Rhone-Poulenc Rorer Inc. v. Home Indem. Co.
| Decision Date | 17 August 1994 |
| Docket Number | RHONE-POULENC,Nos. 93-1962,93-1975,s. 93-1962 |
| Citation | 32 F.3d 851 |
| Parties | , 30 Fed.R.Serv.3d 513 RORER INC. and Armour Pharmaceutical Company, Petitioners, v. The HOME INDEMNITY COMPANY, a New Hampshire corporation, v. AETNA CASUALTY & SURETY INSURANCE; AIU Insurance Company; American Centennial Insurance Company; Birmingham Fire Insurance Company; First State Insurance Company; Granite State Insurance Company; Hartford Insurance Company; INSCO, Limited; Insurance Company of Pennsylvania; Lexington Insurance Company; Manhattan Fire & Marine Insurance Company; Motor Vehicle Casualty Company; Old Republic Insurance Company; Pantry Pride Inc.; Promethean Insurance, Ltd.; Prudential Reinsurance Company; Puritan Insurance Company; Revlon Inc.; Twin City Insurance Company; London Market Co.; John Barrington Hume, as Representative of Underwriters at Lloyds; Insurance Company of North America; National Union Fire Insurance Company of Pittsburgh, Pennsylvania; All City Insurance Company; Employer's Mutual Casualty; Gibralter Casualty Company; Landmark Insurance Company; New England Insurance Company; Royal Insurance Company; Republic Insurance Company; International Insurance Company; Pacific Insurance Company, Ltd.; Atlanta International Insurance Company; Century Indemnity Company; Liberty Mutual Insurance Company; Transport Insurance Company; Midland Insurance Company; Integrity Insurance Company; Union Indemnity Insurance; Transit Casualty Company; City Insurance Company; Drake Insurance Company; Excess Insurance Company; Home Insurance Company; Pacific Employer's Insurance Company; Royal Indemnity Company; Zurich International Insurance Company; Henrijean; Illinois National Insurance Company; North Star Reinsurance Company; and National Casualty Insurance Company, Respondents, and The Honorable James McGirr Kelly, United States District Judge for the Eastern District of Pennsylvania, Nominal Respondent, Morgan, Lewis & Bockius; Reed Smith Shaw & McClay; Shanley & Fisher, P.C.; Hughes Hubbard & Reed; Montgomery McCracken Walker & Rhoads; Skad |
| Court | U.S. Court of Appeals — Third Circuit |
Stephen J. Mathes (Argued), William R. Herman, Hoyle, Morris & Kerr, Philadelphia, PA, for appellants/petitioners Rhone-Poulenc Rorer Inc. and Armour Pharmaceutical Co.
Jeffrey B. Albert, Fox, Rothschild, O'Brien & Frankel, James W. Christie, Christie, Pabarue, Mortensen and Young, Philadelphia, PA, Roy L. Reardon, James P. Barrett, Robert F. Cusumano (Argued), David J. Woll, Kevin G. Lauri, Simpson, Thatcher & Bartlett, New York City, for appellee/respondent The Home Indem. Co.
H. Marc Tepper, Margolis, Edelstein & Scherlis, Philadelphia, PA, for appellees/respondents AIU Ins. Co., Birmingham Fire Ins., Granite State Ins. Co., Illinois Nat. Ins. Co., Lexington Ins. Co., Nat. Union Fire Ins. Co. of Pittsburgh, PA, New Hampshire Ins. Co. and Landmark Ins. Co.
Joseph M. Oberlies, Connor & Weber, Philadelphia, PA, for appellee/respondent American Centennial Ins. Co.
Richard B. Marrin, Ford, Marrin, Esposito & Witmeyer, New York City, William G. Scarborough, Stradley, Ronon, Stevens & Young, Philadelphia, PA, for appellee/respondent Transport Ins. Co.
E. Douglas Sederholm (Argued), Richard J. Bortnick, White and Williams, Philadelphia, PA, for appellees/respondents Pacific Employers Ins. Co., Century Indem. Co. and Ins. Co. of North America.
