DUNCAN, J.
Reversed.
DUNCAN, J.
Petitioner filed a petition in the trial court for a stalking protective order (SPO) against respondent, her ex-husband. The court entered a temporary SPO and set a hearing to determine whether to continue the temporary SPO. After the hearing, the court entered a final SPO of unlimited duration. On appeal, respondent argues that the final SPO was not supported by sufficient evidence. On de novo review, ORS 19.415(3) (2007), we agree and reverse.
In Hanzo v. deParrie, 152 Or App 525, 537, 953 P2d 1130 (1998), rev den, 328 Or 418 (1999), we held that SPOs are "decrees in a suit in equity" and, therefore, were subject to de novo review under ORS 19.415, which, at the time, provided for de novo review in equity cases. A 2009 amendment to ORS 19.415(3) made de novo review in equity cases discretionary (with an exception inapplicable to this case). Or Laws 2009, ch 231, § 2. But, because the notice of appeal in this case was filed before the effective date of the amendment, de novo review is required.
Civil SPOs are governed by ORS 30.866. To obtain an SPO, a person files a petition in a circuit court. ORS 30.866(1). If probable cause for the SPO exists, the court enters a temporary SPO, sets a hearing to determine whether the temporary SPO should be continued, and issues an order for the respondent to appear at the hearing. ORS 30.866(2). In order for a temporary SPO to be continued, the petitioner must prove, by a preponderance of the evidence, that the requirements for the SPO have been satisfied. ORS 30.866(7).
As noted, respondent argues that there was insufficient evidence to support the final SPO. In order to evaluate the sufficiency of the evidence in this case, we must first determine what information was actually admitted into evidence. Specifically, we must determine whether the factual allegations in petitioner's SPO petition were in evidence. Respondent argues that they were not. But the trial court proceeded as if they were.
To determine what information was actually admitted into evidence and, from there, to determine whether that evidence was sufficient, it is necessary to recount what happened at the SPO hearing in some detail. At the hearing, both petitioner and respondent appeared without counsel. Perhaps in part because of that, the court assumed an active role in creating the evidentiary record. The hearing did not proceed like a traditional adversarial hearing, with each party presenting his or her own evidence, subject to objection and examination by the other party. Instead, the court determined the order of the presentation of witnesses and questioned them. And, as its questions demonstrate, the court presumed that the factual allegations in the petition for the SPO were in evidence.
The court began the hearing by telling petitioner that it had read the petition and asking her if she had "anything [she] want[ed] to add to this recitation of facts." Petitioner testified that, on one occasion after the temporary SPO was entered, she went to her mother's house, which was a few houses away from where respondent lived at the time, and respondent sat outside his house while she was there and came over as she was leaving. Petitioner was with her mother and brother. She assumed respondent wanted to talk with her, but she left with her brother, and respondent spoke only to her mother. When petitioner later returned to her mother's house, respondent came over again, but petitioner "[didn't] know if he just didn't see me or what happened."
Petitioner also testified that, after the temporary SPO was entered, respondent sent her a text message and telephoned her. She did not testify as to the content of the text message or the telephone calls.
Regarding petitioner's reactions to respondent's actions, the court said, "You described events in your petition that you said frightened you. Are you still frightened of him?" Petitioner testified that she was.
The court then questioned respondent, who testified that he had "taken all the right measures not to speak to [petitioner]." He testified that he had moved, changed his telephone number, and changed his e-mail address. He denied having any unwanted contact with petitioner. He said he "agree[d] with [petitioner] on the fact that we want nothing to do with each other."
The court asked respondent if he had read the petition. When respondent said that he had, the court asked him to respond to it, noting that "[petitioner] makes some particular allegations of fact in there." Respondent said that the petition contained one true allegation: that he had written down petitioner's boyfriend's license plate number.
Petitioner's boyfriend testified at the hearing. He reported that respondent had made numerous unwanted telephone calls to petitioner, waited outside her house, and come over uninvited. He testified that the text message petitioner received from respondent after the temporary SPO was entered "just said T'" and it "[s]eemed like somebody was going to text something and then decided against it or whatever but it still went through." He also testified that petitioner was frightened of respondent.
