Gibson v. Armstrong Containers, Inc., No. 22-2635 (7th Cir. 2024)
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In this consolidated appeal of multiple toxic tort cases, approximately 170 plaintiffs alleged harm from exposure to white lead carbonate (WLC), a lead paint pigment, during their childhood in the 1990s and early 2000s. They sued several manufacturers of WLC for negligence and strict liability. The United States Court of Appeals for the Seventh Circuit affirmed the lower court's decision in part and reversed in part. The court upheld the district court’s application of the law of the case doctrine to dismiss many of the plaintiffs' claims, finding that the plaintiffs had chosen to bring their claims under a single complaint and were therefore bound by the court's earlier rulings. The court reversed the district court's grant of summary judgment against a small group of plaintiffs who had filed their own cases, ruling that due process protected their right to try their claims.
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In the United States Court of Appeals For the Seventh Circuit ____________________ Nos. 22-2636, 22-2630, 22-2632, 22-2633, 22-2634, 22-2635, & 22-2637 LATONYA CANNON, et al., Plainti s-Appellants, v. ARMSTRONG CONTAINERS INC., et al., Defendants-Appellees. ____________________ Appeals from the United States District Court for the Eastern District of Wisconsin. Nos. 07-c-0864, 11-c-0055, 11-c-0425, 14-c-1423 — Lynn Adelman, Judge. ____________________ ARGUED SEPTEMBER 26, 2023 — DECIDED FEBRUARY 9, 2024 ____________________ Before WOOD, SCUDDER, and ST. EVE, Circuit Judges. ST. EVE, Circuit Judge. This is a successive appeal of a series of toxic tort cases brought by individuals allegedly harmed by lead paint pigment. The cases include the claims of approximately 170 di erent plainti s, most of whom are joined together in a single complaint. All the plainti s and all the cases proceeded together in the same court, in front of the same Nos. 22-2636 et al. 2 judge, and against the same lead paint manufacturers. The same counsel represented each plainti . To bring order to this sprawling array of litigants, the parties and the district court devised a case management plan under which groups of plainti s would try their claims in a series of waves. The plainti s in the rst two waves, however, met a concatenation of defeats here and in the district court, resulting in the district court granting summary judgment for the defendants on all claims. The court then extended those rulings to the remaining 150+ plainti s on law of the case and issue preclusion grounds. After careful review, we see no error in much of the court’s reasoning. Most of these plainti s opted to proceed under a single complaint, within a single case, which is now sunk after summary judgment. But a small group of plainti s led their own cases, and due process protects their right to try them. For the reasons that follow, we a rm the decision of the district court in large part and reverse in small part. I. Background This mass tort case involves approximately 170 plainti s, spread over several actions, all alleging injuries stemming from their exposure to white lead carbonate (“WLC”), a leadpaint pigment. Each plainti contends he was exposed to WLC as a child during the 1990s and early 2000s, while growing up in Milwaukee homes that had lead-based paint on the walls. Each seeks to hold several manufacturers of WLC (and their successors) liable under state-law negligence and strict liability theories. Nos. 22-2636 et al. 3 A. Legal Background We begin with a brief overview of the legal framework that supports the plainti s’ claims, which we addressed in detail in our prior opinion. See Burton v. E.I. du Pont de Nemours & Co., 994 F.3d 791 (7th Cir. 2021) (“Burton II”). In short, this case is a kind of anachronism. For a brief moment, Wisconsin law recognized a cause of action for WLC injuries based on a “risk-contribution” theory. See Thomas ex rel. Gramling v. Mallett, 701 N.W.2d 523 (Wis. 2005). That theory, blessed for purposes of WLC litigation by the Wisconsin Supreme Court in 2005, essentially permitted plainti s to bring injury claims even if they could not prove exactly who manufactured the WLC that injured them. Id.; see also Burton II, 994 F.3d at 804– 05. As we explained in Burton II: risk contribution “modi es the ordinary rule in tort law that a plainti must prove that a speci c defendant’s conduct caused his injury … by apportion[ing] liability among the ‘pool of defendants’ who could have caused the injury.” 994 F.3d at 802. Wisconsin recognized such claims until 2011, when the Wisconsin legislature e ectively overruled Thomas. See id. at 806; Wis. Stat. § 895.046. The Wisconsin legislature also attempted to make its statute retroactive, but we rejected that e ort after nding that retroactivity would violate the state’s due process guarantees. See Gibson v. Am. Cyanamid Co., 760 F.3d 600 (7th Cir. 2014). The result? From 2005 to 2011, WLC claims based on a risk-contribution theory were viable, and approximately 170 plainti s entered the courthouse door. Burton II, 994 F.3d at 807. Nos. 22-2636 et al. 4 B. Procedural Background 1. The Cases These cases began in 2007, after Glenn Burton, Jr., led a complaint in Wisconsin state court against eight manufacturers of WLC. The defendants removed the case to federal court. Meanwhile, two more lawsuits, led by Ravon Owens and Ernest Gibson, were similarly removed to federal court. More cases followed. In early 2010, Cesar Sifuentes led a case directly in federal court. A year later, over 160 di erent individuals led a single complaint under Federal Rule of Civil Procedure 20(a)(1), with Maniya Allen as the rstnamed plainti . Not long after, Deziree and Detareion Valoe jointly led suit. Finally, three plainti s from the Allen action—Dijonae, Ty’Jai, and Jaquan Trammell—agreed to sever their claims into a separate suit to cure a diversity problem. Those plainti s also proceeded under a single complaint. The cases eventually proceeded against American Cyanamid Co.; E.I. du Pont de Nemours and Company, Inc. 1; NL Industries, Inc.; the Sherwin Williams Company; Armstrong Containers, Inc.; and the Atlantic Rich eld Company. Judge Adelman ultimately presided over each case, and the same counsel represented each plainti . These separate cases, however, were never formally consolidated under Federal Rule of Civil Procedure 42(a). 2 1 E.I. du Pont de Nemours and Co. now goes by the name “EIDP, Inc.” 2 Partial consolidation did occur at several points, largely because the Gibson action proceeded in front of another judge before its eventual reassignment to Judge Adelman. The plainti s successfully moved to partially Nos. 22-2636 et al. 5 Early on, the defendants jointly moved to dismiss or sever all but the named plainti in the Allen case (which, recall, included approximately 160 individuals). The defendants argued that the Allen action improperly joined those plainti s because they lived in separate cities and alleged separate injuries incurred at separate times—all of which required individualized discovery and separate trials. The plainti s countered that joinder was proper because the claims involved “numerous” common questions of law or fact. Speci cally, the plainti s argued that discovery on general causation would be “similar, if not identical” for every plainti , and that common issues included whether the defendants “knew of the hazards inherent in the white lead paint products at issue when they marketed them to the general public in Wisconsin.” “Proof of the failure to warn elements,” according to the plainti s, was “particularly conducive to this common discovery.” The district court agreed and denied the defendants’ motion to sever. The court reasoned that the Allen plainti s’ claims were su ciently connected because their injuries stemmed from a common source—the defendants’ manufacturing of lead-based paint—and because their claims presented common questions of liability under a common theory—risk contribution. While the court recognized that “individual discovery and separate trials will likely be required,” the court noted that it could accomplish both tasks “without consolidate their cases under Rule 42(a) to settle their claims against a single defendant, NL Industries, Inc.; to determine the defendants’ motions to dismiss for lack of personal jurisdiction; and to decide motions for a protective order. Nos. 22-2636 et al. 6 the disadvantages attendant to dismissal or severance.” The Allen plainti s thus continued under the single complaint. 