Opposition Brief — Breast Implant Tort Represented By O'Quinn v. Dow Corning Corp., 117 S. Ct. 718 (1997) (No. 96-742)

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Wi) ¢ igs Court; Us.

Nos. 96-330 & 96-742 3-6 2 D &

————_———_— NOV 27 1996

IN THE

Supreme Court of the HnitehStates

OCTOBER TERM, 1996

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OFFICIAL COMMITTEE OF TORT CLAIMANTS, ye

Petitioner,

moe Yee

DOW CORNING CORPORATION, THE DOW CHEMICAL COMPANY, CORNING

INCORPORATED, BAXTER INTERNATIONAL INCORPORATED, MINNESOTA

MINING AND MANUFACTURING COMPANY, BRISTOL-MYERS SQUIBB

COMPANY AND MEDICAL ENGINEERING CORPORATION,

Respondents.

>

BREAST IMPLANT TORT CLAIMANTS REPRESENTED BY O’ QUINN,

KERENSKY, MCANINCH & LAMINACK,

Petitioners,

aa Vo

DOW CORNING CORPORATION, et al.,

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

Greg A. Danilow

Howard B. Comet

WEIL, GOTSHAL & MANGES LLP

767 Fifth Avenue

New York, New York 10153

(212) 310-8000

Counsel for Respondent, Minnesota

Mining and Manufacturing Company

iw

,

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i

QUESTIONS PRESENTED

1, Whether the Sixth Circuit erred in ruling that the United

States District Court for the Eastern -District of Michigan had

subject matter jurisdiction pursuant to 28 U.S.C. § 1334(b)

over silicone gel breast implant claims pending against non-

debtor codefendants because such claims were “related to” the

chapter 11 case of Dow Corning Corporation.

2. Whether the Sixth Circuit erred in ruling that the United

States District Court for the Eastern District of Michigan had

the power under 28 U.S.C. § 157(b)(5) to fix the venue for

trial of silicone gel breast implant claims pending against

nondebtor codefendants which are “related to” the chapter 11

case of Dow Corning Corporation.

LIST OF PARTIES

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

ing are parties to the proceeding in the Sixth Circuit: Baxter

Healthcare Corporation; Heidi Lindsey; Johnson County,

Texas, Plaintiffs; Breast Implant Tort Claimants Represented

by O’ Quinn, Kerensky, McAninch & Laminack; Mississippi

Physicians; and Official Committee of Unsecured Creditors,

as Intervenor.

RULE 29.6 LISTING

Pursuant to Supreme Court Rule 29.6, respondent Minne-

sota 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

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STATUTORY PROVISIONS INVOLVED............. I

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ce Ene ne a eee 3

POCOGGings BELOW... 2.20.06 icc c sec ccccsscsceeses 4

A. The District Court...... SR Pee aR ee 4

B. The Court of Appeals................... 6

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

I. THE PROCEDURAL POSTURE OF THE

INTERLOCUTORY DECISION BELOW

RENDERS THE ISSUES UNRIPE FOR

Pe FAR BRAGS BADER doses de tcccdccccvccecee 8

II. THE PETITIONS FAIL TO DEMONSTRATE

ANY COMPELLING REASON FOR THE

COURT TO EXERCISE ITS DISCRETION

TO GRANT CERTIORARI ..............-..-.-5:. 12

PAGE

A. Petitioners Have Mischaracterized

the Importance of the Questions

FP UROUIOE nis 6555 eee ees 12

B. The Decision Below Does Not Present

Any Conflict With Decisions of the

Courts of Appeals or This Court ....... 14

b. SRO PACOF GCI os orth cee 14

2. The Fedpak Decision.............. 17

3. Other Circuit Court Decisions..... 18

4. The Celotex Decisis... isis 6c cis 19

5. No Misapplication of Law......... 22

C. The Sixth Circuit Correctly Interpreted

ee BEE BOs Bh 50) Ot | Rai enn scan 23

CONELUMON 5 i ko ee es 28 :

RPP RIE ik ce ws kas 5 ek RaE RW eu et iu tay Oh pbas vided aa RA 1

TABLE OF AUTHORITIES

Cases PAGE

Abbott Lab. v. Gardner, 387 U.S. 136 (1967) ......... 9

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

Santas OFS U.G. Foe (OT ha ihs sca eet pesescess 28

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

FESS or ce ecb cd eas Sameechassevsiorenschuos ata 26-27

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

788 F.2d 994 (4th Cir. 1985), cert. denied, 479

ae BE yl Oak) Bee beriars pty rt A, le ere 24-27

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

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

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

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

dh tL | ER RECT Ee PEE Ey Pers hey or errr 9

Brotherhood of Locomotive Firemen & Enginemen

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

PPE a kk do kiaces pe edanev cease haaeavewerveckbens 10 n.3

Catlin v. United States, 324 U.S. 229 (1945).......... 10

Celotex Corp. v. Edwards, 115 S. Ct. 1493

2 i) Til ace al pemperr erie y nen epar 8, 13, 14, 19-21, 25

City of Okla. City v. Tuttle, 471 U.S. 808 (1985)...... 8-9

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

In re Fedpak Sys., Inc., 80 F.3d 207 (7th Cir. 1996) .14, 17-18

Goldstein v. Cox, 396 U.S. 471 (1970) ................ 10

PAGE

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

US. 25F CIGAR ess 9, 10 n.3, 11

Hanna v. Philadelphia Asbestos Co., 743 F.2d 996

COGN. BOs haks ad cthaconts tues taecaemcekowees 16

Kelley v. Nodine (In re Salem Mortgage Co.), 783

F. 2G G26 (ORR Ce. FI vs ans he Civ eceisvers vies 12-13

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

BOR 8.0 SOS LARS 6 kha s eck herein ees 12

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

Breast Implant Prods. Liab. Litig.) (MDL

926)), No. CV94-P-1558-S (N.D. Ala. 1995) .... 4

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

Breast Implant Prods. Liab. Litig., No. CV 92-

P-10000-S, MDL No. 926, Civ. A. No. CV94-P-

11558-S, 1994 WL 578353 (N.D. Ala. Sept. 1,

EDGE. iivng dhewweesiaoasdl atenssiliheadares vcnecds 4

Lindsey v. O’Brien, Tanski, Tanzer & Young Health

Care Providers (In re Dow Corning Corp.), Nos.

