Opposition Brief — Official Committee of Tort v. Dow Corning Corp.

No. 97-210-CFX

IN THE ;

——- =< ~

Supreme Court of the Hnited States

OCTOBER TERM, 1997

>

OFFICIAL COMMITTEE OF TORT CLAIMANTS,

Petitioner,

ye

DOW CORNING CORPORATION, THE DOW CHEMICAL

COMPANY, and CORNING INCORPORATED,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF IN OPPOSITION OF RESPONDENT

MINNESOTA MINING AND

MANUFACTURING COMPANY

BRUCE R. ZIRINSKY

(Counsel of Record)

ARVIN MASKIN

JOHN H. BAE

ALISON D. GENEEN

WEIL, GOTSHAL & MANGES LLP

767 Fiith Avenue

New York, New York 10153

(212) 310-8000

Counsel for Respondent,

Minnesota Mining and

Manufacturing Company

QUESTIONS PRESENTED

1. Whether the Sixth Circuit erred in ruling that it had

jurisdiction in mandamus to enforce its mandate by reviewing

the decision of the United States District Court for the East-

ern District of Michigan, which ignored the Sixth Circuit’s

mandate to conduct an abstention analysis in strict compli-

ance with the requirements of 28 U.S.C. § 1334.

2. Whether the Sixth Circuit erred in ordering the United

States District Court for the Eastern District of Michigan to

transfer silicone gel breast implant claims pending against

nondebtor codefendants when those claims are “related to”

the chapter 11 case of Dow Corning Corporation under 28

U.S.C. § 157(b)(5).

LIST OF PARTIES

In addition to the parties listed in the caption, the follow-

ing are parties to the proceeding in the Sixth Circuit:

Minnesota Mining and Manufacturing Company, Baxter Inter-

national Incorporated; Baxter Healthcare Corporation; Bris-

tol-Myers Squibb Corporation and Medical Engineering

Corporation; Heidi Lindsey; Johnson County, Texas, Plain-

tiffs; Breast Implant Tort Claimants Represented by O’ Quinn,

Kerensky, McAninsh & Laminack; Office of the United States

Trustee; Mississippi Physicians; MDL Panel; California Plain-

tiffs’ Steering Committee, as amicus curiae and Official

Committee of Unsecured Creditors, as amicus curiae.

RULE 29.6 LISTING

Pursuant to Supreme Court Rule 29.6, respondent Min-

nesota Mining and Manufacturing Company states that it does

not have a parent company. Its subsidiaries (other than wholly

owned subsidiaries) are Eastern Heights State Bank of St.

Paul (Minn.), Sumitomo 3M Limited (Japan), 3M Health Care

Limited (Japan), 3M Korea Limited (Korea), and Birla 3M

Limited (India).

ill

TABLE OF CONTENTS

PAGE

So pg : i

Cee ee idea uae uswhecscncdess li

in an ga dau dawnt ae l

STATUTORY PROVISIONS INVOLVED............. l

eeeeeeeeee es Gee Gees CASE. ........ 2... 0... c cece ee. 2

ee sie ack adeadansees 4

Ee 6

REASONS FOR DENYING THE WRIT............... 7

I. THE PROCEDURAL POSTURE OF THE

INTERLOCUTORY DECISION BELOW

RENDERS THE ISSUES UNRIPE FOR

A es Re 8

Il. THE PETITION FAILS TO DEMONSTRATE

ANY COMPELLING REASON FOR THE

COURT TO EXERCISE ITS DISCRETION

Bur Gee CESAR! .................. 10

A. The Sixth Circuit Properly Asserted

Mandamus Jurisdiction to Review the

District Court Order .................... 11

1V

PAGE

1. Appellate Jurisdiction was Retained

When the Sixth Circuit Remanded

the Abstention Issue............... 12

to

The Sixth Circuit had Mandamus

Jurisdiction Under the All Writs

ROB bic. cob eb hak lee 13

Petitioner’s Reliance on the

Appellate Bar Language in

Section 1334(d) is Misguided ..... 15

\o)

B. The Sixth Circuit Correctly Interpreted

and Applied 28 U.S.C. § 157(B)(5) .... 16

CPG a eI sas 5.0wa 445. cbs weceh wah Chae ee eee eaaueenenés 21

TABLE OF AUTHORITIES

Cases PAGE

A.H. Robins Co. v. Piccinin (In re A.H. Robins Co.),

788 F.2d 994 (4th Cir. 1985) .............. 17, 18, 19-20

In re A.H. Robins Co., No. 85-01307-R (E.D. Va.

SE Say EAs cs vena cadcusied dekadsucesseacetene 19

In re A.H. Robins Co., 880 F.2d 709 (4th Cir.),

cert. denied sub nom., Anderson v. Aetna Cas.

& Surety Co., 493 U.S. 959 (1989) 2.2.2 cecessces. 20

Abbott Lab. v. Gardner, 387 U.S. 136 (1967) ......... 8

American Fire & Cas. Co. v. Finn, 341 U.S. 6 (1951). 18

Anderson v. Green, 115 S. Ct. 1059 (1995)............ Y

Baltimore & O.R. Co. v. United States, 279 U.S. 781

Bs EEE, a EPR re poy ae Te name ees 14n.4

Beard v. Carrollton R.R., 893 F.2d 117 (6th Cir.

Belcon, Inc. v. Sherman Constr. Co., 800 F.2d 1321

SA Sa: See occ dikes dua Send eaoeuveneeutees bisaes 12

Bethea v. Levi Strauss & Co., 916 F.2d 453 (8th Cir.

Blanchette v. Connecticut Gen. Ins. Corp. (Regional

Rail Reorganization Act Cases), 419 U.S. 102

COREE odor a ta Keneetavce< ab eee 9

Brennan v. Township of Northville, 78 F.3d 1152

CU AD: DO ss cask chi ce cendekcke ee ieee 16n.6

vl

PAGE

Brotherhood of Locomotive Firemen & Enginemen v.

