United States District Court, Southern District of New York
November 25, 1991
RUTH HOPPE, PLAINTIFF,
G.D. SEARLE & COMPANY, A DELAWARE CORPORATION, DEFENDANT.
The opinion of the court was delivered by: Keenan, District Judge:
MEMORANDUM OPINION AND ORDER
Plaintiff chose the second week of trial in this action to
file a motion requesting that defendant be collaterally
estopped from relitigating the issues of intentional
misrepresentation and false advertising that constitute counts
two and six of the complaint. Notwithstanding the peculiar
timing of this motion, the Court has entertained the
application. For the reasons that follow, plaintiff's motion
Plaintiff bases her collateral estoppel argument on the jury
verdict rendered in a prior Cu-7 case, Kociemba v. G.D. Searle
& Co., Civ. No. 3-85-1599, 1988 WL 119676 (D.Minn. 1988). The
jury in that case found that Searle had intentionally
misrepresented the risks associated with the Cu-7 and that it
had falsely advertised the product. Plaintiff argues that those
determinations should be given preclusive effect in this case.
When issues have been previously determined in a diversity
action, federal standards govern the preclusive effect of the
prior judgment on a subsequent diversity action. See Kern v.
Hettinger, 303 F.2d 333, 340 (2d Cir. 1962); Stovall v. Price
Waterhouse Co., 652 F.2d 537 (5th Cir. 1981). Because Kociemba
was a diversity action, see Kociemba v. G.D. Searle & Co.,
707 F. Supp. 1517 (D.Minn. 1989), federal standards determine
whether collateral estoppel may be asserted in this case.
Collateral estoppel has the twin purposes of "protecting
litigants from the burden of relitigating an identical issue
with the same party or his privy and of promoting judicial
economy by preventing needless litigation." Parklane Hosiery
Co. v. Shore, 439 U.S. 322, 326, 99 S.Ct. 645, 649, 58 L.Ed.2d
552 (1979); see Tillman v. National City Bank of New York,
118 F.2d 631, 634, cert. denied, 314 U.S. 650, 62 S.Ct. 96, 86
L.Ed. 521 (1941). Historically, collateral estoppel was used
a party who had had a full and fair opportunity to litigate an
issue determined by a prior judgment was estopped from
relitigating the same issue in a subsequent action against a
different defendant. Parklane extended the application of
collateral estoppel from purely "defensive" to "offensive" use.
Thus, a person not a party to the first action could seek to
establish a claim against a person who had been a party to the
prior action. The Court observed that permitting a stranger to
the prior action to establish a claim against a person who had
been a party may well be unfair. See 439 U.S. at 331-32, 99
S.Ct. at 651-52. Nonetheless, rather than precluding every use
of offensive collateral estoppel, the Court preferred to leave
to the trial court wide latitude in protecting against
the preferable approach . . . is not to preclude
the use of offensive collateral estoppel, but to
grant trial courts broad discretion to determine
when it should be applied. The general rule
should be that in cases where . . . the
application of collateral estoppel would be
unfair to a defendant, a trial judge should not
allow the use of offensive collateral estoppel.
Id. at 331, 99 S.Ct. at 651-52.
The Parklane Court enumerated several situations in which a
trial court might appropriately preclude the application of
collateral estoppel. The situation most relevant to this case
is where the estoppel is based on one of a number of
conflicting judgments. As an illustration, the Court cited
Professor Currie's "familiar" fact pattern of an accident
producing multiple injuries, for which the defendant is sued
seriatim by a number of plaintiffs; the defendant successfully
defends the first suits, then loses one, and the remaining
plaintiffs seek to use the lone judgment against the defendant
as an estoppel in the remaining suits. See 439 U.S. at 330 n.
14, 99 S.Ct. at 651 n. 14 (citing Currie, Mutuality of
Estoppel: Limits of the Bernhard Doctrine, 9 Stan.L.Rev. 281,
304 (1957). This example parallels the case at bar.
As defendant points out, G.D. Searle has won 16 of the 20
Cu-7 suits that have reached juries. See Def.Opp. at 16.
Because there have been conflicting judgments, this Court finds
that it would be inequitable to allow plaintiff to rely on one
of the few plaintiff's verdicts to preclude Searle from
litigating counts two and six of the complaint. See, e.g., In
re Bendectin Products Liability Litigation, 749 F.2d 300, 305
(6th Cir. 1984) (offensive collateral estoppel inappropriate in
mass-tort litigation); Setter v. A.H. Robins Co.,
748 F.2d 1328, 1330 (8th Cir. 1984) (upholding trial court's refusal to
apply offensive collateral estoppel because defendant IUD
manufacturer had prevailed in 12 of 21 prior cases); Harrison
v. Celotex, 583 F. Supp. 1497, 1503 (E.D.Tenn. 1984) (refusing
to allow collateral estoppel where there were prior
Further, the misrepresentation and deceptive trade practice
claims are necessarily fact-driven, involving different
physicians with different training and experience. The
Kociemba jury made specific findings about Mrs. Kociemba's
inserting and treating physician, Dr. Scanlon, based largely on
his extensive testimony, and rendered its verdict based on
those findings. That jury did not hear any testimony from or
about Ruth Hoppe's inserting physician, Dr. Sloan. To grant
preclusive effect to the Kociemba jury's fact-specific
determinations would essentially permit that jury to hold that
every physician in the United States who ever inserted a Cu-7
actually relied on misrepresentations that Searle was found to
have made to Dr. Scanlon. Such a result would be preposterous.
The jury in this case will not be deprived of its right to
determine the facts surrounding Dr. Sloan's 1978 decision to
insert Ruth Hoppe's Cu-7.
Plaintiff's motion to preclude defendant from relitigating
counts two and six of the complaint is therefore denied.
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