Opposition — Keller v. McDaniel

Office -Supreme Court,

FILED

No. 82-1523 APR 1983

us.)

AS,

! me CLERK

3n the

Supreme Court of the United States

Ocroser Term, 1982

IN RE: JOHNS-MANVILLE ASBESTOS CASES

APPEAL OF: DR. SAMUEL 8S. KELLER

DR. SAMUEL 8. KELLER,

Petitioner,

vs.

JOHN D. McDaNIEL, et al.,

Respondents.

On Petition for Writ Of Certiorari To The

United States Court Of Appeals

For The Seventh Circuit

BRIEF OF RESPONDENTS IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

Rosert J. Cooney

Coongy anp Stenn

77 West Washington Street

Suite 805

Chicago, Illinois 60602

(312) 236-6166

(Counsel of Record for Respondents)

Doris Apkins CARTER

Cooney anp SrTenn

77 West Washington Street

Suite 805

Chicago, Illinois 60602

(312) 236-6166

|

The Scheffer Press, Inc.—(312) 263-6850

TABLE OF CONTENTS

PAGE

TABLE OF AUTHORITIES ou... cccssssseeseeseseeeseneses i

STATEMENT OF THE CASE uc cccscsseeseseneneeseees 2

SUMMARY OF ARGUMENT owen 8

ARGUMENT:

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ne ea caccaicichals chai icon chtatatacbpanelen dds deneiebecatcaaten tenon thaitarigamopnapen 7

SUIT AANDIITUNIT . iiusitccttsicristnlasiiss dntaihnaceriihgunabuanbentestiitedninboamees 11

TABLE OF AUTHORITIES

CasEs

Alexander v. United States, 201 U.S. 117 Lame e

Allico National Corporation v. Amalgamated Meat

Cutters & Butcher Workmen of North America,

BE ae UE CEU CR, BGGB) sericiitetcinaniieeseressetnnevnnense 10

American Cyanamid Co. y. Lincoln Laboratories,

Inc., 403 F.2d 486 (7th Cir. 1968) ...csccccsesseeeereees 10

Borden Co. v. Sylk, 410 F.2d 483 (8rd Cir. 1969) .... 7

Clean Air Coordinating Committee v. Roth-Adam

Fuel Co., 465 F.2d 323 (7th Cir, 1972) wcccscssssereeres 10

Cobbledick v. United States, 309 U.S. 323 (1940) .... 4

Covey Oil Company v. Continental Oil Company, 340

F.2d 993 (10th Cir. 1965), cert. denied, 380 U.S.

EPR RIED | Scvsstesctoniveinsheotiantbaiedidabastiniinceprestspiocsitetinved 4, 5, 6,7

DiBella v. United States, 369 U.S. 121 (1962) ......... 5

Gardner v. Westinghouse Broadcasting Co., 437 U.S.

TEP: TRIPOD Dy Suntstneenniniudapbneclaccnsdsnad dbcsincienichiiailanadabitensenteintcesss 3

Gialde v. Time, Inc., 480 F.2d 1295 (8th Cir.

SITIES sieesionantidibedaises eccipeabaasteosaesielielandeaienapauoniationbectyiek 7

ii

PAGE

In Re Benjamin, 582 F.2d 121 (1st Cir. 1978) «00000 7

International Products Adhinill v. Koons, 325 F.2d

GES CRG Cie. TRGB) reccescsoscrsccsecsovsentonerpecssiosvssvessiisenvinies 8

Kaufman v. Réeletein, 539 F.2d 811 (2nd Cir.

STE) tevsetisaestnsinresisnnnpinctilaenaiimnienigianninnamaiaine 6

Manuel San Juan Co. v. American International Un-

derwriters Corp., 331 F.Supp. 1050 (1971) aff’d

on other grounds, 494 F.2d 317 (1974) ....sssssssevrereees 10

North Carolina Association of Black Lawyers v. North

Carolina Board of Law Examiners, 538 F.2d 547

SOs Gi, TGTID ssccoscccstssctsnscnsinciccineesncscsnncemnenenisnsiansnesitdia 6

Rodgers v. United States Steel Corp., 541 F.2d 365

CEG CER. TOUGE | cecnismisistncstineninsinsthiicniiemenuiniapiaealian 8

Ryan v. C.1.R., 517 F.2d 13 (1975), cert. denied,

GE UE, GER CURIE) cccctstnientsninsistanincininiaisisiaiguiiaias 6

Switzerland Cheese Association, Inc. v. E. Horne’s

Market, Inc., 385 U.S. 23 (1966) .....ssccessseseserceesereessenesee 9

Time, Inc. v. Ragano, 427 F.2d 219 (5th Cir. 1970) .... 10

United States v. Anderson, 464 F.2d 1390 (D.C. Cir.

