RECOMMENDED FOR PUBLICATION
`Pursuant to Sixth Circuit I.O.P. 32.1(b)
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`File Name: 22a0261p.06
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`UNITED STATES COURT OF APPEALS
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`FOR THE SIXTH CIRCUIT
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`No. 21-3418
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`IN RE: E. I. DU PONT DE NEMOURS AND COMPANY C-8
`PERSONAL INJURY LITIGATION.
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`___________________________________________
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`TRAVIS ABBOTT; JULIE ABBOTT,
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`Plaintiffs-Appellees,
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`v.
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`E. I. DU PONT DE NEMOURS AND COMPANY,
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`Defendant-Appellant.
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`Appeal from the United States District Court for the Southern District of Ohio at Columbus.
`Nos. 2:13-md-02433; 2:17-cv-00998—Edmund A. Sargus, Jr., District Judge.
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`Argued: June 10, 2022
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`Decided and Filed: December 5, 2022
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`Before: BATCHELDER, STRANCH, and DONALD, Circuit Judges.
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`_________________
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`COUNSEL
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`ARGUED: Damond R. Mace, SQUIRE PATTON BOGGS (US) LLP, Cleveland, Ohio, for
`Appellant. Matthew W.H. Wessler, GUPTA WESSLER PLLC, Washington, D.C., for
`Appellees. ON BRIEF: Damond R. Mace, Aneca E. Lasley, SQUIRE PATTON BOGGS (US)
`LLP, Cleveland, Ohio, Lauren S. Kuley, Colter L. Paulson, SQUIRE PATTON BOGGS (US)
`LLP, Cincinnati, Ohio, John A. Burlingame, SQUIRE PATTON BOGGS (US) LLP,
`Washington, D.C., for Appellant. Matthew W.H. Wessler, GUPTA WESSLER PLLC,
`Washington, D.C., Rachel Bloomekatz, BLOOMEKATZ LAW LLC, Columbus, Ohio, Jon C.
`Conlin, F. Jerome Tapley, Elizabeth E. Chambers, Nina Towle Herring, Mitchell Theodore, Brett
`Thompson, CORY WATSON, PC, Birmingham, Alabama, for Appellees.
` Brian D.
`Schmalzbach, McGUIRE WOODS LLP, Richmond, Virginia, Mark A. Behrens, SHOOK,
`HARDY & BACON, L.L.P. Washington, D.C., Sean P. Wajert, SHOOK, HARDY & BACON,
`L.L.P., Philadelphia, Pennsylvania, Anne Marie Sferra, Christopher P. Gordon, BRICKER &
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`

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`No. 21-3418
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`In re E. I. du Pont de Nemours & Co.
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`Page 2
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`ECKLER LLP, Columbus, Ohio, Jeffrey R. White, AMERICAN ASSOCIATION FOR
`JUSTICE, Washington, D.C., Alison Borochoff-Porte, POLLOCK COHEN LLP, New York,
`New York, Gary A. Davis, DAVIS & WHITLOCK, P.C., Asheville, North Carolina, for Amici
`Curiae.
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`STRANCH, J., delivered the opinion of the court in which DONALD, J., joined in full,
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`and BATCHELDER, J., joined in part. BATCHELDER, J. (pp. 30–46), delivered a separate
`opinion concurring in part and dissenting in part.
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`_________________
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`OPINION
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`_________________
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`JANE B. STRANCH, Circuit Judge. In the 1950s, E. I. du Pont de Nemours & Co.
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`(DuPont) began discharging vast quantities of C-8—a “forever” chemical that accumulates in the
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`human body and the environment—into the Ohio River, landfills, and the air surrounding its
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`plant in West Virginia, contaminating the communities’ water sources. By the 1960s, DuPont
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`learned that C-8 is toxic to animals and, by the 1980s, that it is potentially a human carcinogen.
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`Despite these and other warnings, DuPont’s discharges increased between 1984 and 2000.
