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

Nos. 96-330 & 96-742

IN THE NOY 2°

Supreme Court of the United States.

OCTOBER TERM, 1996

ee

OFFICIAL COMMITTEE OF TORT CLAIMANTS, ae

Petitioner,

—Vi-—

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,

eenten Y cctemen

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 RESPONDENTS

BRISTOL-MYERS SQUIBB COMPANY AND

MEDICAL ENGINEERING CORPORATION

Hayden Smith

Counsel of Record

David J. Adler

MCCARTER & ENGLISH

Gateway Four

100 Mulberry Street

Newark, New Jersey 07102

(201) 622-4444

Counsel for Respondents

Bristol-Myers Squibb Company and

Medical Engineering Corporation

COUNTER-STATEMENT OF

QUESTIONS PRESENTED

1. Whether the decision of the United States Sixth Circuit

Court of Appeals in Lindsey v. O’Brien, Tanski, Tanzer &

Young Health Care Providers of Connecticut (In re Dow

Corning Corp.), 86 F.3d 482 (6th Cir. 1996), petition for ceri.

filed, 65 U.S.L.W. 3167 (U.S. Aug. 28, 1996) (No. 96-330) is

reviewable by this Court in light of the present procedural

posture of the case?

2. Whether the decision of the United States Sixth Circuit

Court of Appeals in Lindsey v. O’Brien, Tanski, Tanzer

& Young Health Care Providers of Connecticut (In re Dow

Corning Corp.), 86 F.3d 482 (6th Cir. 1996), petition for cert.

filed, 65 U.S.L.W. 3167 (U.S. Aug. 28, 1996) (No. 96-330)

conflicts with the decisions of other Courts of Appeals

regarding the scope of “related to” jurisdiction under 28

U.S.C. § 1334(b)?

ii

RULE 29.6 LISTING

Pursuant to Supreme Court Rule 29.6, Respondent Bristol-

Myers Squibb Company states that it does not have a parent

company. The subsidiaries (other than wholly owned sub-

sidiaries) of Bristol Myers Squibb Company are:

Bristol-Myers Lion Ltd.

Bristol-Myers Squibb G.M.B.H.

Mead Johnson (Guangzhou) Ltd.

P.T. Squibb Indonesia

Synbiotics Limited

Laboratories UPSA SAS

RCS Realty Corporation

Sino American Shanghai Squibb Pharma Ltd.

Squibb Nigeria Limited

2309 Realty Corporation

Respondent Medical Engineering Corporation states that it

is a wholly owned subsidiary of Bristol-Myers Squibb Com-

pany. Medical Engineering Corporation does not have any

subsidiaries (other than wholly owned subsidiaries).

TABLE OF CONTENTS

Counter-Statement of Questions Presented............

ie UT hea at ries se reareseveresens

keke ead ad eu avainy se ceey ites

NS Oe EN onde ics s Vie es deb aweksteesenes

Counter-Statement of the Case ...............-...-.06-

Reasons for Denying the Writ...........00s-ccccccceess

EE Total badd cay 74h vase ot ce voce rs okes duets

Appendices:

Appendix A: Opinion of the District Court (July 30,

Appendix B: Order of the Sixth Circuit (September 24,

PAGE

ill

16

9a

iV

TABLE OF AUTHORITIES

Cases

A.H. Robins Co. v. Piccinin, 788 F.2d 994 (4th Cir.),

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

Aetna Life Insurance Co. v. Haworth, 300 U.S. 227

Ch EE RRP bor p oP rapes aes opr ON ON stints

American Construction Co. v. Jacksonville, Tampa

& Key West Railway Co., 148 U.S. 372 (1893)...

Anderson v. Green, ____ U.S. ___, 115 S. Ct. 1059

CS eis cus nbn's we s&h a eA Ok ea as a

Brotherhood of Locomotive Firemen v. Bangor

& Aroostock R.R. Co., 389 U.S. 327 (1967)......

Celotex Corp. v. Edwards, ____ U.S. ___, 115 S. Ct.

BOGS CIOS oaki dss indivi ccc dk. ees

City Communications, Inc. v. City of Detroit, 888 F.2d

EGET CGGH Cir. TURES i ccccsevedinndacameneeesucades

Dames & Moore v. Regan, 453 U.S. 654 (1981).......

Defunis v. Odegaard, 416 U.S. 312 (1974) ..........--

In re Dogpatch U.S.A., Inc., 810 F.2d 782 (8th Cir.

