2) there is no mutuality; i.e. since plaintiffs were not parties to the prior cases they would not be bound by the earlier decision;
3) the cases do not involve the same subject matter or issues; defendant has not had a full opportunity to litigate the issues.
Our decision requires a determination of whether non-mutual offensive issue preclusion would be unfair to the defendant. We conclude that it would be and will deny the preclusive effect for the following reasons. Defendant has cited us to three cases
in which defendant represents other plaintiffs asserted the same theory of defect. Nonetheless in each of those cases, a verdict in favor of Clark Equipment Company was rendered. In one of those cases, the Fireman's Fund case, the lack of a defect was established by the jury's negative response to a special interrogatory. In another, the Tower Resources case, the judge tried the case non-jury making a specific finding that no defect was established. Defendant further attempts to discredit the plaintiffs' reliance on the Rudd case by arguing that the appellate court decision rendered the district court's finding of defect moot. (See, n.1.)
Plaintiffs counter these arguments by explaining that the cases cited by the defendant are not in fact inconsistent. Plaintiffs represent that the theory of liability in the Mulzer Crushed Stone case was not the same as that in the present case and no special interrogatory was submitted to the jury in that case. No final judgment has been rendered in the Fireman's Fund case which is presently on appeal, and the defect alleged there was not the same as the defect in design alleged in the present case. The Tower Resources opinion is distinguishable in that the finding was based on a Kentucky statute that altered 402A liability and created a presumption in favor of the manufacturer that the product was not defective under certain conditions there applicable.
Given the arguments of both sides, we do not believe that this is a strong case for the use of non-mutual collateral estoppel. In addition to the arguments that the findings of defect were not essential to the judgments in the cases cited, and the argument that, however distinguishable, there are prior inconsistent judgments, we believe that there is not that much to be gained by estopping defendant from relitigating this issue. Some testimony regarding the defect would be necessarily taken at trial if for nothing more than to provide a necessary background to proving causation.
For these reasons, we will deny plaintiff's motion for partial summary judgment.