School Asbestos Litigation, In re, No. 45

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Writing for the CourtBECKER; Any justice
Citation977 F.2d 764
Parties, 24 Fed.R.Serv.3d 39, 78 Ed. Law Rep. 234 In re SCHOOL ASBESTOS LITIGATION. PFIZER INC., Petitioner, v. The Honorable James McGirr KELLY, Nominal Respondent, Barnwell School Districtchool District of Lancaster, Manheim Township School District, Lampeter-Strasburg School District, Board of Education of the Memphis City Schools, and a Conditionally Certified Class, Respondents, Lac D'Amiante Du Quebec, Ltee., Intervenor. KAISER CEMENT CORPORATION, Petitioner, v. The Honorable James McGirr KELLY, Nominal Respondent, School District of Lancaster, Manheim Township School District, Lampeter-Strasburg School District, Respondents, Lac D'Amiante Du Quebec, Ltee, Intervenor. ACandS, INC., Petitioner, v. The Honorable James McGirr KELLY, Nominal Respondent, Barnwell School Districtoard of Education of the Memphis City Schools, and a Conditionally Certified Class, Respondents, Lac D'Amiante Du Quebec, Ltee, Intervenor. ASTEN GROUP, INC., Petitioner, v. The Honorable James McGirr KELLY, Nominal Respondent, Barnwell School Districtoard of Education of the Memphis City Schools, and a Conditionally Certified Class, Respondents, Lac D'Amiante Du Quebec, Ltee, Intervenor. W.R. GRACE & CO.-CONN., Petitioner, v. The Honorable James McGirr KELLY, Nominal Respondent, Barnwell School Districtchool District of Lancaster, Manheim Township School District, Lampeter-Strasburg School District, Board of Education of the Memphis City Schools, and a Conditionally Certified Class, Respondents. ASTEN GROUP, INC., Dana Corporation, Pfizer, Inc., Pittsburgh Corning Corporation, and W.R. Grace & Co.-Conn., Petitioners, v. The Honorable James McGirr KELLY, Nominal Respondent, Barnwell School Districtchool District of Lancaster, Manheim Township School District, Lampeter-Strasburg School District, Board of Education of the Memphis City Schools, and a Conditionally Certified Class, Respondents.CORPORATION, Petitioner, v. The Honorable James McGirr KELLY, Nominal Respondent, School District of Lancaster
Decision Date23 October 1992
Docket NumberB,S,92-1053 and 92-1084,91-1943,92-1014,91-1981,Nos. 91-1887,91-1917,91-2105,No. 45,GEORGIA-PACIFIC

Page 764

977 F.2d 764
61 USLW 2268, 24 Fed.R.Serv.3d 39, 78
Ed. Law Rep. 234
In re SCHOOL ASBESTOS LITIGATION.
PFIZER INC., Petitioner,
v.
The Honorable James McGirr KELLY, Nominal Respondent,
Barnwell School District No. 45, School District of
Lancaster, Manheim Township School District,
Lampeter-Strasburg School District, Board of Education of
the Memphis City Schools, and a Conditionally Certified
Class, Respondents,
Lac D'Amiante Du Quebec, Ltee., Intervenor.
KAISER CEMENT CORPORATION, Petitioner,
v.
The Honorable James McGirr KELLY, Nominal Respondent,
School District of Lancaster, Manheim Township School
District, Lampeter-Strasburg School District, Respondents,
Lac D'Amiante Du Quebec, Ltee, Intervenor.
ACandS, INC., Petitioner,
v.
The Honorable James McGirr KELLY, Nominal Respondent,
Barnwell School District No. 45, Board of Education of the
Memphis City Schools, and a Conditionally
Certified Class, Respondents,
Lac D'Amiante Du Quebec, Ltee, Intervenor.
ASTEN GROUP, INC., Petitioner,
v.
The Honorable James McGirr KELLY, Nominal Respondent,
Barnwell School District No. 45, Board of Education of the
Memphis City Schools, and a Conditionally
Certified Class, Respondents,
Lac D'Amiante Du Quebec, Ltee, Intervenor.
W.R. GRACE & CO.-CONN., Petitioner,
v.
The Honorable James McGirr KELLY, Nominal Respondent,
Barnwell School District No. 45, School District of
Lancaster, Manheim Township School District,
Lampeter-Strasburg School District, Board of Education of
the Memphis City Schools, and a Conditionally Certified
Class, Respondents.
ASTEN GROUP, INC., Dana Corporation, Pfizer, Inc.,
Pittsburgh Corning Corporation, and W.R. Grace &
Co.-Conn., Petitioners,
v.
The Honorable James McGirr KELLY, Nominal Respondent,
Barnwell School District No. 45, School District of
Lancaster, Manheim Township School District,
Lampeter-Strasburg School District, Board of Education of
the Memphis City Schools, and a Conditionally Certified
Class, Respondents.
GEORGIA-PACIFIC CORPORATION, Petitioner,
v.
The Honorable James McGirr KELLY, Nominal Respondent,
School District of Lancaster, Manheim Township School
District, Lampeter-Strasburg School District, and
a Conditionally Certified Class, Respondents.
KAISER CEMENT CORPORATION, Petitioner,
v.
The Honorable James McGirr KELLY, Nominal Respondent,
School District of Lancaster, Manheim Township School
District, Lampeter-Strasburg School District, Respondents.
Nos. 91-1887, 91-1917, 91-1943, 91-1981, 91-2105, 92-1014,
92-1053 and 92-1084.
United States Court of Appeals,
Third Circuit.
Argued June 23, 1992.
Decided Oct. 8, 1992.
As Amended Oct. 23, 1992.