SOMES ia cice kn visa eds) eabeu deena e CERT has ees cs

i EE eT PP ee ee Ea Oe eee TEE

pg ck Pa TP OD BOR te ee ge state Brae db aires Wun yeaa

EPR conc gw es wes anes hereto cies ieee ll,

12

PAGE

In re Fietz, 852 F.2d 455 (9th Cir. 1988) .............. 13

In re G.S.F. Corp., 938 F.2d 1467 (ist Cir. 1991) ..... 13

In re Gardner, 913 F.2d 1515 (10th Cir. 1990)........ 13

Hamilton Brown Shoe Co. v. Wolf Brothers & Co.,

FO BSE ES ay res ik Bk i eA nd cs i 8

Hayburn’s Case, 2 Dall. 409 (1792) .........--..---05- 10

Iron Arrow Honor Society v. Heckler, 464 U.S. 67

oR. > Pena rere Renee Pg eae remy eye 10

Kelly v. Nodine (In re Salem Mortgage Co.), 783 F.2d

O26 (G0e SOG i or eas 5

In re Lemco Gypsum, Inc., 910 F.2d 784 (11th Cir.

Ro aoe ELIE te Oe 13

Lewis v. Continental Bank Corp., 494 U.S. 472

CE OOO) ise oak cbc adeeb cca srvcwbe ee davasstnegereans 10

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

Care Providers of Connecticut (In re Dow

Corning Corp.), 86 F.3d 482 (6th Cir. 1996),

petition for cert. filed, 65 U.S.L.W. 3167

CLES. Ae SS, PIGS oc vtec cen scsescesinvs scree passim

Liner v. Jafco, Inc., 375 U.S. 301 (1964).............. 10

Marbury v. Madison, 5 U.S. 137 (1803) ............06. 6

In re Marcus Hook Development Park, Inc., 943 F.2d

Bd LSUE Gah SAD occ RRR eas ioe ence eae nee sewers 14

Metzenbaum v. FERC, 675 F.2d 1282 (D.C. Cir. 1982) G

Muskrat v. United States, 219 U.S. 346 (1911)........ 10

Pacor, Inc. v. Higgins, 743 F.2d 984 (1984) .......... passim

vi

Powell v. McCormack, 395 U.S. 486 (1969)........... )

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

RS IEE babs cs ceva) dae op ven oF Ee ee aa AY se 9

Rice v. Sioux City Cemetery, Inc., 349 U.S. 70 (1955) 7

Robinson v. Michigan Consolidated Gas Co., 918 F.2d

Be AOU CAE LOGE reso ieakinkihaesenekeiwideieen 13

Roe « Wade: 410 F.S: 1535 CGT ii ies ek kids 10

In re Silicone Gel Breast Implants Products Liability

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

TOAD cic iscvakewadecd cress beuukss bat cobeceaas iors: 2

Sosua ¥. fowa, 419 U.S... 393. CUSTS) vei cc cdvivivcnscavece 10

Southern Pacific Terminal Co. v. ICC, 219 U.S. 498

ER) Sb eR ey Semen Let SORE Oe i pre ae 10

Ste Pierve v.03... 319 U.S. 4E CASED) cn iciveccesccisvine 9-10

Sullivan v. Little Hunting Park, Inc., 396 U.S. 229

SEY sco Sino ie 0 no RE Gan edink eee eas 14

Super Tire Engineering Corp. v. McCorkle, 416 U.S.

BES (EDIRC Seca is eh ha vk 10

In re Turner, 724 F.2d 338 (2d Cir. 1983) ............. 15

United States v. Munsingwear, Inc., 340 U.S. 36

CERO oh iad s SRV CRU RRR eer ad abel a wees Kash e cee eas 10

United States v. Richardson, 418 U.S. 166 (1974) .... 6

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

SBR 1) RRAEUOR HAE See Th aS genera Ee 8

Weinstein v. Bradford, 423 U.S. 147 (1975) ........... 10

In re Wood, 825 F.2d 90 (Sth Cir. 1987) ............... 13

Vil

PAGE

Statutes

se SR BS i) bo aay nes or ope Pacer ee re eer passim

PE Sa Bt SAMO Lh sav Ub ae datud Kenasetanseesar 4, 42,338

By a CO SME «us hie sk bad Ac ooh a dpscanesesats 44%

yi PIER oe 5. 7) Re re ree eee eer er Pete Te eee y 4

OE Be CTO IMIES oo inn bose Reimer ser ececlinionssasees 3

Other Authorities

Marcia Angell, Science on Trial: The Clash of

Medical Evidence and the Law in the Breast

Implant Case, (W.W. Norton & Co. 1996)........ ]

C. Wright, A. Miller, & E. Cooper, 13 Federal Practice

and Procedure, § 3532 (1975)............scceeeees 9

COUNTER-STATEMENT OF THE CASE

Respondents Bristol-Myers Squibb Company (“BMS”) and

Medical Engineering Corporation (“MEC”; collectively,

“Respondents”) respectfully pray that the petitions of the

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

and the breast implant claimants represented by O’ Quinn,

Kerensky, McAninch & Laminack (the “O’ Quinn Claimants”;

collectively, the “Petitioners”) for writs of certiorari to review

the judgment and opinion of the United States Court of

Appeals for the Sixth Circuit in Lindsey v. O’Brien, Tanski,

Tanzer & Young Health Care Providers of Connecticut (In re

Dow Corning Corp.), 86 F.3d 482 (6th Cir. 1996), petition for

cert. filed, 65 U.S.L.W. 3167 (U.S. Aug. 28, 1996) (No. 96-

330) be denied.

