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Res Judicata and the Pursuit of Scientific Misconduct Investigations


Benjamin S. Gifford IV, Esq. and Robert P. Bauchwitz M.D., Ph.D.

Amerandus Research

BNY Mellon Center

1735 Market Street, Suite 3750

Philadelphia, PA 17033


correspondence to:




There are an increasing number of qui tam actions being brought in U.S. federal courts involving research misconduct. [1]  Evidence obtained in such cases can be relevant to correction of the scientific literature.[2]  However, because of the complexity of legal terminology regarding the principle of res judicata, plaintiff-relators, scientific publishers, and other non-attorneys may be misled into believing that the evidence they obtain regarding scientific misconduct from a legal case cannot be used after a settlement[3]. In this memo, we attempt to clarify under what conditions evidence obtained from a legal case can be used after dismissal with prejudice, a common outcome of a lawsuit settlement.  



1.         Whether dismissal with prejudice implies adjudication of the merits on any basis other than precluding re-filing of the action?

2.         Whether a defendant can agree to dismiss an action with prejudice as to one co-plaintiff and without prejudice as to another?

3.         Whether it is common for a plaintiff to agree to a voluntary dismissal with prejudice?

4.         Whether a plaintiff’s agreement to dismiss a suit with prejudice is an admission that the suit’s allegations were frivolous or that the evidence did not substantiate the claim in question?

5.         Whether Defendant’s implied claims – that the court did consider the evidence obtained during discovery or that the plaintiff conceded the allegations were frivolous – are misrepresentations in the general usage of the term?

6.         Whether, after the court has dismissed a case with prejudice, plaintiffs can use evidence obtained during discovery in any forum or proceeding other than the original cause of action?


Brief Answer

1.         A dismissal with prejudice generally precludes the same parties or their privies from bringing a new legal case under the same cause of action. A dismissal with prejudice does not necessarily mean a court made findings of fact in a case, nor does it preclude other parties from litigating the same cause of action.

2.         A defendant may agree to dismiss one action with prejudice as to some plaintiffs and without prejudice as to others, but the court must strictly adopt that provision in its order.

3.         It is common for plaintiffs to agree to a voluntary dismissal with prejudice.  

4.         A dismissal with prejudice does not automatically establish that the action was unreasonable or without foundation, or that the defendants were the prevailing party.

5.         Defendant’s implicit claims that the court did consider the evidence obtained during discovery or that the plaintiff conceded the allegations were frivolous are misrepresentations in the general use of the term.  

6.         Absent a protective order imposed by the court, plaintiffs would be free to use evidence obtained during discovery in a non-trial forum. Specific examples relevant to evidence reuse after settlement in scientific fraud cases are provided:

a. A plaintiff may, after his suit has been dismissed with prejudice, turn over evidence obtained during discovery to the university employing the former defendant, or to a journal or its publisher, for the purpose of initiating a scientific misconduct investigation.  


b. A defendant cannot threaten to bring a suit against a university or a journal or publisher conducting an investigation based on evidence received from a plaintiff whose claim was dismissed with prejudice on the grounds of res judicata.  


c. A plaintiff may, after his suit has been dismissed with prejudice, turn over evidence obtained during discovery to a United States agency or official for investigation, though the government's ability to litigate the same cause of action may depend on whether it was party to the original dismissal with prejudice.

d. A party unrelated to the original plaintiffs can bring a suit against the original defendants for the same factual and legal cause of action after an earlier suit had settled.  



Pursuant to Local Rule 41.1(b) of the Pennsylvania Eastern District, plaintiffs and defendants agreed to settle a civil suit after discovery had commenced, but prior to any hearing regarding evidence collected during the process. One of the two plaintiffs agreed to a voluntary withdrawal with prejudice (hereafter “Plaintiff”), while the other agreed only to a voluntary withdrawal without prejudice.  The court approved the written stipulation of voluntary dismissal and ordered the action dismissed with prejudice.

After the suit was dismissed, defendants asserted to others that, because the suit was dismissed with prejudice, the plaintiffs had conceded that their allegations had been without merit or that the evidence obtained during discovery had been considered by the Court in ordering the dismissal.

Plaintiff contends that the motivation for the settlement was that the district judge had reduced the period for discovery to less than the time that had been agreed to by the parties[4], and on the day of settlement he had rejected motions requesting an extension of discovery. There is no record that Plaintiff conceded that there was ever any evidence found to undermine the merits of the case.



I.               A dismissal with prejudice does not necessarily mean that there were any findings of fact in a legal case.

A settlement between the plaintiffs and defendants in a lawsuit can generally be made on a voluntary basis at any time prior to a final judgment. Under such circumstances, as part of the settlement, the parties may agree to forgo further litigation of certain claims[5], and the judge may order the case dismissed "with prejudice." The latter term has implications as to what further lawsuits may be brought between the parties. The preclusive effects of a settlement followed by case dismissal with prejudice can be generally described by the term "res judicata".[6]

"The preclusive effect of a judgment is defined by claim preclusion and issue preclusion, which are collectively referred to as 'res judicata.'"[7]  The Supreme Court in Taylor made note of the "confusing lexicon" of terms related to res judicata.[8]  Consistent with that concern, the term "res judicata" is often used to mean only “claim preclusion.”[9]

As it is a "cause of action" that is being precluded, it is important to note that this term can also have different meanings, which can cause further confusion as to what is being precluded. More specifically, “cause of action” can refer to "facts which give a plaintiff the right to bring a legal action against another"[10], or it can refer to "the legal theory forming the basis of a lawsuit."[11]  The term "claim" is synonymous with cause of action.[12]

The cause of action that is being precluded by "res judicata" (claim preclusion) is based on a "common nucleus of facts," regardless of the number of legal theories under which those facts could be litigated:  

In the days when civil procedure still bore the imprint of the forms of action and the division between law and equity, the courts were prone to associate claim with a single theory of recovery, so that, with respect to one transaction, a plaintiff might have as many claims as there were theories of the substantive law upon which he could seek relief against the defendant ... The present trend is to see claim in factual terms and to make it coterminous with the transaction regardless of the number of substantive theories, or variant forms of relief flowing from those theories, that may be available to the plaintiff; regardless of the number of primary rights that may have been invaded; and regardless of the variations in the evidence needed to support the theories or rights. The transaction is the basis of the litigative unit or entity which may not be split. . . . The expression “transaction, or series of connected transactions,” is not capable of a mathematically precise definition ... In general, the expression connotes a natural grouping or common nucleus of operative facts.[13]

Claim preclusion, sometimes used synonymously with "res judicata" (as noted above, and henceforth in quotes), does not necessarily address whether there were actually any findings of fact.[14]  Though a dismissal with prejudice is considered an adjudication on the merits for the purposes of res judicata, such an adjudication does not necessarily mean that a court considered the facts of the case when deciding to dismiss.[15]