Bangor & Aroostock R.R. Co., 389 U.S. 327

RUE. <u a alien ikea aun lees anaes dade ante anehes 9n.3

In re Burns & Wilcox, Ltd., 54 F.3d 475 (8th Cir.

ng ET LE Fie Ey AE 15

Carroll y. Blinken, 42 F.3d 122 (2d Cir. 1994)......... 14n.4

Celotex Corp. v. Edwards, 115 S. Ct. 1493 (1995) .... 17

City of Okla. City v. Tuttle, 471 U.S. 808 (1985)...... 8

Cobbledick v. United States, 309 U.S. 323 (1940)..... 9

Continental Ins. Co. v. United States, 259 U.S. 156

PEA 5S Tarek ecco SER Oe aR ears eee 14n.4

In re Dow Corning Corp., 187 B.R. 919 (E.D. Mich.

PED iaicarad kinnsassnnkucoakcenaabgna aes eee nae 5

In re Dow Corning Corp., 187 B.R. 934 (E.D. Mich.

me renner ery MT em uN FNS serie CAMS 5

Fort Gratiot Sanitary Landfill, Inc. v. Michigan

Department of Natural Resources, 71 F.3d 1197

S PWN aA ec bsnecanendnencawathe ane 13, 14n.5

In re General Motors Corp., 3 F.3d 980 (6th Cir.

WE Sik. adwekeann Aaa a enah ee eeeeeuaared rene 14n.4, 15

Grover Hill Grain Co. v. Baughman-Oster, Inc., 728

ee re re nr 12

Hamilton-Brown Shoe Co. v. Wolf Bros. & Co., 240

ne CED Nine é dcacancadhanvek aera inuueeennene 9,10

Kidder, Peabody & Co., Inc. v. Maxus Energy Corp.

(In re lvan F. Boesky Securities Litigation), 957

eer COU GO BORD occ cns as devievendcndbexeanaus 13

Vil

PAGE

Layne & Bowler Corp. v. Western Well Works, Inc.,

261 OS. FAT CAGES). oc cis cise cde vtcesscss ceva 1]

Lindsey v. Dow Chemical Co. (In re Dow Corning

Corp.), 113 F.3d 565 (6th Cir.), petition for cert.

filed, 66 U.S.L.W. 3129 (U.S. Aug. 4, 1997)

LY | Beppe eenrer rererrre rt rrr ert rr l

Lindsey v. Dow Corning Corp. (In re Silicone

Gel Breast Implant Prods. Liab. Litig.),

No. CV92-P-10000-S, MDL No. 926, Civ. A.

No. CV94-P-11558-S, 1994 WL 578353 (N.D.

Ala. Sept. 1, 1994) ..........cce eee cree er eeeeeeces 4

Lindsey v. Dow Corning Corp. (In re Silicone Gel

Breast Implant Prods. Liab. Litig. (MDL 926),

No. CV 94-P-11558-S (N.D. Ala. 1995).......... 4

Lindsey v. O’Brien, Tanski & Young Healthcare

Professionals (In re Dow Corning Corp.), 86

F.3d 482 (6th Cir. 1996), cert denied, 117 S. Ct.

coi. f 3 Sr errrerrrrr tr rreerery S$. 6, 7, 12, 33

Mercer v. Theriot, 377 U.S. 152 (1964) ............-55. 10n.3

Murray v. Pan Am. World Airways, Inc. (In re Pan

Am Corp.), 16 F.3d 513 (2d Cir. 1994) ........... 20

Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43

CRON cc nka tunis s cert nde ddan ev cas ero teepantoes nays 9

In re S.G. Phillips Constructors, Inc., 45 F.3d 702

CFC, SIGS iiwoe son canrenstsewansinnnsaevnwender es 16n.6

In re Silicone Gel Breast Implants Prods. Liab.

Litig., MDL No. 926, 793 F. Supp. 1098 (J.P.M.L.

WOE occu exec cavuarens ¥hetndeseetenseetey eahenens a, 4

Super X Drugs Corp. v. Federal Deposit Ins. Corp.,

862 F.2d 1252 (6th Cir. 1988) ...........-seeees 12

Vili

PAGE

Swint v. Chambers County Comm'n, 514 U.S. 35,

BED wm. Ch DP CEG e ee vneknc snd beens newekeseeres 16n.6

Thomas v. Union Carbide Agric. Prods. Co., 473 U.S.

ee CADE? 60st avn ced bd yy eae eaceenaa ees 9

United States v. E.1. Dupont De Nemours & Co., 366

es ONE) v0.5 5.045 5nven rn waeewnerwads nekeui das 13

United States v. Nobles, 422 U.S. 225 (1975) ......... 11

United States v. Reyes, 49 F.3d 63 (2d Cir. 1995)...... 14n.5

United Sav. Ass'n v. Timbers of Inwood Forest Assocs.,

ERGs 5 MR Ds Fe CEP daa tev eosin rcxvsaddvess 18

Virginia Military Institute v. United States, 508 U.S.

ay Bb Sd RET Oe ee eee Oe OE ore 9

Statutes

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28 U.S.C.

28 U.S.C.

28 U.S.C.

28 U.S.C.

28 U.S.C.

28 U.S.C.

28 U.S.C.

28 U.S.C.

28 U.S.C.

28 U.S.C.

28 U.S.C.

28 U.S.C.

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Respondent, Minnesota Mining and Manufacturing Com-

pany (“3M”) respectfully requests that the Court deny the

petition for a writ of certiorari to the United States Court of

Appeals for the Sixth Circuit (the “Petition”) seeking review

of the Sixth Circuit’s decision in Lindsey v. Dow Chemical

Co. (In re Dow Corning Corp.), 113 F.3d 565 (6th Cir.), peti-

tion for cert. filed, 66 U.S.L.W. 3129 (U.S. Aug. 4, 1997)

(No. 97-210) (hereinafter, “Lindsey IT”).

OPINIONS BELOW

The opinion of the Sixth Circuit in Lindsey I] (Tort Comm.

Pet. App., la-12a),' is reported at 113 F.3d 565 (6th Cir.

1997). On May 9, 1997, the Sixth Circuit issued its mandate

(Tort Comm. Pet. App., la-12a). The opinion of the United

States District Court for the Eastern District of Michigan (the

“District Court Order”), which was reversed by the Sixth Cir-

cuit in Lindsey I] (Tort Comm. Pet. App., 13a-20a), is unre-

ported.

STATUTORY PROVISIONS INVOLVED

The principal statutory provisions involved are: 28 U.S.C.

§ 1334(c)(2), which provides:

Upon timely motion of a party in a proceeding based

upon a State law claim or State law cause of action,

related to a case under title 11 but not arising under title

11 or arising in a case under title 11, with respect to

which an action could not have been commenced in a

court of the United States absent jurisdiction under this

section, the district court shall abstain from hearing such

proceeding if an action is commenced, and can be timely

adjudicated, in a State forum of appropriate jurisdiction.

