We came to you a few weeks ago on the topic of collateral estoppel. Not the most exciting doctrine as far as equitable doctrines go, but collateral estoppel has gained greater currency in drug and medical device litigation because of the nature of the mass proceedings in which we often find ourselves. Whether at the state or federal level, litigation begets more litigation, and where there are significant inventories of cases involving similar products, there will be one case after another. Throw into the mix the trend of selecting test cases and setting “bellwether” trials, and plaintiffs inevitably will argue that a result in their favor in one case should legally bind the defendant in the next. Never mind that neither plaintiffs nor courts would ever tolerate the reverse – a defendant binding future plaintiffs to defense wins and precluding them from presenting their cases. Due process would not permit that so-called “non-mutual” collateral estoppel against plaintiffs who were not parties to the first proceeding, yet when unrelated plaintiffs assert collateral estoppel against defendants, they seem to get a hearing. Before we said this reminds us of “head I win, tails you lose.” Perhaps more precisely we should say “heads you lose, tails I get to try again.”
Fortunately for the sake of justice, plaintiffs almost never win at this tactic, and defendants almost always have a fair opportunity to defend their products. The latest example is yet another pretrial ruling involving Aredia and Zometa. In a case called Dopson-Troutt v. Novartis Pharmaceuticals Corp., No. 8:06-cv-1708-T-24-EAJ, 2013 WL 5304059 (M.D. Fla. Sept. 20, 2013), the plaintiff alleged that treatment with Aredia and Zometa resulted in jaw pain caused by osteonecrosis of the jaw (“ONJ”), and among her motions in limine was a motion to prohibit the defendant manufacturer from introducing argument or evidence that the product does not cause ONJ. In other words, the plaintiff wanted the court to preclude the defendant from contesting general causation, which is kind of a big deal in a prescription drug product liability case. Id. at **1-2.
We pause to note that the plaintiff was somewhat cagey in describing her proposed basis for estopping the defendant. According to the plaintiff, “[I]n the course of twelve trials to verdict [the defendant] has lost this issue in every case where the jury reached it.” Id. at *1. As we are fond of saying at moments like this, Hmm. That is not how we heard it, and we have been listening pretty carefully (e.g., here and here) to litigation involving these products. The defendant predictably set the record straight by disclosing that it had actually won seven of the twelve trials and that only one case had involved a special verdict form in which the jury found general causation. Id. at *2. This factual clarification makes a difference. As readers will recall from Professor Currie’s famous hypothetical, collateral estoppel threatens injustice when unrelated plaintiffs attempt to apply a single verdict offensively to preclude litigation in numerous similar cases. The plaintiff in Dopson-Troutt was clearly aware of this because she attempted to create the illusion that the defendant had lost on general causation numerous times (“in every case where the jury reached it.”). In fact, it was only one case, so hats off to the defendant for holding its ground and to the court for recognizing the plaintiff’s sleight of hand.
In rejecting collateral estoppel and allowing the defendant to contest general causation, the court set forth reasoning that will apply in most cases of this type. First, the court “disagree[d] that the jury verdict forms establish that [the defendant] lost the general causation issue in every case.” Id. Thank you. See above discussion. Second, the court could not tell from the verdicts precisely what the earlier juries had found. It did not have all the facts from the earlier trials, and the time periods relevant to the various cases were potentially different. Id. Scientific knowledge changes over time, and the plaintiff had not addressed whether she had taken the drug at times different from other plaintiffs or whether the scientific knowledge relevant to her case would be different from that presented in others. Id. In a case where liability depended on an alleged failure-to-warn, a prior jury’s finding could be entirely off point.
Third, the court found that precluding the defendant from contesting general causation would not promote equity because the defendant would still have the right to contest specific causation, i.e., whether use of the drug caused ONJ in this specific patient. Because general causation is a component of specific causation and the two cannot be neatly separated, the defendant argued that it would be “unworkable” to preclude it from contesting one but not the other. Id. The court agreed, reasoning that general causation would have to be explained to the jury anyway and that “prohibiting the defendant from offering evidence on or contesting general causation would confuse the jury, unfairly prejudice [the defendant], and save little time.” Id.
This is a gratifying order not only because it reaches the right result, but because the plaintiff tried to invoke equity and bend the truth at the same time, and she got caught. It calls to mind another equitable doctrine that really does not apply in this context, but that we will call out nonetheless: The clean hands doctrine, under which he who comes into equity must come with clean hands. The opinion also emphasizes that even when the elements of collateral estoppel are met (and here they were not), courts still have discretion, and they should not exercise their discretion to preclude defendants from defending their products where doing so would be unfair and promises no equity. As the court put it, “[T]he Court has broad discretion in determining whether to apply offensive collateral estoppel. . . . The Court declines to exercise that discretion in this case.” Id.