As is apparent from its questioning of petitioner and respondent, the court presumed that the factual allegations in the petition were in evidence. The court asked petitioner if she had anything to add to the allegations and asked respondent to address them. But, the factual allegations in the petition were not in evidence. As we held in Jones v. Lindsey, 193 Or App 674, 677, 91 P3d 781 (2004), an SPO hearing is a "civil action" and the Oregon Rules of Civil Procedure apply. Under those rules, pleadings — including petitions in SPO cases — are not evidence. Id. ("[U]nless admitted, the factual allegations in pleadings have no evidentiary effect."); see also ORCP 59 C(2) (providing that "[p]leadings shall not go to the jury room").
In Jones, the petitioner filed an SPO petition alleging 10 unwanted contacts by the respondent, his ex-wife. At the SPO hearing, the petitioner presented evidence regarding only seven of those contacts. On appeal, the respondent argued that the evidentiary record was limited to the evidence received at the hearing and did not include information regarding the three contacts as to which the petitioner offered no evidence at the hearing. We agreed, concluding that, "unless admitted by the adverse party, the factual allegations in an SPO petition do not constitute evidence in such an action." 193 Or App at 678. Because the respondent did not admit the three contacts and the petitioner did not present any evidence regarding them, they could not serve as bases for the SPO. Id. We had to "disregard" them when determining whether there was sufficient evidence to support the SPO. Id.
Accordingly, the evidentiary record in this case is limited to the evidence received at the SPO hearing. It does not include the factual allegations in the petition, except the one allegation that respondent admitted — namely, that he ran petitioner's boyfriend's license plate number.
The trial court may have believed that it could receive the petition as an exhibit or that petitioner could adopt the factual allegations as her testimony, but the petition was not offered or received into evidence, and petitioner did not adopt the allegations. In any event, either approach would have been vulnerable to a hearsay objection. Cf. Lowrance v. Trow, 225 Or App 250, 255, 200 P3d 637 (2009) (treating factual allegations in an SPO petition as evidence where the petitioner adopted the allegations while testifying and the respondent did not object to their admission).
Thus, the question in this case becomes whether the evidence received at the SPO hearing was sufficient to support the SPO. As noted, civil SPOs are governed by ORS 30.866. In order to obtain an SPO under ORS 30.866, a petitioner must establish, by a preponderance of the evidence, that: (1) the respondent intentionally, knowingly, or recklessly engaged in repeated and unwanted contacts with the petitioner or members of the petitioner's household or immediate family; (2) the contacts alarmed or coerced the petitioner; (3) the petitioner's alarm or coercion was objectively reasonable; (4) the contacts caused the petitioner apprehension regarding the petitioner's own personal safety or that of a member of the petitioner's immediate family or household; and (5) the petitioner's apprehension was objectively reasonable. ORS 30.866(1); McGinnis-Aitken v. Bronson, 235 Or App 189, 192, 230 P3d 935 (2010). To serve as predicate contacts for an SPO, the contacts must have occurred within two years of the filing of the SPO petition. ORS 30.866(6).
Terms used in ORS 30.866 are defined by ORS 163.730. "Repeated" means "two or more times." ORS 163.730(7). "Contact" includes, among other things, "[w]aiting outside the home * * * of the other person or of a member of that person's family or household," "[slending or making written or electronic communications in any form to the other person," and "[slpeaking with the other person by any means." ORS 163.730(3)(c)-(e). "Alarm" means "apprehension or fear resulting from the perception of danger." ORS 163.730(1). "Coerce" means "to restrain, compel, or dominate by force or threat." ORS 163.730(2).
In addition to the statutory requirements for an SPO, a constitutional requirement must be satisfied if a petitioner seeks to rely on a contact that involves speech, which is protected by Article I, section 8, of the Oregon Constitution. State v. Rangel, 328 Or 294, 303, 977 P2d 379 (1999). To avoid constitutional overbreadth problems, a contact that involves speech can serve as a predicate contact for an SPO only if it is a threat. Id. A "threat" is "a communication that instills in the addressee a fear of imminent and serious personal violence from the speaker, is unequivocal, and is objectively likely to be followed by unlawful acts." Id. Threats do not include "the kind of hyperbole, rhetorical excesses, and impotent expressions of anger or frustration that in some contexts can be privileged even if they alarm the addressee." State v. Moyle, 299 Or 691, 705, 705 P2d 740 (1985).
