DISPOSITIVE MOTIONS ORDER NO. 34

Plaintiffs' Motion for Application of Issue Preclusion/Collateral Estoppel

EDMUND A. SARGUS, JR., District Judge.

This matter is before the Court on Plaintiffs' Renewed1 Motion for Partial Summary Judgment on the Application of the Doctrine of Issue Preclusion/Collateral Estoppel ("Plaintiffs' Renewed Motion") (In re: E.I. du Pont de Nemours and Company C-8 Personal Injury Litigation, 2:13-md-2433, MDL ECF No. 5274), Defendant DuPont de Nemours and Company's ("Defendant" or "DuPont") Memorandum in Opposition to Plaintiffs' Renewed Motion (MDL ECF No. 5278), Plaintiffs' Reply Brief in Support of their Renewed Motion (MDL ECF No. 5280), Defendant's Motion to File Sur-Reply Instanter (MDL ECF No. 5281), Defendant's Sur-Reply (MDL ECF No. 5281-1), Plaintiffs' Opposition to Defendant's Motion to File Sur-Reply Instanter (MDL ECF No. 5282), and Defendant's Reply Brief in Support of its Motion to File Sur-Reply Instanter (MDL ECF No. 5283). For the reasons set forth below, the Court GRANTS both motions. (MDL ECF Nos. 5274, 5281.)

I.

The facts underlying the cases in this multidistrict litigation ("MDL") were first brought before the judiciary over 20 years ago in a West Virginia state court case. The cases involve individual plaintiffs who are all part of a class certified 18 years ago that consisted of approximately 80,000 residents of Ohio and West Virginia who drank water contaminated by releases from DuPont's Washington Works facility. All the cases purport to be subject to a settlement agreement executed 15 years ago ("Leach Settlement Agreement") between the class and DuPont. The record in this Court spans six and one-half years, requiring two years of supplementary court staffing, docket entries exceeding 5,200 filings, including more than 450 decisions from the Court, four month-long jury trials with three trials going to verdicts all in favor of the plaintiffs—with nearly $9 million in liability damage awards on negligence claims and $11 million in punitive damage awards. DuPont appealed the verdicts in the first trial to the United States Court of Appeals for the Sixth Circuit, the appeal received full briefing, assignment of a judicial panel, and oral argument before the panel. DuPont withdrew the appeal before decision. On the same day the appeal was withdrawn, the fourth trial was ended in its third week without a verdict from the jury. DuPont filed notice with the Security and Exchange Commission ("SEC") of a $670.7 million global settlement of the 3500-plus then-pending cases, all of which were dismissed. Since that time, 50-plus post-settlement cases have been filed in this Court, with over 70 motions currently pending, and the first trial scheduled to commence in less than two months, on January 21, 2020.

In their Renewed Motion, Plaintiffs move for the application of collateral estoppel/issue preclusion on duty, breach, general causation, interpretation of the Leach Settlement Agreement, and the inapplicability of the Ohio Tort Reform Act to the cases currently pending before the Court in this MDL. Generally, the doctrine of issue preclusion bars successive litigation of an issue of fact or law actually litigated and resolved in a valid court determination essential to a prior judgment. Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 (1979); Goodson v. McDonough Power Equip., Inc., 2 Ohio St.3d 193, 195 (1983). "By `preclud[ing] parties from contesting matters that they have had a full and fair opportunity to litigate,'" collateral estoppel protects against "the expense and vexation attending multiple lawsuits, conserv[es] judicial resources, and foste[rs] reliance on judicial action by minimizing the possibility of inconsistent decisions." Taylor v. Sturgell, 553 U.S. 880, 892 (2008) (alterations in original) (quoting Montana v. United States, 440 U.S. 147, 153-54 (1979)).

The Court herein provides an overview of only the aspects of this case necessary to reach the issues presently before it.

A. West Virginia Lawsuits

In 1998, in a case styled Tennant v. E.I. du Pont de Nemours & Co., Inc., No. 6:99-0488 (S.D. W.Va.), discovery brought to light the fact that the drinking water supplies around DuPont's Washington Works facility in Parkersburg, West Virginia were contaminated with a synthetic perfluorinated carboxylic acid and fluorosurfactant also known as perfluorooctoanoic acid or ammonium perfluorooctanoate ("PFOA" or "C-8"). (Pls' Mot. for Partial Summ. J., Bilott Aff. Ex. B, MDL ECF No. 820-4.) C-8 is in "a family of human-made chemicals that do not occur naturally in the environment." (Public Health Statement at 3, Dept. of Health and Human Serv., Public Health Service Agency for Toxic Substances and Disease Registry, https://www.atsdr.cdc.gov/toxprofiles/tp200-c1-b.pdf.) C-8 "stays in the body for many years. It takes approximately 4 years for the level in the body to go down by half, even if no more is taken in." Id. Testimony before this Court, from experts presented by Plaintiffs and DuPont, indicates that the stability of C-8 prevents the breakdown not only in the human body, but also in the environment, resulting in half-life residuals of the chemical in a human body for decades of years. (See, e.g., Bartlett Tr. Transcript at 22, Carla Marie Bartlett v. E. I. du Pont de Nemours and Company, Case No. 2:13-cv-170, Bartlett ECF No. 127.)

Eighteen years ago, a group of individuals who had ingested the contaminated water in Ohio and West Virginia filed a class action in West Virginia state court: Leach v. E. I. Du Pont de Nemours & Co., No. 01-C-608 (W. Va. Cir. Ct. Wood County Aug. 31, 2001) ("Leach Case"). The Leach Case plaintiffs alleged that DuPont was liable under a variety of West Virginia common law tort theories for equitable, injunctive, and declaratory relief, along with compensatory and punitive damages, as a result of contaminating with C-8 the drinking water supplies of the communities surrounding Washington Works. DuPont did not, and still does not, dispute that from its Washington Works facility DuPont discharged C-8 into the water, air, and unlined landfills around the facility or that the landfills seeped C-8 into the soil, the Ohio river carried the C-8 down-river, and the air currents carried the ash that fell to the ground, all of which contributed to the contamination of the drinking water reservoirs.

After three years of litigating the Leach Case, including widespread discovery, extensive motion practice, and three appeals taken to the West Virginia Supreme Court of Appeals, the parties executed the Leach Settlement Agreement to effectuate a class-wide settlement of the Leach Case. (Leach Settlement Agreement ("S.A."), MDL ECF No. 820-8.)

In the Leach Settlement Agreement, the parties fashioned a unique procedure to determine whether the approximately 80,000 members of the Leach Class would be permitted to file actions against DuPont based on any of the human diseases they believed had been caused by their exposure to C-8 discharged from DuPont's Washington Works plant. The procedure required DuPont and the Leach Class to jointly select three completely independent, mutually-agreeable, and appropriately credentialed epidemiologists ("Science Panel") to study human disease among the Leach Class. The Leach Class consisted of those individuals who for at least one year, had "consumed drinking water containing .05 ppb or greater of C-8 attributable to releases from Washington Works." (S.A. § 2.1.1.)

Until the Science Panel reached its conclusions, the Leach Class members were not permitted to file any personal injury claims relating to C-8 exposure. For over seven years, the Science Panel conducted a massive epidemiological study costing over $24 million to determine whether any of the diseases suffered by members of the Leach Class were linked to their ingestion of C-8.

In 2012, the Science Panel delivered Probable Link Findings for six human diseases ("Linked Diseases"): kidney cancer, testicular cancer, thyroid disease, ulcerative colitis, diagnosed high cholesterol (hypercholesterolemia), and pregnancy-induced hypertension and preeclampsia. The Probable Link Finding means that for each Leach Class member it is more likely than not that there is a link between his or her exposure to C-8 (i.e., drinking water containing at least .05 ppb of C-8 for at least one year) and his or her Linked Disease.

In addition to the seven-year reprieve from defending any litigation related to its discharge of C-8 into the drinking water of approximately 80,000 people, DuPont received the benefit of No Probable Link Findings for 50 diseases also studied by the Science Panel. Once a No Probable Link Finding issued, DuPont was "forever discharge[d] from any and all claims, losses, damages, attorneys' fees, costs, and expenses, whether asserted or not, accrued or not, known or unknown, for personal injury and wrongful death...." (S.A. § 3.3) (emphasis added). In other words, under the terms of the Leach Settlement Agreement all of the Leach Class members who received a No Probable Link Finding were prohibited from filing a personal injury action against DuPont, regardless of whether any other study or expert disagreed with the Science Panel or later scientific studies were at odds with the Science Panel's No Probable Link Findings.

Under the Leach Settlement Agreement, the Leach Class and DuPont agreed that the members of the Leach Class who suffered from a Linked Disease were entitled to have the Probable Link Finding applied to them. That means that it is more likely than not that there is a link between the class members' exposure to C-8 and their Linked Disease, (i.e., the Probable Link Finding), and DuPont agreed not to contest whether C-8 is capable of causing the Linked Disease in that particular class member (general causation). DuPont retained the right to contest whether C-8 actually caused the Linked Disease in that particular class member (specific causation).

B. DuPont's Request for an MDL

In September 2012, a few months after issuance of the Probable Link Findings, the first case filed by a member of the Leach Class pursuant to the Leach Settlement Agreement was brought in this Court. At the same time, members of the Leach Class were filing cases in the federal district courts in West Virginia and Ohio as well as in state courts in West Virginia and Ohio.

