(temporarily assigned), dissenting.
My colleagues have concluded that the Appellate Division erred when it reversed the judgment of the trial court granting summary judgment to defendants and dismissing plaintiffs’ complaint. I am unable to agree, and therefore I dissent.
Plaintiff Jamie Gannon received five doses of an oral polio vaccine, administered by his pediatrician, between 1973 and 1976. He was later diagnosed with a medulloblastoma, a malignant brain tumor. Plaintiffs contend that the vaccine he received as a child was tainted with a simian virus known as SV40 and that the contamination was causally linked to Jamie Gannon’s malignant tumor. The factual background to the development of oral polio vaccines and the claim of SV40 contamination of those vaccines is set forth in Rivard v. American Home Products, Inc., 391 N.J.Super. 129, 917 A.2d 286 (App.Div.2007), and Campagna v. American Cyanamid Company, 337 N.J.Super. 530, 767 A.2d 996 (App.Div.2001).
Plaintiffs sought damages on two fronts: from the United States government on the theory that it negligently permitted contaminated vaceines to be produced and distributed, and from the producers and distributors of the contaminated polio vaceines. Proceeding on the first theory, plaintiffs filed suit against the United States in the Eastern District of Pennsylvania under the Federal Tort Claims Act, 28 U.S.C.A. §§ 2671 to 2680; on the second, they filed suit against defendants in the Superior Court of New Jersey.
The record that is before this Court contains no details with respect to the discovery that was undertaken in the federal action. *482Plaintiffs’ discovery efforts in this action focused on two questions: identifying the company that produced and distributed the oral polio vaccine that was administered to Jamie Gannon and establishing the causal role the vaccine played in his medulloblastoma. It is clear that the discovery process in this action did not always proceed smoothly. It is undisputed in the record before us that although plaintiffs filed their state court complaint in June 2003, they had not progressed to the point of naming their experts on liability when defendants filed their motion for summary judgment in June 2007. The fact that discovery was not complete in this state court action at that juncture is demonstrated by the fact that there were a number of discovery motions returnable on the same date as the summary judgment motion. Further, the record before us does not contain any case management orders setting a final date for plaintiffs either to name their liability experts or to serve reports from those experts.
That plaintiffs had not completed the causal aspect of their pretrial preparation was initially immaterial to defendants’ summary judgment motion because that motion rested entirely on defendants’ argument that plaintiffs’ proofs on product identification were insufficient. Shortly before the summary judgment motion was to be argued, however, defendants filed what they termed a “supplemental brief,” seeking summary judgment on an entirely new basis. In its supplemental brief, defendants asserted a claim of collateral estoppel, based upon a judgment entered in the federal action ten days before defendants filed their supplemental brief.
In the federal action, the District Court in Pennsylvania had started a bench trial in January 2007. In that action, the government objected to the admissibility of the opinion of plaintiffs’ expert on causation, Dr. Adi Gazdar. The District Court held a Daubert hearing. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) (holding that trial court performs “gatekeeping” function by determining whether proposed expert testimony is based on reasoning or methodology that *483is scientifically valid and fits with contested issues in case). After hearing Dr. Gazdar’s testimony, as well as the testimony of the government’s three expert witnesses with respect to causation, all of whom disagreed with Dr. Gazdar’s methodology and conclusions, the District Court ruled that Dr. Gazdar’s testimony and opinions would be admissible at trial.
Following that ruling, the government made a motion under F.R.C.P. 52(c) for a judgment on partial findings with respect to the question of causation. The District Court analyzed the testimony that had been presented, both in terms of general causation — whether SV40 can cause medulloblastoma — and specific causation — whether it caused Jamie Gannon’s medulloblastoma. On July 17, 2007, some seven months after the hearing had concluded, the District Court issued its memorandum decision with its findings of fact and conclusions of law. It determined that plaintiffs’ proofs with respect to causation were insufficient, and it granted judgment in favor of the United States. Gannon v. United States, 571 F.Supp.2d 615 (E.D.Pa.2007), aff'd, 292 Fed.Appx. 170, 175 (3d Cir.2008).
Ten days after the District Court issued its decision, defendants filed the aforementioned supplemental brief with the state court, arguing that the decision in the federal action collaterally estopped plaintiffs from pursuing the state court action. Defendants’ summary judgment motion was argued twice, as were the accompanying discovery motions. In February 2008, the trial court issued a written opinion, deciding both aspects of defendants’ summary judgment motion. It ruled that plaintiffs’ proofs with respect to product identification were insufficient and that plaintiffs were collaterally estopped from contesting the issue of causation because of the District Court judgment.
Plaintiffs appealed, and the Appellate Division reversed both aspects of the trial court’s determination. Although my colleagues have only addressed the question of collateral estoppel, I note for the sake of completeness that I consider the Appellate Division’s determination with respect to product identification to be entirely *484correct. In my judgment, plaintiffs assembled sufficient evidence to permit a fact-finder to infer that defendant (more precisely, its corporate predecessors) manufactured and distributed the oral polio vaccine that Jamie Gannon’s pediatrician dispensed to him. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540, 666 A.2d 146 (1995) (discussing the standard for summary judgment motions).
My disagreement with my colleagues springs from my judgment that they have overemphasized what I view as essentially a very narrow treatment of the question of collateral estoppel. My colleagues, for instance, are of the opinion that the appellate panel “concluded that there were equitable considerations that militated against granting collateral estoppel effect to the judgment of the federal court.” (Op. at 457, 48 A.3d at 1096). In my judgment, the appellate panel did not reach the conclusion that equitable considerations existed but simply determined that plaintiffs should be afforded the opportunity to demonstrate such equitable considerations in fact existed.
