Cite as: 601 U. S. ____ (2023) 1
Statement of dissenting
THOMAS, J., THOMAS, J.
SUPREME COURT OF THE UNITED STATES
E. I. DU PONT DE NEMOURS & CO. v. TRAVIS ABBOTT,
ET UX.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
No. 23–13. Decided November 20, 2023
The petition for a writ of certiorari is denied. JUSTICE
KAVANAUGH would grant the petition for a writ of certio-
rari. JUSTICE ALITO took no part in the consideration or
decision of this petition.
JUSTICE THOMAS, dissenting from the denial of certiorari.
Plaintiffs brought negligence claims against petitioner
E. I. du Pont de Nemours & Co. (DuPont) on behalf of a
class of approximately 80,000 residents for DuPont’s dis-
charge of perfluorooctanoic acid into the Ohio River and the
air. They alleged that their exposure to the chemical
caused a range of diseases. The Judicial Panel on Multidis-
trict Litigation assigned the cases to multidistrict litigation
(MDL). The MDL court directed the parties to identify
cases for bellwether trials, which it explained would be in-
formational for the other pending MDL cases. The three
resulting trials ended in verdicts for the plaintiffs. DuPont
then settled the remaining cases in the MDL.
After the settlement, however, more plaintiffs brought
claims, including respondents Travis and Julie Abbott. Re-
lying on the three bellwether trials, the District Court held
that DuPont was collaterally estopped from disputing sev-
eral elements of the Abbotts’ (and the other new plaintiffs’)
claims. Specifically, the District Court prevented DuPont
from challenging duty, breach, and foreseeability. The only
elements seemingly left unresolved were specific causation
and damages. See App. to Pet. for Cert. 131. The jury found
for the Abbotts, awarding them roughly $40 million. The
2 E. I. DU PONT DE NEMOURS & CO. v. ABBOTT
THOMAS, J., dissenting
Sixth Circuit affirmed over Judge Batchelder’s partial dis-
sent. In re E. I. du Pont de Nemours & Co. C-8 Personal
Injury Litigation, 54 F. 4th 912 (2022).
DuPont now asks us to review the District Court’s appli-
cation of collateral estoppel. I would grant the petition. I
have serious doubts about the application of nonmutual of-
fensive collateral estoppel in the MDL context.
Nonmutual offensive collateral estoppel prevents a de-
fendant from relitigating issues that it lost in an earlier
case against a different plaintiff. At common law, however,
collateral estoppel—also called issue preclusion—required
mutuality of parties: A prior judgment prevented only the
same parties from relitigating settled issues in a new case
between them. See, e.g., Hopkins v. Lee, 6 Wheat. 109, 113
(1821); Deery v. Cray, 5 Wall. 795, 803 (1867). In Parklane
Hosiery Co. v. Shore, 439 U. S. 322 (1979), the Court relaxed
the mutuality requirement for a plaintiff ’s offensive use of
collateral estoppel. But the Court cautioned that this pre-
clusion should not be used when “the application of offen-
sive estoppel would be unfair to a defendant.” Id., at 331.
Extending Parklane to the MDL context seems illogical
and unfair. First, an MDL is a mechanism for streamlining
pretrial proceedings; it is not designed to fully resolve the
merits of large batches of cases in one fell swoop. When
several courts face cases involving common questions of
fact, an MDL pools resources by having one court handle
the pretrial proceedings for all related cases simultane-
ously. An MDL’s scope, however, is limited to pretrial pro-
ceedings. See 28 U. S. C. §1407(a). Once pretrial proceed-
ings are complete, the MDL court must remand the cases
back to their originating courts to be resolved on the merits.
Ibid. (“Each action so transferred shall be remanded by the
panel at or before the conclusion of such pretrial proceed-
ings . . . ” (emphasis added)); see also Lexecon Inc. v. Mil-
berg Weiss Bershad Hynes & Lerach, 523 U. S. 26, 40
Cite as: 601 U. S. ____ (2023) 3
THOMAS, J., dissenting
(1998). Although the MDL court may hold bellwether tri-
als, I have not yet seen evidence that they are anything
more than “nonbinding trial[s] . . . held to determine the
merits of the claims and the strength of the parties’ posi-
tions on the issues.” Black’s Law Dictionary 190 (11th ed.
2019) (defining “bellwether” (emphasis added)); see also 4
W. Rubenstein, Newberg and Rubenstein on Class Actions
§11:20, and n. 13 (6th ed. 2022). Indeed, the MDL court
here shared that understanding and described the bell-
wether trials as helpful “information gathering.” In re E. I.
du Pont de Nemours & Co. C-8 Personal Injury Litigation,
No. 2:13–md–2433 (SD Ohio 2016), ECF Doc. 4624, p.
