Opposition Brief — Collins v. Mac-Millan Bloedel, Inc.

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Supreme Court, U.S.

ey LED

© way 3 2001 |

No. 00-1376 |

OFRCRE® THE CLERK |

EO

IN THE

Supreme Court of the United States

CARL GENE COLLINS and ROBERT W. PEUFFIER,

Petitioners,

V.

MACMILLAN-BLOEDEL, INC.; JOHN CRANE CO., INC.;

and OWENS-ILLINOIS, INC.,

Respondents.

On PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

BRIEF IN OPPOSITION

FOR RESPONDENT OWENS-ILLINOIS, INC.

RoBerT H. RILEY

CATHERINE M. MASTERS

Counsel of Record

NeiL LLoyp

SCHIFF HARDIN & WAITE

6600 Sears Tower

Chicago, IL 60606

(312) 258-5500

Attorneys for Respondent

Dated: May 3, 2001 Owens-Illinois, Inc.

160892

(ROO) 274-3321 © (800) 359-6859

i

QUESTION PRESENTED FOR REVIEW

When a case is transferred for coordinated or

consolidated pretrial proceedings under the multidistrict

litigation statute, 28 U.S.C. § 1407, the Judicial Panel on

Multidistrict Litigation must remand it to the original district

“at or before the conclusion of such pretrial proceedings”

(unless the case is resolved in the transferee district).

The statute also expressly permits the Panel to “separate any

claim, cross-claim, counter-claim, or third-party claim and

remand any of such claims before the remainder of the action

is remanded.” If the Panel declines to remand a case upon

request, Section 1407(e) makes its decision reviewable,

but only by extraordinary writ under 28 U.S.C. § 1651.

Here, the Panel remanded claims brought by the authorized

representatives of the Petitioners’ estates, but separated the

punitive damage claims in those cases, on the ground that

pretrial proceedings had not concluded with respect to such

claims. The Third Circuit declined to issue a writ of

mandamus. The questions presented on the Petition for Writ

of Certiorari (“Petition”) are

(1) whether the Petition should be dismissed because

the named Petitioners died before the Petition was filed and

the representatives of the Petitioners’ estates waived any night

to request review; and

(2) if the Petition is not dismissed, whether the Court

of Appeals abused its discretion in denying mandamus, when

(a) the premise for the mandamus petition,

that MDL 875 as a whole encompasses no

legitimate multidistrict activity and is a

failure, is demonstrably false; and

il

(b) the Petitioners’ assertion that the Panel

lacks the authority to sever punitive

damages claims has no legal basis.

iii

LIST OF PARTIES AND RULE 29.6 STATEMENT

There is no proper petitioner before the Court.

The Petition names two petitioners, Carl Gene Collins and

Robert W. Peuffier (the “Petitioners”). Neither Mr. Collins

nor Mr. Peuffier was a party to the mandamus proceedings

below. Indeed, both Petitioners died before the proceedings

in the Third Circuit, and so could not be proper parties either

there or before this Court.

The petitioners in the mandamus proceedings below

(the “Mandamus Petitioners”) were Mary Nell Collins

(““Mrs. Collins,” the personal representative of the estate of

Mr. Collins), Marjorie Peuffier (“Mrs. Peuffier,” the personal

representative of the estate of Mr. Peuffier), and Barbara and

Frederick Hoffman (“Mr. and Mrs. Hoffman;” Mr. and

Mrs. Hoffman have apparently now dropped out of the

proceedings). Mrs. Collins and Mrs. Peuffier cannot now join

the Petition as petitioners because Supreme Court Rule 35.1

allows the representative of a deceased party to join a cert.

petition by substitution only “[i]f a party dies after the filing

of a petition for a writ of certiorari.” (Emphasis added.)

