Offensive Collateral Estoppel and Judicial Notice

Some decisions have relied on the concept of offensive collateral estoppel to preclude relitigation of basic issues of liability in asbestos cases, including the danger of asbestos, the lack of adequate warning by the manufacturers of asbestos products, and the causal relationship between exposure to asbestos and the malady of asbestosis. Alternatively, a court could take judicial notice of the causal relationship between asbestos products and asbestosis.116

As asbestos litigation continues and more verdicts and judgments establish facts, collateral estoppel and judicial notice may be used to find key facts and eliminate the need for extensive expert testimony on issues that have become well established in litigation in­volving the same defendants. Use of special interrogatories may help to identify those issues and avoid ambiguity in jury verdicts. 117 Clustering of major groups of cases serves a similar func­tion in that the jury need only hear evidence on general matters relating to causation; it can then apply that evidence to issues of liability and damages in multiple cases.

  1. In Hardy v. Johns-Manville, 509 F. Supp. 1353, 1360-63 (E.D. Tex. 1981), reversed, 681 F.2d 334 (5th Cir. 1982), the trial court held that the decision in Borel v.Fibreboard Paper Prods. Corp., 493 F.2d 1076 (5th Cir. 1973), cert, denied, 419 U.S.
    869 (1974), precluded relitigation of the issues of dangerousness, failure to warn, and
    causation of diseases such as asbestosis or mesothelioma. The United States Court of
    Appeals for the Fifth Circuit ruled that offensive collateral estoppel was not proper­
    ly applied because some of the defendants had not participated in the Borel case and
    because the jury verdict in that case was ambiguous as to some crucial findings. See
    generally Note, Collateral Estoppel in Asbestos Litigation, 14 Envtl. L. 197 (1983);
    Special Project, supra note 3, at 659-90, The Fifth Circuit also ruled that judicial
    notice was not yet appropriate in asbestos cases because the evidence was not undisputed or self-evident. Hardy, 681 F.2d 334, 347-48 (5th Cir, 1982).
    1. Note, supra note 116, at 222. In a consolidated case in the Eastern District of
      Texas’ the court apparently used this approach. Newman v. Johns-Manville, No. M79-124-CA, Special Verdict Form (E.D. Tex. Oct. 24, 1984).