On January 11, 2013, DuPont moved the Judicial Panel on Multidistrict Litigation ("JPML"), pursuant to 28 U.S.C. § 1407, for pretrial consolidation of the Leach Class cases, asserting that forming the MDL would "promote the just and efficient conduct of the actions," and because "consolidation in a single District will likely promote early and efficient resolution of all the cases." (Def's Mem. in Support of Mot. for Coordination and Consolidation at 7, JPML ECF No. 1-1.) DuPont argued in favor of consolidation, highlighting:

Id. at 1 (emphasis added). DuPont continued, stating:

Id. at 6.

Finally, DuPont addressed settlement of the cases, specifically asserting that it sought consolidation so that "[t]he transferee court will be able to explore various alternatives to resolve the case in an expeditious manner." Id.

On April 4, 2013, the JPML granted DuPont's request for centralization and chose this Court to preside over the MDL. In its Transfer Order (MDL ECF No. 1), the JPML indicated that the cases that make up this MDL, In Re: E. I. Du Pont De Nemours And Company C-8 Personal Injury Litigation, are a subset of cases that originated in the Leach Case. It held:

Id. at 1.

C. MDL

Through direct filing, removals, and Conditional Transfer Orders from the JPML, this Court ultimately had over 3,500 cases before it as part of this MDL. Beginning in the first month this MDL was centralized, the Court held monthly Case Management Conferences. The Court managed pretrial discovery and motion practice, issuing hundreds of Dispositive Motions Orders ("DMOs"), Case Management Orders ("CMOs"), Pretrial Orders ("PTO's), Discovery Orders, Evidentiary Orders, and written and oral Orders on Motions in Limine, many of which are specified individually in PTO 51. (PTO No. 51 at 6-15, MDL ECF No. 5214.)

1. DMO 1 and DMO 1-A: Collateral Estoppel and Contract Interpretation

The initial issues brought by the parties to this Court for disposition were issues that impacted all of the plaintiffs that were a part of this MDL. Specifically, Plaintiffs filed a Motion for Partial Summary Judgment (MDL ECF No. 820), asking this Court to apply the doctrine of collateral estoppel to certain issues established in the Leach Settlement Agreement. (MDL ECF No. 820-1.) DuPont filed a Counter Motion for Partial Summary Judgment Regarding Application of the Leach Settlement Agreement. (MDL ECF No. 1032.) In that motion, DuPont stated:

(Def's Mot. for Summ. J. at 1, MDL ECF No. 1032.)

In reply, Plaintiffs focused on the points of agreement between them and DuPont. (See Pls.' Reply at 4-10, MDL ECF No. 1152.) Specifically, that both agreed that the unambiguous language of the Leach Settlement Agreement was binding upon all parties to this MDL. Id. And, the Leach Settlement Agreement dictated the issues of class membership, the scope of general and specific causation, and the application of the Probable Link and No Probable Link Findings as those terms are defined in the Agreement. Id.

In deciding these cross-motions for summary judgment, the Court issued its first order on dispositive motions directing it to "ALL CASES," titling it: "DMO 1, Class Membership and Causation." (MDL ECF No. 1679.) In DMO 1, the Court denied DuPont's Counter Motion for Partial Summary Judgment Regarding Application of the Leach Settlement Agreement and granted in part Plaintiffs' Motion for Partial Summary Judgment.

With regard to class membership, the Court held:

(DMO 1, Class Membership and Causation at 7, MDL ECF No. 1679.)

As to causation, the Court reviewed both parties' interpretations of the Leach Settlement Agreement and analyses of its application to evidence of general and specific causation and concluded: "For several reasons, DuPont's analysis is not tenable under the Leach Settlement Agreement." Id. at 9. The Court then provided a detailed interpretation of the Leach Settlement Agreement, including the Probable Link Findings and the No Probable Link Findings, general and specific causation, and application of these terms to the members of the defined Leach Class.

Thereafter, DuPont filed a document titled: "DuPont's Overview Brief on Causation Issues," which reargued its positions related to interpretation of the Leach Settlement Agreement. (MDL ECF No. 2813.) On the same day, DuPont filed a Motion to Clarify DMO 1, which "incorporate[ed] by reference its separate Overview Brief on Causation Issues." (MDL ECF No. 2814.)

After full briefing, the Court issued DMO 1-A, which granted DuPont's Motion "to the extent it requested the Court to clarify DMO 1" and denied the Motion "in all other regards." (DMO 1-A, DuPont's Motion for Clarification of DMO 1, Class Membership and Causation at 11, MDL ECF No. 3972) ("Nothing DuPont brings before the Court in its Motion for Clarification or Overview of Causation calls into question any of the Court's analysis in DMO 1. However, the Court will provide further explanation of this important issue here and address the arguments DuPont highlights in its current briefing."). The Court then endeavored to articulate in more detail the terms of the Leach Settlement Agreement and explain again why DuPont's suggested interpretation was incorrect.

2. Ohio Tort Reform Act

Under the Ohio Tort Reform Act of 2004, effective April 7, 2005, the Ohio Revised Code was amended to, inter alia, cap the amount of noneconomic damages recoverable in tort actions and cap the amount of punitive damages. Ohio Rev. Code §§ 2315.1-21. This Court has considered whether this Act applies several times during the pendency of this MDL, and has consistently determined that the Tort Reform Act does not apply. (DMO 10, Order on Application of Ohio Tort Reform Act, MDL ECF No. 4215); (DMO 12, Order on Defendant's Motion for Judgment as a Matter of Law or, Alternatively, for a New Trial and Remittitur, MDL ECF No. 4306); (DMO 18, Order on DuPont's Motion for an Order to Apply Ohio Tort Reform Act, MDL ECF No. 4597); (DMO 23, Order on DuPont's Motion for an Order to Apply Ohio Tort Reform Act, MDL ECF No. 4931); (DMO 29, Order on DuPont's Motion for an Order to Apply Ohio Tort Reform Act, MDL ECF No. 5007).

3. Trials

Within the first few months of this MDL, the Court and the parties focused upon the selection of cases to be utilized as bellwether trials. The Manual for Complex Litigation, a litigation manual produced by federal judges for use by other judges, states that bellwether trials are meant to "produce a sufficient number of representative verdicts and settlements to enable the parties and the court to determine the nature and strength of the claims ... and what range of values the cases may have." The Manual for Complex Litigation, § 22.315.

By February 2014, the parties selected six representative cases to be utilized as the bellwether trials. (CMO 6, Identification & Selection of Discovery Pool Plaintiffs, MDL ECF No. 194); (CMO 7, Selection of the Initial Trial Cases and Expert Disclosures Schedule, MDL ECF No. 602). The Court ultimately accepted the six cases to serve as bellwether trials — three Plaintiffs' Steering Committee ("PSC") choices and three chosen by DuPont. (CMO 2, § VI, ECF No. 30; PTO 19, May 6, 2014 Conf. Order at 2, MDL ECF No. 265); (CMO 7, Selection of the Initial Trial Cases and Expert Disclosure Schedule, MDL ECF No. 602); (CMO 9, Pretrial Schedule for Initial Two Trial Cases, MDL ECF No. 3549); (CMO 10, Pretrial Schedule for Bartlett Trial, MDL ECF No. 4183); (CMO 11, 12, Pretrial Schedules for Wolf Trial, MDL ECF Nos. 4247, 4250); (CMO 13, Pretrial Schedule for Freeman Trial, MDL ECF No. 4263); (CMO 14, Pretrial Schedule for Dowdy Trial, MDL ECF No. 4268); (CMO 15, Pretrial Schedule for Baker Trial; MDL ECF No. 4269).

The first bellwether case was selected by DuPont and involved the claims of Carla Marie Bartlett, who had suffered from the Linked Disease kidney cancer: Carla Marie Bartlett v. E. I. du Pont de Nemours and Company, Case No. 2:13-cv-170. Mrs. Bartlett's trial began on September 14, 2015, and lasted approximately one month. The jury found in favor of Mrs. Bartlett on her negligence claim, meaning that they unanimously concluded that she proved by a preponderance of the evidence each of the following: "(1) DuPont owed Mrs. Bartlett a duty of care; (2) DuPont breached its duty of care to Mrs. Bartlett; and (3) Mrs. Bartlett suffered an injury as a proximate result of DuPont's breach of the duty of care." (Final Jury Instructions at 20, Negligence — Generally, Ordinary Care, Bartlett ECF No. 139.)2 The Court instructed the jury as follows:

Id. at 21.

Id. at 22.

Id. at 23.

Id. at 24.

The Jury found in favor of Mrs. Bartlett on her negligence claim, awarding her $1.1 million and also awarding her $500,000 on her negligent infliction of emotional distress claim. (Jury Verdict, Bartlett ECF No. 142.) The Court accordingly entered judgement in favor of Mrs. Bartlett. (Civil Judgment, Bartlett ECF No. 144.)

On February 3, 2016, DuPont settled the second bellwether case that was scheduled for trial the following month.

On May 31, 2016, a jury was seated for the third bellwether trial, which was the second to be tried: Freeman v. E. I. du Pont de Nemours and Co., 2:13-cv-1103. Mr. Freeman suffered from the Linked Disease testicular cancer. The trial lasted six weeks. The jury instructions were an exact duplicate of those provided in the Bartlett trial. (Final Jury Instructions at 19-24, Freeman ECF No. 102.)