Page 768

Charles R. Bruton (argued), John A. Singer, Piper & Marbury, Rolin P. Bissell, Schnader, Harrison, Segal & Lewis, Philadelphia, Pa., for Pfizer Inc.

Patrick J. Hagan, Kincaid, Gianunzio, Caudle & Hubert, P.C., Oakland, Cal., Daniel J. Ryan, Jr., Marshall, Dennehey, Warner, Coleman & Goggin, Philadelphia, Pa., Thomas W. Kirby (argued), Wiley, Rein & Fielding, Washington, D.C., for Kaiser Cement Corp.

Alfred A. Gollatz, Donna Bailey McCarthy, Mary Anne Taufen, Gollatz, Griffin, Ewing & McCarthy, West Chester, Pa., for ACandS, Inc.

Robert P. Corbin, Deborah M. Knight, German, Gallagher & Murtagh, Philadelphia, Pa., for Asten Group, Inc.

David Booth Beers, Wendy S. White, Richard A. Nagareda, Shea & Gardner, Washington, D.C., for Cassiar Min. Corp.

Frederick B. Lacey, Molly S. Boast, Thomas Fenerty, LeBoeuf, Lamb, Leiby & MacRae, New York City, Edward W. Madeira, Jr., Richard W. Foltz, Jr., Matthew H. Adler, Pepper, Hamilton & Scheetz, Philadelphia, Pa., for Lac D'Amiante du Quebec, Ltee.

Denis McInerney, Allen S. Joslyn (argued), Cahill Gordon & Reindel, New York City, for W.R. Grace & Co.-Conn.

Walter S. Jenkins, Sweeney, Sheehan & Spencer, Philadelphia, Pa., John D. Briggs, Marguerite S. Boyd, Robert L. Green, Howrey & Simon, Washington, D.C., for Dana Corp.

Andrew J. Trevelise, Reed Smith & McClay, Philadelphia, Pa., R. Cornelius Danaher, Jr., Albert P. Lenge, Danaher, Tedford, Langnese & Neil, Hartford, Conn., for Pittsburgh Corning Corp.

John H. Lewis, Jr., Joseph B.G. Fay, J. Gordon Cooney, Jr., Morgan, Lewis & Bockius, Philadelphia, Pa., for U.S. Gypsum Co.

Alan Klein (argued), David Gutin, Leslie Thoman Bradley, Cohen, Shapiro, Polisher,

Page 769

Shiekman and Cohen, Philadelphia, Pa., for Georgia-Pacific Corp.

Herbert B. Newberg, Harvey S. Kronfeld (argued), Sandra L. Duggan (argued), Roger P. Cameron, Kronfeld, Newberg & Duggan, David Berger (argued), Harold Berger, Thomas F. Hughes, David Berger, Attorneys at Law, Arnold Levin (argued), Laurence S. Berman, Levin, Fishbein, Sedran & Berman, Philadelphia, Pa., for class plaintiffs.

