Travis Abbott v. E. I. du Pont de Nemours & Co.

Court of Appeals for the Sixth Circuit
54 F.4th 912 (2022)

ELI5:

Rule of Law:

Nonmutual offensive collateral estoppel may be applied in mass tort multidistrict litigation when state law collateral estoppel requirements and the Parklane Hosiery Co. v. Shore fairness factors are met, without an additional express representativeness inquiry for bellwether plaintiffs. Furthermore, under Ohio law, a cause of action for latent bodily injury from toxic exposure accrues when a plaintiff receives a definitive medical diagnosis or reasonably should have known the injury was linked to exposure, not upon earlier suspicions or general public awareness.

Facts:

In the 1950s, E. I. du Pont de Nemours & Co. (DuPont) began discharging C-8, a "forever chemical," into the Ohio River, landfills, and the air surrounding its West Virginia plant, contaminating local communities' water sources.
By the 1960s, DuPont learned that C-8 was toxic to animals and was contaminating groundwater; by the 1980s, it internally considered C-8 a potential human carcinogen and found it persisted in the human bloodstream for years.
Despite warnings from its C-8 supplier and internal knowledge of the chemical's toxicity, DuPont increased its C-8 discharges between 1984 and 2000.
By the early 2000s, evidence confirmed that C-8 exposure caused several diseases among community members who drank the contaminated water.
Travis Abbott, a plaintiff, lived and worked in Pomeroy, Ohio, and was exposed to C-8 contaminated water at home and in his community for approximately 20 years, starting at age six.
In 1994, at age 16, Travis Abbott was diagnosed with testicular cancer after doctors surgically removed a mass from his left testicle.
In October 2015, Travis Abbott sought medical help for pain in his remaining testicle and was definitively diagnosed with recurrent testicular cancer on November 16, 2015, after surgery and pathology analysis.

Procedural Posture:

In the early 2000s, individuals who had consumed water contaminated with C-8 sued DuPont in West Virginia state court in Leach v. E. I. du Pont de Nemours & Co.
In 2002, the West Virginia trial court certified a class of nearly 80,000 individuals whose drinking water was contaminated by DuPont's C-8 discharges.
In 2005, the trial court approved a class-wide settlement agreement, known as the Leach Agreement, which included funding for a Science Panel to study C-8's health effects.
Following the Science Panel's Probable Link findings in 2012 for six diseases, approximately 3,500 Leach class members with linked diseases filed personal injury cases against DuPont.
At DuPont's request, these cases were consolidated in a Multidistrict Litigation (MDL) in the United States District Court for the Southern District of Ohio.
The MDL court, with party participation, selected six bellwether cases for trial, three by plaintiffs and three by DuPont.
The first bellwether trial, Bartlett v. DuPont (a case selected by DuPont), resulted in a jury verdict of $1.6 million in compensatory damages against DuPont for kidney cancer.
The second bellwether trial, Freeman v. Dupont (a case selected by Plaintiffs), resulted in a jury verdict for Freeman for testicular cancer.
DuPont settled the remaining bellwether cases.
A post-bellwether trial, Vigneron v. DuPont (selected by Plaintiffs' Steering Committee), resulted in a jury verdict of $2 million in compensatory damages for the plaintiff.
DuPont appealed the Bartlett case to the Sixth Circuit, arguing errors in Leach Agreement interpretation and evidentiary rulings, but later withdrew the appeal after settling with the remaining MDL cases in February 2017.
Travis and Julie Abbott, as Leach class members, filed their personal injury lawsuit against DuPont in November 2017 in the United States District Court for the Southern District of Ohio, which was consolidated with the MDL.
The district court consolidated the Abbotts’ case with the Swartzes’ for a joint trial.
The district court granted partial summary judgment to the Abbotts on the duty, breach, and foreseeability elements of Travis Abbott’s negligence claims based on collateral estoppel, and held that collateral estoppel precluded DuPont from relitigating the interpretation of the Leach Agreement and the inapplicability of the Ohio Tort Reform Act to Travis Abbott’s claims.
In evidentiary rulings, the district court prohibited DuPont from offering evidence and testimony that would violate the Leach Agreement, including testimony asserting Travis Abbott’s C-8 exposure was insufficient to cause his cancers, and rejected DuPont’s motion for a directed verdict on its statute-of-limitations defense.
In January 2020, the jury found for Travis and Julie Abbott, awarding them $40 million and $10 million in damages, respectively.
The district court applied the Ohio Tort Reform Act to Julie Abbott’s award, reducing it to $250,000.
DuPont appealed these district court decisions to the Sixth Circuit.

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Issue:

Does the application of nonmutual offensive collateral estoppel to issues of duty, breach, and foreseeability in negligence claims within mass tort multidistrict litigation, based on prior bellwether trial verdicts, violate Ohio's collateral estoppel law or due process, particularly regarding the representativeness of bellwether plaintiffs or the specificity of general verdicts, and did the district court err in its evidentiary rulings or denial of a directed verdict on a statute of limitations defense?

