PETITION FOR WRIT OF MANDAMUS TO THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (Related to D.C. Civil No. 83-00268).
Before: Stapleton, Alito, and Lewis, Circuit Judges
The Dissent inadvertently was not included with the majority opinion. Please see the majority opinion filed on December 28, 1994. The Dissent is also filed as of December 28, 1994. IN RE: ASBESTOS SCHOOL LITIGATION v. PFIZER, ET AL., No. 94-1494.
This is the latest appellate chapter in a lengthy nationwide class action in which more than 30,000 school districts have sought relief from former manufacturers of asbestos-containing building products ("ACBPs") for harm stemming from the installation of ACBPs in their school buildings.*fn1 The current proceeding concerns a petition for a writ of mandamus filed by one of the defendants, Pfizer Inc. In that petition, Pfizer seeks review of the district court's denial of its motion for partial summary judgment on the plaintiffs' conspiracy and concert of action claims. Pfizer argues that the denial of that motion has caused and is continuing to cause irreparable harm to its First Amendment rights. Applying the Supreme Court's decision in N.A.A.C.P. v. Claiborne Hardware Co., 458 U.S. 886, 73 L. Ed. 2d 1215, 102 S. Ct. 3409 (1982), we hold that Pfizer cannot, consistent with the First Amendment, be held liable on the plaintiffs' conspiracy and concert of action claims and that the denial of Pfizer's partial summary judgment motion was clearly in error. We further hold that the issuance of a writ of mandamus is appropriate to prevent the harm to First Amendment rights that would occur if review of the district court's decision had to wait until a final judgment is entered in this protracted litigation.
The initial complaints in this case were filed in early 1983, and Pfizer was added as a defendant in January 1984. The plaintiff school districts alleged that until the 1970s*fn2 Pfizer and the other defendants had produced and sold ACBPs without warnings even though they knew that the ACBPs would be used in school buildings and that their presence there would be dangerous. Seeking compensatory and punitive damages and injunctive relief, the plaintiffs asserted claims based on negligence, strict liability, breach of implied warranties, and intentional tort. Additionally, the plaintiffs alleged that the defendants had acted pursuant to a "concert of action" and "civil conspiracy," and as a result, the plaintiffs argued, each defendant was legally responsible for every other defendant's conduct. See App. 264a-65a.
In January 1993, after extensive discovery, Pfizer moved for summary judgment on the plaintiffs' civil conspiracy and concert of action claims. Pfizer contended that the plaintiffs "had been unable to proffer any competent evidence to support either a claim of conspiracy or concert of action against Pfizer." App. 51a. Pfizer stated that the plaintiffs' proof against it consisted entirely of the following: (1) that Pfizer had marketed an asbestos-containing construction product, Kilnoise, from 1964 until 1972 and (2) that in 1984 Pfizer had become associated with a trade organization called the Safe Buildings Alliance ("SBA"). See id. at 53a-54a, 57a-58a. As we noted in In re School Asbestos Litigation, 842 F.2d 671, 674-75 (3d. Cir. 1988), the SBA has been described by the defendants as "a lobbying and public education organization" that has "represented its members' views before Congress, the EPA, state legislatures and regulatory agencies" and "has also presented its views to the general public through a self-initiated 'public education campaign.'" In support of its summary judgment motion, Pfizer maintained:
The fact that Pfizer began producing one asbestos-containing construction product in 1964 is not evidence of the existence of or any participation in a conspiracy or concert of action. Moreover, Pfizer's joining the SBA twelve years after it ceased production of Kilnoise . . . and one year after this lawsuit was filed does not constitute "evidence" of conspiratorial or concerted activity. Sharing and discussing information which is a matter of public record and debate in a voluntary association such as the SBA is neither a conspiracy nor a concert of action that was in any way illegal.
App. 58a (emphasis in original).
In opposition to Pfizer's motion, the plaintiffs first intimated that their conspiracy and concert of actions claims could survive summary judgment because Pfizer, in marketing Kilnoise, had consciously chosen to follow the same course of deceptive conduct as the other defendants. The plaintiffs wrote:
Pfizer marketed an asbestos-containing product for an eight-year period without warnings though it had specific knowledge of its product's hazard. This conduct was in keeping with the method of marketing asbestos products by its co-conspirators, as Pfizer well knew, without any or adequate warnings.
The plaintiffs then argued that their conspiracy and concert of action claims could also survive summary judgment based on Pfizer's association with the SBA. The plaintiffs maintained that Pfizer had been an "associate member of the SBA." They stated that the SBA had been formed to coordinate the defendants' "legal and communications positions," that the SBA "had disseminated misleading information about the danger of asbestos in schools directly to class members in this litigation," and that the SBA's activities had been intended to limit its members' "liability for their prior sales . . . by discouraging school district class members from incurring more expensive asbestos removal costs as opposed to possibly cheaper encapsulation methods, and were also intended to cover up or continue the effects of their earlier suppression of the hazards of their products." Id. at 262a-64a (emphasis in original deleted). The plaintiffs argued that Pfizer, by associating with the SBA, had joined an ongoing civil conspiracy or concert of action and had thus become liable for all of the other defendants' prior tortious conduct. Id. at 264a-65a.
