Chapter 4 Procedural Issues Unique to a Products Liability Lawsuit Collateral Estoppel Statute of Limitations and Jurisdiction
| Jurisdiction | New York |
I. COLLATERAL ESTOPPEL
Collateral estoppel, otherwise known as “issue preclusion,” prevents a party from relitigating an issue that the party had a full and fair opportunity to litigate in an earlier action. Presently in New York, collateral estoppel may be used both defensively and offensively. Collateral estoppel is used defensively to preclude a plaintiff from relitigating an issue that the plaintiff had unsuccessfully litigated in an earlier action against another defendant—in this way, it prevents a plaintiff from relitigating the identical issue by merely switching adversaries. The doctrine is used offensively when an attacking party uses a prior issue, which was successfully decided in its favor, to support the party’s affirmative thrust in the case and prevent the defendant from relitigating this issue, which it had previously litigated unsuccessfully 773
A party’s use of collateral estoppel is particularly relevant in products liability actions, especially in diethylstilbestrol (DES), asbestos and design defect litigation, where a plaintiff will attempt to use an issue that was decided against the product manufacturer in a prior proceeding. If successful, the plaintiff, usually a nonparty to the original action, will foreclose any further litigation of the prior issue, and the issue will be deemed to have been decided against the defendant in the current suit as well. Collateral estoppel in products liability actions is especially important because once issues impacting on liability (i.e., causation, notice, defective design) have been necessarily and finally decided, they can readily be used in subsequent proceedings 774
The leading New York case addressing the applicability of collateral estoppel in products liability actions is Vincent v. Thompson 775 In Vincent, the plaintiffs brought an action for injuries allegedly caused by taking the defendant manufacturer’s Quadrigen, alleged to be a dangerously defective and improperly tested vaccine. The plaintiffs, both nonparties to a prior lawsuit, sought to collaterally estop defendant Parke Davis from litigating an issue previously decided against it—namely, that Quadrigen was not dangerously defective or improperly tested. If collaterally estopped, Parke Davis would be precluded from arguing that Quadrigen was not defective
The Second Department, reversing the lower court finding that Parke Davis was collaterally estopped, 776 articulated the scope, purpose, and requisites of the doctrine as follows:
PURPOSE: To foreclose repetitious litigation and conserve judicial resources.
ELEMENTS: (1) There must be an identity of issue that has necessarily been decided in the prior action and is decisive of the present action; and (2) there must have been a full and fair opportunity to contest the decision now said to be controlling.
BURDENS: The party seeking to invoke the benefit of collateral estoppel bears the initial burden of showing that a particular issue is identical, necessarily decided in the prior action and is decisive of the present action. Once the moving party has done so, the burden then shifts to the opposing party to show a prior absence of a full and fair opportunity to litigate that issue.
CAVEAT: A court will scrutinize offensive nonmutual use of collateral estoppel (i.e., where the doctrine is invoked by a person who was neither a party to nor in privity777 with a party to the first case) to ensure that no unfairness will result to the prior litigant if the estoppel is applied.778
A. Plaintiff Strategies—Mounting an Offensive,
Nonmutual Attack
The plaintiff’s goal is to convince the court that the same issue was litigated and decided in a prior action, and that the court should collaterally estop relitigation of the issue in the interests of efficiency, preservation of judicial resources and prevention of needless litigation.
Under the old rule in New York, the doctrine of mutuality of estoppel prevented a party from being bound in a subsequent action if the other party was not similarly bound. The reasoning, put simply, was that it was considered unfair to permit a party who was not bound by a prior case to take advantage of that decision. The Court of Appeals, however, in B.R. DeWitt, Inc. v. Hall, 779 declared the doctrine a “dead letter” and abandoned it completely. Thus, today, a nonparty may invoke collateral estoppel provided that the resisting party had the identical issue necessarily, fully and fairly litigated against it in a prior proceeding. It should be noted, however, that when one party was not a party to the prior proceeding, application of collateral estoppel is “nonmutual.” For a plaintiff who was not a party to the prior action, his or her offensive use of the doctrine will be closely scrutinized.