28 U.S.C. § 1334(d), which provides:

l

References to “Tort Comm. Pet. App.” are to the Appendix to

the Petition.

Any decision to abstain or not abstain made under this

subsection (other than a decision not to abstain in a pro-

ceeding described in subsection (c)(2)) is not reviewable

by appeal or otherwise by the court of appeals under sec-

tion 158(d), 1291, or 1292 of this title or by the Supreme

Court of the United States under section 1254 of this

title.

28 U.S.C. § 157(b)(5), which provides:

The district court shall order that personal injury tort

and wrongful death claims shall be tried in the district

court in which the bankruptcy case is pending, or in the

district court in the district in which the claim arose, as

determined by the district court in which the bankruptcy

case 1s pending.

STATEMENT OF THE CASE

Dow Corning Corporation (“DCC”) was the predominant

producer of silicone gel breast implants until 1992 when it

stopped manufacturing implants. Because thousands of recip-

ients of silicone gel breast implants asserted claims for com-

pensatory and punitive damages in federal and state court

actions against DCC, on May 15, 1995, DCC was forced to

file for protection under chapter 11 of title 11, United States

Code (the “Bankruptcy Code”), in the United States

Bankruptcy Court for the Eastern District of Michigan.

On the date DCC commenced its chapter 11 case, over

7,000 implant lawsuits, representing the claims of over

15,000 plaintiffs, had been filed against respondent 3M,

which stopped manufacturing breast implants in 1984. Record

265; Boardman Decl. 94.7 DCC has been named as a code-

fendant with 3M in over 5,000 of those 7,000 lawsuits.

Record 265; Boardman Decl. 45. In virtually every one of

“Record ” refers to the Record filed in connection with the

decision below.

those 5,000 cases, plaintiffs asserted claims of joint and sev-

eral liability against 3M and DCC for the full amount of their

asserted damages. Record 265; Boardman Decl. 947-10.

Additionally, in many of the implant cases, the plaintiffs

received implants manufactured by DCC as well as implants

made by 3M. Record 473; Letter to J. Hood of Aug. 4, 1995.

Thousands of other cases were also filed against Bristol-

Myers Squibb Corporation and Medical Engineering Corpo-

ration (together “Bristol-Myers”), Baxter International

Incorporated and Baxter Healthcare Corporation (together

“Baxter”), as well as other defendants, including the 50%

shareholders of DCC, The Dow Chemical Company and Corn-

ing Incorporated (the “Shareholders,” and collectively with

3M, Bristol-Myers, and Baxter, the “Nondebtor Codefen-

dants”). As with the cases against 3M, many of the cases

against the other Nondebtor Codefendants also named DCC as

a codefendant, asserted joint and several liability, and

involved implants from multiple manufacturers.

Background

On June 25, 1992, the Judicial Panel on Multidistrict Liti-

gation (the “MDL Panel”) ordered the centralization of pre-

trial proceedings in all of the thousands of federal breast

implant actions that have been filed against DCC and the

Nondebtor Codefendants, and transferred the actions to Chief

Judge Pointer of the Northern District of Alabama (the “Mul-

tidistrict Court”). Jn re Silicone Gel Breast Implants Prods.

Liab. Litig., MDL No. 926, 793 F. Supp. 1098, 1099-1101

(J.P.M.L. 1992). The MDL Panel found that these actions

involve complex common questions of fact and that central-

ization would best serve the convenience of the parties and

witnesses, promote the just and efficient conduct of litigation,

avoid duplication of discovery, prevent inconsistent pretrial

rulings, and conserve the resources of the parties, their coun-

sel, and the judiciary. /d. at 1099-1101.

A proposed class action settlement (the “1994 Settlement”)

was reached among DCC, the Nondebtor Codefendants, and

the plaintiffs’ steering committee, and approved by the Mul-

tidistrict Court by order dated September 1, 1994. Lindsey v.

Dow Corning Corp. (In re Silicone Gel Breast Implant Prods.

Liab. Litig.), No. CV92-P-10000-S, MDL No. 926, Civ. A.

No. CV94-P-11558-S, 1994 WL 578353 (N.D. Ala. Sept. 1,

1994). On December 22, 1995, the Multidistrict Court

approved a revised version of the 1994 Settlement, which did

not include DCC as a settling party. Lindsey v. Dow Corning

Corp. (In re Silicone Gel Breast Implant Prods. Liab. Litig.

(MDL 926)), No. CV 94-P-11558-S (N.D. Ala. 1995) (Order

No. 27 approving revised settlement program and injunc-

tions).

Proceedings Below

A. Lindseyl

As a result of DCC’s chapter 11 filing on May 15, 1995, the

Silicone gel breast implant actions of plaintiffs who had, at

that time, opted out of the 1994 Settlement (collectively, the

“Implant Actions”) were automatically stayed from prose-

cution against DCC pursuant to 11 U.S.C. § 362(a). The

Implant Actions against the Nondebtor Codefendants, how-

ever, were not stayed despite the fact that in most cases joint

and several liability was asserted against DCC and one or

more of the Nondebtor Codefendants.

In June 1995, DCC and the Nondebtor Codefendants filed

separate motions pursuant to 28 U.S.C. § 157(b)(5) to trans-

fer to the United States District Court for the Eastern District

of Michigan (the “District Court”) the claims asserted in

pending federal and state court Implant Actions in which

DCC was a party (collectively, the “Implant Claims”). By

memorandum opinion and order, dated September 12, 1995

(Tort Comm. Pet. App., 49a-76a), the District Court asserted

jurisdiction under 28 U.S.C. § 1334(b) with respect to the

Implant Claims pending against DCC and permitted transfer

of such claims pursuant to 28 U.S.C. § 157(b)(5). In re Dow

Corning Corp., 187 B.R. 919 (E.D. Mich. 1995), rev’d, 103

F.3d 129 (6th Cir. 1996). Record 389. The District Court,

however, denied the motion to the extent it related to claims

against the Shareholders. Jd. By separate memorandum opin-

ion and order, dated September 12, 1995, the District Court

denied all of the Nondebtor Codefendants’ § 157(b)(5) trans-

fer motions on the ground that the Implant Claims against the

Nondebtor Codefendants were not sufficiently related to the

DCC bankruptcy to confer jurisdiction pursuant to 28 U.S.C.