Having set out the statutory and constitutional requirements for an SPO, we turn to the evidence in this case, which, as explained, is limited to the evidence received at the SPO hearing. For the reasons below, we conclude that, on this record, none of respondent's contacts with petitioner could serve as a predicate contact for the SPO because none of them would have caused petitioner objectively reasonable alarm or coercion, ORS 30.866(1)(a), (b), or objectively reasonable apprehension regarding her personal safety or that of a member of her immediate family or household, ORS 30.866(1)(c). McGinnis-Aitken, 235 Or App at 192.
At the SPO hearing, there was evidence that respondent sent petitioner a text message and called her. There was also evidence that he waited outside her house, came over uninvited, sat outside his house and came over while she was visiting her mother's house, and ran her boyfriend's license plate number. There was little evidence regarding the time, manner, or circumstances of the contacts.
Text messages and telephone calls can serve as predicate contacts for an SPO. ORS 163.730(3)(d), (e). If they involve speech, they can serve as predicate contacts if they are unequivocal threats of imminent serious personal violence that are likely to be carried out. Rangel, 328 Or at 303. If they do not involve speech, but instead involve, for example, simply causing the petitioner's telephone to ring, they are treated the same as other nonexpressive contacts and, as such, can serve as predicate contacts if they cause the petitioner objectively reasonable alarm, coercion, or apprehension. Sparks v. Deveny, 221 Or App 283, 290, 293, 189 P3d 1268 (2008) (causing a telephone to ring is a nonexpressive contact and can serve as a predicate contact if it satisfies the requirements of ORS 30.866(1)).
In this case, we do not need to decide whether the text message and telephone calls were expressive contacts because, even under the less stringent standard for nonexpressive contacts, the evidence was insufficient. Nothing in the record supports the conclusion that it was objectively reasonable for the calls or text message to cause alarm, coercion, or apprehension, as required by ORS 30.866(1). The message and calls may well have been unwanted and annoying, but more is required. See, e.g., Osborne v. Fadden, 225 Or App 431, 439, 201 P3d 278, rev den, 346 Or 213 (2009) (although respondents subjected petitioners to a "barrage" of e-mails and telephone calls, which were unwanted and intended to harass and which petitioners found troubling and offensive, the e-mails and telephone calls could not constitute predicate contacts for an SPO because they would not have caused petitioners reasonable apprehension regarding their personal safety); Sparks, 221 Or App at 293 (respondent's "hang-up" calls could not serve as predicate contacts for an SPO because they would not have caused petitioner reasonable personal safety concerns).
The same is true regarding respondent's other actions. Waiting outside a person's house or otherwise positioning oneself to observe or contact a person can be a predicate contact for an SPO if, in context, doing so would cause the person the required objectively reasonable alarm, coercion, or apprehension. Compare, e.g., Smith v. Di Marco, 207 Or App 558, 564, 142 P3d 539 (2006) (respondent's act of following and watching petitioner could serve as a predicate contact for an SPO given respondent's history of violence and abuse towards petitioner), with Sparks, 221 Or App at 292-93 (respondent's acts of following petitioner, attending her exercise class, and calling her house did not constitute predicate contacts for an SPO). In this case, the limited evidentiary record fails to provide such context. There was no evidence that respondent's actions were explicitly threatening; for example, there was no evidence that respondent made threatening gestures or movements towards petitioner or otherwise exhibited an intent to harm her. Nor was there evidence that any of the acts were implicitly threatening; for example, there was no evidence of prior acts of violence or abuse by respondent. Again, respondent's contacts may well have been unwanted and annoying, but on this record we cannot say that they would have caused petitioner objectively reasonable alarm, coercion, or apprehension as required by ORS 30.866(1).
Reversed.
unable to point to any methodology
by which the mere detection of SV40 DNA in a tumor is enough to prove specific causation."
