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., 

Plaintiffs-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 different plaintiffs, most of whom are joined together in a single complaint. All the plaintiffs and all the cases 

proceeded together in the same court, in front of the same 
2 Nos. 22-2636 et al. 

judge, and against the same lead paint manufacturers. The 

same counsel represented each plaintiff. 

To bring order to this sprawling array of litigants, the parties and the district court devised a case management plan 

under which groups of plaintiffs would try their claims in a 

series of waves. The plaintiffs in the first 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+ plaintiffs 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 plaintiffs opted to proceed under a 

single complaint, within a single case, which is now sunk after

summary judgment. But a small group of plaintiffs filed their 

own cases, and due process protects their right to try them. 

For the reasons that follow, we affirm the decision of the district court in large part and reverse in small part. 

I. Background

This mass tort case involves approximately 170 plaintiffs, 

spread over several actions, all alleging injuries stemming 

from their exposure to white lead carbonate (“WLC”), a leadpaint pigment. Each plaintiff 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 plaintiffs’ 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 plaintiffs 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 “modifies 

the ordinary rule in tort law that a plaintiff must prove that a 

specific 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 

effectively overruled Thomas. See id. at 806; Wis. Stat. 

§ 895.046. The Wisconsin legislature also attempted to make 

its statute retroactive, but we rejected that effort after finding

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 

plaintiffs entered the courthouse door. Burton II, 994 F.3d at 

807. 
4 Nos. 22-2636 et al. 

B. Procedural Background

1. The Cases 

These cases began in 2007, after Glenn Burton, Jr., filed a 

complaint in Wisconsin state court against eight manufacturers of WLC. The defendants removed the case to federal court. 

Meanwhile, two more lawsuits, filed by Ravon Owens and 

Ernest Gibson, were similarly removed to federal court.

More cases followed. In early 2010, Cesar Sifuentes filed a 

case directly in federal court. A year later, over 160 different 

individuals filed a single complaint under Federal Rule of 

Civil Procedure 20(a)(1), with Maniya Allen as the firstnamed plaintiff. Not long after, Deziree and Detareion Valoe 

jointly filed suit. Finally, three plaintiffs 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 plaintiffs 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 Richfield Company. Judge 

Adelman ultimately presided over each case, and the same 

counsel represented each plaintiff. 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 plaintiffs successfully moved to partially 
Nos. 22-2636 et al. 5 

Early on, the defendants jointly moved to dismiss or sever 

all but the named plaintiff in the Allen case (which, recall, included approximately 160 individuals). The defendants argued that the Allen action improperly joined those plaintiffs

because they lived in separate cities and alleged separate injuries incurred at separate times—all of which required individualized discovery and separate trials. The plaintiffs countered that joinder was proper because the claims involved 

“numerous” common questions of law or fact. Specifically, 

the plaintiffs argued that discovery on general causation 

would be “similar, if not identical” for every plaintiff, 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 

plaintiffs, was “particularly conducive to this common discovery.” 

The district court agreed and denied the defendants’ motion to sever. The court reasoned that the Allen plaintiffs’ 

claims were sufficiently 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.
6 Nos. 22-2636 et al. 

the disadvantages attendant to dismissal or severance.” The 

Allen plaintiffs thus continued under the single complaint.

2. The Case Management Order 

All the plaintiffs jointly proposed a case management order (“CMO”) that would sequence proceedings in piecemeal 

fashion. Under the plaintiffs’ proposal, the parties would conduct a limited number of “bellwether” trials, comprising “select,” “representative” cases. The plaintiffs 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 plaintiffs urged, “should be dealt 

with once, not on a case-by-case basis.”

Over the defendants’ objection, the court largely adopted 

the plaintiffs’ 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 first. 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 specific plaintiffs to be included in 

that wave, nor did it refer to the cases as “bellwethers.” The

parties ultimately selected three of the Allen plaintiffs (Latoya 

Cannon, D’Angelo Thompson, and Tyann McHenry), and one 

of the Trammell plaintiffs (Dijonae Trammell). We call these

four trial plaintiffs “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 filed 

motions for summary judgment on the plaintiffs’ 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 different duties meant different 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 plaintiffs or their caregivers needed no further warning about the 

dangers of lead dust. The plaintiffs 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 plaintiffs 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 plaintiff. Id. The jury 

found Atlantic Richfield not liable. Id. The losing defendants 

appealed. 

Before turning to that appeal, we note that American Cyanamid and Atlantic Richfield 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 plaintiffs’ shared

counsel, tightly coordinated litigation strategy, and extensive 

opportunities to make their jurisdictional case. 

Defendant Atlantic Richfield—whom the jury had found 

not liable—similarly invoked issue preclusion, but it did not 

escape so easily. The court denied Atlantic Richfield’s motion, 

noting that the plaintiffs 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 plaintiffs. 

