Opposition Brief — Able v. Upjohn Co.

No. 87-1297

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1987

JOHN DAVID ABLE, a minor under the age of fourteen (14)

years, by his guardian ad litem, Gloria E. Day,

Petitioner

versus

THE UPJOHN COMPANY, INC.,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FOURTH CIRCUIT

RESPONDENT'S BRIEF IN OPPOSITION

H. SIMMONS TATE, JR.

Sinkler & Boyd

Professional Association

P.Q. Box 11889

Columbia, South Carolina 29211

(803) 779-3080

Attorneys for Respondent

eateries

QUESTION PRESENTED

Where the jurisdictional facts at the time of final judgment

supported the exercise of the district court’s jurisdiction, did

the Court of Appeals properly affirm the district court’s

jurisdiction to enter final judgment despite a defect in

removal?

LIST OF PARTIES

The parties to the proceeding below were:

Petitioner: John David Able, a minor under the

age of fourteen (14) years, by his

guardian ad litem, Gloria E. Day.

Respondent: The Upjohn Company, misnamed in

' the proceedings below as “The Up-

john Company, Inc.”

James H. Blair, who was originally a party defendant in

the district court, was not a party in the Court of Appeals.

The case against him was remanded to the State court by the

district court on July 15, 1986, and he was not a party when

judgment was entered by the district court.

The Upjohn Company is a corporation. It has no parent

company. Its subsidiaries (except wholly owned subsidiaries)

and affiliates are: Asgrow Mexicana, S.A. de C.V.; CareTec;

Cobb-Vantress, Inc.; Japan Upjohn Limited; Korea Upjohn

Ltd.; NorthCoast Hospital Home Care; P. T. Upjohn Indo-

nesia and Upjohn Nigeria Pty, Limited.

ili

TABLE OF CONTENTS

Page

Coanlind THINS 66.550 dein Sed eae Ee i

PR En RET EE ee er hee es lll

Fee igs cia vp case eedsc stan Dhveswenyes Vv

Table of Cases and Other Authorities ................ vii

eee a ee er ne Pe re ee 1

| er ee eT ee Tr rer Te ores 3

Reasons Why the Petition Should be Denied .......... 3

CII aig ceeela eo css ke hee ee eh Re ee 8

TABLE OF CASES AND OTHER AUTHORITIES

Cases

Able v. The Upjohn Company, Inc., 829 F.2d 1330

dita re en nue keh ode 366d s's0e0e ess 2,4

American Fire & Casualty Co. v. Finn, 341 U.S. 6

Pdi cestuaaaWee se wha Od US bees ddehbeses 2, 4, 5, 6

Brooks v. Medtronic, Inc., 760 F.2d 1227 (4th Cir. 1984) 2, 7

Carnegie-Mellon University v. Cohill, __— U.S. _____.,

ee oli i akan ee nae eset aoe. 4

Gould v. Mutual Life Insurance of New York, 790 F.2d

769 (9th Cir.) cert. denied, ____ U.S. _____., 107

S.Ct. 580, 98 L.Ed.2d 582 (1986) ...............0000. 5

Grubbs v. General Electric Credit Corp., 405 U.S.

0 EERE a ee 5, 6

Hoffman v. Blaski, 363 U.S. 355 (1960) ................. 4

La Chemise Lacoste v. The Alligator Company, Inc.,

506 F.2d 339 (3d Cir. 1974), cert. denied,

RS ee ee are 3, 4

Lewis v. Time, Inc., 710 F.2d 549 (9th Cir. 1983) ......... 6

Mackay v. Uinta Development Co., 229 U.S. 173 (1913) 5, 6

Sheeran v. General Electric Co., 593 F.2d 93 (9th Cir.),

cert. denied, 444 U.S. 868 (1979) .................... 6

Smith v. City of Picayune, 795 F.2d 482 (5th Cir. 1986) ..6

Stanback v. Parke, Davis and Company, 657 F.2d

Ee | RP ee 2,7

Union Planters National Bank of Memphis v. CBS, Inc.,

pe & 5 1 k,n rer 4

Statutes

Ree Ee SO EET dictkennencnncucseness 1,2,3,4,7

po RN a rr rT Le @

Other Authorities

1A Moore’s Federal Practice 0.157[11.-3], at

CU yo aa: Seine tee wa deer eee sudeté einen eh 6

vii

STATEMENT OF THE CASE

The petitioner’s statement of the case omits certain

important background facts.

This case was a companion to other related cases result-

ing from the same circumstances (petitioner’s mother’s in-

gestion of a drug prescribed by her physician.)

On April 22, 1983, petitioner’s mother, Mrs. Cecelia Able,

brought suit in Federal court against The Upjohn Company.