While a settlement agreement that includes a voluntary dismissal with prejudice may operate as if it had been "on the merits"[16], many such settlements are in fact made prior to trial or any findings of fact and without any stipulation by the parties as to facts or concessions. For this reason, the Restatement (Second) of Judgments, 1982, does not use the term "on the merits" because of its potential to mislead: 

It is frequently said that a valid and final personal judgment for the defendant will bar another action on the same claim only if the judgment is rendered “on the merits.” The prototype case continues to be one in which the merits of the claim are in fact adjudicated against the plaintiff after trial of the substantive issues. Increasingly, however, by statute, rule, or court decision, judgments not passing directly on the substance of the claim have come to operate as a bar. Although such judgments are often described as “on the merits” or as “operating as an adjudication on the merits,” that terminology is not used here in the statement of the general rule because of its possibly misleading connotations.[17]

The distinction as to whether there has been a weighing of facts is important, as it determines whether there will be any collateral estoppel of further actions between the parties. Collateral estoppel, which is synonymous with "issue preclusion," refers to "the binding effect of a judgment as to matters actually litigated and determined in one action on later controversies between the parties involving a different claim from that on which the original judgment was based."[18]  "Under the doctrine of res judicata, a judgment ‘on the merits’ in a prior suit involving the same parties or their privies bars a second suit based on the same cause of action. Under the doctrine of collateral estoppel, on the other hand, such a judgment precludes relitigation of issues actually litigated and determined in the prior suit, regardless of whether it was based on the same cause of action as the second suit."[19] [20]

Therefore, while "res judicata" (claim preclusion) acts in a technical sense as if there had been a judgment "on the merits", it can be distinguished from collateral estoppel (issue preclusion), as further illustrated in Lawlor:

Pursuant to the settlement, the suit was dismissed “with prejudice” by court order.  No findings of fact or law were made . . . . [T]he 1943 judgment dismissing the previous suit “with prejudice” bars a later suit on the same cause of action.  It is likewise true that the judgment was unaccompanied by findings and hence did not bind the parties on any issue—such as the legality of the exclusive license agreements or their effect on petitioners’ business—which might arise in connection with another cause of action.[21]

Consequently, "a fact or point must have been litigated (by the parties), determined (by the tribunal), and necessarily so determined before the parties will be bound collaterally upon it"; and, "a consent judgment should not be given any effect as collateral estoppel except in the rare case where it may fairly be said that the parties intended this effect."[22]

In summary, the party seeking to invoke claim preclusion must show that there has been “(1) a final judgment on the merits in a prior suit involving (2) the same parties or their privies[23] and (3) a subsequent suit based on the same cause of action.”[24]  Absent the same cause of action, the same parties or their privies could sue one another, except that facts actually litigated in the first case could not be relitigated in the second.

What constitutes a “cause of action” in a research misconduct qui tam suit, e.g. one brought under the federal False Claims Act (31 U.S.C. §§ 3729 – 3733), has been further specified in recent case law as the transactional nucleus of facts associated with a specific grant:

The false claims asserted in both the Government's Complaint-In-Intervention and the current complaint arise from the same nucleus of operative fact. . . . [T]o the extent that the false claims against Cornell Medical are based on [those facts], they are foreclosed by res judicata.  Plaintiff does, however, set forth allegations with respect to a different federal grant . . . [and] [t]o the extent that plaintiffs false claims relate to this grant, they are not barred by res judicata because false statements and claims made in connection with a different grant would not be part of the same transactional nucleus of fact.[25]

It is also of note that "res judicata" (claim preclusion) may also apply to any cause of action that could have been brought in the original suit:

The federal courts have traditionally adhered to the related doctrines of res judicata and collateral estoppel.  Under res judicata, a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.  Under collateral estoppel, once a court has decided an issue of fact or law necessary to its judgment, that decision may preclude relitigation of the issue[26] in a suit on a different cause of action involving a party to the first case.[27]


The United States Supreme Court has also said:

But where the second action between the same parties is upon a different claim or demand, the judgment in the prior action operates as an estoppel only as to those matters in issue or points controverted, upon the determination of which the finding or verdict was rendered. In all cases, therefore, where it is sought to apply the estoppel of a judgment rendered upon one cause of action to matters arising in a suit upon a different cause of action, the inquiry must always be as to the point or question actually litigated and determined in the original action, not what might have been thus litigated and determined. Only upon such matters is the judgment conclusive in another action.[28]


            Furthermore, while a particular party or its privies (see following) may be precluded from refiling a suit after a settlement and dismissal with prejudice, the same is not the case for a different party:

A person who was not a party to a suit generally has not had a “full and fair opportunity to litigate” the claims and issues settled in that suit. The application of claim and issue preclusion to nonparties thus runs up against the deep-rooted historic tradition that everyone should have his own day in court.  Indicating the strength of that tradition, we have often repeated the general rule that “one is not bound by a judgment in personam in a litigation in which he is not designated as a party or to which he has not been made a party by service of process.[29]

Thus, “if more than one party has a right to relief arising out of a single transaction, each such party has a separate claim for purposes of merger and bar.”[30]

In addition, res judicata may not apply to claims or parties not specified in a settlement agreement, even though those claims and parties were part of the original case. In Sarafoglou v. Weill Medical College, the New York Southern District Court held that where there was no specific litigation of claims and a settlement agreement that only specified some original claims and parties but not others[31], res judicata precluded only those claims and parties specified in the settlement agreement.[32]  The Court went on to note that “partial interventions are allowed where the Government intervenes as to certain claims, or as to certain defendants.”[33]

            Thus, a settlement by the government can bind the plaintiff-relator, even if the latter does not agree to the terms, and conversely, a settlement in a non-intervened case can bind the government and preclude it from a subsequent action. However, if there is an explicit settlement agreement in which different terms were agreed with respect to the relator and the U.S., then those terms will likely prevail.

            Finally, the terms of a settlement agreement are only one of many bases by which qualifications or exceptions to res judicata may occur. “The res judicata doctrine may be qualified or even rejected when its application "would contravene an overriding public policy or result in manifest injustice."[34]  Consistent with this concern, the Restatement (Second) of Judgments states that:

[It is] inappropriate that all judgments be treated as absolutely inviolable. Particularly is this true when a judgment has been procured by the fraud of the successful party. To immunize such a judgment from attack is to compound the injustice of its result on the merits with the injustice of the means by which it was reached. Equally important, if judgments were wholly immune it would give powerful incentive to use of fraudulent tactics in obtaining a judgment. A litigant would know that if he could sustain duress or deception through the moment of finality, the benefit of the judgment would be his forever.[35]


In addition to fraud occurring during the legal case, there are a number of other bases by which res judicata may be found not to apply.  Such circumstances are often codified in statutory law, such as Rule 60(b) of the Federal Rules of Civil Procedure[36] and comparable state statutes.

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II.             A defendant may agree to dismiss an action with and without prejudice as to two separate parties, but the judge’s order should reflect that agreement exactly.