A. Breast Implants and the Bankruptcy of

Dow Corning

Petitioners’ requests for certiorari arise from the chapter 11

bankruptcy proceedings of Dow Corning Corporation (“Dow

Corning” or the “Debtor”) pending in the United States

Bankruptcy Court for the Eastern District of Michigan, North-

ern Division (the “Bankruptcy Court”). Dow Corning, a finan-

cially healthy company, was driven into bankruptcy by an

avalanche of actions brought against it for injuries allegedly

sustained by recipients of silicone-gel breast implants.!

' As of May 15, 1995, the date on which it filed for bankruptcy,

Dow Corning had been named as a defendant in more than seven thou-

sand suits. Despite the avalanche of suits, and in contrast to the assertions

made by the Tort Committee on page 5 of its Petition, there has never

been any reliable scientific evidence to support the claim that silicone-

gel breast implants cause autoimmune or other systemic disease. See gen-

erally Marcia Angell, Science on Trial: The Clash of Medical Evidence

and the Law in the Breast Implant Case, (W.W. Norton & Co. 1996).

Like Dow Corning, Respondents and others? are named as

defendants in thousands of suits seeking damages for injuries

allegedly caused by silicone-gel breast implants. In many of

these suits, Dow Corning is named as a party defendant with

Respondents because: (i) it supplied silicone gel (or other sil-

icone components) to the Respondents; or (ii) the actions

involve implants manufactured by both MEC? (or one of its

predecessors) and Dow Corning. Additionally, in the vast

majority of these actions, the plaintiffs assert that Dow Corn-

ing and Respondents are joint tortfeasors.

B. Consolidation and the Global Settlement

Due to the rapidly growing number of breast implant suits

being commenced in federal courts, the Judicial Panel on

Multidistrict Litigation (the “MDL”), on June 25, 1992,

ordered the transfer of all breast-implant actions pending in

the federal courts to the Honorable Sam C. Pointer, Jr., Chief

Judge, United States District Court for the Northern Division

of Alabama (Southern Division) for the coordination of pre-

trial proceedings. Jn re Silicone Gel Breast Implants Prods.

Liab. Litig., MDL No. 926, 793 F. Supp. 1098, 1100 (J.P.M.L.

1992). In transferring these actions, the MDL determined that

consolidation of all federal implant actions would avoid

duplication of discovery, prevent inconsistent pretrial rulings

and conserve the parties’ resources. /d.

4 Baxter International Incorporated, Baxter Healthcare Corpora-

tion (collectively, “Baxter”), Minnesota Mining and Manufacturing Com-

pany (“3M”), and Dow Corning’s parent corporations, The Dow

Chemical Company and Corning, Inc. (together, the “Shareholders”).

Collectively, Respondents, Baxter, 3M and the Shareholders are referred

to herein as the “Non-Debtors.”

; BMS never designed, manufactured, marketed or sold any sili-

cone gel breast implants or any material or components for such

implants. Rather, since 1982 it has owned all of the shares of MEC,

which manufactured, sold and distributed breast implants from 1969 to

1991.

By Order dated April 1, 1994, Judge Pointer preliminarily

certified one class action for settlement purposes. On Septem-

ber 1, 1994, Judge Pointer approved a complex settlement

agreement (the “Global Settlement”) between members of the

Settlement Class and certain defendants that contemplated the

creation of a $4.25 billion settlement fund. Approximately

440,000 claimants registcred as potential participants in the

Global Settlement. Because of: (i) the large number of opt

outs; (ii) the large number of claims against the settlement

fund; and (iii) the bankruptcy of Dow Corning, a revised set-

tlement program, which did not include Dow Corning, was

approved by Judge Pointer by Order dated December 22, 1995

(the “Revised Settlement Program”). Several appeals have

been taken from the Revised Settlement Program, which are

presently pending in the Eleventh Circuit.

Pursuant to the Revised Settlement Program, 3M, Baxter,

and Respondents will pay benefits to breast implant recipients

which are assured and not subject to further reduction. Breast

implant recipients are presently electing whether to accept the

Revised Settlement Program, which provides for extended

opt-out periods.