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 plaintiffs raised the white 

flag. They surrendered their negligence claims in a footnote, 

which read:

Sherwin-Williams initially argues that Plaintiffs have 

no claim for negligent failure to warn. Well aware of this 

Court’s previous order, Plaintiffs concede that they do not 

have surviving claims for negligent failure to warn. 

The court granted summary judgment against the Wave 2 

plaintiffs 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 plaintiffs 

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 finding that the duty to warn in the 

strict liability context differs 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 

plaintiffs 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 
10 Nos. 22-2636 et al. 

held that the court legally erred in finding 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 plaintiffs 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 filed renewed motions for summary judgment—this time against all

the plaintiffs 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 plaintiffs 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 finding doomed both claims. 

The defendants also sought summary judgment as to the 

remaining plaintiffs. To best understand each argument, it

helps to further subdivide those remaining plaintiffs because 

they are situated differently. 

The first group of plaintiffs consists of the remaining 

plaintiffs from the Allen and Trammell actions who did not 

participate in Wave 2. We refer to this batch of Allen and Trammell plaintiffs—the non-Wave 2 contingent—as “Group 3.” 

3 The Wave 1 plaintiffs are not parties to this appeal. 
Nos. 22-2636 et al. 11 

The second group of plaintiffs consists of those from the 

Gibson and Valoe actions. These plaintiffs, unlike Group 3, 

come from cases with no representative in the litigation thus 

far. We call these plaintiffs “Group 4.” 

The defendants sought summary judgment against the 

Group 3 plaintiffs on law of the case grounds, arguing that 

they came from the same “case” as the Wave 2 plaintiffs and 

so the court’s duty-to-warn determination applied with equal 

force. As to the Group 4 plaintiffs, the defendants argued that 

issue preclusion applied because duty to warn was a common 

issue that the earlier waves of plaintiffs had fully litigated. 

All plaintiffs objected to the motions. Additionally, the 

Wave 2 plaintiffs 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 plaintiffs’ 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 specific dangers of lead dust. This lack of awareness about lead dust, the plaintiffs argued, could give rise to

a duty to warn that would salvage their negligence claim. 

The district court denied the Wave 2 plaintiffs’ motion to 

reconsider on several grounds. First, the Wave 2 plaintiffs had 

previously conceded their negligence claims during the initial 

4 The plaintiffs 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 plaintiffs had since produced did not qualify as “new” 

for purposes of reconsideration because it was available all 

along. The court determined that the plaintiffs 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 plaintiffs 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 efficiency that provided the justification for joinder 

in the first 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 plaintiffs 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 plaintiffs were 

sufficiently in “privity” with the prior plaintiffs. The court 

held that the Group 4 plaintiffs had an “obvious interest” in 

the earlier waves because “the plaintiffs 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 plaintiffs, which suggested that the Group 4 plaintiffs 

“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 plaintiffs 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 plaintiffs’ 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 plaintiffs—Wave 2, Group 

3, and Group 4—each appeal the district court’s grant of summary judgment against them. The Wave 2 plaintiffs contend 

that the district court erred in denying their motion to reconsider. The Group 3 plaintiffs maintain that the law of the case

doctrine does not apply to them. And the Group 4 plaintiffs 

argue that applying issue preclusion against them violates 

due process. Additionally, all plaintiffs think we got questions 

of Wisconsin state law wrong the first 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 Plaintiffs

We begin with the Wave 2 plaintiffs, 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 

plaintiffs 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 plaintiffs 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 significant 

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 affected 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 plaintiffs’ negligence-based 

claims. Indeed, we even noted that the negligence claims were 

not under consideration because the plaintiffs “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 effect; 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 
16 Nos. 22-2636 et al. 

We recognize that the Wave 2 plaintiffs 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) 

(finding no abuse of discretion where the plaintiffs “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 plaintiffs’ motion for reconsideration.

B. Group 3 Plaintiffs

We turn next to the Group 3 plaintiffs—the remaining, 

non-Wave 2 plaintiffs 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 

find 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 plaintiffs. Because we affirm 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 inflexible 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 justification.”). Such “unusual 

circumstances” justifying departure from the doctrine include 

(1) substantial new evidence introduced after the first 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 plaintiffs because they were part of the same “case” 

as the Wave 2 plaintiffs 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 defined, 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 plaintiffs 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 plaintiffs conceded their negligence claims

at summary judgment, that concession on a common issue 

bound the Group 3 plaintiffs. As the district court correctly 

noted: the Group 3 plaintiffs 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 plaintiffs. 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 plaintiffs 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 plaintiffs were 

technically parties to the same case as the Wave 2 plaintiffs, the 

district court’s “bellwether” treatment of the Wave 2 plaintiffs 

functionally severed them from the Allen and Trammell complaints they came from. In essence, they contend the district 

court “effectively created two separate litigations” when it 

placed the Wave 2 plaintiffs on their own track to trial.