A defendant can agree to dismiss one plaintiff’s claims with prejudice and another without.  The Second Circuit has held that a settlement agreement is a contract that, once entered into, is binding and conclusive.[37]  Courts have the inherent authority to enforce a settlement agreement.[38]  However, a court does not have the power prior to trial to “modify a proposed consent decree and order its acceptance over either party’s objection.”[39]  A court has three options when presented with a settlement agreement: (1) accept the proposed agreement; (2) reject the proposed agreement and delay the trial to allow time for a new agreement to be reached; or (3) decide to move to trial.[40]  Thus, while a defendant can dismiss a case with multiple plaintiffs with prejudice as to some and without prejudice as to others, the settlement agreement reflecting that decision must be strictly enforced by the court and cannot be altered.  Any alteration will likely lead to a meritorious appeal to vacate the order.

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III.           It is common for plaintiffs to agree to a voluntary dismissal with prejudice


The available information about settlement agreements is mainly anecdotal, as accurate empirical data about rates and frequency of settlement may not exist.[41]  Roughly forty-four percent of all cases settle pursuant to a Stipulation of Dismissal.  Id.  In order to obtain an estimate of the percentage of cases that invoked a voluntary dismissal with prejudice to those that invoked a voluntary dismissal without prejudice, a comparison of case law searches for the phrases “voluntary dismissal with prejudice” vs. “voluntary dismissal without prejudice” was made[42].  The results supported a near equivalence of the frequency of published cases invoking dismissal with prejudice as without: for the Eastern District of Pennsylvania, fifteen cases mentioned “voluntary dismissal with prejudice,” while twenty-two mentioned “voluntary dismissal without prejudice” (forty-one percent with prejudice); for all U.S. jurisdictions, thirty-seven percent of cases discussed the term “voluntary dismissal with prejudice.”  Of the total of 3,985 cases from all jurisdictions since 1950, only 104 mentioned both phrases.

One possible reason for the relatively high percentage of settlement agreements made with prejudice is that defendants may insist upon such a stipulation so as to ensure at least some res judicata effect.[43]  Cases found in searches for the term “voluntary dismissal with prejudice” also suggest that another reason plaintiffs choose to dismiss with prejudice is to allow an appeal, as "appellate courts treat a voluntary dismissal with prejudice as an appealable order if it was entered after an adverse ruling by the trial court in order to expedite an appeal of the ruling."[44]

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IV.       A dismissal with prejudice does not automatically establish that the action was unreasonable or without foundation, or that the defendants were the prevailing party.


Case law supports the proposition that “the mere dismissal of the plaintiff’s suit will not establish that the underlying claim was frivolous, unreasonable, or groundless.”[45]  The United States Supreme Court has held that a plaintiff is only considered a “prevailing party” when “actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant’s behavior in a way that directly benefits the plaintiff.”[46]

In the case at hand, there is no evidence in the record[47] of any hearing or other consideration of new evidence obtained during discovery.  The Plaintiff stated his ultimate motivation for the settlement was the reduction of the period for discovery by the Court to less than adequate time to prosecute the claim[48], and on the day of settlement the Court had rejected motions requesting an extension of discovery. At no time did the Plaintiff concede that there was ever any evidence found to undermine the merit of the case, nor did the Court make any determination to that effect.

It is also unlikely that Plaintiff had conceded that his initial suit was frivolous in agreeing to dismiss with prejudice because having been represented by counsel in filing his suit, his attorney had an ethical responsibility not to bring an action without a basis in law and fact.  Attorneys have a duty not to pursue baseless claims or frivolous issues.[49]    This requirement has been codified as well, providing:

A lawyer shall not bring or defend a proceeding, or assert or controvert in issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.[50]


Violation of this rule can result in disciplinary sanctions imposed on the attorney.[51] 

Additionally, it is a violation of the Federal Rules of Civil Procedure for a party to file a claim that is not warranted by existing law or that is frivolous in nature.[52]  The Rules also require that all factual contentions have evidentiary support at the time of filing or that such contentions are likely to have support after a reasonable opportunity for further investigation and discovery.[53]  Violations of these rules can result in sanctions imposed by the court.[54]

Finally, with respect to new evidence obtained during discovery, not only were there no hearings or rulings on such evidence, nor concessions or stipulations regarding such, but also at the time of settlement, the U.S. Attorney’s Office did not agree to dismissal with prejudice, consistent with the possibility that it did not believe the case lacked merit sufficient for consideration of filing the cause of action again.

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V.        Defendant’s claims that the court considered the evidence obtained during discovery or that the plaintiff conceded the allegations were frivolous are misleading.


In entering its order of dismissal, there is no record that the court in the case considered any evidence obtained during discovery.  No hearing regarding such evidence had taken place by the time the suit was dismissed.  Any claim made by the defendant to the contrary would therefore be inaccurate.  Because the plaintiffs did not concede their claim was without merit and the court did not consider any evidence obtained during discovery, defendant has misrepresented events if they told third parties the opposite.[55]

Although one plaintiff agreed to a dismissal with prejudice, the facts support a conclusion that he did so because of restrictions placed on discovery. Further, in the case for which a second plaintiff, the United States, only agreed to dismiss without prejudice, any claim that the government agreed to dismiss with prejudice would be false.  As such, defendant’s assertion that either Plaintiff conceded his claim was without merit is inaccurate.

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VI.       Absent a protective order imposed by the court, plaintiffs would be free to use evidence obtained during discovery in a non-trial forum.


Assuming that Plaintiffs simply wish to use the evidence they obtained through discovery in an alternative forum, what the defendant says regarding the merits of plaintiffs’ original case or actions taken by the court is irrelevant.[56] 

The evidence from the settled case could even be used in another trial. For example, if plaintiffs[57] wanted to file a different cause of action against the defendant that included the evidence obtained during the discovery process from the first suit, they would be free to do so, as a court would consider the evidence used by plaintiffs in the second suit regardless of whether plaintiffs’ prior claim had merit or the court in that suit considered said evidence.[58] 

In particular, “[m]aterial operative facts occurring after the decision of an action with respect to the same subject matter may in themselves, or taken in conjunction with the antecedent facts, comprise a transaction which may be made the basis of a second action not precluded by the first.”[59]  Thus, facts involved in the original case could be used in a new action based on new facts that occurred after the end of the original case.[60]

A dismissal with prejudice reveals nothing about whether there had been findings of fact or any concessions by the parties.[61]  Although such facts or concessions can be stipulated in the settlement agreement, no such stipulations exist in the present case.[62]  

Finally, it should be noted that even if a civil case, such as an action brought under the False Claims Act[63], were res judicata as to subsequent civil actions, the government would not be precluded from bringing a criminal action subsequently, nor would a civil action be precluded by a prior criminal action on the same facts.


Specific examples relevant to evidence reuse after settlement in scientific fraud cases:


1a.             Whether a plaintiff may, after his suit has been dismissed with prejudice, turn over evidence obtained during discovery to the university employing the former defendant for the purpose of initiating a scientific misconduct investigation?


