Opposition Brief — Grady v. Rhone-Poulenc Rorer Inc.

No. 95-147

In THE

Supreme Court of the W

Supreme Court, U.S.

3 ih £ dD

OCTOBER TERM, 1995

Hon. JOHN F. GRADY, et al.,

Vv.

Petitioners,

RHONE-POULENC RORER INC., et al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

RICHARD L. BERKMAN

FRED T. MAGAZINER

DECHERT, PRICE & RHOADS

4000 Bell Atlantic Tower

Philadelphia, PA 19103

(215) 994-4000

Attorneys for

Baxter Healthcare Corp.

DAVID I. BELL

DAPHNE B. SUBAR

KNAPP, PETERSON & CLARKE

500 North Brand Boulevard

Glendale, CA 91203

(818) 547-5000

Attorneys for

Alpha Therapeutic Corp.

DOUGLAS F’. FUSON

Counsel of Record

SARA J. GOURLEY

SUSAN A. WEBER

SIDLEY & AUSTIN

One First National Plaza

Chicago, IL 60603

(312) 853-7000

Attorneys for Armour

Pharmaceutical Co. &

Rhéne-Poulenc Rorer Inc.

DUNCAN BARR

MARIROSE PICIUCCO

O’CONNOR, COHN, DILLON

& BARR

101 Howard Street, Fifth Floor

San Francisco, CA 94105-1619

(415) 281-8888

GEOFFREY R.W. SMITH

PIPER & MARBURY

1200 19th Street, N.W.

Washington, DC 20036

(202) 861-6478

Attorneys for Miles Inc.

WILSON - Eras Printine Co., Inc. - 789-0096 - WASHINGTON, D.C. 2000!

QUESTIONS PRESENTED

1. Whether the court of appeals properly exercised its

discretion in reviewing, on mandamus, the certification of

a nationwide “issue” class where the court held, on the

unique facts of this case, that (a) the certification deci-

sion amounted to a judicial usurpation of power, and (b)

defendants lacked adequate alternative means to obtain

relief.

2. Whether the court of appeals properly ordered the

decertification of a nationwide issue class where the dis-

trict court proposed to—

(a) “have a jury determine the negligence of the de-

fendants under” a putatively uniform national

legal standard “that does not actually exist any-

where in the world,” Pet. App. 12a-13a, and

(b) try the issues of “negligence” and “foreseeabil-

ity” on a classwide basis before one jury and

then the overlapping issues of comparative

negligence and proximate causation in individ-

ual trials before hundreds of other juries around

the country?

(i)

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED 2000.2...---s-ccsoecsoesecoessoseseoveeene i

TABLE OF AUTHORITIES ..00..0..--.....2cccosscseessueccovessneesenee iv

STATEMENT OF THE CASE 20.0... cscccssccnesesecseeeeeneeeens 2

REASONS FOR DENYING THE PETITION ................ 11

<o + | Seas eee 24

(iii)

iv

TABLE OF AUTHORITIES

CASES Page

Alabama v. Blue Bird Body Co., 573 F.2d 309 (5th

+ SL. , | FRR SRS our nAR nmueNa an eoR: werius TEC oth Nene neen oaoR 17

Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 38

CI a i 2

Arthur Young & Co. v. United States District

Court, 549 F.2d 686 (9th Cir.), cert. denied, 434

pe egy geet aki len aden stiieitad tee hee ae 21

Bauman v. United States District Court, 557 F.2d

Oe ee Cs. F002 ee 21

Beacon Theatres, Inc. v. Westover, 359 U.S. 500

I ircascabins sass soso aaeiacasas ae, tele alias aeeeecanaieatbuacey: 14, 17

Central Wesleyan College v. W.R. Grace & Co., 6

PRET CG Car. 1906) oc... 22

Christopher v. Cutter Lab., 58 F.3d 1184 (11th Cir.

| RRR a tic Baan Se REO RCN ESP oT ORFS ie WON ERAT 10

Coopers & Lybrand v. Livesay, 487 U.S. 468

gS aaa CRA utanarnt ase 08, Sess NON rRaMeareD 13

Copley Pharmaceutical, Inc. v. Brimmer, No. 95-

80382 (10th Cir. May 31, 1995) ......................0........ 22

C.W. Regan, Inc. v. Parsons, Brinckerhoff, Quade

& Douglas, 411 F.2d 1379 (4th Cir. 1969) __....... 17

Dairy Queen, Inc. v. Wood, 369 U.S. 469 (1982).... 14,17

Dante v. Dow Corning Corp., 143 F.R.D. 186 (S.D.

2 «RSA eR Rae Abe ove CHD Rene NCU itn 14, 22

De Beers Consol. Mines, Ltd. v. United States, 325

US. 2ee CO ki ae. 12

D.K. v. Armour Pharmaceutical Co., No. L-8154-93

(N.J. Super. Ct. June 9, 1994) ............................... 15

Doe v. Cutter Biological, Inc., No. 87-0232 (D.

Tew Tek: G SOe) ci ne. 15

Doe v. Sno-Isle Community Blood Bank, No. 86-2-

16308-5 (Wash. Super. Ct. June 29, 1987) .......... 15

Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974).. 18

Erie R.R. v. Tompkins, 304 U.S. 64 (19388) -..........- passim

Gannon v. Cutter Lab., No. C-85-20078 (N.D. Cal.

BOETE TA, TE oo iseei i ee 15

Gasoline Prods. Co. v. Champlin Refining Co., 283

pe SY EL. ORR Were erin cn aCe pene Cite eh 11,17

Green v. Occidental Petroleum Corp., 541 F.2d 1335

Me E80, RRERORORERS lat REN AAEM aS Mbyte Steen pone 21

v

TABLE OF AUTHORITIES—Continued

Page

Gruca v. Alpha Therapeutic Corp., 51 F.8d 638

(7th Cir. 1995) 10

Gulfstream Aerospace Corp. v. Mayacamas Corp.,

SB6-055; BU CIGUS) ie ha eh... 2,12

Hoemke v. New York Blood Ctr., 912 F.2d 550 (2d

CRP ia ERG i es i 16

Hoffman v. Blaski, 363 U.S. 335 (1960) Secs. 14

In re Bausch & Lomb Inc., No. 94-711 (11th Cir.

‘le 37 TGR iS A a . 22

In re Bendectin Prods. Liab. Litig., 749 F.2d 300

CO Fi OE ititinhsittiens icici tenant dabeases nausea, 20

In re Breast Implant Litig., No. 92-8420/346 (6th

CRP SUR Bae SOO e bi ash 14, 22

In re Dennis Greenman Sec. Litig., 829 F.2d 1539

CRD TOO a a 21

In re Diamond Shamrock Chem. Co., 725 F.2d 858

(2d Cir.), cert. denied, 465 U.S. 1067 (1984)...... 20

In re Exterior Siding & Aluminum Coil Antitrust

Litig. (MDL No. 454), 696 F.2d 6138 (8th Cir.

1982), cert. denied, 464 U.S. 866 (1983) ............. 20-21

In re “Factor VIII or 1X Concentrate Blood Prod-

ucts” Prod. Liab. Litig. (MDL No. 986), 858

F. Supp. 454 (J.P.M.L. 1998) 220.00... cn... 5

In re Fibreboard Corp., 893 F.2d 706 (5th Cir.

BOND anneal chee alo cesukg etc Aeeaconssdh voctneedeetinioedacs 20, 22

In re Industrial Gas Antitrust Litig., 100 F.R.D.