On July 6, 2016, the jury delivered a verdict in favor of Mr. Freeman on his negligence claim, awarding him $5.1 million. (Jury Verdict Form For Negligence Claim at 1, Freeman ECF No. 97.) Additionally, the jury answered affirmatively the single interrogatory:

(Jury Verdict Interrogatory at 2, Freeman ECF No. 97.)

The Court therefore moved into phase two of the trial, which lasted less than one (1) day. (Civ. Minutes at 1, Freeman ECF No. 98.) The jury found in favor of Mr. Freeman on his punitive damages claim, awarding him $500,000. (Jury Verdict Form at 1, Freeman ECF No. 100.) The Court thus entered judgment in favor of Mr. Freeman. (Judgment in a Civ. Case, Freeman ECF No. 101.)

Thereafter, DuPont's counsel informed the Court that the last two bellwether cases had settled. No bellwether cases remained; the parties notified the Court that there were no ongoing negotiations. The Court, therefore, turned its attention to the effective administration of the thousands of cases that constituted this MDL, as explained in CMO 20. (CMO 20, Order on Defendant's Objection to the November 2016 and January 2017 Trial Schedules, MDL ECF No. 4624.)

On July 18, 2016, the PSC selected Kenneth Vigneron, Sr., for the already scheduled November 2016 trial: Kenneth Vigneron, Sr. v. E. I. du Pont de Nemours Company, Case No. 13-cv-136. (CMO No. 18, Pretrial Schedule for Vigneron Trial, MDL ECF No. 4588.) Mr. Vigneron had suffered from the Linked Disease testicular cancer. Mr. Vigneron's trial began on November 14, 2016, and lasted approximately five weeks. The jury instructions on the negligence claim were the same as those provided in the Bartlett and Freeman trials. (Final Jury Instructions at 20-24, Vigneron ECF No. 195.)

On December 21, 2016, the jury delivered a verdict in favor of Mr. Vigneron on his negligence claim, awarding him $2 million. (Jury Verdict Form For Negligence Claim at 1, Vigneron ECF No. 176.) Additionally, as was the case in the Freeman trial, the jury answered affirmatively the single interrogatory that led to the punitive damages phase of the trial, which lasted less than one day. (Jury Verdict Form For Negligence Claim, Vigneron ECF No. 176 at 2; Civ. Minutes at 1, Vigneron ECF No. 192.) The jury found in favor of Mr. Vigneron, awarding him $10.5 million in punitive damages. (Jury Verdict Form at 1, Vigneron ECF No. 193.)

The fourth trial began on January 18, 2017: Larry Ogle Moody v. E. I. du Pont de Nemours Company, Case No. 15-cv-803. (CMO 19, Pretrial Schedule for Moody Trial, MDL ECF No. 4591.) The plaintiff, Larry Ogle Moody, had suffered from the Linked Disease testicular cancer. During the third week of Mr. Moody's trial, the case was reported settled, and the trial was discontinued at DuPont's request. (Civ. Minutes at 1, Moody ECF No. 60.)

D. Appeal to the Sixth Circuit

On October 27, 2015, DuPont filed in the Bartlett case its Motion for Judgment as a Matter of Law or, Alternatively, for a New Trial and Remittitur, which was fully briefed by December 2015. (Bartlett ECF Nos. 151, 158, 159.) DuPont argued that it was entitled to judgment as a matter of law or a new trial. DuPont highlighted this Court's interpretation of the Leach Settlement Agreement as set forth in DMO 1 and DMO 1-A, stating:

(Def's Mot. for Judgment and New Trial at 1, Bartlett ECF No. 151.)

In denying DuPont's post-trial motion, the Court explained in detail "why DuPont's position on causation conflates the parties' unambiguous definitions of general and specific causation that they set forth in the Leach Settlement Agreement and effectively rewrites the Agreement's provisions related to the function and application of the Probable Link Findings." (DMO 12 at 35, Bartlett ECF No. 161.)

On March 17, 2016, DuPont filed an appeal with the United States Court of Appeals for the Sixth Circuit, bringing four issues before it, with only three being relevant to the issues currently before the Court.3 (Barlett v. E. I. du Pont De Nemours and Company, Sixth Circ. Case No. 16-3310, Appellant Brief.)

As to the first and second issues appealed, DuPont steadfastly presented the argument that this Court's interpretation of the Leach Settlement Agreement was the fundamental error that subjected DuPont to an unfair trial not only in Bartlett but also in each and every case that was before the Court in this MDL:

(Id., Appellant Brief at 1, 18.)

DuPont's second assignment of error related to certain evidence heard by the jury from one of Mrs. Bartlett's expert witnesses, which DuPont tied to this Court's interpretation of the Leach Settlement Agreement, titling the section: "The District Court's Erroneous Interpretation Of The Agreement Distorted The Evidence At Trial." Id. at 32. Thus, this issue also hinged on whether the Sixth Circuit agreed with DuPont that this Court erroneously interpreted the Leach Settlement Agreement.

As to the Tort Reform Act, DuPont's third assignment of error, DuPont argued that this Court erred by refusing to reduce the jury award under the Ohio Tort Reform Act. DuPont asserted that, "[i]f the [Sixth Circuit] agrees with some or all of the arguments [made in this appeal], it would remand for a new trial, clarifying that the Tort Reform Act applies. If it does not grant a new trial, it would still remand for application of the Act to the jury's verdict reducing the total damages to $250,000." Id. at 51 n.4.

DuPont and the PSC on behalf of Mrs. Bartlett fully briefed the appeal, were assigned a judicial panel, and vigorously presented their case at oral argument. See: http://www.opn.ca6.uscourts.gov/internet/court_audio/aud2.php?link=audio/12-09-2016%20-%20Friday/16-3310%20Carla%20Marie%20Bartlett%20v%20E%20I%20DuPont%20de%20Nemours%20et%20al.mp3&name=16-3310%20Carla%20Marie%20Bartlett%20v%20E%20I%20DuPont%20de%20Nemours%20et%20al (full transcript of oral argument).

Before the Sixth Circuit had the opportunity to issue its decision on DuPont's appeal, DuPont informed this Court that it had contacted the Sixth Circuit asking it to hold the decision because the Bartlett case had been settled along with the other cases in the MDL. On that day, February 13, 2017, the Court was nearing the end of the fourth trial held in this MDL, Larry Ogle Moody v. E. I. du Pont de Nemours Company, Case No. 15-cv-803. DuPont asked this Court to wait to inform the litigants of the settlement because DuPont was required to file certain documents with the SEC before publicizing the settlement.

On that same day, February 13, 2017, DuPont filed with the SEC a notice of its settlement, indicating that it would pay $670.7 million to the Leach Class, "half of which will be paid by Chemours4 and half paid by DuPont." https://www.sec.gov/Archives/edgar/data/30554/000110465917008291/a17-4311_18k.htm DuPont specified in the SEC Notice how future Washington Works C-8 liability would be paid, stating:

Id.

II.

As anticipated by DuPont, the C-8 litigation did not end with the global settlement. The JPML continued to conditionally transfer cases to this Court after the global settlement, and the Court currently has over 50 new cases that are a part of this MDL — all cases brought by alleged Leach Class members suffering from the Linked Disease testicular cancer and/or the Linked Disease kidney cancer ("Post-Settlement Cases").

DuPont moved the JPML "to vacate [its] orders that conditionally transferred" these actions "for inclusion in MDL No. 2433" for several reasons, but primarily because "pretrial proceedings in MDL No. 2433 [we]re complete." (Transfer Order, MDL ECF No. 5130.) The JPML denied DuPont's request, finding that the actions are "best coordinated by the Honorable Edmund A. Sargus, Jr., who is intimately familiar with the factual and legal issues in this litigation." Id. at 1. The JPML highlighted that "these actions will involve similar, if not identical, pretrial motion practice." Id. It further found that "[t]ransfer of these actions to the MDL thus will eliminate duplicative discovery, prevent inconsistent pretrial rulings, and conserve the resources of the parties, their counsel, and the judiciary." Id. at 2.

