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Philip Morris Inc. v. Angeletti5/16/2000
ial appeal process, ultimately weakening the final judgment rule. On remand from the grant of the writ, the trial court in that case apparently certified a new class. The defendants, having tasted victory in the first mandamus proceeding, challenged the plaintiffs' schedule of expert witnesses by again petitioning to the Seventh Circuit for the writ, which was refused. See generally In re Rhone-Poulenc Rorer Pharm., Inc., 138 F.3d 695 (7th Cir. 1998).
In another example, In re School Asbestos Litigation, 789 F.2d 996 (3d Cir. 1986), the Third Circuit, hearing an interlocutory appeal under 28 U.S.C. ยง 1292(b), upheld a mass tort class certification for compensatory damages only. The defendants later moved to decertify the class, which the trial court denied. They petitioned the Third Circuit for a writ of mandamus to vacate the order, but the writ was denied. See generally, In re School Asbestos Litigation, 921 F.2d 1338 (3d Cir. 1990). Later, the trial court denied the defendants' motion for partial summary judgment. The defendants for the third time petitioned the Third Circuit for a writ to overturn the trial court's order. See generally In re Asbestos School Litigation, 46 F.3d 1284 (3d Cir. 1994).
These examples reflect exactly what can happen in class action lawsuits if this Court modifies the final judgment rule as it pertains to pretrial class action decisions. Every defendant in major civil litigation who is disappointed by an important pretrial ruling will contend that that defendant's case presents extraordinary circumstances justifying early appellate intercession. Holding that the writ should issue here confers on such defendants the power to stall. In turn, plaintiffs and witnesses will die, become impossible to locate, or their memories will fail. Evidence will disappear or be destroyed with time. Plaintiffs will become discouraged and drop their suits or simply run out of money to fund them. At the same time, this Court will become more and more involved with supervising pretrial matters in major civil litigation. That is not the role we should assume except in the most extraordinary circumstances.
Chief Judge Bell and Judge Rodowsky have authorized me to state that they concur with the views expressed herein.
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