Another Jackpot (In)Justice: Verdict Variability and Issue Preclusion in Mass Torts

I‘ve posted my manuscript, Another Jackpot (In)Justice: Verdict Variability and Issue Preclusion in Mass Torts, on Bepress.  Here’s the abstract:

If there are no prior inconsistent verdicts, non-mutual offensive issuepreclusion generally allows a finding by a single jury to barrelitigation, in future cases, of the issue by the defendant who lostin the prior case. This approach, however, ignores the possibility thatthe first verdict delivered may have been an outlier if furtherverdicts were permitted to be delivered. In mass tort litigation, sucha flawed approach may result in critical issues such as defect ornegligence being resolved by only six jurors, whose potentially outlierverdict is then applied to resolve the cases of thousands, perhapsbankrupting a company or an industry when most juries would not sohold. Focusing on mass tort litigation, this article presents thegrowing empirical evidence of verdict variability and then critiquesthe use of issue preclusion, whose downside is applied only againstdefendants, not plaintiffs, because only defendants were parties to theprior action. As a result, the article argues that courts shouldexercise their discretion to deny issue preclusion in mass tortlitigation. Instead, courts should join the emerging consensus of masstort management that ultimately better serves the goals of efficiencyand public respect supposedly underlying issue preclusion: allowmultiple verdicts to unfold a more balanced view of liability that willfrequently be used for well-informed and far-reaching settlements.

This manuscript extends the analysis begun in my prior article, Jackpot Justice: Verdict Variability in the Mass Tort Class Action, Temple L. Rev. (forthcoming 2008).

BGS