§ 1334(b). In re Dow Corning Corp., 187 B.R. 934 (E.D.

Mich. 1995). Record 388.

Moreover, the District Court did not abstain from adjudi-

cating the Implant Actions against DCC. Jn re Dow Corning

Corp., 187 B.R. at 932. Record 389. Although it refrained

from discussing the abstention issue in detail with regard to

the actions against the Nondebtor Codefendants, the District

Court “incorporated by reference its analysis of the abstention

issue in its Memorandum Opinion and Order on the Debtor’s

Motion to Transfer.” Jn re Dow Corning Corp., 187 B.R. at

938. Record 388.

DCC and the Nondebtor Codefendants appealed the District

Court’s decisions to the Sixth Circuit. Applying the broad

jurisdictional scope of 28 U.S.C. § 1334(b), the Sixth Circuit

reversed the District Court’s determinations that it lacked sub-

ject matter jurisdiction over the Implant Claims against the

Nondebtor Codefendants and that it did not have the power to

transfer those claims pursuant to 28 U.S.C. § 157(b)(5). (Tort

Comm. Pet. App., 48a). Lindsey v. O’Brien, Tanski & Young

Healthcare Professionals (In re Dow Corning Corp.) (here-

inafter, “Lindsey I”), 86 F.3d 482 (6th Cir. 1996), cert denied,

117 S. Ct. 718 (1997). In Lindsey 1, the Sixth Circuit con-

cluded that a transfer would “further the prompt, fair, and

complete resolution of all claims ‘related to’ bankruptcy pro-

ceedings and harmonize Section 1334(b)’s broad jurisdic-

tional grant with the oft-stated goal of centralizing the admin-

istration of a bankruptcy estate.” /d. at 497. The Sixth Circuit

found that because the joint liability claims pending against

DCC and the Nondebtor Codefendants give rise to contingent

claims for indemnification or contribution among all of the

defendants, including DCC, which could ripen into fixed

claims, the potential that DCC will be held liable to the Non-

debtor Codefendants for indemnification or contribution, or

vice versa, “suffices to establish a conceivable impact” on

DCC’s estate and confer jurisdiction on the District Court. /d.

at 494.

With respect to the issue of abstention, the Sixth Circuit

found that the District Court failed to develop a full record on

the issue, and declined to address the issue “in the first

instance.” Thus, the Sixth Circuit remanded the case to the

District Court for further proceedings on the issue of absten-

tion pursuant to 28 U.S.C. § 1334(c). Lindsey I, 86 F.3d at

498. In the Sixth Circuit’s mandate, the District Court was

instructed to decide whether the exception to mandatory

abstention contained in 28 U.S.C. § 157(b)(4) applied to the

Implant Claims, and if not, whether the factors calling for

abstention were met in each action by conducting a case-by

case analysis. /d. at 497-98.

The Official Committee of Tort Claimants (the “Petitioner”)

filed a petition for a writ of certiorari to the Sixth Circuit in

an effort to overturn the Sixth Circuit’s decision in Lindsey /.

This Court denied the Petitioner’s petition.

B. Lindsey II

Upon remand of Lindsey I, on July 30, 1996, the District

Court abstained from adjudicating each and every Implant

ee Claim pursuant to 28 U.S.C. § 1334(c)(1) and (2), (R.549,

Order), without conducting the case by case analysis required

under Lindsey I. 86 F.3d at 497. Specifically, Judge Hood

abstained from all Implant Claims pending in state and fed-

See ee eee

eral courts, regardless of whether the plaintiffs in those

actions had filed timely motions for abstention and regardless

of whether the actions could have been commenced in a fed-

eral court absent jurisdiction under 28 U.S.C. § 1334. Having

erronecusly concluded that abstention was appropriate, the

District Court prevented the transfer of Implant Claims that

the Sixth Circuit in Lindsey I previously had found to be

related to the DCC bankruptcy case.

DCC and the Nondebtor Codefendants sought review of the

District Court’s decision to abstain by the Sixth Circuit by

both appeal and a petition for a writ of mandamus under 28

U.S.C. § 1651(a). The Sixth Circuit found that it had man-

damus jurisdiction to review the District Court Order for the

purpose of enforcing the court’s prior mandate in Lindsey /,

and ordered the District Court to transfer the claims against

the Shareholders, Dow Chemical and Corning, to the District

Court. The Sixth Circuit instructed the District Court to, upon

completion of transfer, index and cross reference the cases “so

that, in any proceeding in which a motion for abstention is

filed, the district court may make the required abstention

determinations and adequately state its reasoning as to each

such proceeding.” (Tort Comm. Pet. App., 12a). The Sixth

Circuit declined, at that time, to extend its holding to the

Nondebtor Codefendants other than the Shareholders. /d.

By order dated May 13, 1997, the District Court ordered the

transfer of all Implant Claims against the Shareholders,

whether pending in state or federal courts or later com-

menced, to the Eastern District of Michigan. On August I,

1997, Judge Hood issued her first Case Management Order

with respect to the Implant Claims against the Shareholders.

REASONS FOR DENYING THE WRIT

The procedural! posture of the decision below weighs heav-

ily against the Petitioner’s request for a writ of certiorari. The

questions presented are not ripe for review at this time

because the District Court has not decided whether to abstain

from exercising its subject matter jurisdiction over each

Implant Claim against the Shareholders. As a result, there is

no controversy for the Court to resolve.

Moreover, the Petitioner has failed to demonstrate any com-

pelling reason that would warrant this Court’s review. While

the issues are of importance to the parties to the proceeding,

they are of minimal importance to the development of the law.

The Petitioner has not demonstrated the existence of a con-

flict of decisions among the courts of appeals. Based on well-

settled law, the Sixth Circuit had appellate jurisdiction and

mandamus jurisdiction to review the District Court Order.

Finally, the Petitioner has failed to demonstrate that the

Sixth Circuit misapplied 28 U.S.C. § 157(b)(5) by ruling that

the District Court had the power to fix venue for trial of the

Implant Claims against the Nondebtor Codefendants. Indeed,

3M respectfully submits that the Sixth Circuit should have

done more than just transferring the Implant Claims pending

against the Shareholders. The Sixth Circuit should have

ordered the transfer of all Implant Claims against 3M and

other Nondebtor Manufacturers, and centralized all Implant

Claims in one forum so that they may be resolved in the effi-

cient and orderly manner as contemplated under the provi-

sions of § 1334.