The district court denied Pfizer's motion. The court did not adopt the argument that Pfizer could be held to have entered into a conspiracy or concert of action due to its conscious choice of a course of conduct that parallelled those of its co-defendants. Rather, the court concluded that "there [was] evidence by which a jury could reasonably find that Pfizer later joined an ongoing conspiracy/concert of action by its involvement with, and financial support for . . . [ the SBA]." Dist. Ct. Op. at 1-2. The court noted (Dist. Ct. Op. at 2 & n.1) that, in an earlier ruling concerning the plaintiffs' request for an injunction, the court had found that "Pfizer, Inc. . . ., although it is not a member of the SBA, had contributed insignificantly to the financing of the SBA." See In re Asbestos School Litigation, 115 F.R.D. 22, 24 (E.D. Pa. 1987), vacated on other grounds, 842 F.2d 671 (3d Cir. 1988). However, the court concluded that these findings were not binding at the summary judgment stage and that it should be left for the jury to decide whether Pfizer had become a member of the SBA and whether its contributions (which the plaintiffs allege amounted to at least $50,000) were significant. The court also noted that "Pfizer's counsel [had] admitted at oral argument that three or four of Pfizer's in-house attorneys [had] attended SBA meetings when topics of interest to Pfizer were discussed." Dist. Ct. Op. at 2. (footnote omitted).
Observing that Pfizer had maintained that the SBA's sole purpose was "to disseminate to the public, government, and regulatory agencies its members' views about the proper means for dealing with asbestos that was already in place in buildings," the court stated that if this was indeed the SBA's sole purpose, the "plaintiffs' conspiracy and concert of action claims against Pfizer would fail for lack of causation" because the complaint did not allege that the defendants had caused the plaintiffs damage "by misleading them about proper techniques of asbestos removal or abatement." Id. at 3. The court continued:
However, Plaintiffs have submitted evidence that the actions of SBA . . . were also aimed in part at convincing the public that SBA members had no prior knowledge of the dangers of asbestos. Thus, SBA's actions could reasonably be interpreted by a jury as contributing to an ongoing conspiracy to conceal the asbestos industry's alleged knowledge of the dangers of asbestos.
Pfizer moved for reconsideration, arguing that the district court's decision "penalized Pfizer's exercise of its First Amendment rights to engage in free speech and to associate with [the SBA]." App. 325a-26a. Citing N.A.A.C.P. v. Claiborne Hardware Co., 458 U.S. at 918-20, Pfizer added: "The United States Supreme Court has often cautioned that conspiracy liability cannot be constitutionally imposed based upon mere association." Id. at 326a. The district court denied reconsideration, as well as Pfizer's request for certification of an interlocutory appeal. Pfizer then filed the mandamus petition that is now before us.
The general standards for issuing a writ of mandamus have been restated many times. As we wrote in a prior mandamus proceeding in this case:
The traditional use of mandamus has been "to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it has a duty to do so." Roche v. Evaporated Milk Association, 319 U.S. 21, 26, 63 S. Ct. 938, 941, 87 L. Ed. 1185 (1943). Even under that formulation, however, "courts have not confined themselves to any narrow or technical definition of the term 'jurisdiction.'" United States v. Santtini, 963 F.2d 585, 594 (3d Cir. 1992). See Mallard v. United States District Court, 490 U.S. 296, 309, 109 S. Ct. 1814, 1822, 104 L. Ed. 2d 318 (1989). . . . Mandamus may be especially appropriate to further supervisory and instructional goals, and where issues are unsettled and important. See Sporck v. Peil, 759 F.2d 312, 315 (3d Cir. 1985); United States v. Christian, 660 F.2d 892, 895-97 (3d Cir. 1981); Rapp v. Van Dusen, 350 F.2d 806, 810 (3d Cir. 1965) (in banc).
In re School Asbestos Litigation, 977 F.2d 764, 773 (3d Cir. 1992). See also, e.g., Alexander v. Primerica Holdings, Inc., 10 F.3d 155, 163 (3d Cir. 1993); United States v Bertoli, 994 F.2d 1002, 1014-15 (3d Cir. 1993); Haines v. Liggett Group, Inc., 975 F.2d 81, 88-89 (3d Cir. 1992); In re Pruitt, 910 F.2d 1160, 1167 (3d Cir. 1990); United States v. Martinez-Zayas, 857 F.2d 122, 127 (3d Cir. 1988).
Since mandamus is an "extraordinary" remedy, it must be invoked sparingly. See In re School Asbestos Litig., 977 F.2d at 774. Excessive use would undermine the important goal of avoiding piecemeal appellate review. Kerr v. United States District Court, 426 U.S. 394, 403, 48 L. Ed. 2d 725, 96 S. Ct. 2119 (1976).*fn3 In order to ensure that writs of mandamus are restricted to extraordinary situations, the Supreme Court has set forth two conditions that must be satisfied: first, the petitioner must show a "clear and indisputable" right to the writ and, second, the petitioner must have "no other adequate means to attain the relief . . . desired." Kerr, 426 U.S. at 403. "Once these two prerequisites are met, the court's decision whether to issue the writ is largely one of discretion." Haines, 975 F.2d at 89. See also Kerr, 426 U.S. at 403; Alexander, 10 F.3d at 163; In re School Asbestos Litigation, 977 F.2d at 772.
A. In considering Pfizer's petition, we turn first to the question whether Pfizer has shown that it has a "clear and indisputable right" to the issuance of a writ. Kerr, 426 U.S. at 403. We hold that Pfizer has made this showing because the district court's ...