v. Koller, RICHARDSON-MERREL

• Court: United States Supreme Court
• Writing for the Court: O'CONNOR
• Citation: 472 U.S. 424,105 S.Ct. 2757,86 L.Ed.2d 340
• Parties: , Petitioner v. Anne Elisabeth KOLLER, etc., et al
• Docket Number: No. 84-127,INC,RICHARDSON-MERREL
• Decision Date: 17 June 1985

472 U.S. 424 105 S.Ct. 2757 86 L.Ed.2d 340 RICHARDSON-MERRELL, INC., Petitioner

v.

Anne Elisabeth KOLLER, etc., et al.

No. 84-127. Argued Feb. 26, 1985. Decided June 17, 1985. Syllabus

Respondent Anne Koller was born without normal arms or legs. She filed suit in Federal District Court, alleging that during pregnancy her mother had taken an antinausea drug manufactured by petitioner and that this drug had caused respondent's birth defects. Respondent was initially represented by Miami and Washington law firms, but a Los Angeles law firm later took the lead in trial preparation. Before trial, the District Court disqualified the Los Angeles firm and revoked the appearances of two of its attorneys because of misconduct. Respondent appealed the disqualification to the Court of Appeals, which stayed all proceedings in the District Court pending the outcome of the appeal. The Court of Appeals thereafter held that 28 U.S.C. § 1291—which grants courts of appeals jurisdiction of appeals from all "final decisions of the district courts," except where a direct appeal lies to this Court—confers jurisdiction over interlocutory appeals of orders disqualifying counsel in a civil case. The Court of Appeals then held that the disqualification in question was invalid.

Held: Orders disqualifying counsel in a civil case are not collateral orders subject to immediate appeal as "final judgments" within the meaning of § 1291, and hence the Court of Appeals lacked jurisdiction to entertain respondent's appeal. Pp. 429-441.

(a) To fall within the "collateral order" exception to the "final judgment" rule, an order must "conclusively determine the disputed question," "resolve an important issue completely separate from the merits of the action," and "be effectively unreviewable on appeal from a final judgment." Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2458, 57 L.Ed.2d 351. Pp. 429-432.

(b) One purpose of the "final judgment" rule embodied in § 1291 is to avoid delay that inherently accompanies time-consuming interlocutory appeals. When an appellate court accepts jurisdiction of an order disqualifying counsel, the practical effect is to delay proceedings on the merits until the appeal is decided. A disqualified attorney's personal desire for vindication does not constitute an independent justification for a interlocutory appeal, but, as a matter of professional ethics, the decision to appeal should turn entirely on the client's interest. Nor does the

Page 425

use of disqualification motions to harass opposing counsel constitute an independent justification for an immediate appeal of the disqualification order, since implicit in § 1291 is Congress' judgment that the district judge has primary responsibility to police litigants' prejudgment tactics. The possibility that a ruling may be erroneous and may impose additional litigation expense is not sufficient to set aside the finality requirement. Pp. 433-436.

(c) Civil disqualification orders do not meet the requirements of the "collateral order" exception. If prejudice is not a prerequisite to reversal of a judgment following disqualification of counsel, the propriety of the disqualification order can be reviewed as effectively on appeal of a final judgment as on a interlocutory appeal. If prejudice is a prerequisite to reversal, disqualification orders are not sufficiently separate from the merits to qualify for interlocutory appeal. Flanagan v. United States, 465 U.S. 259, 104 S.Ct. 1051, 79 L.Ed.2d 288. Even apart from Flanagan's analysis, civil disqualification orders are often inextricable from the merits of the litigation. Pp. 436-440.

237 U.S.App.D.C. 333, 737 F.2d 1038, vacated and remanded.

Lawrence E. Walsh, Oklahoma City, Okl., for petitioner.

Michael H. Gottesman, Washington, D.C., for respondents.

Justice O'CONNOR delivered the opinion of the Court.

Last Term, in Flanagan v. United States, 465 U.S. 259, 104 S.Ct. 1051, 79 L.Ed.2d 288 (1984), the Court unanimously held that pretrial orders disqualifying counsel in criminal cases are not subject to im-

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mediate appeal under 28 U.S.C. § 1291. In this case, the Court of Appeals for the District of Columbia Circuit held that § 1291 confers jurisdiction over interlocutory appeals of orders disqualifying counsel in a civil case. 237 U.S.App.D.C. 333, 737 F.2d 1038 (1984). Because we conclude that orders disqualifying counsel in a civil case are not collateral orders subject to immediate appeal, we reverse.

