Rhone-Poulenc Rorer Inc., Matter of

• Citation: 51 F.3d 1293
• Decision Date: 27 April 1995
• Docket Number: RHONE-POULENC,No. 94-3912,94-3912
• Parties: In the Matter ofRORER INCORPORATED, et al., Petitioners.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1293

51 F.3d 1293

63 USLW 2579

In the Matter of RHONE-POULENC RORER INCORPORATED, et al.,

Petitioners.

No. 94-3912.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 30, 1995.

Decided March 16, 1995.

Rehearing and Suggestion for Rehearing En Banc Denied April

27, 1995. ^*

Douglas F. Fuson (argued), Susan Weber, Sara J. Gourley, Sidley & Austin, Chicago, IL, for Rhone-Poulenc Inc., Armour Pharmaceutical Corp.

Duncan Barr, O'Connor, Cohn, Dillon & Barr, San Francisco, CA, Geoffrey R.W. Smith, Piper & Marbury, Washington, DC, for Miles Inc.

Richard L. Berkman, Robert A. Limbacher, Fred T. Magaziner, Richard C. Rizzo, Dechert, Price & Rhoads, Philadelphia, PA, for Baxter Healthcare Corp.

David I. Bell, Daphne B. Subar, Knapp, Peterson & Clarke, Glendale, CA, for Alpha Therapeutic Corp.

Debra A. Thomas, Chicago, IL, Dianne M. Nast (argued), Kohn, Savett, Klein & Graf, Philadelphia, PA, Timothy E. Eble, Ness, Motley, Loadholt, Richardson & Poole, Charleston, SC, Jan Adams, St. Louis, MO, Jere M. Fishback, St. Petersburg, FL, James A. Green, Martin Levin, Levin, Middlebrooks, Mable, Thomas, Mayes & Mitchell, Pensacola, FL, Robert Huntley, Givens, Pursley & Huntley, Boise, ID, Judith S. Kavanaugh, Earl, Blank, Kavanaugh & Stotts, Sarasota, FL, Charles Kozak, Kaneohe, HI, Alan K. Laufman, Dallas, TX, Thomas W. Mull, Mull & Mull, Covington, LA, Robert L. Parks, John M. Cooney, Anderson, Moss, Parks & Sherouse, Miami, FL, David S. Shrager, Shrager, McDaid, Loftus, Flum & Spivey, Philadelphia, PA, Robert E. Turffs, Kanetsky, Moore & Deboer, Venice, FL, Timothy Davis, Heninger, Burge & Vargo, Birmingham, AL, Eric H. Weinberg, New Brunswick, NJ, Ronald B. Grayzel, Levinson, Axelrod, Wheaton & Grayzel, Edison, NJ, for John F. Grady.

Before POSNER, Chief Judge, and BAUER and ROVNER, Circuit Judges.

POSNER, Chief Judge.

Drug companies that manufacture blood solids are the defendants in a nationwide class action brought on behalf of hemophiliacs infected by the AIDS virus as a consequence of using the defendants' products. The defendants have filed with us a petition for mandamus, asking us to direct the district judge to rescind his order certifying the case as a class action. We have no appellate jurisdiction over that order. An order certifying a class is not a final decision within the meaning of 28 U.S.C. Sec. 1291; it does not wind up the litigation in the district court. And, in part because it is reviewable (at least in principle--the importance of this qualification will appear shortly) on appeal from the final decision in the case, it has been held not to fit any of the exceptions to the rule that confines federal appellate jurisdiction to final decisions. In short, as the Supreme Court made clear in Coopers & Lybrand v. Livesay, 437 U.S. 463, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978), and Gardner v. Westinghouse Broadcasting Co., 437 U.S. 478, 480-82, 98 S.Ct. 2451, 2453-54, 57 L.Ed.2d 364 (1978), it is not an appealable order. Those decisions involved the denial rather than the grant of motions for class certification, but the grant is no more final than the denial and no more within any of the exceptions to the final-decision rule. Hoxworth v. Blinder, Robinson & Co., 903 F.2d 186, 208 (3d Cir.1990); 7B Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure Sec. 1802, pp. 484-86 (2d ed. 1986). Still, even nonappealable orders can be challenged by asking the court of appeals to mandamus the district court. Indeed, as a practical matter only such orders can be challenged by filing a petition for mandamus; an appealable order can be challenged only by appealing from it; the possibility of appealing would be a compelling reason for denying mandamus. For obvious reasons, however, mandamus is issued only in extraordinary cases. Otherwise, interlocutory orders would be appealable routinely, but with "appeal" renamed "mandamus." Kerr v. United States District Court, 426 U.S. 394, 403, 96 S.Ct. 2119, 2124, 48 L.Ed.2d 725 (1976); Eisenberg v. United States District Court, 910 F.2d 374, 375 (7th Cir.1990).

