Use this button to switch between dark and light mode.

Share your feedback on this Case Opinion Preview

Thank You For Submiting Feedback!

Experience a New Era in Legal Research with Free Access to Lexis+

  • Case Opinion

In re Rhone-Poulenc Rorer Inc.

In re Rhone-Poulenc Rorer Inc.

United States Court of Appeals for the Seventh Circuit

January 30, 1995, Argued ; March 16, 1995, Decided

No. 94-3912

Opinion

 [*1294]  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. § 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 [**2]  made clear in Coopers & Lybrand v. Livesay, 437 U.S. 463, 57 L. Ed. 2d 351, 98 S. Ct. 2454 (1978), and Gardner v. Westinghouse Broadcasting Co., 437 U.S. 478, 480-82, 57 L. Ed. 2d 364, 98 S. Ct. 2451 (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 A. Miller & Mary Kay Kane, Federal Practice and Procedure § 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, 48 L. Ed. 2d 725, 96 S. Ct. 2119 (1976); Eisenberg v. United  [*1295]  States [**3]  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; 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, 99 L. Ed. 2d 296, 108 S. Ct. 1133 (1988); Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 35, 66 L. Ed. 2d 193, 101 S. Ct. 188 (1980) (per curiam); United States v. Spilotro,  [**4]  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.

Read The Full CaseNot a Lexis Advance subscriber? Try it out for free.

Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.

51 F.3d 1293 *; 1995 U.S. App. LEXIS 5504 **

IN THE MATTER OF: RHONE-POULENC RORER INCORPORATED, et al., Petitioners.

Subsequent History:  [**1]  Rehearing and Rehearing En Banc Denied April 27, 1995, Reported at: 1995 U.S. App. LEXIS 9693.

Prior History: Petition for a Writ of Mandamus to Hon. John F. Grady, United States District Judge, Northern District of Illinois, Eastern Division, in Wadleigh et al. v. Rhone-Poulenc Rorer Inc., et al., No. 93 C 5969.

CORE TERMS

mandamus, blood, cases, hemophiliacs, infected, class action, defendants', settlement, class certification, solids, district judge, final judgment, virus, manufacturers, irreparable harm, class member, orders, special verdict, certifying, settle, federal court, diversity, certification order, blood supply, damages, named plaintiff, district court, plaintiffs', juries, theory of liability

Civil Procedure, Special Proceedings, Class Actions, Certification of Classes, General Overview, Appeals, Appellate Jurisdiction, Final Judgment Rule, Interlocutory Orders, Remedies, Writs, Common Law Writs, Mandamus, Appellate Review, Judicial Discretion, Constitutional Law, Bill of Rights, Fundamental Rights, Trial by Jury in Civil Actions, Trials, Jury Trials, Right to Jury Trial, Prerequisites for Class Action, Governments, Legislation, Statute of Limitations, Extensions & Revivals, Affirmative Defenses, Revival, Reviewability of Lower Court Decisions, Preservation for Review, Preliminary Considerations, Federal & State Interrelationships, Erie Doctrine, Courts, Common Law, Torts, Elements, Causation, Jurisdiction, Diversity Jurisdiction, Preclusion of Judgments, Estoppel, Collateral Estoppel, Judgments, Separate Trials, Judicial Officers, Judges, Standards of Review, Right to Jury Trial, Actions in Equity, Justiciability, Environmental Law, Hazardous Wastes & Toxic Substances, Asbestos