TIPEUD . sdsdsviticonssalccseiieneddhcataleniapacdacaiammentdamaanmtalis 7

United States v. Feeney, 641 F.2d 821 (10th Cir

DDUOD ) cil tiliscsviinsaphiccinendituainstsinidebinniaenaiingennaiins 5

United States v. Fried, 386 F.2d 691 (2nd Cir

TE) | sijuiclcsctessitiltieinsichielealibuittiaehibiisiiadabitabbbas cinguisindaaiianalata 6,7

United States v. Ryan, 402 U.S. 5380 (1971)... 4, 5,6

STATUTES

SD a BEIM: erteotsnssibihersesvtitalintnenniutstlacnvecatiiindiiel 2, 4, 6, 7,11

28 U.S.C. $1292 (8) (1) crrccrsorvssssssvserssssnssvessseseseesees 2, 6, 8, 10, 11

In Tue

SUPREME COURT OF THE UNITED STATES

Octoser Term, 1982

No. 82-1523

IN RE: JOHNS-MANVILLE ASBESTOS CASES

APPEAL OF: DR. SAMUEL S. KELLER

DR. SAMUEL 8S. KELLER,

Petitioner,

vs.

JOHN D. MeDANIEL, et al.,

Respondents.

—

On Petition for Writ Of Certiorari To The

United States Court Of Appeals

For The Seventh Circuit

BRIEF OF RESPONDENTS IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

—2—

STATEMENT OF THE CASE

The underlying case was brought in the United States

District Court for the Northern District of Illinois on

behalf of the respondents who are former employees and

widows of former employees of the Johns-Manville Cor-

poration plant in Waukegan, Illinois for injuries and

deaths which occurred as a result of exposure to asbestos

at the plant. The Petitioner was a plant physician at the

Waukegan plant from 1923 until 1954, during which time

he performed physical examinations and caused chest

x-rays to be taken of respondents and respondents’ de-

cedents.

In February of 1982, attorneys for respondents learned

of Petitioner’s whereabouts, contacted him, and obtained

a court-reported statement from him at his home. Re-

spondents subsequently noticed his deposition for April

1, 1982. Before the deposition was to go ahead, counsel

who had since been retained to represent Petitioner ob-

tained permission from the district court to continue the

deposition, so that he would have an opportunity to be-

come familiar with the litigation.

On August 3, 1982, six (6) days before the deposition

was to go ahead for a second time, Petitioner, through

his attorney, presented to the district court his Motion to

Enjoin the Taking of the Oral Deposition of Dr. Samuel

S. Keller on the grounds that the deposition would sub-

ject Petitioner to potential health hazards. The district

court denied his motion.

Petitioner then appealed to the Court of Appeals for

the Seventh Circuit under 28 U.S.C. $1292 (a)(1) and

28 U.S.C. §1291. The Seventh Circuit ordered the parties

to submit memoranda on jurisdiction, specifically address-

wai tides

ing the question of whether “the district court order is

really tantamount to an injunction which is appealable

as of right.” On December 9, 1982, the Seventh Circuit

held that the order of the district court appealed from

was a discovery order. The court then dismissed the ap-

peal, concluding that they were without jurisdiction to

hear it.

SUMMARY OF ARGUMENT

The Petition for Writ of Certiorari should be denied,

because the decision of the Court below denying appeal-

ability follows the applicable decisions of this Court and

is not in conflict with decisions of other courts of appeals.

Petitioner would have this Court believe that conflict

on the question of the jurisdiction of the Court of Ap-

peals to entertain the appeal of a non-party from an

order directing the non-party to submit to a deposition

now exists between the Tenth, Seventh, Fourth and Sec-

ond Circuits. A survey of the case law shows that no

such conflict exists.