Ibid. After examining the specific methodology used, the judge further found that "Gazdar's conclusion that he detected SV40 DNA in [plaintiff]'s tumor . . . fails to meet the scientific standards in this field and is inherently unreliable."
Id. at 635 (citation omitted).
The judge contrasted Gazdar's testimony with that of the government's experts, all of whom
relied upon the established scientific framework that relies on both epidemiological and biological evidence in determining causality. All three experts testified that the epidemiological evidence does not support the conclusion that SV40 causes human cancer.
[
Id. at 641.]
The judge "f[ou]nd their testimony in this regard credible based upon sound reasoning and experience and [he] accept[ed] it." Ibid. The judge further concluded that "[p]laintiff[] . . . failed to meet [his] burden on the dispositive issues of general and specific causation[,]" and granted judgment "in favor of the United States." Ibid
(b)
"[T]he binding effect of a judgment is determined by the law of the jurisdiction that rendered it." Watkins v. Resorts Int'l Hotel Casino, 124 N.J. 398, 411, 591 A.2d 592 (1991) (citing Restatement (Second) of Conflict of Laws § 95 commente (1971)). "`Federal law determines the effects under the rules of res judicata of a judgment of a federal court.'" Watkins, supra, 124 N.J. at 411, 591 A.2d 592 (quoting Restatement (Second) of Judgments, § 87 (1982)). We initially examine whether there are any meaningful distinctions between federal law and New Jersey law regarding the doctrine of collateral estoppel and the preclusive effect accorded a final judgment in subsequent litigation.
" Collateral estoppel . . . represents the `branch of the broader law of res judicata which bars relitigation of any issue which was actually determined in a prior action, generally between the same parties, involving a different claim or cause of action.'" Tarns v. Borough of Pine Hill, 189 N.J. 497, 520, 916 A.2d 1036 (2007) (quoting Sacharow v. Sacharow, 177 N.J. 62, 76, 826 A.2d 710 (2003)) (emphasis added). Under New Jersey law,
It is well settled that
[f]or the doctrine of collateral estoppel to apply to foreclose the relitigation of an issue, the party asserting the bar must show that: (1) the issue to be precluded is identical to the issue decided in the prior proceeding; (2) the issue was actually litigated in the prior proceeding; (3) the court in the prior proceeding issued a final judgment on the merits; (4) the determination of the issue was essential to the prior judgment; and (5) the party against whom the doctrine is asserted was a party to or in privity with a party to the earlier proceeding.
[
Olivieri v. Y.M.F. Carpet, Inc., 186 N.J. 511, 521,
897 A.2d 1003 (2006) (quoting
In re Estate of Dawson, 136 N.J. 1, 20-21,
641 A.2d 1026 (1994)) (citations and parentheticals omitted).]
"`[E]ven where these requirements are met, the doctrine, which has its roots in equity, will not be applied when it is unfair to do so.'" Olivieri supra, 186 N.J. at 521-22, 897 A.2d 1003 (quoting Pace v. Kuchinsky, 347 N.J.Super. 202, 215, 789 A.2d 162 (App. Div. 2002)); see also In Re Coruzzi, 95 N.J. 557, 568, 472 A.2d 546 (1984) (noting collateral estoppel should not apply when "sufficient countervailing interests" exist) (citation omitted).
In addition, New Jersey has specifically adopted limitations on the doctrine contained in the Restatement (Second) of Judgments, supra, §§ 28 and 29. See Hernandez v. Region Nine Hous. Corp., 146 N.J. 645, 659, 684 A.2d 1385 (1996) ("New Jersey courts follow the doctrine of collateral estoppel or the rule of issue preclusion described in the Restatement of Judgments."); Olivieri, supra 186 N.J. at 525 n. 7, 897 A.2d 1003 (applying § 28); Pace, supra, 347 N.J.Super. at 216, 789 A.2d 162 (same); Zirger v. Gen. Accident Ins. Co., 144 N.J. 327, 338, 676 A.2d 1065 (1996) (recognizing general principles of § 29); Barker v. Brinegar, 346 N.J.Super. 558, 566-67, 788 A.2d 834 (App.Div. 2002) (applying § 29 principles to deny issue preclusion); Mocci v. Carr Eng'g Assocs., P.A., 306 N.J.Super. 302, 309, 703 A.2d 686 (App.Div. 1997) (same), certif denied, 153 N.J. 404, 709 A.2d 797 (1998).
