Multi-Piece Rim Products Liability Litigation, In re

Decision Date07 January 1980
Docket NumberNo. 79-1781,MULTI-PIECE,79-1781
Citation612 F.2d 377
CourtU.S. Court of Appeals — Eighth Circuit
PartiesIn reRIM PRODUCTS LIABILITY LITIGATION. FIRESTONE TIRE & RUBBER CO., Appellant, v. John C. RISJORD, Appellee.

William Freivogel, Chicago, Ill., William H. Sanders, Blackwell, Sanders, Matheny, Weary & Lombardi, Kansas City, Mo., and Harvey M. Grossman and Henry J. Shames, Grossman & Shames, Los Angeles, Cal., on brief, for appellant.

John R. Gibson, Morris J. Nunn and J. Emmett Logan, Morrison, Hecker, Curtis, Kuder & Parrish, Kansas City, Mo., on brief, for appellee.

Before GIBSON, Chief Judge, and LAY, HEANEY, BRIGHT, ROSS, STEPHENSON, HENLEY and McMILLIAN, Circuit Judges, sitting en banc.

LAY, Circuit Judge.

Personal injury claimants brought suit against the Firestone Rubber Co. and Firestone moved thereafter that claimant's counsel, John C. Risjord, and his law firm be disqualified from representing them because of an alleged conflict of interest with Firestone's insurer. The district court, the Hon. William R. Collinson presiding, ordered counsel Risjord to comply with the consent requirement of Disciplinary Rule 5-105 of the Code of Professional Responsibility of the Missouri Supreme Court or terminate his representation of either plaintiffs or the insurer. 1 Risjord thereafter complied with DR5-105(C) which required that Risjord receive consent from the insurance carriers or terminate his representation in the suit. The district court ruled that Risjord had complied with his order and that Risjord should not be disqualified from the litigation. The district court further certified his ruling on the disqualification for interlocutory appeal pursuant to 28 U.S.C. § 1292(b).

Rather than obtain permission to appeal from this court, as required under section 1292(b), Firestone simply filed a notice of appeal. Risjord challenges the order as not being appealable since it is not a final order. The law in this circuit has been that an order denying a motion for disqualification of counsel is final under the collateral order doctrine recognized by the Supreme Court in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). See Fred Weber, Inc. v. Shell Oil Co., 566 F.2d 602, 606-07 (8th Cir. 1977), Cert. denied, 436 U.S. 905, 98 S.Ct. 2235, 56 L.Ed.2d 403 (1978); Arkansas v. Dean Foods Products Co., Inc., 605 F.2d 380 (8th Cir. 1979).

Recently, the Sixth Circuit overruled an earlier decision and held an order denying a motion for disqualification of counsel would no longer be appealable under the collateral order doctrine. Melamed v. ITT Continental Baking Co., 592 F.2d 290 (6th Cir. 1979). The Sixth Circuit stated:

Motions to disqualify an opponent's counsel can easily be simply "disguised harassment".

A rule allowing interlocutory appeals here would provide litigants with yet another device by which to delay final determination on the merits, and would lead the court to divert its attention from the central issues in the case.

Id. at 295, (footnote omitted) (quoting in part Community Broadcasting of Boston, Inc. v. FCC, 178 U.S.App.D.C. 256, 261, 546 F.2d 1022, 1027 (D.C. Cir. 1976)).

We have reconsidered Weber and Dean Foods and now agree with the position of the District of Columbia, Sixth and Ninth Circuits; it is the opinion of this court that Weber and Dean Foods should be and hereby are overruled. 2 See generally, Comment, The Appealability of Orders Denying Motions for Disqualification of Counsel in the Federal Courts, 45 U.Chicago L.Rev. 450 (1978).

In so holding we recognize there exists a fundamental distinction between a denial of a motion of disqualification of counsel and a grant of a motion for disqualification. In the latter case of disqualification we will still continue to apply the collateral order doctrine and recognize the order as appealable. We also concur with the Sixth Circuit's opinion, which allows for immediate review in the exceptional case where irreparable harm could occur by denial of an interlocutory appeal. The...