Nor may Mrs. Collins and Mrs. Peuffier seek relief in

this Court on any other basis. Supreme Court Rule 12.6

provides that “[a]ll parties to the proceedings in the court

whose judgment is sought to be reviewed are deemed parties

entitled to file documents in this Court;” that “[a]ll parties

other than the petitioner are deemed respondents;” and that

“any respondent who supports the position of a petitioner”

may file “a response supporting the petition,” but such a

response “shall be filed within 20 days after the case is placed

on the docket, and that time will not be extended.” Under

Rule 12.6, Mrs. Collins and Mrs. Peuffier (as parties below

iv

and not petitioners here) are deemed respondents, whose

response supporting the Petition, if any, was due 20 days

after the Petition was filed. They submitted no such response

and therefore, under Rule 12.6’s express terms, they

“will not qualify for any relief from this Court.”

The Petition is also flawed in its identification of the

respondents. Under Supreme Court Rule 12.6, all parties in

the proceeding below are respondents in this Court.

The respondents in the mandamus proceeding below were

(1) numerous defendants collectively represented by the

Center for Claims Resolution (“CCR”); (2) GAF

Corporation; and (3) MacMillan-Bloedel, Inc. Additionally,

Owens-Illinois, Inc. (which had once been a defendant in

the Collins and Peuffier cases, but had resolved them)

appeared as an amicus curiae. See Petition, App. 1.

The Petition is strikingly out of sync with the proceedings

below. It names as Respondents Owens-Illinois (only an

amicus below), John Crane Co., Inc. (not a party below),

and MacMillan-Bloedel, Inc. (the only proper Respondent

named'). The Petitioners neither named nor served the CCR

respondents (the principal respondents below) or GAF (which

is now in bankruptcy).

Although Owens-Illinois, as an amicus below, is not

properly designated a respondent, it makes the following

disclosure. Owens-Illinois is a publicly-held corporation.

The following entities hold 10% or more of Owens-Illinois

stock: KKR Associates, L.P. (23.1%); FMR Corp. (11.3%).

Shares shown as owned by KKR Associates, L.P. are owned

of record by three limited partnerships of which KKR

Associates, L.P. is the sole general partner and as to which it

1. Owens-Illinois hereby joins the brief in opposition filed by

MacMillan-Bloedel.

Vv

possesses sole voting and investment power. Owens-Illinois

has received a Schedule 13G filed by FMR Corp., Edward

C. Johnson 3d, Abigail P. Johnson and Fidelity Management

& Research Company with respect to the shares of Common

Stock identified as owned as of December 31, 1998 and in

which such reporting persons assert dispositive and/or voting

power with respect to portions of or all of such shares as a

result of their direct or indirect investment advisory

relationship to, or ownership interest in, various investment

companies, institutional accounts or investment advisors

which own such shares.

vi

TABLE OF CONTENTS

Page

Question Presented for Review ................ i

List of Parties and Rule 29.6 Statement ........... ill

Bae OE GOES os s.0.a kc bo dd Ribéok ones vi

Table of Cited Authorities .............ccecees: vill

peabemnatt GE GAP Geb once dcctasdsadnie see l

A. POOOORIIEE TOMES 6 oo ddd ce Kdtntoeeseaes l

B. The Creation and Success of MDL 875. ... 3

Reasons for Dismissing or Denying the Writ ..... 9

1. The Writ Should be Dismissed Because No

Party is Entitled to Relief Under the Petition.

PEPE TT rr ree es Ie ee 9

Il. If Not Dismissed Outright, the Writ Should

OO ERONOEe wb cv ace vedeaceee ease 12

A. The Third Circuit’s Interpretation of

Section 1407 Does Not Merit Review.

