Hardy v. Johns-Manville Sales Corp. 681 F.2d 334 (5th Cir. 1982) In the case of Borel v. Fibreboard Paper Prod. Corp. (493 F.2d 1076 (5th Cir. 1974)), Borel sued six manufacturers of asbestos and won. Hardy came along and sued the same six defendants, plus 13 more asbestos makers. The Trial Court held that the judgment in Borel meant that there was issue preclusion on a number of important issues related to liability. o Such as the defendant's breech of duty to warn workers about the dangers of asbestos. o Issue preclusion (aka collateral estoppel) means that the asbestos manufacturers could not argue that they breeched a duty. The issue was already decided. o The Trial Court found that issue preclusion applied to all the defendants because they shared an "identity of interests" sufficient to constitute privity. In order to establish issue preclusion, it not only has to be the same issue that had been argued before, but it has to be the same litigants. You can't use issue preclusion if you are suing someone who wasn't a party to the first lawsuit. A new case with the same plaintiffs and defendants is said to have "privity." Of course, there are some exceptions (see below)... The 13 new asbestos makers appealed. o They argued that they were not party to the Borel case and therefore they never had "their day in court" and should not be bound by issue preclusion from arguing that they did not breech a duty. o They argued that since there were new defendants in this case, there was no privity. The Appellate Court reversed. o The Appellate Court felt that the Trial Court had Project Wonderful - Your ad here, right now, for as low as $0 o o stretched the concept of privity too far. The Appellate Court found that non-parties to lawsuits can be bound by privity, but certain things have to happen for the non-party to be considered "sufficiently close": A non-party that has succeeded to a party's interested in property is bound by prior judgments. A non-party who controlled the original suit is bound by the resulting judgment. A non-party whose interests were adequately represented by a party in the original suit is bound by the resulting judgment. nd See Restatement 2 of Judgments §§ 30, 31, 34, 39-41. Since the 13 new defendants didn't meet any of the standards for being "sufficiently close" to the Borel case, they were not bound by issue preclusion. Just being in the same industry isn't a good enough reason toe establish privity.
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