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`By the early 2000s, evidence confirmed that C-8 caused several diseases among the members of
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`the communities drinking the contaminated water, which led to a class action lawsuit against
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`DuPont. The parties undertook negotiations and ultimately entered into a unique settlement
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`agreement in which DuPont promised to carry out treatment of the affected water and to fund a
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`scientific process that would inform the class members and communities about the dangers of
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`and harms from C-8 exposure. In service of that process, the class voted to make receipt of the
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`cash award contingent on a full medical examination to test for and collect data on C-8 exposure.
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`A panel of scientists then conducted an approximately seven-year epidemiological study of the
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`blood samples and medical records of over 69,000 affected community members, during which
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`litigation against DuPont was paused. The parties’ agreement limited the legal claims that could
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`be brought against DuPont based on the study’s determination of which diseases prevalent in the
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`communities were likely linked to C-8 exposure. The resulting cases were consolidated in a
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`multidistrict litigation (MDL).
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`No. 21-3418
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`In re E. I. du Pont de Nemours & Co.
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`Page 3
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`After two bellwether trials and a post-bellwether trial reached jury verdicts against
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`DuPont, the parties settled the remaining cases. That did not end all the C-8 litigation, as more
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`class members filed suit when they became sick or discovered the connection between their
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`diseases and C-8, including this case brought by Travis and Julie Abbott. At the Abbotts’ trial,
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`the district court applied collateral estoppel to specific issues that were unanimously resolved in
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`the three prior jury trials, excluded certain evidence from the trial based on the initial settlement
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`agreement, and rejected DuPont’s motion for a directed verdict on its statute-of-limitations
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`defense. The jury found for the Abbotts. On appeal, DuPont challenges those three district court
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`decisions. For the reasons that follow, we AFFIRM the judgment of the district court in full.
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`I. BACKGROUND
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`The Abbotts’ case has its roots in the 1950s, when DuPont began using C-8 to
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`manufacture Teflon© products at its Washington Works Plant in Parkersburg, West Virginia. C-
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`8, or perfluorooctanoic acid (PFOA), is a synthetic organic chemical that is soluble in water and
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`persists in both the human body and the environment. DuPont discharged C-8 into the air, the
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`Ohio River, and landfills without limits until the early 2000s, as explained below.
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`DuPont learned in the 1960s that C-8 was toxic to animals and was reaching groundwater
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`in the communities surrounding its plant. By the late 1980s, DuPont internally considered the
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`chemical a possible human carcinogen and found that it stayed in the human bloodstream for
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`years. Despite warnings from its C-8 supplier on proper disposal and the availability of a
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`substitute, DuPont increased its C-8 discharges between 1984 and 2000. Documents obtained in
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`discovery in a 1998 case against DuPont revealed the contamination and kicked off a wave of
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`further litigation.
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`A. The Leach Class Action and Settlement
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`In the early 2000s, individuals who had consumed the contaminated water sued DuPont
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`in West Virginia state court in Leach v. E. I. du Pont de Nemours & Co., No. 01-C-698 (W. Va.
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`Cir. Ct.). They brought numerous claims under West Virginia common law, seeking equitable,
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`injunctive, and declaratory relief, and punitive and compensatory damages for alleged injuries
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`arising from C-8 exposure. In 2002, the West Virginia trial court certified a class of nearly
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`No. 21-3418
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`In re E. I. du Pont de Nemours & Co.
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`Page 4
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`80,000 individuals “whose drinking water is or has been contaminated with” C-8 attributable to
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`DuPont’s C-8 discharges from the Washington Works Plant. (MDL R. 820-8, Leach Agreement,
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`PageID 11807)1 In 2005, the trial court approved the parties’ class-wide settlement agreement,
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`called the Leach Agreement in the later MDL proceedings. (See generally id.)