Walter A. Stewart, Manta & Welge, Philadelphia, PA, for appellees/respondents Liberty Mut. Ins. Co., Liberty Mut. Ins. and Royal Indem. Co.
Edward M. Dunham, Jr., Miller, Dunham, Doering & Munson, Philadelphia, PA, for appellee/respondent Aetna Cas. & Sur. Co.
Susan M. Danielski, Cozen & O'Connor, Philadelphia, PA, for appellees/respondents Pantry Pride Inc. and Revlon Inc.
Thomas C. Delorenzo, Marshall, Dennehey, Warner, Coleman & Goggin, Philadelphia, PA, for appellees/respondents Prudential Reinsurance Co. and Gibralter Cas. Co.
David F. Abernethy, Drinker, Biddle & Reath, Philadelphia, PA, for appellee/respondent International Ins. Co.
Ronald P. Schiller, Piper & Marbury, Philadelphia, PA, for appellee/respondent North Star Reinsurance Co.
Thomas M. Kittredge (Argued), Morgan, Lewis & Bockius, Philadelphia, PA, for intervenor Morgan, Lewis & Bockius.
Kerry A. Kearney, Reed Smith Shaw & McClay, Pittsburgh, PA, for intervenor Reed Smith Shaw & McClay.
Raymond M. Tierney, Jr., Susan Sharko, Shanley & Fisher, Morristown, NJ, for intervenor Shanley & Fisher.
Jeff H. Galloway, Hughes, Hubbard & Reed, New York City, for intervenor Hughes, Hubbard & Reed.
Jeremy D. Mishkin, Montgomery, McCracken, Walker & Rhoads, Philadelphia, PA, for intervenor Montgomery, McCracken, Walker & Rhoads.
Ed Yodowitz, Skadden Arps Slate Meagher & Flom, New York City, for intervenor Skadden Arps Slate Meagher & Flom.
Matthew J. Broderick, Dechert Price & Rhoads, Philadelphia, PA, for intervenor Coopers & Lybrand.
Before: MANSMANN, LEWIS, Circuit Judges, McKELVIE, District Judge. *
In this insurance coverage case, the district court has ordered the insureds, their attorneys and their accountants to produce documents that would normally be protected from disclosure by the attorney client privilege, by the accountant client privilege, or as attorney work product. The documents to be produced were created before the insureds purchased coverage, and contain evaluations of the insureds' potential liability to consumers of their products.
The district court found the information in the documents relevant to matters in issue in the action in that it may tend to show whether or not the insureds expected or intended the claims for which they seek coverage. The court held the insureds had waived any right to maintain confidentiality of these documents by filing this action for coverage and by putting in issue the matter of their knowledge of facts relating to the claims.
The insureds have appealed from that order. They have also filed a petition for a writ of mandamus directing the district court to vacate and reverse the order. The six law firms and the accounting firm that have been subpoenaed to produce documents have moved to intervene and join in the insureds' requests for relief.
For the reasons set out below, we will grant the petitioners' request for relief and issue a writ of mandamus to the district court and direct it to vacate its order that these documents be produced.
Rhone-Poulenc Rorer Inc. is the successor to the Rorer Group Inc. In the fall of 1985, soon after Pantry Pride, Inc. had acquired Revlon, Inc., Rorer entered into an agreement with Pantry Pride to purchase Revlon's ethical pharmaceutical businesses, including USV and Armour Pharmaceutical Company. One of Armour's products was Factorate, a blood clotting product processed by Armour and sold principally for use by hemophiliacs.
Rorer formally acquired Armour on January 7, 1986. On April 21, 1986, Armour was named in the first of a series of lawsuits filed by individuals who claimed Factorate had infected them with the Human Immunodeficiency Virus (HIV), which is thought to be the cause of Acquired Immunodeficiency Syndrome (AIDS). To date, Armour has been joined as a defendant in more than two hundred AIDS-related cases.
Rorer had purchased a general liability insurance...
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