The Restatement (Second) of Judgments, supra, § 28 provides in relevant part:
Exceptions to the General Rule of Issue Preclusion
Although an issue is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, relitigation of the issue in a subsequent action between the parties is not precluded in the following circumstances:
. . . .
(4) The party against whom preclusion is sought had a significantly heavier burden of persuasion with respect to the issue in the initial action than in the subsequent action; the burden has shifted to his adversary; or the adversary has a significantly heavier burden than he had in the first action. . . .
Restatement (Second) of Judgments, supra, § 29 governs "Issue Preclusion in
Subsequent Litigation with Others." (emphasis added). It provides in relevant part:
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:
. . . .
(4) The determination relied on as preclusive was itself inconsistent with another determination of the same issue;
. . . .
(8) Other compelling circumstances make it appropriate that the party be permitted to relitigate the issue.
The Third Circuit has held that application of collateral estoppel to bar relitigation of an issue "`required the presence of four factors[,]'" specifically,
(1) the identical issue was previously adjudicated; (2) the issue was actually litigated; (3) the previous determination was necessary to the decision; and (4) the party being precluded from relitigating the issue was fully represented in the prior action.
[
Dam Things from Den. v. Russ Berrie Co., 290
F.M 548, 559 n. 15 (3d Cir. 2002) (quoting
Raytech Corp. v. White, 54 F.3d 187, 190 (3d Cir. 1995))]
The Third Circuit "ha[s] also considered whether the party being precluded had a full and fair opportunity to litigate the issue in question in the prior action, and whether the issue was determined by a final and valid judgment. . . ." Jean Alexander Cosmetics, Inc. v. L'Oreal USA Inc., 458 F.3d 244, 249 (3d Cir. 2006), cert. denied, 549 U.S. 1305, 127 S.Ct. 1878, 167 L.Ed.2d 364 (2007) (quotation and citations omitted). In Del. River Port Auth. v. Fraternal Order of Police, 290 F.3d 567, 574 n. 10 (3d Cir. 2002), the court characterized New Jersey's formulation of the doctrine and its own as "almost identical."
Like New Jersey, the Third Circuit has also recognized that "[e]ven when the requirements of the general rule of collateral estoppel are satisfied, the Court must consider whether there are special circumstances present which make it inequitable or inappropriate to foreclose relitigation of a previously determined issue." AMTRAK v. Pa. Pub. Util. Comm'n, 288 F.3d 519, 528 (3d Cir. 2002); see also Duvall v. AG of the United States, 436 F.3d 382, 390 (3d Cir. 2006) ("[C]ollateral estoppel was borne of equity and is therefore `flexible,' bending to satisfy its underlying purpose in light of the nature of the proceedings.").
And, also like New Jersey, the Third Circuit and its district courts have incorporated the limitations contained in §§ 28 and 29 of the Restatement (Second) of Judgments, supra, into their jurisprudence. See Duvall, supra, 436 F.3d at 391 ("The flexibility of the doctrine is recognized in the several `exceptions' enumerated" in § 28.); see also AMTRAK, supra, 288 F.3d at 525 (recognizing § 28 as "summariz[ing]" "[t]he relevant equitable factors to be considered"); Wells v. Rockefeller, 728 F.2d 209, 214-15 (3d Cir. 1984) (recognizing principles set forth in § 29), cert. denied, 471 U.S. 1107, 105 S.Ct. 2343, 85 L.Ed2d 858 (1985); McLendon v. Cont'l Group, Inc., 660 F.Supp. 1553, 1564 (D.N.J. 1994) (finding offensive collateral estoppel appropriate after consideration of § 29); Republic of Phil. v. Westinghouse Elec. Corp., 782 F.Supp. 972, 980-81 (D.N.J. 1992) (refusing to apply collateral estoppel because of disparate burdens of proof as recognized by § 28(4)).