1b.             Whether a plaintiff may, after his suit has been dismissed with prejudice, turn over evidence obtained during discovery to a journal or its publisher for investigation?


The Federal Rules of Civil Procedure allow a party in a civil suit to request evidence through the discovery process.[64]  There is generally no confidentiality associated with the evidence obtained through discovery.[65]  However, any “party or person from whom discovery is sought[66] may move for a protective order in the court where the action is pending.”[67] 

The Rules do not contain any explicit time limit for filing a motion for a protective order.[68]  Such a motion for protection, however, must be timely filed.[69]  This requirement for timeliness usually means a party must file the motion at least during the period set for discovery.[70]

Although the Rules provide eight ways in which a protective order can be fashioned if “good cause”[71] exists[72], courts are not limited merely to the methods as pronounced in the Rules.[73]  “The rules . . . permit the broadest scope of the district court to decide what restrictions may be necessary in a particular case.”[74]  This discretion allows courts to issue protective orders to “limiting [the] use of the materials [obtained through discovery] to the present lawsuit.”[75]

The absence of such a protective order, however, would allow a plaintiff to disclose evidence obtained through discovery in any manner he so chooses.[76]  Thus, absent a protective order prohibiting such conduct, it would be within a plaintiff’s rights to turn over evidence collected during the discovery process to a defendant’s employer for the purpose of initiating a scientific misconduct investigation, regardless of whether the suit was dismissed with prejudice.

Furthermore, claim preclusion (res judicata) only bars new litigation; it does not bar appeals of concluded litigation[77] or, potentially, agency action. [78]  Therefore, the university, publisher, or other investigatory body or government agency would not be precluded from using the evidence obtained during a civil case, regardless of how the case was settled. This would be true even if an investigation, such as under the Public Health Service Policies on Research Misconduct (42 CFR Parts 50 and 93) were to lead to former defendants, now respondents, to appeal an adverse decision to a governmental appeals board.


2a.             Whether a defendant can threaten to bring a suit against a university conducting a scientific misconduct investigation on the grounds of res judicata or collateral estoppel?


2b.             Whether a defendant can threaten to bring a suit against a journal or publisher conducting an investigation based on evidence received from a plaintiff whose claim was dismissed with prejudice on the grounds of res judicata or collateral estoppel?


A defendant would not be able to bring a suit against a university, a journal, or a publisher conducting a scientific conduct investigation alleging res judicata or collateral estoppel.  Res judicata and collateral estoppel are affirmative defenses as enumerated by the Federal Rules of Civil Procedure.[79]  Affirmative defenses must be timely raised, or else a party waives it.[80]  Res judicata and collateral estoppel cannot be used as the basis of a lawsuit to prohibit an individual from using evidence obtained through a settled lawsuit.[81]  Because res judicata and collateral estoppel are affirmative defenses and not claims a party can assert in an initial action against another, a defendant cannot threaten such an action against a university, journal, or publisher conducting a scientific misconduct investigation.



3.   Whether a plaintiff may, after his suit has been dismissed with prejudice, turn over evidence obtained during discovery to a United States agency or official for investigation where the government was previously involved in investigating the prior cause of action but was not party to the dismissal with prejudice?

Though plaintiff would be able to turn over evidence to the government after his qui tam suit was dismissed with prejudice, the doctrine of res judicata might preclude the government from bringing its own suit against defendant for the same claim.[82]  The Supreme Court has stated that “one who prosecutes or defends a suit in the name of another to establish and protect his own right, or who assists in the prosecution or defense of an action in aid of some interest of his own . . . is as much bound . . . as he would be if he had been a party to the record.”[83]  Because the government has an interest in any qui tam suit brought by a relator, claim preclusion and possibly collateral estoppel would apply to any claims settled by a relator on behalf of the government such that “disposing of the action would as a practical matter impair or impede the government’s ability to protect its interest.”[84]  Therefore, while a relator can turn over any evidence obtained during the discovery process to the government, the government might be precluded from initiating another civil suit against the defendant based solely on that evidence.

In addition, the plaintiff would generally be barred by res judicata from attempting to bring an action in an administrative tribunal "engaged in deciding specific legal claims or issues through a procedure substantially similar to those employed by courts", i.e. one engaged in adjudication."[85]  However, not only must the elements of adjudicatory procedure[86] be present, but there must be a claim of entitlement under substantive law. Similarly, if the case had first been brought in an administrative tribunal of the government acting under adjudicatory procedure upon a specific legal claim, then res judicata could apply to a subsequent attempt to bring the same claim in a judicial tribunal by the same parties or their privies (e.g. the government).

4.         Whether a party unrelated to the original plaintiffs could bring a suit against the original defendants for the same factual and legal cause of action after an earlier suit had settled without  judgment regarding facts or law?

            Yes. Claim preclusion (res judicata) only bars claims brought by the same party or its privies.  A new party, completely unrelated to the initial plaintiff, could sue the defendant for the exact same thing.  In theory, both the underlying facts and the legal theory could be part of a completely identical cause of action. However, in a False Claims Act case, there might be impediments such as the need for the new plaintiff to show that he/she, too, was an original source (31 U.S.C. §§ 3729 – 3733), the statute of limitations specified by the law, and perhaps most significantly, that the United States again would be a real party in interest, and thereby for this reason alone the new action might be blocked by res judicata.

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            Many legal actions brought in the United States settle prior to trial. In such cases, there may have been no actual consideration of facts or new evidence. In cases settled and then dismissed "with prejudice", the action is treated as if its merits had been considered, even when the factual or evidence-related merits had not in reality been adjudicated. A dismissal with prejudice, absent any findings of fact or specific concessions by the parties, does not determine whether the original allegations were valid or not. The purpose of "res judicata", or claim preclusion, is to facilitate judicial economy and bring an end to litigation between specific parties. Therefore, an original plaintiff or her associates ("privies") could not bring another civil suit based upon the same cause of action, i.e. the same facts or legal theory. This most likely would include not only facts and legal theories that were brought in the original case, but also those that could have been brought in that case. The original plaintiff, however, could bring a new suit against the original defendants for a new cause of action that involved a different set of facts than that of the first suit, and they could then include facts from the original case in support of the latter.  Unrelated plaintiffs could bring a new suit against the original defendants based on the original cause of action and exactly the same facts, i.e. they would be allowed their own day in court regardless of a suit by others on the same points.

            With respect to evidence obtained during the original case, it could be used in a new trial; however, if the defendants could show that there had been some judicial finding or jury verdict on such evidence, the import of such evidence could not again be litigated with respect to the original parties, even though it could be introduced.  Outside of a new legal case, there would be no restrictions, absent a prior protective order in the original case, that would impede the use of evidence from the original case in any subsequent investigation of the defendants on exactly the same facts alleged originally.

