Bendectin Products Liability Litigation, In re

• Decision Date: 14 December 1984
• Docket Number: No. 84-3710,84-3710
• Citation: 749 F.2d 300
• Parties: , 40 Fed.R.Serv.2d 1 In re BENDECTIN PRODUCTS LIABILITY LITIGATION, Petitioner.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 300

749 F.2d 300

53 USLW 2247, 40 Fed.R.Serv.2d 1

In re BENDECTIN PRODUCTS LIABILITY LITIGATION, Petitioner.

No. 84-3710.

United States Court of Appeals Sixth Circuit.

Argued Oct. 23, 1984.

Decided Oct. 26, 1984.

Rehearing and Rehearing En Banc Denied Dec. 14, 1984.

Irving R.M. Panzer (argued), Washington, D.C., Barry J. Nace, Bethesda, Md., for appellant.

Stanley M. Chesley, Cincinnati, Ohio, for respondent.

Frank C. Woodside, III (argued) (Merrell-Dow), Dinsmore & Shohl, Cincinnati, Ohio, for appellee.

James G. Butler (Class), Raymond L. Henke, Butler, Jefferson, Dan & Allis, Los Angeles, Cal., for petitioner.

James G. Butler (Marco Cordova), Butler, Jefferson, Dan & Allis, Los Angeles, Cal., Richard H. Middleton, Jr., N. Calhoun Anderson, Jr., Middleton & Anderson P.C., Savannah, Ga., Gene E. Smith, Sherman Oaks, Cal., Leonard W. Schroeter, Schroeter, Goldmark & Bender, Seattle, Wash., Thomas H. Bleakley, Robert A. Tyler, Detroit, Mich., George S. Alfieris, Sherman Oaks, Cal., Stephen B. Murray, New Orleans, La., Barry Regar, Barry Regar, A Professional Law Corp., Palm Springs, Cal., Richard Warren Mithoff, Tommy Jacks, Doggett & Jacks, Houston, Tex., Elaine Mittleman, Falls Church, Va., Mari C. Bush, Boulder, Colo., Marceline Lasater, Gibbins, Burrow & Bratton, Austin, Tex., W. Russell Van Camp, Van Camp, Bennion & Kelleher, Spokane, Wash., Don L. Dees, Tulsa, Okl., Gary O. Galiher, Stanford H. Masui, L. Richard DeRobertis, Honolulu, Hawaii, John M. Anton, Rodney A. Klein, Inc., A Professional Corporation, Sacramento, Cal., for parties in support of petition for writ of mandamus.

Arthur H. Bryant, Trial Lawyers for Public Justice, P.C., Washington, D.C., Herbert B. Newberg, Herbert B. Newberg, P.C., Philadelphia, Pa., for amicus curiae Trial Lawyers for Public Justice.

Before KEITH and MARTIN, Circuit Judges, and JOHNSTONE, District Judge. ^*

BOYCE F. MARTIN, Jr., Circuit Judge.

Petitioners seek a writ of mandamus ordering the district court to vacate its order certifying a class action pursuant to Federal Rule of Civil Procedure 23(b)(1). 102 F.R.D. 239 (S.D.Ohio 1984). For the reasons stated below, the petition shall be granted, and the writ shall be issued.

I.

This case is just one stage in a massive products liability lawsuit against Merrell Dow Pharmaceuticals, Inc., the manufacturer of the drug Bendectin. Bendectin is a prescription drug developed to relieve morning sickness in pregnant women. ¹ Numerous plaintiffs have filed claims in both federal and state court alleging that they suffer from birth defects as a result of their in utero exposure to Bendectin.

The present controversy has its roots in a transfer order of the Judicial Panel on Multidistrict Litigation in early 1982. 533 F.Supp. 489. Pursuant to that order, all Bendectin actions pending in federal courts were transferred to the Southern District of Ohio for consolidated pretrial proceedings. Shortly after the transfer, a five-person Plaintiffs' Lead Counsel Committee was formed to coordinate discovery efforts for all plaintiffs in federal court.

Over the next year, many other cases were transferred to the Southern District of Ohio, and many more cases were filed in that court as original actions. ² In September 1983, the district judge issued an order to show cause why the cases should not be certified as a class action under Federal Rule of Civil Procedure 23 or, in the alternative, be consolidated for trial on common issues of liability pursuant to Federal Rule of Civil Procedure 42. After the parties responded to this order, the district judge held in November 1983 that the action was not appropriate for class certification and instead consolidated the cases for trial pursuant to Rule 42. The consolidation order, however, only included those cases that had been filed in Ohio federal courts, and the cases that had been transferred to the Southern District were to be returned to their original venue for trial unless the plaintiffs agreed to the consolidated trial.

The consolidated trial began June 11, 1984, and a jury was impaneled. Because of serious settlement negotiations between the Plaintiffs' Lead Counsel Committee and Merrell Dow, the district court recessed the trial on June 18 and certified a class for settlement purposes under Federal Rule of Civil Procedure 23(b). Merrell Dow has apparently made a settlement offer of $120 million, and a majority of the Plaintiffs' Lead Counsel Committee tentatively favor the settlement offer. ³ A hearing is scheduled for October 31, 1984, to determine the proper allocation of the settlement among subclasses, and a fairness hearing on the settlement is scheduled for November 30.

