10. Will preclusion prevent litigation of the negligence claim in the doctor's lawsuit?

«Claim preclusion» (also known as «res judicata») means that a court's final judgment is conclusive against the same parties in any further, identical cause of action between the parties.

When a plaintiff tries to relitigate the same claim against the same defendant in a later action, under claim preclusion, this claim is said to have «merged» with the first claim and the plaintiff is precluded. When a defendant tries to relitigate the same claim against the same plaintiff, this claim is said to be «barred» by the earlier adverse judgment and the defendant is precluded.

Under claim preclusion, regardless of whether merger or bar applies, the second claim is precluded if:

the first action had a valid, final judgment «on the merits»;the two claims are brought by the same claimant against the same defendant in the same configuration (it is not enough that the same litigants were also parties in the previous case); ANDthe second lawsuit involves the same cause of action or claim as the first lawsuit."Issue preclusion" (also known as collateral estoppel) means that issues litigated and determined in a first lawsuit are binding on the parties involved should those issues arise in any subsequent proceeding. The first judgment binds the plaintiff or defendant (or their privies) in subsequent lawsuits involving other causes of action that involve the same issues.

Issue preclusion is a narrower doctrine than claim preclusion because it only precludes relitigation of issues that were relevant to the first lawsuit, not entire causes of action.

Issue preclusion prevents a party from relitigating the same issue in a subsequent lawsuit if:

the judgment in the first action was final;the issue was actually litigated; ANDthe issue was essential to the judgment.Who invokes issue preclusion? Traditionally, issue preclusion required «mutuality,» meaning only parties (or privities) could take advantage of a prior judgment in a later lawsuit.

However, most courts no longer follow the doctrine of mutuality. In certain situations, nonparties (people who were NOT present in the first lawsuit) may invoke issue preclusion against a party from the first lawsuit. This arises in the form of non-mutual collateral estoppel («non-mutual» because only one of the parties was present in the first suit).

Non-mutual collateral estoppel is said to be either «offensive» (using prior judgment as a «sword» later) or «defensive» (using a prior judgment as a «shield» later).

Defensive non-mutual collateral estoppel (someone who was not present in the first lawsuit using that first judgment to avoid liability in a second lawsuit) will only be permitted if the precluded party had a full and fair opportunity to litigate the issue in the first lawsuit.

Offensive non-mutual collateral estoppel (someone who was not present in the first lawsuit using that first judgment to obtain relief against someone who was a party in the first lawsuit) is rare, but permitted in some circumstances.

D is correct. Neither issue preclusion nor claim preclusion will apply to the second action between the doctor and the driver. Issue preclusion will not apply because the doctor was not a party to the previous case, nor was he in privity with a party.

Moreover, the jury rendered only a general verdict for the driver, without any specific findings, and therefore it is unclear whether any essential issue was fully litigated in the first action that has been raised in the second action.

Claim preclusion will also not apply because it requires the parties to be identical in the subsequent action, including the same configuration of the plaintiff and defendant. Here, the doctor was not a party to the first action and the biker was not a party to the second action.

A is incorrect. The driver will not be precluded from re-litigating the issue of his negligence because, in the first lawsuit, there is no evidence that the jury made any specific findings whatsoever.

The jury could have either determined that the driver was not negligent or that the biker was contributorily negligent. As such, without any indication that the driver's negligence was both fully litigated AND essential to the first judgment, issue preclusion will not apply.

B is incorrect. It is incorrect that the doctor will be precluded from re-litigating the issue of the driver's negligence because, as explained above, issue preclusion does not apply. Due to the jury's general verdict in the first case, there is no evidence that the issue was fully litigated or that it was essential to the final judgment.

C is incorrect. This answer is only partially correct. Although there will be no issue preclusion, there will also be no claim preclusion. As stated above, the second case between the doctor and the driver is not subject to claim preclusion because the doctor was not a party to the first case, which means the configuration of the parties was not identical, as required for claim preclusion to apply.