2. The Case Management Order All the plainti s jointly proposed a case management order (“CMO”) that would sequence proceedings in piecemeal fashion. Under the plainti s’ proposal, the parties would conduct a limited number of “bellwether” trials, comprising “select,” “representative” cases. The plainti s intended the CMO to streamline the litigation by “allow[ing] for coordinated motion practice on issues present in all of the cases.” There were “clearly some threshold legal issues that will, of course, apply to all cases.” Such issues, the plainti s urged, “should be dealt with once, not on a case-by-case basis.” Over the defendants’ objection, the court largely adopted the plainti s’ proposal and entered a CMO under which trials and discovery would proceed in a series of “waves.” Under the CMO, several of the oldest cases—Burton, Owens, and Sifuentes—would proceed to trial rst. We refer to these cases as “Wave 1.” Next, the CMO instructed the parties to prepare eight additional cases for trial concurrently with the Wave 1 proceedings. From those eight cases, the parties had to select four for trial (two each) after extensive discovery and motion practice. The CMO did not identify speci c plainti s to be included in that wave, nor did it refer to the cases as “bellwethers.” The parties ultimately selected three of the Allen plainti s (Latoya Cannon, D’Angelo Thompson, and Tyann McHenry), and one of the Trammell plainti s (Dijonae Trammell). We call these four trial plainti s “Wave 2.” Nos. 22-2636 et al. 7 3. Wave 1 Summary Judgment and Trial Ahead of trial in the Wave 1 cases, the defendants led motions for summary judgment on the plainti s’ negligence and strict liability claims. Underpinning the defendants’ summary judgment arguments was the premise that the duty to warn—a required element of both claims—was identical in the negligence and strict liability contexts. The district court found otherwise, and distinguished the duty to warn in the negligence context from the duty to warn in the strict liability context. See Burton v. Am. Cyanamid, 334 F. Supp. 3d 949, 961– 67 (E.D. Wis. 2018). The court held that in the negligence context, the duty to warn turned on what the consumer knew at the time he or she was exposed to WLC—in this case the 1990s or early 2000s. Id. at 961. But in the strict liability context, according to the district court, that duty turned on what the ordinary consumer knew at the time the defendants produced WLC—which was much earlier, sometime between 1910 and 1947. Id. at 962. The di erent duties meant di erent fates for the negligence and strict liability claims. The court granted summary judgment for the defendants on the negligent failure-to-warn claims. The evidence showed that paint manufactures had been issuing warnings to consumers since 1955, and that by the 1990s, caregivers were well aware that lead-based paint was dangerous. Id. at 961. Thus, the court reasoned, the plainti s or their caregivers needed no further warning about the dangers of lead dust. The plainti s never appealed this negligence ruling. In contrast, the strict liability claims survived. The court found that a jury could conclude that between 1910 and 1947 the public was not fully informed about the dangers of lead- 8 Nos. 22-2636 et al. based paint, giving rise to a genuine issue of material fact as to whether the defendants had a duty to warn consumers who purchased paint during those years. Id. at 962–63. The Wave 1 plainti s proceeded to trial on those surviving claims. At the close of evidence, Judge Adelman dismissed American Cyanamid from the case for lack of personal jurisdiction. See Burton II, 994 F.3d at 811. The jury ultimately found DuPont, Sherwin Williams, and Armstrong liable, and awarded $2 million in damages to each plainti . Id. The jury found Atlantic Rich eld not liable. Id. The losing defendants appealed. Before turning to that appeal, we note that American Cyanamid and Atlantic Rich eld sought to use their respective victories at the Wave 1 trial to exit the litigation entirely, meeting mixed results. American Cyanamid—having won dismissal in Wave 1 for lack of personal jurisdiction—moved for dismissal from the remaining cases on issue preclusion grounds. The district court granted that motion, reasoning that issue preclusion was appropriate because of the plainti s’ shared counsel, tightly coordinated litigation strategy, and extensive opportunities to make their jurisdictional case. Defendant Atlantic Rich eld—whom the jury had found not liable—similarly invoked issue preclusion, but it did not escape so easily. The court denied Atlantic Rich eld’s motion, noting that the plainti s might handle future trials with greater care, and with better evidence. “In mass-tort cases like these,” the court reasoned, “courts recognize that the parties’ evidentiary treatment of the issues is likely to become more focused and thorough with reiteration, and therefore hesitate to apply issue preclusion after only one or two trials.” Nos. 22-2636 et al. 9 4. Summary Judgment in the Remaining Cases While their Wave 1 appeal was pending, the defendants moved for summary judgment against the Wave 2 plainti s. The defendants seized on the court’s ruling on the negligent failure-to-warn claims in the Wave 1 cases to argue that the court should similarly grant summary judgment in their favor in Wave 2. In response, the Wave 2 plainti s raised the white ag. They surrendered their negligence claims in a footnote, which read: Sherwin-Williams initially argues that Plainti s have no claim for negligent failure to warn. Well aware of this Court’s previous order, Plainti s concede that they do not have surviving claims for negligent failure to warn. The court granted summary judgment against the Wave 2 plainti s on their negligent failure-to-warn claims. See Allen v. Am. Cyanamid, 527 F. Supp. 3d 982, 996–97 (E.D. Wis. 2021). But, as with Wave 1, the court permitted the Wave 2 plainti s to proceed to trial on their strict liability claims. Id. at 995–96. 5. The Wave 1 Appeal (Burton II) Then came this court’s decision in the defendants’ Wave 1 appeal. See Burton II, 994 F.3d 791. Most relevant here, we rejected the district court’s nding that the duty to warn in the strict liability context di ers from that in the negligence context. We concluded that the duty to warn in both types of claims “depend[s] on what the ultimate consumer (i.e., the plainti s or their caregivers) knew, rather than what consumers in general knew at the time the manufacturer released the product into the market.” Id. at 823. Our conclusion that the duties for both claims were identical led to a two-front victory for the defendants. First, we Nos. 22-2636 et al. 10 held that the court legally erred in nding that the defendants had a duty to warn for purposes of strict liability, since it had already ruled that they had no duty to warn on their negligence claims. Id. Second, and because the plainti s had not cross-appealed the court’s ruling on their negligence-based claims, our holding compelled judgment as a matter of law for the defendants on the strict liability claims. Id. 6. Renewed Summary Judgment and Reconsideration Motions Following Burton II, the remaining defendants led renewed motions for summary judgment—this time against all the plainti s in all seven cases. 3 As to Wave 2, the defendants argued that Burton II compelled summary judgment on the strict liability claims since the district court had already granted summary judgment against the plainti s on the negligence-based claims. That is, because the duties were identical, and because the district court had found there was no duty to warn consumers in the 1990s and early 2000s about the dangers of lead paint, that nding doomed both claims. The defendants also sought summary judgment as to the remaining plainti s. To best understand each argument, it helps to further subdivide those remaining plainti s because they are situated di erently. The rst group of plainti s consists of the remaining plainti s from the Allen and Trammell actions who did not participate in Wave 2. We refer to this batch of Allen and Trammell plainti s—the non-Wave 2 contingent—as “Group 3.” 3 The Wave 1 plainti s are not parties to this appeal. Nos. 22-2636 et al. 11 The second group of plainti s consists of those from the Gibson and Valoe actions. These plainti s, unlike Group 3, come from cases with no representative in the litigation thus far. We call these plainti s “Group 4.” The defendants sought summary judgment against the Group 3 plainti s on law of the case grounds, arguing that they came from the same “case” as the Wave 2 plainti s and so the court’s duty-to-warn determination applied with equal force. As to the Group 4 plainti s, the defendants argued that issue preclusion applied because duty to warn was a common issue that the earlier waves of plainti s had fully litigated. All plainti s objected to the motions. Additionally, the Wave 2 plainti s asked the court to reconsider its earlier negligence-based duty determination. 4 The motion for reconsideration introduced new evidence and a new theory of duty arising from a previously unmentioned threat posed by WLC: that of lead dust—invisible particles of lead derived from the breakdown of lead paint, paint chips, and other lead-based products. The plainti s’ new evidence purported to show that, although modern consumers may have been aware of some of the dangers of lead-based paint, they were not so aware of the speci c dangers of lead dust. This lack of awareness about lead dust, the plainti s argued, could give rise to a duty to warn that would salvage their negligence claim. The district court denied the Wave 2 plainti s’ motion to reconsider on several grounds. First, the Wave 2 plainti s had previously conceded their negligence claims during the initial 4 The plainti s requested reconsideration under Rule 54(b) or “any other Rule or theory deemed appropriate.” 