C. Removal of State Court Cases and The Transfer

Motion

On June 5, 1995, following Dow Corning’s filing for

bankruptcy, Respondents along with the Debtor, Baxter and

3M began removing pending state court cases in which one or

more plaintiffs in each suit had opted out of the Global Set-

tlement and in which Dow Corning was a party (the “Opt-Out

Actions”) pursuant to 28 U.S.C. § 1452(a). Thereafter, on

June 14, 1995, Respondents filed a motion in the United

States District Court for the Eastern District of Michigan,

Southern Division (the “District Court”) seeking, inter alia,

that the Court transfer the Opt-Out Actions to the District

Court pursuant to 28 U.S.C. § 157(b)(5) (the “Transfer

4

Motion”). The Debtor, Baxter and 3M also filed similar

motions.

On July 31, 1995, the District Court heard oral argument on

the Transfer Motion. By Order and Opinion dated September

12, 1995 (the “September 12th Order”), the District Court

denied the Transfer Motion. See In re Dow Corning Corp.,

187 B.R. 934 (E.D. Mich. 1995).* The District Court denied

the Transfer Motion because it determined that no federal

jurisdictional existed, under either “related to” jurisdiction

pursuant to 28 U.S.C. § 1334(b) or supplemental jurisdiction

under 28 U.S.C. § 1367(a).

D. Reversal by the Sixth Circuit

Respondents appealed from the September 12th Order. On

April 9, 1996, the United States Court of Appeals for the

Sixth Circuit (the “Sixth Circuit”) issued an opinion and order

reversing the September 12th Order. 81 F.3d 635 (6th Cir.

1996). That opinion and order was subsequently withdrawn

and on June 3, 1996, the Sixth Circuit issued an amended

opinion and its mandate. Lindsey v. O’Brien, Tanski, Tanzer

& Young Health Care Providers of Connecticut (In re Dow

Corning Corp.), 86 F.3d 482 (6th Cir. 1996), petition for cert.

filed, 65 U.S.L.W. 3167 (U.S. Aug. 28, 1996) (No. 96-330)

(“Lindsey”). In Lindsey, the Sixth Circuit determined, inter

alia, that the claims pending against Non-Debtors were

“related to” the Debtor’s bankruptcy under 28 U.S.C.

§ 1334(b).° In reversing the September 12th Order, the Sixth

Circuit remanded the matter to the District Court to determine

4

In a companion opinion, Jn re Dow Corning Corp, 187 B.R. 919

(E.D. Mich. 1995), the District Court refused to transfer the Opt-Out

Actions pending against the Shareholders.

5

Because the Sixth Circuit determined that “related to” juris-

diction existed, it did not address whether the District Court erred in

determining that supplemental jurisdiction did not exist under 28 U.S.C.

§ 1367(a).

whether the Opt-Out Actions should be transferred to the Dis-

trict Court in accordance with 28 U.S.C. § 157(b)(5). /d. at

498. In connection with that determination, the Sixth Circuit

noted that the District Court would be required to conduct an

abstention analysis:

to “determine in each individual case whether hearing it

would promote or impair efficient and fair adjudication

of the bankruptcy cases.”

Id. at 497 (quoting Kelley v. Nodine (In re Salem Mortgage

Co.), 783 F.2d 626, 635 (6th Cir. 1986)).

E. Abstention Order and Further Proceedings

Although barely referenced by Petitioners,° following Lind-

sey, the District Court, on July 30, 1996, entered an order

(the “Abstention Order’) abstaining en masse under 28 U.S.C.

§ 1334(c) from transferring the Opt-Out Actions.’ The

Abstention Order is reprinted at la-8a. Thereafter, on August

13, 1996, each of the Respondents filed a notice of appeal

with the District Court. On August 23, 1996, the Tort Com-

mittee filed a motion (the “Dismissal Motion”) to dismiss the

appeals. Respondents served their opposition papers on

September 3, 1996.

On September 24, 1996, the Sixth Circuit entered an order

directing that the Dismissal Motion be addressed in connec-

tion with the merits of the appeal. The Sixth Circuit order is

reprinted at 9a-10a. The Sixth Circuit also expedited the

. It is not until page 11 of its Petition that the Tort Committee

notes: “(I]t happens that in this case, following the reversal and remand,

the district court concluded that it should abstain. . .” Tort Committee

Pet. at 11. The O’ Quinn Claimants relegate this important fact to a foot-

note. O’ Quinn Claimants Pet. 2-3 n.2.

7 The Tort Committee filed its petition for certiorari on August 27,

1996,—a month after the District Court entered the Abstention Order.

The O’ Quinn Claimants served their original petition on August 29, 1996

and filed a corrected petition on November 12, 1996.

6

briefing schedule. As of November 19, 1996, the appeal has

been fully briefed. Respondents have not been notified of the

date for oral argument.

REASONS FOR DENYING THE WRIT

The Lindsey decision presents no important or novel legal

question which would justify the issuance of a writ of cer-

tiorari. Initially, due to the District Court’s decision to

abstain, the issues sought to be reviewed are not presently

justiciable. Because the Abstention Order has not yet been

reversed by the Sixth Circuit, Petitioners seek review of

issues that are at best not yet ripe for determination. At worst,

assuming the Sixth Circuit does not reverse the Abstention

Order, the petitions seek review of moot issues and the

issuance of an advisory opinion from the Court. In any event,

certiorari is not warranted at this time.