SO0 UE Ge SOOO) wi es... 17

In re NLO, Inc., 5 F.3d 154 (6th Cir. 1998) .......... 20

In re School Asbestos Litig., 789 F.2d 996 (3d

Cir.), cert. denied, 479 U.S. 852, cert. denied,

Ps ELS ae Se a. Reap Soveaee Ole KAT are ee 22

In re Sugar Antitrust Litig., 559 F.2d 481 (9th

5-5 FE | A SERB ORIES ORE SRR C09 £2. Tele Gein Ae GE aS - 22

In re Temple, 851 F.2d 1269 (11th Cir. 1988) ........ 21

Jaime v. Saint Joseph Hosp. Found., 853 S.W.2d

Got Chat, CE, Ae TOGB) escitimciin 4,5, 16

Jenkins v. Raymark Indus., Inc., 782 F.2d 468 (5th

gs SERRA asa gs CUNO hy Duo tM NCS a 22

Jones v. Miles Lab., Inc., 887 F.2d 1576 (11th Cir.

UNE csaiasicick pikaaiiidicsckilachpsiitcstalas onesie lesisciananshdadeomttonna 16

vi

TABLE OF AUTHORITIES—Continued

Page

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

(1976) 2,12

Kozup v, Georgetown Univ., 668 F. Supp. 1048

(D.D.C. 1987), aff'd in part and vacated in part,

851 F.2d 487 (D.C. Cir. 1988) 4

La Buy v. Howes Leather Co., 352 U.S. 249 (1957) .. 14

Mallard v. United States District Court, 490 U.S.

296 (1989) . 12,18

Maloney v. Plunkett, 854 F.2d 152 (7th Cir. 1988) .. 11

McDaniel v. Anheuser-Busch, Inc., 987 F.2d 298

(5th Cir. 1998) 17

McDonnell Douglas Corp. v. United States District

Court, 523 F.2d 1088 (9th Cir. 1975), cert. de-

nied, 425 U.S. 911 (1976) 21

McKee +. Cutter Lab., Inc., 866 F.2d 219 (6th Cir.

SOOO oi cnciccictininsss bith ieciait bienmanee. etc 16

Schlageshauf v. Holder, 379 U.S. 104 (1964) ....... 12, 14

Schmidt v. Fuller Brush Co., 527 F.2d 582 (8th

Cir. 1975) ii 21

Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S.

S06 COVOS wk hae Ae Be a a. 12, 13

Wadleigh v. Rhéne-Poulene Rorer, No. 98 C 5969

ro. 819) % Rene Sema LSP ek Se ee ak 5

CONSTITUTION, STATUTES AND RULES

POR pT Sh ft Pere Ene Cae ees mere passim

Sah Si FE | : Eee eeeeaneReeeme . 13

TE UAC BA) ii 7,22

ST TO iii cei hdd cs. 5

SE TI 6 Oe aio. insisted aka 12

p ENR TE Ey Li) Ree press wT iow eae ota 18

Pres PU hiked. eh iii ced 9,13

Fed. R.Civ. P. 23 (b) Pee ey eee re 17

Ped: Btiv; PBB GAB) ain. bas aki Knee 6, 18

Fed. B.GiviP. BB (e).€4) (A) .--occncti Sade 2,6

Me AE | | RS er tie a Ree ee rane 14

vii

TABLE OF AUTHORITIES—Continued

MISCELLANEOUS

Centers for Disease Control & Prevention, U.S.

Dep’t of Health and Human Services, Pneumo-

cystis Pneumonia—Los Angeles, 30 Morbidity

and Mortality Weekly Report (June 5, 1981)....

Centers for Disease Control & Prevention, U.S.

Dep’t of Health and Human Services, Kaposi’s

Sarcoma and Pneumocystis Pneumonia Among

Homosexual Men—New York City and Califor-

nia, 30 Morbidity and Mortality Weekly Report

(July 4, 1981) ..

Centers for Disease Control & Prevention, U.S.

Dep’t of Health and Human Services, Pnewmo-

cystis carinii Pneumonia Among Persons with

Hemophilia A, 31 Morbidity and Mortality

Weekly Report (July 16, 1982) -...

Centers for Disease Control & Prevention, U.S.

Dep’t of Health and Human Services, HIV/AIDS

Surveillance Report (July 1993) —........................

Leon W. Hoyer, Medical Progress: Hemophilia A,

830 New Eng. J. Med. 38 (Jan. 6, 1994) _..........

Barbara L. Kroner, et al., HIV-1 Infection Inci-

dence Among Persons with Hemophilia in the

United States and Western Europe, 1978-1990, 7

Journ. Acquired Immune Deficiency Syndrome

(Nov. 3, 1994) - 2 PE RSE et See ET Oe

National Hemophilia Foundation, Hemophilia In-

formation Exchange, Medical Bulletin No. 15

CE BE NOG as ee ec

7B Charles A. Wright et al., Federal Practice and

Procedure, § 1789 (2d ed. 1986)

In THE

Supreme Court of the United States

OCTOBER TERM, 1995

No. 95-147

Hon. JOHN F. GRADY, et al.,

¥ Petitioners,

RHONE-POULENC RoreER INC., et al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

Respondents Rhéne-Poulenc Rorer Inc., Armour Phar-

maceutical Company, Miles Inc., Baxter Healthcare Cor-

poration, and Alpha Therapeutic Corporation respectfully

request that this Court deny the petition for a writ of

certiorari seeking review of the judgment of the United

States Court of Appeals for the Seventh Circuit."

1 The following disclosure is provided pursuant to Rule 29.1 of

this Court:

The parent corporation of Rhéne-Poulenc Rorer Inc. is Rnéne-

Poulenc 8.A. Osteosa Corporation is a subsidiary of Rhéne-Poulenc

Rorer Inc.

The parent company of Armour Pharmaceutical Company is

Rh6éne-Poulenc Rorer International (Holdings) Inc. All subsidiar-

ies of Armour Pharmaceutical Company are wholly owned.

The parent company of Miles Inc. (recently renamed Bayer

Corporation) is Bayer AG. Bayer Corporation owns a 28.3% inter-

est in Schein Pharmaceutical, Inc.

The parent company of Baxter Healthcare Corporation is Baxter

International, Inc. All subsidiaries of Baxter Healthcare Corpora-

tion are wholly owned.

The parent company of Alpha Therapeutic Corporation is Green

Cross Corporation of America. Grupo Grifols, S.A. and Alpha

Grifols, S.A. are subsidiaries of Alpha Therapeutic Corporation.

2

STATEMENT OF THE CASE

Respondents filed this mandamus action to challenge

an unconstitutional district court plan for trying AIDS-

related multidistrict and multistate litigation because the

outcome of the proposed class trial would be effectively

unappealable. Relying on Rule 23(c)(4)(A), the dis-

trict court certified a nationwide “issue” class of thou-

sands of hemophiliacs for the purpose of determining

whether respondents—who process blood derivatives used

to treat hemophilia °—were “guilty” of “ordinary negli-

gence” under a purportedly uniform nationwide negligence

standard. Pet. App. 60a. The proposed class trial would

not determine whether respondents were liable to any

petitioner or absent class member. Rather, it would pro-

duce a voluminous special verdict form, which the district

court hoped could be used by plaintiffs in hundreds—

perhaps thousands—of individual trials in federal and

state courts around the country. Pet. App. 57a-60a.