96-2005, 96-2008 to 96-2013 (6th Cir. Sept. 24,

DOS i056 seth exe newngeeaaah beeae iodewdiat onesies 7

Lindsey v. O’Brien, Tanski, Tanzer & Young Health

Care Providers (In re Dow Corning Corp.), 86

F.3d 482 (6th Cir.), petition for cert. filed, 65

U.S.L.W. 3167 (U.S. Aug. 28, 1996) (No.

DER aches ar akks Owikaniiceee sive cectek naa |

In re Marcus Hook Dev. Park Inc., 943 F.2d 261 (3d

re ee a ee a i Ea a 17 n.5

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

Miller v. Kemira, Inc. (In re Lemco Gypsum, Inc.),

910 F.2d 784 (11th Cir. 1990)................. 18-19 n.6

Vil

PAGE

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

Corp.), 16 F.3d 513 (2d Cir. 1994) ............--. 27

Pacor, Inc. v. Higgins, 743 F.2d 984 (3d Cir.

Rs i cic oo ba hci ated 5 babxsct ee beteeeces ies 8, 13, 14-20

Quackenbush v. Allstate Ins. Co., 116 S. Ct. 1712

CSR oon a uisn che da anemia pnaedenvediteshbscedess 14

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

CRI as ciara cee Ree R ETA Ved bakadep chaser eesa sents )

In re Silicone Gel Breast Implants Prods. Liab. Litig.,

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

EDOE) ick cbnecs we red hnaddans ton Cast ngrakacercas sees 3-4

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

SE Se PRES cic ei see sd chedasecesshgeseveveseses 9

Turner v. Ermiger (In re Turner), 724 F.2d 338 (2d

Care LOD. nalsted id bsHORs abe edds davis cigueeraesoes 18 n.6

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

Kad BOA U.S. S65 (ASRS) i vac nccadweccecctenccsss 25

United States v. Nobles, 422 U.S. 225 (1975) ......... 12

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

EROS bili 5s th eae be stn sarees PUMA dheddupheecta ts 9-10

Constitution, Statutes

Cee Cee ee ee Oe OE, Re ciddesesdepessevness once: Y

PE ES IDES iaickivececiovvespecgzestouet kavety sn 23

‘3G 3 Gok hse rere Terry ir 24 n.10

EOE ee OD ica bine kencbunesssveneceessbavae'e's eves 21

‘EE AE 2 ae ee) ere errr Tree tr tee ttre 4

BE UDC, FSO is RIA Ai aa esas akan 24 n.8

SO Uhre F ASTRO AID 5 80506065 chi oesi haba vetessan 24

Bae SA ches ae AICED 2 ch kc ac es Ceased cwasdenwcaen aca passim

ri tS eee Be 8 ee ee ack ie silks «ihm aa ie 9

y+ BIAS OR et re meer rake PORE ey passim

BE Ua Man F La O ec cis chek ss chateaunenel chdbevectebns 7,13

EOE Bites: ERP vba i vocknbabdvatenie cakenseee 7

SOC Acs BBD ih 1 5 cn Oe BS PARE as ORK 7

BW Mi is FASTA ad. 5 0b cee bk socsbencamedeaaeteht css 24 n.10

NS Ses Bas BE ap a theced ade ine tenupeateenincalarl cane cet 11

Uniform Contribution Among Tortfeasors Act

© ECB), 2B Vakeihs, FPO ed cbs vas tesavvadactsess 23 n.9

Legislative Materials

H.R. Rep. No. 95-595, at 51 (1977), reprinted in

1977S U.S.CAAN Foe Ee Fane ercks i devcias: 13

130 Cong. Rec. H7492 (daily ed. June 29, 1984)...... 24

Other Authorities

18 Am. Jur. 2d Contribution § 9 (1985) ............... 23 n.9

3 Fowler V. Harper et al., The Law of Torts § 10.1

C26 OB. IF iis oni 56s cndies ohcndsncunes Deewaiveks 16

Respondent, Minnesota Mining and Manufacturing Com-

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

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

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

of the Sixth Circuit’s decision in Lindsey v. O’Brien, Tanski,

Tanzer & Young Health Care Providers (In re Dow Corning

Corp.), 86 F.3d 482 (6th Cir.), petition for cert. filed, 65

U.S.L.W. 3167 (U.S. Aug. 28, 1996) (No. 96-330).

OPINIONS BELOW

The opinion of the Sixth Circuit (Tort Comm. Pet. App. la-

28a),' is reported at 86 F.3d 482 (6th Cir. 1996). On June 3,

1996, the Sixth Circuit issued its mandate and denied peti-

tions for rehearing and rehearing en banc (id. at 65a-66a). The

initial opinions of the United States District Court for the

Eastern District of Michigan (id. at 29a-64a) are reported at

187 B.R. 919 (E.D. Mich. 1995) and 187 B.R. 934 (E.D.

Mich. 1995). The opinion of the United States District Court

for the Eastern District of Michigan on remand (App., infra,

RA 1-RA 8) is unreported.

STATUTORY PROVISIONS INVOLVED

The principal statutory provisions involved are:

28 U.S.C. § 1334(b), which provides:

Notwithstanding any Act of Congress that confers

exclusive jurisdiction on a court or courts other

than the district courts, the district courts shall have

original but not exclusive jurisdiction of all civil

: “Tort Comm. Pet. App.” refers to the appendix to the Petition for

a Writ of Certiorari of the Offical Committee of Tort Claimants.

2

proceedings arising under title 11, or arising in or

related to cases under title 11.

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 pend-

ing, or in the district court in the district in which

the claim arose, as determined by the district court

in which the bankruptcy case is pending.

STATEMENT OF THE CASE

Dow Corning Corporation (“DCC”) was the predominant

producer of silicone gel breast implants until it ceased their

manufacture in 1992. Because thousands of recipients of sil-

icone gel breast implants asserted claims for compensatory

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 ceased manufacturing breast implants in 1984. Record

265.” DCC has been named as a codefendant with 3M in over

5,000 of those 7,000 lawsuits. Jd. In virtually every case,

plaintiffs asserted claims of joint and several liability against

3M and DCC for the full amount of their asserted damages.