Moreover, contrary to Petitioners’ assertions, the Lindsey

decision neither conflicts with decisions of other Courts of

Appeals nor represents “an unprecedented expansion of

bankruptcy jurisdiction.” Tort Committee Pet. at 4. The

asserted “conflicts” are not genuine and simply reflect appli-

cations of the same or similar legal principles to different fac-

tual situations.

I.

Certiorari Should Be Denied Because There Are

No Justiciable Issues Before the Court

Since Marbury v. Madison, 5 U.S. 137 (1803), the Court

has recognized that judicial power of the federal courts is lim-

ited to “cases or controversies” under Article III of the Con-

stitution. A “case or controversy” must be justiciable and not

be moot, a political question or a request for an advisory

opinion. See United States v. Richardson, 418 U.S. 166, 171

(1974). (citations omitted).

As Chief Justice Hughes explained in Aetna Life Ins. Co. v.

Haworth, 300 U.S. 227, 240-41 (1937),

A justiciable controversy is thus distinguished from a

difference or dispute of a hypothetical or abstract char-

acter; from one that is academic or moot. The contro-

versy must be definite and concrete, touching the legal

relations of parties having adverse legal interests. It must

be a real and substantial controversy admitting of spe-

cific relief through a decree of a conclusive character, as

distinguished from an opinion advising what the law

would be upon a hypothetical state of facts.

As demonstrated herein, while the issues raised by Peti-

tioners may be intellectually stimulating, there are no justi-

ciable issues to be determined in light of the Abstention

Order. Whether these issues will ultimately become justi-

ciable is wholly dependent upon the present appeal pending

before the Sixth Circuit.* Regardless of the Sixth Circuit’s

ultimate determination, certiorari should be denied at this

time. Rice v. Sioux City Cemetery, Inc., 349 U.S. 70, 74

(1955) (dismissing certiorari as improvidently granted, the

Court stated: “this Court does not sit to satisfy a scholarly

interest in such [abstract] issues”).

A. Petitioners Seek Review of an Interlocutory

Order

In Lindsey, the Sixth Circuit determined that the District

Court has subject matter jurisdiction over the Opt-Out

Actions and that transfer of the actions pending against the

Non-Debtors under 28 U.S.C. § 157(b)(5) is permissible.

Lindsey, 86 F.3d at 497; accord A.H. Robins Co. v. Piccinin,

788 F.2d 994 (4th Cir.), cert. denied, 479 U.S. 876 (1986).

The matter was then remanded to the District Court and there-

after the Abstention Order was entered.

. As of November 19, 1996, the appeal was fully briefed. Respon-

dents have not been notified of the date for oral argument.

Initially, the Lindsey decision is an interlocutory order that

is not reviewable at this time. See Brotherhood of Locomotive

Firemen v. Bangor & Aroostock R.R. Co., 389 U.S. 327, 328

(1967) (certiorari denied because the Court of Appeals

remanded the case so the matter was not ripe for review by

the Supreme Court). In general, the Court does not exercise

certiorari jurisdiction prior to a lower court issuance of a final

judgment. See Virginia Military Institute v. United States, 508

U.S. 946 (1993); American Constr. Co. v. Jacksonville, Tampa

& Key West Ry. Co., 148 U.S. 372 (1893). In American Con-

str., Justice Gray noted:

Whether an interlocutory order may be separately

reviewed by an appellate court in the progress of the

suit, or only after and together with the final decree, is

matter of procedure rather than of substantial right; and

many orders made in the progress of a suit become quite

unimportant by reason of the final result or of interven-

ing matters. Clearly, therefore, this court should not

issue a writ of certiorari to review adecree. . . unless

it is necessary to prevent extraordinary inconvenience

and embarrassment in the conduct of the cause.

Id. at 384; see also 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.”) (citation omitted).

B. The Issues Raised in the Petitions Are Not Ripe

Certiorari is not appropriate because the issues sought to be

reviewed are not ripe. As one Circuit Court has noted:

{the] [r]ipeness doctrine is drawn from both Article III

limitations on judicial power and discretionary reasons

of policy for refusing to exercise existing power. The

central concern of both power and discretion is that the

tendered case involves uncertain and contingent future

events that may not occur as anticipated, or indeed may

not occur at all.

Metzenbaum v. FERC, 675 F.2d 1282, 1289-90 (D.C. Cir. 1982)

(quoting from C. Wright, A. Miller & E. Cooper, 13 Federal

Practice and Procedure: Jurisdiction § 3532, at 237-38

(1975)).

