Reluctance or Apathy? Examining Georgia's Continued Adherence to a Strict Mutuality Issue Preclusion Doctrine

• Publication year: 2021

Reluctance Or Apathy? Examining Georgia's Continued Adherence to a Strict Mutuality Issue Preclusion Doctrine

Boris W. Gautier
Georgia State University College of Law, bgautier1@student.gsu.edu

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RELUCTANCE OR APATHY? EXAMINING GEORGIA'S CONTINUED ADHERENCE TO A STRICT MUTUALITY ISSUE PRECLUSION DOCTRINE

Boris W. Gautier^*

Abstract

The common law doctrine of issue preclusion, also known as collateral estoppel, prevents parties from relitigating an issue in subsequent lawsuits if a prior judgment already conclusively decided the issue. Issue preclusion traditionally required strict mutuality of parties; the first and second lawsuits had to involve the exact same litigants. Although the majority of jurisdictions now allow nonmutual issue preclusion, Georgia continues to enforce "identity of parties" as a necessary element of issue preclusion. Despite recently reaffirming this requirement, the Georgia Supreme Court has not thoroughly analyzed the merits of the rule.

This Note examines the evolution of issue preclusion and the mutuality element in federal and state courts, distinguishes offensive and defensive assertions of issue preclusion, contrasts Georgia with other jurisdictions, considers policy arguments, and explores why the Georgia Supreme Court has not addressed the nationwide trend towards allowing nonmutual issue preclusion. The Note argues for changing Georgia law to allow nonmutual issue preclusion in civil litigation and advises practitioners on practical avenues for achieving that goal.

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CONTENTS

Introduction................................................................................543

I. Background............................................................................547

A. Federal Law........................................................................549

1. The Evolution of Federal Law......................................550
2. Choice of Law in Federal Courts.................................555

B. Other States.........................................................................556
C. Georgia Law ....................................................................... 559

II. Analysis..................................................................................561

A. Policy Considerations Favor Abandoning Strict Mutuality 562

1. Purposes of Issue Preclusion Generally.......................562
2. Nonmutual Defensive vs. Nonmutual Offensive Policy Considerations .............................................................. 563
3. The Maine Supreme Court Provides More than a Century of Sound Policy Analysis Supporting Nonmutual Preclusion.....................................................................568
4. States Choosing to Retain Mutuality Fail to Articulate Any Novel Rationales....................................................571

B. Distinguishing Mutuality from Privity ................................ 572
C. Georgia Supreme Court Decisions ..................................... 575
D. Lower Courts in Georgia .................................................... 579

1. Evolution of Mutuality Law in the Georgia Court of Appeals.......................................................................... 580
2. Georgia Trial Courts .................................................... 583

E. Missed Opportunities by Georgia Litigants........................584

III. Proposal..................................................................................586

A. Georgia-Specific Policy Considerations ............................ 588

1. Judicial Efficiency......................................................... 588
2. Economic Growth and Industry Protectionism............590
3. Predictability and Cross-Jurisdictional Consistency ... 591

B. How Practitioners Should Proceed .................................... 594
C. The Legislative Alternative ................................................. 599

Conclusion...................................................................................600

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Introduction

Lawyers and politicians often argue that someone who had a chance to formally prove or disprove something should not receive "another bite at the apple."¹ The common law principle of issue preclusion, also known as collateral estoppel,² turns that maxim into a procedural rule.³ Issue preclusion in civil cases "bars parties from relitigating issues of either fact or law that were adjudicated in an earlier proceeding."⁴ Practically, this doctrine means that if a court decided an issue in one lawsuit, then parties in a second lawsuit do not need to relitigate the same issue.⁵ Issue preclusion, unlike claim preclusion, is not necessarily case-dispositive but rather narrows the scope of the second suit by removing an issue from consideration.⁶

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Procedurally, a litigant may raise issue preclusion in a motion for summary judgment, another pleading, or in some circumstances, in a motion to dismiss.⁷