Id. Additionally, in approximately 60% of the cases against

3M, the plaintiff received multiple sets of breast implants in

a series of separate operations, including implants made by

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

decision below.

3M and at least one other manufacturer, which included DCC

in most cases. Record 473.

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 (“Dow

Chemical”) and Corning Incorporated (“Corning,” and col-

lectively with 3M, Bristol-Myers, Baxter, and Dow Chemical,

the “Nondebtor Codefendants”). As with the cases against

3M, many of the cases against the other Nondebtor Code-

fendants also named DCC as a codefendant, asserted joint and

several liability, and involved implants from multiple man-

ufacturers.

The decision below held that the claims against the Non-

debtor Codefendants were related to DCC’s reorganization

case within the meaning of 28 U.S.C. § 1334(b) because

DCC’s successful reorganization would be directly impacted

by the resolution of the thousands of claims for indemnifi-

cation and contribution generated by the breast implant

actions, including claims asserted by the Nondebtor Code-

fendants against DCC and vice versa.

Background

Prior to DCC’s chapter 11 filing, on June 25, 1992, the

Judicial Panel on Multidistrict Litigation (the “MDL Panel”)

ordered the centralization of pretrial 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 “Multidistrict 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

4

found that these actions involve complex common questions

of fact and that centralization would best serve the conve-

nience of the parties and witnesses, promote the just and effi-

cient conduct of litigation, avoid duplication of discovery,

prevent inconsistent pretrial rulings, and conserve the

resources of the parties, their counsel, and the judiciary. /d.

On March 23, 1994, a proposed class action settlement (the

“1994 Settlement”) was reached among DCC, the Nondebtor

Codefendants, and the plaintiffs’ steering committee, and was

approved by the Multidistrict Court by order dated September

1, 1994. Lindsey v. Dow Corning Corp. (In re Silicone Gel

Breast Implant Prods. Liab. Litig.), No. CV 92-P-10000-S,

MDL No. 926, Civ. A. No. CV94-P-11558-S, 1994 WL

578353 (N.D. Ala. Sept. 1, 1994). By mid-1995, however, it

became apparent that the funds provided for in the 1994 Set-

tlement would be inadequate to fund the claims filed by plain-

tiffs who alleged, but had not proved, any causation between

silicone gel breast implants and any alleged disease or injury.

Id.

On December 22, 1995, the Multidistrict Court approved a

revised version of the 1994 Settlement, which did not include

DCC. 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 injunctions). Various appeals have

been taken regarding the revised settlement, which are cur-

rently pending in the Eleventh Circuit.

Proceedings Below \

A. The District Court

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 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”). Specifically, on June 12,

1995, DCC moved to transfer to the District Court the Implant

Claims pending against it and its shareholders, Dow Chemi-

cal and Corning, indicating that it would seek to have the

transferred claims consolidated for a threshold jury trial on

the issue of whether silicone gel breast implants caused the

diseases which were alleged. Record 2. Dow Chemical and

Corning joined in DCC’s motion. /d. Similarly, on June 14,

1995, 3M, Baxter, and Bristol-Myers each filed a motion to

transfer the Implant Claims asserted in Implant Actions in

which the respective Nondebtor Codefendants were named as

codefendants with DCC. Record 6, 15. No request to transfer

was made in cases in which DCC was not involved.

By memorandum opinion and order, dated September 12,

1995 (Tort Comm. Pet. App. 29a-56a), 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),

without ordering the generic causation trial that DCC had

requested. Record 389. However, the District Court denied

DCC’s motion to the extent it related to claims against its cor-

porate shareholders, Dow Chemical and Corning. /d.

By separate memorandum opinion and order, dated Septem-

ber 12, 1995 (Tort Comm. Pet. App. 57a-64a), the District

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

transfer motions on the ground that it lacked subject matter

jurisdiction over the Implant Claims against the Nondebtor

Codefendants pursuant to 28 U.S.C. § 1334(b) because such

claims were not “related to” DCC’s bankruptcy. Record 388.

B. The Court of Appeals

Applying the broad jurisdictional grant of 28 U.S.C.

§ 1334(b), the Sixth Circuit reversed the District Court’s

determination that it lacked subject 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. 28a.

In reaching its holding, the Sixth Circuit concluded that its

decision would “further the prompt, fair, and complete reso-

lution of all claims ‘related to’ bankruptcy proceedings and

harmonize Section 1334(b)’s broad jurisdictional grant with

the oft-stated goal of centralizing the administration of a

bankruptcy estate.” /d. at 26a. Because the joint liability

claims pending against DCC and the Nondebtor Codefendants

give rise to contingent claims for indemnification or contri-

bution among all of the defendants, including DCC, which

could ripen into fixed claims, the potential that DCC will be

held liable to the Nondebtor Codefendants for indemnifica-

tion or contribution, or vice versa, “suffices to establish a

conceivable impact” on DCC’s estate. Jd. at 20a.

The Sixth Circuit believed that in the event plaintiffs were

to prevail on their respective claims against the Nondebtor

Codefendants, the possibility of liability for contribution or

indemnification was “far from attenuated.” /d. at 21a.

Accordingly, the Sixth Circuit concluded that there is

§ 1334(b) subject matter jurisdiction over the Implant Claims

against the Nondebtor Codefendants because claims for

indemnification or contribution, whether asserted against or

by DCC, would “affect the size of the estate and the length of

time the bankruptcy proceedings will be pending, as well as

[DCC’s] ability to resolve its liabilities and proceed with

reorganization.” /d. at 20a. The Sixth Circuit refrained, how-

ever, from addressing the issue of abstention under 28 U.S.C.

§ 1334(c) in the first instance and remanded to the District

Court for further case by case proceedings on that issue. /d.

at 28a.

On July 30, 1996, the District Court abstained from adju-

dicating all the Implant Claims against the Nondebtor Code-

fendants pursuant to 28 U.S.C. § 1334(c)(1) and (2). App.,

infra, RA 1. The Nondebtor Codefendants have appealed that

decision to the Sixth Circuit (the “Abstention Appeal”).