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EN1 - Cause of Action - definitions and further explications


1) from Black's Law Dictionary, Ninth Ed., 2009 (Bl.)

2) from Restatement (Second) of Judgments 1982 (Rest.Sec.Judg.)


A) Black's Law Dictionary, Ninth Ed., 2009:

cause of action “1.  A group of operative facts giving rise to one or more bases for suing; a factual situation that entitles one person to obtain a remedy in court from another person; CLAIM.  2.  A legal theory of a lawsuit." (Bl.; emphasis added.)


claim, n. "1. The aggregate of operative facts giving rise to a right enforceable by a court <the plaintiff's short, plain statement about the crash established the claim>." (Bl.)


operative fact. See FACT. (Bl.)


fact "1. Something that actually exists; an aspect of reality <it is a fact that all people are mortal>. Facts include not just tangible things, actual occurrences, and relationships, but also states of mind such as intentions and opinions." (Bl.)


B) Additional case law:  

The Third Circuit has stated “that the term ‘cause of action’ cannot be precisely defined, nor can a simple test be cited for use in determining what constitutes a cause of action for res judicata purposes.”[87]  There are various factors, however, the court may consider when determining whether multiple suits involve the same cause of action.[88]  “These factors are the components of ‘an essential similarity of the underlying events,’ and thus provide sufficient guidance for assessing when there is not a single cause of action.”[89]  The court may consider:


(1) Whether the acts complained of and the demand for relief are the same (that is, whether the wrong for which redress is sought is the same in both actions); (2) whether the theory of recovery is the same; (3) whether the witnesses and documents necessary at trial are the same (that is, whether the same evidence necessary to maintain the second action would have been sufficient to support the first); and (4) whether the material facts alleged are the same.[90]


Thus, a common nexus of facts cannot be the subject of multiple suits; they must all be consolidated in one action.


C) The Restatement (Second) of Judgments states:

When a valid and final judgment rendered in an action extinguishes the plaintiff's claim . . . the claim extinguished includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose.  When a defendant is accused of successive but nearly simultaneous acts, or acts which though occurring over a period of time were substantially of the same sort and similarly motivated, fairness to the defendant as well as the public convenience may require that they be dealt with in the same action. The events constitute but one transaction or a connected series. ... [For example:] When a person trespasses daily upon the land of another for a week, although the owner of the land might have maintained an action each day, such a series of trespasses is considered a unit up to the time when action is brought.[91]


Note that if the same plaintiff were to bring a second case against the same defendants, a court looking at res judicata retrospectively might try to establish whether the claim could have been brought in the original action, e.g. by amendment of the original claim. Therefore, it may be safer to conclude that such trespasses, or often in the case of research misconduct qui tam cases, successive grant progress reports, might be considered a unit for res judicata purposes through the time of settlement or judgment.


There is an exception to the above, which has to do with financial considerations:

On the other hand, when there is an undertaking, for which the whole consideration has been previously given, to make a series of payments of money—perhaps represented by a series of promissory notes, whether or not negotiable—the obligation to make each payment is considered separate from the others and judgment can be obtained on any one or a number of them without affecting the right to maintain an action on the others. The same applies to the obligations represented by coupons attached to bonds or other evidences of indebtedness which are similarly considered separate.[92]

This is important for scientific misconduct pursued through the False Claims Act, since it means that each submission for an annual payment from a grant is a separate claim, and that any other submissions of false claims, even for contemporaneous grants, would not necessarily be precluded by res judicata.

EN2 - Res judicata and related definitions

From Black's Law Dictionary, Ninth Ed., 2009 (Bl.):  

res judicata "1. An issue that has been definitively settled by judicial decision. 2. An affirmative defense barring the same parties from litigating a second lawsuit on the same claim, or any other claim arising from the same transaction or series of transactions and that could have – but was not – raised in the first suit."


affirmative defense "A defendant's assertion of facts and arguments that, if true, will defeat the plaintiff's or prosecution's claim, even if all the allegations in the complaint are true. The defendant bears the burden of proving an affirmative defense. Examples of affirmative defenses are … insanity and self-defense. Also termed plea in avoidance; plea in justification." [An affirmative defense relevant to qui tam cases could be based on the statute of limitations.]  


negative defense "A defendant's outright denial of the plaintiff's allegation without additional facts pleaded by way of avoidance."


EN3Issue and Issue Preclusion  

A) Definitions of Issue

"A legal point of dispute between two or more parties to the litigation which, if it is a matter of law, should be resolved by the court, or if it is a matter of fact, should be resolved by the jury." (Gilbert Law Dictionary, 1997).


"A point in dispute between two or more parties. ... 'when a fact is alleged in the complaint and denied in the answer, the matter is then put in issue between the parties'" (quoting 35A C.J.S. Federal Court Procedure § 357, at 541 (1960). (Bl.)


B) Restatement (Second) of Judgments § 24:

"Issue preclusion (Subsection (3)). A valid and final personal judgment, whether in favor of the plaintiff or of the defendant, has a further effect—that of issue preclusion. In a subsequent action between the parties, the judgment generally is conclusive as to the issues raised in the subsequent action if those issues were actually litigated and determined in the prior action and if their determination was essential to the judgment. When the subsequent action is on a different claim, this effect of the judgment is sometimes designated a collateral estoppel.  When an issue is actually litigated and determined in an action, the determination is also generally conclusive in any subsequent action between the parties on the same claim. This effect of the judgment is sometimes designated a direct estoppel. Ordinarily, after a judgment is rendered in an action, the claim is extinguished by the judgment's bar or merger effect, and therefore it is impossible to maintain a subsequent action on the claim. But there are exceptions. For example, when a judgment for the defendant is based on lack of jurisdiction, improper venue, or nonjoinder or misjoinder of parties, the plaintiff is not precluded from maintaining another action on the claim (see § 20(1)). Also, when the defendant interposes a counterclaim on which an affirmative judgment in his favor is not permitted to be rendered, and he obtains judgment on the counterclaim, he is not precluded from subsequently maintaining an action on his claim to secure further relief (see § 21(2))." (Restatement (Second) Judgments § 17).


EN4 - Settlement agreement and complaint-in-intervention in:


UNITED STATES of America ex rel. Kyriakie SARAFOGLOU, Plaintiff, v. WEILL MEDICAL COLLEGE OF CORNELL UNIVERSITY, New York-Presbyterian Hospital, Antonio M. Gotto, Jr., M.D., Barbara Pifel, Maria I. New, M.D., Lauren Beamud, Susanna Cunningham-Rundles, Noel Maclaren, M.D., Gregory Siskind, M.D., Michael Wajnrajch, M.D., Madeleine Harbison, M.D., Patricia Giardina, M.D., and James Bussel, M.D., Defendants. No. 03 Civ. 6761(DC). United States District Court, S.D. New York. September 12, 2006.