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`The Leach Agreement fashioned unique measures to be undertaken over time to obtain
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`scientific and medical information in order to address the harms to the affected workers and
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`communities. For example, the parties agreed that DuPont would fund the design, installation,
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`operation, and maintenance of a water treatment project designed to “reduce the levels of C-8 in
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`the affected water supply to the lowest practicable levels as specified by the individual Public
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`Water Districts.” (Id., PageID 11821) The Leach Plaintiffs were also concerned about how the
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`members of the class were and would be harmed by C-8, so the class voted to make class
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`members’ receipt of the cash award reached in the settlement contingent on a full medical
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`examination.2 The medical data that resulted from those examinations were used in a broad
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`epidemiological study into the effects of C-8 on the community, which DuPont was required to
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`fund. (See MDL R. 2416-3, PageID 35731–32; MDL R. 820-8, PageID 11823) The community
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`health study was performed by the Science Panel, three independent epidemiologists jointly
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`selected by DuPont and the Plaintiffs, that carried out research on diseases among the
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`communities exposed to C-8 in the water districts around Washington Works. (MDL R. 820-8,
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`PageID 11823) The Leach Agreement also led to medical monitoring of diseases the Science
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`Panel deemed linked to C-8 for class members. (Id., PageID11826–27)
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`The parties also agreed to a unique procedure that defined the parameters of legal actions
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`the Leach Plaintiffs could bring against DuPont based on the results of the epidemiological
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`1The record contains documents filed in Abbott’s individual case, 2:17-cv-998 on the district court docket,
`documents filed on the MDL docket, 2:13-md-2433, as well as documents filed in earlier individual cases against
`DuPont. Where relevant, our opinion refers to documents filed on Abbott’s docket as “R.” and documents found on
`the MDL docket as “MDL R.” Where documents from earlier individual cases are relevant, the case name is
`included before the “R.” (e.g., “Bartlett R.” for documents from the Bartlett docket).
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`2See Nathaniel Rich, The Lawyer Who Became DuPont’s Worst Nightmare, N.Y. Times (Jan. 6, 2016),
`https://www.nytimes.com/2016/01/10/magazine/the-lawyer-who-became-duponts-worst-nightmare.html. A Leach
`“Plaintiff” or “class member” is defined as those individuals who had consumed drinking water with 0.05 parts per
`billion (ppb) or more “C-8 attributable to releases from Washington Works” from at least one of six specific public
`water districts, private wells in those districts, or otherwise specified private wells. (MDL R. 820-8, PageID 11807)
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`No. 21-3418
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`In re E. I. du Pont de Nemours & Co.
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`Page 5
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`study. For each disease studied, the Science Panel would ultimately issue either a “Probable
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`Link finding” or a “No Probable Link finding.” A “Probable Link” means, “based upon the
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`weight of the available scientific evidence, it is more likely than not that there is a link between
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`exposure to C-8 and a particular Human Disease among Class Members.” (Id., PageID 11805)
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`Once the Science Panel released its results, the right of individual class members to pursue their
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`personal injury and wrongful death claims against DuPont was limited to diseases with a
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`Probable Link finding. (Id., PageID 11811) In these lawsuits related to linked diseases, DuPont
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`agreed not to contest general causation—“that it is probable that exposure to C-8 is capable of
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`causing a particular Human Disease”—but it retained the right to contest specific causation and
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`assert any other defenses not barred by the Leach Agreement. (Id., PageID 11804, 11811) The
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`Agreement defined specific causation to mean “that it is probable that exposure to C-8 caused a
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`particular Human Disease in a specific individual.” (Id., PageID 11806) For diseases for which
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`the Science Panel reported a “No Probable Link finding” or found no association with C-8
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`exposure, class members would be forever barred from bringing claims for injury or death
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`against DuPont for C-8 exposure based on those diseases. (Id., PageID 11810) The Leach
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`Plaintiffs also agreed to refrain from seeking immediate relief—through a conditional release of
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`claims and a covenant not to sue DuPont for C-8 exposure—until the Science Panel completed
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`its study. (See id., PageID 11810–11)
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`For seven years, the Science Panel engaged in the specified epidemiological study. In
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`one of the largest domestic epidemiological studies ever, over 69,000 class members provided
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`blood samples and medical records. (MDL R. 4306, Disp. Mot. Order No. 12 Denying JMOL on
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`Bartlett Claims, PageID 89502) In 2012, using this data and its own established protocols, the
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`Science Panel reported Probable Link findings as defined in the Leach Agreement for six
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`diseases: kidney cancer, testicular cancer, thyroid disease, ulcerative colitis, diagnosed high
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`cholesterol, and pregnancy-induced hypertension and preeclampsia. (MDL R. 5285, Disp. Mot.