‘6 b0 6.0 48 ooo ae ee ere 12

B. The Transferee Court’s Treatment of

Punitive Damages Claims Is Legitimate

ONG AMBOOREIB. 60. on cs Sesnceotee. 15

ee a eee a

Vil

Contents

Page

1. Punitive Damage Claims Are

Routinely Resolved With the Rest

ff 1+ Sapper ner 16

2. The Remaining Punitive Claims Are

Subject to Legitimate Pretrial

Coordinated Proceedings. ....... 17

a. Deferral of Punitive Claims. ... 17

b. Settlement of Punitive Claims. . 19

c. Resolution of Punitive Claims. . 19

' C. Section 1407(a) Permits the Severance

of Punitive Damages Claims. ........ 21

RR a A Nee a Se ee a oa re

Vili

TABLE OF CITED AUTHORITIES

Page

Cases:

Amchem Prods., Inc. v. Windsor, 521 U.S. 591

OED 66 Chad veka eee en ae 19

B.M.W. of North America, Inc. v. Gore, 517 U.S. 559

eee rere re rer ere ay rere 20

City of Newport v. Fact Concerts, Inc., 453 U.S. 247

POE 5.5.44 cede batke wanes eeieavasviiee wes 18

Dunn v. HOVIC, | F.3d 1371 (3d Cir.), cert. denied,

Pa Shs CE CEE a ctush ah ci eka seeeeaes 20

Humphreys v. Tann, 487 F.2d 666 (6th Cir. 1973) ... 19

In re “Agent Orange” Prod. Liab. Litig., 100 F.R.D.

rif 3.3 & 3 | Er E yer ree eo 20

In re Asbestos Products Liability Litigation (No. V1),

TTl PF. Seape. 419 GP BEL. US91) . cc cccdccses 3,18

In re Asbestos Products Liability Litigation (No. VI),

1996 WL 539589 (E.D. Pa. Sept. 16, 1996)

‘wie COREE LEU ME ES AD Eee aaa cee 5, 6, 16, 18

In re Asbestos Products Liability Litigation (No. VI)

Pen a SE a een dae bas enedscaas 6

In re Asbestos Products Liability Litigation (No. VI)

Fs I, DEED vn dik eea'se ane Rea ioe 6,7

ix

Cited Authorities

Page

In re Asbestos Products Liability Litigation (No. VI)

(J.P.M.L. Feb. 5, 1999)

In re Cimino, No. 99-1217 (3d Cir. July 26, 1999) ...

In re Herbold, No. 00-1137 (3d Cir. May 31, 2000)

In re Northern Dist. “Dalkon Shield” IUD Prods.

Liab. Litig., 526 F. Supp. 887 (N.D. Cal. 1981),

vacated on other grounds, 693 F.2d 847 (9th Cir.

1982), cert. denied, 459 U.S. 1171 (1983)

In re the Custody of Testa, 1993 WL 88302

(D.C. Cir.), cert. denied, 508 U.S. 954 (1993) .. 13

In re Patenaude, 210 F.3d 135 (3d Cir.), cert. denied,

__ US. __, 121 S. Ct. 565 (2000)

a, &, 1d, 14, 16, 17, 18, 19

In re Roberts, 178 F.3d 181 (3d Cir. 1999)

Johnson v. Celotex Corp., 899 F.2d 1281 (2d Cir.

Kerr v. United States District Court, 426 U.S. 394

(1976)

Lexecon Inc. v. Milberg Weiss Bershad Hynes &

Lerach, 523 U.S. 26 (1998)

2

ceased individuals whose representatives are not before the

Court requesting relief. For these reasons MacMillan dis-

putes that this Court has jurisdiction over the matter and asks

that the writ be dismissed.

STATEMENT OF THE CASE

The Petition for Writ of Certiorari should be denied be-

cause the proper parties have not sought relief and because

the Third Circuit Court of Appeals correctly held that Mary

Nell Collins and Marjorie Peuffier failed to meet the burden

necessary for mandamus to issue. The Petitioner with claims

related to MacMillan is Carl Gene Collins, the deceased hus-

band of Mary Nell Collins, who ailegedly sustained injury

due to exposure to asbestos-containing products. Mary Nell

Collins, individually and as personal representative of her

husband’s estate, is pursuing the underlying claims against

MacMillan. Until recently, the entirety of Ms. Collins’