The court of appeals issued a writ of mandamus direct-

ing the district court to vacate its class certification order.

The Seventh Circuit specifically recognized that “man-

damus is issued only in extraordinary cases” when (1)

an order “so far exceeds the proper bounds of judicial

discretion as to be legitimately considered usurpative in

character,” and (2) the order cannot be effectively re-

viewed at the end of the case. Pet. App. at 2a-3a, citing

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

(1976); Gulfstream Aerospace Corp. v. Mayacamas

Corp., 485 U.S. 271 (1988); Allied Chemical Corp. v.

Daiflon, Inc., 449 U.S. 33 (1980) (per curiam).

This case met that rigorous and plainly correct two-

part test. Pet. App. 2a-3a, 1la-12a. The court of ap

peals held, inter alia, that: (1) the district court over-

stepped its authority by certifying an issue class in »#la-

2 Respondents Armour Pharmaceutical Company, Miles Inc.,

Baxter Healthcare Corporation, and Alpha Therapeutic Corpora-

tion process blood factor concentrates. Respondent Rhdéne-Poulenc

Rorer Inc. is the second-tier parent corporation of Armour.

3

tion of Erie R.R. v. Tompkins, 304 U.S. 64 (1938), and

the Seventh Amendment, Pet. App. 17; and (2) the cer-

tification “order could not be effectively reviewable at the

end of the case.” Pet. App. 2a (original emphasis). As

shown below, the district court’s “extraordinary” response

to the unique circumstances of this particular litigation

led the court of appeals properly to grant the “extraordi-

nary” remedy of mandamus.

1. Hemophilia is an incurable, hereditary disorder

characterized by deficiencies of certain clotting factors in

the blood.* Until the 1960s, the only treatment for hemo-

philia was transfusion of whole human blood or plasma.

In the late 1960s and early 1970s, freeze-dried and con-

centrated forms of the missing clotting factors were de-

veloped and largely replaced the cumbersome and less

effective therapies that had previously been used. Life

improved significantly for persons with hemophilia; blood

factor concentrates made possible “the return to a full

range of activities for many patients who were previously

wheelchair-bound.” *

The first cases of the disease now known as Acquired

Immune Deficiency Syndrome (AIDS) were reported in

homosexual males in June and July of 1981.5 The cause

of the syndrome was unknown. At first, AIDS was re-

ported only in certain groups, namely homosexual males

with multiple partners, intravenous drug users, and recent

3 Individuals with deficiencies of clotting “Factor VIII” have

Hemophilia A. Individuals with deficiencies of “Factor IX”—a

different blood protein—have Hemophilia B.

*Leon W. Hoyer, Medical Progress: Hemophilia A, 330 New

Eng. J. Med. 38, 42 (Jan. 6, 1994). Copies of all articles cited by

respondents have been lodged with the Clerk of the Court.

5 Centers for Disease Control & Prevention, U.S. Dep’t of Health

and Human Services (“CDC”), Pneumocystis Pneumonia—Los

Angeles, 30 Morbidity and Mortality Weekly Report (“MMWR”)

250-52 (June 5, 1981); CDC, Kaposi’s Sarcoma and Pneumocystis

Pneumonia Among Homosexual Men—New York City and Califor-

nia, 30 MMWR 305-08 (July 4, 1981).

4

immigrants from Haiti. See generally Kozup v. George-

town Univ., 663 F. Supp. 1048 (D.D.C. 1987), aff'd in

part and vacated in part, 851 F.2d 437 (D.C. Cir. 1988).

However, in July of 1982, three cases of the rare pneu-

monia associated with this new syndrome were reported in

persons with hemophilia.’ Additional cases were reported

in 1983. In 1984, the medical community reached a con-

sensus that AIDS was transmissible by blood. Kozup,

663 F. Supp. at 1052; Jaime v. Saint Joseph Hosp.

Found., 853 S.W.2d 604, 611 (Tex. Ct. App. 1993).

The human immunodeficiency retrovirus (HIV) was

not identified as the cause of AIDS until the spring of

1984.7 In March of 1985, the FDA licensed a test to

detect antibodies to HIV in blood. All plasma donations

collected after the test became available were tested and

HIV positive donors were excluded. See Kozup, 663

F. Supp. at 1052-53.

By using the new HIV antibody test on stored serum

samples, epidemiologists have determined that “62-89%

of the U.S. hemophilia A patients who were treated with

factor VIII concentrate, and who eventually seroconverted

[became HIV-infected], did so prior to January 1983.” °

Thus, before anyone knew that AIDS was transmissible

by blood, a large proportion of American hemophiliacs

already were infected with HIV.

6 CDC, Pneumocystis carinii Pneumonia Among Persons with

Hemophilia A, 31 MMWR 365-67 (July 16, 1982).

7Later that year, experiments by the CDC demonstrated that

HIV could be inactivated by heat-treatment processes that hed

recently been approved for certain blood factor concentrates. In

the fall of 1984, the National Hemophilia Foundation’s Advisory

Committee recommended that physicians strongly consider placing

all hemophiliacs on heat-treated concentrates. National Hemo-

philia Foundation, Hemophilia Information Exchange, Medical

Bulletin No. 15 (Oct. 18, 1984).

8 Barbara L. Kroner, et al., HIV-1 Infection Incidence Amony

Persons with Hemophilia in the United States and Western Europe,

1978-1990, 7 Journ. Acquired Immune Deficiency Syndrome 279-86

(Nov. 3, 1994).

5

2. Approximately 300 lawsuits involving some 400

named plaintiffs have been filed by American hemo-

philiacs who claim to have been infected with HIV

through the plasma-based therapies used to control their

hemophilia.” Respondents include four of the several

providers of the two types of plasma derivatives used in

such therapy. Approximately 60 percent of the cases are

pending in various state courts. The federal cases have

been consolidated for pretrial purposes in the Northern

District of Illinois. In re “Factor VIII or 1X Concentrate

Blood Products’ Prod. Liab. Litig. (MDL No. 986), 853

F. Supp. 454 (J.P.M.L. 1993). See generally 28 U.S.C.

§ 1407.

The petition arises from Wadleigh v. Rhéne-Poulenc

Rorer, No. 93 C 5969 (N.D. Ill.)—a purported nation-

wide class action initiated by a consortium of plaintiffs’

counsel against respondents and the National Hemophilia

Foundation (“NHF”). Petitioners asserted a wide range

of claims against respondents, including at least ten

theories based on negligence. Resp. App. la-3a."° Peti-

tioners argued that, although most hemophiliacs who have

been infected with HIV were exposed before that retro-

virus was identified and before there was any consensus

in the medical community that AIDS could be transmitted

through blood products, respondents were nevertheless

negligent because they (a) knew that a form of hepatitis

could be transmitted through factor concentrates and (b)

therefore had a legal duty to protect against transmission

of any virus—known or unknown—including the un-

heard of retrovirus, HIV. Pet. App. 6a. This is some-

times called the “serendipity” theory. See, e.g., Jaime,

853 S.W.2d at 614.

® Approximately two-thirds of those cases were filed by class

counsel after the filing of this purported class action.

10 Petitioners’ other claims included strict product liability,

breach of implied warranty, and concert of action by respondents

and breach of fiduciary duty by the National Hemophilia Founda-

tion. Pet. App. 36a-37a.