Furthermore, under federal law, and under the law of this State, whether an issue is precluded based upon prior litigation is a question of law, and thus subject to our de novo review. See Szehinskyj v. AG of the United States, 432 F.3d 253, 255 (3d Cir. 2005) ("Application of collateral estoppel is a question of law ") (citation omitted); Selective Ins. Co. v. McAllister, 327 N.J.Super. 168, 173, 742 A.2d 1007 (App.Div.), certif. denied, 164 N.J. 188, 752 A.2d 1290 (2000).
We are convinced that the congruence of the federal principles regarding issue preclusion, and those of our state jurisprudence, eliminate any choice of law distinction. We are free to consider the issues raised under the particular facts of this case in accordance with New Jersey law "as well as analogous federal decisions. . . . Del Piano v. Merrill Lynch, 372 N.J.Super. 503, 509, 859 A.2d 742 (App.Div. 2004) (citation omitted), certif. granted, 183 N.J. 218, 871 A.2d 95, certif. dismissed as improvidently granted, 195 N.J. 512, 950 A.2d 901 (2005).
In their brief, defendants assert we "must look to federal law to determine th[e] judgment's preclusive effect[,]" but nevertheless argue that the same result would be reached through application of New Jersey's principles.
(c)
In Rivard, supra, a case involving the Orimune vaccine and similar claims against these defendants, we granted these same defendants' motion for leave to appeal from the denial of summary judgment. 391 N.J.Super. at 138-39, 917 A.2d 286. Before us, "they assert[ed] entitlement to summary judgment because no reasonable jury could conclude either that [the plaintiff]'s vaccine contained SV40 or that SV40 causes human cancer." Id. at 149, 917 A.2d 286. Noting the favorable inferences to which plaintiff was entitled at that stage of the litigation, id. at 150, 917 A.2d 286 (citing Brill, supra, 142 N.J. at 540, 666 A.2d 146), we affirmed the trial court's denial of summary judgment, holding,
Regarding the link between SV40 and [the plaintiff]'s tumor, . . . one of [the] plaintiff[`]s experts reports finding SV40 in [the plaintiff]'s tumor, which is sufficient to establish a jury question, even if the epidemiological evidence on the causation question generally is equivocal.
[
Rivard, supra, 391 N.J.Super. at 151,
917 A.2d 286.]
See also Glastetter v. Novartis Pharms. Corp., 252
F.M 986, 992 (8th Cir. 2001) ("[A] plaintiff need not introduce epidemiological evidence of causation in order to satisfy [the] . . . threshold for
admission of expert medical testimony.");
Siharath v. Sandoz Pharms. Corp., 131 F.Supp.2d 1347, 1358 (N.D.Ga. 2001) ("The lack of epidemiological studies supporting [the] [p]laintiffs' claims creates a high bar . . . to surmount . . . but it is not automatically fatal to [the] [p]laintiff[`]s case.").
Plaintiff argues that the federal district court's decision relied upon Gazdar's failure to cite any epidemiological evidence of causation, thus imposing a higher burden of proof than we required in Rivard. Pursuant to the Restatement (Second) of Judgments, supra, § 28(4), a prior judgment should not be given preclusive effect in a subsequent action if "[t]he party against whom preclusion is sought had a significantly heavier burden of persuasion with respect to the issue in the initial action than in the subsequent action . . . or the adversary has a significantly heavier burden than he had in the first action"
However, as defendants note, the district court judge, while stressing the lack of any epidemiological evidence of causation, went much further. He carefully assessed Gazdar's methodology, including the process by which he determined SV40 DNA was actually present in plaintiffs tumor. He concluded that the methodology was flawed, and possibly resulted in tainted samples. In the end, the district court judge found Gazdar's biological evidence to be "inherently unreliable." A careful review of the opinion does not lead to a conclusion that the district court judge imposed a heavier burden of proof upon plaintiff. We therefore must reject plaintiffs argument in this regard.
Nevertheless, we are compelled to reverse the grant of summary judgment to defendants and remand the matter for further proceedings. We do so because the motion record as presented to the judge, and in turn, the appellate record as presented to us, do not permit consideration of whether "[o]ther compelling circumstances make it appropriate that [plaintiff] be permitted to relitigate the issue." Restatement (Second) of Judgments, supra, § 29(8).