Therefore, the Court followed the familiar, well-trodden path, meeting monthly with the parties and issuing numerous management, pretrial, and evidentiary orders directed at the Post-Settlement Cases. (CMO 24, Management of Newly-Filed, Post-Settlement Cases, MDL ECF No. 5140); (CMO 25, Initial Scheduling of Post-Settlement Cases, MDL ECF No. 5159); (PTO 48, Changed Directions for Selection of Trial Cases, MDL ECF No. 5177); (CMO No. 26, Pretrial and Trial Schedule for Swartz Trial, MDL ECF No. 5185); (CMO No. 27, Pretrial and Trial Schedule for Abbott Trial, MDL ECF No. 5186); (CMO No. 28, Discovery, Pretrial, and Trial Management of the Post-Settlement Cases, MDL ECF No. 5188); (PTO No. 49, Memorializing January 29, 2019 Conference, MDL ECF No. 5191); (PTO 50, Memorializing May 18, 2019 Conference, MDL ECF No. 5197); (PTO No. 51, Consolidation of Cases for Trial, MDL ECF No. 5214); (Discovery Order No. 13, Defendant's Motion to Permit Rule 35 Medical Examination in Swartz, 2:18-cv-136, MDL ECF No. 5238); (DMO No. 30, Granting in Part Plaintiffs' Motion for Clarification Regarding the Inapplicability of the Ohio Tort Reform Act, MDL ECF No. 5231); (DMO No. 31, Denying Defendants' Motion to Apply Tort Reform Act to the Swartz Case, 2:18-cv-136, MDL ECF No. 5232); (PTO No. 52, Case Selection for Post-Settlement Joint Trial No. 1, MDL ECF No. 5233); (CMO No. 29, Initial Pretrial Schedule for Joint Trial No. 1, MDL ECF No. 5234); (PTO No. 53, Joint Status Report, MDL ECF No. 5236); (DMO No. 32, Defendant's Motion to Reconsider Prior Rulings, MDL ECF No. 5241); (DMO No. 33, Denying Defendant's Motion to Reconsider Prior Rulings on Science Panel, MDL ECF No. 5245); (CMO No. 30, Pretrial and Trial Schedule for Joint Trial No. 1, MDL ECF No. 5248); (PTO No. 54, Clarification of PRO Numbers, MDL ECF No. 5253); (EMO No. 25, Defendant's Motion to Exclude Corporate Conduct Expert Opinion, MDL ECF No. 5254); (EMO No. 26, Defendant's Motion to Exclude or Limit Dr. Barry S. Levy's Trial Testimony, MDL ECF No. 5255); (Discovery Motions Order No. 16, Plaintiffs' Motion for a Protective Order from Deposition of Bernard Reilly, JDL ECF No. 5256); (Pretrial Order No. 51-A, Consolidation of Cases for Trial, MDL ECF No. 5279).

The first two of the Post-Settlement Cases to be tried have been selected and are currently being prepared for trial. Angela and Teddy Swartz v. E. I. du Pont de Nemours Company, Case No. 2:18-cv-136; Travis and Julie Abbott v. E. I. du Pont de Nemours Company, Case No. 2:17-cv-998. These two plaintiffs allege that they are members of the Leach Class who suffer from kidney and testicular cancers, respectively. The plaintiffs' spouses also bring loss of consortium claims. Mrs. Swartz and Mr. Abbott, as well as the other plaintiffs who have filed Post-Settlement cases, make the same allegations previously made by the 3,500-plus plaintiffs who were part of the global settlement.

Plaintiffs' claims for strict product liability under the Ohio Product Liability Act, Ohio Rev. Code § 2307.71(B), consumer protection claims under Ohio and West Virginia Consumer Sales Practices Act, Ohio Rev. Code § 1345.01 et seq., W. Va. Code § 46A-6-106(a), trespass to persons, and ultrahazardous or abnormally dangerous activity were precluded from trial based on this Court's grant of summary judgment to DuPont on these claims. (DMO 4, Def's Mot. for Summ. J., MDL ECF No. 3973.) Pursuant to this Court's previous interpretation of the Leach Settlement Agreement, the parties will try their negligence and punitive damages claims.

DuPont utilizes the same defenses it has since the inception of this MDL. In that vein, similar to its requests made before the first trial in this MDL in DuPont's Counter Motion for Partial Summary Judgment (MDL ECF No. 1032), DuPont's Overview Brief on Causations Issues (MDL ECF No. 2813), DuPont's Motion for Clarification Regarding DMO No. 1, Class Membership and Causation (MDL ECF No. 2814), DuPont's Post Trial Motion (Bartlett ECF No. 151), and before the Sixth Circuit (App. No. 16-3310), DuPont again moved the Court to adopt its interpretation of the Leach Settlement Agreement. DuPont presented the request as one for this Court to modify its previous interpretations of the Leach Settlement Agreement, which, DuPont continues to maintain are mischaracterizations of the terms of the contract. DuPont made its request in two motions: "DuPont's Motion to Exclude Mischaracterizations Related to the Science Panel and the Probable Link Findings from the Swartz Case" and "DuPont's Motion for Interpretation of the Leach Agreement with Respect to Specific Causation in the Swartz Case." (Swartz ECF Nos. 50, 51.)

DuPont framed its request as follows:

(DuPont's Mot. for Interp. of the Leach Settlement Agreement at 1-2, Swartz ECF No. 51.)

Regardless of how DuPont titled the two motions or couched its arguments in them, there are no "new arguments, new facts, [or] new case law" that impact the Court's interpretation of the Leach Settlement Agreement — nor does DuPont claim that there are. Instead, the "arguments" have been made numerous times to this Court, as well as before the Sixth Circuit. Nevertheless, even if any of the arguments were considered to be "new," (which they are not) nothing prevented DuPont from previously raising them. Any arguments that were available but not made do not justify this Court revisiting final and binding decisions interpreting the Leach Settlement Agreement. DuPont points to no law that supports this proposition.

Additionally, the "facts" that are different between class members (e.g., their age, sex, medical histories, illnesses, water consumption locations, etc.), are relevant to specific causation (which will not be precluded) but have no relevance to the Court's contract interpretation. There are no individualized facts from any of the prior trials that had any effect at all on this Court's interpretation of the Leach Settlement Agreement. This Court's interpretation of the Leach Settlement Agreement has remained consistent and the Court has applied its interpretation of the Agreement to the facts of each of the four prior cases that went to trial.

Finally, no "new law" issued after this Court's decisions interpreting the Leach Settlement Agreement that has changed the applicable legal landscape. Indeed, DuPont does not claim that there is. Rather, DuPont merely contends that it "presents ... new case law." Id. at 1 (emphasis added). In other words, the new case law to which DuPont refers is merely a selection of cases that DuPont contends support its position and upon which it previously did not rely. To the extent that DuPont may reference cases issued after this Court's judgment and/or DuPont's appeal, nothing changed the law upon which this Court relied. And, again, DuPont makes no claim otherwise.

Consequently, the day after DuPont filed the two motions asking for modification of the Leach Settlement Agreement, this Court denied them both in DMO 32, highlighting that it would not reconsider its contract interpretation. (DMO 32, Defendant's Motion to Reconsider Prior Rulings, MDL ECF No. 5241, Swartz ECF No. 57.) The Court issued DMO 32 before it permitted briefing on the issue, explaining inter alia that:

Id. at 3.

As to the issue of the Tort Reform Act, Plaintiffs filed a Motion for Clarification Regarding the Inapplicability of the Ohio Tort Reform Act to Plaintiffs' Claims, in which they asked this Court to rule consistently with the prior decisions. The Court granted that motion, indicating that the "Court indeed intends to stay consistent with its prior decisions." Id. at 4.

III.

Plaintiffs move for partial summary judgment "[b]ased upon issue preclusion (collateral estoppel), [because] there are no genuine issues of fact relating to duty, breach, and general causation in Plaintiffs' negligence claim, no issues of fact relating to the interpretation of the Leach agreement and no genuine issues of fact relating to the inapplicability of the Ohio Tort Reform Act." (Pls' Mot. at 1, MDL ECF No. 5274.) DuPont contends that Plaintiffs' Renewed Motion should be denied because it relies upon the "wrong substantive law," fails to properly apply the law to the facts, and seeks to deprive DuPont of its "fundamental right to defend itself against the individual personal injury actions pending in this MDL." (Def's Mem. in Opp. at 1, MDL ECF No. 5278; Def's Sur-Reply at 1, MDL ECF No. 5281-1.) DuPont also contends that the Court should not even review the substantive arguments in Plaintiffs' Renewed Motion because it is untimely. The Court will address the substantive arguments in this section of this decision and will address the procedural argument below in section V, with Plaintiffs' procedural arguments related to DuPont's request to file a sur-reply.

A. Summary Judgment

Summary judgment is appropriate "if the movant shows that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "A motion for summary judgment is an appropriate vehicle for presenting prior judgments." 18 Moore's Federal Practice § 132.05[27], 132-184 (summary judgment is proper procedure for asserting issue preclusion).

B. Collateral Estoppel

In their Renewed Motion, Plaintiffs initially relied upon federal preclusion law. In its memorandum in opposition, however, DuPont contends that Ohio preclusion law applies. DuPont appropriately addresses both federal and state law, arguing that, under either, Plaintiffs are not entitled to issue preclusion on any of the issues raised in their current motion for partial summary judgment. DuPont bolstered its arguments in its Sur-reply. In Plaintiffs' Reply, they disagree that Ohio law applies, but maintain that even if it did, they are still entitled to issue preclusion. As explained below, however, it is of no moment in the instant analysis because under either federal or state law the doctrine of issue preclusion applies to the issues presented in Plaintiffs' Renewed Motion.

1. Collateral Estoppel/Issue Preclusion

Federal preclusion law "`bars successive litigation of an issue of fact or law actually litigated and resolved in a valid court determination essential to the prior judgment,' even if the issue recurs in the context of a different claim." Gen. Elect. Med. Sys. Europe v. Prometheus Health, 394 Fed. Appx. 280, 283 (6th Cir. 2010) (citing Taylor v. Sturgell, 553 U.S. 880, 891-93 (2008) and New Hampshire v. Maine, 532 U.S. 742, 748-49 (2001)). The Sixth Circuit has explained the elements necessary for a prior decision to have preclusive effect:

Nat'l Satellite Sports, Inc. v. Eliadis, Inc., 253 F.3d 900, 908 (6th Cir. 2001) (citations omitted).