6

The district court denied petitioners’ motion to certify

a nationwide class pursuant to Federal Rule of Civil

Procedure 23(b)(3). Pet. App. 49a-50a, 52a-53a, 60a-

61a. The court concluded, inter alia, that petitioners’

negligence claims could not be certified because common

issues of fact and law did not predominate “[oJn the

proximate cause isue.” Pet. App. 52a.

The district court announced, however, that it would

certify a class pursuant to Rule 23(c)(4)(A) for the

purpose of determining whether the respondents were

“guilty of ordinary negligence.” Pet. App. 60a. The

court stated that the “negligence” issue could be decided

on a nationwide basis because it “believed” that “the

definition of ordinary negligence is substantially identical

in all jurisdictions.” Pet. App. 56a.

The district court explained that it would develop a

special verdict form in an attempt to obtain specific find-

ings on a wide range of theories submitted by petitioners.

Pet. App. 57a-59a. That verdict form would likely con-

tain hundreds of interrogatories. Pet. App. 57a-59a. The

jury would not, however, be charged under the particular

negligence law of each state.

The proposed class trial would not produce a final

appealable judgment because the trial would not deter-

mine whether respondents were liable to any petitioner

or absent class member. Pet. App. 59a, 166a, 19a-20a.

Rather, the district court contemplated that, after the

class trial, class members would be able to initiate entirely

new lawsuits in state and federal courts around the coun-

try in order to take advantage of any trial findings in

favor of the class. Those federal cases already on file

would be returned to the district courts in which they

originated for separate liability trials before separate

juries. Pet. App. 59a, 19a.

The local trial courts would decide, inter alia, questions

regarding the statute of limitations, causation-in-fact,”

11 Many persons with AIDS and hemophilia have been exposed

to risk factors for AIDS other than factor concentrates. These

er Ny F

7

and proximate cause. They would also be required to try

any causes of action that were not included in the class

trial; these potentially include additional negligence

claims (see infra, note 13), as well as any strict liability,

warranty, and other causes of action, including cross

claims between the respondents. The local trial courts

would also have to try in their entirety claims against

physicians, hospitals, blood processors, and others who

are not parties to the class proceedings, including the

“negligence” of these “new” defendants. Finally, they

would be required to determine the comparative negli-

gence (or assumption of risk) of each plaintiff and the

proportionate fault of each tortfeasor. Pet. App. 59a,

52a, 19a-20a; Resp. App. 10a-lia, 14a-16a.

Respondents moved for reconsideration of the issue

class certification decision, arguing, inter alia, that it

violated the Erie doctrine and the Seventh Amendment,

that the proposed class trial did not constitute a superior

means of resolving this litigation as required by Rule 23,

and that the trial would produce an unconstitutional ad-

visory verdict. The district court summarily denied re-

spondents’ motion for reconsideration. Pet. App. 63a.

The district court also refused to certify its decision for

immediate appeal pursuant to 28 U.S.C. § 1292(b).” On

November 3, 1994, the court formally entered its order of

class certification. Pet. App. 31a-33a.*

risk factors include other blood therapies used to treat hemophilia.

See, e.g., CDC, HIV/AIDS Surveillance Report at 14 (July 1993)

(over 31% of adults and adolescents with AIDS and hemophilia

had one or more additional risk factors).

12 During argument of respondents’ motion for § 1292(b) certifi-

cation, petitioners’ counsel of record urged that mandamus was

the appropriate vehicle for any challenge to the class certification

order. Resp. App. 6a.

18 The district court denied respondents’ motion to amend the

class certification order to confirm that all negligence claims

against respondents would be tried in the class trial or otherwise

would be barred. Resp. App. 9a. The court stated that considera-

tion of negligence issues applicable to only a few class members

8

3. On December 19, 1994, respondents filed a peti-

tion for a writ of mandamus in the United States Court

of Appeals for the Seventh Circuit. The petition was

fully briefed and argued on January 30, 1995.

On the following day, using a procedure that the Sev-

enth Circuit described as “irregular,” Pet. App. 8a, peti-

tioners asked the district court to state its views regard-

ing the appealability of the class trial verdict. In a re-

sponsive letter that petitioners subsequently “filed” with

the court of appeals, the district court explained (for the

first time) that, if the class trial produced findings favor-

able to petitioners, the court then intended to try the

individual claims of one or more of the class representa-

tives. The court acknowledged that “[s]Jeparate juries

would be required” for the class and individual trial and

opined that the individual trial would not produce a final

judgment, dut expressed “hope” that an interlocutory

appeal would be allowed. Pet. App. 166a-67a.

The court of appeals issued a writ of mandamus direct-

ing the district court to vacate its class certification order.

The court of appeals expressly stated that mandamus is

an extraordinary remedy available only in those cases in

which two conditions are met:

The first is that the challenged order not be effec-

tively reviewable at the end of the case—in other

words, that it inflict irreparable harm. . . . Second,

the order must so far exceed the proper bounds of

judicial discretion as to be legitimately considered

usurpative in character, or in violation of a clear

and indisputable legal right, or, at the very least,

patently erroneous.

Pet. App. 2a-3a (original emphasis).

would cause the trial to “degenerate” into a “multiplicity of indi-

vidual trials.’ Resp. App. 1la-12a. The court therefore decided

to leave disposition of such issues to the local trial courts. Resp.

App. 15a.

9

The court of appeals went on to hold that both require-

ments for issuance of mandamus had been met here. The

district court had “far exceed[ed] the proper bounds of

judicial discretion” in three ways. First, the district court

“propose[d] to have the jury determine the negligence of

the defendants” pursuant to “a kind of Esperanto instruc-

tion, merging the negligence standards of the 50 states

and the District of Columbia.” Pet. App. 12a-13a. This

approach was foreclosed by Erie R.R. v. Tompkins, 304

U.S. 64 (1938). Pet. App. 13a-18a."

Second, the district court planned to try, on a class-

wide basis, “negligence” issues that were inextricably in-

terwoven with proximate cause, comparative negligence

and other issues that would be addressed in the individual

local trials. Pet. App. 19a-20a. This trial plan violated

the Seventh Amendment. Pet. App. 21a. The court of

appeals observed that, when mandamus is used to vindi-

cate Seventh Amendment rights, “the stringent conditions

on the availability of the writ (including the requirement

of proving irreparable harm) [are] excused.” Pet. App.

20a-2 1a.

Third, the district court violated Federal Rule of

Civil Procedure 23 by certifying a class when class litiga-

The Erie error posed a particular problem because of the

“serendipity” theory on which petitioners base much of their case:

If the instruction on negligence will serve to instruct the

jury on the legal standard of every state of the United States

applicable to [petitioners’] novel [serendipity] claim, implying

that the claim despite its controversiality would be decided

identically in all 560 states and the District of Columbia, one

wonders what the Supreme Court thought it was doing in

the Erie case when it held that it was unconstitutional for

federal courts in diversity cases to apply general common law

rather than the common law of the state whose law would

apply if the case were being tried in state rather than federal

court.

Pet. App. 14a (original emphasis).

10

tion was a manifestly inferior means for fair and efficient

adjudication of these claims. The court held that in this

case, unlike most class actions, trial of individual cases

was feasible. Pet. App. 12a-13a. Nevertheless, the dis-

trict court intended to supplant this “pooling of judgment,

of many different tribunals,” with a single trial in which

the jury would be charged under “a legal standard that

does not actually exist anywhere in the world.” Pet. App.