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`Order on Issue Preclusion, PageID 128535) The Science Panel reached a No Probable Link
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`Finding for approximately 50 diseases; class members with those diseases were forever barred
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`from bringing claims against DuPont based on those diseases, even if later discovered facts and
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`science revealed a link to C-8. (Id.; MDL R. 820-8, PageID 11810)
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`No. 21-3418
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`In re E. I. du Pont de Nemours & Co.
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`Page 6
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`B. The MDL and Prior Appeal
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`After the Science Panel’s Probable Link findings, the members of the Leach class with
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`linked diseases brought approximately 3,500 cases against DuPont pursuant to the Leach
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`Agreement. At DuPont’s request, the federal courts consolidated those cases in an MDL in the
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`Southern District of Ohio. The district court overseeing the MDL engaged in a months-long
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`process with the parties to identify 20 cases for discovery, then to narrow that list further for
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`bellwether trials. In guiding the parties’ selections, both “[t]he parties and the Court intend[ed]”
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`that the bellwether plaintiffs selected for initial discovery and ultimately trial “reflect a
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`representative sampling of cases which [would] provide meaningful information for the broader
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`population of cases.”3 Toward this end, the parties limited their initial plaintiff designations
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`according to specified parameters, and the court established a detailed procedure for selection of
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`the initial bellwether trials. The parties were ordered to exchange lists of four proposed
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`plaintiffs, then each side was permitted to strike one of the other side’s selections. Ultimately,
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`the parties proposed and the court accepted six cases—three selected by the Plaintiffs’ Steering
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`Committee, three by DuPont—for bellwether trials. The district court overseeing the MDL also
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`oversaw the cases as they went to trial or settled.
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`In the first bellwether trial—a case selected by DuPont—the jury awarded Carla Bartlett
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`$1.6 million in compensatory damages against DuPont for her state law tort claims related to
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`kidney cancer. See Bartlett v. DuPont, No. 13-cv-170. Five bellwether cases remained. The
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`next trial, Freeman v. Dupont, No. 13-cv-1103, a case selected by Plaintiffs, included a
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`negligence claim arising from Freeman’s testicular cancer and resulted in a jury verdict for
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`Freeman. DuPont settled the remaining bellwether cases with the Plaintiffs. The Plaintiffs’
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`Steering Committee then selected the first of the non-bellwether cases to go to trial in 2016.
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`Vigneron v. DuPont, No. 13-cv-136. That case brought negligence claims, used the jury
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`instructions on negligence given at the Bartlett and Freeman trials, and resulted in a jury verdict
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`awarding $2 million in compensatory damages to the plaintiff.
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`3The court’s and parties’ intentions were aligned with the broader purpose of bellwether trials, which serve
`the “twin goals” of being “informative indicators of future trends and catalysts for an ultimate resolution.” Eldon E.
`Fallon et al., Bellwether Trials in Multidistrict Litigation, 82 Tul. L. Rev. 2323, 2343 (2008).
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`

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`No. 21-3418
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`In re E. I. du Pont de Nemours & Co.
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`Page 7
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`While DuPont continued litigation in the district court, it appealed the Bartlett case. In
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`that appeal, DuPont argued that the district court had interpreted the Leach Agreement in a way
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`that made the Bartlett trial and all other MDL cases fundamentally unfair. The district court had
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`determined that the bargain struck by the parties as set out in the language and defined terms in
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`the Leach Agreement barred any challenges to general causation. DuPont claimed that decision
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`was “[a] threshold contract interpretation error [that] eliminated the heart of a critical defense for
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`DuPont in each of the 3,500 cases” in the MDL and resulted in incorrect evidentiary rulings.