Whether a decision is ripe for adjudication is “peculiarly

a question of timing.” Anderson v. Green, ___ U.S. ___, 115

S. Ct. 1059, 1060 (1995), quoting Regional Rail Reorgani-

zation Act Cases, 419 U.S. 102, 140 (1974). Ripeness

becomes an issue when a case is anchored in future events

that may not occur as anticipated, or at all. See Dames &

Moore v. Regan, 453 U.S. 654, 689 (1981). Underlying the

ripeness doctrine is the concept that courts should decide only

a “real, substantial controversy”, not a mere hypothetical

question. See City Communications, Inc. v. City of Detroit,

888 F.2d 1081, 1089 (6th Cir. 1989) (citation omitted).

In this case, the Abstention Order vitiated, at least for the

time being, any practical effect of the determination in Lind-

sey that Petitioners seek to have this Court review. The issues

raised in the Petitions ceased to be ripe when the District

Court abstained and will only become ripe again if the Sixth

Circuit reverses the Abstention Order and a final order is

entered granting the Transfer Motion—future contingencies

that may not occur. Accordingly, the issues raised by Peti-

tioners are presently not ripe for adjudication.

C. Should the Sixth Circuit not Reverse the Absten-

tion Order, the Issues Raised by Petitioners Are

Moot

If the Sixth Circuit were to affirm the Abstention Order (or

alternatively dismiss the appeals), the issues raised by the

Petitioners would be moot. A moot controversy is one “when

the issues presented are no longer ‘live’ or the parties lack a

cognizable interest in the outcome.” See Powell v. McCor-

mack, 395 U.S. 486, 496 (1969) (citation omitted). A moot

case is not a “case or controversy” under Article III of the

Constitution. St. Pierre v. U.S., 319 U.S. 41, 42 (1943) (“a

10

federal court is without power to decide moot questions or to

give advisory opinions which cannot affect the rights of liti-

gants in the case before it”); see also Lewis v. Continental

Bank Corp., 494 U.S. 472, 477 (1990); Iron Arrow Honor

Society v. Heckler, 464 U.S. 67, 70 (1983); Defunis v. Ode-

gaard, 416 U.S. 312, 319 (1974); Liner v. Jafco, Inc., 375

U.S. 301, 306 n.3 (1964); United States v. Munsingwear, Inc.,

340 U.S. 36, 39 (1950).

Because a moot controversy does not contain “live” issues,

review will result in the issuance of an advisory opinion in

contravention of Article III of the Constitution. See Muskrat

v. United States, 219 U.S. 346, 362 (1911); Hayburn’s Case,

2 Dall. 409 (1792). The limited exception to the mootness

rule for cases that fall under the doctrine of “capable of rep-

etition, yet evading review” is inapplicable in this case. See

Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515

(1911).

Although the O’ Quinn Claimants purport that this excep-

tion is applicable to the instant case, it is not. O’Quinn

Claimants Pet. at 2-3. In order for an action “to be capable of

repetition, yet evading review”, two elements must be satis-

fied: (i) the challenged action must be in its duration too short

to be fully litigated prior to its cessation or expiration, and

(ii) there must be a reasonable expectation that the same com-

plaining party will be subjected to the same action again. See

Weinstein v. Bradford, 423 U.S. 147, 149 (1975); see also

Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515

(1911). Assuming, arguendo, that the issues raised by Peti-

tioners are “capable of repetition”, they most certainly do not

evade review.’ For example, if the Sixth Circuit were to

9

In cases where the Court has invoked the “capable of repetition

yet evading review” exception, the matter sought to be reviewed was of

a limited duration. See, e.g., Sosna v. lowa, 419 U.S. 393 (1975) (resi-

dency requirements); Super Tire Engineering Corp. v. McCorkle, 416

U.S. 115 (1974) (economic strikes): Roe v. Wade, 410 U.S. 113 (1973)

(pregnancy); Dunn v. Blumstein, 405 U.S. 330 (1972) (elections).

11

reverse and the Opt-Out Actions were to be transferred, the

issues would no longer be moot and the Court could consider

petitions for a writ of certiorari in the normal course. Simi-

larly, if the same parties were to be subjected to this treatment

again, it would be in the context of the transfer of the Opt-Out

Actions which would not be of such a limited duration so as

to avoid review.'°

In sum, the issues raised by the Petitioners are not presently

justiciable and certiorari should be denied.

II.

The Decision in Lindsey Would Be The Same Under Any

Of The Tests For Determining “Related to” Jurisdiction

Even if the Court were to consider the issues raised in the

petitions in the context of a final decision, certiorari should

still be denied. Contrary to Petitioners’ assertions, the deci-

sion in Lindsey is not in conflict with Pacor, Inc. v. Higgins,

743 F.2d 984 (1984) or In re Fedpak Systems, Inc., 80 F.3d

207 (7th Cir. 1996). Indeed, in issuing its ruling, the Sixth

Circuit explicitly relied on the test for determining “related

to” jurisdiction set forth in Pacor."

se The Tort Committee acknowledges this fact when it improperly

characterizes the motives of the Non-Debtors. See Tort Committee Peti-

tion at 11 (noting that if the Opt-Out Actions were transferred, they

would continue for an indefinite period).