12a-13a. The court of appeals held that use of the proce-

dural mechanism of class certification to increase the

stakes of the litigation “need not be tolerated” in the cir-

cumstances of this case." Pet. App. 12a-13a.

The court of appeals also held that the district court’s

errors were insulated from meaningful appellate review.

Pet. App. 7a, lla. The Seventh Circuit assumed, albeit

incorrectly (see infra, at 19-20), that the district court’s

plan of trying the claim of one petitioner to judgment

would eventually produce a final judgment. Pet. App.

8a, 166a. The court of appeals held that respondents

would be irreparably injured because the certification

order—which contained manifest legal errors and im-

properly heightened “the sheer magnitude of the [litiga-

16 The court of appeals expressly stated that it was not passing

on the merits of the case. Pet. App. 16a. But the court did con-

sider the history of this litigation—including the fact that respond-

ents had won 12 of 13 cases tried thus far. Since the Seventh

Circuit decision, respondents’ record has changed to 11 wins in 11

fully tried cases. The Eleventh Circuit reversed and remanded

for a new trial the sole plaintiff’s verdict. See Christopher v.

Cutter Lab., 58 F.3d 1184 (11th Cir. 1995). In addition, the

Seventh Circuit reversed the defense verdict in Gruca v. Alpha

Therapeutic Corp., 51 F.3d 688 (7th Cir. 1995), and remanded the

case for a new trial. Contrary to petitioners’ suggestion, Pet. at

27 n.27, the Gruca reversal does not reflect favorably on the merits

of petitioners’ case. The Gruca panel ordered a new trial because

the district court had failed to (1) rule on a key evidentiary issue,

and (2) correct an error in closing argument. Significantly, Gruca

was authored by Judge Bauer, who joined the majority opinion

in the present case.

11

tion] risk”—would improperly force respondents to settle.

Pet. App. 9a-11a.*®

REASONS FOR DENYING THE PETITION

As the court of appeals recognized, mandamus is an

“extraordinary” remedy available “only in extraordinary

cases.” Pet. App. 2a. This is such a case, which, by

itself, argues vigorously against certiorari. The certifica-

tion order entered by the district court was replete with

fundamental constitutional errors. It violated Erie R.R.

v. Tompkins, 304 U.S. 64 (1938). It violated the Sev-

enth Amendment. See Gasoline Prods. Co. v. Champlin

Refining Co., 283 U.S. 494 (1931).

The court of appeals analyzed respondents’ application

for a writ of mandamus pursuant to this Court’s rigorous

and settled two-part test for issuance of the writ and

concluded that (1) the order of the district court

amounted to a usurpation of judicial power and (2) the

order was insulated from effective appellate review. Pet.

App. 2a-3a, 1lla-12a. Those two determinations were

fully sufficient for issuance of mandamus under this

Court’s precedents. Neither this Court, nor any of the

courts of appeals, has adopted the position urged by

petitioners—that the “safety valve” of mandamus is

wholly unavailable to correct egregious and unappealable

errors in class certification orders. Maloney v. Plunkett,

854 F.2d 152, 155 (7th Cir. 1988).

Moreover, the court of appeals’ application of this

Court’s test for mandamus was correct in the unique cir-

cumstances of this case and is carefully limited to its

facts. It therefore is unlikely to affect other litigation.

For all of these reasons, the petition for a writ of cer-

tiorari should be denied.

16 The dissent did not dispute the majority’s conclusion that the

district court had overstepped its authority, Pet. App. 29a, but

would not have corrected the district court’s manifest errors on

mandamus.

12

1. Petitioners concede (Pet. 14) that this Court has

never held that mandamus is unavailable to challenge

class certification decisions. They nevertheless argue that

this Court’s mandamus precedents bar use of the writ to

challenge class certification orders. Petitioners are simply

wrong.

The Court has never catalogued the types of orders

that may be subject to mandamus.” Rather, to assure

that the writ is applied only as an extraordinary remedy,

the Court has established a two-part test that is applied

to the facts of each case. Under this test, litigants must

first “demonstrate a ‘clear abuse of discretion,’ or conduct

amounting to ‘usurpation of [the judicial] power.’” Mal-

lard v. United States District Court, 490 U.S. 296, 309

(1989) (citations omitted). Accord Gulfstream Aero-

space Corp. v. Mayacamas Corp., 485 U.S. 271, 289

(1988); Thermtron Prods., Inc. v. Hermansdorfer, 423

U.S. 336 (1976); Kerr v. United States District Court,

426 U.S. 394, 402-03 (1976); Schlagenhauf v. Holder,

379 U.S. 104, 110 (1964); De Beers Consol. Mines, Ltd.

v. United States, 325 U.S. 212, 217 (1945). In addi-

tion, litigants must show that they “lack adequate alterna-

tive means to obtain the relief they seek.” Mallard, 490

U.S. at 309 (emphasis added); Kerr, 426 U.S. at 403.

The court of appeals applied that two-part test to the

facts of this case. The Seventh Circuit stated that man-

damus will only issue when the district court order (a)

“so far exceed[s] the proper bounds of judicial discretion

as to be legitimately considered usurpative in character,”

Pet. App. 3a, and (b) may “not be effectively reviewable

at the end of the case... .” Pet. App. 2a-3a. Further,

the court of appeals stressed the limited availability of

17 Indeed, to do so would be inconsistent with the flexible grant

of authority in the All Writs Act, which provides that courts of

appeals may issue a writ of mandamus when “necessary or

appropriate in aid of their respective jurisdictions.” 28 U.S.C.

§ 1651 (a).

13

mandamus and the importance of restricting use of the

writ to cases that require an “extraordinary” remedy.

Pet. App. 2a-4a. It would be difficult to be more faith-

ful to this Court’s mandamus standards. The Seventh

Circuit’s application of those standards to the extraordi-

nary circumstances of this case is factbound and does

not merit review.

a. Petitioners contend (Pet. 14) that the decision of

the court of appeals conflicts with Coopers & Lybrand v.

Livesay, 437 U.S. 463 (1978). Coopers & Lybrand was

not, however, a mandamus case. Rather, the Court held

that class certification orders are not appealable as of

right pursuant to 28 U.S.C. § 1291. The Court did not

address—let alone foreclose—the use of mandamus as

an alternative means of challenging usurpative class cer-

tification orders. As the court of appeals observed in

this case, “[t]he point of cases like Coopers & Lybrand is

that irreparable harm is not enough to make class certifi-

cation orders automatically appealable under 28 U.S.C.

§ 1291, not that mandamus is never appropriate in a class

certification setting.” Pet. App. 3a.

b. Petitioners next contend (Pet. 13, 19) that, be-

cause a district court judge has the authority to certify a

class under Rule 23, a ruling on class certification cannot

constitute a usurpation of judicial power. Pet. 13, 19.

Petitioners cite no authority in support of their circular

theory. To the contrary, the Court repeatedly has ap-

proved the use of mandamus when district courts have

invoked federal statutes and rules of procedure to justify

the entry of usurpative orders. See, e.g., Mallard v.

United States District Court, 490 U.S. 296 (1989) (dis-

trict court had authority under 28 U.S.C. § 1915(d) to

request an attorney to represent indigent litigant but over-

stepped its authority by ordering mandatory appointment

of counsel); Thermtron Prods., Inc. v. Hermansdorfer,

423 U.S. 336 (1976) (district court had authority to

remand case under 28 U.S.C. § 1447(d) but exceeded

14

its power in remanding case on grounds not authorized

under statute); Schlagenhauf v. Holder, 379 U.S. 104

(1964) (district court had authority under Fed. R. Civ.

