Part I of this Note lays the foundation for the conclusions suggested above by setting forth some elementary probabilistic notions and establishing a measure of trial efficacy. The next part reviews some of the early suggested limitations on the application of Bernhard and, by analyzing the mutuality requirement and the Bernhard doctrine in probabilistic terms, demonstrates that the concerns underlying those initial reservations were not only sound, but require rejection of Bernhard.

Although the primary purpose of this Note is to expose the flawed analysis underlying Bernhard, a secondary . purpose is to demonstrate how probability theory can be applied to situations in which the mutuality issue arises. Thus, substantial attention is given in Part III to the application of probability theory to one of the classic exceptions to the mutuality requirement that has been cited as precedent for the Bernhard doctrine. This analysis establishes that mutuality is entirely consistent with its traditional exceptions and that these exceptions can be viewed as precedent for Bernhard only when analyzed with the same misplaced emphasis on outcome, rather than risk allocation, that initially led to the Bernhard doctrine. Finally, an examination of a recent decision purporting to adopt Bernhard illustrates how analysis without explicit attention to risk allocation persistently generates inappropriate rules of preclusion in multiple litigation.

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