Record 552, 553, 557, 560, 563, 566, 567. When petitioner

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

moved to dismiss the Abstention Appeal on jurisdictional

grounds, the Sixth Circuit ordered that the jurisdictional issue

be argued along with the merits of the appeal and established

an expedited briefing schedule. Lindsey v. O’Brien, Tanski,

Tanzer & Young Health Care Providers (In re Dow Corning

Corp.), Nos. 96-2005, 96-2008 to 96-2013, slip op. at 2 (6th

Cir. Sept. 24, 1996). Final briefs were filed on November 19,

1996. Oral argument has not yet been scheduled.

REASONS FOR DENYING THE WRIT

The procedural posture of the decision below weighs heav-

ily against petitioners’ request for a writ of certiorari. The

questions presented are not ripe for review at this time

because the Nondebtor Codefendants are currently appealing

from the District Court’s decision, on remand, to abstain from

exercising its subject matter jurisdiction over the Implant

Claims against the Nondebtor Codefendants. As a result,

unless and until the District Court’s abstention decision is

reversed, there is no controversy for the Court to resolve. On

the other hand, in the event the District Court’s abstention

decision is affirmed or the appeal is dismissed, a decision by

this Court would be an advisory opinion rendered in the

absence of an actual case or controversy.

Moreover, petitioners have 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.

Petitioners have also failed to demonstrate the existence of a

conflict of decisions among the courts of appeals. In its deci-

sion, the Sixth Circuit neither criticized nor refused to follow

the decisions of other circuit courts of appeals. In fact, the

Sixth Circuit expressly stated that it adopted the Third Cir-

cuit’s test established in Pacor, Inc. v. Higgins, 743 F.2d 984

(3d Cir. 1984), for determining whether a proceeding is

related to a bankruptcy case under 28 U.S.C. § 1334(b).

Not only is the decision below consistent with those circuit

court decisions alleged by petitioners to be conflicting, but it

also is completely consistent with this Court’s decision in

Celotex Corp. v. Edwards, 115 §. Ct. 1493 (1995). Notwith-

standing petitioners’ assertion of an alleged conflict of deci-

sions, the errors asserted essentially consist of the

“misapplication,” in petitioners’ view, of a properly stated

rule of law. This clearly does not constitute a compelling rea-

son for certiorari review.

Finally, petitioners have failed to demonstrate that the Sixth

Circuit misapplied either (i) 28 U.S.C. § 1334(b) by ruling

that the Implant Claims against the Nondebtor Codefendants

were related to DCC’s bankruptcy case, or (ii) 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 Non-

debtor Codefendants.

I. THE PROCEDURAL POSTURE OF THE

INTERLOCUTORY 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

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

(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

10

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

Court stated “[w]Je generally await final judgment in the lower

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

Consistent with these cases, the questions presented in the

Petitions are not ripe for Supreme Court resolution in light of

the pending appeal from the District Court’s decision to

abstain from exercising its subject matter jurisdiction. In the

event the Sixth Circuit either affirms or declines to review the

District Court’s abstention decision, the questions presented

in the Petitions will become moot. The issues of related to

jurisdiction under 28 U.S.C. § 1334(b) and transfer pursuant

to 28 U.S.C. § 157(b)(5) will not be appropriate for certiorari

review until and unless the Sixth Circuit reverses the District

Court’s abstention decision. If the Sixth Circuit either (1) dis-

misses the appeal on jurisdictional grounds or (2) affirms on

the merits, no Implant Claims against the Nondebtor Code-

fendants will be transferred, and there will be no actual con-

troversy for this Court to consider.

Moreover, in the event the Sixth Circuit issues a final judg-

ment on the abstention issues, there is a significant likelihood

that a subsequent petition for a writ of certiorari will be filed.

Accordingly, denial of petitioners’ request for a writ of cer-

tiorari at this time further serves the federal policy against

piecemeal litigation. See Catlin v. United States, 324 U.S.

229, 233-34 (1945); see also Goldstein v. Cox, 396 U.S. 471,

478 (1970) (“In the absence of clear and explicit authorization

by Congress, piece-meal appellate review is not favored.”).

’ See also Brotherhood of Locomotive Firemen & Enginemen v.

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

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); Hamilton-

Brown Shoe Co. v. Wolf Bros. & Co., 240 U.S. 251, 258 (1916) (Court

refused to review interlocutory decree and did not grant writ until second

appeal after final decree).

11

Petitioners clearly will not suffer any hardship by a denial

of certiorari at this time. As a result of the District Court’s

decision to abstain from exercising subject matter jurisdiction

over the Implant Claims against the Nondebtor Codefendants,

petitioners have thus far obtained their desired result. That is,

the Implant Claims against the Nondebtor Codefendants have

not been transferred to the District Court. Petitioners thus

cannot argue that the decision below has affected them in any

concrete manner. Withholding the Court’s consideration of the

questions presented at the present time would have absolutely

no adverse effect on petitioners.

Accordingly, because petitioners have not suffered any

injury, and any future effect of the decision below remains

wholly speculative in light of the pending appeal from the

District Court’s abstention decision, the Court should deny

certiorari as the questions presented are not ripe for review at

this time.

Il. THE PETITIONS FAIL TO DEMONSTRATE

ANY COMPELLING REASON FOR THE COURT

TO EXERCISE ITS DISCRETION TO GRANT

CERTIORARI

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).

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

pelling reasons” for review by the Court. Although petition-

ers attempt to create the appearance of a conflict between

12

circuits over an unsettled federal question of public impor-

tance, petitioners’ reasons for review actually amount to noth-

ing more than dissatisfaction with the Sixth Circuit’s

application of the rule regarding “related to” subject matter

jurisdiction that has been adopted by virtually every circuit

court of appeals. Accordingly, even if review at this time

were not barred by the ripeness doctrine, the Petitions should

nevertheless be denied.

A. Petitioners Have Mischaracterized the

Importance of the Questions Presented

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.”).

In an effort to obtain review by the Court, petitioners have

mischaracterized the Sixth Circuit’s decision as a novel rul-

ing effecting a “wholesale enlargement of the bankruptcy

jurisdiction at the expense of state judicial authority.” Tort

Comm. Pet. 10. In actuality, however, the decision below rep-

resents nothing more than the application of well-settled and

long-standing principles of law.