12 Nos. 22-2636 et al. summary judgment round without pointing to any countervailing evidence. Second, the countervailing evidence that the Wave 2 plainti s had since produced did not qualify as “new” for purposes of reconsideration because it was available all along. The court determined that the plainti s were “well equipped to argue” during the initial summary judgment round that the defendants had a duty to warn consumers about lead dust, but instead “made a strategic choice” to forgo their negligence claims. As to Group 3, the district court found that the law of the case doctrine properly applied. The court reasoned that while the Allen and Trammell plainti s each had their own claims, they elected to join those claims in the Allen and Trammell actions. They were thus formally parties to those two cases. Moreover, the court reasoned, it was fair to bind Group 3 to its Wave 2 rulings because those rulings concerned a common question of law or fact: whether the defendants had a duty to warn consumers in the 1990s and early 2000s. Allowing Group 3 to separately relitigate the common issue “would destroy the e ciency that provided the justi cation for joinder in the rst place.” The court further determined that none of the exceptions to the law of the case doctrine applied. As to Group 4, the district court found that collateral estoppel principles precluded the Group 4 plainti s from relitigating the duty-to-warn issue. Applying Wisconsin preclusion law, the court reasoned that the duty-to-warn question was adequately litigated, and that the Group 4 plainti s were su ciently in “privity” with the prior plainti s. The court held that the Group 4 plainti s had an “obvious interest” in the earlier waves because “the plainti s were prosecuting claims against the same defendants under identical legal Nos. 22-2636 et al. 13 theories in front of the same court and the same judge, who had been managing all cases jointly.” The court also noted that the same counsel represented the Group 4, Wave 1, and Wave 2 plainti s, which suggested that the Group 4 plainti s “approved of the tactics and strategy employed in the prior action.” Last, the court pointed out that it previously had applied issue preclusion against these same plainti s in determining that it lacked personal jurisdiction over American Cyanamid. In the end, the district court granted the defendants’ summary judgment motion on all claims. The district court denied the plainti s’ motion to alter or amend its judgment under Rule 59(e). It added, however, that to the extent the law of the case doctrine did not apply to Group 3, it would reach the same result on issue preclusion grounds. II. Analysis The three remaining batches of plainti s—Wave 2, Group 3, and Group 4—each appeal the district court’s grant of summary judgment against them. The Wave 2 plainti s contend that the district court erred in denying their motion to reconsider. The Group 3 plainti s maintain that the law of the case doctrine does not apply to them. And the Group 4 plainti s argue that applying issue preclusion against them violates due process. Additionally, all plainti s think we got questions of Wisconsin state law wrong the rst time around, see Burton II, 994 F.3d at 817–25, and they ask us to revisit that decision or certify the questions to the Wisconsin Supreme Court. We take each argument in turn. 14 Nos. 22-2636 et al. A. Wave 2 Plainti s We begin with the Wave 2 plainti s, who argue that the district court erred in rejecting their motion to reconsider. As noted above, the centerpiece of that motion is “new” evidence regarding lead dust, which purports to show that, although modern consumers might have been aware of the dangers of lead paint, they were not so alert to the threats of lead dust. We review the district court’s decision to deny a motion for reconsideration for an abuse of discretion. See KAP Holdings, LLC v. Mar-Cone Appliance Parts Co., 55 F.4th 517, 528 (7th Cir. 2022). We have said many times before that “[a] party may not use a motion for reconsideration to introduce new evidence that could have been presented earlier.” Cincinnati Life Ins. Co. v. Beyrer, 722 F.3d 939, 956 (7th Cir. 2013) (quoting Oto v. Metro Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000)); see also Caisse Nationale de Credit Agricole v. CBI Indus., Inc., 90 F.3d 1264, 1269 (7th Cir. 1996) (“Such motions cannot … be employed as a vehicle to introduce new evidence that could have been adduced during the pendency of the summary judgment motion.” (quotation marks omitted)). Rather, “[a] party seeking to defeat a motion for summary judgment is required to wheel out all its artillery to defeat it.” Caisse Nationale, 90 F.3d at 1270 (quotation marks omitted). Evidence kept in reserve, whether through strategy or inadvertence, supplies no basis for reconsideration. See id. The lead dust evidence undeniably falls into the category of preexisting-but-newly-desirable evidence. As the district court recognized, this evidence was available to the Wave 2 plainti s when they opted to concede their negligence claims at summary judgment. It is therefore inert on reconsideration. Nos. 22-2636 et al. 15 Rather than argue otherwise, the plainti s primarily contend that the district court should have granted their motion for reconsideration because the legal landscape shifted after our decision in Burton II. They insist that this court “changed the rules” when it held that strict liability and negligent failure-to-warn claims shared the same duty standard, and that the court should therefore permit them to relitigate the negligence-based claims. While it is true that motions for reconsideration may be appropriate where there has been a “controlling or signi cant change in the law,” Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir. 1990) (citation omitted), no such change occurred here. Burton II had everything to do with strict liability and nothing to do with negligence. Our ruling a ected only what the defendants had appealed: the district court’s determination of the duty to warn for strict liability claims. Burton II, 994 F.3d at 821–23. We did not disturb the district court’s ruling on the plainti s’ negligence-based claims. Indeed, we even noted that the negligence claims were not under consideration because the plainti s “ha[d] not appealed” them. Id. at 823. Burton II therefore cannot support a motion to reconsider the court’s negligence ruling. 5 5 We add that Burton II did not work any “change in the law” that would trigger the exception to the law of the case doctrine. The district court’s duty determination in the strict liability context is not a precedent and established no law that we could have altered in Burton II. See Midlock v. Apple Vacations W., Inc., 406 F.3d 453, 457 (7th Cir. 2005) (“[A] district court decision does not have stare decisis e ect; it is not a precedent.”); United States v. Arterbury, 961 F.3d 1095, 1105 (10th Cir. 2020) (rejecting the premise that “a district court can set the ‘law’ for change-of-law Nos. 22-2636 et al. 16 We recognize that the Wave 2 plainti s may have conceded summary judgment to the defendants and elected not to appeal the district court’s ruling on their negligent failureto-warn claims because they thought they would succeed on their strict liability claims. While that may have seemed a sound strategic decision at the time, the fact that our ruling in Burton II proved that decision costly does not provide grounds for reconsideration. See Caisse, 90 F.3d at 1270; see also Fannon v. Guidant Corp., 583 F.3d 995, 1003 (7th Cir. 2009) ( nding no abuse of discretion where the plainti s “apparently made a strategic decision not to put their new evidence into the record”). The district court did not abuse its discretion in denying the Wave 2 plainti s’ motion for reconsideration. B. Group 3 Plainti s We turn next to the Group 3 plainti s—the remaining, non-Wave 2 plainti s from the Allen and Trammell actions. The district court granted summary judgment against Group 3 on law of the case grounds. 6 For the reasons that follow, we nd no error in that decision. purposes”). Moreover, Burton II did not change Wisconsin law but rather applied established Wisconsin law principles. See Burton II, 994 F.3d at 822 (“[W]e and other courts applying Wisconsin law have treated [the duty to warn for negligence and strict liability claims] as materially identical.”); cf. Arterbury, 961 F.3d at 1105 (concluding that “appl[ying] long-established” principles does not “change the law”). 6 The district court alternatively held that issue preclusion would apply to the Group 3 plainti s. Because we a rm the district court’s decision on law of the case grounds, we do not reach that alternative holding. Nos. 22-2636 et al. 17 “The doctrine of law of the case establishes a presumption that a ruling made at one stage of a lawsuit will be adhered to throughout the suit.” Avitia v. Metro. Club of Chi., Inc., 49 F.3d 1219, 1227 (7th Cir. 1995) (citations omitted). The doctrine is discretionary, “not an in exible dictate.” Chi. Joe’s Tea Room, LLC v. Village of Broadview, 894 F.3d 807, 818 (7th Cir. 2018) (citations omitted)); see also Peterson v. Lindner, 765 F.2d 698, 704 (7th Cir. 1985) (“[Law of the case] must yield to rational decisionmaking.” (citing 20 A.L.R. Fed. 13 (1974)); Avitia, 49 F.3d at 1227 (“But [law of the case] is no more than a presumption, one whose strength varies with the circumstances; it is not a straitjacket.” (citation omitted)). Generally, however, a party must point to a “good reason” to abandon the court’s earlier ruling. Tice v. Am. Airlines, Inc., 373 F.3d 851, 853 (7th Cir. 2004); see also 18B Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 4478 (3d ed. Apr. 2023 Update) (hereinafter “Wright & Miller”) (“The standards announced for departing from the law of the case commonly demand strong justi cation.”). Such “unusual circumstances” justifying departure from the doctrine include (1) substantial new evidence introduced after the rst review, (2) an intervening change in the law, and (3) a clearly erroneous decision. See Kathrein v. City of Evanston, 752 F.3d 680, 685 (7th Cir. 2014) (quotation marks omitted). Here, the law of the case doctrine properly applies to the Group 3 plainti s because they were part of the same “case” as the Wave 2 plainti s and have consistently litigated that way. See Jarrard, v. CDI Telecomms., Inc., 408 F.3d 905, 911–12 (7th Cir. 2005) (“[A]s most commonly de ned, the [law of the case] doctrine … posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.” (quoting 18 Nos. 22-2636 et al. Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 815–16 (1988)). All the plainti s in the Allen and Trammell actions— Wave 2 included—intentionally decided to join together under Rule 20 and proceed within those two complaints. Thus, when the Wave 2 plainti s conceded their negligence claims at summary judgment, that concession on a common issue bound the Group 3 plainti s. As the district court correctly noted: the Group 3 plainti s may have their own claims, but they chose to bring those claims within the cases of Allen and Trammell. The district court’s ruling on the common duty question therefore became law of the case that appropriately applied to the Group 3 plainti s. See Bell v. Publix Super Markets, Inc., 982 F.3d 468, 489 (7th Cir. 2020) (noting that “courts and parties may choose to manage [their] cases”—such as through consolidated complaints—“in ways that can … give up the separate identities of the original suits” (citing In re Refrigerant Compressors Antitrust Litig., 731 F.3d 586, 588 (6th Cir. 2013)). The plainti s urge us to ignore the formal relationship between them because only some of them proceeded with discovery. Their theory is that, even if the Group 3 plainti s were technically parties to the same case as the Wave 2 plainti s, the district court’s “bellwether” treatment of the Wave 2 plainti s functionally severed them from the Allen and Trammell complaints they came from. In essence, they contend the district court “e ectively created two separate litigations” when it placed the Wave 2 plainti s on their own track to trial. The plainti s correctly note that the law of the case doctrine does not apply to severed claims. See Ga ney v. Riverboat Servs. of Ind., Inc., 451 F.3d 424, 441 (7th Cir. 2006) (“As a general matter, Rule 21 severance creates two discrete, Nos. 22-2636 et al. 19 independent actions, which then proceed as separate suits for the purpose of nality and appealability.”); Fed. R. Civ. P. 21. Moreover, we have held that Rule 21 severance can occur in the absence of a “formal order.” See Rice v. Sunrise Express, Inc., 209 F.3d 1008, 1014 n.8 (7th Cir. 2000). In Hebel v. Ebersole, for example, we recognized severance despite the court’s failure to formally invoke Rule 21. 543 F.2d 14 (7th Cir. 1976). It was enough there that the district court used the term “severed” in a pretrial order and had issued a judgment as to one of claims. Id. at 17. And in Rice v. Sunrise Express, we found severance even where the district court did not issue an order, invoke Rule 21, or use the word “sever” at all. 209 F.3d at 1013–16 & n.8. Severance is e ective, we held, so long as “the evidence shows that the district court intended to sever the parties and the parties understood that severance had occurred.” Rice, 209 F.3d at 1014 n.8; cf. Ravenswood Inv. Co., L.P. v. Avalon Corr. Servs., 651 F.3d 1219, 1223–24 (10th Cir. 2011) (construing a district court order that “severed and retained herein” three separate claims as not severing the case, but rather retaining the claims “in the single, original case”). 7 7 The plainti s cite neither Hebel nor Rice in support of their functional severance argument, and instead rely on a Sixth Circuit case, Edmonds v. Smith, 922 F.3d 737 (6th Cir. 2019). Edmonds, a habeas case involving the separate habeas petitions of two co-defendants, is an inapt comparator that does not even reference severance. Id. at 738–39. It simply stands for the unremarkable proposition that “di erent habeas actions brought by di erent petitioners are di erent cases.” Id. at 739. 20 Nos. 22-2636 et al. Here, however, there is no indication that either the district court or the parties intended severance to occur. There is also no evidence that the parties understood otherwise. We start with the district court. The plainti s primarily argue that, despite the CMO’s silence on the legal basis for setting aside the Wave 2 plainti s for trial, “it is clear that the court’s action was analogous to severance under Rule 21.” The CMO reveals no such intent on the part of the district court. The only meaningful evidence is the court’s use of the word “cases”—rather than “claims”—in the CMO to describe the Wave 2 plainti s. But we do not nd that characterization dispositive in the context of the history of this litigation, which shows that the court was committed to keeping the plainti s under one action, as they requested. Indeed, in response to the defendants’ motion to sever the Allen plainti s’ claims, the plainti s themselves described “[p]roof of the failure to warn elements” as being “particularly conducive” to common resolution. Thus, when the court expressly rejected the defendants’ motion to sever, it was defending the plainti s’ choice to collectively litigate the common questions of law and fact that permitted joinder in the rst place. We therefore do not construe the CMO as showing any intent to separate the Allen and Trammell actions, and neither did the district court. The plainti s also point out that the district court stayed discovery in the Group 3 cases, and the Wave 2 plainti s advanced toward a separate trial (from which a separate appeal presumably would have followed). None of this is determinative of severance. The district court just as easily could have held separate trials in the Wave 2 cases under Rule 42(b) and entered judgment under Rule 54(b), which permits the court Nos. 22-2636 et al. 21 to enter “a nal judgment as to one or more, but fewer than all, claims or parties” in an action. See Fed. R. Civ. P. 54(b); Fed. R. Civ. P. 42(b); Ga ney, 451 F.3d at 442 n.18 (“[A]n order of separate trials [under Rule 42(b)] does not result in the ling of separate cases. Instead, it simply leads to two or more separate factual inquiries in the context of a single, properly joined case. No matter how many separate trials the court may order, they remain part of a single case.” (quoting 4 Moore’s Fed. Practice § 21.06 (2005)). Similarly, Rule 42(b) also permits the court to stay discovery issues or claims within a single case. See Ellingson Timber Co. v. Great N. Ry. Co., 424 F.2d 497, 499 (9th Cir. 1970) (“It is implicit [under Rule 42(b)] that the court also ha[s] power to limit discovery to the segregated issues.” (citations omitted)). And while the court acknowledged that “individual discovery and separate trials will likely be required,” in the same breath it made clear that “these things can be accomplished without the disadvantages attendant to dismissal or severance.” Several more points bear mention. First, the court did not create new case captions or case numbers for the Wave 2 plainti s’ claims, and instead continued to issue its rulings in the Wave 2 litigation—including its order granting summary judgment to the defendants on the negligent failure-to-warn claims—under the captions of the Allen and Trammell actions. Second, the court did not issue a separate judgment against the Wave 2 plainti s when it entered nal judgment in this case. Finally, we nd it telling that the capable district court at no point described the Wave 2 plainti s as having been “severed” from their Group 3 counterparts. See Hebel, 543 F.2d at 17. Quite the opposite. In its ruling, the district court rejected Group 3’s severance theory as “clearly incorrect” and insisted that the Wave 2 plainti s were at all times proceeding Nos. 22-2636 et al. 22 within the Allen and Trammell actions. Although that kind of Monday-morning characterization is not dispositive and could not erase a severance that had otherwise taken place, see Ga ney, 451 F.3d at 442, “[w]hen a United States District Judge states what occurred in his or her courtroom on a particular occasion, that statement is certainly worthy of [this court’s] acceptance.” Rice, 209 F.3d at 1015. Our conclusion that the district court did not intend to sever the actions is also consistent with the conduct of both parties. Most obviously, the plainti s insisted from the beginning that all plainti s in the Allen and Trammell cases were properly joined and should proceed together. There is no indication that the plainti s sought to backtrack from that choice when they requested the CMO. Rather, the plainti s advertised that their proposed sequencing would “provide additional e ciencies,” including “coordinated motion practice on issues present in all of the cases.” Indeed, they pointed out that certain “threshold legal issues” would “of course … apply to all cases,” and they urged that these common issues “be dealt with once, not on a case-by-case basis.” In sum, we cannot conclude that either party thought a severance had occurred under these circumstances. 