After discovery and Upjohn’s motion for summary judgment,

Mrs. Able moved for and was granted a voluntary dismissal

on December 19, 1984.

In March 1985, Mrs. Able brought a new suit, and Mr.

Able (petitioner’s father) and the petitioner brought sepa-

rate suits, all in State court. Mr. and Mrs. Able’s suits named

only Upjohn as a defendant; the petitioner’s suit named both

Upjohn and the prescribing physician, Dr. James H. Blair.

All three complaints alleged against Upjohn identical causes

of action and specifications of alleged wrongdoing.

Upjohn removed all three cases on April 11, 1985. There

was complete diversity of citizenship in Mr. and Mrs. Able’s

cases, and removal was not challenged. Upjohn removed the

petitioner’s suit under 28 U.S.C. § 1441(c) on the ground that

the claim against Upjohn was separate from and indepen-

dent of the claim against Dr. Blair and involved separate

“wrongs.”

Subsequently, on October 28, 1985, the district court

entered an order, consented to by the Ables’ and Upjohn’s

counsel, consolidating the three cases and ordering that the

discovery developed in Mrs. Able’s first suit could be used in

the new suits.

Petitioner filed his motion to remand on February 25,

1986.

At a hearing on April 15, 1986, on the petitioner’s claim

to remand his suit, Dr. Blair moved to sever the claim against

him and remand it to State court. At the hearing, the district

judge indicated he would deny petitioner’s remand motion

and grant Dr. Blair’s motion. An order denying the peti-

tioner’s motion for remand was issued the same day. The

petitioner neither pursued an interlocutory appeal under 28

U.S.C. § 1292(b), nor sought review in the Court of Appeals by

writ of mandamus. The district court, exercising the discret-

ion granted by 28 U.S.C. § 1441(c), entered the order remand-

ing the claim against Dr. Blair on July 17, 1986. Again, peti-

tioner sought no interlocutory appeal or writ of mandamus.

Asa result of the remand of the claim against Dr. Blair,

there was complete diversity between the remaining parties

in the district court after July 17, 1986.

Subsequently Upjohn moved for summary judgment. At

the hearing, petitioner withdrew a specification of his com-

plaint, leaving as the only ground for his claim against Up-

john the failure to give a patient warning to the petitioner’s

mother. The district court granted Upjohn’s motion on the

basis of settled law that the manufacturer of a prescription

drug has a duty to warn only the prescribing physician and

not the patient. See Brooks v. Medtronic, Inc., 750 F.2d 1227

(4th Cir. 1984); Standack v. Parke, Davis and Company, 657

F.2d 642 (4th Cir. 1981).

Thereafter, petitioner appealed to the Court of Appeals

for the Fourth Circuit, raising only the removal issue. A

unanimous panel of the Fourth Circuit affirmed, and peti-

tioner’s petition for rehearing and suggestion for rehearing

en banc were denied.

The opinion of the Court of Appeals is reported at 829

F.2d 1330. The Court did not unequivocally hold that removal

was improper or that the district judge committed reversible

error in failing to remand. Although the Court did state that

the statute and cases “would have supported remand” (p.

1332), it cautioned that “clear lines are difficult to draw” (p.

1333). It concluded, however, that removal was of “dubious

propriety” and that the district court should have returned

the entire case to State court (p. 1333).

Despite “doubts ... about the initial propriety of the

removal” (p. 1333), the Court of Appeals affirmed the sum-

mary judgment. Citing American Fire & Casualty v. Finn,

341 U.S. 6 (1951), and other cases, the Court held that the

judgment “works no expansion of federal jurisdiction” and

should be affirmed in the interests of judicial economy. When

summary judgment was entered, there was complete diver-

sity between the parties, and therefore the case would have

A

been within the Federal court’s jurisdiction had it been

brought in the posture it had at the time of judgment. The

Court pointed out that the petitioner failed to seek an inter-

locutory appeal under 28 U.S.C. § 1292(b), and thus ran the

risk that the district court would enter a judgment on the

basis of complete diversity between the parties. Responding

to the argument that an interlocutory appeal is not a matter

of right and requires certification by a district judge, the

Court stated that if a district court withheld certification ina

doubtful case, the appellate court would examine the appeal

in the light of that fact.

Since the case had proceeded to judgment on the merits

and the principles of federal jurisdiction remained uncom-

promised, considerations of judicial economy supported

affirmance.

SUMMARY OF ARGUMENT

The Fourth Circuit’s decision in this case

(a) is not in conflict with other circuits;

(b) is supported by prior decisions of the Supreme

Court of the United States and other circuits;

(c) works no expansion of federal jurisdiction;

and

(d) is a reasonable application of the doctrine of

judicial economy.

