Another Jackpot (In)Justice: Verdict Variability and Issue Preclusion in Mass Torts

Abstract

In exploring the implications of recent evidence of verdict variability for issue preclusion and situating issue preclusion within the emerging consensus of mass tort management, this article furthers the analysis of my prior work examining verdict variability and mass tort class actions and deepens the scholarly criticism of the use of issue preclusion in mass tort litigation. 

Part II of this article discusses the growing empirical evidence of verdict variability on general issues of liability and explains that variability is expectable given the jury's necessarily limited representation of the community. Part III then examines and critiques the doctrine of offensive non-mutual issue preclusion in mass tort litigation, particularly in light of the concerns created by verdict variability. Next, Part IV discusses, as an alternative mass tort management approach to issue preclusion, the use of multiple verdicts in individual trials that frequently lead to broad, wellinformed mass tort settlements that serve judicial efficiency and effectuate well the tort goals of corrective justice, deterrence, and compensation. Finally, Part V concludes that offensive non-mutual issue preclusion is problematic, that courts should use their discretion to reject issue preclusion in mass tort litigation, and that courts should join in moving the entire mass tort to maturity and likely settlement through multiple verdicts that provide a more balanced assessment of the issues involved.