8 Nor can 8 At oral argument, the plainti s directed our attention to several documents in which the defendants insisted that issue preclusion should not apply in these cases. The plainti s also noted that the district court had earlier denied Atlantic Rich eld’s motion for summary judgment based on issue preclusion, in part because “the parties’ evidentiary treatment of the issues is likely to become more focused and thorough with reiteration.” These documents speak to issue preclusion, not law of the case. They may have everything to do with the Group 4 plainti s, but they have nothing to do with the Group 3 plainti s. We do not consider them here. Nos. 22-2636 et al. 23 we say that the district court intended to sever the claims. The law of the case doctrine therefore properly applies. The plainti s may not seek relief from the consequences of streamlined litigation that they themselves initiated, promoted, and defended. The law of the case doctrine exceptions do not save the plainti s. Their “new” lead dust evidence does not satisfy the “new evidence” exception because that exception applies only when the proposed new evidence was “previously undiscoverable.” See United States v. Sumner, 325 F.3d 884, 891 (7th Cir. 2003); Vidimos, Inc. v. Wysong Laser Co., 179 F.3d 1063, 1065 (7th Cir. 1999) (evidence must be new “and heretofore undiscoverable” to trigger the exception); Aquinnah/Gay Head Cmty. Ass’n, Inc. v. Wampanoag Tribe of Gay Head (Aquinnah), 989 F.3d 72, 86 (1st Cir. 2021) (“A party may avoid the application of the law of the case doctrine only by showing that … signi cant new evidence, not earlier obtainable in the exercise of due diligence, has come to light ….” (quotation marks omitted)). The plainti s readily concede that their new evidence has been available from the get-go, so it cannot provide grounds for relief. The plainti s’ contention that our decision in Burton II constitutes an “intervening change in the law” also fails. Kathrein, 752 F.3d at 685. As we have already explained, Burton II worked no change in the controlling law. We therefore conclude that the Wave 2 and Group 3 plainti s are part of the same case for law of the case purposes, and no exception to that doctrine applies. The district court did not abuse its discretion in applying the law of the case to Group 3. Nos. 22-2636 et al. 24 * * * The impact of our conclusion on the scope of this litigation is not lost on us. A rming the district court’s grant of summary judgment against Group 3 calves a considerable chunk from a once-sizeable mass of plainti s. Indeed, after all is said and done in this appeal, just three plainti s will remain. That consequence is unavoidable given the Allen and Trammell plainti s’ choice to proceed under just two complaints. In making that choice, the Wave 2 and Group 3 plainti s entered an all-for-one, one-for-all arrangement on common issues, and at all times remained tethered under their jointly led complaints. No doubt an earnest interest in e ciency motivated the plainti s’ decision to proceed in this manner. A litigant’s shortcuts, however, can cut both ways. When plainti s join together under one complaint, they opt for trial convenience and the expeditious determination of all disputes over the chance to litigate all questions on an individual basis. See Bell, 982 F.3d at 489; 7 Wright & Miller, supra, at § 1652. Perhaps for this reason, many courts have disfavored multi-party joinder in products liability cases. See, e.g., In re Accutane Prods. Liab. Litig. MDL No. 1626, 2012 WL 4513339, at *1 (M.D. Fla. 2012) (“Many federal courts hold that products liability cases are generally inappropriate for multi-plainti joinder because such cases involve highly individualized facts.”); see also 12 Sheila L. Birnbaum et al., Business and Commercial Litigation in Federal Courts § 128:4 (5th ed. Nov. 2022 Update) (“[W]here individual parties’ claims involve separate underlying events, such as where two or more unrelated plainti s each alleges that she experienced an injury after using the same product, or similar products made by di erent Nos. 22-2636 et al. 25 defendants, joinder of those parties and claims into a single action may not be appropriate because the facts giving rise to each plainti ’s claims will be di erent.”). This is not to say that joinder was in any way improper here. Rather, we simply stress that the exceptions to the law of the case doctrine do not o er an out from that tactical gamble. Cf. Burley v. Gagacki, 834 F.3d 606, 619 (6th Cir. 2016) (plainti s’ “strategic decision” not to contest an issue “precluded plainti s from making it an issue during subsequent proceedings”). There is nothing unreasonable about holding Group 3 to what it signed up for but now wishes it had not. C. Group 4 Plainti s We turn next to the Group 4 plainti s. These plainti s— Ernest Gibson, Deziree Valoe, and Detareion Valoe—were not parties to the Allen and Trammell actions, either as members of Wave 2 or Group 3. They instead led their own cases, which, pursuant to the case management order, the district court stayed pending the earlier waves of trials. The Group 4 plainti s now seek to litigate for themselves whether the defendants had a duty to warn under a lead dust-based theory of liability. The district court denied them that opportunity, instead granting summary judgment against them on issue preclusion grounds. After careful consideration, we reverse. Issue preclusion, or collateral estoppel, “bars ‘successive litigation of an issue of fact or law actually litigated and resolved in a valid court determination essential to the prior judgment,’ even if the issue recurs in the context of a di erent claim.” Taylor v. Sturgell, 553 U.S. 880, 892 (2008) (quoting New Hampshire v. Maine, 532 U.S. 742, 748 (2001)). Federal common law governs the preclusive e ect of a federal court judgment. Id. at 891. In diversity cases like this one, “federal law 26 Nos. 22-2636 et al. incorporates the rules of preclusion applied by the State in which the rendering court sits.” Id. at 891 n.4 (citing Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 508 (2001)). Under Wisconsin law, “[o]nce an issue is actually and necessarily determined by a court of competent jurisdiction, that determination is conclusive in subsequent suits based on a di erent cause of action involving a party to the prior litigation.” Paige K.B. ex rel. Peterson v. Steven G.B., 594 N.W.2d 370, 374 (Wis. 1999) (quoting Montana v. United States, 440 U.S. 147, 153 (1979)). Where, as here, a party seeks to preclude a nonparty, Wisconsin courts apply a two-step analysis. “The threshold issue is whether [the] litigant [to be precluded] was in privity or had su cient identity of interests to comport with due process.” Id. at 377 (internal alterations omitted) (quoting Ambrose v. Cont’l Ins. Co., 560 N.W.2d 309, 314 (Wis. 1997)). If so, the court asks whether applying issue preclusion would be fundamentally fair. Id. The question before us is thus whether the Group 4 plainti s were in privity or had su cient identity of interests with the Wave 2 plainti s such that applying issue preclusion against them comports with due process. “Due process requires that the litigant had su cient opportunity to be heard.” Id. (citing Parklane Hosiery Co. v. Shore, 439 U.S. 322, 327 n.7 (1979)). As a general matter, nonparties have not had a “full and fair opportunity to litigate” their claims, and so applying issue preclusion against them “runs up against the ‘deep-rooted historic tradition that everyone should have his own day in court.’” Taylor, 553 U.S. at 892–93 (quoting Richards v. Je erson County, 517 U.S. 793, 798 (1996)). It is therefore “a violation of due process for a judgment to be binding on a litigant who was not a party or a privy and therefore has never Nos. 22-2636 et al. 27 had an opportunity to be heard.” In re Paternity of Mayonia M.M., 551 N.W.2d 31, 35 (Wis. Ct. App. 1996) (quoting Parklane Hosiery, 439 U.S. at 327 n.7). “Privity exists when a person is so identi ed in interest with a party to former litigation that he or she represents precisely the same legal right with respect to the subject matter involved.” Pasko v. City of Milwaukee, 643 N.W.2d 72, 78 (Wis. 2002). When the nonparty is not “so closely aligned with a party in the prior proceeding as to represent the same legal interest or the litigant’s interests cannot be deemed to have been litigated in the prior proceeding, the litigant’s due process rights would, as a matter of law, be violated were a court to apply issue preclusion.” Paige, 594 N.W.2d at 378. Our task sitting in diversity is to “use our own best judgment to estimate how the Wisconsin Supreme Court would rule as to its law.” Valerio v. Home Ins. Co., 80 F.3d 226, 228 (7th Cir. 1996); see also In re Zimmer, NexGen Knee Implant Prods. Liab. Litig., 884 F.3d 746, 751 (7th Cir. 2018) (“When interpreting state law, a federal court’s task is to determine how the state’s highest court would rule.” (quoting Rodas v. Seidlin, 656 F.3d 610, 626 (7th Cir. 2011)). Yet Wisconsin caselaw o ers little guidance on how its preclusion rules operate in coordinated personal-injury actions. The district court largely based its holding on a single case from the Wisconsin Court of Appeals, Jensen v. Milwaukee Mutual Insurance Co., 554 N.W.2d 232 (Wis. Ct. App. 1996), but the Jensen court did not meaningfully discuss the privity requirement or due process at all. There are also signi cant factual di erences between that case and this one. Jensen concerned the propriety of applying issue preclusion across subsequent negligence actions brought by a husband and wife against an insurance Nos. 22-2636 et al. 28 company following a single car accident. 554 N.W.3d at 233– 34. This case, however, involves several coordinated cases in which the plainti s are unrelated and their injuries do not stem from a single incident. And unlike in Jensen, where the wife “actively participated” in her husband’s action as a “critical witness,” id. at 235, the Group 4 plainti s here played no similar part in the prior proceedings. At best, they agreed to be bound by the court’s rulings in prior cases. But Jensen o ers no direction on how and when consent might support the application of issue preclusion against a nonparty. In other words, Jensen is both analytically meager and factually distinguishable. We are disinclined to import its holding here. Because Jensen does not inform the outcome of this case, we look to the Supreme Court’s decision in Taylor v. Sturgell, 553 U.S. 880. See In re Zimmer, 885 F.3d at 751 (“Absent any authority from the relevant state courts, the federal court shall examine the reasoning of courts in other jurisdictions addressing the same issue and applying their own law for whatever guidance about the probable direction of state law they may provide.’” (cleaned up)). Taylor, of course, arose under federal common law and is only persuasive here. See 553 U.S. at 893 n.6; In re Zimmer, 884 F.3d at 751. That said, there are good reasons to think the Wisconsin Supreme Court would follow Taylor—including that the court recently embraced that decision while applying its own state preclusion rules. 