To continue reading

Request your trial
61 cases
  • Firestone Tire Rubber Company v. Risjord
    • United States
    • U.S. Supreme Court
    • 13 d2 Janeiro d2 1981
    ...of a case over which it is without jurisdiction, and thus a jurisdictional ruling may never be made prospective only. Pp. 379-380. 8 Cir., 612 F.2d 377, vacated and Harvey M. Grossman, Los Angeles, Cal., for petitioner. John R. Gibson, Kansas City, Mo., for respondent. Justice MARSHALL deli......
  • In re Krisle
    • United States
    • U.S. Bankruptcy Court — District of South Dakota
    • 11 d5 Outubro d5 1985
    ...(dictum), cert. denied, 436 U.S. 905, 98 S.Ct. 2235, 56 L.Ed.2d 403 (1978), overruled on other grounds; Firestone Tire & Rubber Co. v. Risjord, 612 F.2d 377, 378 (8th Cir.1975), vacated on other grounds, 449 U.S. 368, 101 S.Ct. 669, 66 L.Ed.2d 571; Davis v. Board of School Commissioners, 51......
  • Armstrong v. McAlpin
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 20 d5 Junho d5 1980
    ...more persuaded by the arguments against the Silver Chrysler rule raised by other courts, see, e. g., In re Multi-Piece Rim Products Liability Litigation, 612 F.2d 377 (8th Cir.) (en banc), cert. granted sub nom. Firestone Tire & Rubber Co. v. Risjord, --- U.S. ----, 100 S.Ct. 2150, 64 L.Ed.......
  • Davis v. Muellar
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • 3 d5 Abril d5 1981
    ...--- U.S. ----, 101 S.Ct. 669, 66 L.Ed.2d 571 (1981), in which the Supreme Court held that this court in In re Multi-Piece Rim Products Liability, 612 F.2d 377 (8th Cir. 1980), having decided it had no jurisdiction of an interlocutory appeal erred in ruling prospectively on the merits of the......
  • Request a trial to view additional results
3 books & journal articles
  • Gaining Appellate Review by "manufacturing" a Final Judgment Through Voluntary Dismissal of Peripheral Claims - Rebecca A. Cochran
    • United States
    • Mercer University School of Law Mercer Law Reviews No. 48-3, March 1997
    • Invalid date
    ...under the collateral order doctrine of Cohen"), cert, denied, 436 U.S. 905 (1978). 84. See, e.g., In re Multipiece Rim Prod. Liab. Litig., 612 F.2d 377, 378 (8th Cir. 1980) (overruling Weber and joining sister circuits to find that order denying a motion for disqualification of counsel is n......
  • Litigation Tips and Tactics
    • United States
    • James Publishing Practical Law Books Building Trial Notebooks - Volume 2 Building Trial Notebooks
    • 29 d1 Abril d1 2013
    ...18 Fred Weber, Inc. v. Shell Oil Co. , 566 F.2d 602 (8th Cir. 1977), cert. denied , 436 U.S. 905 (1978), overruled on other grounds, 612 F.2d 377 (8th Cir. 1980). 31-19 LITIGATION TIPS AND TACTICS §31.10 417 et seq. (Nov. 2000). Before plunging into the use of a joint working agreement, rea......
  • Ethical Considerations for the Justice Department When it Switches Sides During Litigation
    • United States
    • Seattle University School of Law Seattle University Law Review No. 7-02, December 1983
    • Invalid date
    ...v. Dean Foods Prods. Co., 605 F.2d 380, 385 (8th Cir. 1979), overruled on other grounds, Firestone Tire and Rubber Co. v. Risjord, 612 F.2d 377 (8th Cir. 1980); Fred Weber, Inc. v. Shell Oil Co., 566 F.2d 602, 608 (8th Cir. 1977), cert. denied, 436 U.S. 905 (1978); Laskey Bros. v. Warner Br......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT