Mccoy v. Foss Maritime Co.

Citation442 F.Supp.2d 1103
Decision Date31 May 2006
Docket NumberNo. C04-2233L.,C04-2233L.
PartiesTommy MCCOY, Plaintiff, v. FOSS MARITIME COMPANY, Defendant.
CourtUnited States District Courts. 9th Circuit. United States District Court (Western District of Washington)

Jeffery Michael Campiche, Campiche, Hepburn, Mccarty & Bianco, PLLC, Seattle, WA, for Plaintiff.

Elizabeth Lynn Hubbard, Anna E. Johansson, Garvey Schubert Barer, Seattle, WA, for Defendant.

ORDER ON MOTION IN LIMINE

LASNIK, District Judge.

I. Introduction

This matter comes before the Court on plaintiffs "Motion In Limine Based on the Doctrine of Collateral Estoppel" (Dkt.# 17). Plaintiff Tommy McCoy is a chief engineer for the Foss Maritime Company ("Foss"). McCoy argues in the instant motion that collateral estoppel should serve to preclude Foss from disputing certain factual and legal findings arrived at in a similar case, Montaperto v. Foss Maritime Co., No. 98-1594, 2000 WL 33389209 (W.D.Wash. Nov.9, 2000). Foss contends that collateral estoppel should not apply in this case because some of Montaperto's conclusions were based on different factual underpinnings and others were "merely incidental" to the prior judgment. Upon review of the relevant law and the prior action, the Court concludes that collateral estoppel will apply to certain findings of fact and conclusions of law.

II. Factual Background

McCoy started working for Foss as an ordinary seamen on a tug in 1979. In 1989, he was promoted to chief engineer, and continues to work as one today. The engine rooms of Foss tugs, where the chief engineers work, are dangerously noisy environments, with sound levels well above the level necessary to trigger regulation under the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. ("OSHA"). Foss took steps to mitigate potential hearing damage after a 1993 OSHA inspection resulted in a fine for failure to implement noise reduction programs. Their efforts included a hearing conservation program and testing of workers' hearing loss. McCoy has complained of some hearing loss during his employment and filed suit against Foss in October, 2004.

Foss was found liable for negligence under the Jones Act in Montaperto. John Montaperto began working for Foss as an ordinary seamen in 1978. In 1982, he was promoted to chief engineer and worked various amounts of time in the noisy engine rooms throughout his career. In 1997 and 1999, Montaperto suffered Standard Threshold Shifts (STS), a decrease of ten or more decibels in the average hearing threshold of either ear. Montaperto sued Foss for negligence in 1998. The case went to trial in September, 2000, and Judge Zilly issued findings of facts and conclusions of law in October, 2000. Final judgment in the case was entered in November, 2000.

III. Discussion

McCoy now argues that Foss should be collaterally estopped from contesting certain findings of fact and conclusions of law set forth by Judge Zilly in Montaperto. Whether collateral estoppel "is available to a litigant is a question of law," which, is reviewed de novo on appeal. Resolution Trust Corp. v. Keating, 186 F.3d 1110, 1114 (9th Cir.1999). Whether offensive nonmutual collateral estoppel is available to a party to prevent the litigation of an issue is a matter this Court's discretion. See Parklane Hosiery Co. v. Shore, 439 U.S. 322, 331, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979) (granting "trial courts broad discretion to determine when [offensive issue preclusion] should apply").

A. Standard Collateral Estoppel

Collateral estoppel "prevents parties from relitigating an issue of fact or law if the same issue was determined in prior litigation." Resolution Trust, 186 F.3d at 1114. The issues must have been actually litigated and the party asserting collateral estoppel bears the burden of proving that the issues in question are identical to the issues litigated in the previous matter. Id. at 1116. The Ninth Circuit has identified four factors for a court to consider in order to determine whether the issues are the same:

(1) is there a substantial overlap between the evidence or argument to be advanced in the second proceeding and that advanced in the first?

(2) does the new evidence or argument involve the application of the same rule of law as that involved in the prior proceeding?

(3) could pretrial preparation and discovery related to the matter presented in the first action reasonably be expected to have embraced the matter sought to be presented in the second?

(4) how closely related are the claims involved in the two proceedings?

Id.; see also RESTATEMENT (SECOND) OF JUDGMENTS § 27 cmt. c (1982).

