Why Justice Thomas's Dissent from Denial of Cert on Preclusion and MDL in Du Pont is Important

Abbe Gluck

Preclusion is exciting! That’s what I tell my procedure students, lest they fail to recognize that, in sprawling suits involving public harms, speedy—and often global—resolution is the ballgame, and that’s impossible without a mechanism to shut off duplicative suits and ensure finality. Justice Thomas made preclusion even more exciting yesterday, when he issued what I believe is the first ever Supreme Court opinion questioning the legitimacy of preclusion in multidistrict litigation (MDL).  He dissented from the denial of certiorari in a case in which Du Pont challenged an MDL plaintiff's successful attempt to use non-mutual offensive collateral estoppel—that is, use a previous victory against Du Pont achieved by someone else-- against the company based on a bellwether trial utilized by the MDL to “provide meaningful information for the broader population of cases” in the MDL. What’s exciting about the opinion is, first, that Justice Thomas recognizes that MDLs now comprise a large part of the federal civl docket (a whopping 40%!), and that, as I have written (here, with Beth Burch), they are an unorthodox procedural animal, achieved trough the repurposing of the pre-trial proceeding-consolidation rule of 28 U.S.C. §1407 to become the workhorse of modern complex litigation where class actions fall short. 

Because MDLs don’t have the same due-process guardrails as class actions to ensure that classes have sufficient commonality and adequate representation of all kinds of plaintiffs, the same kind of prelusive, binding classwide judgements you get in class actions have been elusive in MDL and may raise constitutional concerns. The second thing that’s exciting about Justice Thomas’s opinion is that he raises precisely these questions about commonality, adequate representation, and due process. To be sure, this case has a complex procedural history and, as respondents point out, this particular group of MDL plaintiffs does, in fact, have some important commonalities. My interest is not in rehearsing that procedural history, nor is it in arguing that preclusion should or should not be appropriate as applied to these particular facts. My interest, rather, is in highlighting the significance of the fact that, for the first time ever, at least two Justices (Justice Kavanaugh did not join the dissent but would have granted the petition) appear interested in how MDL’s procedural unorthodoxies raise constitutional concerns that may necessitate new procedural guardrails.

The third reason the opinion is so exciting is likely less obvious. In two weeks, the Supreme Court will be reviewing the aspect of the Purdue Pharma bankruptcy deal that lets the Sackler family off the litigation hook. While the question presented is focused on that particular maneuver, the case raises much bigger questions about why we are seeing so much complex civil litigation in unorthodox procedural vehicles—whether it’s MDL or bankruptcy (and remember, Purdue started in MDL)--and how widely we want to open the door to these unorthodoxies.  In Against Bankruptcy? Public Litigation Values versus the Endless Quest for Global Peace in Mass Litigation (forthcoming Yale L.J.F. Jan.2024), Burch, Adam Zimmerman, and I diagnose those features of our traditional civil procedure system that pose obstacles to the white whale of global peace and sound the alarm about what’s lost when we eschew traditional litigation values—e.g., information production/discovery, law development, jurisdictional redundancy, representation. testimony, and more—in favor of unorthodox procedural vehicles in the name of – yes—preclusion.  Like I said: exciting.

(More on Purdue and the new paper next week.)