Arguing that the Sixth Circuit had already settled the question in this case, that sister circuits were in agreement, and that the leading treatise on class actions also concurred, CCL President told Judge Walter H. Rice that the defendants in a class action were mistaken when they argued that bifurcation of a toxic tort case necessarily violated the Reexamination Clause of the Seventh Amendment.

     In the now 14-year-old case, In re Behr Dayton Thermal Prods. LLC, homeowners had brought property damage claims based on chemicals dumped from nearby plants. Just weeks before trial of class-wide issues, the defendants again raised Seventh Amendment issues with the procedure, arguing that the danger that a second jury would reexamine issues determined by a first jury was too great to permit the case to go forward as a class action. The judge had determined that the case would be split into two phases. The first phase would try principles of negligence to establish defendant responsibility and general causation, establishing that the dumped chemicals were capable of the alleged damage. If the plaintiffs prevailed, then individual trials would take place in which each class member would have to show that their homes were damaged by one or more defendants and what compensation would be appropriate. 

     On behalf of the plaintiff class, Peck explained that first jury's findings were binding on the second jury in a jury instruction would prevent any Reexamination Clause issue. In a 2018 decision, the Sixth Circuit, in the very case before the district court, had said as much. Peck argued that the defendants' issue was with that appellate decision, which was mandatory precedent under the law of the case and mandate rules so that the district court had no choice but to follow it. Moreover, Peck said, the defendants' issue is not really a Seventh Amendment issue but an objection to the court's case management choices, which is tested by whether the court abused its discretion. 

      The judge chose to take the issue under advisement.