The opinion of the court was delivered by: BOLDT
BOLDT, Senior District Judge.
Plaintiff has moved for partial summary judgment against defendants as to certain Findings of Fact and Conclusions of Law entered in the Washington State civil action of Ginsberg, et al v. Heglund, et al, King County Superior Court Cause No. 826781, entered February 22, 1972, on the basis of the doctrine of collateral estoppel by judgment. The Superior Court case was a suit by different plaintiffs against the same defendants as in this court. Whether plaintiff in this case may rely upon a judgment obtained by different plaintiffs against the same defendants as the basis for partial summary judgment presents a two-fold question, if the requirements for application of the doctrine of collateral estoppel are otherwise met:
(1) Whether mutuality of parties is required for application of the doctrine of collateral estoppel; and
(2) Whether collateral estoppel may be used offensively by plaintiff.
A landmark case dealing with mutuality, although the opinion therein speaks of res judicata or "claim preclusion" rather than collateral estoppel or "issue preclusion," is Bernhard v. Bank of America Nat'l Trust & Sav. Ass'n, 19 Cal.2d 807, 813, 122 P.2d 892, 895 (1942), in which Justice Traynor abandoned the requirement of mutuality of parties and set forth three criteria to be considered:
(1) Was the issue decided in the prior adjudication identical with the one presented in the action in question?
(2) Was there a final judgment on the merits?
(3) Was the party against whom the plea is asserted a party, or in privity with a party, in the prior adjudication? In dicta the Washington Supreme Court recognized the trend toward elimination of the mutuality requirement begun with Bernhard in Henderson v. Bardahl International Corp., 72 Wash.2d 109, 115, 431 P.2d 961, 967-8 (1967), which added a fourth question that must also be answered in the affirmative:
(4) Will the application of the doctrine not work an injustice on the party against whom the doctrine is to be applied?
Although collateral estoppel was not applied in the Henderson case because the issues were not the same as those in the prior case, the State Supreme Court made the following declaration:
We recognize that there are many cases where the issues of mutuality, privity, and the offensive-defensive distinction should not be permitted to obstruct the application of collateral estoppel by judgment. 72 Wash.2d at 116, 431 P.2d at 966.
Based upon that language the Washington Courts of Appeal has recognized that the doctrine of collateral estoppel may be applied where mutuality of parties does not exist. Lucas v. Velikanje, 2 Wash.App. 888, 471 P.2d 103 (1970) (collateral estoppel applied without mutuality of parties); Gibson v. Northern Pacific Ben. Ass'n. Hosp., Inc., 3 Wash.App. 214, 473 P.2d 440 (1970) (estoppel not applied because issue not identical, but appellate court recognized mutuality of parties was not required). Federal courts have frequently recognized that mutuality is not a prerequisite to collateral estoppel since the decision of Judge Hastie in Bruszewski v. United States, 181 F.2d 419 (3rd Cir.), cert. denied 340 U.S. 865, 71 S. Ct. 87, 95 L. Ed. 632 (1950).
No opinion of the Washington Appellate or Supreme Court recognizing offensive use of collateral estoppel has been cited to, or independently discovered by, this court. However, based upon the previously quoted language from Henderson, this court is of the opinion that the Washington Supreme Court would recognize offensive use of the doctrine of collateral estoppel in an appropriate case. State courts (e.g. Nevarov v. Caldwell, 161 Cal.App.2d 762, 327 P.2d 111 (1958)) and federal courts applying state law (e.g. Mackris v. Murray, 397 F.2d 74 (6 Cir. 1968), applying Michigan law) which have refused to apply the collateral estoppel doctrine affirmatively have generally done so in single accident personal injury cases involving separate suits by multiple plaintiffs, upon the rationale that it would be unjust to allow subsequent plaintiffs to rely on the establishment of liability against defendant by a different plaintiff. However, offensive use of the doctrine was allowed by Judge Hall in just such a case, United States v. United Air Lines, Inc., 216 F. Supp. 709 (D.Nev.1962), aff'd sub nom., United Airlines, Inc. v. Wiener, 335 F.2d 379 (9th Cir.), cert. dismissed, 379 U.S. 951, 85 S. Ct. 452, 13 L. Ed. 2d 549 (1964), which case also lacked mutuality of parties. That case involved an airline crash, and the court found that all plaintiffs were so similarly situated that the liability of defendants was the same as to all plaintiffs. The 9th Circuit Court of Appeals specifically adopted the District Court's treatment of the issue of mutuality, and by affirmance of that ...