REASONS WHY THE PETITION SHOULD BE DENIED

1. The decision is not in conflict with other circuits.

The petitioner asserts that the decision is in conflict with

the Third Circuit’s decision in La Chemise Lacoste v. The

Alligator Company, Inc., 506 F.2d 339 (3rd Cir. 1974), cert.

denied, 421 U.S. 937 (1975), where the Court, on appeal from a

final judgment, reversed the trial court’s refusal to remand.

That is the only case and the only circuit which the petitioner

asserts is in conflict with the Fourth Circuit’s decision in this

case. There is no conflict with La Chemise Lacoste, however.

In La Chemise Lacoste, the plaintiff had attempted un-

successfully to have the district court’s order denying re-

mand certified for interlocutory appeal. Therefore, the Court

held that the plaintiff had not “waived the right to challenge

the denial of the motion to remand.” 506 F.2d at 342. “{P]lain-

tiff did all it could have done by way of seeking review of the

denial of its motion to remand.” 506 F.2d at 342, n.1.

In the instant case, as the Fourth Circuit pointed out, the

petitioner did nothing to seek review of the denial of his

motion to remand. He failed to seek an interlocutory appeal

under 28 U.S.C. § 1292(b), as other parties in other cases have

done. See, e.g., Union Planters National Bank of Memphis v.

CBS, Inc., 557 F.2d 84 (6th Cir. 1977). [Petitioner also sought

no writ of mandamus, which, although of doubtful ap-

plicability here, has been used by some circuits to review

otherwise unappealable orders of district courts. See, e.g.,

Carnegie-Mellon University v. Cohill, US. , 56

LW 4101 (1988) (remand order); Hoffman v. Blaski, 363 U.S.

335 (1960) (transfer of venue orders) |.

Since the petitioner here did nothing to seek review of

the district court’s order, La Chemise Lacoste is not in con-

flict with the Fourth Circuit’s decision. Indeed, the Fourth

Circuit’s decision is consistent with La Chemise Lacoste, in

that the Fourth Circuit made a point of saying that if cer-

tification for review were denied by a district court where

removal was doubtful, the Court of Appeals would “examine

an appeal in the light of that fact.” 829 F.2d at 1334.

2. The decision is supported by prior decisions of the

Supreme Court and other circuits.

The Fourth Circuit’s decision relied upon and is sup-

ported by American Fire & Casualty v. Finn, 341 U.S. 6, 16

(1951):

[T]here are cases which uphold judgments in

the district courts even though there was no right to

removal. In those cases the federal trial court would

have had original jurisdiction of the controversy

had it been brought in the federal court in the

posture it had at the time of the actual trial of the

cause or of the entry of the judgment. That is, if the

litigation had been initiated in the federal court on

the issues and between the parties that comprised

the case at the time of trial or judgment, the federal

court would have had cognizance of the case.

The same general principle—that irregularities in re-

moval can be waived and that a judgment will be upheld if, at

the time of judgment, the jurisdictional facts support federal

jurisdiction—was applied in Mackay v. Uinta Development

Co., 229 U.S. 173, 176 (1913), which held:

[Rjegardless of the manner in which the case was

brought or how the attendance of the parties in the

United States court was secured, there was pre-

sented to the circuit court a controversy between

citizens of different States in which the amount

claimed by one non-resident was more than $2000,

exclusive of interest and costs.

The doctrine was applied by a unanimous Supreme Court

in Grubbs v. General Electric Credit Corp., 405 U.S 699 (1972).

Although the removal was without objection, the Court did

not appear to base its holding on that fact, but rather on

American Fire & Casualty Co. v. Finn, 341 U.S. 6 (1951):

We conclude that the requirement that jurisdiction

exist at the time of judgment, stated in that case

[Finn], is satisfied here where the District Court had

jurisdiction to render judgment as between the

[parties].

405 U.S. at 705.

The Fourth Circuit decision also finds support from at

least two other circuits.

Gould v. Mutual Life Insurance of New York, 790 F.2d

769 (9th Cir.), cert. denied, US. , 107 S.Ct. 580, 93

L.Ed.2d 582 (1986), is a case closely in point. The case had

been removed after the state court had dismissed two non-

diverse co-defendants. The plaintiff's motion to remand was

denied and the district court later granted summary judg-

ment. The Court of Appeals held that the district court had

erred in not remanding, but since the plaintiff made no

attempt to take an interlocutory appeal, the Finn rule ap-

plied. The Court affirmed the district court’s grant of sum-

mary judgment, since, at the time it was granted, the case

was in such a posture that federal jurisdiction attached.

q

9)

————————————O

See also Lewis v. Time, Inc., 710 F.2d 549 (9th Cir. 1983);

Sheeran v. General Electric Co., 593 F.2d 93 (9th Cir.), cert.

denied, 444 U.S. 868 (1979).