Petitioner cites the decision by the Court below as

being in direct conflict with the Tenth Circuit’s decision

in Covey Oil Company v. Continental Oil Company, 340

F.2d 993 (10th Cir. 1965), cert. denied, 380 U.S. 964, 85

S.Ct. 1110, 14 L.E.2d 155 (1965). The Court in Covey Oil

did hold that a trial court’s denial of a motion to quash

subpoenaes issued to non-party witnesses was appealable

under 28 U.S.C. §1291. However, the viability of the

Covey Oil case has been questioned.

In United States v. Ryan, 402 U.S. 530 (1971), this

Court upheld the long standing rule that one to whom

a subpoena is directed may not appeal the denial of a

motion to quash that subpoena, but must refuse to com-

ply and subject oneself to being cited for contempt in

order to obtain a right to review. Cobbledick v. United

States, 309 U.S. 323 (1940); Alexander v. United States,

201 U.S. 117 (1906).

[We have consistently held that the necessity for

expedition in the administration of the criminal law

justifies putting one who seeks to resist the produc-

ay es

tion of desired information to a choice between com-

pliance with a trial court’s order to produce prior

to any review of that order, and resistance to that

order with the concomitant possibility of an adjudi-

cation of contempt if his claims are rejected on ap-

peal.

United States v. Ryan, supra, at 532-533.

Petitioner cites this Court’s decision in DiBella v.

United States, 369 U.S. 121 (1962), as support for the

Covey Oil case. In DiBella v. United States, supra, this

Court held that immediate review was available from a

denial of a pretrial motion for the return of seized prop-

erty. However, in United States v. Ryan, 402 U.S. 530

(1971), this Court distinguished its decision in DiBella

from cases like Covey Oil and the instant case. This

Court noted that the DiBella case was one of a limited

class of cases where denial of immediate review would

render impossible any review whatsoever of an indivi-

dual’s claim. In the instant case, as in Covey Oil, im-

mediate review is available from a contempt proceeding.

The Tenth Circuit has subsequently questioned its own

decision in the Covey Oil case. In United States v.

Feeney, 641 F.2d 821 (1981), a non-party’s motion to

quash a subpoena duces tecum was denied and appealed.

The appellant argued that the Covey Oil decision applied.

The Tenth Circuit noted that the Covey Oil rule had been

criticised. The Court went on to note that this Court

had consistently held that an order denying a motion to

quash a subpoena is not final and that the subpoenaed

party is to make the choice between compliance and re-

sistance with the possibility of contempt, citing United

States v. Ryan, 402 U.S. 530 (1971). The Court then held

that the denial of the motion to quash the subpoena was

not reviewable.

er em

The Seventh, Fourth and Second Circuits have all fol-

lowed this Court’s decision in United States v. Ryan, 402

U.S. 530 (1971), and its predecessors. The ruling of the

Court below is in line with previous decisions in the

Seventh Cireuit. In Ryan v. C.LR., 517 F.2d 13, (7th

Cir. 1975), cert. denied, 423 U.S. 892, 96 S.Ct. 190, 46

L.ED.2d 124 (1975), the Court upheld the rule that a

non-party wishing to appeal an order compelling testi-

mony must refuse to answer and subject himself to con-

tempt, citing Alexander v. United States, 201 U.S. 117

(1906).

Although Petitioner states that the Fourth Cireuit de-

cision in North Carolina Association of Black Lawyers

v. North Carolina Board of Law Examiners, 538 F.2d 547

(4th Cir. 1976) cited the Covey Oil decision with approval,

that Court in fact came up with an opposite result. In

that case non-party movants were refused a protective

order forbidding certain discovery. Although the appel-

lants cited to the Covey Oil decision, the Court stated

that United States v. Ryan, 402 U.S. 530 (1971), was the

foremost precedent on point. The Court then went on to

hold that the order was not appealable under either 28

U.S.C. §1291 or 28 U.S.C. 1292, and that the appellant

must either comply or suffer contempt sanctions.

The Second Circuit has on several occassions expressly

rejected the Covey Oil decision in favor of this Court’s

long standing review-through-contempt rule. United

States v. Fried, 386 F.2d 691 (2nd Cir. 1967); Kaufman

yv. Edelstein, 539 F.2d 811 (2nd Cir. 1976). The Petitioner

attempts to distinguish the Fried case from the instant

case ou the basis that the Court had reservations about

the sincerity of that particular appellant’s motives. How-

=

ever, the language in the opinion reveals that the Court

in Fried was not questioning that individual’s motives in

particular, but was following the historic rule that a wit-

ness’ sincerity should be put to test before allowing him

an opportunity for review.