The so-called “enlargement” of bankruptcy jurisdiction by

the Sixth Circuit in the decision below is entirely consistent

with Congress’s expansive grant of jurisdiction to the district

courts in bankruptcy cases. In the decision below, the Sixth

Circuit began with the “premise that the ‘emphatic terms in

which the jurisdictional grant is described in the legislative

history, and the extraordinarily broad wording of the grant

itself, leave us with no doubt that Congress intended to grant

to the district courts broad jurisdiction in bankruptcy cases.’ ”

EO

13

Tort Comm. Pet. App. 10a (quoting Kelley v. Nodine (In re

Salem Mortgage Co.), 783 F.2d 626, 634 (6th Cir. 1986)). In

fact, in its most recent pronouncement on this issue, this

Court has agreed that the congressional intent was to “ ‘ grant

comprehensive jurisdiction to the bankruptcy courts so that

they might deal efficiently and expeditiously with a!l matters

connected with the bankruptcy estate.’ ” Celotex Corp. v.

Edwards, 115 S. Ct. 1493, 1499 (1995) (quoting Pacor, Inc.

v. Higgins, 743 F.2d 984, 994 (3d Cir. 1984)).

The decision below was premised upon the Sixth Circuit’s

fact-specific application of legal principies which have been

adopted by this Court and every circuit court of appeals to

consider the issue. Contrary to petitioners’ concerns, the Sixth

Circuit has not enlarged the jurisdiction of the bankruptcy

courts; it merely found the existence of “related to” juris-

diction consistent with congressional intent.

In contending that the Sixth Circuit’s application of this

long-standing grant of jurisdictional power alters the way in

which mass tort actions will be litigated in the future, peti-

tioners ignore the abstention provisions under 28 U.S.C.

§ 1334(c). As Congress has indicated, “in order to insure that

the jurisdiction of the bankruptcy court is exercised only

when appropriate to the expeditious disposition of bankruptcy

cases, the bill codifies present case law relating to the power

of abstention in particular proceedings by the bankruptcy

court.” H.R. Rep. No. 95-595, at 51 (1977), reprinted in 1978

U.S.C.C.A.N. 5963, 6012. Thus, statutory abstention enables

the district court, in appropriate circumstances, to determine

whether hearing a particular case would “ ‘promote or impair

efficient and fair adjudication of bankruptcy cases’ ” in order

to serve the interests of justice and judicial economy. Tort

Comm. Pet. App. 27a (quoting Salem, 783 F.2d at 635).

Petitioners’ concern with the “prospective impact” the deci-

sion below could have on the “fundamental division of

judicial authority under familiar principles of the federal sys-

tem” (Tort Comm. Pet. 10), thus does not directly involve

14

§ 1334(b) jurisdiction, as alleged by petitioners. Rather, it

involves principles of abstention—the very issue that is cur-

rently pending before the Sixth Circuit in the Abstention

Appeal.‘ As this Court has stated, “[f]ederal courts abstain out

of deference to the paramount interests of another sovereign,

and the concern is with principles of comity and federalism.”

Quackenbush v. Allstate Ins. Co., 116 S. Ct. 1712, 1724

(1996). Any assertion concerning the impact of the decision

below on the federal system will be addressed by the Sixth

Circuit in the context of abstention and is thus premature and

not ripe for review by the Court at this time.

Thus, contrary to petitioners’ contention, the decision

below does not represent a departure from existing law that

alters the way in which mass tort actions will be litigated.

B. The Decision Below Does Not Present Any

Conflict With Decisions of the Courts of Appeals

or This Court

Because a conflict with decisions of circuit courts of appeals

or this Court could constitute a “compelling reason” war-

ranting certiorari, petitioners construct an illusory conflict

between the Sixth Circuit decision below and the Third and

Seventh Circuit decisions in Pacor, Inc. v. Higgins, 743 F.2d

984 (3d Cir. 1984) and In re Fedpak Systems, Inc., 80 F.3d

207 (7th Cir. 1996), respectively, and this Court’s decision in

Celotex Corp. v. Edwards, 115 §. Ct: 1493 (1995).

1. The Pacor Decision

Contrary to petitioners’ assertion that the decision below

conflicts with the Third Circuit decision in Pacor, the Sixth

Circuit explicitly adopted the test established in Pacor, stat-

t

4 In the Abstention Appeal, 3M has urged reversal on the grounds

that the District Court misapplied the congressionally imposed statutory

criteria for bankruptcy abstention and ignored the letter and spirit of the

Sixth Circuit's holding in the decision below.

15

ing: “Our Circuit adopted the Pacor test for determining

whether a civil proceeding is ‘related to’ a bankruptcy pro-

ceeding under Section 1334(b).” Tort Comm. Pet. App. Ila.

In Pacor, the Third Circuit adopted the following test for

determining the existence of “related to” jurisdiction:

The usual articulation of the test for determining

whether a civil proceeding is related to bankruptcy

is whether the outcome of that proceeding could

conceivably have any effect on the estate being

administered in bankruptcy. Thus, the proceeding

need not necessarily be against the debtor or against ~

the debtor’s property. An action is related to

bankruptcy if the outcome could alter the debtor’s

rights, liabilities, options, or freedom of action

(either positively or negatively) and which in any

way impacts upon the handling and administration

of the bankrupt estate.

Pacor, 743 F.2d at 994 (emphasis added) (citations omitted).

Under the facts of that case, the Third Circuit concluded

that an action between a tort plaintiff and a supplier of

asbestos was not related to the bankruptcy case of the Johns-

Manville Corporation, the alleged manufacturer of the

asbestos. The fact that Pacor held that related to jurisdiction

did not exist in that case, however, does not establish that the

Third Circuit’s decision is in conflict with the Sixth Circuit's

decision below. On the contrary, as stated above, the decision

below is entirely consistent with the test established in Pacor.

After expressly stating that it adopted the Pacor test, the

Sixth Circuit applied the Pacor test to the facts of DCC’s

bankruptcy to reach its holding that all Implant Claims,

including those brought against respondent, could well aiter

the debtor’s liability and thus have an effect on DCC’s estate.

Petitioners’ perceived conflict stems from the different fac-

tual circumstances in the two cases. The distinction that the

Third Circuit drew in Pacor between the plaintiff’s claim

16

against the supplier and the supplier’s claim-over against

Manville cannot be drawn in the case at bar in light of the

intertwined nature of the Implant Claims against the Non-

debtor Codefendants and the Nondebtor Codefendants’

claims-over against DCC. In Pacor, there was no allegation

that plaintiff had been injured by the joint conduct of the sup-

plier and Manville or that the liability of the supplier and

Manville was joint and several. Plaintiff sued only the sup-

plier; it did not sue both the supplier and Manville. In fact, in

a companion case to Pacor involving similar facts, the Third

Circuit described the relationship as follows: “The [plaintiff-

supplier] action and the [supplier]-Manville action are two

separate and distinct claims. Their joinder or severance is

merely a matter of procedural convenience, and does not

imply any substantive interdependence between the two.”

Hanna v. Philadelphia Asbestos Co., 743 F.2d 996 (3d Cir.

1984) (emphasis added).

Here, the implant plaintiffs have sued DCC and the Non-

debtor Codefendants jointly and severally. Thus, in each

Implant Action, a single claim has been asserted against DCC

and one or more of the Nondebtor Codefendants for damages

arising from their alleged joint conduct. As a matter of law,

where two or more parties are held jointly and severally liable

for producing a single indivisible harm, the joint tortfeasors

are substantively liable for all damages. 3 Fowler V. Harper

et al., The Law of Torts § 10.1, at 7 (2d ed. 1986). Unlike the

two claims in Pacor, which are “separate and distinct,” the

claims against DCC and the claims against the Nondebtor

Codefendants arise out of the alleged joint conduct of mul-

tiple defendants which give rise to a single claim and are

therefore substantively interdependent.

Because the implant plaintiffs challenge the combined

actions of both DCC and the Nondebtor Codefendants, the

resolution of such allegations necessarily involves a deter-

mination of the respective involvement of DCC and the Non-

debtor Codefendants with respect to the conduct alleged.

17

Thus, the claims involved in the decision below are inextri-

cably intertwined, unlike the claims in Pacor. Accordingly,

the Sixth Circuit’s decision does not conflict with the Third

Circuit’s decision, but, rather, follows it.>

Moreover, in Pacor, the potential impact on Manville’s

estate was minimal; there was no allegation that Manville’s

prospects for successfully reorganizing could have been

affected by the plaintiff-supplier action. While Pacor

involved only a single claim for indemnification or contri-

bution, the decision below involved thousands of such claims.

As the Sixth Circuit noted, “there is a qualitative difference

between the single suit involved in Pacor and the over-

whelming number of cases asserted against Dow Corning and

the nondebtor defendants in this case.” Tort Comm. Pet. App.

20a. Indeed, “[a] single possible claim for indemnification or

contribution simply does not represent the same kind of threat

to a debtor’s reorganization plan as that posed by the thou-

sands of potential indemnification claims at issue here.” /d.

at 20a-21a.

2. The Fedpak Decision

Petitioners also assert that the decision below “diverges”

from the Seventh Circuit decision in Jn re Fedpak Systems,

Inc., 80 F.3d 207 (7th Cir. 1996). Tort Comm. Pet. 12. In that

case, the district court determined that the debtor lacked

standing to seek clarification of a bankruptcy court determi-

nation regarding the rights of various parties to a frozen

dessert machine. The Seventh Circuit agreed that the debtor

lacked standing, and further held that the debtor’s request fell

outside the scope of § 1334(b) because there was “only a

remote connection between Fedpak’s request for a clarifica-

In addition to following Pacor, the decision below also relies

explicitly on another decision of the Third Circuit, Jn re Marcus Hook

Dev. Park Inc., 943 F.2d 261 (3d Cir. 1991). Tort Comm. Pet. App. 15a.

Thus, rather than conflicting with the Sixth Circuit decision, Third Cir-

cuit decisions appear to have been a major source for the Sixth Circuit's

analysis in reaching the decision below.

18

tion order and the administration of the bankruptcy estate.”

Id. at 213 n.7. Because the frozen dessert machine was no

longer part of the debtor’s estate, the court concluded that the

request for clarification of rights in that machine would not

affect the amount of property for distribution or the allocation

of property among creditors. /d. at 214.

Notably, in addition to the fact that Fedpak also involved

only one claim, as opposed to the thousands of claims in

DCC’s bankruptcy case, under Fedpak’s formulation of the

test for related to jurisdiction, the result obtained by the Sixth

Circuit below would have been exactly the same. That is,

related to jurisdiction would exist because the Implant Claims

against the Nondebtor Codefendants affect the amount of

property for distribution and the allocation of property among

creditors, as set forth supra.

3. Other Circuit Court Decisions

In addition to asserting that the decision below conflicts

with Pacor and Fedpak, petitioners Breast Implant Tort

Claimants Represented by O’ Quinn, Kerensky, McAninch &

Laminack (the “O’ Quinn Plaintiffs”), incorrectly assert that

the decision below conflicts with other decisions of the Sev-

enth Circuit as well as decisions of the Second and Eleventh

Circuits. In actuality, however, the decision below does not

conflict with any of the other decisions cited by the O’ Quinn

Plaintiffs. Simply put, whether litigated in the Second, Third,

Seventh, or Eleventh Circuits, the result obtained in the deci-

sion below would have been exactly the same under any of

the purportedly “conflicting” tests applied in those Circuits.°

. For example, as demonstrated above, the Implant Claims against

the Nondebtor Codefendants have a “significant connection” to DCC’s

bankruptcy, as required by the Second Circuit in Turner v. Ermiger (In re

Turner), 724 F.2d 338 (2d Cir. 1983). The result would also be the same

under the test established in the Eleventh Circuit, which adopted the

Pacor test for determining the existence of related to jurisdiction in

Miller v. Kemira, Inc. (In re Lemco Gypsum, Inc.), 910 F.2d 784 (11th

19

4. The Celotex Decision

In addition to being consistent with decisions of other cir-

cuit courts of appeals, the decision below is consistent with

this Court’s decision in Celotex Corp. v. Edwards, 115 S. Ct.

1493 (1995). In Celotex, petitioner Celotex posted a super-

sedeas bond with an insurance company serving as surety in

order to stay execution of a tort judgment rendered against it

in the district court, pending appeal. Celotex’s obligations

under the bond were secured by its pledge of certain settle-

ment proceeds. /d. at 1496. After the Fifth Circuit affirmed

the judgment, Celotex filed for chapter 11 bankruptcy. Jd. The

bankruptcy court subsequently issued an injunction that pro-

hibited judgment creditors from proceeding against sureties

without bankruptcy court permission. When a judgment cred-

itor nonetheless sought permission from another court to exe-

cute against the bond, permission was granted. /d. at 1497.