Under Ohio law, collateral estoppel applies to an issue that "(1) was actually and directly litigated in the prior action; (2) was passed upon and determined by a court of competent jurisdiction, and (3) when the party against whom collateral estoppel is asserted was a party in privity with a party to the prior action." State ex rel. Davis v. Pub. Emps. Ret. Bd., 174 Ohio App.3d 135, 144 (Ohio App. 10th Dist. 2007), aff'd, 120 Ohio St.3d 386 (2008) (citing Whitehead, 20 Ohio St.2d 108, paragraph two of the syllabus (1969)).

2. Federal Law

DuPont argues that federal law dictates that state preclusion law applies to judgments of a federal district court when it hears cases in its diversity jurisdiction:

(Def's Mem. in Opp. at 7, MDL ECF No. 5278.)

Plaintiffs disagree, asserting that "Semtek involved the preclusive effect of a dismissal with prejudice under Rule 41(b) — not issue preclusion — and therefore has limited application to the issue before this Court." (Pls' Reply at 3, MDL ECF No. 5280) (citing Zanke-Jodway v. Fifth Third Mortg. Co., 557 B.R. 560, 565 (Bankr. E.D. Mich. 2016) ("Essentially, Semtek means that when a federal court dismisses an action while incorporating state law, it does not necessarily mean that the action is barred from being brought in another state where the law is different.").

In Semtek the Supreme Court reaffirmed that it has "the last word on the claim-preclusive effect of all federal judgments." Semtek Intern. Inc. v. Lockheed Martin Corp., 531 U.S. 497, 507 (2001). In reviewing precedent, the Court explained that,

Id. at 508 (emphasis in original).

In other words, federal common law applied to the trial court's analysis, and that law dictated that the "claim preclusive effect of the federal diversity court's dismissal was governed by federal rule that in turn incorporated the forum state's law of claim preclusion." Id. at 497; see id. at 509 ("Because the claim-preclusive effect of the California federal court's dismissal `upon the merits' of petitioner's action on statute-of-limitations grounds is governed by a federal rule that in turn incorporates California's law of claim preclusion (the content of which we do not pass upon today), the Maryland Court of Special Appeals erred in holding that the dismissal necessarily precluded the bringing of this action in the Maryland courts.").

This Court, however, need not determine whether the federal common law would incorporate Ohio's claim preclusion law under the facts of the cases that make up this MDL because Semtek made clear that "[t]his federal reference to state law will not obtain, of course, in situations in which the state law is incompatible with federal interests." Id. at 509. In Semtek, "there [wa]s no conceivable federal interest in giving [the California] time bar more effect in other courts than the California courts themselves would impose." Id.

But in the case sub judice, Plaintiffs contend that significant federal interests are at issue that could prevent incorporation of Ohio law if it were to dictate a different result than federal law:

(Pls' Reply at 4-5, MDL ECF No. 5280.) This Court agrees.

The JPML entrusted these cases to this Court under a uniquely federal statutory scheme with no Ohio law analogue to "promote the just and efficient conduct of this litigation" and "conserve the resources of the parties, their counsel and the judiciary." (Transfer Order at 1, MDL ECF No. 1.) Moreover, "[o]ne of the strongest policies a court can have is that of determining the scope of its own judgments." J.Z.G. Resources, Inc. v. Shelby Ins. Co., 84 F.3d 211, 214 (6th Cir. 1996) (evaluation application of res judicata). See also § 4472 Effect of State Law on Federal Res Judicata Rules, 18B Fed. Prac. & Proc. Juris. § 4472 (2d ed.) ("[S]tate law might not always be incorporated. For example, the federal interest in the integrity of federal procedure might justify enforcement of a federal claim-preclusion rule following dismissal for willful violation of discovery orders despite a contrary state rule.").

As to Plaintiffs' clam that DuPont is panel shopping in the Court of Appeals, the undersigned is confident that the Sixth Circuit is better suited to address such concerns.5 This Court considers the issue only with regard to its own administration of the cases on the Court's docket.

It remains that DuPont presented its assignments of error to a panel of the Sixth Circuit. Instead of waiting for a decision, DuPont chose to settle the case. DuPont could easily have excluded the Bartlett case from settlement, since it was ripe for decision, pending at that time for over one year at the Sixth Circuit. (See Sixth Circuit Dramatically Lowers Time to Resolve Appeals, Squire Patton Boggs Sixth Cir. App. Blog, https://www.sixthcircuitappellateblog.com/news-and-analysis/sixth-circuit-dramatically-lowers-time-to-resolve-appeals/) ("the Sixth Circuit averaged just 9.9 months as of December 2013—and the average for 2014 so far has been just 8.7 months"). DuPont chose not to do so.

In the event of another loss at trial, DuPont has stated repeatedly to this Court in its Post-Settlement filings that it seeks to have the exact same issues brought before another panel of the Sixth Circuit. (See e.g., DuPont's Notice of Preservation of Arguments, Objections, and Positions Set Forth in Previously-Addressed Motion in Limine, Swartz ECF No. 92) ("DuPont expressly preserves for appeal all of its positions, objections, and arguments as set forth and incorporated in each of the motions listed above and, to the extent applicable, also preserves all claims of error and its positions, objections, and arguments as to why different rulings should have been made."); (Def's Opposition to Pl's Mot. to Exclude Expert Opinion at 2, fn. 1, Swartz ECF No. 66) ("DuPont continues to preserve, and does not waive, any of its arguments and positions regarding causation and the proper meaning and application of the Leach Agreement in these cases, and incorporates by reference all current and prior relevant briefing and oral arguments in the MDL and the individual cases on these issues.").

All of these claims serve to (1) require considerable analysis and opinion writing from this Court; (2) necessitate further, lengthy, multiple week trials; and (3) involve additional delay on future appeals. All of this docket congestion, delay, and expense could have been avoided had DuPont simply maintained its original appeal. Instead, DuPont voluntarily dismissed a nearly completed appeal and now seeks to avoid the consequences.

DuPont contends that there is no federal interest that warrants setting aside state preclusion principles:

(Sur-Reply at 6, MDL ECF No. 5281-1.)

In the first argument, DuPont selectively quotes Moore's Federal Practice. The treatise does not state that "offensive use of issue preclusion does not promote judicial economy." Instead, it states that "offensive use of issue preclusion does not promote judicial economy in the same manner as defensive use does" — a different proposition. 18 Moore's Federal Practice § 132.04[2][c], 132-166. The treatise then goes on to explain:

18 Moore's Federal Practice § 132.04[2][c], 132-166.

Unlike many plaintiffs, the plaintiffs before the Court in the Post-Settlement Cases are in a unique position related to any choice or strategy. There is no opportunity to "wait and see" in this action and intervention is simply not an option. These plaintiffs are bound by the Leach Settlement Agreement. They must each first suffer from a Probable Link disease. If they do, then each must timely file a negligence action, prove that they were subjected to the C-8 contaminated water for a particular amount of time, during a particular period of time, in a particular water district or wells in a particular geographic area. These plaintiffs' procedural options are circumscribed by the Leach Settlement Agreement.

Further, while the case relied upon by DuPont in the quoted passage above, S. Pac. Commc'ns Co. v. Am. Tel. & Tel. Co., 740 F.2d 1011 (D.C. Cir. 1984), did state that offensive use of issue preclusion could be employed in a manner that promotes "judicial diseconomy," that court went on to conclude:

Id. at 1019 n.9 (citing Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 (1979)).

Next, DuPont contends that judicial economy does not warrant setting aside state preclusion issues because judicial economy interests are present in every case. DuPont further claims that there will be no efficiencies in future cases because a Plaintiff must still adduce largely the same evidence he or she uses to attempt to prove negligence claims in their attempt to prove their punitive damages claims. This Court has presided over four trials, knows the evidence that was presented, and disagrees. Application of issue preclusion would certainly conserve the resources of this Court, as well as those of the parties, by providing substantial trial and pretrial efficiencies.

Finally, DuPont argues that "[g]overning precedent recognizes that `the Supreme Court [has] explicitly stated that offensive collateral estoppel could not be used in mass tort litigation,' further undercutting PSC's renewed motion." (Def's Mem. in Opp. at 2, MDL ECF No. 5278) (citing In re Bendectin Prods. Liab. Litig., 749 F.2d 300, 306 n.11 (6th Cir. 1984); Parklane Hosiery Co., 439 U.S. at 330 & n.14). Initially, the Court notes that the statement upon which DuPont relies is dicta. Even if it were not, it is certainly incongruent with the United States Supreme Court pronouncement made in Parklane Hosiery that there is no blanket prohibition on the application of collateral estoppel, as is highlighted by the Sixth Circuit:

City of Cleveland v. Cleveland Elec. Illuminating Co., 734 F.2d 1157, 1165 (6th Cir. 1984) (parallel citation omitted, emphasis in original) (quoting Parklane Hosiery, 439 U.S. at 331).