With the number of appeals having increased almost

70% in the last five years,...., as against the much

smaller growth in district court litigation, this is no

time to weaken the historic rule putting a witness’

sincerity to test of having to risk a contempt cita-

tion as a conditio:. to appeal, however harsh its ap-

plication may seem to appellant here.

United States v. Fried, swpra, at 645.

Four other circuits have also expressly rejected the

Covey Oil decision and have followed this Court’s review-

through- contempt doctrine of Alexander and its progeny.

In Re Benjamin, 582 F.2d 121 (1st Cir. 1978); Borden Co.

v. Sylk, 410 F.2d 843 (3rd Cir. 1969) ; Gialde v. Time, Inc.,

480 F.2d 1295 (Sth Cir. 1973); United States v. Anderson,

464 F.2d 1390 (D.C. Cir. 1972).

The decision of the Court below regarding appealabili-

ty under 28 U.S.C. $1291 is not in conflict with the deci-

sions of other courts of appeals and it does not conflict

with the applicable decisions of this Court. The decision

in the instant case follows the great weight of authority.

The only decision cited by Petitioner which is actually

in conflict with the decision in the instant case is of ques-

tionable vitality. Therefore, review by this Court is not

necessary.

II.

Petitioner’s argument that the decision of the Court of

Appeals in the instant case is in conflict with the statu-

tory language of 28 U.S.C. §1292 (a)(1) must be premised

on an assumption that the district court’s order denying

the motion to enjoin the taking of Petitioner’s deposition

is tantamount to a refusal of an injunction. Petitioner’s

bold assumption ignores the fact that the precise ques-

tion before the Court below was whether the order did

constitute a refusal of an injunction. Furthermore, the

case law interpreting the language of 28 U.S.C. $1292

(a)(1) makes it clear that the order entered by the dis

trict court in the instant case was merely an order regu-

lating the conduct of discovery and was not an order re-

fusing an injunction within the meaning of the statute.

Petitioner describes his motion to enjoin the taking of

his deposition as a request for a permanent injunction.

However, orders concerning the conduct of the litigation

unrelated to the substantive issues in the action are not

injunctions within the meaning of 28 U.S.C. §1292 (a)(1).

International Products Corp. v. Koons, 325 F.2d 403, 406

(2nd Cir. 1963); Rodgers v. United States Steel Corp., 541

F.2d 365, (3rd Cir. 1976).

The Court in International Products Corp. v. Koons,

supra, dismissed an appeal from an order that sealed de-

positions and enjoined the defendants, the attorneys, and

others from disclosing any of the testimony in the depo-

sition. Following their prior decisions and previous deci-

sions of this Court, the Second Circuit held that 28 U.S.C.

§1292 (a)(1) was to be read as relating to injunctions

which give or aid in giving some or all of the substantive

relief sought by the complaint, and not as including re-

straints or directions in orders concerning the conduct of

the parties or their counsel before trial, unrelated to the

substantive issues in the case.

As explained in Baltimore Contractors, Inc. v. Bodin-

ger, supra, 348 U.S. at 181, 75 S.Ct. at 252 and

Grant v. United States, swpra, 282, F.2d at 169, such

a constriction provides a better fit with the language

of the statute, ‘Where, upon a hearing in equity in a

district court’ as this first appeared in §7 of the

Evarts Act, C. 517, 26 Stat, 828 (1891) and later in

the Judicial Code of 1911, $129, 36 Stat. 1134, with

the conclusion that the omission of the words ‘in

equity’ in the Act of February 13, 1925, 43 Stat. 937

‘was not intended to remove that limitation,’ Schoe-

namsgruber v. Hamburg American Line, 294 US.

454, 457, fn.3; 55 S.Ct. 475, 477, 79 L.Ed. 989 (1935) ;

and with the policy considerations which led Con-

gress to create this exception to the federal final

judgment rule.

Id. at 406-407.

