purchase of the product line, was not defective. Notwithstanding this finding, the jury awarded plaintiff $ 66,000. In Roesberg, the jury specifically found that "Unibestos" was defective but that plaintiff's suit was time-barred. Under these circumstances, plaintiff ultimately prevailing in Flynn and defendant winning in Roesberg, the verdict winners, although dissatisfied with specific jury findings could not appeal and challenge those findings. Therefore, for collateral estoppel purposes, the parties in Roesberg and Flynn were denied a full and fair opportunity to litigate the issue of whether "Unibestos" was defective. See, Diagiacomo v. Johns-Manville Corp., No. 76-604, slip op. at 5 (D.N.J. May 3, 1982) (Defendant, deprived of the opportunity to appeal a specific jury finding by virtue of a verdict in its favor, did not fully and fairly litigate the issue sought to be estopped.) Reliance on the jury finding in Roesberg is, accordingly, insufficient to support issue preclusion. This same reasoning defeats defendant's reliance upon Flynn as an inconsistent verdict.
The only case which has been fully and fairly litigated, for collateral estoppel purposes, is Borel v. Fibreboard Paper Products Corp., 493 F.2d 1076 (5th Cir. 1973), cert. denied, 419 U.S. 869, 95 S. Ct. 127, 42 L. Ed. 2d 107 (1974).
There, Pittsburgh-Corning, along with other defendants, was found liable to plaintiff on a theory of strict liability. Restatement of Torts (Second) § 402(A).
Courts in the Eastern District of Texas, the situs of the Borel trial, have not hesitated to apply offensive collateral estoppel against those defendants who actually litigated Borel. See, Hardy v. Johns-Manville Sales Corp., 509 F. Supp. 1353, 1360-63 (E.D.Tex.1981)
; Flatt v. Johns-Manville Sales Corp., 488 F. Supp. 836, 841 (E.D.Tex.1980); Mooney v. Fibreboard Corp., 485 F. Supp. 242, 249 (E.D.Tex.1980). There is no question that defendant Pittsburgh-Corning is within that group. Borel v. Fibreboard Paper Products Corp., 493 F.2d at 1086.
Other courts have refused attempts by plaintiffs who sought to use Borel to effect an issue preclusion. Those cases are distinguishable.
McCarty v. Johns-Manville Sales Corp., 502 F. Supp. 335, 338 (S.D.Miss.1980) refused to apply the doctrine because Mississippi collateral estoppel rules still require mutuality of parties before it can be invoked. Tretter v. Johns-Manville Corp., 88 F.R.D. 329, 333 (E.D.Mo.1980) refused to invoke offensive collateral estoppel because it found that inconsistent judgments had been obtained with respect to defendant, Johns-Manville. Diagiacomo v. Johns-Manville, 76-604 (D.N.J. May 3, 1982), also found inconsistent judgments and refused to apply collateral estoppel. Finally, Bertrand v. Johns-Manville Sales Corp., 529 F. Supp. 539, 544-45 (D.Minn.1982) explored a middle ground. It estopped defendants from relitigating the fact that asbestos dust can cause asbestosis and mesothelioma. However, it refused to apply the doctrine to those defendants who had not participated in Borel or Karjala v. Johns-Manville, 523 F.2d 155 (8th Cir. 1975). It reasoned that application of collateral estoppel as to some defendants on some issues would require bifurcation and result in a waste of judicial time and effort. Bertrand v. Johns-Manville Sales Corp., 529 F. Supp. at 545.
None of the reasons which counselled against the use of collateral estoppel in those cases are present here. Pennsylvania, unlike Mississippi, does not require mutuality of parties. Therefore, McCarty is inapplicable. Tretter and Diagiacomo do not aid defendant since there, prior inconsistent judgments obstructed application of collateral estoppel. None exist here. The need for bifurcation, the reason given by Bertrand for refusing to preclude issue relitigation, has not been raised by the parties in the case at bar. Moreover, we do not believe that offensive use of collateral estoppel as to a defendant in a multi-defendant case necessarily requires bifurcation.
Hence, in the exercise of our discretion we will grant plaintiff's motion for partial summary judgment and preclude Pittsburgh-Corning from litigating whether "Unibestos" was defective between 1962 and 1968. In so holding, we recognize that some courts may decide that such an issue preclusion is unwarranted. Others, such as the McCarty court, may be precluded from applying offensive collateral estoppel by substantive state law which requires mutuality. Hence, Pittsburgh-Corning may be able to generate final judgments inconsistent with Borel. Should that happen, we will be invited, no doubt, to re-examine the conclusion which we have reached today. However, for present purposes, we have been "bequeath(ed)" the obligation of deciding when to apply offensive collateral estoppel in asbestos litigation. Migues v. Fibreboard Corp., 662 F.2d 1182, 1187 (5th Cir. 1981). We have decided that it should be applied to preclude relitigation of the defective nature of "Unibestos".
Finally, we reject plaintiff's attempt to invoke offensive collateral estoppel so as to preclude litigation of whether plaintiff's exposure to "Unibestos" was a substantial factor in bringing about his asbestos-related injuries. As defendant correctly points out, whether "Unibestos" proximately caused plaintiff's purported injuries depends upon a "myriad of variables". See, Defendant's Memorandum of Law in Opposition to Plaintiff's Motion for Partial Summary Judgment. An appropriate order will issue.