I. THE PROCEDURAL POSTURE OF THE INTER-

LOCUTORY DECISION BELOW RENDERS THE

ISSUES UNRIPE FOR REVIEW AT THIS TIME

The decision to grant certiorari “represents a commitment

of scarce judicial resources.” City of Okla. City v. Tuttle, 471

U.S. 808, 816 (1985). In this regard, the ripeness doctrine

prevents the courts, “through avoidance of premature adju-

dication, from entangling themselves in abstract disagree-

ments.” Abbott Lab. v. Gardner, 387 U.S. 136, 148 (1967). It

is a principle of timing in which the Court must look at the

Situation at the present time rather than at the time of the

9

decision below. Anderson v. Green, 115 S. Ct. 1059, 1060

(1995) (citing Blanchette v. Connecticut Gen. Ins. Corp.

(Regional Rail Reorganization Act Cases), 419 U.S. 102, 140

(1974)). The doctrine is often used where future events may

affect the justiciable nature of a controversy, making it more

apt for review at a later date. See, e.g., Thomas v. Union Car-

bide Agric. Prods. Co., 473 U.S. 568, 580-81 (1985). Thus, an

action must be sufficiently mature so that it is considered an

actual case or controversy as required by Article III of the

United States Constitution. U.S. Const. art. III, § 2, cl. 1; see

also Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 57 n.18

(1993) (“ripeness doctrine is drawn both from Article III lim-

itations on judicial power and from prudential reasons for

refusing to exercise jurisdiction”).

Although the Court has jurisdiction to review interlocutory

judgments of federal courts of appeals, see 28 U.S.C.

§ 1254(1), the Court will generally not exercise its jurisdic-

tion before a final judgment is issued in the lower courts. See,

e.g., Virginia Military Inst. v. United States, 508 U.S. 946.

946 (1993); Hamilton-Brown Shoe Co. v. Wolf Bros. & Co..,

240 U.S. 251, 258 (1916) (“except in extraordinary cases, the

writ is not issued until final decree”); Cobbledick v. United

States, 309 U.S. 323, 325 (1940).

The Court has frequently determined that issues remanded

by courts of appeals were unfit for review pending final judg-

ment and subsequent court of appeals review. For example, in

Virginia Military Institute v. United States, 508 U.S. 946

(1993), the Court denied certiorari to review a decision of the

court of appeals which remanded the case to the district court

for the determination of an appropriate remedial course in the

matter under review. /d. In refusing to grant the writ, the

Court stated “[wJe generally await final judgment in the lower

courts before exercising our certiorari jurisdiction.” /d.3

2

See also Brotherhood of Locomotive Firemen & Enginemen vy.

Bangor & Aroostock R.R. Co., 389 U.S. 327. 328 (1967) (“[BJecause the

Court of Appeals remanded the case, it is not yet ripe for review by this

10

Consistent with these authorities, the questions presented in

the Petition are not ripe for Supreme Court resolution because

the District Court has not made its final abstention determi-

nations. In accordance with the directive of the Sixth Circuit,

the District Court must index and cross reference the Implant

Claims. Then, and only then, in any proceeding in which an

abstention motion has been filed, can the District Court make

abstention determinations containing adequate statements of

its reasoning with respect to each determination. The issues

of review of abstention determinations and the power to trans-

fer claims against nondebtors pursuant to 28 U.S.C.

§ 157(b)(5) will not be appropriate for certiorari review until

it is clear that claims will be transferred and adjudicated by

the Eastern District of Michigan.

Accordingly, because the future effect of the decision

below remains speculative in light of the actions yet to be

taken by the District Court, the Court should deny certiorari

as the questions presented are not ripe for review at this time.

Il. THE PETITION FAILS TO DEMONSTRATE ANY

COMPELLING REASON FOR THE COURT TO

EXERCISE ITS DISCRETION TO GRANT CER-

TIORARI

The Court’s review on a writ of certiorari is purely a mat-

ter of judicial discretion that is exercised “only for com-

pelling reasons.” Sup. Ct. R. 10. A petition for certiorari “is

rarely granted when the asserted error consists of erroneous

factual findings or the misapplication of a properly stated rule

of law.” /d. Rather, the jurisdiction of the Court is “exercised

sparingly, and only in cases of peculiar gravity and general

importance, or in order to secure uniformity of decision.”

Hamilton-Brown Shoe Co. v. Wolf Bros. & Co., 240 U.S. 251,

258 (1916).

Court.”); cf. Mercer v. Theriot, 377 U.S. 152, 153 (1964) (Court initially

denied certiorari where court of appeals remanded case until subsequent

rulings were issued by district court and court of appeals).

11

As the Court has observed, “it is very important that we be

consistent in not granting the writ of certiorari except in cases

involving principles the settlement of which is of importance

to the public, as distinguished from that of the parties.” Layne

& Bowler Corp. v. Western Well Works, Inc., 261 U.S. 387,

393 (1923); see United States v. Nobles, 422 U.S. 225, 241-42

n.16 (1975) (“In the absence of . . . an indication that the

issues are of sufficient general importance to justify the grant

of certiorari we decline to entertain them.”).

Here, the errors asserted by the petitioner present no “com-

pelling reasons” for review by the Court. First, the Peti-

tioner’s assertion that the Sixth Circuit’s use of mandamus

was unprecedented is patently without merit. As explained

below, the Sixth Circuit had clear authority to review the Dis-

trict Court Order. Second, there is no conflict between the cir-

cuits over an unsettled federal question of public importance.

As is further explained below, the Sixth Circuit properly

applied 28 U.S.C. §§ 157 and 1334, and did so in a manner

that is wholly consistent with the only other circuit court

decision that is directly on point. Accordingly, even if review

at this time were not barred by the ripeness doctrine, the Peti-

tion should nevertheless be denied.

A. The Sixth Circuit Properly Asserted Mandamus

Jurisdiction to Review the District Court Order

In an effort to obtain review by the Court, the Petitioner has

mischaracterized the Sixth Circuit’s decision as an “unprece-

dented use of mandamus,” (Pet. at 13) which “amount{[s] to

effective nullification of the statutory bar.” (Pet. at 7). In

actuality, however, the Sixth Circuit had clear authority under

well-settled and long-standing principles of law to assert

mandamus jurisdiction to review the District Court Order.