claims were pending in the Eastern District of Pennsylvania

(“MDL court” or “transferee court”). Upon motion for re-

mand by Ms. Collins, the MDL court severed her punitive

damage claim and recommended that all of her compensa-

tory damage claims be remanded. The Judicial Panel on

Multidistrict Litigation (“Panel”) followed the MDL’s

court’s suggestion and entered an order reflecting the deci-

sion, remanding non-punitive claims to the Northern District

of Texas (“transferor court’). Ms. Collins moved the Panel

to remand the punitive damages claim. MacMillan opposed

remand of the punitive damage claims and all other claims,

and filed a Motion to Vacate Conditional Remand Order and

Brief. After oral argument on both parties’ motions, the

Panel denied Ms. Collins’ motion to remand the punitive

damage claim and remanded all non-punitive claims. Ms.

3

Collins filed a Petition for Writ of Mandamus in the Third

Circuit Court of Appeals, which was denied. 233 F.3d 809;

see Pet., Appendix (“App.”) A. Subsequently, the deceased

Carl Gene Collins and Robert W. Peuffier filed the Petition.

MacMillan files this Brief in Opposition urging the Court to

deny the Petition for Writ of Certiorari because the Petition-

ers lack standing and because the Panel acted properly in re-

fusing to order the Panel to remand Ms. Collins’ punitive

damage claim.

REASONS FOR DENYING THE WRIT

A. Petitioners Do Not Have Standing to File

Petition.

Petitioners are deceased and do not have standing to re-

quest relief from this Court. See Sup. CT. R. 12.6, 35.1, FED.

R. Civ. P. 25. The parties who are plaintiffs in the trial court

action and who were petitioners at the appellate court level

are the representatives of the estates of Petitioners. They are

not before the Court requesting relief. Since the petitioners

are deceased and the estzie representatives are absent from

this proceeding, the Court should not hear the issues pre-

sented by Messrs. Collins and Peuffier.

B. There Are No Compelling Reasons for this

Court to Review.

Petitioners have shown no compelling reason why this

Court should grant their Petition. Sup. CT. R. 10. Neither

the courts of appeal, the state courts of last resort nor the

MDL regimes are in conflict. No important federal question

is at issue. No court has departed from the usual course of

proceedings. This appeal boils down to Petitioners’ assertion

4

that the words “issue” and “claim” were incorrectly inter-

preted. Such a matter is hardly worthy of review by this

Court.

C. The Judicial Panel’s Action was Within Its

Discretion.

As the Third Circuit Court of Appeals pointed out, “Con-

gress intended transferee courts to have broad pretrial

authority.” In Re Patenaude, 210 F.3d 135, 144 (3d Cir.

2000). The language of the MDL statute provides broad dis-

cretion to the Panel by stating that orders will not be re-

viewed except by extraordinary writ. 28 U.S.C. § 1407(e);

see Pet. at App. 10. Because of the high burden Congress

chose to require, orders should only be reviewed in the event

of “an act amounting to a judicial usurpation of power.”

Patenaude at 140.

The severance and retention of the claim for punitive

damages in the MDL is within the broad authority and dis-

cretion of the Panel. Petitioners have failed to show that the

Panel’s action rose to the level of a usurpation of power.

D. Petitioners Have Failed to Establish a Right to a

Mandamus Under Any Standard.

Petitioners’ argument that the Third Circuit applied an in-

correct rubric in evaluating the mandamus is inconsequen-

tial. Under any evaluation, whether statutory or common

law, Petitioners have failed to establish the need for such an

extraordinary writ. The Petition fails to do so, as did the ap-

peal to the Third Circuit Court of Appeals.

Petitioners claim that a right to mandamus exists because

of a “mistake” by the Panel in failing to exercise a “statutory

5

duty” to remand the punitive damage claim. Pet. at 3. How-

ever, no statutory duty to remand such a claim exists. As

discussed in detail below, the Panel acted properly in retain-

ing the punitive damage claim in the MDL. There is there-

fore no “clear and indisputable” right to such a remand and

thus no grounds for mandamus. Patenaude at 140.