In Smith v. City of Picayune, 795 F.2d 482 (5th Cir. 1986),

the Fifth Circuit applied the same doctrine, holding:

Since, at the time of judgment in this case, the

district court did have subject matter jurisdiction of

the case based on Smith’s constitutional claims and

the presence of the FmHA as an intervenor-defen-

dant, we will not now dismiss the suit on the basis of

the impropriety of removal at the time it occurred.

795 F.2d at 485.

Summarizing the principle, Moore’s Federal Practice

says:

And even where a case is not, or does not appear to

be within the original jurisdiction of the federal

court at the time of removal, a judgment entered by

the trial court is valid if at the time of the actual

trial or the entry of judgment the requisites of

original jurisdiction existed. (Emphasis in original.)

1A Moore's Federal Practice ]0.157[11.-3] at 172-173.

3. The case does not expand Federal jurisdiction.

The Fourth Circuit decision does not expand Federal

jurisdiction, since its effect is to look at the jurisdictional

facts at the time judgment was entered. This is the approach

taken by Mackay, supra; Finn, supra; Grubbs, supra and the

circuit court decisions cited above. It recognizes, as those

cases do, that while subject matter jurisdiction may not be

waived, procedural matters may be, as a result of which the

district court may have jurisdiction at the time it enters

judgment. There is no expansion of Federal jurisdiction be-

cause the jurisdictional facts at the time of judgment are

sufficient to support Federal jurisdiction.

The petitioner’s failure to seek review of the denial of his

motion to remand constituted a kind of waiver, similar in

legal effect to a failure to move for remand. If a court may

properly uphold a final judgment where the now-complain-

ing party failed to move to remand an improperly removed

case, it is logically consistent to uphold a judgment where a

a ec te Ah al a a

party fails to seek review of a denial of remand. As the Fourth

Circuit pointed out, if the district court should refuse

§ 1292(b) certification in a doubtful case, that fact would be

considered on the appeal from final judgment.

Moreover, since the Fourth Circuit disapproved of the

basis for removal, the decision is not precedent for enlarged

Federal jurisdiction based on a more liberal! reading of 28

U.S.C. § 1441(c).

4. The decision is a reasonable application of the

doctrine of judicial economy.

By the time of the hearing on Upjohn’s motion for sum-

mary judgment, the sole remaining basis for the petitioner’s

claim against Upjohn was the failure to give a patient warn-

ing to petitioner’s mother. Under settled law of the Fourth

Circuit (Stanback v. Parke, Davis and Company, 657 F.2d 642

[4th Cir. 1981] ) and based on the Fourth Circuit’s view of the

applicable South Carolina law (Brooks v. Medtronic, Inc., 750

F.2d 1227 [4th Cir. 1984] ), that claim stated no cause of

action. By the time the case reached the Fourth Circuit,

summary judgment had been entered against Mr. and Mrs.

Able, as to which no appeal was taken. In fact, no appeal was

taken in petitioner’s case on the merits of the grant of sum-

mary judgment.

If, despite the petitioner’s failure to seek review of the

denial of remand, the Fourth Circuit had remanded the case

to the State court to join the then pending claim against Dr.

Blair, there would have been a considerable waste of judicial

resources and counsel’s time, most probably without a differ-

ent ultimate result.

None of the discovery used in the petitioner’s case would

have been available in the State court, because it was taken

from Mrs. Able’s first lawsuit and Dr. Blair was not a party.

After discovery, assuming the Fourth Circuit had accurately

assessed South Carolina law, a motion by Upjohn for sum-

mary judgment would presumably have been granted. In

such case, the parties would be in the same position they are

now, after much additional expense and time spent by judges,

lawyers and litigants. Only if the South Carolina courts

departed from the settled law of almost every jurisdiction to

~

‘

require a patient warning for prescription drugs could peti-

tioner hope to prevail.

Petitioner has had his day in court. Nobody would be well

served by sending this case back and forth between the

Federal and State judicial systems.

Since the case effects no expansion of Federal jurisdic-

tion, is no precedent for removal under similar circum-

stances, and is based in part on petitioner’s failure to seek

earlier review, the Fourth Circuit's decision was a reasonable

application of the doctrine of judicial economy.

CONCLUSION

For the above reasons, the petition for a writ of cer-

tiorari should be denied.

Respectfully submitted,

H. Simmons Tate, Jr.

SINKLER & BOYD

Professional Association

P. O. Box 11889

Columbia, South Carolina 29211

(803) 779-3080

Attorneys for the Respondent,

The Upjohn Company

Columbia, South Carolina

March 1, 1988