McCoy is suing Foss for negligent conditions on its boats that led to hearing loss. The evidence of negligence includes the history of OSHA regulation of uninspected vessels and Foss's response to these regulations. Factual findings from the same cause of action, for similar harm, and over the same time period satisfy the Ninth Circuit's collateral estoppel test. Thus, collateral estoppel can apply to those factual findings and legal conclusions from Montaperto that overlap with relevant factual and legal inquiries in the instant case.

B. Offensive Nonmutual Collateral Estoppel

Courts have recognized the availability of limited nonmutual offensive collateral estoppel at the trial court's discretion. See Blonder-Tongue Labs. v. Univ. of Ill. Found., 402 U.S. 313, 350, 91 S.Ct. 1434, 28 L.E d.2d 788 (1971) (abandoning mutuality principle for defensive collateral estoppel claims); Parklane Hosiery, 439 U.S. at 331, 99 S.Ct. 645 (recognizing validity of nonmutual offensive collateral estoppel, with limitations). In Parklane, the Court recognized the two potential sources of abuse of offensive nonmutual collateral estoppel. First, the availability of offensive nonmutual collateral estoppel for the plaintiff would discourage joinder among plaintiffs, because a plaintiff could seek the benefits of a favorable outcome, but would not be bound by an adverse outcome. Id. at 329-30, 99 S.Ct. 645. The Court addressed this by holding that "where a plaintiff could easily have joined in the earlier action" the trial court should not allow offensive nonmutual collateral estoppel. Id. at 331, 99 S.Ct. 645.

The second possibility for abuse presents itself because a small amount in controversy might not provide the proper incentive for a defendant to vigorously defend itself. It would be unfair for a defendant to be held to the factual findings and legal conclusions of a previous minor action if a new plaintiff with a sizable claim brought suit on the same issue. For this reason "where, either for [this reason] or for other reasons, the application of offensive estoppel would be unfair to defendant" the trial judge must exercise his discretion and not allow it. Id.

The Ninth Circuit has developed its own test for the application of nonmutual offensive collateral estoppel. In order to prevent a defendant from re-litigating an issue of fact or law from a previous action to which plaintiff was not a party, the plaintiff must prove that "(1) [defendant] was afforded a full and fair opportunity to litigate the issues in the prior actions; (2) the issues were actually litigated and necessary to support the judgments; (3) the issues were decided against [defendant] in final judgments; and (4) [defendant] was a party or in privity with a party in the prior proceedings." Resolution Trust, 186 F.3d at 1114.

There is no dispute in the instant case as to the limitations placed by the Supreme Court on the use of nonmutual offensive collateral estoppel. Parklane, 439 U.S. at 331, 99 S.Ct. 645 (unable to join prior action and unfairness). Foss concedes that McCoy would not have been allowed to join in Montaperto's action against Foss.1 Thus, there is no concern that McCoy was simply lying in wait in order to take advantage of a favorable outcome. Second, it would not be "unfair" to prevent Foss from re-litigating certain issues. Because McCoy and Montaperto brought actions for similar injuries, Foss had the same incentive to defend itself against Montaperto as it would against McCoy. Therefore, nothing in Parklane counsels against the use of offensive nonmutual collateral estoppel.

The four Resolution Trust inquiries are also satisfied. First, Foss was afforded a full and fair opportunity to litigate the facts and legal conclusions in the Montaperto action. The parties had an opportunity to present their arguments in a weeklong bench trial. Second, it is clear that the issues were necessary to support the final judgment. This prong is of greater concern where a final judgment could conceivably rest on a number of different theories. See, e.g., Resolution Trust, 186 F.3d at 1115-18. Here, plaintiff is able to establish the exact findings of fact and conclusions of law upon which the Montaperto court relied because those conclusions were specifically enumerated in the court's order. Finally, the Montaperto findings of fact and conclusions of law were final judgments in an action to which Foss was a party.

The doctrine of collateral estoppel exists to prevent a party from having a second chance to make their case after they have already received a full and fair opportunity to present their arguments in court. Nonmutual offensive collateral estoppel is designed to mitigate the expenditure of scarce judicial resources on issues that have already been decided. It is clear in the instant case that there are several ways for the Court to promote efficiency by adopting findings of fact and conclusions of law from the substantially similar action in Montaperto.

C. Findings from Montaperto that Foss is Collaterally Estopped from Challenging

Based on the foregoing reasons, Foss is collaterally estopped from re-litigating the following findings of fact and conclusions of law from the Montaperto action (the numbers correspond to the numbers used in the Montaperto order):

FINDINGS OF FACT

(5-24, 31-32)

5. Prior to 1984 there was a conflict between two federal...

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