3 Similarly, Lindsey does not represent an “enormous destructive

change in the American Tort System” or “violate[ } basic principles allo-

cating tort jurisdiction in our federal system” as the Tort Committee

asserts. Tort Committee Pet. at 9. In A.H. Robins v. Piccinin, 788 F.2d

994, cert. denied, 479 U.S. 876 (1986), the Fourth Circuit considered

similar issues and determined that actions pending against non-debtors

were subject to transfer to the district where the Robins case was pend-

ing. Petitioners do not assert that a conflict among the Circuits exists

with respect to the proper interpretation of 28 U.S.C. § 157(b)(5).

Accordingly, certiorari is not appropriate as to that issue.

12

“Related to” jurisdiction stems from Section 1334(b) of

Title 28 which provides, in relevant part, that:

Notwithstanding any Act of Congress that confers exclu-

Sive jurisdiction on a court or courts other than the dis-

trict courts, the district courts shall have original but not

exclusive jurisdiction of all civil proceedings arising

under title 11, or arising in or related to cases under title

11.

As this Court has previously noted, the scope of “related to”

jurisdiction is not defined, but Congress intended it to be

broad:

Congress did not delineate the scope of ‘related to’. . .

jurisdiction, but its choice of words suggests a grant of

some breadth. The jurisdictional grant in § 1334(b) was

a distinct departure from the jurisdiction conferred under

previous acts, which had been limited to either posses-

sion of property by the debtor or consent as a basis for

jurisdiction. . . . We agree with the views expressed by

the Court of Appeals for the Third Circuit in Pacor, Inc.

v. Higgins, 743 F.2d 984 (1984), that ‘Congress

intended to grant comprehensive jurisdiction to the

bankruptcy courts so that they might deal efficiently

and expeditiously with all matters connected to the

bankruptcy estate,’ and that the ‘related to’ language

of § 1334(b) must be read to give district courts juris-

diction over more than simple proceedings involving

the property of the debtor or the estate.’

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

1498-99 (1995) (emphasis supplied).

Petitioners’ assertion that Lindsey conflicts with Pacor is

unfounded. Initially, in determining that the District Court

had “related to” jurisdiction over the Opt-Out Actions and

that such actions were subject to transfer under 28 U.S.C.

13

§ 157(b)(5), the Sixth Circuit relied explicitly on the test set

forth in Pacor:

As stated in [Pacor], the “usual articulation of the test

for determining whether 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.” Pacor, 743 F.2d at 994. 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.” /d.

* * * *

Our Circuit adopted the Pacor test for determining

whether a civil proceeding is “related to” a bankruptcy

proceeding under Section 1334(b) in Robinson, 918 F.2d

at 583... . The majority of our sister circuits have

likewise adopted the Pacor test for “related to” juris-

diction.

Id. at 489 (citations omitted). Virtually every Court of Appeals

has embraced the test enunciated in Pacor, sometimes with

minor modifications. '”

While Lindsey explicitly relied on Pacor'’, Petitioners seem

to take issue because of the difference in the holdings of these

two cases. Initially, to the extent that Petitioners seek redress

12 See In re G.S.F. Corp., 938 F.2d 1467, 1475 (ist Cir. 1991); A.H.

Robins Co. v. Piccinin, 788 F.2d 994, 1002, (4th Cir.) cert. denied, 479

U.S. 876; In re Wood, 825 F.2d 90, 93 (Sth Cir. 1987); Robinson v. Michi-

gan Consol. Gas Co., 918 F.2d 579, 583-84 (6th Cir. 1990); In re Dog-

patch U.S.A.,Inc., 810 F.2d 782, 786 (8th Cir. 1987); In re Fietz, 852 F.2d

455, 457 (9th Cir. 1988); In re Gardner, 913 F.2d 1515, 1518 (10th Cir.

1990); In re Lemco Gypsum, Inc., 910 F.2d 784, 788 (11th Cir. 1990).

2 Consistent with Pacor, the Sixth Circuit recognized that “related

to” jurisdiction is not limitless. /d. at 490.

14

from the Court because they are displeased with the result in

Lindsey, certiorari jurisdiction should not be exercised for the

“the benefit of the particular litigants”, but instead for the set-

tlement of [issues] of importance to the public, as distin-

guished from. . . the parties.” Sullivan v. Little Hunting

Park, Inc., 396 U.S. 229, 250 (1969) (Harlan, J. dissenting)

(citations omitted); see also Sup. Ct. R. 10 (“[a] petition for

a writ of certiorari is rarely granted when the asserted error

consists of . . . the misapplication of a properly stated rule of

law.”’).