 TABLE OF CONTENTS
                 I. INTRODUCTION ....................................................... 769
                 II. PROCEDURAL HISTORY OF THE OVERALL LITIGATION ....................... 771
                 III. GENERAL STANDARDS REGARDING THE AVAILABILITY OF MANDAMUS ........... 772
                 IV. THE PETITIONS RELATING TO DISQUALIFICATION ......................... 774
                 A. Mandamus as a Means to Review a Judge's
                 Failure to Disqualify Himself or Herself .... 774
                 B. The Facts Surrounding the Conference on the
                 Hazards of Asbestos in Place ................ 778
                 C. Disqualification--Appearance of Partiality .... 781
                 D. Remedy--Vacatur of Past Rulings? .............. 785
                 V. THE PETITION RELATING TO THE EX PARTE FUNDING APPROVAL PROCESS ..... 788
                 VI. THE PETITIONS TO
                 COMPEL
                 CONSIDERATION OF
                 SUMMARY JUDGMENT
                 MOTIONS DISMISSED
                 AS UNTIMELY ................................................. 791
                 A. Procedural History ............................ 791
                 B. Mandamus as a Remedy for Refusal to Consider a
                 Summary Judgment Motion on the Merits ....... 792
                 C. Timeliness Requirements for Summary Judgment
                 Motions ..................................... 793
                 VII. THE PETITIONS
                 REGARDING THE
                 PHASE I TRIAL
                 PLAN ........................................................ 795
                 A. Trying the Conspiracy and Concerted Action
                 Claims First ................................ 795
                 B. Adjudicating the Case According to the Tort
                 Standards of the Strictest Jurisdiction ..... 796
                VIII. SUMMARY ............................................................ 798
                ----------
                

Before: BECKER, HUTCHINSON, and ALITO, Circuit Judges.

OPINION OF THE COURT

BECKER, Circuit Judge.

I. INTRODUCTION

Before us are eight petitions for mandamus brought by various defendants shortly before trial was scheduled to begin in this nationwide products liability class action. The trial, which has been stayed pending resolution of these petitions, will concern over 30,000 school districts' claims that the defendants are liable for expenses incurred in eliminating the alleged danger caused by asbestos-containing products in their school buildings. The class action is founded on diversity jurisdiction and will be adjudicated according to the laws of fifty-four jurisdictions.

Petition No. 91-1887, filed by Pfizer, Inc. and supported by numerous other defendants, challenges the refusal of the district judge, the Honorable James McGirr Kelly, to disqualify himself from the case. 1 Pfizer's

Page 770

petition first notes that Judge Kelly, pursuant to a previously established procedure, approved an ex parte request by the plaintiffs for $50,000 from a settlement fund to support a scientific conference on a key merits issue--the hazards of asbestos in place. The core allegation of the petition is that Judge Kelly attended, and had many of his expenses paid for, the resulting conference, which was an allegedly one-sided event at which most of the plaintiffs' expected expert witnesses presented views similar to those they intended to express at trial.

According to the petition, Judge Kelly acknowledged the resulting appearance of impropriety, but, instead of disqualifying himself, he barred experts who appeared at the conference from providing any expert testimony at trial. Pfizer submits that this remedy is inadequate, and that the sole remedy under 28 U.S.C. § 455(a) for the appearance of partiality is disqualification. Pfizer also claims that Judge Kelly had to disqualify himself under 28 U.S.C. § 455(b) because by attending the conference he obtained personal knowledge of disputed facts.

In its petition, Pfizer asks only that we order Judge Kelly to disqualify himself. Two companion petitions, No. 91-1943 filed by ACandS, Inc. and No. 91-1981 filed by Asten Group, Inc., argue additionally that specific rulings adverse to them, which were issued after defendants first requested Judge Kelly to disqualify himself are tainted by the appearance of partiality and must be vacated. Another petition, No. 91-1917, filed by Kaiser Cement Corp., requests that we order the district court (1) to discontinue its process of approving, ex parte, the class plaintiffs' use of escrowed settlement funds to defray litigation costs and (2) to unseal all the plaintiffs' past applications for use of such funds and the district court's rulings thereon.