9 See Clarke v. Wis. Elections Comm’n, 998 N.W.2d 370, 392 n.23 (Wis. 2023). In our view, the state supreme court’s approval of Taylor (and our reliance on it here) makes sense given the 9 We nd no Wisconsin authority in the fteen years since Taylor suggesting that Wisconsin state courts disapprove that decision. Nos. 22-2636 et al. 29 congruence between Wisconsin’s preclusion law and that of the federal common law. The essential inquiry under both is whether precluding the nonparty violates his or her due process rights. Compare Paige, 594 N.W.2d at 377 (“The threshold issue is whether such a litigant was in privity or had su cient identity of interests to comport with due process.” (cleaned up)), and In re Estate of Rille ex rel. Rille, 728 N.W.2d 693, 707 (Wis. 2007) (“[Issue preclusion] is ‘bottomed in guarantees of due process which require that a person must have had a fair opportunity procedurally, substantively, and evidentially to pursue the claim before a second litigation will be precluded.’” (quoting Precision Erecting, Inc. v. M & I Marshall & Ilsley Bank, 592 N.W.2d 5, 12 (Wis. Ct. App. 1998)), with Taylor, 553 U.S. at 891 (“The federal common law of preclusion is, of course, subject to due process limitations.” (citing Richards, 517 U.S. at 797)). As the Wisconsin Supreme Court has said, “[t]he due process clauses of the United States and Wisconsin Constitutions ‘prohibit a court from granting preclusive e ect to a prior determination of an issue without the precluded party having had the opportunity to contest that issue.’” Paige, 594 N.W.2d at 378 (emphasis added) (quoting Parker v. Williams, 862 F.2d 1471, 1474 n.1 (11th Cir. 1989)). Thus, while Taylor re ects the federal common law approach to issue preclusion, the close parallels between that approach and that of Wisconsin state law lead us to predict that the Wisconsin Supreme Court would look to Taylor in answering the question presented here. Taylor is a particularly appropriate lodestar because it is the Court’s most recent thorough exploration of nonparty issue preclusion. The question there concerned whether a court could bind nonparties under a theory of “virtual representation” based on an “identity of interests and some kind of Nos. 22-2636 et al. 30 relationship between parties and nonparties.” Taylor, 553 U.S. at 901. The Supreme Court unanimously rejected that theory, explaining: An expansive doctrine of virtual representation … would “recogniz[e], in e ect, a common-law kind of class action.” That is, virtual representation would authorize preclusion based on identity of interests and some kind of relationship between parties and nonparties, shorn of the procedural protections prescribed in [Supreme Court precedent] and Rule 23. These protections, grounded in due process, could be circumvented were we to approve a virtual representation doctrine that allowed courts to “create de facto class actions at will.” Id. at 901 (quoting Tice v. Am. Airlines, Inc., 162 F.3d 966, 972– 73 (7th Cir. 1998)). Recognizing the “fundamental nature” of the general rule against nonparty preclusion, the Court observed that it had “endeavored to delineate discrete exceptions that apply in ‘limited circumstances’”: (1) nonparty agreement to be bound in a prior action; (2) nonparty control over the prior action; (3) adequate representation of the nonparty by the party to the judgment in the prior action; (4) a substantive legal relationship between the party to the judgment in the prior action and the nonparty; (5) relitigation of the prior action through a proxy; and (6) the existence of a special statutory scheme providing for nonparty issue preclusion. 10 Id. at 893–95, 898 (quoting Richards, 517 U.S. at 762 n.2). 10 The Court stressed, however, that its list of exceptions did “not … establish a de nitive taxonomy” and was “meant only to provide a Nos. 22-2636 et al. 31 The virtual representation doctrine did not t within any of these exceptions, and the Court objected to abandoning them in favor of an “amorphous balancing test” that would be “at odds with the constrained approach to nonparty preclusion [its] decisions advance.” Id. at 898. Taylor supplies a helpful framework for our analysis. As the Court did there, we ask whether applying issue preclusion to Group 4 ts within any of the recognized categories of exceptions to the general rule against nonparty issue preclusion. Three are clearly inapplicable to the facts here: there is no substantive legal relationship between the Group 4 and Wave 2 plainti s, the Wave 2 plainti s are not simply relitigating their claims through Group 4, and there is no statute at issue purporting to permit preclusion. The remaining three categories of exceptions—nonparty agreement to be bound, control, and adequate representation—require some discussion. We take each in turn. 1. Agreement to be Bound Nonparties may freely choose to forgo their day in court. As the Supreme Court has said, “[a] person who agrees to be bound by the determination of issues in an action between others is bound in accordance with the terms of his agreement.” Taylor, 553 U.S. at 893 (alteration in original) (quoting 1 Restatement (Second) of Judgments § 40 (1980)). “Agreement” in this context can be either explicit or implicit. Id. at 894 n.7 (citations omitted). framework for [its] consideration of virtual representation.” Taylor, 553 U.S. at 893 n.6. 32 Nos. 22-2636 et al. The paradigmatic example of nonparty issue preclusion by consent appears in multiparty disputes. “[I]f separate actions involving the same transaction are brought by di erent plainti s against the same defendant, all the parties to all the actions may agree that the question of the defendant’s liability will be de nitely determined, one way or the other, in a ‘test case.’” Id. at 893 (quoting David Shapiro, Civil Procedure: Preclusion in Civil Actions 77–78 (2001)). Here, there is no evidence the Group 4 plainti s explicitly agreed to be bound by the district court’s duty-to-warn determination in the Wave 2 cases. While the defendants rely on the CMO as showing the Group 4 plainti s’ consent, that reliance is misplaced. Neither the plainti s’ motion nor the CMO mentioned preclusion. The CMO also does not support the conclusion that the Group 4 plainti s impliedly consented to be bound. As a general matter, courts are reluctant to nd implied consent to nonparty issue preclusion, given the due process guarantees at stake. See generally 18A Wright & Miller, supra, at § 4453 (“Great care should be taken, however, to ensure that the circumstances actually warrant the implication that there was in fact an agreement to be bound. For the most part, implied consent is not found.”); Shapiro, supra, at 78 (cautioning that “courts should be hesitant to rely on notions of ‘implied consent’”); Restatement (Second) of Judgments § 40 (1982) (“While a party may agree to refrain from exercising his right to a day in court in return for being spared the burden of active litigation, no such agreement should be inferred except upon the plainest circumstances.”). The uncertainty surrounding the preclusive scope of the CMO gives us no reason to shed that reluctance. Nos. 22-2636 et al. 33 The defendants point out that the plainti s acknowledged that certain threshold “legal issues” applicable to all cases should be dealt with once, and that the existence of a duty to warn is one such common question of law. Yet answering that question involves applying law to fact. See Strasser v. Transtech Mobile Fleet Serv., Inc., 613 N.W.2d 142, 154 (Wis. 2000) (“Where the parties agree upon the facts, the existence of a duty presents a question of law.”). It would be one thing to hold Group 4 to the court’s determination of how that duty is de ned in negligence cases. It is entirely another to deny them the chance to present their own evidence showing that such a duty existed. Absent clear evidence to the contrary, we are skeptical that Group 4 intended the CMO as a wholesale surrender-by-implication of their due process rights to litigate dispositive factual issues, for themselves, in their own cases. That conclusion is consistent with the widely accepted principle that bellwether trials in separate, aggregated cases are typically non-binding. See In re E.I. du Pont de Nemours & Co. C-8 Personal Injury Litig., 54 F.4th 912, 938 (6th Cir. 2022) (Batchelder, J., concurring in part and dissenting in part) (“In practice, [bellwether] results are generally non-binding absent an agreement to the contrary between the parties.” (citing Eldon E. Fallon et al., Bellwether Trials in Multidistrict Litigation, 82 Tul. L. Rev. 2323, 2331 n.27, 2337 (2008)). While parties may occasionally consent to be bound by the results of a single bellwether, see, e.g., Silivanch v. Celebrity Cruises, Inc., 333 F.3d 355, 359 (2d Cir. 2003), the plainti s’ descriptions of the Wave 2 trials con rm that no such thing happened here. The plainti s repeatedly described the Wave 2 trials as informing future litigation—not foreclosing future claims. For example, the plainti s’ motion for a case management order insisted that “[o]nce these bellwether trials [were] complete, all parties 34 Nos. 22-2636 et al. would have a good handle on how to resolve any remaining issues, and be able to formulate a game plan for the remainder of the cases.” Later on, the plainti s described the district court’s ndings in prior waves as merely “precedent” that would help