"Plaintiff filed a sealed complaint against Cornell Medical, the individual defendants, and NYPH under the qui tam provisions of the FCA in September 2003 (the "Original Complaint"). (Tiska Decl. Ex. D). The Original Complaint alleged that the defendants made false statements to the United States to obtain federal research funds (id. ¶¶ 31-103), and further, that these defendants retaliated against Dr. Sarafoglou when she told her supervisors that she was concerned about the misrepresentations (id. ¶¶ 104-26).

        In June 2005, approximately two years after the Original Complaint was filed, the Government filed a Notice of Election to Intervene, in which it notified the Court that it was electing "to partially intervene and proceed with this action" against Cornell Medical. (Tiska Decl. Ex. F). In its Complaint-In-Intervention, the United States asserted claims against Cornell Medical alone, for violations of the FGA, common law fraud, unjust enrichment, and payment made under mistake of fact. (Tiska Decl. Ex. G. ¶¶ 134-56).

        At the same time that the United States filed its Notice of Election to Intervene, it also submitted a Stipulation and Order of Settlement and Dismissal (the "Settlement Agreement") that it entered into with Cornell Medical. (Tiska Decl. Ex. H). According to the Settlement Agreement, "the United States and [Cornell Medical] mutually agree to reach a full and final settlement and compromise of the claims that the United States asserts against [Cornell Medical] based on the Covered Conduct." (Tiska Decl. Ex. H § II.F).

        The Settlement Agreement defined "Covered Conduct" as the conduct occurring during the period between December 1995 through November 2003—when Cornell Medical applied to the NIH for Grant 5M0 and allegedly submitted false statements and claims in connection with that grant. (Id. at § II.C). The Settlement Agreement also referenced the Complaint-In-Intervention for a more descriptive account of the "Covered Conduct." (Id.).

        Neither the Settlement Agreement nor the Complaint-In-Intervention addressed Cornell Medical's conduct with respect to retaliation. They also did not address any false claims in connection with Grant HDO for research projects on androgen metabolism." U.S. ex rel. Sarafoglou v. Weill Med. Coll., 451 F.Supp.2d 613, 618 (S.D.N.Y. 2006).



Back to Questions

[1] See, e.g., Andrew E. Shipley, Trends in False Claims Act Litigation, 2013 WL 1736890 at *10 (2013).


[2] See U.S. ex rel. Yong Wu v. Jefferson Med. Coll., 2:97-cv-03396-JP (E.D. Pa. 2000). The settlement agreement can be obtained from

[3] For example, the Committee on Publication Ethics (COPE), whose guidelines are often referenced by scientific publishers, states that it will not review a complaint against any member publisher regarding failure to follow COPE guidelines if the complaint "has been the subject of legal action". This position is unnecessary for the results of many U.S. lawsuits, and is detrimental to the objective of holding scientific publishers accountable for correcting the scientific literature based upon evidence produced from legal cases. (  last reviewed November 25, 2013.)

[4] Rule 26f report.


[5] U.S. ex rel. Sarafoglou v. Weill Med. Coll., 451 F.Supp.2d 613 (S.D.N.Y. 2006).


[6] “Res judicata: [Latin ‘a thing adjudicated’] 1. An issue that has been definitively settled by judicial decision." (Black's Law Dictionary, Ninth Edition, 2009).


[7] Taylor v. Sturgell, 553 U.S. 880, 892 (2008).


[8] Id. at 892 n.5 (“These terms have replaced a more confusing lexicon. Claim preclusion describes the rules formerly known as “merger” and “bar,” while issue preclusion encompasses the doctrines once known as “collateral estoppel” and “direct estoppel”) (emphasis added).


[9] See, e.g., Duhaney v. Att'y Gen. of the U.S., 621 F.3d 340, 347 (3d Cir.2010) (“Res judicata, also known as claim preclusion, bars a party from initiating a second suit against the same adversary based on the same ‘cause of action’ as the first suit”) (emphasis added).


[10] The Gilbert Law Dictionary, 1997.


[11] West's Encyclopedia of American Law, 1998 (emphasis added).


[12] See Endnote 1/EN1 for additional definition and explication of cause of action, and the related terms "claim" and "facts".


[13] Restatement (Second) of Judgments § 24 (1982) (emphasis added).


[14] A finding of fact is “[a] determination by a judge, jury, or administrative agency of a fact supported by the evidence in the record, [usually] presented at the trial or hearing <he agreed with the jury's finding that the driver did not stop before proceeding into the intersection>. - Often shortened to finding." (Black's Law Dictionary, Ninth Edition, 2009) (emphasis added).


[15] See, e.g., Anthony v. Marion Cnty. Gen. Hosp., 617 F.2d 1164, 1169-70 (5th Cir. 1980); see also Nelson Constr. Co. v. U.S., 2012 WL 1427488 at *4 n.7 (Fed. Cl. Apr. 24, 2012) (“A dismissal with prejudice constitutes a judgment on the merits for purposes of claim preclusion”); Chase Manhattan Bank, N.A. v. Celotex Corp., 56 F.3d 343, 345 (2d Cir. 1995) (“A voluntary dismissal with prejudice is an adjudication on the merits for purposes of res judicata”); but see Hodges v. Publix Super Mkts., Inc., 372 Fed. Appx. 74, 76 (11th Cir. 2010) (“[T]he res judicata doctrine may be qualified or even rejected when its application would contravene an overriding public policy or result in manifest injustice”) (internal citations omitted).


[16] “On the merits” can imply “judgment rendered after consideration of the facts and evidence of the entire case.”  Gilbert Law Dictionary, 1997.


[17] Restatement (Second) of Judgments § 19 (1982) (emphasis added).


[18] Black's Law Dictionary, Ninth Edition, 2009.


[19] Lawlor v. Nat'l Screen Serv. Corp., 349 U.S. 322, 327 (1955) (using the “underlying facts” definition of cause of action, rather than the “legal theory” definition).


[20] See Endnote 2/ EN2 for more terms associated with res judicata.


[21] Lawlor, 349 U.S. at 327 (emphasis added).

[22] Consent Judgments as Collateral Estoppel, Fleming James, Jr., 108 U. Pa. L. Rev. 173.


[23] Privity is "the connection or relationship between two parties, each having a legally recognized interest in the same subject matter. (Black's Law Dictionary, 2009).  A privy is "a person who is in privity with another. Traditionally, there were six types of privies: (1) privies in blood, such as an heir and an ancestor; (2) privies in representation, such as an executor and a testator or an administrator and an intestate person; (3) privies in estate, such as a grantor and grantee or lessor and lessee; (4) privies in respect to a contract - the parties to a contract; (5) privies in respect of estate and contract, ... (6) privies in law, such as husband and wife. The term also appears in the context of litigation ... it includes someone who controls a lawsuit though not a party to it; someone whose interests are represented by a party to the lawsuit; and a successor in interest to anyone having a derivative claim."  Black's Law Dictionary, 2009.


[24] Duhaney, 621 F.3d at 347 (emphasis added).