P. 35 to require a physical and mental examination, but

it was usurpation of power where court failed carefully

to apply Rule 35 guidelines); Beacon Theatres, Inc. v.

Westover, 359 U.S. 500 (1959) (district court had au-

thority under Fed. R. Civ. P. 42(b) and 57 to order

jury trial but its use of discretion to deprive defendant of

jury trial could not be justified); Dairy Queen, Inc. v.

Wood, 369 U.S. 469 (1962) (same); Hoffman v. Blaski,

363 U.S. 335 (1960) (district court had power under

28 U.S.C. § 1404(a) to transfer case to different district,

but it did not have authority to transfer case to a venue

where plaintiff did not have a right to bring it); La Buy

v. Howes Leather Co., 352 U.S. 249 (1957) (district

court had authority under Fed. R. Civ. P. 53(b) to refer

cases for trial before a master but it was an abuse of

judge’s power under the circumstances posed there).

Similarly, petitioners argue (Pet. 13) that mandamus

is not available because class certification orders are con-

ditional and subject to modification pursuant to Rule

23(d). However, no court has foreclosed the use of

mandamus on this ground. Indeed, there is abundant au-

thority to the contrary. See infra, note 25."

18 At most, courts consider the express willingness of a district

court to revisit the certification decision as a factor militating

against issuance of the writ in that particular case. See, e.g., In

re Breast Implant Litig., No. 92-3420/346 (6th Cir. May 22, 1992)

(Pet. App. 198a) (denying mandamus because record established

the conditional nature of the certification order in Dante v. Dow

Corning Corp., 148 F.R.D. 186, 188 (S.D. Ohio 1992)). In this

case, however, the district court showed no inclination to revisit

its certification decision. The district court stated that it was

inclined to deny respondents’ motion for reconsideration before

reading their brief and therefore did not require petitioners to file

a response, Resp. App. 5a-6a; refused to certify its class certifica-

tion order for interlocutory appeal, Pet. App. 63a; barred most

discovery unrelated to the negligence issue class trial—including

ee ee Te ee

15

c. At bottom, petitioners argue (Pet. 19) that the

court of appeals erred in applying the two-part mandamus

test to the particular facts of this case. This claim does

not provide a basis for a grant of certiorari. The decision

of the court of appeals was correct and, in any event,

was limited to the unique circumstances here.

The court of appeals properly held—and the dissent

did not dispute—that respondents satisfied the first re-

quirement for issuance of a writ of mandamus: They

demonstrated that the district court order “so far ex-

ceeded[ed] the proper bounds of judicial discretion as to

be legitimately considered usurpative in character.” Pet.

App. 3a.” The court identified three ways in which the

district court usurped judicial power and alluded to oth-

ers which it did not find it necessary to reach. See Pet.

App. 22a. Petitioners dismiss these “concerns” as “wholly

lacking in substance.” Pet. 17 n.16. But they are simply

wrong.

First, the district court usurped the authority of the

states to establish their own common law by “propos[ing]

to have a jury determine the negligence of the defendants

under a legal standard that does not actually exist any-

discovery into the claims of the putative class representatives;

scheduled the class issue trial within 10 months of entry of its

certification order; expressed a disinclination to entertain disposi-

tive motions prior to trial; and even declined to stay issuance of

class notice pending disposition of respondents’ mandamus petition.

Respondents were required to seek a stay from the court of appeals.

In short, there was nothing conditional about the certification

order here.

19 Four other courts have recognized that the issues presented in

these cases are not proper subjects for class treatment. See D.K.

v. Armour Pharmaceutical Co., No. L-8154-98 (N.J. Super. Ct.

June 9, 1994); Gannon v. Cutter Lab., No. C-85-20078 (N.D. Cal.

April 11, 1988); Doe v. Cutter Biological, Inc., No. 87-0232 (D.

Hawaii Dec. 8, 1987); Doe v. Sno-Isle Community Blood Bank,

No. 86-2-16308-5 (Wash. Super. Ct. June 29, 1987). Copies of these

opinions have been lodged with the Clerk of the Court.

16

where in the world.” Pet. App. 13a. The district court’s

approach does violence to the core teaching of Erie R.R.

v. Tompkins, 304 U.S. 64 (1938). Petitioners argue only

that “[n]Jational class actions in diversity cases of the

kind contemplated by the district court in the instant case

are now common in the federal system.” Pet. 17 n.16,

28 n.29. However, they do not cite—and cannot cite—

any authority for the proposition that differences in state

law can be ignored in trying such cases. Here, petitioners

encouraged the district court to adopt a one-size-fits-all ap-

proach to negligence law—even though their “serendipity”

theory had already been rejected by courts applying the

law of several states.” Such an approach simply cannot

be reconciled with Erie’s command to focus pointedly on

the law of each state as the rule of decision.

Second, the district court usurped respondents’ Seventh

Amendment rights by ordering the trial, on a classwide

basis, of issues that are inextricably interwoven with

issues that would be addressed in subsequent individual

trials. Pet. App. 19a-20a. Petitioners assert (Pet. 17

n.16, 28 n.29) only that “well-settled procedures” allow

“bifurcation with separate juries” and that any determina-

tion on this issue was premature. They ignore the fact

that the district court explicitly and repeatedly stated that

the issue class negligence trial would be conducted before

one jury and that all remaining issues—including proxi-

mate causation and comparative negligence—would be

tried before numerous other juries. Pet. App. 57a, 59a-

60a, 166a. That plan violates the Seventh Amendment.

20 See McKee v. Cutter Lab., Inc., 866 F.2d 219, 224 (6th Cir.

1989) (rejecting proposition that respondents had a duty to fore-

see AIDS epidemic under Kentucky law); Jones v. Miles Lab.,

887 F.2d 1576, 1582 (1ith Cir. 1989) (hindsight cannot determine

fault for spread of AIDS); Hoemke v. New York Blood Ctr., 912

F.2d 550, 553 (2d Cir. 1990) (affirming direction of verdict against

plaintiff under New York law). Cf. Jaime v. Saint Joseph Hosp.

Found., 853 S.W.2d 604, 614-15 (Tex. Ct. App. 1998) (affirming

entry of summary judgment against plaintiff on ground that plain-

tiff’s theory is based on hindsight).

17

See Gasoline Prods. Co. v. Champlin Refining Co., 283

U.S. 494, 500 (1931).

Indeed, as the Seventh Circuit noted, “[t]he protection

of the right conferred by the Seventh Amendment to trial

by jury in federal civil cases is a traditional office of the

writ of mandamus.” Pet. App. 31a. This Court has on

several occasions endorsed the use of mandamus to block

similar Seventh Amendment violations. See Beacon

Theatres, Inc. v. Westover, 359 U.S. 500 (1959); Dairy

Queen, Inc. v. Wood, 369 U.S. 469 (1962). In those

decisions, the Court has not required a separate showing

that a violation of the right to trial by jury constitutes an

injury that cannot be remedied on appeal. Beacon

Theatres, 359 U.S. at 510-11; Dairy Queen, 369 USS.

at 472. See generally Pet. App. 21a. Thus, on the basis

of the district court’s Seventh Amendment error alone,

mandamus properly issued.