Furthermore, Petitioners have failed to show that there are

no other adequate means to obtain the desired relief. Paten-

aude at 140. The punitive damage claim has not been elimi-

nated, merely severed and retained in the MDL. Petitioners

therefore have an adequate avenue of recovery for that claim.

Moreover, retention of the punitive damage claim serves the

purposes of the Multiparty, Multiforum Acts of 1990 and

1991 upon which Petitioners rely; it guards against “the risk

of inappropriate, multiple punitive damage awards.” Pet. at

7, citing H.R. Rep. 101-515, H.R. Rep. No. 515, 101* Cong.,

2™ Sess. (June 1, 1990) and H.R. Rep. 102-373, H.R. Rep.

No. 373, 102" Cong., 1% Sess. (Nov. 25, 1991).

Notwithstanding Petitioners’ unsupported statement that

the MDL “has . .-. prevented the vast majority of . . . cases

from reaching trial. . . ,” Pet. at 1-2, the system has in fact

been efficient. As of 1996, approximately 40,000 of the

62,000 cases assigned to MDL 875 had been resolved, and

thousands of the remaining 22,000 cases had been resolved

but not yet dismissed. Patenaude at 140. In 1997 and 1998,

the MDL court closed nearly 10,000 cases per year. Id.

These numbers demonstrate that MDL 875 provides an ade-

quate alternate means of pursuing Collins’ claim for punitive

damages,

6

Petitioners also claim the MDL results in delay. Pet. at 1.

Even assuming the allegations were true, Petitioners have not

shown an immediate need for pursuing the punitive damage

claim. By definition, punitive damages are intended to pun-

ish a defendant for its wrongful actions and to deter future

misconduct, rather than to compensate the injured party.

City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 266-67

(1981); Gertz v. Robert Welch, Inc., 418 U.S. 323, 350

(1974). Such damages may be a windfall to a fully compen-

sated plaintiff. Newport at 267. One author endorsing sepa-

rate trials for punitive and compensatory claims has stated:

A plaintiff enjoys no individual entitlement to pu-

nitive damages commensurate with his right to be

compensated for his injury. . . . [T]he trier of fact

awards punitive damages not to compensate the

plaintiff as an individual, but to punish the defen-

dant and to protect society as a whole. Depriving

an individual mass tort plaintiff of control over the

prosecution of a punitive damage claim does not,

therefore, significantly interfere with the traditional

freedom accorded litigants in personal injury liti-

gation.

R. Trangsrud, Joinder Alternatives in Mass Tort Litigation,

70 CORNELL L. REV. 779, 846 (1985)(footnotes omitted).

Therefore, even if there is a delay in pursuing the punitive

damage claim, Petitioners will not be harmed or denied the

opportunity to recover compensation. Moreover, the Panel’s

decision does not delay Petitioners from pursuing their com-

pensatory claims; on the contrary, the Panel’s decision has-

tens the determination of those claims.

7

Petitioners have likewise failed to address an additional

burden required by the Panel. Specifically, a movant bears a

heavy burden of persuasion absent a suggestion of remand

from the Panel. J.P.M.L. Rule 7.6(d); In re Air Crash Dis-

aster in Ionian Sea, 438 F.Supp. 932, 934 (Jud. Pan. Multi.

Lit. 1977). In the pending action there is no suggestion of

remand from the transferee court with respect to the punitive

damage claim. In fact, the transferee court considered

Collins’ motion to remand punitive damages, and denied it.

The Panel has recognized “the significance of the transferee

judge’s view, as the firsthand judicial observer.” Jn re Air

Crash Disaster at 934. MacMillan asks this Court to con-

sider the view of Judge Weiner, who suggested the punitive

damages claims be retained in MDL 875. Absent a sugges-

tion of remand from him, Petitioners bear a heavy burden of

persuasion, which they have failed to meet.