inform disputed issues, not bind the parties. Importantly, the vitality of the day-in-court ideal does not diminish in consolidated, multi-party litigation. As the Third Circuit observed in another mass tort case, consolidation “does not merge the suits into a single cause, or change the rights of the parties, or make those who are parties in one suit parties in another.” In re TMI Litig., 193 F.3d 613, 724 (3d Cir. 1999). There, the court found issue preclusion improper among consolidated cases, even where the parties had agreed to conduct evidentiary and discovery matters on an “[a]ll [p]lainti s” basis, and even where the district court’s ruling “turn[ed] on broad evidentiary issues common to all Plainti s.” Id. at 628, 723. Notwithstanding those coordinated proceedings and the common issues, the court found that applying issue preclusion would “improperly extend the doctrine” beyond its due process bounds. Id. at 726. We think Wisconsin courts would share the hesitation to nd privity and preclude a nonparty from litigating an application of law to fact without some clear indication that the nonparty intended that result. That reluctance is particularly prudent in the complex and plainti -rich environment of mass-tort litigation, where the temptation to strike many birds with one stone is understandably strong. Cf. Malcolm v. Nat’l Gypsum Co., 995 F.2d 346, 350 (2d Cir. 1993) (“The systemic urge to aggregate litigation must not be allowed to trump our dedication to individual justice, and we must take care that each individual plainti ’s—and defendant’s—cause Nos. 22-2636 et al. 35 not be lost in the shadow of a towering mass litigation.” (quoting In re Brooklyn Navy Yard Asbestos Litig., 971 F.2d 831, 853 (2d Cir. 1992)). Even among tightly coordinated cases, “separate cases brought together for pretrial proceedings ‘retain their separate identities.’” Home Depot USA, Inc. v. Lafarge N. Am., Inc., 59 F.4th 55, 62 (3d Cir. 2023) (quoting Gelboim v. Bank of Am. Corp., 574 U.S. 405, 413 (2015)). Consolidation alone cannot “impose the heavy toll of a diminution of any party’s rights.” Id. (quoting Bradgate Assocs., Inc. v. Fellows, Read & Assocs., 999 F.2d 745, 750 (3d Cir. 1993)). We therefore nd insuf cient evidence that Group 4, in the CMO or elsewhere, consented to be bound in the prior proceedings. 2. Control The next category of exception to the general rule against nonparty preclusion is control. “[A] nonparty is bound by a judgment if she ‘assume[d] control’ over the litigation in which that judgment was rendered.’” Taylor, 553 U.S. at 895 (quoting Montana, 440 U.S. at 154); see also State v. Mechtel, 499 N.W.2d 662, 667 (Wis. 1993) (“For a nonparty to an action to be in privity with a party, the nonparty must substantially control or be represented by the party.”). Where a nonparty’s vicarious presence in a case amounts to an exercise of control over a named party, “then the nonparty e ectively enjoyed his day in court, and it is appropriate to impute to him the legal attributes of party status for [preclusion] purposes.” Gonzalez v. Banco Cent. Corp., 27 F.3d 751, 758 (1st Cir. 1994). “Control” in this context carries its ordinary meaning and should not be confused with mere coordination or an alignment of interests. “[T]he degree of control justifying preclusion of a nonparty should be enough that the nonparty has the actual measure of control or opportunity to control that 36 Nos. 22-2636 et al. might reasonably be expected between two formal coparties.” Kerr-McGee Chem. Corp. v. Hartigan, 816 F.2d 1177, 1181 (7th Cir. 1987) (cleaned up); see also Mechtel, 499 N.W.2d at 667 ( nding no evidence that the state controlled a federal prosecution where “[t]he state and federal prosecutors did cooperate to some degree when the state decided to dismiss the rearms charges in order to allow the rearms charges to be federally prosecuted”); Restatement (Second) of Judgments § 39 (1982) (“To have control of litigation requires that a person have e ective choice as to the legal theories and proofs to be advanced in behalf of the party to the action. He must also have control over the opportunity to obtain review.”). A mere tightly coordinated litigation strategy between the parties is insu cient. See E.E.O.C. v. Pemco Aeroplex, Inc., 383 F.3d 1280, 1290 (11th Cir. 2004); 18A Wright & Miller, supra, at § 4451 (“[I]t is not enough that the nonparty … participated in consolidated pretrial proceedings”). We nd no evidence of control in this case. While the district court found that “the plainti s were prosecuting claims against the same defendants under identical legal theories in front of the same court and the same judge, who had been managing all cases jointly,” its focus on those similarities says nothing about the degree of Group 4’s control over the Wave 2 proceedings. The only possible evidence of control is the parties’ shared counsel. It is well established, however, that shared counsel alone does not amount to control and cannot alone justify preclusion of a nonparty. See, e.g., Clarke, 998 N.W.2d at 392 n.23 (“[T]he identity of the lawyers hired by [the nonparty] is irrelevant to whether the [nonparty’s] due process rights were protected.” (citing Taylor, 553 U.S. at 892–93)); Gonzalez, 27 Nos. 22-2636 et al. 37 F.3d at 759 (“[C]ourts have refused to nd substantial control merely because a nonparty retained the attorney who represented a party to the earlier action.”); Collins v. E.I. DuPont de Nemours & Co., 34 F.3d 172, 178–79 (3d Cir. 1994) (“The fact that the plainti ’s attorney took part in a prior, similar action is irrelevant unless there is evidence that the plainti was, through his or her attorney, actually participating in the prior suit.”); Benson & Ford, Inc. v. Wanda Petroleum Co., 833 F.2d 1172, 1175 (5th Cir. 1987) (“For a nonparty to be so closely aligned … requires more than a showing of parallel interest or, even, a use of the same attorney in both suits.”) (quotation marks omitted). The Group 4 plainti s thus did not control the earlier litigation for purposes of issue preclusion. 3. Adequate Representation Under the nal Taylor category, “a nonparty may be bound by a judgment because she was ‘adequately represented by someone with the same interest who [was] a party’ to the suit.” Taylor, 553 U.S. at 894 (quoting Richards, 517 U.S. at 798). “A party’s representation of a nonparty is ‘adequate’ for preclusion purposes only if, at a minimum: (1) The interests of the nonparty and her representative are aligned; and (2) either the party understood herself to be acting in a representative capacity or the original court took care to protect the interests of the nonparty.” Id. at 900 ( rst citing Hansberry v. Lee, 311 U.S. 32, 43 (1940), and then citing Richards, 517 U.S. at 801–02). Where the second prong goes unsatis ed, the due process inquiry “c[omes] to an end.” Id. at 897–98. In this case, there is no evidence satisfying either element of the second prong. The Wave 2 plainti s “did not sue on behalf of a class,” their complaint “did not purport to assert any claim against or on behalf of any nonparties,” and the Nos. 22-2636 et al. 38 court’s summary judgment ruling “did not purport to bind” nonparties. Richards, 517 U.S. at 801. There is also no indication that the court “took care to protect the interests” of the Group 4 plainti s, or that the Wave 2 plainti s “understood their suit to be on behalf of absent [parties].” Id. at 802. Under these circumstances, the prior plainti s did not adequately represent the Group 4 plainti s, and issue preclusion would be “inconsistent with ‘the due process of law guaranteed by the Fourteenth Amendment.’” Taylor, 553 U.S. at 896–97 (quoting Richards, 517 U.S. at 797). * * * The application of issue preclusion against the Group 4 plainti s thus does not t within any of Taylor’s exceptions to the general rule against nonparty issue preclusion. While that conclusion is not determinative, it does aid us in locating the due process limitations that shape Wisconsin’s preclusion test. Indeed, we nd no Wisconsin authority since Taylor suggesting that Wisconsin’s courts embrace a more expansive approach to issue preclusion than that of the federal common law. There is therefore good reason to think that given the opportunity, the Wisconsin Supreme Court would take an equally dim view of a brand of issue preclusion falling outside of Taylor’s recognized exceptions. Cf. id. at 904 (“The preclusive e ects of a judgment in a federal-question case decided by a federal court should … be determined according to the established grounds for nonparty preclusion described in this opinion.”); Duckett v. Fuller, 819 F.3d 740, 745 (4th Cir. 2016) (“[T]he resolution of the issue presented in this appeal begins and ends with Taylor.”); Briscoe v. City of New Haven, 654 F.3d 200, 203–04 (2d Cir. 2011) (“consult[ing] the[] six categories” in Taylor and nding issue preclusion improper). Nos. 22-2636 et al. 39 Accordingly, we conclude that the Group 4 plainti s were not in privity and lacked su cient identity of interest with the plainti s in the prior proceedings. Group 4 has thus far sat largely on the sidelines of this litigation, a position that has deprived them of the “full and fair opportunity to litigate” the duty question. Taylor, 553 U.S. at 892; Paige, 594 N.W.2d at 377–78. “Principles of issue preclusion have not developed to the point where we may bind plainti s by the nding of previous proceedings in which they were not parties”—even by proceedings as coordinated as those that the case management order called for here. See In re TMI, 193 F.3d at 726 (quoting DeLuca v. Merrell Dow Pharm., Inc., 911 F.2d 941, 952 (3d Cir. 1990)). Because the Group 4 plainti s were not in privity