Third, the district court engaged in a gross abuse of

discretion by certifying an issue class although class litiga-

tion would be a manifestly inferior means of adjudicating

these cases. See Fed. R. Civ. P. 23(b). Pet. App. 12a-

13a. Specifically, the court of appeals concluded that the

district court overstepped its authority by placing the out-

come of this litigation in the hands of a single class jury

when individual trials not only are feasible, but will per-

mit “a pooling of judgment, of many different tribunals.”

21 The Seventh Amendment plainly forbids the splitting of differ-

ent parts of a controversy for resolution by separate federal court

juries where the issues are interwoven. See Alabama v. Blue Bird

Body Co., 573 F.2d 309, 318 (5th Cir. 1978) (“inherent in the

Seventh Amendment... is the general right of a litigant to have

only one jury pass on a common issue of fact”). See also McDaniel

v. Anheuser-Busch, Inc., 987 F.2d 298, 305 (5th Cir. 1998); C.W.

Regan, Inc. v. Parsons, Brinckerhoff, Quade & Douglas, 411 F.2d

1379, 1388 (4th Cir. 1969); In re Industrial Gas Antitrust Litig.,

100 F.R.D. 280, 303 (N.D. Ill. 1983). Separate juries may decide

separate issues in a controversy only if those issues are “so dis-

tinct and separable” from each other that separate trials may be

conducted “without injustice.” Gasoline Prods., 288 U.S. at 500.

18

Pet. App. 12a. Petitioners complain that such reasoning

violated Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178

(1974), because it interjected a consideration of the

merits into the class certification decision. Petitioners are

mistaken. Eisen teaches that class certification decisions

should not be delayed pending resolution of potentially

dispositive motions. It does not require the courts to

certify classes when a class action is not “superior to

other available methods for the fair and efficient adjudi-

cation of the controversy.” Fed. R. Civ. P. 23(b)(3).

It is impossible to make a reasoned decision as to how

efficiently to adjudicate a dispute without some inquiry

into the nature of the issues presented. In any event, the

court explicitly stated that it “express[ed] no views on the

substantive issues in this litigation.” Pet. App. 16a.

Petitioners also contend that the court of appeals

eroded mandamus standards by holding that the district

court order was effectively unappealable. Pet. App. 11a.

They argue (Pet. 19) that the Seventh Circuit’s analysis

would allow virtually every class certification order to be

challenged through mandamus. Petitioners grossly over-

state the scope of the court of appeals’ holding. This case

is unusual because the class certification order does more

tian increase the number of plaintiffs. The order also

changes the likely outcome of the litigation by invoking

procedures and standards that are beyond the current

legal authority of the federal courts. See 28 U.S.C.

§ 2072(b) (Federal Rules of Civil Procedure “shall not

abridge, enlarge or modify any substantive right”).

Where respondents have had an opportunity to mount

a full defense, they have won every case. See supra, note

15. The district court’s certification order tipped the

playing field by authorizing a class trial focused solely

upon certain aspects of respondents’ conduct, to be tested

under a novel legal theory and a single putatively national

legal standard. The district court’s manifest errors im-

19

proved petitioners’ chances of obtaining favorable findings

on at least some issues at the class trial and—because

such findings would not be subject to meaningful appeal

—imposed extraordinary and improper pressure on re-

spondents to settle. There is no reason for an appellate

court to close its eyes to these realities.”

Indeed, the Seventh Circuit’s conclusion—that the

class certification order is effectively unappealable—is

correct as a pure matter of legal procedure: The multi-

stage, multi-trial structure would, in and of itself, deprive

respondents of their right to a meaningful appeal. The

district court has stated that, after the class trial, it would

try the claims of one of the class representatives (before

a second jury) and then hope that an interlocutory ap-

peal from that trial verdict would be allowed. Pet. App.

166a. However, if the class trial produced findings in

favor of petitioners but the subsequent trial of the in-

dividual petitioner’s claims produced a defense verdict,”

respondents would not have an adverse judgment to ap-

peal. Petitioners would nevertheless no doubt attempt to

utilize the unfavorable class verdict for preclusive effect

22 Petitioners complain (Pet. 7, 18) that the panel’s reasoning

is based on speculation concerning the conduct of mass tort litiga-

tion. Judges, however, are under no obligation to leave their

common sense and experience at the courthouse door. Petitioners

do not (and could not) challenge the accuracy of the court of

appeals’ understanding of the dramatic consequences of class cer-

tification as proposed by the district court.

23 A defense verdict could result in a number of different ways.

For example, a defense verdict could be returned if the district

court or the jury found the individual claims of the putative class

representative to be barred by the statute of limitations; the

claims of at least some of the putative class representatives appear

to be time-barred. A defense verdict could also result if the class

representative failed to prove that his injury was caused by factor

concentrate. Even if the class representative established that his

injury was caused by factor concentrate, a defense verdict could

result if he failed to prove that the injury resulted from the con-

duct of a respondent that the class jury had held to be negligent.

20

in state and federal courts around the country.** No appeal

would be available to respondents to have the Seventh

Circuit set aside the underlying class certification, let

alone review the jury’s determination of the hundreds of

special issues presented to it. Respondents might thus

be compelled to challenge the use of the class verdict in

case after case both in and outside of the federal system.

That alone is enough of an “irreparable injury” to merit

mandamus.

In sum, the judgment of the court of appeals was cor-

rect. Moreover, it was case-specific. Petitioners’ attempt

to revive their unprecedented, patently erroneous, and

unappealable class trial plan should be rejected.

2. Petitioners argue (Pet. 21) that the decision of the

court of appeals conflicts with other appellate court deci-

sions that have declined to issue a writ of mandamus

setting aside other class certification decisions. There is

no conflict. The courts of appeals evaluate each petition

for mandamus—including those arising from class certifi-

cation—on a case-by-case basis to determine whether it

meets the standard for issuance of the writ based on the

specific claims at issue and the class proposed to be

certified.”

24 Obviously, respondents would contest any such effort. Res

judicata, collateral estoppel, or law of the case effects of such

an unprecedented class issue verdict cannot be predicted. See

generally 7B Charles A. Wright et al., Federal Practice & Proce-

dure, § 1789, at 245 (2d ed. 1986) (“[T]he court adjudicating a

[elass action] dispute cannot predetermine the res judicata effect

of its own judgment; that can be tested only in a subsequent

suit”).

25 See, e.g., In re Diamond Shamrock Chem. Co., 725 F.2d 858

(2d Cir.) (applying mandamus standards to uphold class certifica-

tion), cert. denied, 465 U.S. 1067 (1984); In re Fibreboard Corp.,

893 F.2d 706 (5th Cir. 1990) (granting mandamus to vacate cer-

tification) ; In re Bendectin Prods. Liab. Litig., 749 F.2d 300 (6th

Cir. 1984) (granting mandamus to vacate certification) ; Jn re NLO,

Inc., 5 F.8d 154 (6th Cir. 1998) (applying mandamus standard to

uphold certification) ; In re Exterior Siding & Aluminum Coil Anti-

21

The cases cited by petitioners pose no conflict. For

instance, in Arthur Young & Co. v. United States District

Court, 549 F.2d 686 (9th Cir. 1977), cert. denied, 434

U.S. 829 (1977), the court of appeals refused to issue

a writ of mandamus to vacate an order that certified an

issue class and proposed a two-tier trial plan. The Ninth

Circuit did not, however, hold that mandamus is never

available to challenge class certification orders. Rather,

the court held that petitioners were not entitled to man-

damus on the facts of their case because they had failed

to establish that the district court made a clear and in-

disputable mistake. Jd. at 692. The court specifically

rejected a Seventh Amendment claim on the ground that

the issues to be determined by the second jury were dis-

tinct from those to be tried by the class jury. Jd. at 693.