In Switzerland Cheese Association, Inc. v. E. Horne’s

Market, Inc., 385 U.S. 23, 25 (1966), this Court reaffirmed

that orders that do not touch on the merits of the claim,

but only relate to pretrial procedures are not “interlocu-

tory” within the meaning of 28 U.S.C. $1292 (a)(1), ex-

pressing concern for protecting the integrity of the Con-

gressional policy against piecemeal appeals. In Gardner

v. Westinghouse Broadcasting Co., 487 U.S. 478 (1978),

this Court cited the earlier decision in Switzerland with

approval. In dismissing an appeal from a denial of class

certification, this Court held that the statute created a

narrow exception from the established policy against

piecemeal appeals and that the exception did not embrace

orders that have no direct or irreparable impact on the

merits of the controversy. 7d. at 480, 482.

The order in the instant case refusing Petitioner’s mo-

tion to enjoin the taking of his deposition did not refuse

ultimate injunctive relief sought by the claimants. The

aii

order was totally unrelated to the substantive issues in

the action and merely regulated the conduct of discovery.

The Courts have held that an order directing the parties

to proceed with due diligence to the taking of depositions

is not appealable, (Manuel San Juan Co. v. American

International Underwriters Corp., 331 F.Supp. 1050

(1971), aff’d on other grounds, 494 F.2d 317 (1974)), and

that an order quashing the taking of a deposition does

not constitute an interlocutory injunction within the mean-

ing of 28 U.S.C. $1292 (a)(1), (Time, Inc. v. Ragano,

427 F.2d 219 (5th Cir. 1970)).

The cases cited by Petitioner do not lend support to

his position that the district court order was an order

refusing an injunction. In Allico National Corporation

v. Amalgamated Meat Cutters & Butcher Workmen of

North America, 397 F.2d 727 (7th Cir. 1968) and Clean

Air Coordinating Committee v. Roth-Adam Fuel Co., 465

F.2d 323 (7th Cir. 1972), the Courts found that the orders

appealed from were in effect refusals for preliminary

injunctions, and were thus appealable under 28 U.S.C.

$1292 (a)(2). However, in both of those cases an injune-

tion was the substantive relief sought by the claimants,

so the orders refusing the injunctive relief did relate to

the merits of the plaintiffs’ claims and did not merely

relate to the taking of a step in the litigation. In Ameri-

can Cyanamid Co. v. Lincoln Laboratories, Inc., 403 F.2d

486 (7th Cir. 1968) the issue was whether there was juris-

diction under 28 U.S.C. §1292 (a)(4). The Court did

discuss 28 U.S.C. $1292 (a)(1), but their focus was on

the lack of a finality requirement which is not the issue

here.

The decision of the Court of Appeals in the instant

case regarding appealability under 28 U.S.C. $1292 (a)

aw 1}

(2) follows the applicable decisions of this Court and the

decisions of the other Circuits. Therefore, review by this

Court is unnecessary.

CONCLUSION

There is no valid reason why this Court should review

the decision of the Court below, since the decision follows

the applicable decisions of this Court and is in line with

decisions in the other Circuits on appealability under

28 U.S.C. §1291 and 28 U.S.C. $1292(a)(1). The order

of the district court in the instant case is not appealable

under 28 U.S.C. §1291, since it is merely a discovery

order which lacks the requisite finality. Neither is it

appealable under 28 U.S.C. §1292(a)(1), since the order

does not fall into the narrow exception of subsection

(1) allowing appeals from interlocutory orders of dis-

trict courts refusing injunctions. The order was not

tantamount to a refusal of an injunction, since it merely

regulated the conduct of discovery and did not relate

to the substantive issues in the case.

The Petitioner has not been denied access to review

of the order of the district court. The cases are clear

that he may obtain review from a contempt citation

if he chooses to refuse to testify. This Court is aware

of the problems facing a non-party desiring review of

such an order. However, in order to protect the estab-

lished policy against piecemeal appellate review which

interrupts the litigation process, this Court has decided

and continues to hold that a non-party may only obtain

review from an order such as was entered by the district

court in the instant case through review from a con-

tempt citation.

i” eae

For all the foregoing reasons, the Petition for a Writ

of Certiorari should be denied.

Respectfully submitted,

Rosert J. Coonry

Cooney AND STENN

77 West Washington Street

Suite 805

Chicago, Illinois 60602

(312) 236-6166

(Counsel of Record for Respondents)

Doris ApKINs CARTER

Cooney aND STENN

77 West Washington Street

Suite 805

Chicago, Illinois 60602

(312) 236-6166