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`(MDL R. 5285, PageID 128547 (quoting Bartlett v. DuPont, No. 16-3310 (6th Cir.), DuPont
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`Appellant Br. at 1, 18))
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`In February 2017, after oral argument but before we issued a decision in Bartlett, DuPont
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`announced a settlement with the remaining MDL cases, including Bartlett, and withdrew that
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`appeal. Although it halted further proceedings in Bartlett, the global settlement did not entirely
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`end the litigation. As the vast majority of the MDL cases wound down, some additional
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`Plaintiffs covered by the Leach Agreement, including Travis and Julie Abbott, filed cases.
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`C. The Abbott Case
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`Travis Abbott has lived and worked in and around Pomeroy, Ohio, since childhood.
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`Consequently, for 20 years—beginning at only 6 years old—Abbott was exposed to C-8
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`contaminated water at home and in his community. At age 16, Abbott found a mass in his left
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`testicle, and, after surgically removing his testicle, doctors diagnosed him with testicular cancer.
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`He did not experience a relapse until 10 years later when he was beginning to plan a family with
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`his wife, Julie, while still living in the Pomeroy region. In October 2015, Abbott sought medical
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`help for pain in his remaining testicle. A definitive diagnosis of testicular cancer came only after
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`doctors removed his testicle to conduct a pathology analysis. The spread of the cancer to his
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`lymph nodes required further surgery, and Abbott must take testosterone injections due to his
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`loss of both testicles.
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`Travis and Julie Abbott sued DuPont in November 2017. The district court scheduled the
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`Abbotts’ case for a joint trial with that of another couple, the Swartzes, in early 2020. After
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`rejecting DuPont’s renewed challenges to the district court’s MDL rulings on the meaning of the
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`No. 21-3418
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`In re E. I. du Pont de Nemours & Co.
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`Page 8
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`Leach Agreement, the district court granted partial summary judgment to the Abbotts on the
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`duty, breach, and foreseeability elements of Travis Abbott’s negligence claims based on
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`collateral estoppel. The court further held that collateral estoppel precluded DuPont from
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`relitigating (1) the interpretation of the Leach Agreement and its application to evidentiary issues
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`and (2) the inapplicability of the Ohio Tort Reform Act (OTRA) to Travis Abbott’s claims.
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`The month-long jury trial for the Abbott and Swartz cases began in January 2020. In
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`evidentiary rulings, the district court prohibited DuPont from offering evidence and testimony
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`that the court concluded would violate the Leach Agreement, including testimony asserting that
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`Travis Abbott’s level of C-8 exposure was insufficient to cause his cancers. The court instructed
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`jurors that 0.05 ppb was a threshold level for general causation, but that specific causation was
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`still at issue in the case. DuPont then presented testimony about the concentration of C-8 in
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`Abbott’s bloodstream and C-8’s half-life in the human body, along with expert opinions on
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`potential alternative causes of his cancers. The jury found for both Travis and Julie Abbott,
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`awarding them $40 million and $10 million in damages, respectively. The district court later
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`applied the Ohio Tort Reform Act to Julie Abbott’s award, reducing it to $250,000. Because the
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`jury did not agree on the Swartzes’ claims related to Mrs. Swartz’s kidney cancer, that case
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`concluded in a mistrial.
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`This appeal in the Abbotts’ case followed.
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`II. ANALYSIS
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`DuPont raises several challenges to the district court’s decisions on appeal. First, it
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`challenges the order granting the MDL Plaintiffs’ motion for application of nonmutual offensive
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`collateral estoppel to duty, breach, general causation, and the inapplicability of the OTRA.
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`Based on that order, those issues were not submitted to the jury for its deliberations in the
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`Abbotts’ case. Next, DuPont argues that several of the district court’s evidentiary rulings related
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`to specific causation were erroneous. And finally, DuPont asserts that the district court abused
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`its discretion by entering a directed verdict denying DuPont’s statute of limitation defense. We
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`address each challenge in turn.
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`No. 21-3418
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`In re E. I. du Pont de Nemours & Co.
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`Page 9
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`A. Nonmutual Offensive Collateral Estoppel
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`A district court has “broad discretion to determine” whether to apply collateral estoppel.