nor had su cient identity of interest with the prior plainti s, “applying issue preclusion to the[m] would violate [their] due process rights and the analysis ends.” Paige, 594 N.W.2d at 377. Undeterred, the defendants insist that Group 4 was on notice that issue preclusion would apply to their cases because the court used issue preclusion to dismiss American Cyanamid after nding that it lacked personal jurisdiction in the Wave 1 trials. The defendants o er no case in which a court has recognized a notice-based theory of issue preclusion. And even assuming mere notice could cure our due process concerns, it would not do so here because no such notice existed. While the court may have used issue preclusion to dismiss American Cyanamid, it declined to apply issue preclusion to the jury’s liability nding as to Atlantic Rich eld, explaining that the appropriateness of preclusion depended on the circumstances. Indeed, Sherwin Williams itself opposed Atlantic Rich eld’s attempt to apply issue preclusion, asserting that “Plainti s may wish to investigate and present their own … Nos. 22-2636 et al. 40 evidence … that was not presented or developed fully in the rst-round trial.” The court’s earlier rulings thus did not provide the plainti s with meaningful notice and cannot support its application of issue preclusion here. 11 Finally, although we disagree with the district court’s application of issue preclusion under the circumstances here, we recognize the inherent challenges that complex multiparty cases pose for district courts. Courts in these circumstances face the di cult task of balancing litigants’ due process rights against the practical demands of shepherding hundreds of individual claims toward nal resolution. Laudably, judges “have risen to this challenge by devising e cient, e ective, and fair case management techniques.” Home Depot, 59 F.4th at 65. This case is no di erent, and we again commend the court’s able stewardship of this litigation. But it is important that the e cient pursuit of nality not lose sight of the day-in-court guarantee and the due process protections available to all parties. See Malcolm, 995 F.2d at 350 (“The bene ts of e ciency can never be purchased at the cost of fairness.”). To that end, courts and commentators have identi ed several tools at a district court’s disposal that promote the e cient and nal resolution of complex cases, yet safeguard litigants’ procedural interests in being heard. See, e.g., Home Depot, 59 F.4th at 65–68. These include, for example, 11 The defendants alternatively argue that law of the case separately warrants judgment in their favor. Not so. As we have already explained, law of the case operates “within a single action.” Currier v. Virginia, 138 S. Ct. 2144, 2154 (2018). But see Disimone v. Browner, 121 F.3d 1262, 1266–67 (9th Cir. 1997). Even if it did not, the due process concerns we have already identi ed persuade us against applying that discretionary doctrine here. Nos. 22-2636 et al. 41 treating prior decisions as persuasive absent a showing of cause why the issue should be revisited, or requiring consolidated complaints. Id. Nothing in this opinion should be taken to discourage such devices, or other procedural innovation consistent with due process, going forward. 4. The Plainti s’ New Evidence The defendants also ask us to consider the merits of the duty-to-warn question based on the new lead dust evidence. “[F]act nding is the basic responsibility of district courts, rather than appellate courts.” Pullman-Standard v. Swint, 456 U.S. 273, 291–92 (1982) (quoting DeMarco v. United States, 415 U.S. 449, 450 (1974)). It is not our role to leapfrog the district court and “resolve[] in the rst instance [a] factual dispute which ha[s] not been considered by the District Court.” Id.; Door Sys., Inc. v. Pro-Line Door Sys., Inc., 126 F.3d 1028, 1032 (7th Cir. 1997) (“It remains to apply the standard to the facts, but that is a job in the rst instance for the district court.”). We leave this task to the district court on remand. D. Revisiting Burton II The plainti s close with a parting shot at Burton II. Specifically, they take aim at two of our conclusions of state law there: rst, that the duty to warn in both the negligence and strict liability contexts depends on the knowledge of the ultimate consumer; and second, that there can be no negligence liability without a product defect. See Burton II, 994 F.3d at 817–23. The plainti s assert that each of these conclusions was contrary to Wisconsin law, and they move to certify the issues to the Wisconsin Supreme Court for resolution. In the Nos. 22-2636 et al. 42 alternative, the plainti s ask us to overrule Burton II. 12 We reject both invitations. Precedents may not be “sacrosanct,” but neither are they ckle. Buchmeier v. United States, 581 F.3d 561, 565 (7th Cir. 2009) (en banc). “There must be a serious justi cation for overruling a settled precedent.” United States v. Ramirez, 52 F.4th 705, 712 (7th Cir. 2022). “We do not lightly overturn circuit precedent, and we give ‘considerable weight to prior decisions of this court unless and until they have been overruled or undermined by the decisions of a higher court, or other supervening developments.’” Wesbrook v. Ulrich, 840 F.3d 388, 399 (7th Cir. 2016) (quoting Santos v. United States, 461 F.3d 886, 891 (7th Cir. 2006), a ’d, 553 U.S. 507 (2008)). The inertia of circuit precedent is particularly strong when the prior decision answered a question of state law. As we said in Burton II, when the court invests the time and resources to weigh in on an unsettled issue of state law, “our conclusion binds us until the state’s supreme court says otherwise.” Burton II, 994 F.3d at 815–16 (citing Reiser v. Residential Funding Corp., 380 F.3d 1027, 1029–30 (7th Cir. 2004)); see 12 The plainti s also “suggest[ed],” but never petitioned for, an initial en banc hearing to address our ruling in Burton II. See Fed. R. App. P. 35. Wisely so, in our view. It bears repeating that the standards for granting rehearings en banc (and initial en banc hearings, for that matter) are “strict” in this circuit. HM Holdings, Inc. v. Rankin, 72 F.3d 562, 562 (7th Cir. 1995). The bar is even higher for petitions presenting only issues of state law. Such petitions have “an added burden to explain why [a state law issue is] of such exceptional importance that it warrant[s] review en banc in a federal court, the decision of which would not even be binding on [state] courts.” Id. at 563. The plainti s here make no case why the issues in Burton II rise to that level. Nos. 22-2636 et al. 43 also Wesbrook, 840 F.3d at 399 (“The state courts are quite capable of signaling when they disagree with a federal court’s interpretation of state law.”). The Wisconsin courts have not said otherwise in this instance. The plainti s point to no state court case since Burton II disapproving or even distinguishing our decision there. Not for lack of opportunity, either—a year after our decision in Burton II, the plainti s asked the Wisconsin Supreme Court to take jurisdiction of an original action addressing these same questions, and the state court declined review. See Wis. Stat. § 809.70 (2021). Moreover, the cases we relied on in Burton II remain good law. See, e.g., Godoy ex rel Gramling v. E.I. du Pont de Nemours & Co., 768 N.W.2d 674 (Wis. 2009); Morden v. Cont’l AG, 611 N.W. 2d 659 (Wis. 2000); Greiten v. LaDow, 235 N.W.2d 677 (Wis. 1975) (controlling opinion of He ernan, J.). The plainti s’ challenges to Burton II on this appeal are identical to those we rejected in Burton II, and nothing since then has called that decision into question. Absent any indication that the Wisconsin state courts take issue with Burton II, “the principle of stare decisis controls.” Wesbrook, 840 F.3d at 399. Certi cation to the Wisconsin Supreme Court is also inappropriate. For starters, we are far from “uncertain” about what Wisconsin law has to say about these questions because we answered them at length in Burton II. See State Farm Mut. Auto. Ins. Co. v. Pate, 275 F.3d 666, 673 (7th Cir. 2001). As a prudential matter, sending to the state court questions we have already answered renders our earlier e ort a waste—especially without signs from the state court that we got Burton Nos. 22-2636 et al. 44 II wrong. 13 See Nat’l Cycle, Inc. v. Savoy Reinsurance Co., 938 F.2d 61, 64 (7th Cir. 1991) (“[T]he right time to certify a question is before the rst federal decision on the point. Certi cation eliminates the need to expend judicial resources predicting how another court will decide a question. Once we have invested the time and e ort to make the prediction, the costs have been sunk.”); see also Hernandez v. Ill. Inst. of Tech., 63 F.4th 661, 673 (7th Cir. 2023) (Kirsch, J., concurring). Finally, the Wisconsin Supreme Court already declined to address the issues in Burton II when it denied the plainti s’ petition for original action. See Circle Block Partners, LLC v. Fireman’s Fund Ins. Co., 44 F.4th 1014, 1024 (7th Cir. 2022) (declining to certify questions in part because “[t]he Indiana Supreme Court recently decided not to address those issues” (citations omitted)). We therefore decline to certify the issue to the Wisconsin Supreme Court. 14 III. Conclusion For these reasons, we a rm the judgments of the district court as to the Wave 2 and Group 3 plainti s. We reverse the judgment as to Group 4, and remand to the district court for further proceedings consistent with our opinion. 13 Indeed, we declined a motion to certify nearly identical questions after Burton II. 14 In light of this decision, the defendants’ motion to strike the plainti s’ certi cation motion is denied as moot.
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