In the order certifying the class, the district judge found that all four requirements of Rule 23(a) were easily met. The court also found that the requirements of Rule 23(b)(1)(A) and (B) were met. ⁴ With respect to Rule 23(b)(1)(A), the district court stated that "continued case by case determinations will inevitably result in varying adjudications which will impose inconsistent standards of conduct upon the defendant." The district judge found 23(b)(1)(B) to have been met because "there is a risk that a limited fund may exist from which judgments can be satisfied." The district judge then certified a "non-opt out" class for settlement purposes of all persons exposed to Bendectin.

The district judge also subdivided the class into Subclasses A and B. Subclass A consists of all persons who had filed suit prior to the class certification order. Subclass B encompasses all persons who had not filed suit by that date.

Shortly after the certification order, several of the individual plaintiffs filed a petition with this Court for a writ of mandamus to vacate the district court's certification order. After the filing of the petition, a substantial number of plaintiffs has joined in the petition for the writ. Merrell Dow and a majority of the Plaintiffs' Lead Counsel Committee are opposing the petition for mandamus.

II.

This Court clearly has the power to issue a writ of mandamus pursuant to the All Writs Statute, 28 U.S.C. Sec. 1651. EEOC v. K-Mart Corp., 694 F.2d 1055, 1061 (6th Cir.1982); United States v. Harper, 729 F.2d 1216, 1221 (9th Cir.1984). The petitioners, however, bear a heavy burden in showing that mandamus is the proper remedy. Mandamus is an extraordinary remedy, Kerr v. United States District Court for the Northern District of California, 426 U.S. 394, 402, 96 S.Ct. 2119, 2123, 48 L.Ed.2d 725 (1976), and it will only be granted when the petitioner shows that "its right to issuance of the writ is 'clear and indisputable.' " In re Post-Newsweek Stations, Michigan, Inc., 722 F.2d 325, 329 (6th Cir.1983) (quoting Bankers Life & Casualty Co. v. Holland, 346 U.S. 379, 384, 74 S.Ct. 145, 148, 98 L.Ed. 106 (1953)). "[O]nly exceptional circumstances amounting to a judicial 'usurpation of power' will justify the invocation of this extraordinary remedy." Will v. United States, 389 U.S. 90, 95, 88 S.Ct. 269, 273, 19 L.Ed.2d 305 (1967). ⁵

While recognizing that the Supreme Court has admonished the circuit courts to issue writs of mandamus only in the most extraordinary circumstances, we believe that this admonition is only "a starting point in the effort to develop a specific framework which can assist when practical applications of the generalities is required." Bauman v. United States District Court, 557 F.2d 650, 654 (9th Cir.1977). Unfortunately, this Court has not defined such a framework because we have not been faced with a case that has called for a detailed examination of the writ. The Ninth Circuit, however, in an illuminating opinion, has identified the appropriate guidelines for the issuance of the writ in the class certification context. Bauman, 557 F.2d 650. ⁶ Because we find the analysis of Bauman to be very persuasive, we shall apply it to the case at hand.

In Bauman the plaintiff in a class action proceeding sought a writ of mandamus to modify the district judge's order certifying a class under Rule 23(b)(2). In considering the petition, the Ninth Circuit outlined five guidelines, which it had distilled from the case law, ⁷ to help decide if the issuance of the writ was proper. They are:

(1) The party seeking the writ has no other adequate means, such as direct appeal, to attain the relief desired.

(2) The petitioner will be damaged or prejudiced in a way not correctable on appeal. (This guideline is closely related to the first).

(3) The district court's order is clearly erroneous as a matter of law.

(4) The district court's order is an oft-repeated error, or manifests a persistent disregard of the federal rules.

(5) The district court's order raises new and important problems, or issues of law of first impression.

Bauman, 557 F.2d at 654-55 (citations omitted).

As the Bauman court recognized, however, "the guidelines are cumulative and may not all point to the same conclusion." In re Cement Antitrust Litigation (MDL No. 296), 688 F.2d 1297, 1301 (9th Cir.1982), aff'd sub nom. Arizona v. United States District Court for the District of Arizona, 459 U.S. 1191, 103 S.Ct. 1173, 75 L.Ed.2d 425 (1983). "Rarely if ever will a case arise where all the guidelines point in the same direction or even where each guideline is relevant or applicable." Bauman, 557 F.2d at 655. In many cases, "a proper disposition will often require a balancing of conflicting factors." Id.

With regard to the first guideline, the petitioners clearly cannot challenge the certification by direct appeal. This Court has already rejected a direct appeal of the certifying order in this case. Schreier v. Merrell Dow Pharmaceutical, Inc., 745 F.2d 58 (6th Cir.1984). The opposition to the petition argues, however, that the plaintiffs can challenge the certification order by appealing the settlement, if it is approved by the district court. As we shall discuss next, the petitioners would be prejudiced by...