- (1) Is there a considerable overlap between the evidence or argument to be advanced in the second proceeding and that advanced in the first? (2) Does the new evidence or argument involve application of the same rule of law as that involved in the prior proceeding? (3) Could pretrial preparation and discovery in the first proceeding reasonably be expected to have embraced the matter to be presented.782
Collateral estoppel may be invoked only with respect to those issues that have been decided in a prior proceeding. In this way, collateral estoppel (issue preclusion) is differentiated from res judicata (claim preclusion) in that res judicata forecloses all claims and issues that might have been litigated previously. Collateral estoppel, on the other hand, treats as final only those issues actually and necessarily decided in a prior suit. 780
If the issue has not previously been litigated, there is no identity of issue between the present action and the prior determination. The first hurdle for a plaintiff, therefore, is to show that the issue in controversy in the present action is identical to that decided in a prior action. A helpful way of demonstrating identity of issue is to make use of special interrogatories, which require the jury to make a determination as to each issue in controversy. 781 Additionally, claims should be drafted to mirror those asserted and decided previously. One author has suggested a four-part inquiry to determine identity of issues:
Once identity is found, the plaintiff must next show that the issue was actually and necessarily litigated in the prior proceeding. An issue is not “actually” or “necessarily” litigated if there has been a default judgment, a confession or admission of liability, a failure to place a matter in issue by proper pleading or a stipulation. 783 Collateral estoppel will apply to any prior proceeding in which each of the doctrine’s requisites may be found to have existed. Accordingly, collateral estoppel has been applied to the quasijudicial determinations of administrative agencies and administrative law judges. 784
A judgment need not be “final” and appealable within the meaning of 28 U.S.C. § 1291 in order for collateral estoppel to apply. The Second Circuit has stated, “‘Finality’ in the context [of collateral estoppel] may mean little more than that the litigation of a particular issue has reached such a stage that a court sees no really good reason for permitting it to be litigated again.” 785 There is a question, however, of whether the issue to be precluded must have been “necessary” to the prior judgment and actually litigated. As stated by the U.S. Supreme Court, collateral estoppel “makes conclusive in subsequent proceedings only those determinations of fact, and mixed fact and law, that were essential to the decision.” 786 However, this holding is called into question by the Court’s later decision in Burks v. United States. 787
B. Defendant Strategies—Defeating an Offensive,
Nonmutual Attack
- an exploration of the various elements which make up the realities of the litigation. A comprehensive list of the various factors which should enter into a determination whether a party has had his day in court would include such considerations as the size of the claim, the forum of the prior litigation, the use of initiative, the extent of the litigation, the competence and experience of counsel, the availability of new evidence, indications of a compromise verdict, differences in the applicable law and foreseeability of future litigation.790
The defendant’s goal is to convince the court that the issue in the present case is not identical to the previous one, that it was not necessarily and actually litigated or that the defendant did not have a full and fair opportunity to litigate.
The best way to defeat an offensive, nonmutual collateral attack is by having won the prior lawsuit. Barring such an outcome, the defendant’s strategy will be to demonstrate lack of identity of issue or the absence of a full and fair opportunity to contest the decision now alleged to be controlling.
In showing lack of identity, a general verdict is useful. General verdicts, as opposed to special interrogatories, may effectively mask the jury’s findings on either a particular element of liability or on the very basis of the jury’s decision. It has been observed that “the opacity of a general verdict creates a natural obstacle to claims of issue preclusion.” 788 In Schwartz v. Public Administrator of the County of Bronx, 789 the New York Court of Appeals set the standard for determining whether a party has had a full and fair opportunity to litigate an issue. Such a determination requires
A substantial disparity between the size of the claims (i.e., the amounts demanded) in the present and prior case will militate against the imposition of collateral estoppel on...
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