How to cabin this too-powerful writ which if uncabined threatens to unravel the final-decision rule? By taking seriously the two conditions for the grant of a writ of mandamus. The first is that the challenged order not be effectively reviewable at the end of the case--in other words, that it inflict irreparable harm. Kerr v. United States, supra, 426 U.S. at 403, 96 S.Ct. at 2124; In re Sandahl, 980 F.2d 1118, 1119 (7th Cir.1992); Eisenberg v. United States District Court, supra, 910 F.2d at 375. The petitioner "must ordinarily demonstrate that something about the order, or its circumstances, would make an end-of-case appeal ineffectual or leave legitimate interests unduly at risk." In re Recticel Foam Corp., 859 F.2d 1000, 1005-06 (1st Cir.1988). Second, the order must so far exceed the proper bounds of judicial discretion as to be legitimately considered usurpative in character, or in violation of a clear and indisputable legal right, or, at the very least, patently erroneous. Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 289, 108 S.Ct. 1133, 1143-44, 99 L.Ed.2d 296 (1988); Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 35, 101 S.Ct. 188, 190, 66 L.Ed.2d 193 (1980) (per curiam); United States v. Spilotro, 884 F.2d 1003, 1006-07 (7th Cir.1989); In re Sandahl, supra, 980 F.2d at 1121; Maloney v. Plunkett, 854 F.2d 152 (7th Cir.1988). We shall not have to explore these gradations; it will be enough to consider whether the district judge's order can fairly be characterized as usurpative.

The set of orders in which both conditions are satisfied is small. It certainly is not coterminous with the set of orders certifying suits as class actions. For even though such orders often, perhaps typically, inflict irreparable injury on the defendants (just as orders denying class certification often, perhaps typically, inflict irreparable injury on the members of the class), irreparable injury is not sufficient for mandamus; there must also be an abuse of discretion that can fairly be characterized as gross, very clear, or unusually serious. But it is not an empty set. The point of cases like Coopers & Lybrand is that irreparable harm is not enough to make class certification orders automatically appealable under 28 U.S.C. Sec. 1291, not that mandamus is never appropriate in a class certification setting. There is a big difference between saying that all class certification rulings are appealable as of right because they are final within the meaning of section 1291 (the position rejected in Coopers & Lybrand ) and saying that a handful are--the handful in which the district judge committed a clear abuse of discretion. Mandamus has occasionally been granted to undo class certifications, see, e.g., In re Fibreboard Corp., 893 F.2d 706 (5th Cir.1990), and we are not aware that any case has held that mandamus will never be granted in such cases. See In re Catawba Indian Tribe, 973 F.2d 1133, 1137 (4th Cir.1992); DeMasi v. Weiss, 669 F.2d 114, 117-19 and n. 6 (3d Cir.1982). The present case, as we shall see, is quite extraordinary when all its dimensions are apprehended. We shall also see that when mandamus is sought to protect the Seventh Amendment's right to a jury trial in federal civil cases, as in this case, the requirement of proving irreparable harm is relaxed.

The suit to which the petition for mandamus relates, Wadleigh v. Rhone-Poulenc Rorer Inc., 157 F.R.D. 410 arises out of the infection of a substantial fraction of the hemophiliac population of this country by the AIDS virus because the blood supply was contaminated by the virus before the nature of the disease was well understood or adequate methods of screening the blood supply existed. The AIDS virus (HIV--human immunodeficiency virus) is transmitted by the exchange of bodily fluids, primarily semen and blood. Hemophiliacs depend on blood solids that contain the clotting factors whose absence defines their disease. These blood solids are concentrated from blood obtained from many donors. If just one of the donors is infected with the AIDS virus the probability that the blood solids manufactured in part from his blood will be infected is very high unless the blood is treated with heat to kill the virus. For general background, see Margaret W. Hilgartner, "AIDS and Hemophilia," 317 New England Journal of Medicine 1153 (1987); Leon W. Hoyer, "Hemophilia A," 330 New England Journal of Medicine 38 (1994); "U.S. CDC: HIV Cutting Lives Short in Hemophilia, Study Says," AIDS Weekly, Feb. 14, 1994.

First identified in 1981, AIDS was diagnosed in hemophiliacs beginning in 1982, and by 1984 the medical community agreed that the virus was transmitted by blood as well as by semen. That year it was demonstrated that treatment with heat could kill the virus in the blood supply and in the following year a reliable test for the presence of the virus in blood was developed. By this time, however, a large number of hemophiliacs had become infected. Since 1984 physicians have been advised to place hemophiliacs on heat-treated blood solids, and since 1985 all blood donated for the manufacture of blood solids has been screened and supplies discovered to be HIV-positive have been discarded. Supplies that test negative still are heat-treated, because the test is not infallible and in particular may fail to detect the virus in persons who became infected within six months before taking the test.

The plaintiffs have presented evidence that 2,000 hemophiliacs have died of AIDS and that half or more of the remaining U.S. hemophiliac population of 20,000 may be HIV-positive. Unless there are dramatic breakthroughs in the treatment of HIV or AIDS, all infected persons will die from the disease. The reason so many are infected even though the supply of blood for the manufacture of blood solids (as for transfusions) has...