The commentary to § 29 provides:
j.
Other circumstances. The circumstances specified in this Section are illustrative rather than definitive of those that may be considered in determining application of issue preclusion. Important among such other circumstances is the disclosure that the prior determination was plainly wrong or that new evidence has become available that could likely lead to a different result It is unnecessary that the party seeking to avoid preclusion show, as he must in seeking to set aside a judgment, that the evidence could not have been discovered with due diligence; the question is not whether a prior determination should be set aside but whether it should be treated as conclusive for further purposes.
Illustration:
9. C engages in conduct resulting in damage to the property of A and B that is stored in the same location. In A's action against C for damages, a key witness for C on the issue of C's negligence is unavailable. Judgment is for A. In B's subsequent action for his damage, C may be permitted to relitigate the issue of negligence upon a showing that the witness can be available at trial of the action.
As noted above, defendants supplemented their original summary judgment motion, based on product identification, by simply forwarding the federal district court's decision to the judge. Plaintiff properly points out that defendants' motion was made without citation to the record that actually exists in this litigation. He notes by example, therefore, that the motion judge did not evaluate plaintiffs expert reports. Indeed, plaintiff asserts, and defendants have not denied, that experts have not yet been identified by the parties. Certainly the record before us does not allow our independent review of the proof plaintiff intends to marshal in this litigation to prove the essential issue of causation; perhaps it will be the same evidence he used in the federal district court case. Or, plaintiff may have conducted new tests that do not pose the issue of tainted results or he may have developed additional evidence of causation. The point is, the motion judge never considered the issue and we are not in any position to evaluate the adequacy of plaintiffs proof because the appellate record is bare in this regard.
The lack of a motion record in this case also does not permit us to consider another reason why collateral estoppel may or may not equitably apply in this case. The Restatement (Second) of Judgments, supra, § 29(4) provides that collateral estoppel should not apply between different parties when "[t]he determination relied on as preclusive was itself inconsistent with another determination of the same issue. . . ." Neither party discussed this exception in their briefs.
The commentary to § 29(4) provides:
f.
Inconsistent prior determination. Giving a prior determination of an issue conclusive effect in subsequent litigation is justified not merely as avoiding further costs of litigation but also by underlying confidence that the result reached is substantially correct. Where a determination relied on as preclusive is itself inconsistent with some other adjudication of the same issue, that confidence is generally unwarranted.
The inference, rather, is that the outcomes may have been based on equally reasonable resolutions of doubt as to the probative strength of the evidence or the appropriate application of a legal rule to the evidence. That such a doubtful determination has been given effect in the action in which it was reached does not require that it be given effect against the party in litigation against another adversary.
[Emphasis added.]
The commentators of the Restatement (Second) of Judgments, cited the case of State Farm Fire Cas. Co. v. Century Home Components, Inc., 275 Or. 97, 550 P.2d 1185 (1976), as illustrative of this principle.
In that case, inconsistent jury verdicts had been reached on various claims brought by a number of plaintiffs alleging that fire damage to their property was caused by the defendant's negligence. Id. at 1187. The plaintiff in the current litigation, not a party in any prior litigation against the defendant, sought to utilize prior adjudications of negligence as preclusive proof against the defendant in its case. Id. at 1187-88. Concluding that estoppel should not apply, the court stated:
Those courts and commentators which have considered the question are in virtually unanimous agreement that where outstanding determinations are actually inconsistent on the matter sought to be precluded, it would be patently unfair to estop a party by the judgment it lost.
. . . .
[W]here there are extant determinations that are inconsistent on the matter in issue, it is a strong indication that the application of collateral estoppel would work an injustice. There seems to be something fundamentally offensive about depriving a party of the opportunity to litigate the issue again when he has shown beyond a doubt that on another day he prevailed.
[
Id. at 1191. (footnotes omitted).]