Moreover, the Tort Committee seems to suggest that a def-

inite finding of liability is required under the Pacor test. Tort

Committee Pet. at 14. Such a finding is not required:

A key word in [the] test is “conceivable.” Certainty, or

even likelihood is not a requirement. Bankruptcy juris-

diction will exist so long as it is possible that a pro-

ceeding may impact on “the debtor’s rights, liabilities,

options, or freedom of action” or the “handling and

administration of the bankrupt estate.”

In re Marcus Hook Dev. Park. Inc., 943 F.2d 261, 264 (3d Cir.

1991) (quoting Jn re Smith, 866 F.2d 576 (3d Cir. 1989)) (other

citations omitted). Finally, the Sixth Circuit explained the dif-

ference in the outcome between Lindsey and Pacor:

The potential for Dow Corning’s being held liable to the

non-debtors in claims for contribution and indemnifi-

cation, or vice versa, suffices to establish a conceivable

impact on the estate in bankruptcy. Claims for indem-

nification and contribution, whether asserted against or

by Dow Corning, obviously would affect the size of the

estate and the length of time the bankruptcy proceedings

will be pending, as well as Dow Corning’s ability to

resolve its liabilities and proceed with reorganization. In

addition, we believe there is a qualitative difference

between the single suit involved in Pacor and the over-

15

whelming number of cases asserted against Dow Corning

and the non-debtor defendants in this case.

Id. at 494. Accordingly, Lindsey does not conflict with Pacor.

In addition, Petitioners assert that Lindsey “significantly

diverges” from /n re Fedpak Systems, Inc., 80 F.3d 207 (7th

Cir. 1996). Tort Committee Pet. at 12. In fact, the result in

Lindsey would be no different if the test in Fedpak were

applied.'*

In Fedpak, the debtor Fedpak Systems, Inc. (“Fedpak”) was

the developer and patent holder on a frozen dessert machine.

Id. at 209. Shortly after filing for bankruptcy, Fedpak com-

menced a breach of contract action against Stanley Jones

(“Jones”). Jd. The Fedpak/Jones litigation was subsequently

settled on appeal and Fedpak thereafter transferred all of its

intellectual property rights in the machines to Polar Express

International, Inc. (“Polar Express”) in exchange for royalty

payments. /d. at 210. Years later, at the request of Polar

Express, Fedpak filed a motion seeking clarification of the

findings of facts and conclusions of law issued by the

bankruptcy court in the Fedpak/Jones Litigation.

On appeal, the Seventh Circuit noted that Fedpak did not

have standing to request such an order. /d. at 212. Addition-

ally, the Court noted that the bankruptcy court lacked juris-

diction to determine the rights of Jones and Polar Express to

property outside of the Court’s control. /d. at 213. In so rul-

ing, the court set forth its test for determining jurisdiction:

“fa] case is related to a bankruptcy case when the dispute

‘affects the amount of property available for distribution [i.e.,

- Equally unavailing is the assertion of the O’ Quinn Claimants

that the decision in Lindsey conflicts with that of In re Turner, 724 F.2d

338 (2d Cir. 1983) and Jn re Lemco Gypsum, Inc., 910 F.2d 784 (11th Cir.

1990). In Lemco, the Eleventh Circuit stated: “[w]Je join the majority of

the circuits that have adopted the Pacor formulation.” /d. at 788. More-

over, the Opt-Out Actions have a “significant connection” with the

Debtor’s bankruptcy as required under Turner. Turner, supra, 724 F.2d

at 341.

16

the debtor’s estate] or the allocation of property among cred-

itors.’ ” Jd. at 213-14 (citations omitted).

Despite the Petitioners’ assertions to the contrary, the Fed-

pak test does not “significantly diverge” from that of Lindsey.

Indeed, in the instant case, application of the Fedpak test

would not have changed the result. Unlike the thousands of

claims pending against the Debtor, the claim in Fedpak was

but a single claim. Moreover, as the Sixth Circuit noted, the

claims for indemnification and contribution whether asserted

by or against the Debtor will undoubtedly “affect the size of

the estate”—i.e., the amcunt of property available for dis-

tribution—as well as the Debtor’s “ability to resolve its lia-

bilities and proceed with reorganization” —i.e., allocation of

property among creditors. See Lindsey, 86 F.3d at 494.

In sum, there is no conflict among the Circuits with respect

to “related to” jurisdiction and Petitioners’ requests for cer-

tiorari should be denied.

CONCLUSION

The petitions for writs of certiorari should be denied.

Respectfully submitted,

Hayden Smith

Counsel of Record

David J. Adler

MCCARTER & ENGLISH

Gateway Four

100 Mulberry Street

Newark, New Jersey 07192

(201) 622-4444

Counsel for Respondents Bristol-

Myers Squibb Company and

Medical Engineering Corporation

Dated: November 26, 1996