Opinions:

Majority - Jane B. Stranch

Yes, the application of nonmutual offensive collateral estoppel to negligence elements and the inapplicability of the Ohio Tort Reform Act, based on prior bellwether trial verdicts, is permissible under Ohio law and due process in mass tort multidistrict litigation; the district court also did not abuse its discretion in evidentiary rulings or in denying a directed verdict on a statute of limitations defense for latent injuries. The court first found that the district court properly applied Ohio's collateral estoppel factors: the issues of duty, breach, and foreseeability were actually and necessarily litigated in the prior bellwether trials (Bartlett, Freeman, and Vigneron), the verdicts were final, and DuPont had a full and fair opportunity to litigate these issues. The factual differences among the cases were not legally significant, as the jury instructions for negligence focused on DuPont's conduct, not the unique circumstances of each plaintiff. The court then addressed the Parklane Hosiery Co. v. Shore fairness factors, concluding they did not weigh against estoppel. DuPont’s ability to select bellwether cases mitigated "wait and see" concerns, it had every incentive to defend vigorously, there were no inconsistent prior judgments, and DuPont identified no new procedural opportunities. The court rejected the argument that an additional "representativeness" safeguard is required for bellwether plaintiffs beyond the Parklane factors. Regarding evidentiary rulings, the court affirmed that DuPont forfeited its challenge to the collateral estoppel application concerning the interpretation of the Leach Agreement. On the merits, the district court correctly interpreted the Leach Agreement's bargained-for exchange: once the Science Panel found a "Probable Link" between C-8 exposure (at 0.05 ppb or more) and a disease, DuPont could not contest general causation for that disease among class members. Therefore, evidence suggesting that a plaintiff's specific C-8 dose was insufficient to cause the linked disease was properly excluded as undermining the general causation agreement. The court also found no abuse of discretion in allowing the plaintiff's specific causation expert, who used differential diagnosis and relied on the Science Panel's determination of general causation, or in excluding DuPont's specific causation expert who failed to rule in C-8 as a possible cause. Finally, the court affirmed the denial of DuPont's statute of limitations defense. Under Ohio's discovery rule for latent bodily injuries, the cause of action accrues when the plaintiff receives a definitive medical diagnosis or reasonably should have known the injury was related to exposure. For Travis Abbott's 2015 cancer, the definitive diagnosis date (November 16, 2015) was the accrual date, not earlier indications of probable cancer, to avoid fairness issues for class members. For the 1994 cancer, while DuPont presented circumstantial evidence of public awareness, it did not directly refute Abbott's testimony that he only learned of the C-8/cancer link in late 2015. The court found that requiring a jury to draw multiple inferences from this circumstantial evidence to conclude Abbott "should have known" earlier was unwarranted, upholding the district court's directed verdict.

Concurring in part and dissenting in part - Alice M. Batchelder

No, the application of nonmutual offensive collateral estoppel in this mass tort multidistrict litigation was inappropriate because due process requires an additional safeguard ensuring bellwether plaintiffs are reasonably representative, which did not occur here, and the general verdicts from the prior trials lacked the specificity required to bind subsequent cases. The district court also erred by taking DuPont’s statute-of-limitations defense for Abbott’s 1994 cancer away from the jury. Justice Batchelder argued that fundamental notions of due process in mass-tort multidistrict litigation require an additional safeguard: before a court can issue a collateral estoppel order against a defendant based on a small number of bellwether trials, it must assure that the cases estopped are reasonably representative of the first cases tried. She cited In re Chevron U.S.A., Inc., emphasizing that bellwethers are informational and meant to be representative, and that the district court here made no effort to ensure representativeness, allowing parties to select their strongest cases. She also contended that the district court implicitly changed course after initially stating bellwethers would be non-binding. Furthermore, Justice Batchelder argued that the bellwether trials' general verdict forms, which merely asked if the jury found for the plaintiff on negligence, lacked the specificity required for collateral estoppel. Such general verdicts do not provide insight into the specific theories of negligence or acts/omissions the jury decided upon, making it impossible to determine what issues were "actually and necessarily litigated and determined." She noted that legally significant factual differences (e.g., plaintiff's location, exposure length/timing, DuPont's specific knowledge) among the bellwether plaintiffs and the broader class affect duty and foreseeability, rendering widespread issue preclusion inappropriate. She concurred with the majority's evidentiary rulings but cautioned that specific dosage evidence, if used to question the likelihood of harm (specific causation) rather than the capability of harm (general causation), should be admissible. Finally, Justice Batchelder dissented from the majority's statute-of-limitations ruling for Abbott's 1994 cancer. She argued that Ohio Revised Code § 2305.10(B)(1)'s "should have known" language means constructive notice is sufficient to start the statute of limitations. The district court erred by requiring evidence of actual notice. She found that sufficient circumstantial evidence of constructive notice existed (widespread media coverage of C-8/cancer link, Abbott's participation in a C-8 Health Project, family lawsuits, public school meetings about Science Panel findings) to allow the jury to decide whether Abbott, through reasonable diligence, should have been aware of the link to his 1994 cancer before November 2015.

Analysis:

This case significantly clarifies the Sixth Circuit's stance on applying nonmutual offensive collateral estoppel in complex mass tort multidistrict litigation. It reaffirms that trial courts possess broad discretion under the Parklane Hosiery Co. v. Shore factors and Ohio law, explicitly rejecting the need for an additional, heightened "representativeness" safeguard for bellwether plaintiffs beyond the existing fairness inquiry. The ruling underscores the critical importance of precisely drafted settlement agreements, like the Leach Agreement, particularly how they define and allocate the burden of proof for general and specific causation, and how those definitions dictate admissible evidence in subsequent trials. Furthermore, the decision provides guidance on Ohio's discovery rule for latent injuries, emphasizing that a definitive medical diagnosis is key to accrual for subsequently discovered injuries, and that general public awareness or family litigation alone may be insufficient to establish constructive notice for statute of limitations purposes if not directly encountered by the plaintiff.

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