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`Parklane Hosiery Co. v. Shore, 439 U.S. 322, 331 (1979). We review de novo whether the
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`district court’s decision to do so was error. Abbott v. Michigan, 474 F.3d 324, 331 (6th Cir.
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`2007).
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`In successive federal diversity actions, we apply state law to determine whether a prior
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`decision has preclusive effect, so long as the state rule is not “incompatible with federal
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`interests.” Prod. Sols. Int’l, Inc. v. Aldez Containers, LLC, 46 F.4th 454, 457–58 (6th Cir. 2022)
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`(quoting Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 508-09 (2001)).
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`Ohio courts generally apply issue preclusion when that issue “was actually and directly
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`litigated in the prior action” and “a court of competent jurisdiction” decided the issue, and “the
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`party against whom collateral estoppel is asserted was a party in privity with a party to the prior
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`action.” State ex rel. Jefferson v. Russo, 150 N.E.3d 873, 875 (Ohio 2020) (quoting Thompson v.
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`Wing, 637 N.E.2d 917, 923 (Ohio 1994)). The “fact or . . . point” in question must have been
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`“actually and necessarily litigated and determined” as part of a final judgment. Fort Frye Tchrs.
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`Ass’n, OEA/NEA v. State Emp. Rels. Bd., 692 N.E.2d 140, 144 (Ohio 1998); see State v.
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`Williams, 667 N.E.2d 932, 935 (Ohio 1996). And the party against whom estoppel is sought
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`must have had a “full and fair opportunity” to litigate the issue in the previous action. Walden v.
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`State, 547 N.E.2d 962, 966 (Ohio 1989) (quoting Hicks v. De La Cruz, 369 N.E.2d 776, 778
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`(Ohio 1977)). In sum, Ohio’s standard is very similar to the federal one. See Smith v. S.E.C.,
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`129 F.3d 356, 362 (6th Cir. 1997) (en banc).
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`DuPont initially claimed that Ohio law forbids the use of non-mutual offensive collateral
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`estoppel altogether. While the “principle of mutuality” is generally a “prerequisite to the
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`application of collateral estoppel,” the Ohio Supreme Court has explicitly “recogniz[ed] the need
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`in certain instances for the flexibility and exceptions to such rule.” Goodson v. McDonough
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`Power Equip., Inc., 443 N.E.2d 978, 987 (Ohio 1983). Where a “party defendant clearly had his
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`day in court on the specific issue brought into litigation within the later proceeding, the non-party
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`plaintiff [can] rely upon the doctrine of collateral estoppel to preclude the relitigation of that
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`In re E. I. du Pont de Nemours & Co.
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`Page 10
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`specific issue.” Id. at 985. Ohio is “willing to relax the [mutuality] rule where justice would
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`reasonably require it.”4 Id. at 984.
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`If Ohio’s requirements are met, the Supreme Court has offered four additional
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`considerations that may suggest caution in determining whether to apply offensive nonmutual
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`collateral estoppel against a party. Parklane Hosiery Co., 439 U.S. at 329–31; see Goodson, 443
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`N.E.2d at 983 & n.12 (discussing Parklane Hosiery factors); O’Nesti v. DeBartolo Realty Corp.,
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`862 N.E.2d 803, 809 (Ohio 2007) (same). First, courts should avoid applying nonmutual
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`offensive collateral estoppel where it would encourage “a ‘wait and see’ attitude” among
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`potential plaintiffs hoping “that the first action by another plaintiff will result in a favorable
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`judgment.” Parklane Hosiery Co., 439 U.S. at 330. Second, courts should not use the doctrine if
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`the defendant did not have a reason “to defend vigorously, particularly if future suits [were] not
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`foreseeable.” Id. Third, the doctrine should not apply “if the judgment relied upon as a basis for
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`the estoppel is itself inconsistent with one or more previous judgments in favor of the
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`defendant.” Id. Fourth and finally, courts should avoid the use of nonmutual offensive collateral
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`estoppel if the later action would give “the defendant procedural opportunities unavailable in the
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`first action that could readily cause a different result.” Id. at 331.
