients prevail in litigation against putative class representatives, government agencies, and commercial entities. Representative victories include:

  • Delivered wins in multiple nationwide class actions on behalf of large financial companies related to fees, disclosures, and other banking practices, including the successful defense of numerous lenders accused of violating the Paycheck Protection Program’s implementing laws, which contributed to Covington’s recent recognition as a “Class Action Group Of The Year.”
  • Successfully defending several of the nation’s leading financial institutions in a wide variety of litigation and arbitration proceedings involving alleged violations of RICO, FCRA, TILA, TCPA, FCBA, ECOA, EFTA, FACTA, and state consumer protection and unfair and deceptive acts or practices statutes, as well as claims involving breach of contract, fraud, unjust enrichment, and other torts.
  • Successfully defended several of the nation’s leading companies and brands from claims that they deceptively marketed their products, including claims brought under state consumer protection and unfair deceptive acts or practices statutes.
  • Obtained favorable outcomes for numerous clients in commercial disputes raising contract, fraud, and other business tort claims.

Because many of Andrew’s clients are subject to extensive federal regulation and oversight, Andrew has significant experience successfully invoking federal preemption to defeat litigation.

Andrew also advises clients on their arbitration agreements. He has successfully helped numerous clients avoid multi-district class-action litigation by successfully enforcing the institutions’ arbitration agreements.

Clients praise Andrew for his personal attention to their matters, his responsiveness, and his creative strategies. Based on his “big wins in his class action practice,” Law360 named Mr. Soukup a “Class Action Rising Star.

Prior to practicing law, Andrew worked as a journalist.