12

1. Appellate Jurisdiction was Retained When

the Sixth Circuit Remanded the Abstention

Issue

As discussed above, the issue of abstention was properly

before the Sixth Circuit, and no party in Lindsey /, including

the Petitioner, questioned the Sixth Circuit’s jurisdiction to

review the District Court’s rulings on the issue of abstention.

And, in remanding this matter for further proceedings because

the District Court failed to consider the abstention issue “in

detail”, the Sixth Circuit did not authorize the District Court

to ignore the directives set forth in the Lindsey ] mandate, and

did not deprive itself of jurisdiction to consider the actions of

the District Court on remand. Indeed, the Court retained ple-

nary power to review the District Court Order after remand to

determine whether or not the Court’s mandate had been prop-

erly carried out, regardless of the appellate bar language of

§ 1334(d).

In refusing to address the abstention issue “in the first

instance,” the Sixth Circuit followed well-settled principles

of appellate jurisprudence that: (1) an appellate court should

not consider an issue on appeal in the first instance, and (2)

that both judicial economy and efficiency are served if the

lower court is given an opportunity to fully develop a record

before the issue is reviewed on appeal. See Super X Drugs

Corp. v. Federal Deposit Ins. Corp., 862 F.2d 1252, 1256 (6th

Cir. 1988) (“We believe that in the interest of justice in this

case the district court should indicate and clarify the basis of

its determination.”); Grover Hill Grain Co. v. Baughman-

Oster, Inc., 728 F.2d 784, 793 (6th Cir. 1984) (“This Court

. . concludes that the failure of the trial court to make a

specific finding as to the question of agency requires that the

matter be remanded for clarification and/or further consid-

eration of the agency issue.”); Belcon, Inc. v. Sherman Con-

str. Co., 800 F.2d 1321 (4th Cir. 1986) (declining to consider

the district court’s rulings on appeal in light of the sparse

findings of fact by the district court).

13

Accordingly, the Sixth Circuit properly remanded the issue

of abstention, which was properly before it in Lindsey I, so

that a fuller record may be developed. And, in so doing, the

Sixth Circuit retained the plenary power to ensure that the

District Court complied with the Sixth Circuit’s mandate.

2. The Sixth Circuit had Mandamus Jurisdic-

tion Under the All Writs Act.

The jurisdictional authority to issue a writ of mandamus is

provided by 28 U.S.C. § 1651(a), which states in part, “all

courts established by Act of Congress may issue all writs nec-

essary or appropriate in aid of their respective jurisdictions

and agreeable to the usages and principles of law.”

When an appellate level court remands a case to the trial

level court, the lower court must follow and implement the

appellate court’s mandate. See Fort Gratiot Sanitary Landfill,

Inc. v. Michigan Department of Natural Resources, 71 F.3d

1197, 1201 (6th Cir. 1995) (“The customary procedure on

remand creates a duty on the part of lower courts, which

obtain jurisdiction after receiving the mandate of an appellate

court, to obey the terms of the mandate and to carry it into

effect.”); Kidder, Peabody & Co., Inc. v. Maxus Energy Corp.

(In re Ivan F. Boesky Securities Litigation), 957 F.2d 65, 69

(2d Cir. 1992) (“The district court’s actions on remand should

not be inconsistent with either the express terms or the spirit

of the mandate.”) (Emphasis added).

Where the lower court fails to abide by the appellate court’s

prior mandate, the appellate court retains the plenary power

to require compliance with its mandate. And, this plenary

power extends to review orders that are not otherwise review-

able on appeal. See United States v. E.]. Du Pont De Nemours

& Co., 366 U.S. 316, 325 (1961) (“We have plenary power to

determine whether our judgment was scrupulously and fully

carried out.”); Bethea v. Levi Strauss & Co., 916 F.2d 453,

456 (8th Cir. 1990) (“If the district court fails to comply with

an appellate mandate, the appellate court has authority to

14

review the district court’s actions and order it to comply with

the original mandate.”).*

The foregoing provides clear authority to the Sixth Circuit

to review the District Court Order, because the District Court

failed to carry out the mandate of the Sixth Circuit.* Instead

of undertaking the requisite analysis “ ‘in each individual

case’ ” to determine if abstention would “ ‘promote or impair

efficient and fair adjudication’ ” of the bankruptcy, the Dis-

trict Court abstained from all Implant Actions based upon a

perfunctory and inaccurate appraisal of the actions as a

generic whole. The District Court’s failure to carry out the

terms and spirit of the mandate provided a jurisdictional basis

for review.

oe

' In exercising the authority to ensure that its mandate is properly

carried out, the appellate court may review the lower court’s order either

through another appeal or by writ of mandamus. See Baltimore & O.R.

Co. v. United States, 279 U.S. 781, 785 (1929) (lower court’s “action may

be controlled by this court, either upon a new appeal or by writ of man-

damus”); Continental Ins. Co. v. United States, 259 U.S. 156, 166

(1922)(court has plenary power to determine whether the lower court

complied with the court’s mandate where “the decree in any proper way

is brought to our attention”); Jn re General Motors Corp., 3 F.3d 980, 983

(6th Cir. 1993) (“Under [the All Writs Act], the courts of appeals have

the authority to, inter alia, issue writs of mandamus to district courts to

ensure compliance with earlier mandates.”); Carroll v. Blinken, 42 F.3d

122, 126 (2d Cir. 1994) (“we review de novo whether the judgment com-

ports with our mandate in Carroll I, considering each of appellants’

objections in turn.”).

. It is well settled that a court of appeals’ mandate encompasses

the directives contained in the court’s opinion. Fed. R. App. P. 41(a) (“A

certified copy of the judgment and a copy of the opinion of the court, if

any, and any direction as to costs shall constitute the mandate, unless the

court directs that a formal mandate issue.”); Fort Gratiot Sanitary Land-

fill, Inc. v. Michigan Dep't of Natural Resources, 7\ F.3d 1197, 1200 n.3

(6th Cir. 1995) (mandate consists of, inter alia, judgment and opinion);

United States v. Reyes, 49 F.3d 63, 66 (2d Cir. 1995) (mandate consists

of court's judgment and opinion). Thus, the Sixth Circuit's mandate

includes its June 3, 1996 opinion.

15

3. Petitioner’s Reliance on the Appellate Bar

Language in Section 1334(d) is Misguided

Against this backdrop, the Petitioner incorrectly relies on

the appellate bar language contained in section 1334(d) to

suggest that the Sixth Circuit lacked mandamus jurisdiction

to review the District Court Order. The Petitioner is mistaken.

Courts have on numerous occasions granted mandamus peti-

tions to vacate otherwise nonappealable remand orders and

abstention determinations issued by district courts that incor-

rectly refused to exercise jurisdiction. See, e.g, In re Burns &

Wilcox, Ltd., 54 F.3d 475, 478 (8th Cir. 1995) (overturning

order abstaining from exercising jurisdiction); Jn re General

Motors Corp., 3 F.3d 980, 983 (6th Cir. 1993) (issuing a writ

of mandamus to vacate a remand order where the district

court erred in determining that certain state law claims were

not preempted by federal law); Beard v. Carrollton R.R., 893

F.2d 117, 118 (6th Cir. 1989) (vacating remand order by writ

of mandamus where basis for remand was unfounded).

While section 1334(d) does preclude appeals of abstention

orders, the statute on its face does not bar mandamus review

of such orders. Specifically, section 1334(d) provides that an

abstention decision is not reviewable by “appeal or otherwise

under sections 158(d), 1291 [and] 1292. . . .” Each of these

sections referenced in the statute involves appeals only, and

none relates to mandamus petitions. Clearly, if Congress had

sought to preclude review of abstention orders under § 1334

by writ of mandamus, it would have so stated.

Indeed, 28 U.S.C. § 1447(d) does not contain the qualify-

ing language contained in § 1334(d), and consequently,

§ 1447(d) has been interpreted as precluding mandamus

review of a remand order subject to that section. See

Thermtron, 423 U.S. at 343 (section 1447(d) “prohibits

review of all remand orders issued pursuant to § 1447(c)

. whether review is sought by appeal or by extraordinary

writ.”’).

-_

16

Thus, contrary to Petitioner’s assertion, the Sixth Circuit

has not enlarged its appellate jurisdiction, but appropriately

exercised its authority in mandamus to enforce its mandate.°

B. The Sixth Circuit Correctly Interpreted and

Applied 28 U.S.C. § 157(b)(5)

The argument that the Sixth Circuit misinterpreted 28

U.S.C. § 157(b)(5) is equally without merit, providing no

alternative basis for the Court to grant the writ. A necessary

condition to implementing the reorganization policy under-

lying the bankruptcy laws is the centralization, to the maxi-

mum extent permitted by the United States Constitution, of all

of the debtor’s assets, as well as a process for dealing with all

of the debtor’s liabilities.’ Consistent with congressional

6

Two other grounds exist for appellate jurisdiction, although the

Sixth Circuit did not base its analysis on them. First, the appellate bar lan-

guage of § 1334(d) does not apply if the statutory conditions contained in

section 1334(c)(2) are not satisfied. See In re S.G. Phillips Constructors,

Inc., 45 F.3d 702, 708 (2d Cir. 1995) (where the statutory prerequisites to

mandatory abstention had not been satisfied, the district court should not

have even conducted a mandatory abstention analysis). Here, the Implant

Claims should not have even been subject to the mandatory abstention

analysis since two critical requirements of § 1334(c)(2) have not been sat-

isfied: (1) the vast majority of the plaintiffs in those claims failed to file

a motion, and (2) each of the Implant Claims could have been commenced

in federal court based on federal diversity jurisdiction.

Second, appellate review of the District Court Order exists by pendent

appellate jurisdiction because portions of the District Court Order are

appealable. The District Court abstained from claims even though no

timely motion had been filed and there was an independent basis for fed-

eral jurisdiction. Moreover, the District Court misapplied the statutory

exemption under 28 U.S.C.§ 157(b)(4). Thus, even if the District Court

properly abstained from transferring some of the Implant Claims, those

claims are appealable because they are inextricably intertwined with the

Implant Claims that the District Court improperly refused to transfer.

Brennan v. Township of Northville, 78 F.3d 1152, 1157 (6th Cir. 1996)

(“pendent appellate jurisdiction [appropriate] where the appealable and

non-appcealable issues are ‘inextricably intertwined’) (citing Swint v.

Chambers County Comm'n, 514 U.S. 35, 115 S. Ct. 1203, 1212 (1995)).

7

Congress has provided the bankruptcy courts with powerful

tools in order to accomplish these goals. See, e.g., 28 U.S.C. § 1334(e)

17

intent and the provisions of the Bankruptcy Code, the Sixth

Circuit properly construed § 157(b)(5) to permit centralization

of claims against nondebtors in cases where the failure to cen-

tralize would harm the debtor’s prospects of reorganization.

See A.H. Robins Co. v. Piccinin (In re A.H. Robins Co.), 788

F.2d 994, 1011 (4th Cir. 1985) (congressional purpose of

§ 157(b)(5) was to “centralize the administration of the estate

and to eliminate the ‘multiplicity of forums for the adjudi-

cation of parts of a bankruptcy case’ ”) (quoting 130 Cong.

Rec. H7492 (daily ed. June 29, 1984) (statement of Rep. Kas-

tenmeier)), cert. denied, 479 U.S. 876 (1986).

Against this backdrop, Petitioner’s contention that

§ 157(b)(5) can never authorize the transfer of claims against

nondebtors, is wholly without merit. Indeed, the Petitioner

does not cite a single authority to the contrary.

Section 157(b)(5) applies to “personal injury tort and

wrongful death claims.” It does not contain any limitations.

Petitioner’s argument that Congress must have meant personal

injury or wrongful death claims against the estate because a

different section (§ 157(b)(2)(B)) does refer to claims against

the estate, is completely without merit.

As discussed, supra, this Court has held that 28 U.S.C.

§ 1334(b) applies not only to actions against debtors, but also to

actions against nondebtors. See Celotex Corp. v. Edwards, 115

S. Ct. 1493, 1498-99 n.5 (1995) (proceedings “related to”

bankruptcy include “suits between third parties which have

an effect on the bankruptcy estate”). It follows, then, that other

provisions of title 28 of the United States Code which are related

to § 1334(b) should be interpreted in a consistent manner with

that section. As this Court has stated, statutory construction is

a holistic endeavor. A provision that may seem ambigu-

ous in isolation is often clarified by the remainder of the

(exclusive jurisdiction of district court over all debtor’s property wher-

ever located); 11 U.S.C. § 541(a) (creation of estate comprised of prop-

erty wherever located); 11 U.S.C. § 105(a) (nationwide service of

process).