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`1. Application of Collateral Estoppel to the Negligence Claims
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`As an initial matter, we address DuPont’s claim that our court has placed additional
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`constraints on the use of nonmutual offensive collateral estoppel in mass tort cases. DuPont
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`points to a footnote in In re Bendectin Products Liability Litigation, 749 F.2d 300 (6th Cir.
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`1984), in which we noted that the Supreme Court’s decision in Parklane Hosiery “explicitly
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`stated that offensive collateral estoppel could not be used in mass tort litigation.” Id. at 305 n.11.
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`DuPont’s interpretation of Bendectin, however, is inconsistent with the Supreme Court’s clear
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`4Even if mutuality were required, it is a “somewhat amorphous” concept under Ohio law. Brown v.
`Dayton, 730 N.E.2d 958, 962 (Ohio 2000). A contractual relationship is not required; a “mutuality of interest,
`including an identity of desired result,” may be sufficient. Id. “As a general matter, privity ‘is merely a word used
`to say that the relationship between the one who is a party on the record and another is close enough to include that
`other within the res judicata.’” Id. (quoting Thompson v. Wing, 637 N.E.2d 917, 923 (Ohio 1994)). Not only do
`Plaintiffs share a contractual relationship with DuPont—the Leach Agreement—but they also share a mutuality of
`interest and identity of desired result with all other plaintiffs in this MDL, who, like Abbott, are Leach class
`members, allege injury due to drinking water contaminated with C-8, and seek the same result.
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`No. 21-3418
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`In re E. I. du Pont de Nemours & Co.
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`Page 11
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`pronouncement in Parklane Hosiery that “the preferable approach for dealing with” the fairness
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`concerns regarding offensive collateral estoppel “is not to preclude the use of offensive estoppel”
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`but instead to provide “broad discretion” to trial courts determining when it applies. Parklane
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`Hosiery Co., 439 U.S. at 331; see also City of Cleveland v. Cleveland Elec. Illuminating Co., 734
`
`F.2d 1157, 1165 (6th Cir. 1984). Bendectin, an appeal of a district court’s class-certification
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`decision, focused on the requirements of Rule 23, and our opinion mentioned but did not hinge
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`on whether district courts could ever apply nonmutual offensive collateral estoppel in mass tort
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`cases. Bendectin, 749 F.2d at 304–05. No court has followed the Bendectin footnote beyond
`
`agreeing that courts should not use offensive collateral estoppel in mass tort cases in ways
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`inconsistent with the Parklane Hosiery factors. See, e.g., In re Air Crash at Detroit Metro.
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`Airport, Detroit, Mich. on Aug. 16, 1987, 776 F. Supp. 316, 324–25 (E.D. Mich. 1991)
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`(explaining that nonmutual offensive collateral estoppel could be used in mass tort cases if
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`consistent with the instruction in Parklane Hosiery and “should be developed on a case-by-case
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`basis”). Ohio has similarly instructed that offensive collateral estoppel is permissible in the mass
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`tort context where the Parklane Hosiery standards are applied.5 See Goodson, 443 N.E.2d at
`
`987.
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`Ohio’s collateral estoppel factors and the additional considerations delineated in Parklane
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`Hosiery provide the framework for the district court’s exercise of its broad discretion. We will
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`not place DuPont’s requested additional constraints on that discretion given the Supreme Court’s
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`clear instruction.
`
`In applying offensive collateral estoppel, the district court concluded that the three prior
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`jury trials—Bartlett, Freeman, and Vigneron—raised and litigated to a final conclusion the same
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`questions of duty, breach, and foreseeability raised in Travis Abbott’s negligence claims.
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`DuPont asserts that this use of nonmutual offensive collateral estoppel violated its due process
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`rights because duty, breach, and foreseeability in the three prior trials were factually distinct.
`
`
`5DuPont frames Goodson as demonstrating the Ohio Supreme Court’s disapproval of mass-tort collateral
`estoppel. But the language DuPont quotes from Goodson that expresses caution about applying “a decision made by
`one jury in the context of one set of facts” to “all subsequent cases involving separate underlying factual
`circumstances” is specific to product liability litigation; it is not about mass-tort litigation generally. 443 N.E.2d at
`987.