The plaintiffs correctly note that the law of the case doctrine does not apply to severed claims. See Gaffney 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 finality 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 effective, 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 plaintiffs 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 “different habeas actions brought by 

different petitioners are different 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 plaintiffs primarily 

argue that, despite the CMO’s silence on the legal basis for 

setting aside the Wave 2 plaintiffs 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 plaintiffs. But we do not find that characterization

dispositive in the context of the history of this litigation, 

which shows that the court was committed to keeping the 

plaintiffs under one action, as they requested. Indeed, in response to the defendants’ motion to sever the Allen plaintiffs’ 

claims, the plaintiffs 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 plaintiffs’ choice to collectively litigate the common questions of 

law and fact that permitted joinder in the first 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 plaintiffs also point out that the district court stayed 

discovery in the Group 3 cases, and the Wave 2 plaintiffs 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 final 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); Gaffney, 451 F.3d at 442 n.18 (“[A]n order 

of separate trials [under Rule 42(b)] does not result in the filing 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 

plaintiffs’ 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 plaintiffs when it entered final judgment in this 

case. Finally, we find it telling that the capable district court 

at no point described the Wave 2 plaintiffs 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 plaintiffs were at all times proceeding 
22 Nos. 22-2636 et al. 

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 Gaffney, 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 plaintiffs insisted from the beginning that all plaintiffs in the Allen and Trammell cases were 

properly joined and should proceed together. There is no indication that the plaintiffs sought to backtrack from that 

choice when they requested the CMO. Rather, the plaintiffs 

advertised that their proposed sequencing would “provide 

additional efficiencies,” 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 plaintiffs directed our attention to several documents in which the defendants insisted that issue preclusion should not 

apply in these cases. The plaintiffs also noted that the district court had 

earlier denied Atlantic Richfield’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 plaintiffs, but they have nothing 

to do with the Group 3 plaintiffs. 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 plaintiffs 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 

plaintiffs. 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 ... 

significant new evidence, not earlier obtainable in the exercise 

of due diligence, has come to light ....” (quotation marks omitted)). The plaintiffs readily concede that their new evidence 

has been available from the get-go, so it cannot provide 

grounds for relief. 

The plaintiffs’ 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 plaintiffs 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. 
24 Nos. 22-2636 et al. 

* * * 

The impact of our conclusion on the scope of this litigation 

is not lost on us. Affirming the district court’s grant of summary judgment against Group 3 calves a considerable chunk 

from a once-sizeable mass of plaintiffs. Indeed, after all is said 

and done in this appeal, just three plaintiffs will remain. 

That consequence is unavoidable given the Allen and

Trammell plaintiffs’ choice to proceed under just two complaints. In making that choice, the Wave 2 and Group 3 plaintiffs entered an all-for-one, one-for-all arrangement on common issues, and at all times remained tethered under their 

jointly filed complaints. 

No doubt an earnest interest in efficiency motivated the 

plaintiffs’ decision to proceed in this manner. A litigant’s 

shortcuts, however, can cut both ways. When plaintiffs 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-plaintiff 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 plaintiffs 

each alleges that she experienced an injury after using the 

same product, or similar products made by different 
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 plaintiff’s claims will be different.”). 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 

offer an out from that tactical gamble. Cf. Burley v. Gagacki, 834 

F.3d 606, 619 (6th Cir. 2016) (plaintiffs’ “strategic decision” 

not to contest an issue “precluded plaintiffs 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 Plaintiffs

We turn next to the Group 4 plaintiffs. These plaintiffs—

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 filed their own cases, 

which, pursuant to the case management order, the district 

court stayed pending the earlier waves of trials. The Group 4 

plaintiffs 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 different 

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 effect 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 

different 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 sufficient 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 plaintiffs were in privity or had sufficient identity of interests with 

the Wave 2 plaintiffs such that applying issue preclusion 

against them comports with due process. “Due process requires that the litigant had sufficient 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. Jefferson 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 identified 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 offers 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 significant factual differences 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 
28 Nos. 22-2636 et al. 

company following a single car accident. 554 N.W.3d at 233–

34. This case, however, involves several coordinated cases in 

which the plaintiffs 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 plaintiffs 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 offers 

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 find no Wisconsin authority in the fifteen 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 sufficient 

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 effect 

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 reflects 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 
30 Nos. 22-2636 et al. 

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 effect, 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 definitive taxonomy” and was “meant only to provide a 
Nos. 22-2636 et al. 31 

The virtual representation doctrine did not fit 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 fits 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 

plaintiffs, the Wave 2 plaintiffs 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 different 

plaintiffs against the same defendant, all the parties to all the 

actions may agree that the question of the defendant’s liability 

will be definitely 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 plaintiffs 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 plaintiffs’ consent, that reliance is misplaced. Neither the plaintiffs’ motion nor the 

CMO mentioned preclusion. 

The CMO also does not support the conclusion that the

Group 4 plaintiffs impliedly consented to be bound. As a general matter, courts are reluctant to find 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 plaintiffs 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 

defined 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 plaintiffs’ descriptions of the Wave 

2 trials confirm that no such thing happened here. The plaintiffs repeatedly described the Wave 2 trials as informing future 

litigation—not foreclosing future claims. For example, the 

plaintiffs’ 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 plaintiffs described the district 

court’s findings 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]laintiffs” basis, and even where the district court’s ruling 

“turn[ed] on broad evidentiary issues common to all Plaintiffs.” 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 

find 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 plaintiff-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 plaintiff’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 find insufficient 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 effectively 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 

(finding 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 firearms charges in order to allow the firearms charges to be federally prosecuted”); Restatement (Second) of Judgments § 39 

(1982) (“To have control of litigation requires that a person 

have effective 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 

insufficient. 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 find no evidence of control in this case. While the district court found that “the plaintiffs 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 find 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 plaintiff’s attorney took part in a prior, similar action 

is irrelevant unless there is evidence that the plaintiff 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 plaintiffs thus did not control 

the earlier litigation for purposes of issue preclusion.

3. Adequate Representation

Under the final 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 (first 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 unsatisfied, 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 plaintiffs “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 
38 Nos. 22-2636 et al. 

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 plaintiffs, or that the Wave 2 plaintiffs “understood 

their suit to be on behalf of absent [parties].” Id. at 802. Under

these circumstances, the prior plaintiffs did not adequately 

represent the Group 4 plaintiffs, 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 

plaintiffs thus does not fit 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 find 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 effects 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 finding issue preclusion improper).
Nos. 22-2636 et al. 39 

Accordingly, we conclude that the Group 4 plaintiffs were 

not in privity and lacked sufficient identity of interest with the 

plaintiffs 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 plaintiffs by the finding 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 plaintiffs were not in privity 

nor had sufficient identity of interest with the prior plaintiffs, 

“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 finding that it lacked personal jurisdiction in the 

Wave 1 trials. The defendants offer 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 finding as to Atlantic Richfield, explaining

that the appropriateness of preclusion depended on the circumstances. Indeed, Sherwin Williams itself opposed Atlantic 

Richfield’s attempt to apply issue preclusion, asserting that 

“Plaintiffs may wish to investigate and present their own ... 
40 Nos. 22-2636 et al. 

evidence ... that was not presented or developed fully in the 

first-round trial.” The court’s earlier rulings thus did not provide the plaintiffs 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 difficult task of balancing litigants’ due process rights 

against the practical demands of shepherding hundreds of individual claims toward final resolution. Laudably, judges 

“have risen to this challenge by devising efficient, effective, 

and fair case management techniques.” Home Depot, 59 F.4th 

at 65. This case is no different, and we again commend the 

court’s able stewardship of this litigation. 

But it is important that the efficient pursuit of finality 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 benefits of efficiency can never be purchased at the cost 

of fairness.”). To that end, courts and commentators have 

identified several tools at a district court’s disposal that promote the efficient and final 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 

identified 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 Plaintiffs’ 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]actfinding 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 first 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 first instance for the district court.”). We 

leave this task to the district court on remand. 

D. Revisiting Burton II

The plaintiffs close with a parting shot at Burton II. Specifically, they take aim at two of our conclusions of state law 

there: first, 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 plaintiffs 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 
42 Nos. 22-2636 et al. 

alternative, the plaintiffs ask us to overrule Burton II.12 We reject both invitations. 

Precedents may not be “sacrosanct,” but neither are they 

fickle. Buchmeier v. United States, 581 F.3d 561, 565 (7th Cir. 

2009) (en banc). “There must be a serious justification 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), aff’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 plaintiffs 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 plaintiffs 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 plaintiffs 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 plaintiffs 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 Heffernan, J.). The plaintiffs’ 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. 

Certification 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 effort a waste—especially without signs from the state court that we got Burton 
44 Nos. 22-2636 et al. 

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 first federal decision on the point. Certification eliminates the need to expend judicial resources predicting how another court will decide a question. Once we have 

invested the time and effort 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 plaintiffs’ 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 affirm the judgments of the district 

court as to the Wave 2 and Group 3 plaintiffs. 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 plaintiffs’ certification motion is denied as moot.