54 F.4th 912
6th Cir.2022Background:
- DuPont discharged C‑8 (PFOA) for decades around its Washington Works plant; by the 2000s a Science Panel concluded C‑8 was probably linked to six diseases, including testicular cancer.
- The Leach class settlement required class members to submit to medical testing and funded a seven‑year Science Panel study; class membership was defined by ≥0.05 ppb C‑8 in drinking water for ≥1 year.
- The Leach Agreement barred individual suits for diseases the Panel found "No Probable Link," and DuPont agreed not to contest general causation for diseases with a "Probable Link."
- About 3,500 post‑Panel cases were consolidated in an MDL; three cases (Bartlett, Freeman, Vigneron) went to trial and returned plaintiff verdicts; bellwether selection procedures were used.
- Travis and Julie Abbott sued after learning of the C‑8 link; at trial the district court applied nonmutual offensive collateral estoppel (precluding DuPont from relitigating duty, breach, foreseeability and the Agreement’s interpretation), limited DuPont’s dose‑response evidence under the Leach Agreement, denied a directed verdict on statute of limitations, and a jury awarded the Abbotts damages.
- The Sixth Circuit affirmed in full: it upheld application of collateral estoppel, the evidentiary rulings tied to the Leach Agreement, and the court’s statute‑of‑limitations judgment as a matter of law.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Use of nonmutual offensive collateral estoppel to preclude DuPont from relitigating duty, breach, foreseeability | Abbotts: prior jury verdicts decided those issues; estoppel conserves resources and preserves the Leach bargain | DuPont: offensive estoppel in mass torts is unfair here—bellwethers unrepresentative; factual differences among plaintiffs; due process violated | Affirmed: Ohio law and Parklane factors permit offensive estoppel here; prior trials were sufficiently similar, necessary to verdicts, and DuPont had full opportunity to litigate |
| Preclusive effect of Leach Agreement/Science Panel findings on general causation and admissibility of dose‑response evidence | Abbotts: Leach Agreement bargained away DuPont’s right to contest general causation; class threshold (0.05 ppb) applies to linked diseases | DuPont: agreement doesn’t bar contesting specific causation or dose evidence; exclusion gutted specific‑causation defense | Affirmed: court properly interpreted Agreement—Probable Link findings preclude general‑causation challenges and bar evidence that would undermine the bargained general‑causation concession, though dosage evidence consistent with the Agreement remained admissible |
| Admissibility of specific‑causation experts and alternative‑cause testimony (dose‑response, differential diagnosis) | Abbotts: experts relied on differential diagnosis and Science Panel’s Probable Link; specific causation was for jury | DuPont: plaintiffs’ experts ignored dose thresholds; DuPont was improperly barred from offering experts to show low individual exposure or alternative causes | Affirmed in part: differential‑diagnosis testimony admitting C‑8 as a possible cause was admissible; DuPont could present alternative‑cause evidence but could not introduce testimony that contravened the Leach Agreement’s general‑causation concession |
| Statute of limitations accrual for 1994 and 2015 cancers; directed verdict on limitations | Abbotts: 2015 definitive diagnosis (Nov 16, 2015) was the accrual; Abbott lacked earlier notice tying his cancers to C‑8 so claims timely | DuPont: constructive notice (media, family suits, Science Panel publicity) or earlier scans put Abbott on notice before 2015 and/or 2017 filing; issue for jury | Affirmed: 2015 accrual properly fixed at definitive pathologic diagnosis; for 1994 cancer the court reasonably found Abbott lacked notice and the directed verdict for plaintiffs on limitations was proper given the record (no sufficient evidence of constructive notice) |
Key Cases Cited
- Parklane Hosiery Co. v. Shore, 439 U.S. 322 (U.S. 1979) (sets fairness factors and grants broad trial‑court discretion for offensive nonmutual collateral estoppel)
- In re Chevron U.S.A., Inc., 109 F.3d 1016 (5th Cir. 1997) (bellwether results used to bind others require representativeness to satisfy due process)
- In re Bendectin Prod. Liab. Litig., 749 F.2d 300 (6th Cir. 1984) (discusses collateral estoppel and bellwether considerations in MDL context)
- Yeager v. United States, 557 U.S. 110 (U.S. 2009) (general verdicts can be ambiguous and hinder issue preclusion)
- Best v. Lowe's Home Ctrs., Inc., 563 F.3d 171 (6th Cir. 2009) (endorses differential diagnosis as acceptable method for individual causation testimony)
- Norgard v. Brush Wellman, Inc., 766 N.E.2d 977 (Ohio 2002) (Ohio discovery rule for accrual of toxic‑exposure claims)
- Groob v. KeyBank, 843 N.E.2d 1170 (Ohio 2006) (Ohio standard for directed verdict/judgment as a matter of law)