E. The Judicial Panel Acted Properly in Retaining

the Claims for Punitive Damages Pursuant to

the Controlling Statute and the Federal Rules of

Civil Procedure.

Petitioners argue that the Panel has no statutory authority

under 28 U.S.C. § 1407 to retain punitive damage claims in

the MDL because they are “issues” rather than “claims” Pet.

at 4-11. In doing so, Petitioners resort to verbal gymnastics

to fashion a confusing and awkward “plain meaning” of the

word “claim” which does not include claims for punitive

damages. Petitioners’ convoluted argument is essentially

that since a punitive damage prayer is an “issue” and the

word “issue” is not listed in the statute, the Panel acted in

violation of the plain meaning of § 1407. The Third Circuit

Court of Appeals disagreed with Petitioners’ contrived defi-

8

nition and found that “claim” did encompass punitive dam-

ages. 233 F.3d 809; see Pet. at App. 4.

This Court need not even reach the issue of classifying

punitive damages as an “issue” or a “claim.” The only ac-

tion of the Panel which is up for review is the remand of Pe-

titioners’ compensatory claims. It was Judge Weiner of the

MDL court, rather than the Panel, who severed the punitive

damages claims from the other claims in the case. Pursuant

to FED. R. Civ. P. 42(b), Judge Weiner did not exceed his

authority, nor do Petitioners so claim. FED. R. Civ. P. 42(b)

(granting district courts authority to “order a separate trial of

any claim . . . or of any separate issue ....”). The Panel

merely ordered the remand of the compensatory claims, re-

taining the remainder of the action in the MDL. The plain

language of § 1407 clearly authorizes the Panel to remand

“any claim” prior to the remand of “remainder of the action.”

28 U.S.C. § 1407(a). Even Petitioners do not contend that

the compensatory claims.which were remanded do not qual-

ify as “claims.” Thus the Panel’s remand of the compensa-

tory claims conforms to the “plain language” of § 1407 upon

which Petitioners base their argument. The severance by

Judge Weiner and the remand by the Panel are consistent

with the plain language of § 1407(a) and are appropriate pur-

suant to FED. R. Civ. P. 42(b). Petitioners have failed to

show that any action of the Panel was contrary to the statute,

much less a judicial usurpation of power.

MacMillan must nevertheless respond to the hairsplitting

argument that punitive damages are only an “issue” and not a

“claim.” Petitioners’ argument ignores the fact that punitive

damages have the features of “claims” rather than “issues.”

A claim for punitive damages requires independent elements

9

of proof and the possibility of a heightened burden of proof.

Cathey v. Johns-Manville Sales Corp., 776 F.2d 1565, 1580

(6th Cir. 1985) (quoting Owens, Punitive Damages in Prod-

ucts Liability Litigation, 74 MICH. L. REV. 1257, 1269-71

(1976)); see also Bright v. Land O'Lakes, Inc., 844 F.2d 436,

439 (7th Cir. 1988). Punitive damages may be tried sepa-

rately from other claims in a case and before separate juries.

E.g., Atlas Food Sys. & Servs., Inc. v. Crane Nat'l Vendors,

Inc., 99 F.3d 587, 599-600 (4th Cir. 1996); Jenkins v. Ray-

mark Indus., Inc., 782 F.2d 468, 474 (Sth Cir. 1986); Scheu-

fler v. General Host Corp., 895 F.Supp. 1411, 1413-15 (D.

Kan. 1995); Denesha v. Farmers Ins. Exch., 161 F.3d 491,

505 (8th Cir. 1998); Jannotta v. Subway Sandwich Shops,

Inc., 125 F.3d 503, 517 (7th Cir. 1997); Central Office Tel.,

Inc. v. AT&T, 108 F.3d 981, 994 (9th Cir. 1997), rev'd on

other grounds, 118 S.Ct. 1956 (1998). These features of pu-

nitive damages render them analogous to “claims” rather

than “issues.” Furthermore, isolated references to punitive

damages as “issues” do not exclude them from the plain

meaning of the word “claim.” Such references are simply

irrelevant to the statute at issue because the terms “issue”

and “claim” are not mutually exclusive. Of far greater sig-

nificance is the fact that Petitioners cite no cases or literature

excluding punitive damages from the definition of “claim.”

