Mutuality of Estoppel: A Question

A recent Note, “A Probabilistic Analysis of the Doctrine of Mutuality of Collateral Estoppel, ” made excellent use of elementary probability theory to demonstrate the extent to which relaxation of the mutuality requirement will increase the damages suffered by a defendant subject to multiple suits in which there is common issue (or correspondingly, will decrease the total recovery of a plaintiff who has several suits litigating a common issue against different defendants). Although the author made a number of useful points concerning the case law and the arguments advanced by proponents on each side of the controversy, the central thesis of the Note was an argument for retaining the mutuality requirement based on this difference in the anticipated losses of a given defendant. In effect, this thesis takes the distribution of risks given a mutuality of estoppel rule as presumptively correct, thus evading the principal issue. The issue really is the estimate of damages upon which the prospective participant in a litigation should be made to act.