Rejecting the contrary contention of the class plaintiffs, we conclude that mandamus is a proper means to force a district judge to disqualify himself or herself under 28 U.S.C. § 455. Furthermore, although we believe that Judge Kelly acted with integrity at all times, we also believe that the circumstances surrounding his attendance at the conference created an appearance of partiality that required disqualification under 28 U.S.C. § 455(a). A writ of mandamus disqualifying him shall therefore issue.

Such an order inevitably raises the question of what, if any, further remedy would be appropriate. We conclude, however, that none of Judge Kelly's past orders need be vacated at this time. Furthermore, although we recommend that the newly assigned district judge delegate the task of reviewing the plaintiffs' spending requests to a magistrate judge or a special master not otherwise involved in the case, we see no need to abolish the ex...

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193 practice notes
  • PAS v. Travelers Ins. Co., Nos. 92-5510
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • October 14, 1993
    ...under 28 U.S.C. § 1292(b) before petitioning for mandamus. Nor do we under the present circumstances. Cf. In re School Asbestos Litig., 977 F.2d 764, 774 (3d 5 Our preemption analysis focuses on Section 17B:30-12(d) though both statutes relied upon by plaintiff contain essentially the same ......
  • In re Briscoe, No. 04-4086.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • May 15, 2006
    ...in creating the extraordinary circumstances necessary to invoke mandamus, they are not alone sufficient. In re Sch. Asbestos Litig., 977 F.2d 764, 778 n. 14 (3d Cir.1992); see also In re Diet Drugs, 418 F.3d at 379 (rejecting "the contention that the scope (or even the complexity) of a case......
  • Cochran v. U.S. Sec. & Exch. Comm'n, 19-10396
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • December 13, 2021
    ...Co., 556 U.S. 868, 887 (2009). They also serve to prevent harm to the public's confidence in these tribunals. In re Sch. Asbestos Litig., 977 F.2d 764, 776 (3d Cir. 1992). Given that disqualification disputes concern the basic integrity of a tribunal, they must be resolved at the outset of ......
  • In re Al-Nashiri, No. 14–1203.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • June 23, 2015
    ...that is irreparably dampened once “a case is allowed to proceed before a judge who appears to be tainted.” In re Sch. Asbestos Litig., 977 F.2d 764, 776 (3d Cir.1992) ; accord In re United States, 666 F.2d 690, 694 (1st Cir.1981) ( “Public confidence in the courts requires that [bias] quest......
  • Request a trial to view additional results
192 cases
  • PAS v. Travelers Ins. Co., Nos. 92-5510
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • October 14, 1993
    ...under 28 U.S.C. § 1292(b) before petitioning for mandamus. Nor do we under the present circumstances. Cf. In re School Asbestos Litig., 977 F.2d 764, 774 (3d 5 Our preemption analysis focuses on Section 17B:30-12(d) though both statutes relied upon by plaintiff contain essentially the same ......
  • In re Briscoe, No. 04-4086.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • May 15, 2006
    ...in creating the extraordinary circumstances necessary to invoke mandamus, they are not alone sufficient. In re Sch. Asbestos Litig., 977 F.2d 764, 778 n. 14 (3d Cir.1992); see also In re Diet Drugs, 418 F.3d at 379 (rejecting "the contention that the scope (or even the complexity) of a case......
  • Cochran v. U.S. Sec. & Exch. Comm'n, 19-10396
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • December 13, 2021
    ...Co., 556 U.S. 868, 887 (2009). They also serve to prevent harm to the public's confidence in these tribunals. In re Sch. Asbestos Litig., 977 F.2d 764, 776 (3d Cir. 1992). Given that disqualification disputes concern the basic integrity of a tribunal, they must be resolved at the outset of ......
  • In re Al-Nashiri, No. 14–1203.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • June 23, 2015
    ...that is irreparably dampened once “a case is allowed to proceed before a judge who appears to be tainted.” In re Sch. Asbestos Litig., 977 F.2d 764, 776 (3d Cir.1992) ; accord In re United States, 666 F.2d 690, 694 (1st Cir.1981) ( “Public confidence in the courts requires that [bias] quest......
  • Request a trial to view additional results

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