It is true that the issue presented in Century Home Components involved the use of a prior judgment for "offensive" purposes, i.e., where the earlier judgment is "used to bar a defendant from asserting a defense previously litigated and lost against a different plaintiff" Kortenhaus v. Eli Lilly Co., 228 N.J.Super. 162, 164, 549 A.2d 437 (App.Div. 1988) (citation omitted). The use of offensive collateral estoppel by a plaintiff has been recognized as particularly inequitable when inconsistent prior determinations exist. See Parklane Hosiery Co. v. Shore, 439 U.S. 322, 330, 99 S.Ct. 645, 651, 58 L.Ed.2d 552, 562 (1979) ("Allowing offensive collateral estoppel may also be unfair to a defendant if the judgment relied upon as a basis for the estoppel is itself inconsistent with one or more previous judgments in favor of the defendant."); accord Robi v. Five Platters, Inc., 838 F.2d 318, 329-30 (9th Cir. 1988) (offensive collateral estoppel improvidently utilized in light of inconsistent judgment previously rendered in favor of defendants).
Indeed, our court recognized in Kortenhaus, supra, that offensive collateral estoppel is inappropriate in the face of inconsistent prior determinations. 228 N.J.Super. at 169, 549 A.2d 437. There, the plaintiff sued the defendant drug manufacturer alleging that its product, DES, used by her mother during pregnancy, caused the development of her cancer. Id. at 163, 549 A.2d 437. The trial judge granted the plaintiff summary judgment based upon the result of an earlier trial involving a different plaintiff that had ended in a judgment against the defendant. Id. at 163-64, 167-68, 549 A.2d 437.
We recognized, however, the defendant's "success in much of its DES litigation experience . . .," and the principles expressed in comment f, Restatement (Second) of Judgments, supra, § 29. Kortenhaus, supra, 228 N.J.Super. at 169, 549 A.2d 437. In reversing the trial court's grant of partial summary judgment to plaintiff, we concluded that "[knowledge at the time issue preclusion is considered that inconsistent results have been obtained with respect to the resolution of those issues casts doubt as to the reliability of a particular result adverse to a defendant and makes its preclusive application unfair." Ibid.
This case, of course, deals with defendants' assertion of defensive collateral estoppel, i.e., it is being "used by . . . defendants] to bar a claim plaintiff has previously litigated and lost against a different defendant. . . ." Id. at 164, 549 A.2d 437. But, in setting forth their limitations on the use of collateral estoppel in general, the Restatement (Second) of Judgments, supra, §§ 28 and 29 make no distinction between offensive or defensive collateral estoppel. See Restatement (Second) of Judgments, supra, § 29, Reporter's Notes: § 88, Tent. Draft No. 3) ("[T]he distinct trend if not the clear weight of recent authority is to the effect that there is no intrinsic difference between `offensive' and `defensive' issue preclusion. . . ."). And, in particular, the Restatement (Second) of Judgments makes no distinction in recognizing that issue preclusion is inappropriate when there are inconsistencies between prior determinations of the issue sought to be precluded.
The motion judge in this case was also the motion judge whose decision we affirmed in Rivard; his decision in that case is part of the appellate record. It is clear that his decision, and our affirmance, reached the conclusion that the plaintiff had presented sufficient evidence to withstand summary judgment. Rivard, supra, 391 N.J.Super. at 150, 917 A.2d 286. To that extent, that determination is inconsistent with the determination made by the federal district court on the issue of causation. We note that our decision in Rivard was not a final judgment; but the Restatement (Second) of Judgments does not require that it be. Supra, § 29(4) ("The determination relied on as preclusive was itself inconsistent with another determination of the same issue") (emphasis added). The inconsistency denying preclusive effect need not be between final judgments but may exist between "judicial determinations." Jack Faucett Assocs. v. AT T, 744 F.2d 118, 130 (D.C. Cir. 1984). "The rationale for the inconsistency rule is equally pertinent wherever the inconsistency occurs." Ibid.
We believe, therefore, that before plaintiffs case is dismissed with prejudice based solely upon the judgment of the federal district court, the motion judge, with an eye toward the record in this case, must consider whether the determination reached by the district court was inconsistent with the determination reached in Rivard, such that it "casts doubt as to the reliability of the district court's judgment. Kortenhaus, supra, 228 N.J.Super. at 169, 549 A.2d 437.
Reversed and remanded for further proceedings. We do not retain jurisdiction.