Petitioners assert that punitive damage claims are not

“claims” under § 1407 because they are not a separate cause

of action for which a plaintiff may sue. Pet. at 7-9. This ar-

gument fails because many types of claims exist which may

not be sued on separately. One example, a loss of consor-

tium claim, has been described as a “dependent claim based

on liability to the injured spouse. . . .” Doe v. Nevada

Crossing, Inc., 920 F.Supp. 164, 169, n.5 (D. Utah 1996)

10

(citing Madison v. Deseret Livestock Co., 574 F.2d 1027

(10th Cir. 1978)). Though it is derivative of a spouse’s sub-

stantive claims, a loss of consortium claim is a separate and

distinct claim for relief. Jd.; see also Curato v. Saluti, 2000

WL 1974 at *8 (E.D. Pa. Dec. 30, 1999). A leading treatise

on punitive damages has similarly described punitive claims

as dependent claims for relief:

[T]he weight of authority is that punitive damages

do not constitute an independent cause of action.

Punitive damages are awarded ‘incident to’ a basic

cause of action.... [W]hile punitive damages, under

the general rule, do not constitute an independent

claim which can be pleaded and proved alone,

authority supports the conclusion that such dam-

ages constitute a dependent claim for relief which

must be supported by independent allegations and

proof.

James D. Ghiardi, et al., Punitive Damages: Law & Practice

§ 12.07 at 22-23, 25 (1999) (citing authorities) (emphasis

added). Therefore, the Panel’s order to remand all claims

except Petitioners’ dependent claims for punitive damages is

fully consistent with the plain meaning of the term “claim”

in § 1407(a). Since the Panel’s actions were proper pursuant

to the statute, there was no judicial usurpation of authority

warranting mandamus.

F. Policy Consideration Support Denying the Writ.

Even if Ms. Collins and Ms. Peuffier had met the burden

required for mandamus, policy considerations dictate that the

writ of mandamus should not have issued. The Patenaude

court held that: “[I]t is within a court’s discretion to refrain

11

from issuing the writ even when the requirements for man-

damus are technically satisfied. The availability of the writ

does not compel its exercise.” Patenaude at 141 (quoting Jn

re Chambers Dev. Co., 148 F.3d at 223); see also Hahne-

mann v. Edgar, 74 F.3d 456, 461 (3d Cir. 1996); Glenmede

Trust Co. v. Thompson, 56 F.3d 476, 482 (3d Cir. 1995); Lu-

sardi v. Lechner, 855 F.2d 1062, 1070 (3d Cir. 1998). In the

instant case, ample policy reasons justified the Third Circuit

Court of Appeals’ use of its discretion to deny the writ re-

gardless of whether Petitioners met their burden.

It is the policy of the MDL court for punitive damages

claims to remain in MDL 875 until it is clear that other

claimants will not be harmed by their adjudication. This

conserves monetary resources for those claimants who have

not yet had their day in court. The Panel described the pol-

icy when it issued its order establishing MDL 875 in 1991.

It cited the concern that there may be “insufficient funds to

fairly compensate all deserving claimants,” and suggested

that the concern be addressed before plaintiffs “go to trial

and secure recoveries (often including punitive damages) at

the possible expense of deserving plaintiffs in other cases. In

re Asbestos Products Liability Litigation (No. IV), 771

F.Supp. 415, 422 (Jud. Pan. Multi. Lit. 1991). As a possible

solution, the Panel suggested that some claims could be re-

manded in advance of others at the suggestion of the MDL

court. Id.