Traditionally, issue preclusion only applied if the first lawsuit and the second lawsuit both involved the same parties (or their privies) as direct adversaries to prevent parties from relitigating the same issue against one another over and over again.⁸ However, federal courts and the majority of states have disavowed this strict mutuality standard and now allow a new litigant—a stranger to the prior action—to assert issue preclusion in the second lawsuit against an adversary that was a party to the first lawsuit.⁹ Under this modern

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trend, a new defendant can use issue preclusion against a party to the first lawsuit (nonmutual defensive issue preclusion), and in some jurisdictions, a new plaintiff can also use issue preclusion against a party to the first lawsuit (nonmutual offensive issue preclusion).¹⁰ In all cases, parties can only use issue preclusion against someone who was a party to the first lawsuit because of due process concerns.¹¹ Thus, the key question in application of mutuality doctrines is "[b]y (not against) whom can [issue] preclusion be asserted?"¹² A court's analysis will depend on whether a defendant or a plaintiff asserts issue preclusion.¹³

Although most states have followed the modern trend towards abandoning strict mutuality and at least allowing nonmutual defensive issue preclusion, the Georgia supreme court has not addressed the issue.¹⁴ Despite a clear plea following a thorough analysis by the Georgia court of Appeals, the Georgia supreme court declined to consider whether Georgia should join the vast majority of states and allow nonmutual defensive issue preclusion.¹⁵ In Georgia, "collateral estoppel requires the identity of the parties or their privies in both actions."¹⁶ In other words, Georgia is part of a

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slimming minority of jurisdictions that still require strict mutuality of parties or their privies for issue preclusion to bar or merge an issue in a second lawsuit.¹⁷

Determining the proper scope of mutuality is not merely an academic exercise.¹⁸ Preclusion law also implicates economic concerns for both individuals and industry.¹⁹ For instance, if multiple corporate defendants must each separately litigate the same issue of liability for the same plaintiff's alleged injury, then they will need to expend resources to cover these duplicative litigation costs.²⁰ In contrast, under a nonmutual defensive preclusion regime, if a jury finds the plaintiff caused her own injuries, then each subsequent defendant can rely on that judgment and preclude the causation issue from relitigation at the second trial—potentially saving the company-defendant thousands of dollars in expenses such as the costs of experts, depositions, and attorney's fees.²¹ Given Georgia's

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growing economy and current policy directives favoring business development, the economic reasons for abandoning mutuality are especially relevant to the state.²² By furthering the policies of predictability, finality, repose, and efficiency, nonmutual defensive issue preclusion promotes economic growth while still protecting due process and an injured plaintiff's first "bite of the apple."²³

This Note examines the implications of Georgia's continuing use of this strict mutuality standard in civil suits. Part I of the Note provides background into the history of common law issue preclusion and the trend towards nonmutual defensive and nonmutual offensive applications in federal courts and other states, as well as the current status of Georgia law. Part II provides a discussion of policy reasons in favor of and in opposition to changing the mutuality standard, further analysis of Georgia law compared with other jurisdictions, and an examination of prior attempts by practitioners to raise the matter to the Georgia Supreme Court. Part III discusses why Georgia should adopt a nonmutual defensive issue preclusion standard and the best practical avenues to achieve that goal.

I. Background

In addition to some form of mutuality or limited nonmutuality, the black letter law elements of issue preclusion include: (1) both actions involved an identical issue; (2) the issue was actually litigated and decided in the first action; (3) the parties in the first action had a full

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and fair opportunity to litigate the issue; and (4) the first action was adjudicated as a valid final judgment on the merits.²⁴ Because of due process concerns, issue preclusion can only ever be asserted against a party to the first action; the Constitution affords each party its day in court.²⁵ Thus, if a party did not have an opportunity to litigate the issue, preclusion doctrines do not apply.²⁶ Mutuality—the final element of issue preclusion and the subject of this Note—involves which parties may assert issue preclusion.²⁷

The mutuality element of issue preclusion has three general variations: strict mutuality, nonmutual defensive, and nonmutual offensive.²⁸ Historically, courts applied the strict mutuality standard (sometimes itself called...