100947. It is quite a stretch to use a mechanism designed
to handle only pretrial proceedings to instead resolve mul-
tiple elements of a claim based on a few nonbinding bell-
wether trials. This use of nonmutual offensive collateral
estoppel is far afield from any this Court has endorsed.
Second, expansive use of nonmutual offensive collateral
estoppel in the MDL context raises serious due process con-
cerns. See Taylor v. Sturgell, 553 U. S. 880, 891 (2008)
(“[P]reclusion is . . . subject to due process limitations”).
Although not without limits, it is “part of our deep-rooted
historic tradition that everyone should have his own day in
court.” Richards v. Jefferson County, 517 U. S. 793, 798
(1996) (internal quotation marks omitted). Application of
this type of collateral estoppel in an MDL, however, could
prevent a defendant from raising a defense in potentially
thousands of cases. It would make no difference if other
MDL plaintiffs have material differences that would pre-
vent them from making their required showing on that ele-
ment—once nonmutual offensive collateral estoppel has
been applied, a defendant’s hands are tied. In fact, a de-
fendant cannot raise a defense even if there was no notice
that bellwether trials would dictate the results of every
MDL case. Collateral estoppel also must contend with a
defendant’s right to a jury trial. See Parklane, 439 U. S., at
4 E. I. DU PONT DE NEMOURS & CO. v. ABBOTT
THOMAS, J., dissenting
346–347 (Rehnquist, J., dissenting). In short, applying non-
mutual offensive collateral estoppel in the MDL context
runs afoul of this Court’s warning that preclusion should
not be used when “the application of offensive estoppel
would be unfair to a defendant.” Id., at 331.
The MDL here is a case in point. The MDL court origi-
nally told the parties that the bellwether trials would be
informational and “would facilitate valuation of cases to as-
sist in global settlement.” ECF Doc. 4624, at 100947. Yet,
the MDL court later treated them as binding. Far from
mere gauges of the parties’ claims, the three trials turned
out to be DuPont’s only chance to litigate several elements
of claims brought by numerous different plaintiffs. The
MDL court thus used a tiny fraction of the cases against
DuPont to impose sweeping liability—all without any
warning to DuPont of the bellwether trials’ import.
The MDL court’s ruling was not only breathtaking in its
scope, but it also disregarded the fact that the three bell-
wether trials were not representative of the cases against
DuPont. For example, two bellwether plaintiffs drank wa-
ter from wells that were less than one-third of a mile from
DuPont’s plant; the Abbotts’ water, by contrast, came from
wells 14 to 56 miles away. Two bellwether plaintiffs as-
serted exposure through air emissions, in addition to expo-
sure through drinking water; the Abbotts’ alleged exposure
was only through their water. These differences in location
and source of exposure are material to each plaintiff ’s claim
that DuPont injured him through its negligent discharge of
the chemical: “Any combination of these factual differences
could lead a jury to find that a particular plaintiff ’s injuries
were not reasonably foreseeable and, therefore, that
DuPont did not owe or breach a duty of care.” 54 F. 4th, at
943 (Batchelder, J., concurring in part and dissenting in
part). And, of course, the third bellwether plaintiff was cho-
sen not as a representative case, but as one of “the most
severely impacted plaintiffs.” ECF Doc. 4624, at 100962.
Cite as: 601 U. S. ____ (2023) 5
THOMAS, J., dissenting
Given the differences among plaintiffs, DuPont may have
lost the first three trials, but perhaps it would have won the
rest. Under the MDL court’s ruling, however, DuPont had
no chance to find out.
The preclusion was also entirely one sided: While plain-
tiffs were able to use their bellwether trial wins against
DuPont, if the roles were reversed, DuPont could not have
asserted collateral estoppel against new MDL plaintiffs
without violating those plaintiffs’ due process rights. See
Blonder-Tongue Laboratories, Inc. v. University of Ill. Foun-
dation, 402 U. S. 313, 329 (1971) (explaining that “[d]ue
process prohibits estopping” those litigants “who never ap-
peared in a prior action”). DuPont had all of the downside
without any potential for upside. The lopsidedness of the
preclusion adds to the potential for unfairness.
I have doubts about whether the application of nonmu-
tual offensive collateral estoppel based on bellwether trials
comports with due process. Given that MDLs constitute a
large part of the federal docket, this issue should be re-
solved sooner rather than later. We should not sacrifice
constitutional protections for the sake of convenience, and
certainly at least not without inquiry.