This Court held that the judgment creditor was bound by

the bankruptcy court’s injunction and rejected the argument

that the bankruptcy court lacked jurisdiction to issue the

injunction, citing Pacor with approval. Specifically, this

Court stated:

Congress did not delineate the scope of “related to”

jurisdiction, but its choice of words suggests a grant

of some breadth. . . . We agree with the views

expressed in Pacor. . . that “Congress intended to

grant comprehensive jurisdiction to the bankruptcy

Cir. 1990). In addition to interpreting § 1334(b) to “avoid the ineffi-

ciencies of piecemeal adjudication and promote judicial economy by aid-

ing in the efficient and expeditious resolution of all matters connected

to the debtor's estate,” id. at 787 (emphasis added), the Eleventh Circuit

concluded that an overlap between a debtor’s affairs and another dispute

is insufficient to confer § 1334(b) jurisdiction “unless its resolution also

affects the bankrupt’s estate or the allocation of assets among creditors.”

Id. at 789. As demonstrated above, the Implant Claims against the Non-

debtor Codefendants significantly affect DCC’s estate, satisfying the

Eleventh Circuit's interpretation of Pacor.

20

courts so that they might deal efficiently and expe-

ditiously with all matters connected with the

bankruptcy estate,” and that the “related to” lan-

guage of § 1334(b) must be read to give district

courts. . . jurisdiction over more than simple pro-

ceedings involving the property of the debtor or the

estate. We also agree with that Court’s observation

that a bankruptcy court’s “related to” jurisdiction

cannot be limitless.

Id. at 1499 (quoting Pacor, 743 F.2d at 994). The Court

explicitly recognized that proceedings “related to” a

bankruptcy include “suits between third parties which have an

effect on the bankruptcy estate,” id. at 1498-99 n.5, and that

the “jurisdiction of bankruptcy courts may extend more

broadly in [a chapter 11 reorganization] case than in [a chap-

ter 7 liquidation].” /d. at 1500.

Using the test established in Pacor, this Court determined

that because the judgment creditor’s immediate execution on

the bond would, in turn, result in the insurer’s efforts to fore-

close on the collateral posted by Celotex, the judgment cred-

itor’s proceeding against the insurer “would have a direct and

substantial adverse effect” upon Celotex’s ability to reorga-

nize, and therefore, was “related to” Celotex’s bankruptcy:

Admittedly, a proceeding by respondents against

[the insurer] on the supersedeas bond does not

directly involve Celotex, except to satisfy the judg-

ment against it secured by the bond. But to induce

[the insurer] to serve as surety on the bond, Celotex

agreed to allow [the insurer] to retain the proceeds

of a settlement resolving insurance coverage dis-

putes between [the insurer] and Celotex. The

Bankruptcy Court found that allowing respon-

dents—and 227 other bonded judgment creditors—

to execute immediately on the bonds would have a

21

direct and substantial adverse effect on Celotex’

ability to undergo a successful reorganization.

Id. The Court thus found that subject matter jurisdiction

existed over a proceeding between nondebtors that would, in

the future, directly affect the estate if the insurer (i) filed a

motion for relief from the automatic stay imposed by § 362 of

the Bankruptcy Code and (ii) commenced and won an action

to foreclose on the collateral securing the bond.

Consistent with and explicitly citing and following this

Court’s decision in Celotex, the Sixth Circuit’s decision below

held that the resolution of the Implant Claims against the

Nondebtor Codefendants would have a direct and substantial

effect on DCC’s ability to undergo a successful reorganization

because the thousands of potential claims for indemnification

and contribution could ripen into fixed claims, entitling DCC

and the Nondebtor Codefendants to recover on their claims

against each other.’

In order to complete its reorganization, DCC’s liability for

implant claims must be determined or estimated. Because the

amount (if any) of DCC’s liability for implant claims is, in

part, a function of the Nondebtor Codefendants’ share (if any)

in the liability for the same plaintiffs’ claims, a determination

of DCC’s liability cannot be made until the amount of dam-

ages (if any) awarded against the Nondebtor Codefendants,

and DCC’s allocable share thereof, are determined. The Sixth

Circuit’s holding that the Implant Claims against the Non-

debtor Codefendants could conceivably have an effect on

DCC’s estate is thus completely consistent with this Court’s

decision in Celotex.

In short, petitioners’ assertion that the decision below con-

flicts with Celotex and decisions of other circuit courts of

7

The fact that the claim in Celotex was secured and the claims in

the decision below are unsecured is a distinction without a difference.

Both claims affected the administration of the respective debtor’s estate.

22

appeals simply obscures petitioners’ true contention, which is

that the Sixth Circuit misapplied the well-settled rule of law

regarding “related to” jurisdiction. As noted above, a petition

for certiorari is rarely granted when the asserted error consists

of the alleged misapplication of a properly stated rule of law.

5. No Misapplication of Law

In any event, petitioners’ allegations of misapplication are

without merit. Petitioners’ theory that jurisdiction under 28

U.S.C. § 1334(b) cannot exist over the Implant Claims against

the Nondebtor Codefendants is based on the erroneous

premise that the resulting claims-over for indemnification or

contribution are not claims at all, either because they have not

been formally asserted or because they are contingent.

First, petitioners’ representation that the Nondebtor

Codefendants have not pursued claims for contribution is

wrong. In addition to ignoring that the Nondebtor Code-

fendants may have claims for indemnification in addition to

claims for contribution, petitioners ignore the fact that 3M has

repeatedly asserted such claims throughout DCC’s chapter 11

bankruptcy. In fact, the decision below recognized that 3M

and the other Nondebtor Codefendants have “asserted repeat-

edly throughout their briefs, motions, and oral arguments that

they intend to file claims for contribution and indemnification

against Dow Corning, and we have no reason to doubt the

veracity of those assertions at this time.”*® Tort Comm. Pet.

App. 20a. Additionally, respondent is under no obligation to

file a formal proof of claim form prior to the January 15, 1997

bar date established in DCC’s bankruptcy case.?

. Upon information and belief, more than 10,000 such proofs of

claim have already been filed in DCC’s bankruptcy by one or more Non-

debtor Codefendants based upon the Implant Actions.

u

3M’s right to file a proof of claim is not affected in any way by

the fact that claims-over were not previously asi. ted in the Implant

Actions. The decision to wait to file such claims followed routine pro-

cedures, since a defendant that is sued as an alleged joint tortfeasor is not

i a te

I ILE FORE L A

23

Second, the contingent nature of a bankruptcy claim does

not render that claim uncognizable. Petitioners’ theory is

completely contrary to the broad definition of a “claim” set

forth in § 101(5) of the Bankruptcy Code, which explicitly

includes contingent claims. See 11 U.S.C. § 101(5) (defining

claim as a “right to payment, whether or not such right is

reduced to judgment, unliquidated, fixed, contingent,

matured, unmatured, disputed, undisputed, legal, equitable,

secured, or unsecured”).

Labeling a claim “contingent” does not mean it cannot have

an impact on a debtor’s estate. Implant Claims will result in

fixed claims-over against DCC to the extent the Nondebtor

Codefendants pay plaintiffs to satisfy a liability jointly held

with DCC. Conversely, the potential claims-over of DCC

against the Nondebtor Codefendants are valuable assets of

DCC’s estate, which are affected by the plaintiffs’ suits

against the Nondebtor Codefendants. Both types of claims-

over—those asserted against DCC and those asserted by

DCC—must be dealt with in some fashion under DCC’s plan

of reorganization. It necessarily follows, then, that the very

real Implant Claims against the Nondebtor Codefendants will

have a substantial effect on DCC’s estate.

‘CC. The Sixth Circuit Correctly Interpreted 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, and does not

provide an alternative basis for the Court to grant the writ.

required to assert a claim for contribution against a codefendant in the

same action. See 18 Am. Jur. 2d Contribution § 9 (1985) (“the right to

sue [for contribution] arises when a party has paid the whole of the obli-

gation or more than his share thereof. In either event the right to con-

tribution is merely contingent until payment or its equivalent is made,

and not until then does it become complete”); Uniform Contribution

Among Tortfeasors Act § 1(b), 12 U.L.A. 194 (1996) (“The right of con-

tribution exists only in favor of a tortfeasor who has paid more than his

pro rata share of the common liability. . . .”).

24

A necessary condition to implementing the reorganization

policy underlying the bankruptcy laws is the centralization in

one forum, to the maximum extent permitted by the United

States Constitution, of all the debtor’s assets, as well as a pro-

cess for dealing with all the debtor’s liabilities.’° Consistent

with congressional intent and the words of the Bankruptcy

Code, the Sixth Circuit properly construed § 157(b)(5) to per-

mit centralization of claims against nondebtors in cases where

the failure to centralize 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) (congres-

sional purpose of § 157(b)(5) was to “centralize the admin-

istration of the estate and to eliminate the ‘multiplicity of

forums for the adjudication of parts of a bankruptcy case’ ”)

(quoting 130 Cong. Rec. H7492 (daily ed. June 29, 1984)

(statement of Rep. Kastenmeier)), cert. denied, 479 U.S. 876

(1986).

Petitioners’ argument is based on the erroneous premise

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

against nondebtors. Because the language of the statute, the

legislative history, and the case law do not support this asser-

tion, however, petitioners do not, indeed cannot, cite any

authority to support their proposition.

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

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

Petitioners’ 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."

” Congress has provided the bankruptcy courts with powerful

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

(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).

i

Additionally, the warning that respondents’ interpretation of

§ 157(b)(5) would conflict with the MDL proceedings is factually erro-

25

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

§ 1334(b) applies mot 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 man-

ner with that section. As this Court has stated, statutory con-

struction is

a holistic endeavor. A provision that may seem

ambiguous in isolation is often clarified by the

remainder of the 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, 364 (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

neous. The District Court’s jurisdiction to transfer claims for trial pur-

poses is entirely compatible with the limited jurisdiction that is being

exercised by the Multidistrict Court which, as pointed out by petitioner,

coordinates pretrial proceedings. Tort Comm. Pet. 7. Moreover, the Multi-

district Court has no jurisdiction over state court implant claims that are

the subject of the decision below. Accordingly, the statement that the cen-

tralization of the Implant Claims will disrupt the MDL system is in error.

26

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 Robins, 788

F.2d at 999 (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 find-

ing against the debtor”).

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 5,000 Dalkon Shield actions

filed in state and federal courts throughout the United States.

Id. at 996. Over half of such actions named the debtor as the

sole defendant, while the remainder named as defendants 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

5,000 actions, including those against nondebtor defendants,

to the district court in which the bankruptcy case was pend-

ing. 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

27

upon personal injury tort or wrongful death claims

arising from the use of the Dalkon Shield intrauter-

ine 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

Chapter 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 Chapter 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 all Dalkon Shield claims commenced

against both the debtor and nondebtors:

[T]}here are very real considerations that support a

centralization of all the Dalkon Shield claims, at

least at 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-preferential 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 wrong-

ful death lawsuits naming two Pan Am debtors and one non-

debtor Pan Am affiliate).

Petitioners argue that the Robins decision should be ignored

because no transfer of claims actually occurred. What peti-

tioners fail to state, however, is that after the Fourth Circuit

concluded that centralization would be the rule, the parties

28

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, 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 decision

below is entirely consistent with the Fourth Circuit’s decision

in Robins, petitioners have 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 Petitions.

Accordingly, because the decision below interpreted

28 U.S.C. §§ 1334(b) and 157(b)(5) correctly, does not con-

flict with the decision of any other court of appeals, and is

consistent with this Court’s decision in Celotex, the Court

should deny petitioners’ request for a writ of certiorari.

CONCLUSION

For the foregoing reasons, a writ of certiorari should be

denied.

Respectfully submitted,

Bruce R. Zirinsky

Counsel of Record

Greg A. Danilow

Howard B. Comet

WEIL, GOTSHAL & MANGES LLP

767 Fifth Avenue

New York, New York 10153

(212) 310-8000

Counsel for Respondent,

Minnesota Mining and

Manufacturing Company

November 27, 1996