I

Respondent Anne Koller (hereafter respondent) was born without normal arms or legs in a District of Columbia hospital in 1979. She filed suit in the United States District Court for the District of Columbia, alleging that petitioner Richardson-Merrell, Inc., is liable for her birth defects. The complaint alleged that respondent's mother, Cynthia Koller, had taken the antinausea drug Bendectin during the early stages of her pregnancy, and that the drug had caused Anne Koller's injuries. Petitioner is the manufacturer of Bendectin.

Respondent was initially represented by Cohen & Kokus, a Miami law firm, and by local counsel in Washington. As discovery progressed into 1981, however, a Los Angeles law firm, Butler, Jefferson, Dan & Allis, took the lead in trial preparation. James G. Butler entered an appearance pro hac vice for respondent on January 26, 1981; his partner Nicholas Allis was admitted pro hac vice on October 19, 1982. As the case neared trial in early 1983, respondent's counsel of record included at least eight lawyers from the Cohen firm, the Butler firm, and two Washington firms.

On December 22, 1982, Nicholas Allis' secretary, Krystyna Janowski, twice called the offices of Davis, Polk & Wardwell, Richardson-Merrell's attorneys. Janowski left messages indicating that Koller's suit was fraudulent and that Cynthia Koller had not taken Bendectin during the crucial early weeks of her pregnancy. App. 19-20. Janowski subsequently regretted her actions, and on December 26 she told

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a paralegal at her firm that investigators for Richardson-Merrell had been attempting to persuade her to sign a statement indicating that Koller's case was fraudulent.

The next day, Allis twice went to see Janowski, first at a hospital where the secretary was visiting her child, and later at the secretary's apartment. During the second visit, Allis was accompanied by a private investigator who surreptitiously taped the conversation on a concealed tape recorder. Allis presented Janowski a typed statement indicating that "[a]t no time did I ever hear Cynthia Koller or anyone else say that Cynthia Koller did not take Bendectin." Id., at 26-27. Janowski signed the statement. The following day, December 28, 1982, Allis received a copy of a letter that Davis, Polk & Wardwell had sent to the District Court. The letter recounted Janowski's telephone calls, informed the court that petitioner had engaged independent counsel for Janowski, and requested a hearing. Id., at 21-22. Allis' firm responded with its own letter to the court. The letter recounted the story Janowski had told Allis. A copy of the statement obtained from Janowski was attached. Id., at 23-25. During subsequent discovery into the matter, Janowski recanted the signed statement.

While the District Court and counsel were struggling with these unusual revelations, they were also preparing for an imminent trial. A pretrial hearing was scheduled to commence on January 31, 1983, and trial was to commence immediately upon the conclusion of the hearing. On January 17, 1983, the trial judge issued a pretrial ruling excluding collateral evidence related to two children who had birth defects like those of the respondent. The court ruled that it would not "grant plaintiffs a license to submit the birth defects of children whose only demonstrable relationship to Anne Koller is that they have suffered birth defects that are superficially similar." Id., at 60-61. On January 28, 1983, James Butler submitted to the Food and Drug Administration a set of "Drug Experience Reports" prepared by his firm. The

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reports described the birth defects of a number of children whose mothers had taken Bendectin, including the two children covered by the District Court's order of January 17. In an accompanying letter, Butler urged the FDA to take Bendectin off the market. Butler sent copies of the reports and his letter to a reporter for the Washington Post.

On January 31, 1983, the District Court ruled that it would not admit any "Drug Experience Reports" that were submitted to the FDA more than one year after the birth of the children involved. Id., at 84-91. The 14 reports Butler had submitted to the FDA fell within this category. The following day, a Washington Post reporter interviewed Butler at the attorney's invitation. Id., at 341. Butler discussed the Koller case and the materials he had sent to the FDA. On February 7, 1983, after the court had already called the February jury pool from which the Koller jury panel would likely be drawn, the Washington Post published a lengthy article discussing the Koller case and the Drug Experience Reports which the trial court had excluded from evidence.

In the wake of these events, the District Court postponed the trial and allowed further discovery concerning Janowski's allegations. In February 1983, petitioner moved to disqualify Butler, Allis, and their firm from the Koller case on the ground of their alleged misconduct. After a 4-day evidentiary hearing on the issue of whether respondent's law firm had improperly obtained Janowski's statement, the District Judge issued an order requiring Butler and Allis to show cause why they and their firm should not be disqualified. The show cause order identified two "alleged incidents of misconduct" as possible grounds for disqualification: Butler's release of information to the Washington Post in an effort to "prejudice the...