NLO, Inc., In re

Decision Date17 September 1993
Docket NumberNo. 93-3065,93-3065
Citation5 F.3d 154
Parties, 26 Fed.R.Serv.3d 1150 In re NLO, INC., et al., Petitioners.
CourtU.S. Court of Appeals — Sixth Circuit

Kevin T. Van Wart (Argued), Kirkland & Ellis, Chicago, IL, for NLO, Inc.

Arthur R. Miller (Argued), Harvard Law School, Cambridge, MA, for David Day.

Before: MERRITT, Chief Judge; and JONES and NELSON, Circuit Judges.

MERRITT, Chief Judge.

Petitioners seek a writ of mandamus to vacate two rulings of the district court arising from the ongoing proceedings in Day v. NLO, Inc., 147 F.R.D. 148 (S.D.Ohio 1993): (1) that all parties shall participate in a "summary jury trial," open to the media and the public, enforceable by sanctions against counsel for anything less than full participation; and (2) that plaintiffs in the action be certified as a class under Fed.R.Civ.P. 23(b)(2). For the reasons stated below, we grant the petition and issue the writ vacating the order to participate in the summary jury trial. We deny the petition as to the class certification order.


The Feed Materials Production Center in Fernald, Ohio is a uranium processing facility owned by the United States. It was managed by NLO from 1952 through 1985. On January 30, 1990, ten individuals sued NLO and its corporate parent on behalf of a putative class consisting of all persons employed at the Center during NLO's period of management, and the families of those persons. They claimed that NLO had intentionally or negligently exposed them to hazardous levels of radioactive materials, increasing their risk of cancer and subjecting them to emotional distress. They sought punitive and compensatory damages, attorney fees, interest, and a court-supervised program of medical monitoring and surveillance services, the costs of which would be borne by petitioners.

NLO moved to dismiss on various grounds, including the running of the applicable statute of limitations. A seven-week threshold trial was held on the statute of limitations issue, and the claims of six of the ten named plaintiffs, including five of the six former workers, were found to be time-barred. The district court then certified the class pursuant to Fed.R.Civ.P. 23(b)(2) on June 22, 1992, and defined the class in an order filed August 20. The class includes all NLO employees, sub-contractors and employees of sub-contractors who were present at the Center for six continuous weeks and left on or before December 31, 1981. The court held that plaintiffs' claim for a court-supervised medical monitoring program, financed by defendants, constituted the "final injunctive relief or corresponding declaratory relief" available under Rule 23(b)(2). Defendants moved for reconsideration or, in the alternative, for interlocutory appeal pursuant to 28 U.S.C. Sec. 1292. The district court denied the motion in an Order dated November 20, 1992, 811 F.Supp. 1271.

The district court also ordered that a summary jury trial be held as a settlement tool, to commence February 16, 1993, with a subsequent full trial on the merits (if required) to start September 20, 1993. At a Pretrial Conference December 2, 1992, the district court stated for the first time that the summary jury trial would be open to the public. NLO moved for a reconsideration of this ruling or, in the alternative, for interlocutory appeal, and the district court denied this motion as well, in an Order dated January 20, 1993.

NLO filed a petition for mandamus in this court January 25, 1993, seeking emergency review of the court's orders denying their motions for reconsideration. An emergency panel granted a stay and set the case for oral argument.


This court may issue a writ of mandamus pursuant to the All Writs Statute, 28 U.S.C. Sec. 1651. However, petitioners bear a heavy burden in showing that mandamus is the proper remedy; they must establish a "clear and indisputable right" to the relief requested. Will v. Calvert Fire Ins. Co., 437 U.S. 655, 661-62, 98 S.Ct. 2552, 2557, 57 L.Ed.2d 504 (1978). They must demonstrate a clear abuse of discretion or conduct amounting to usurpation of the judicial power. Mallard v. United States District Court, 490 U.S. 296, 309, 109 S.Ct. 1814, 1822, 104 L.Ed.2d 318 (1989). An error of law, standing alone, is not sufficient, for "then every interlocutory order which is wrong might be reviewed under the All Writs Act." Bankers Life & Casualty Co. v. Holland, 346 U.S. 379, 383, 74 S.Ct. 145, 148, 98 L.Ed. 106 (1953). "The general principle which governs proceedings by mandamus is, that whatever can be done without the employment of that extraordinary writ, may not be done with it. It lies only when there is practically no other remedy." Helstoski v. Meanor, 442 U.S. 500, 505, 99 S.Ct. 2445, 2448, 61 L.Ed.2d 30 (1979), quoting Ex parte Rowland, 104 U.S. 604, 617, 26 L.Ed. 861 (1882).

