# Opposition Brief — Breast Implant Tort Represented By O'Quinn v. Dow Corning Corp., 117 S. Ct. 718 (1997) (No. 96-742) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_1766%3A06 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1997 ## Text > : , ” 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 _> 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 , yw 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 QUES TIONG PRESEN EIU soe c cic ccccccisesccccvcccces i SR ee EE ERE 0d Co Aas dawéls's buhna vcr crvececes ii RT a ERI REUEE opel s bev kdeesstpocsccscccccsctans li PUMP Ee I PRUE PRCPIRE REED Sc icccecvoscccccccseceseces V Pe ON oops s ch dncr ke peshvedensetbcdcutoce 1 STATUTORY PROVISIONS INVOLVED............. I SEAR E OF TES CAs oc ccc ccc sscvcccccccscces 2 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_1766%3A06. Public record. Not legal advice.