In light of the broad grant of discretion which this Court is directed to exercise pursuant to the Parklane factors, the Court agrees with our sister district court's assessment of the statement in the footnote in In re Bendectin Products Liability Litigation:

In re Air Crash at Detroit Metro. Airport, Detroit, Mich. on Aug. 16, 1987, 776 F.Supp. 316, 324-25 (E.D. Mich. 1991) (citation omitted; emphasis in original). The court continued:

Id. at 325.6

Consequently, the Court finds that if Ohio preclusion law applied here and if it were to dictate a different result than federal law, reference to state law could not obtain. However, the Court need not cross this bridge because, as shown below, Ohio preclusion law and federal preclusion law both support the application of collateral estoppel.

3. Ohio Law

Ohio's doctrine of collateral estoppel is very similar to the federal doctrine, and "has been explained by [the Ohio Supreme C]ourt to be preclusion of the relitigation in a second action of an issue or issues that have been actually and necessarily litigated and determined in a prior action." Goodson v. McDonough Power Equip., Inc., 2 Ohio St.3d 193, 195 (1983) (citing Whitehead v. Gen. Tel. Co., 20 Ohio St.2d 108 (1969)).

The main difference between Ohio and federal law, in DuPont's view, is that "Ohio law forbids the use of offensive non-mutual collateral estoppel in this MDL." (Def's Sur-Reply at 8, MDL ECF No. 5281-1.) Specifically, DuPont argues:

(Def's Mem. in Opp. at 7, MDL ECF No. 5278.)

DuPont further contends:

Id. at 8 (quoting Kiara Lake Estates, LLC v. Bd. of Park Comm'rs, No. 2:13-cv-522, 2014 U.S. Dist. LEXIS 23603, at *14 (S.D. Ohio Feb. 24, 2014)).

This Court disagrees with DuPont's assessment.

First, DuPont's statement that "Ohio law does not permit offensive non-mutual collateral estoppel" is inaccurate. Id. at 7. Indeed, the next quote utilized by DuPont reveals as much — i.e., "the general rule is that mutuality of parties is a requisite to collateral estoppel." Goodson, 2 Ohio St.3d 193, syllabus at 1 (emphasis added). As explained this year by an Ohio appellate court, Goodson, the case upon which DuPont relies, specifically sets out an exception to this general principle:

Schmitt v. Witten, 2018-T-0086, 2019 WL 2172827, at *4 (Ohio App. 11th Dist. May 20, 2019).

Second, DuPont's assertion that mutuality may be relaxed in situations "where `the party to be precluded had the opportunity to fully litigate the issue, and ... the preclusion is defensive" is also an inaccurate statement of law. (Def's Mem. in Opp. at 7, MDL ECF No. 5278.) Ohio law permits more than defensive preclusion. Indeed, as DuPont admits in a footnote, the Ohio Supreme Court in Goodson explained that it has permitted the use of offensive non-mutual collateral estoppel "where justice would reasonably require it." Goodson, 2 Ohio St. 3d at 199 (citing Hicks v. De La Cruz, 52 Ohio St.2d 71 (1977)).

Thus, while Ohio law generally requires mutuality of parties, it makes exceptions when the party against whom estoppel is asserted "clearly had his day in court on the specific issue brought into litigation within the later proceeding" and/or "where justice would reasonably require it." Id. at 200.

Moreover, Plaintiffs suggest that here, actual mutuality of parties exists because Ohio defines privity broadly in the preclusion context, referring to "what constitutes" it as "somewhat amorphous." Brown v. Dayton, 89 Ohio St.3d 245, 248 (2000). The Ohio Supreme Court explains:

Id. (citations omitted). Indeed, "[p]rivity is defined broadly to include a `mutuality of interest, including an identity of desired result.'" Garnet v. Ohio Civ. Rights Commn., 2004-T-0099, 2005 WL 3097871, at *6-7 (Ohio App. 11th Dist. Nov. 18, 2005) (quoting Brown, 89 Ohio St.3d at 248).

In the instant action, Plaintiffs persuasively argue:

(Pls' Reply at 6-7, MDL ECF No. 5280.)

IV.

For collateral estoppel to apply under Ohio and/or federal law, a plaintiff must show that the issue was actually and directly litigated, was necessary to the outcome of the prior proceeding, resulted in a final judgment on the merits, and the party against whom estoppel is sought had a full and fair opportunity to litigate in the prior proceeding. Nat'l Satellite Sports, Inc. v. Eliadis, Inc., 253 F.3d 900, 908 (6th Cir. 2001); State ex rel. Davis v. Pub. Emps. Ret. Bd., 174 Ohio App.3d 135, 144, 2007-Ohio-6594, at ¶ 18. Plaintiffs argue:

(Pls' Renewed Mot. at 1-2, MDL ECF No. 5274.)

The Court will address Plaintiffs' arguments in three groups: (A) contract interpretation of the Leach Settlement Agreement, which includes causation definitions, prohibition of trying general causation, and class membership, and the inapplicability of the Ohio Tort Reform Act; (B) the negligence claims; and (C) a full and fair opportunity to litigate.

A. Contract Interpretation and Tort Reform

There are prior judgments issued in the Bartlett, Freeman, and Vigneron cases, where the issue of the Leach Settlement Agreement was actually litigated and resolved in a judicial determination that was essential to the judgment. DuPont moved to reverse this Court's contract interpretation, first, in DuPont's Motion for Clarification of DMO 1, which led to the issuance of DMO 1-A; second, in its post-trial briefing that resulted in DMO 12, and; third, in its appeal to the Sixth Circuit in the Bartlett case. DuPont claims that the verdicts stemmed from this Court's interpretation of the Leach Settlement Agreement, which—in DuPont's estimation—"constituted a threshold error that pervasively impacted the trial and negated fundamental terms that were the very basis for resolving the Leach class action" (Def's Mot. for J. and New Trial at 1, Bartlett ECF No. 15); "A threshold contract interpretation error eliminated the heart of a critical defense for DuPont in each of the 3,500 cases in this MDL...." (Barlett v. E. I. du Pont De Nemours and Company, Sixth Circ. Case No. 16-3310, Appellant Brief at 1, 18) (emphasis added).

This Court agrees with DuPont that the Court's interpretation of the Leach Settlement Agreement was essential to the judgments that were entered in the Bartlett, Freeman, and Vigneron cases, and impacts all of the other cases in this MDL. And, there exists no tangible argument that the issue was not actually litigated in all the cases. DuPont brought the contract interpretation issue to this Court on numerous occasions and before the Sixth Circuit as its main assignment of error. Similarly, DuPont litigated the application of the Ohio Tort Reform Act before this Court on numerous occasions and also before the Sixth Circuit.

DuPont does not argue that the issue of contract interpretation or application of the Tort Reform Act was not actually litigated or essential to the judgments entered in each of the three trials. Instead, DuPont's main argument is that "offensive issue preclusion does not apply here." (Sur-Reply at 11, MDL ECF No. 5281-1.) DuPont simply contends that the Court's determination was not a final judgment as to the interpretation of the Leach Settlement Agreement or the Tort Reform Act, stating "[t]he Bartlett trial verdict did not bind any future case, and there was likewise no appellate decision that could possibly have bound any future case." Id. at 14, n.5. DuPont refers to the withdrawn Bartlett appeal as the "settlement of an appeal" and the "undecided Bartlett appeal," suggesting that these phrases somehow reduce the finality of this Court's Judgments.

This position is inconsistent with the law; it is inconsistent with DuPont's previous conduct in this MDL. That is, this Court has applied the same interpretation of the Leach Settlement Agreement to the facts of each of the four prior cases that went to trial and, as DuPont argued to the Sixth Circuit, the interpretation effected "each of the 3,500 cases in this MDL." (Barlett v. E. I. du Pont De Nemours and Company, Sixth Cir. Case No. 16-3310, Appellant Brief at 1, 18.) Additionally telling is that after Mrs. Bartlett's case was decided and appealed, the parties no longer asked the Court to make any changes to its interpretation of the Leach Settlement Agreement, recognizing that the Bartlett appeal would once and for all put to rest the contract interpretation issue. The same is true of the Tort Reform Act.

Even if, however, the parties had not recognized the impact of this Court's final and binding decisions, the law is clear. This Court's decisions interpreting the Leach Settlement Agreement and application of the Ohio Tort Reform Act (and the juries' findings ofnegligence) became final upon entry of final judgment. "[T]he established rule in the federal courts is that a final judgment retains all of its preclusive effect pending appeal." Erebia v. Chrysler Plastic Prods. Corp., 891 F.2d 1212, 1215 n.1 (6th Cir. 1989) (citations omitted). Thus, this Court's final judgments in all three of the trials held in this MDL have never been anything other than final and binding.

As to the appeal, when DuPont withdrew it, those previously appealable issues simply retained their finality for purposes of collateral estoppel. Moore's Fed. Practice, 3d Ed. § 132.03[4][k][vii] ("Unappealed but appealable findings are given issue preclusive effect") (citing Partmar Corp. v. Paramount Pictures Theatres Corp., 347 U.S. 89, 99 n.6 (1954) (plaintiff did not but might have appealed)). Under Supreme Court and Sixth Circuit precedent, dismissal of an appeal means that the trial court's rulings remain vital and preclusive. When "the losing party has voluntarily forfeited" its appellate rights, it remains bound by the trial court's decision. U.S. Bancorp Mortg. Co. v. Bonner Mail P'ship, 513 U.S. 18, 25-26 (1994); Coal. for Gov't Procurement v. Fed. Prison Indus., Inc., 365 F.3d 435, 484 (6th Cir. 2004).