In In re Bendectin Products Liability Litigation, 749 F.2d 300, 303-04 (6th Cir.1984), we were required to properly apply these general admonitions to specific circumstances. We adopted the following five-step framework for considering petitions for mandamus, taken from the Ninth Circuit case of Bauman v. United States District Court, 557 F.2d 650 (9th Cir.1977):

(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.

Bendectin, 749 F.2d at 304. "These guidelines are cumulative and may not all point to the same conclusion ... in many cases, a proper disposition will often require a balancing of conflicting factors." Id.


We turn first to the order of the district court concerning the summary jury trial. Taking the Bendectin guidelines slightly out of order and beginning with the third, we find the district court's order compelling participation in a summary jury trial under threat of sanctions to be clearly erroneous as a matter of law.

A summary jury trial is a non-binding mini-trial designed to give the attorneys and their clients an indication of what they may expect at a full-blown trial on the merits. The parties exchange evidence before the summary jury trial has commenced, and are limited to the evidence thus disclosed. A jury is selected from the regular jury pool. The parties then present opening statements, summarize the evidence which would be presented at a full trial (no live testimony is permitted), and present closing statements. The jury is then charged with the law and asked to respond to a series of interrogatories concerning liability and damages. See S. Arthur Spiegel, Summary Jury Trials, 54 U.Cin.L.Rev. 829 (1986).

The district court held that compulsory summary jury trials are permitted in this circuit under Cincinnati Gas and Elec. Co. v. General Elec. Co., 854 F.2d 900 (6th Cir.1988), cert. denied, 489 U.S. 1033, 109 S.Ct. 1171, 103 L.Ed.2d 229 (1989). In Cincinnati Gas, a panel of this court upheld the district court's decision to exclude the press from a summary jury trial. We indicated that a summary jury trial was a permissible tool for a district court to use in promoting resolution of the cases before it. "Courts have the power to conduct summary jury trials under either Fed.R.Civ.P. 16, or as a matter of the court's inherent power to manage its cases [citations omitted]." Id. at 903 n. 4. But in footnote 5, we stated:

Appellants' assertion that the summary jury trial is like an adjudication because the parties are compelled to participate is incorrect. The district court expressly stated that the proceeding was undertaken with the cooperation of the parties. Although the court denied appellants' motion to vacate the order setting the summary jury trial, it accommodated appellants' concerns to keep the proceeding confidential, thereby making it unnecessary for appellants to challenge the court's denial of the motion.

Id. at 904-05 (emphasis supplied). Since appellants did not challenge on appeal the denial of their motion, the issue of power to compel participation was not squarely addressed in that case. We now do so.

District courts unquestionably have substantial inherent power to manage their dockets. SeeLink v. Wabash R. Co., 370 U.S. 626, 629-30, 82 S.Ct. 1386, 1388, 8 L.Ed.2d 734 (1962). That power, however, must be exercised in a manner that is in harmony with the Federal Rules of Civil Procedure. SeeHanna v. Plumer, 380 U.S. 460, 471, 85 S.Ct. 1136, 1144, 14 L.Ed.2d 8 (1965). At issue here is Fed.R.Civ.P. 16.

Our analysis of this issue relies heavily on the reasoning of the Seventh Circuit in Strandell v. Jackson County, 838 F.2d 884 (7th Cir.1987). In Strandell, the district court ordered the parties to participate in a summary jury trial. Counsel for the plaintiff refused, asserting that the summary jury trial would require disclosure of privileged work product, and offering instead to proceed immediately to a full trial. The district court cited him for contempt, and counsel appealed the order. The Seventh Circuit vacated the order of contempt. Judge Ripple, writing for a unanimous panel, based the court's decision on several factors, including the language of Rule 16 and the corresponding Commentary of the Advisory Committee, Seventh Circuit decisions predating the 1983 amendments to the Rules, and the impact on established law concerning discovery and work product privilege.

Rule 16(a) gives district courts the power to compel attendance at pretrial conferences. Rule 16(c) gives guidance concerning "subjects to be discussed" at those conferences:

The participants at any...

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