[25] U.S. ex rel. Sarafoglou v. Weill Medical College, 451 F.Supp.2d 613, (S.D.N.Y. 2006) (while the grants at issue may have differed with respect to the underlying "nucleus of facts", it is possible for different National Institute of Health grants to have some overlap in the underlying facts; thus, it can be expected that decisions about res judicata as relating to grants may be somewhat individualized, even with entirely different competing grant numbers).


[26] For a definition of "issue", see Endnote 3/EN3.


[27] Allen v. McCurry, 449 U.S. 90, 94 (1980) (emphasis added) (internal citations omitted).


[28] Cromwell v. County of Sac, 94 U.S. 351, 353 (1876).


[29] Taylor, 553 U.S. at 892 -893 (emphasis added).


[30] Restatement (Second) Judgments § 24 (1982).


[31] For additional detail, see Endnote 4/EN4.


[32]  Sarafoglou, 451 F.Supp.2d 613,


[33] Id. at 616-17.


[34] Hodges v. Publix Super Markets, Inc., 372 Fed. Appx. 74, 76 (11th Cir. 2010) (citing Garner v. Giarrusso, 571 F.2d 1330, 1336 (5th Cir. 1978)).


[35] Restatement (Second) of Judgments § 70 (1982) (emphasis added).


[36] A party may be relieved from a final judgment, order, or proceeding because of mistake, inadvertence, surprise, or excusable neglect; newly discovered evidence that could not have been discovered in time to move for a new trial with reasonable diligence; fraud, misrepresentation, or misconduct by an opposing party; a void or vacated judgment; a satisfied, released, or discharged judgment; application of the judgment is no longer equitable; or any other reason that justifies relief.  Fed. R. Civ. P. 60(b).


[37] Janneh v. GAF Corp., 887 F.2d 432, 436 (2d Cir. 1989), abrogated on other grounds by Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863 (1994).


[38] Westlake Invs., LLC v. MLP Mgmt., LLC, 842 F. Supp. 2d 1119, 1125 (S.D. Iowa 2012).


[39] Evans v. Jeff D., 475 U.S. 717, 727 (1986).


[40] Id.


[41] John Barkai, Elizabeth Kent & Pamela Martin, A Profile of Settlement, 42 Ct. Rev.: J. Am. Judges Ass’n 34, 34 (2006).


[42] Fastcase (Keyword searches;; April 2013).

[43] See, e.g., Robert R. Salman & Suzanne A. Salman, The Art of Settlement, 11 No. 4 Prac. Litigator 43, 45 (2000). 

[44] Stewart v. Colonial W. Agency, Inc., 105 Cal. Rptr. 2d 115, 119 (Cal. Ct. App. 2001); see also Cashmere & Camel Hair Mfrs. Inst. v. Saks Fifth Ave., 284 F.3d 302 (1st Cir. 2002) (where plaintiff chose to voluntarily dismiss a claim with prejudice and file an appeal after its other claims had been dismissed during summary judgment).


[45] Dean v. Riser, 240 F.3d 505, 512 (5th Cir. 2001) (citing Hidden Oaks Ltd. v. City of Austin, 138 F.3d 1036, 1053 (5th Cir. 1998)); see also Hughes v. Rowe, 449 U.S. 5, 15-16 (1980) ("The fact that the Court dismissed Plaintiffs' suit is not in itself a sufficient justification for the fee award [to the defendants]"); Anthony v. Marion Cnty. Gen. Hosp., 617 F.2d 1164, 1170 (5th Cir. 1980) (concluding that the plaintiff's failure to prosecute, while sufficient to support an involuntary dismissal, was insufficient to establish as a matter of law that the claim was frivolous or vexatious).


[46] Farrar v. Hobby, 506 U.S. 103, 111-12 (1992).


[47] The record, as used in this context, is “the official report of the proceedings in a case, including the filed papers, a verbatim transcript of the trial or hearing (if any), and tangible exhibits.”  Black’s Law Dictionary 598 (3rd Pocket ed. 2006).  The record is comparable to a docket.  See Black’s Law Dictionary at 221 (“A formal record in which a judge or court clerk briefly notes all the proceedings and filings in a court case”).


[48] The Court reduced the amount of time for discovery to less than the time that had been agreed to by the parties.

[49] See Com. v. DeHart, 650 A.2d 38, 47 n.10 (Pa. 1994).


[50] Pa St. R.P.C. Rule 3.1.


[51] See, e.g., Office of Disciplinary Counsel v. Price, 732 A.2d 599, 603 (Pa. 1999).


[52] Fed. R. Civ. P. 11(b)(2). 


[53] Fed. R. Civ. P. 11(b)(3). 


[54] Fed. R. Civ. P. 26(c).


[55] A person makes a misrepresentation when he makes "a false or misleading statement." The Oxford English Dictionary. (See also Gilbert Law Dictionary: "A false and misleading statement about a material fact, which may be grounds for rescinding a contract or for the recovery of damages in contract or tort.")  However, it is important to note that such a misrepresentation is not actionable.

[56] See generally Natalie D’Amora & David M. Laigaie, Opening Pandora’s Box: Civil Discovery and Evidence of Wrongdoing, The Legal Intelligencer, Oct. 28, 2009.


[57] Unrelated parties would by due process be allowed to have their own day in court to litigate the same causes of action and the same facts; thus, there is no res judicata claim or issue preclusion unless the same parties or their privies are involved in the new case. (See discussion of privity, above.)


[58] See Trans Pacific Ins. Co. v. Trans-Pacific Ins. Co., 136 F.R.D. 385, 391 (E.D. Pa. 1991) (“Although discovery may not be undertaken solely for the purpose of obtaining information for use in another proceeding, the parties may make any lawful use of information rightfully gathered during discovery”) (emphasis added).


[59]  Restatement (Second) of Judgments § 24, cmt. (f) (1982) (emphasis added).


[60] See also Restatement (Second) of Judgments § 24, illustration 12 (1982) (“The government fails in an action against a defendant under an antitrust statute for lack of adequate proof that the defendant participated in a conspiracy to restrain trade.  The government is not precluded from a second action against the same defendant in which it relies on conspiratorial acts post-dating the judgment in the first action, and may rely also on acts preceding the judgment insofar as these lend significance to later acts”) (emphasis added).

[61] See, e.g., Bois v. U.S. Dep’t of Health and Human Servs., Civ. Action No. 11-1563 (ABJ) (D.D.C. filed Mar. 2, 2012).


[62] Dismissal with prejudice does invoke res judicata, and, as noted above, res judicata has become associated, for practical purposes, with a judgment "on the merits". As the term "merits" can be defined as having a relationship to the evidence, non-attorneys could be misled into thinking that in cases settled and dismissed "with prejudice", findings of fact involving the evidence must have been made, or that the plaintiffs had "openly" conceded that there was evidence that was found against their position. This is apparently the situation for the facts presented here, in so much as the original defendants appear to be contending that the dismissal with prejudice disallows use of evidence in other proceedings, or in any way impedes such proceedings.


[63] 31 U.S.C. §§ 3729 – 3733


[64] See generally Fed. R. Civ. P. 26. 


[65] See Fed. R. Civ. P. 26(c). 


[66] In the Third Circuit, the burden is on the party seeking the protective order to show that it is “particularly needed to obviate a significant harm; broad allegations of harm will not suffice.”  Premium Payment Plan v. Shannon Cab Co., 268 F.R.D. 203, 204 (E.D. Pa. 2010).


[67] Fed. R. Civ. P. 26(c)(1).


[68] See Fed. R. Civ. P. 26(c). 


[69] Brittain v. Stroh Brewery Co., 136 F.R.D. 408, 413 (M.D.N.C. 1991). 


[70] See, e.g., U.S. v. IBM Corp., 70 F.R.D. 700, 701 (S.D.N.Y. 1976) (stating that motions for a protective order must be made before or on the date the discovery is due); Cleo Wrap Corp. v. Elsner Eng’g Works, Inc., 59 F.R.D. 386, 390 (M.D. Pa. 1972) (ordering that, upon plaintiff’s refusal to answer interrogatories upon an “unsupported assertion of confidentiality” unless defense counsel agrees that information will not be disclosed to the defendant or the public, plaintiff must file a motion for a protective order within ten days, otherwise plaintiff would be ordered to answer said interrogatories); but see Nestle Foods Corp. v. Aetna Cas. and Sur. Co., 129 F.R.D. 483, 487 (D.N.J. 1990) (stating a party’s untimeliness in filing motion for a protective order “may be excused when there is no opportunity to move for a protective order”).


[71] “’Good cause’ is established when it is specifically demonstrated that disclosure will cause a clearly defined and serious injury.”  Jon Feingersh Photography, Inc. v. Pearson Educ., Inc., 281 F.R.D. 234, 235-36 (E.D. Pa. 2012) (citing Glenmede Trust Co. v. Thompson, 56 F.3d 476, 483 (3d Cir. 1995)).


[72] “The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (A) forbidding the disclosure or discovery; (B) specifying terms, including time and place, for the disclosure or discovery; (C) prescribing a discovery method other than the one selected by the party seeking discovery; (D) forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters; (E) designating the persons who may be present while the discovery is conducted; (F) requiring that a deposition be sealed and opened only on court order; (G) requiring that a trade secret or other such confidential research, development, or commercial information not be revealed or be revealed only in a specified way; and (H) requiring that the parties simultaneously file specified documents or information in sealed envelopes, to be opened as the court directs.”  Fed. R. Civ. P. 26(c)(1)(A)-(H).


[73] See, e.g., Kuhns v. City of Allentown, 264 F.R.D. 223, 228 (E.D. Pa. 2010). 


[74] Id. (internal citations omitted).


[75] Id.


[76] See, e.g., Ericson v. Ford Motor Co., 107 F.R.D. 92 (E.D. Ark. 1985) (refusing to issue protective order which would “prevent plaintiff from disclosing [evidence obtained through discovery]” where defendant failed to prove sufficient likelihood of embarrassment or harm). 


[77] See, e.g., Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 328 (1979) (holding that res judicata allows a litigant only one opportunity to litigate an issue); see also Baltimore S.S. Co. v. Phillips, 274 U.S. 316, 325 (1927) (holding that a party must rely on an appeal, not relitigation, to correct errors in a judgment).


[78] Compare Harmon Indus., Inc. v. Browner, 191 F.3d 894, 904 (8th Cir. 1999) (holding doctrine of res judicata foreclosed EPA’s enforcement action after state agency had already adjudicated the matter), and U.S. v. ITT Rayonier, Inc., 627 F.2d 996, 1003 (9th Cir. 1990) (holding that the res judicata doctrine estopped the EPA from asserting a cause of action previously litigated in state courts), with U.S. v. Power Eng’g Co., 303 F.3d 1232, 1241 (10th Cir. 2002) (holding res judicata does not preclude agency action against a party where the state has already litigated the matter), and U.S. v. LTV Steel Co., Inc., 118 F. Supp. 2d 827, 835-36 (holding res judicata does not prevent the EPA from seeking violations when the state has already litigated the matter because the State action was for a violation of state law whereas the EPA is pursuing a federal violation, and because the EPA and state government lack privity).

[79] Fed. R. Civ. P. 8(c)(1). 


[80] See, e.g., Arizona v. California, 530 U.S. 392, 394 (2000).


[81] See, e.g., U.S. v. Sioux Nation of Indians, 448 U.S. 371, 433 (“It is well to remember that res judicata and its offspring, collateral estoppel, are not statutory defenses; they are defenses adopted by the courts in furtherance of prompt and efficient administration of the business that comes before them.  They are grounded on the theory that one litigant cannot unduly consume the time of the court at the expense of other litigants, and that, once the court has finally decided an issue, a litigant cannot demand that it be decided again”) (internal citations omitted); Commonwealth ex rel. Esenwein v. Esenwein, 33 A.2d 675, 678 (Pa. Super. Ct. 1943) (“Moreover, res adjudicata is a legal defense which must be raised in the initial proceeding or it is deemed to have been waived.  It cannot be made the basis of a collateral attack on a judgment or decree which is otherwise valid”) (internal citations omitted). 

[82] See discussion of settlement agreements, above.


[83] Montana v. U.S., 440 U.S. 147, 154 (1979) (quoting Schnell v. Peter Eckrich & Sons, Inc. v. Hazeltine Research, Inc., 365 U.S. 100, 111 (1969).


[84] Stauffer v. Brooks Bros., Inc., 619 F.3d 1321, 1328-29 (Fed. Cir. 2010). 


[85] Restatement (Second) of Judgments § 83 (1982) (emphasis added).


[86] Elements of adjudicatory procedure generally include "notice to persons who are to be bound by the adjudication", and "(b) The right on behalf of a party to present evidence and legal argument ... and to rebut ... (c) A formulation of issues of law and fact ... with respect to specified parties concerning a specific transaction, situation, or status ... the opportunity to present evidence may not be regarded as adequate unless the parties have the right of compulsory process, i.e., subpoena …". (Restatement (Second) Judgments § 83, citing Federal Administrative Procedure Act, 5 U.S.C. §§ 551 et seq., and in the Model State Administrative Procedure Act and state statutes similar to the latter.)

[87] U.S. v. Athlone Indus., 746 F.2d 977, 983 (3d Cir. 1984) (citing Donegal Steel Foundry Co. v. Accurate Prods. Co., 516 F.2d 583, 588 n.10 (3d Cir. 1975)). 


[88] Athlone, 746 F.2d at 984.


[89] Id. 


[90] Id. (emphasis added) (internal citations omitted). 


[91] Restatement (Second) of Judgments § 24 (1982).

[92] Restatement (Second) of Judgments § 24 cmt. d (1982).