18

statutory scheme—because the same terminology is used

elsewhere in a context that makes its meaning clear or

because only one of the permissible meanings produces

a substantive effect that is compatible with the rest of the

law.

United Sav. Ass'n v. Timbers of Inwood Forest Assocs., Ltd.,

484 U.S. 365, 369 (1988).

Moreover, the Implant Claims against the Nondebtor Code-

fendants are, in effect, claims against DCC. As discussed,

supra, the claims against DCC are inextricably intertwined

with the claims against respondent and the other Nondebtor

Codefendants because plaintiffs have sued DCC and the Non-

debtor Codefendants jointly and severally. Cf. American Fire

& Cas. Co. v. Finn, 341 U.S. 6, 14 (1951) (“where there is a

single wrong to plaintiff, for which relief is sought, arising

from an interlocked series of transactions, there is no separate

and independent claim or cause of action”). As the decision

below held, the nature of the Implant Claims establishes that

DCC and the Nondebtor Codefendants are “closely related”

with respect to the implant litigation. See also A.H. Robins

Co. v. Piccinin (In re A.H. Robins Co.), 788 F.2d 994, 999

(4th Cir. 1985) (the unusual situation permitting § 362 to

apply to nondebtors is the existence of “such identity between

the debtor and the third-party defendant that the debtor may

be said to be the real party defendant and that a judgment

against the third-party defendant will in effect be a judgment

or finding against the debtor”), cert. denied, 479 U.S. 876

(1986).

The Sixth Circuit’s conclusion that § 157(b)(5) applies to

claims against debtors as well as nondebtors is directly sup-

ported by the only circuit court of appeals decision directly on

point—the Robins decision. Prior to the filing of its chapter

11 case, Robins was faced with five thousand Dalkon Shieid

actions filed in state and federal courts throughout the United

States. Jd. at 996. Over half of such actions named the debtor

as the sole defendant, while the remainder named as defen-

SO ALD RP Ry PS RE CTRL AR: | Me 5 TYEE, LOOSE NE IIT ITS APN PNET So EN IEE WR oe eR RS a ie

19

dants both debtor and nondebtor parties, including the

debtor’s insurance company, hospitals, and physicians. The

district judge granted the debtor’s motion pursuant to

§ 157(b)(5) to transfer all five thousand actions, including

those against nondebtor defendants, to the district court in

which the bankruptcy case was pending. The scope of the

order was very clear and explicitly transferred claims against

nondebtor codefendants:

ORDERED, pursuant to Sections 157(b)(5) and 1334(b)

of Title 28 of the United States Code, that to the extent

personal injury tort or wrongful death actions against

Robins or any other defendant that are related to the

Robins Chapter 11 case are to be tried in a district court,

such action shall be tried in the Richmond Division of

the United States District Court for the Eastern District

of Virginia; and it is further

ORDERED, pursuant to Section 1334(b) of Title 28 of

_the United States Code, that all actions based upon per-

sonal injury tort or wrongful death claims arising from

the use of the Dalkon Shield intrauterine contraceptive

device are proceedings related to this Chapter 11 case

over which this Court has jurisdiction; and it is further

ORDERED that all actions related to the Robins Chap-

ter 11 case, as determined by this Order, now pending in

any federal! district court or subsequently removed to any

federal district court during the pendency of this Chap-

ter 11 case, be transferred by the Clerks of those Courts

to this Court. . .

In re A.H. Robins Co., No. 85-01307-R (E.D. Va. Nov. 9, 1985)

(emphasis added).

On appeal, the Fourth Circuit confirmed the consolidation

in the district court of al! Dalkon Shield claims commenced

against both the debtor and nondebtors:

[T]here are very real considerations that support a cen-

tralization of all the Dalkon Shield claims, at least at

20

first, in the district court having jurisdiction of the

bankruptcy. The “single focal point” of this proceeding

is the development of a reasonable plan of reorganization

for the debtor, one which will work a rehabilitation of

the debtor and at the same time assure fair and non-pref-

erential resolution of the Dalkon Shield claims.

Robins, 788 F.2d at 1011 (emphasis added). See also Murray v.

Pan Am. World Airways, Inc. (In re Pan Am Corp.), 16 F.3d

513 (2d Cir. 1994) (§ 157(b)(5) applied to transfer of wrongful

death lawsuits naming two Pan Am debtors and one nondebtor

Pan Am affiliate).

Petitioner argues that the Robins decision should be ignored

because no transfer of claims actually occurred. What Peti-

tioner fails to state, however, is that after the Fourth Circuit

concluded that centralization would be the rule, the parties

reached a settlement in connection with a plan of reorgani-

zation. See In re A.H. Robins Co., 880 F.2d 709 (4th Cir.)

(approving settlement), cert. denied sub nom., Anderson v.

Aetna Cas. & Surety Co., 493 U.S. 959 (1989). The fact that

the physical transfer of claims under § 157(b)(5) was rendered

unnecessary as a result of the settlement has absolutely no

bearing on the correctness or ultimate efficacy of the Fourth

Circuit’s decision. Indeed, because the Sixth Circuit’s deci-

sion below is entirely consistent with the Fourth Circuit’s

decision in Robins, Petitioner has failed to demonstrate the

existence of a circuit split regarding the interpretation of

§ 157(b)(5), which is a further reason for the Court to deny

the Petition.

Accordingly, because the decision below interpreted the

court’s mandamus jurisdiction and sections 1334(d) and

157(b)(5) correctly, and does not conflict with the decision of ~

any other court of appeals, the Court should deny Petitioner’s

request for certiorari.

21

CONCLUSION

For the foregoing reasons, a writ of certiorari should be

denied.

Respectfully submitted,

BRUCE R. ZIRINSKY

Counsel of Record

ARVIN MASKIN

JOHN H. BAE

ALISON D. GENEEN

WEIL, GOTSHAL & MANGES LLP

767 Fifth Avenue

New York, New York 10153

(212) 310-8000

Counsel for Respondent,

Minnesota Mining and

Manufacturing Company

October 6, 1997