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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1995
- **Citation:** 516 U.S. 867

## Text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_2407%3A3. Public record. Not legal advice.