The appellate panel, after correctly noting under Watkins v. Resorts International Hotel & Casino, Inc., 124 N.J. 398, 411, 591 A.2d 592 (1991), that “the binding effect of a judgment is determined by the law of the jurisdiction that rendered it[,]” undertook a comprehensive review of the principles of collateral estoppel both under New Jersey law and under federal law. While that discussion may have been unnecessary, it did not taint the panel’s analysis, because both New Jersey and the Third Circuit follow the Restatement (Second) of Judgments (Restatement) with respect to collateral estoppel and the exceptions to its application set forth in sections 28 and 29 of the Restatement. Olivieri v. Y.M.F. Carpet, Inc., 186 N.J. 511, 523, 897 A.2d 1003 (2006); Duvall v. Attorney Gen. of the United States, 436 F.3d 382, 391 (3d Cir.2006); Wells v. Rockefeller, 728 F.2d 209, 214-15 (3d Cir.1984), cert. denied, 471 U.S. 1107, 105 S.Ct. 2343, 85 L.Ed.2d 858 (1985); see also Del. River Port Auth. v. Fraternal Order of Police, 290 F.3d 567, 573 n. 10 (3d Cir.2002) (noting that New Jersey and *485federal standards for collateral estoppel “are almost identical”). Defendants moreover agreed before the Appellate Division that there was no substantive distinction with respect to collateral estoppel between the law applied by New Jersey courts and that applied by the Third Circuit.
Section 27 of the Restatement, supra, sets forth the general principles of collateral estoppel. Section 28 sets forth certain exceptions to those general principles in the context of litigation between the same parties, and Section 29 sets forth the applicable exceptions in the case of subsequent litigation involving a non-party to the first action. Because defendant was not a party to the federal action, Section 29 provides the appropriate analytical framework for this matter.
Restatement, supra, section 29(8) provides in pertinent part that
[a] party precluded from relitigating an issue with an opposing party, in accordance with §§27 and 28, is also precluded from doing so with another person unless the fact that he lacked full and fair opportunity to litigate the issue in the first action or other circumstances justify affording him an opportunity to relitigate the issue. The circumstances to which considerations should be given include those enumerated in § 28 and also whether:
(8) Other compelling circumstances make it appropriate that the party be permitted to relitigate the issue.
The appellate panel did not determine that there were “compelling circumstances” that made the invocation of collateral estoppel inequitable. Rather, it merely held that “the motion record as presented to the judge, and in turn, the appellate record as presented to us, do not permit consideration of whether ‘[ojther compelling circumstances make it appropriate’ ” to permit plaintiff to continue this litigation. Gannon v. Am. Home Prods., 414 N.J.Super. 507, 525, 999 A.2d 522 (2010) (quoting Restatement, supra, § 29(8)). In my judgment, the appellate panel correctly noted the constricted record that had been presented to it and further correctly declined to make factual determinations from that constricted record. In an exercise of caution and restraint, it remanded the matter to the trial court for a determination of that discrete issue. In doing so, it followed the approach of the Third *486Circuit, which recognizes that if there is a fully developed record, it is appropriate for an appellate court to make factual findings, but in the absence of such a record, a remand to the trial court is appropriate. Forbes v. Twp. of Lower Merion, 313 F.3d 144, 149-50 (2002).
Further, in remanding this matter, the appellate panel did no more than recognize, as has the Third Circuit, that “[e]ven when the requirements of the general rule of collateral estoppel are satisfied, the Court must consider whether there are special circumstances present which make it inequitable or inappropriate to foreclose relitigation of a previously determined issue.” Nat’l R.R. Passenger Corp. v. Pa. Pub. Util. Comm’n, 288 F.3d 519, 528 (3d Cir.2002).
Collateral estoppel serves important policy objectives: “conservation of judicial resources; avoidance of repetitious litigation; and prevention of waste, harassment, uncertainty and inconsistency.” Olivieri, supra, 186 N.J. at 523, 897 A.2d 1003 (quoting Pace v. Kuchinsky, 347 N.J.Super. 202, 216, 789 A.2d 162 (App.Div. 2002)). “[IJssue preclusion can avoid costly litigation of issues already determined.” Del. River Port Auth., supra, 290 F.3d at 572 n. 7 (citing O’Shea v. Amoco Oil Co., 886 F.2d 584, 593 (3d Cir.1989)).
In my judgment, the appellate panel did not disregard or subvert those policy objectives by granting a limited remand. Plaintiffs are entitled to create a record as to what special circumstances are present that may make it “inequitable or inappropriate” to apply collateral estoppel. An appellate court is not an appropriate forum in which to create a record; it deals with the record to the extent it has been created in the lower court. Scott v. Salerno, 297 N.J.Super. 437, 447, 688 A.2d 614 (App.Div.), certif. denied, 149 N.J. 409, 694 A.2d 194 (1997). If, on remand, plaintiffs are unable to demonstrate the presence of such special circumstances, defendant would then be entitled to summary judgment. I can perceive no basis, however, to preclude plaintiffs *487from making that effort, and I would thus affirm the judgment of the Appellate Division.
For reversal — Chief Justice RABNER and Justices LaVECCHIA, ALBIN, HOENS and PATTERSON — 5.
For affirmance — Judge WEFING (temporarily assigned) — 1.