Supreme Court of the United States · Official docket →
E.I. du Pont de Nemours & Co. v. Travis Abbott, et ux.
Paid petition · United States Court of Appeals for the Sixth Circuit, No. 21-3418 · judgment December 5, 2022
Before the decision, about 4.7× the 4.1% base rate. The model weighted this up for counsel who has won certiorari before, a circuit split argued in the petition, and a dissent in the court below (flagged in the petition).
Question presented
This case arises from a long-running multidistrict litigation (“MDL”) in which thousands of plaintiffs claimed injuries from permitted chemical releases from one of petitioner’s plants. Some plaintiffs lived near the plant, while others lived tens of miles away; some claimed exposure via discharges to water, others via air emissions; and the claimed dates of exposure varied widely. Because of such differences, these damages claims proceeded in an MDL rather than a class action. As is common in MDLs, a few cases were selected for informational, expressly non-binding “bellwether trials.” After three trials resulted in plaintiff verdicts—in cases not designed to be representative of all the MDL cases, and despite the court’s assurances that the verdicts would be non-binding—the district court invoked nonmutual offensive collateral estoppel to preclude petitioner from disputing the key issues of duty, breach, and foreseeability here and across the MDL. The Sixth Circuit affirmed in a sharply divided decision, with the panel majority embracing the district court’s novel application of nonmutual offensive collateral estoppel to bellwether trials and rejecting any representativeness requirement. Judge Batchelder dissented, explaining that the decision conflicted with other circuits and would spell the end of bellwether trials in MDLs. The question presented is: Whether nonmutual offensive collateral estoppel can be applied to make the results of a handful of unrepresentative bellwether trials binding on the defendant in all pending and future cases in an MDL.
Counsel of record
For petitioner
Paul D. Clement
Clement & Murphy, PLLC
For respondent
Matthew W.H. Wessler
Gupta Wessler LLP
Argument & decision
Decided November 20, 2023.
Proceedings
- Nov 20 2023Petition DENIED. Justice Kavanaugh would grant the petition for a writ of certiorari. Justice Alito took no part in the consideration or decision of this petition. Justice Thomas, dissenting from the denial of certiorari. (Detached Opinion)
- Nov 13 2023DISTRIBUTED for Conference of 11/17/2023.
- Nov 06 2023DISTRIBUTED for Conference of 11/9/2023.
- Oct 30 2023DISTRIBUTED for Conference of 11/3/2023.
- Oct 23 2023DISTRIBUTED for Conference of 10/27/2023.
- Oct 10 2023DISTRIBUTED for Conference of 10/13/2023.
- Oct 02 2023DISTRIBUTED for Conference of 10/6/2023.
- Aug 30 2023DISTRIBUTED for Conference of 9/26/2023.
- Aug 30 2023Reply of petitioner E.I. du Pont de Nemours & Co. filed. (Distributed)
- Aug 15 2023Brief of respondents Travis Abbott, et al. in opposition filed.
- Aug 04 2023Brief amici curiae of DRI Center for Law and Public Policy and Lawyers for Civil Justice filed.
- Aug 04 2023Brief amici curiae of Chamber of Commerce of the United States of America, et al. filed.
- Aug 04 2023Brief amici curiae of 3M, et al. filed.
- Aug 04 2023Brief amicus curiae of Washington Legal Foundation filed.
- Jul 31 2023Motion to extend the time to file a response is granted and the time is extended to and including August 15, 2023, for all respondents.
- Jul 31 2023Brief amicus curiae of Product Liability Advisory Council, Inc. filed.
- Jul 28 2023Motion to extend the time to file a response from August 4, 2023 to August 15, 2023, submitted to The Clerk.
- Jun 30 2023Petition for a writ of certiorari filed. (Response due August 4, 2023)
- May 09 2023Application (22A860) granted by Justice Kavanaugh extending the time to file until June 30, 2023.
- May 05 2023Application (22A860) to extend further the time from June 1, 2023 to June 30, 2023, submitted to Justice Kavanaugh.
- Apr 03 2023Application (22A860) granted by Justice Kavanaugh extending the time to file until June 1, 2023.
- Mar 29 2023Application (22A860) to extend the time to file a petition for a writ of certiorari from May 2, 2023 to June 1, 2023, submitted to Justice Kavanaugh.