Further, the "settlement" of Mrs. Bartlett's claim while the case was on appeal simply has no impact on the finality and preclusive effect of this Court's Judgment. Indeed, the Sixth Circuit explains that when a party "voluntarily abandon[s] their request for reversal of the district court's decision ... [the losing party] ha[s] lost their ability to contest the merits of [that] dispute." Remus Joint Venture v. McAnally, 116 F.3d 180, 185 (6th Cir. 1997). When a party decides to settle a case rather than complete an appeal, "[t]he judgment is not unreviewable, but simply unreviewed by his own choice." Id.

Moreover, the Sixth Circuit has recently held that a district court's judgment can still have issue-preclusive effect even if the judgment was set aside by the trial court at the request of the parties as a condition of settlement. Watermark Senior Living Ret. Communities, Inc. v. Morrison Mgt. Specialists, Inc., 905 F.3d 421, 426-28 (6th Cir. 2018). In Watermark Senior Living Retirement Communities, the Sixth Circuit observed:

Id. at 427 (citations omitted).

Here, this Court's judgment was not vacated nor set aside. Undoubtedly then, DuPont has acquiesced in this Court's decision, even though DuPont disagrees with it. DuPont has had its day in court and has waived its right to appeal.

DuPont's final argument is that the "PSC is trying to improperly convert the undecided Bartlett appeal into the law-of-the-case for all subsequent individual cases, despite the fact that the Sixth Circuit has expressly rejected applying law of the case across different cases." (Def's Sur-Reply at 12, MDL ECF No. 5281-1.) This argument is a red herring. Plaintiffs have not suggested that this Court's prior rulings are "law of the case," nor could they. "The doctrine of the law of the case is similar [to the doctrine of issue preclusion] in that it limits relitigation of an issue once it has been decided, but the law of the case doctrine is concerned with the extent to which the law applied in decisions at various stages of the same litigation becomes the governing principle in later stages." 18 Moore's Federal Practice § 134.04[1], 134-52.3 (citing Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 816 (1988)). The law of the case doctrine is simply inapplicable here.

B. Negligence

Plaintiffs argue that "[t]he precise/identical issue of negligence in Plaintiffs' cases was raised and litigated in the Bartlett, Freeman, and Vigneron cases and this finding of negligence was necessary to support each verdict." (Pls' Renewed Mot. at 7-8, MDL ECF No. 5274.) DuPont responds that "[i]ssue preclusion does not apply unless—at a minimum—the plaintiff can show that all of the factual differences `are of no legal significance whatever in resolving the issue presented' and here, Plaintiffs cannot "meet this high standard." (Def.'s Memo. in Opp. at 17, MDL ECF No. 5278) (citing United States v. Stauffer Chem. Co., 464 U.S. 165, 172 (1984)). Specifically, DuPont contends that Plaintiffs' "relevant water districts and time periods at issue in prior trials were different. The constantly changing state of the science, the changing knowledge over time, and the specific risks to any Plaintiff at the specifically relevant time and in a specific area are fundamental to the duty issues." Id. at 17. DuPont further argues that some of the plaintiffs in the Post-Settlement cases have filed loss of consortium claims, which "distinguishes that case from the first three trials." Id. Additionally, DuPont contends that "binding DuPont to the results of two bellwether trials and one non-bellwether trial would be fundamentally unfair." (Def's Mem. in Opp. at 25.) And finally, DuPont maintains that "a number of Plaintiffs in the post-global settlement cases have sued an additional defendant, Chemours—an independent company that never used C-8 at the Washington Works facility or elsewhere and was not a defendant in the pre-GSA cases." Id. at 18. DuPont's arguments are not well taken.

The Court finds that Plaintiffs have shown that any factual differences between the Pre- and Post-Settlement cases are of no legal significance in a jury's consideration of a negligence claim. That is, the issue of negligence was actually and directly litigated in four prior trials, with three consistent verdicts. The fourth settled after four weeks of trial. As can be seen in the jury instructions supra, each jury was consistently instructed and each found that DuPont owed a duty to a particular Leach Class member, that it breached that duty, and that DuPont should have foreseen or reasonably anticipated that injury would result from the alleged negligent act.

Specifically, the "test" for duty "is whether under the circumstances a reasonably prudent corporation would have anticipated that an act or failure to act would likely cause injuries." (Final Jury Instructions at 21, Negligence — Duty, Bartlett ECF No. 139); (Final Jury Instructions at 20, Negligence — Duty, Freeman ECF No. 102); (Final Jury Instructions at 21, Negligence — Duty, Vigneron ECF No. 195). And for breach, the jury was required to determine whether DuPont exercised "ordinary care," which was defined as "the care that a reasonably careful corporation would use under the same or similar circumstances." (Final Jury Instructions at 22, Negligence — Breach, Bartlett ECF No. 139); (Final Jury Instructions at 21, Negligence — Breach, Freeman ECF No. 102); (Final Jury Instructions at 22, Negligence — Breach, Vigneron ECF No. 195).

Finally, the jury had to determine whether Plaintiffs proved foreseeability, that is, whether they "prove[d] that DuPont should have foreseen or reasonably anticipated that injury would result from the alleged negligent act." (Final Jury Instructions at 21, Negligence — Proximate Cause — Foreseeable Injury, Bartlett ECF No. 139); (Final Jury Instructions at 24, Negligence — Proximate Cause — Foreseeable Injury, Freeman ECF No. 102); (Final Jury Instructions at 23, Negligence — Proximate Cause, Foreseeable Injury, Vigneron ECF No. 195). Again, the instructions made clear that the jury was determining not only whether DuPont's conduct caused injury to the individual plaintiff, but also to those who, like the Leach Class members, were in similar positions to Plaintiffs: "The test for foreseeability is not whether DuPont should have foreseen the injury exactly as it happened to [the plaintiff]. Instead, the test is whether under the circumstances a reasonably careful person would have anticipated that an act or failure to act would likely result in or cause injuries." (Final Jury Instructions at 21, Negligence — Proximate Cause, Foreseeable Injury, Bartlett ECF No. 139); (Final Jury Instructions at 21, Negligence — Proximate Cause — Foreseeable Injury, Freeman ECF No. 23); (Final Jury Instructions at 23, Negligence — Proximate Cause, Foreseeable Injury, Vigneron ECF No. 195).

The testimony that was presented at the Bartlett, Freeman and Vigneron trials and the resulting verdicts made clear that the duty DuPont breached was to the entire communities surrounding its Washington Works plant and not just to specific customers of individual water districts. The facts relating to DuPont's negligence were virtually identical. The experts in each trial testified about how DuPont's conduct affected surrounding communities — all six of the water districts and private wells subject to the Leach Settlement Agreement — and not just to the individuals who were in a particular water district. The factual differences highlighted by DuPont (i.e., water districts, diseases, and the timing and duration of C-8 exposure) go to specific causation, which is a live controversy that will be vigorously litigated in the upcoming trials, as will any loss of consortium claims, and punitive damages claims.

Meanwhile, the conduct supporting DuPont's negligence in the Bartlett, Freeman, and Vigneron cases is the same conduct in the Post-Settlement Plaintiffs' cases. As this Court noted previously, evidence "related to DuPont's conduct of releasing the C-8 from the Washington Works plant" is "the same evidence that will be utilized in every single trial held in this MDL." (CMO 20 at 33, ECF No. 4624.) "Not only will this evidence be consistent through each and every trial, it is also overwhelmingly the majority of all evidence that will be offered at each and every trial that will be held in this MDL." Id. The negligence phase of each prior case has taken substantial time at trial, and each verdict included a finding of negligence.

The addition of the entity that purchased Washington Works, Chemours, and was spun off from DuPont itself to, inter alia, take some or all of the C-8 liability from that facility is of no legal significance whatever in resolving the negligence issues under consideration here. Chemours' conduct is not per se at issue in this litigation. Instead, Chemours is, at best, merely an indemnitor of DuPont.

DuPont's argument that being bound to the result of three trials, two of which were bellwethers, misses the mark. While in certain factual situations courts have found it unfair to bind parties to a bellwether verdict, Auchard v. TVA, No. 3:09-CV-54, 2011 U.S. Dist. LEXIS 14771, at *11 (E.D. Tenn. Feb. 2, 2011), others have focused on whether a party had a full and fair opportunity to litigate, Adams v. United States, No. CV 03-49-E-BLW, 2010 U.S. Dist. LEXIS 116051, 2010 WL 4457452 (D. Idaho Oct. 19, 2010).8

While this Court did hold two bellwether and two non-bellwether trials, every Plaintiff in this MDL is a member of the Leach Class and are subject to the Leach Settlement Agreement. Both Plaintiff class and DuPont benefit from the Leach Agreement and this Court's rulings related to what the trials under the Agreement will entail. Thus, to the extent that the bellwether process could impact the application of collateral estoppel, it does not do so here. The important aspect of the analysis is whether DuPont had a full and fair opportunity to litigate.

