On appeal from the Superior Court of New Jersey, Law Division, Bergen County.
Gaulkin, Bilder and R. S. Cohen. The opinion of the court was delivered by Bilder, J.A.D.
[228 NJSuper Page 163] This is a prescription drug liability case brought against a manufacturer*fn1 for in utero gynecological injury plaintiff Susan Kortenhaus alleges resulted from her mother's ingestion of DES during pregnancy.*fn2 Her complaint asserts claims against defendant Eli Lilly & Company based on theories of negligence, strict liability and breach of warranty. The matter comes before us on defendant's interlocutory appeal, on leave granted, from a partial summary judgment precluding it from litigating certain liability issues on the ground these were previously litigated by defendant and resolved against it in an earlier action in New York, Bichler v. Eli Lilly and Co., reported on appeal at 79 A.D. 2d 317, 436 N.Y.S. 2d 625 (1981), aff'd 55 N.Y. 2d 571, 436 N.E. 2d 182, 450 N.Y.S. 2d 776 (1982) and from denial of its subsequent motion for reconsideration. In the February 16, 1988 order for partial summary judgment appealed from, defendant was collaterally estopped, i.e., barred, from disputing that DES was not reasonably safe for accidents of pregnancy in 1953; that in 1953 defendant should have foreseen that DES might cause cancer in the offspring of pregnant women who took it; that a reasonable and prudent drug manufacturer would have tested DES on pregnant mice before
marketing it; that the results of such tests would have shown that DES causes cancer in the offspring of tested mice; and that a reasonable and prudent drug manufacturer would not have marketed DES for use in accidents of pregnancy in 1953 if it had known that DES causes cancer in the offspring of pregnant mice. On appeal defendant contends the application of collateral estoppel to preclude it from contesting these factual conclusions was improper. We agree.
Collateral estoppel is a branch of the broader law of res judicata which bars relitigation of issues previously litigated and determined adversely to the party against whom the doctrine is asserted. See Allesandra v. Gross, 187 N.J. Super. 96, 103-104 (App.Div.1982). It is said to have as its purposes the protection of litigants from relitigating identical issues and the promotion of judicial economy. See Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326, 99 S. Ct. 645, 649, 58 L. Ed. 2d 552 (1979). It is primarily a rule of efficiency. See Blonder-Tongue Labs v. University Foundation, 402 U.S. 313, 328-329, 91 S. Ct. 1434, 1442-43, 28 L. Ed. 2d 788 (1971); Green, The Inability of Offensive Collateral Estoppel to Fulfill Its Promise: An Examination of Estoppel in Asbestos Litigation, 70 Iowa L.Rev. 141, 144 (1984); Lindsay, Offensive Collateral Estoppel, Appendix F to Dreier, Goldman & Farer, Products Liability and Toxic Tort Law in New Jersey: A Practitioner's Guide (6th Ed.1988) at F2. When used by a defendant to bar a claim plaintiff has previously litigated and lost against a different defendant, it is referred to as defensive collateral estoppel. See Parklane Hosiery Co. v. Shore, supra 439 U.S. at 329, 99 S. Ct. at 650. When used to bar a defendant from asserting a defense previously litigated and lost against a different plaintiff, it is referred to as offensive collateral estoppel. Ibid. In this case, we are confronted with an application of offensive collateral estoppel to bar defendant from denying that its drug
was unsafe and that it was negligent in marketing DES for use by pregnant women.
At one time collateral estoppel was available only where there was a mutuality of estoppel; however, more recently this requirement was discarded and a more flexible rule was adopted which emphasized a discretionary weighing of economy against fairness. See Allesandra v. Gross, supra 187 N.J. Super. at 104. New Jersey has adopted the modern rule as contained in § 29 of the Restatement of Judgments 2d.
§ 29. Issue Preclusion in Subsequent Litigation with Others
A party precluded from relitigating an issue with an opposing party, in accordance with §§ 27 and 28, is also precluded from doing so with another person unless the fact that he lacked full and fair opportunity to litigate the issue in the first action or other circumstances justify affording him an opportunity to relitigate the issue. The circumstances to which considerations should be given include those enumerated in § 28 and also whether:
(1) Treating the issue as conclusively determined would be incompatible with an applicable scheme of administering the remedies in the actions involved;
(2) The forum in the second action affords the party against whom preclusion is asserted procedural opportunities in the presentation and determination of the issue that were not available in the first action and could likely result in the issue being differently determined;
(3) The person seeking to invoke favorable preclusion, or to avoid unfavorable preclusion, could have effected joinder in the first action ...