Judge Weiner touched upon such policy issues when he

expressed the MDL court’s “concern over the continued vi-

ability of the defendants, particularly with an unknown

quantity of future injuries brought about due to the latency of

asbestos-related diseases. The loss of any defendant to bank-

jp OER SY (ee ae meee nee a

12

ruptcy shifts a greater burden to the remaining defendants.”

In re Asbestos Prods. Liab. Litig. (No. VI), MDL No. 875,

1996 WL 539589 (E.D. Pa. Sept. 16, 1996) (footnote omit-

ted). Similarly, Judge Weis of the Third Court of Appeals

described the situation in 1993, when he stated that “the

available resources of asbestos manufacturers will be ex-

hausted before all deserving claimants have received their

compensatory damages.” Dunn v. Hovic, 1 F.3d 1371, 1399

(3d Cir. 1993) (en banc) (Weis, J., dissenting) (footnote

omitted).

Petitioners would have the Court grant them special dis-

pensation at the expense of thousands of other MDL claim-

ants. Due to the large volume of asbestos cases and the

growing number of bankrupt defendants, providing compen-

satory damages to claimants is becoming increasingly diffi-

cult. For example, in a recent Texas Supreme Court case,

two of three defendant companies, Pittsburgh Corning and

Owens-Corning, filed for bankruptcy following oral argu-

ment and submission of the case. Pustejovsky v. Rapid-

American Corp., 35 S.W.3d 643, 645 (Tex. 2000). Severing

and deferring punitive claims until compensatory claims are

Satisfied is even more important now than when the policy

was first addressed. Mandamus is hardly the appropriate ve-

hicle for overriding established policy considerations and

achieving such special treatment.

The Panel’s practice of remanding non-punitive claims

that are severed by Judge Weiner while retaining punitive

claims is additionally consistent with the policy of § 1407(a).

The Panel is prevented from dividing a single claim between

two courts because it “violates well settled principles of judi-

cial management.” Dividing a single claim among two

13

courts could lead to confusion and conflicting rulings by

those courts. Jn re Plumbing Fixtures Cases, 298 F.Supp.

484, 495 (Jud. Pan. Multi. Lit. 1968).

Severing and retaining punitive damages in MDL 875

does not raise such concerns. Under the Panel’s order, a sin-

gle claim for relief is not split between two courts; rather, the

claim for punitive damages is separated from the compensa-

tory claims. The punitive claim will not be pursued without

appropriate findings of liability in the trial court. As dis-

cussed previously, federal courts have repeatedly found it

permissible to try punitive damages claims to separate juries.

Therefore, there is no risk of inconsistent rulings by two dis-

trict courts.

The practice of severing and retaining punitive damage

claims in the MDL promotes the above policies. The Third

Court of Appeals’ denial of the writ'of mandamus was ap-

propriate. Therefore, the Petition for Writ of Certiorari

sought by Petitioners should be denied, regardless of whether

this Court finds that Petitioners’ estates’ representatives met

their heavy burden of persuasion.

14

CONCLUSION

Carl Gene Collins and Robert W. Peuffier are deceased,

and the proper parties are not seeking relief from this Court.

Furthermore, the issue presented does not merit considera-

tion by this Court. The standard for obtaining the extraordi-

nary relief of mandamus is demanding. Petitioners, by

resorting to a convoluted reading of 28 U.S.C. § 1407 and a

strained definition of the word “claim,” fall far short of that

burden. Petitioners’ right to the writ is not clear and indis-

putable because the Panel acted properly and within its dis-

cretion in remanding compensatory claims and retaining the

punitive claims in MDL 875. The Panel’s actions were in

accord with statute, federal rules and policy considerations.

The Petition for Writ of Certiorari should be denied because

the Third Circuit Court of Appeals acted properly in denying

the Petition for Writ of Mandamus.

Respectfully Submitted,

Hubert A. Crouch, III

Kirk T. Florence

Amy E. Nettle

CROUCH & INABNETT, L.L.P.

2300 Fountain Place

1445 Ross Avenue

Dallas, TX 75202

Attorneys for Respondent

MacMillan-Bloedel, Inc.