In contrast, the Seventh Circuit held here that the pro-

posed trial plan violated the Seventh Amendment because

the issues to be decided at the class issue trial and sub-

sequent individual trials were inextricably intertwined.

Pet. App. 19a-20a.”

trust Litig. (MDL No. 454), 696 F.2d 618 (8th Cir. 1982) (granting

mandamus to vacate certification), cert. denied, 464 U.S. 866

(1983) ; Schmidt v. Fuller Brush Co., 527 F.2d 532 (8th Cir. 1975)

(granting mandamus to vacate certification) ; Green v. Occidental

Petroleum Corp., 541 F.2d 1835 (9th Cir. 1976) (granting man-

damus to vacate certification) ; Bauman v. United States District

Court, 557 F.2d 650 (9th Cir. 1977) (applying mandamus standard

to uphold certification) ; McDonnell Douglas Corp. v. United States

District Court, 523 F.2d 1088 (9th Cir. 1975) (granting mandamus

to vacate certification), cert. denied, 425 U.S. 911 (1976); In re

Dennis Greenman Sec. Litig., 829 F.2d 1589, 1542 (11th Cir. 1987)

(“Parties may also seek appellate review [of an order certifying a

mandatory class] through a petition for a writ of mandamus”) ;

In re Temple, 851 F.2d 1269 (11th Cir. 1988) (granting mandamus

to vacate certification).

26 Arthur Young is distinguishable from the present case on yet

another ground. No state choice of law issues were presented;

all certified claims concerned alleged violations of federal securities

laws. 549 F.2d at 688-89.

22

Petitioners’ reliance on the Tenth Circuit decision in

Copley Pharmaceutical, Inc. v. Brimmer, No. 95-8032

(10th Cir. May 31, 1995) (Pet. App. 169a), is simi-

larly misplaced. The court of appeals did nothing more

than decline to grant mandamus on the ground that “peti-

tioner had not demonstrated adequately that the district

court has abused its discretion in granting certification.”

That general statement does not conflict with the Seventh

Circuit’s reasoning in the present case. The other cases

cited by petitioners are similarly distinguishable.”

27In In re Sugar Antitrust Litig., 559 F.2d 481, 483 (9th Cir.

1977), the Ninth Circuit applied the rigorous two-part test for

mandamus to the certification order, but concluded that the peti-

tioners “had not made a threshold showing of ‘clear and indisput-

able’ error to invoke the writ.” In In re Breast Implant Litig.,

No. 92-3420/346 (6th Cir. May 22, 1992) (Pet. App. 198a), the

Sixth Circuit acknowledged that mandamus could be available to

challenge some class certification orders, but denied mandamus

because the record in that case established the conditional nature

of the certification order. See Dante v. Dow Corning Corp., 142

F.R.D. 136, 138 (S.D. Ohio 1992). The Eleventh Circuit did not

explain the reasons that it denied mandamus in In re Bausch &

Lomb Inc., No. 94-711 (11th Cir. Dec. 1, 1994) (Pet. App. 197a).

Petitioners also suggest that the present decision conflicts with

decisions of the Third, Fourth, and Fifth Circuits, which upheld

class certification orders on interlocutory appeal pursuant to 28

U.S.C. §1292(b). Pet. 22 n.21. However, the Third and Fourth

Circuits permitted certification of nationwide classes only when

provision was made to dea! with differences of state law through

a state-by-state analysis of both choice-of-law and substantive law.

See, e.g., In re School Asbestos Litig., 789 F.2d 996, 1010 (3d Cir.),

cert. denied, 479 U.S. 852, 915 (1986); Central Wesleyan College

v. W.R. Grace & Co., 6 F.3d 177, 189 (4th Cir. 1993). The dis-

trict court here refused to take such steps to avert an Erie prob-

lem. Similarly, the Fifth Circuit case cited by petitioners did not

present an Erie issue because it arose under the law of only one

state. See Jenkins v. Raymark Indus., Inc., 782 F.2d 468 (5th Cir.

1986).

In any event, the Fifth Circuit will entertain a mandamus peti-

tion challenging a class certification order. In In re Fibreboard

Corp., 893 F.2d 706 (5th Cir. 1990), the court issued a writ of

mandamus directing the district court to vacate a certification

23

3. ‘uinally, petitioners (Pet. 23) submit that the Sev-

enth Circuit’s decision will “undermine the proper rela-

tionship between trial and appellate courts.” Their

argument is premised on the assumption that appellate

courts are eager to use mandamus to second-guess the

class certification decisions of district courts.

The short answer is that petitioners have cited no man-

damus stampede in response to the Seventh Circuit’s deci-

sion. Further, petitioners’ prediction (Pet. 19) that the

Seventh Circuit will expand mandamus review in other

Rule 23 cases on the basis of this decision is directly con-

tradicted by the cpinion of the court. The court of appeals

pointedly stated that “[t]he set of orders in which both

conditions [for issuance of the writ of mandamus] are

satisfied is small. It certainly is not coterminous with the

set of orders certifying suits as class actions.” Pet. App.

3a.* If petitioners’ prediction proves true, then there will

be plenty of opportunity for this Court to intervene. Until

then, the issues presented are best left to the lower courts.

The court of appeals acted here in response to an “ex-

traordinary” and effectively unappealable district court

decision. The Seventh Circuit recognized that the district

court, while well-intentioned, sought to manage litiga-

tion using procedures and legal standards that are simply

beyond the powers presently conferred on federal judges

by the Constitution and statutes of the United States. The

panel properly used mandamus to correct the profound,

harmful, and effectively unappealable error of the district

court. Petitioners ask this Court to reinstate the unconsti-

tutional and usurpative process proposed by the district

court. The Court should decline that invitation.

order that posed a novel trial plan in violation of Erie and the

Seventh Amendment.

28 Significantly, this is the first and only time on record that the

Seventh Circuit has issued a writ of mandamus to vacate a class

certification order.

erga.

24

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be denied.

RICHARD L. BERKMAN

FRED T. MAGAZINER

DECHERT, PRICE & RHOADS

4000 Bell Atlantic Tower

Philadelphia, PA 19103

(215) 994-4000

Attorneys for

Baxter Healthcare Corp.

DAVID I. BELL

DAPHNE B. SUBAR

KNAPP, PETERSON & CLARKE

500 North Brand Boulevard

Glendale, CA 91203

(818) 547-5000

Attorneys for

Alpha Therapeutic Corp.

Respectfully submitted,

DOUGLAS F.. FUSON

Counsel of Record

SARA J. GOURLEY

SUSAN A. WEBER

SIDLEY & AUSTIN

One First National Plaza

Chicago, IL 60603

(312) 853-7000

Attorneys for Armour

Pharmaceutical Co. &

Rhéne-Poulenc Rorer Inc.

DUNCAN BARR

MARIROSE PICIUCCO

O’CONNOR, COHN, DILLON

& BARR

101 Howard Street, Fifth Floor

San Francisco, CA 94105-1619

(415) 281-8888

GEOFFREY R.W. SMITH

PIPER & MARBURY

1200 19th Street, N.W.

Washington, DC 20036

(202) 861-6478

Attorneys for Miles Inc.