In the context of an MDL, the need to try multiple bellwether cases to facilitate settlement of all cases is an important component of the handling of a large number of related cases. See The Manual for Complex Litigation, § 22.315 (bellwether trials are meant to "produce a sufficient number of representative verdicts and settlements to enable the parties and the court to determine the nature and strength of the claims ... and what range of values the cases may have"); Alexandra D. Lahav, Bellwether Trials, at 577-78, The George Washington Law Review (2008) ("Judges currently use bellwether trials informally in mass tort litigation to assist in valuing cases and to encourage settlement."). Applying collateral estoppel in an MDL before most or all bellwether cases are tried would not promote judicial economy insofar as a global settlement could be frustrated. But here, DuPont lost the first bellwether trial, filed an appeal, and asked to stay the remaining cases, which the Court refused. DuPont then simply settled the only remaining bellwether cases, leaving no such cases outstanding. These facts are further reasons to apply collateral estoppel, when no bellwether cases remain unresolved.

C. Full and Fair Opportunity to Litigate

As does federal law, Ohio law focuses on the "main legal thread which runs throughout the determination of the applicability of ... collateral estoppel, [which] is the necessity of a fair opportunity to fully litigate and to be `heard' in the due process sense." Goodson, 2 Ohio St.3d at 200-01. The Ohio Supreme Court cautions:

Id. And, non-mutuality of parties is acceptable in Ohio when the party against whom estoppel is asserted "clearly had his day in court on the specific issue brought into litigation within the later proceeding" and/or "where justice would reasonably require it." Goodson, 2 Ohio St. 3d at 200.

The United States Supreme Court similarly cautions:

Guy, 257 F. App'x. 965 (quoting Parklane Hosiery Co., 439 U.S. at 330-31).

None of these situations is even arguably present here — nor does DuPont claim that any are present. No doubt, DuPont had every incentive to vigorously defend the first three trials in this MDL, knowing that there were over 3,500 cases that would be impacted by the outcomes of those cases. And, obviously future suits were foreseeable in that there were over 3,500 cases in line in this MDL — all of which would be tried in this Court or in the Southern District of West Virginia. This MDL is geographically limited to only two districts because of the Leach Case from which this MDL was born and the Settlement Agreement by which these cases are bound. DuPont has known since it moved the JPML for consolidation that there would never be the "nuclear option" available such that it may have the opportunity to potentially re-argue pretrial and trial rulings made by this Court in other trial courts across the country. Indeed, as the JPML itself has recognized, "the transferee judge has indicated his willingness to seek an inter-circuit assignment to conduct trials in West Virginia should the need arise." (Transfer Order at 2, MDL ECF No. 5130.) Consequently, there is no question that DuPont had strong motivation to defend vigorously and that it fully understood that future suits were not only foreseeable, but likely.

Further, DuPont made clear in its SEC filing that there was potential liability well into the future, dividing the responsibility for the potential future liabilities between it and Chemours. Finally, the Post-Settlement cases do not afford the parties any procedural opportunities that were unavailable in the Bartlett, Freeman, and/or Vigneron trials that could readily cause a different result.

Since the inception of this MDL six and one-half years ago, the pretrial motion practice and the trials were aggressively litigated by competent counsel on both sides. The trials alone were billed at approximately $6 million per side in attorney fees and over $1 million in costs. (Pl's Mot., for Determination of Atty. Fees and Costs, Freeman ECF No. 147.) Given the caliber and number of counsel, the length of this action, a settlement of over $670 million, nearly $50 million in attorney fees and $4 million in costs for the trials, and a fully briefed and argued appeal before the Sixth Circuit, the time has come to conserve judicial resources as well as those of the parties.

The Ohio Supreme Court advises that, when balancing "[t]he benefits garnered from applying collateral estoppel in any cause ... against the costs associated with its application[,]" "[t]he major risk linked to such an application is that of an erroneous determination in the first case." Goodson, 2 Ohio St. 3d at 201-02. In the instant action, there was not only a "first case," but a second case and a third case that all resulted in the same verdicts on a Leach Class members' negligence claim.

The policy guiding the application of collateral estoppel in any given case is one of fundamental fairness. As the Supreme Court observed:

Blonder-Tongue Laboratories, 402 U.S. at 333-34.

After reviewing the situations in which it may be unfair to apply offensive collateral estoppel, the Supreme Court stated:

Parklane Hosiery Co., 439 U.S. at 332-33.

Similarly, in the instant action, this Court concludes that none of the considerations Ohio or federal courts find would justify refusal to allow the use of offensive collateral estoppel are present. Since DuPont has received a "full and fair" opportunity to litigate the proper interpretation of the Leach Settlement Agreement, application of the Ohio Tort Reform Act, and negligence with three separate juries finding DuPont liable for the same conduct that is at issue in this motion, the contemporary law of collateral estoppel leads inescapably to the conclusion that DuPont is collaterally estopped from relitigating these issues. DuPont has had its day in court on these issues, and in view of the entire record before this Court, justice and equity demand application of issue preclusion as requested by Plaintiffs in their Renewed Motion.

V.

The Court will next address Defendant's Motion to File, Instanter, a Sur-Reply (MDL ECF No. 5281), and Defendant's arguments that Plaintiffs' Renewed Motion was untimely.

A. Sur-Reply

DuPont filed a Motion for Leave to File, Instanter, a Sur-Reply (MDL ECF No. 5281), Plaintiffs then filed a Memorandum in Opposition (MDL ECF No. 5282), and DuPont filed its Reply (MDL ECF No. 5283). Pursuant to S.D. Ohio Local R. 7.2(a)(2), a party may seek leave of the Court to file a sur-reply in support of its opposition to a motion "for good cause shown." Good cause exists for a sur-reply where a party seeks to "respond to an argument raised by [a party] for the first time in its reply brief." NetJets Large Aircraft, Inc. v. United States, 2017 U.S. Dist. LEXIS 49232, at *12, (S.D. Ohio Mar. 21, 2017) (citing Burlington Ins. Co. v. PMI Inc., 862 F.Supp.2d 719, 726 (S.D. Ohio 2012)).

DuPont contends that Plaintiffs raised new arguments in their Reply, necessitating the need for it to file a sur-reply. This Court disagrees; however, the Court will provide to DuPont the opportunity it requests to address the issues before the Court. Thus, the Court GRANTS DuPont's Motion for Leave to File, Instanter, a Sur-Reply. (MDL ECF No. 5281.)

B. Timeliness of Motion

It is not disputed that Plaintiffs filed their Renewed Motion after the deadline set by this Court. DuPont contends that Plaintiff untimeliness is a "fatal defect" requiring denial of its request for partial summary judgment. (Def's Mem. in Opp. at 1, MDL ECF No. 5278.) This Court, however, disagrees.

Unlike certain defenses that must be raised by the parties, the doctrine of collateral estoppel is one in which "the judiciary retains an independent interest" so that it can "prevent[] the misallocation of judicial resources." Sioux Nation of Indians, 448 U.S. at 433. The Sixth Circuit sanctions, indeed encourages, a court to sua sponte raise the doctrine "in the interests of, inter alia, the promotion of judicial economy." Holloway Const. Co. v. U.S. Dept. of Lab., 891 F.2d 1211, 1212 (6th Cir. 1989) (citing Sioux Nation of Indians, 448 U.S. at 432; Commissioner v. Sunnen, 333 U.S. 591, 597 (1948)). As the Supreme Court explained in its assessment of a sua sponte dismissal based on res judicata:

Sioux Nation of Indians, 448 U.S. at 432-33 ("This result is fully consistent with the policies underlying res judicata: it is not based solely on the defendant's interest in avoiding the burdens of twice defending a suit, but is also based on the avoidance of unnecessary judicial waste.") (citing Sunnen, 333 U.S. at 597; Blonder-Tongue Laboratories, Inc., 402 U.S. at 328; Parklane Hosiery, 439 U.S. at 322).

As can be seen from the Court's analysis above, it is clear that DuPont is asking to "unduly consume the time of the Court at the expense of other litigants," because this Court and three juries have "finally decided" the issues of interpretation of the Leach Settlement Agreement, including the definitions and evidentiary applications of general and specific causation, class membership, application of the Ohio Tort Reform Act, and DuPont's negligence. DuPont, however, continues to "demand that [these issues] be decided again." See id. This DuPont cannot do.

The Court gave its attention fully to this MDL and has done what the JPML asked of it: to conduct the cases in a "just and efficient" manner. (Transfer Order at 1, MDL ECF No. 1; Transfer Order at 2, MDL ECF No. 5130.) The Court owes the same to the other cases before it, including a major MS-13 gang case involving five murder charges with 26 defendants, 16 of whom allegedly committed death-penalty-eligible crimes, the In re: Davol, Inc./C.R. Bard, Inc. Polypropylene Hernia Mesh Products Liability Litigation Hernia that currently consists of over 4,500 cases, and over 200 other civil cases, as well as over 100 criminal matters. It is incumbent upon this Court to protect its ability to give the same prompt and efficient administration of the cases before it that it has provided to DuPont.

VI.

For the reasons set forth above, the Court GRANTS Plaintiffs' Renewed Motion for Summary Judgment on the Application of the Doctrine of Issue Preclusion/Collateral Estoppel (MDL ECF No. 5274), and GRANTS Defendant's Motion to File, Instanter, a Sur-Reply (MDL ECF No. 5281). The issues that remain for trial are: specific causation, damages, and, if malice is found by the jury, punitive damages, and in some cases loss of consortium.

IT IS SO ORDERED.