`
`

`

`No. 21-3418
`
`In re E. I. du Pont de Nemours & Co.
`
`Page 12
`
`
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`The Abbotts dispute that factual argument and counter that the use of collateral estoppel here
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`“serve[d] the core principles of judicial integrity and economy,” and the doctrine “was made for
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`a case like this one.” We apply Ohio law and Parklane Hosiery’s considerations in turn.
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`a. Ohio Law
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`We begin by determining whether the “identical issue was actually decided in the former
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`case.” Goodson, 443 N.E.2d at 987. Factual differences do exist among the different cases, but
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`the question is whether any of those factual differences are legally significant—i.e., were crucial
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`to resolving the issues in the compared cases. See Smith v. Sushka, 117 F.3d 965, 969–70 (6th
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`Cir. 1997) (quoting Monahan v. Eagle Picher Indus., Inc., 486 N.E.2d 1165, 1168 (Ohio 1984));
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`see also United States v. Stauffer Chem. Co., 464 U.S. 165, 172 (1984). DuPont claims that
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`duty, breach, and foreseeability were unique to each plaintiff given that each plaintiff was
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`differently situated. For example, it asserts, the Freeman and Vigneron Plaintiffs argued that
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`DuPont should have foreseen their injuries because the C-8 concentration in their water districts’
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`drinking water exceeded DuPont’s voluntary exposure guidelines. Travis Abbott’s water was
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`below these guidelines at relevant times. DuPont also contends that Abbott conceded that
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`DuPont was unaware of C-8 in his water supply before 2001, unlike the Plaintiffs in Freeman
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`and Vigneron who asserted that DuPont knew about, but did not warn them of, the C-8 in their
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`drinking water for over a decade. DuPont argues that these questions of duty, breach, and
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`foreseeability were so closely tied to the individual plaintiffs that preclusive effect is impossible.
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`DuPont’s argument attempts to ignore the fundamental principle that the pertinent factual
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`issues for the negligence claims in each trial revolved around DuPont’s conduct and knowledge
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`in relation to the Leach class members. In Bartlett, Freeman, and Vigneron—the cases that
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`served as the basis for collateral estoppel—each jury received identical instructions on duty,
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`breach, and foreseeability. Each jury found that DuPont owed a duty to the class member,
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`breached that duty, and should have foreseen that injury would result from the alleged breach.
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`To illustrate, consider the jury instructions from the Bartlett case:
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`
`
`
`
`

`

`No. 21-3418
`
`In re E. I. du Pont de Nemours & Co.
`
`Page 13
`
`
`
`NEGLIGENCE – DUTY
`
`To prove the existence of a duty, Mrs. Bartlett must show by a preponderance of
`the evidence that a reasonably prudent person would have foreseen that injury was
`likely to result to someone in Mrs. Bartlett’s position from DuPont’s conduct. In
`deciding whether reasonable prudence was used, you will consider whether
`DuPont should have foreseen, under the circumstances, that the likely result of an
`act or failure to act would cause injuries. The test for foreseeability is not whether
`DuPont should have foreseen the injuries exactly as it happened to Mrs. Bartlett.
`The test is whether under the circumstances a reasonably prudent corporation
`would have anticipated that an act or failure to act would likely cause injuries.
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`NEGLIGENCE – BREACH
`
`If you find that DuPont owed Mrs. Bartlett a duty, you must next determine
`whether DuPont breached that duty. A corporation breaches a duty by failing to
`use ordinary care. As I have just instructed, ordinary care is the care that a
`reasonably careful corporation would use under
`the same or similar
`circumstances.
`
`If you decide that DuPont did not use ordinary care, then DuPont breached its
`duty of care to Mrs. Bartlett. If you decide that DuPont did use ordinary care,
`then DuPont did not breach its duty of care to Mrs. Bartlett. . . .
`
`NEGLIGENCE – PROXIMATE CAUSE – FORSEEABLE INJURY
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`. . . . For Mrs. Bartlett’s injuries to be considered the natural and probable
`consequence of an act, Mrs. Bar