UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
October 23, 1996
SUSAN I. KELLY, Administratrix and Personal Representative of the Estate of GERALD A. KELLY. Deceased, on Behalf of Said Decedent's Heirs-At-Law and Next-Of-Kin and on Her Own Behalf, Plaintiff,
FORD MOTOR COMPANY, Defendant.
The opinion of the court was delivered by: REED
October 23, 1996
AND NOW, this 23rd day of October, 1996, upon consideration of the motion of plaintiff Susan I. Kelly for certification pursuant to 28 U.S.C. § 1292(b)
for an immediate appeal as to whether Pennsylvania or Michigan law should be applied with respect to the punitive damages claim (Document No. 35), and the response of defendant Ford Motor Company ("Ford") (Document No. 36), and having found and concluded that:
1. The decision to certify a § 1292(b) appeal is within the sound discretion of the trial court and should be exercised bearing in mind the strong policy against piecemeal appeals. Orson, Inc. v. Miramax Film Corp., 867 F. Supp. 319, 320-21 (E.D. Pa. 1994);
2. Plaintiff Kelly has failed to persuade the Court that substantial grounds for a difference of opinion exist with respect to the application of the doctrine of depecage
to the punitive damages claim. The Court of Appeals for the Third Circuit in Broome v. Antlers' Hunting Club found that the Supreme Court of Pennsylvania would recognize the doctrine of depecage. Broome v. Antlers' Hunting Club, 595 F.2d 921, 924 (3d Cir. 1979); see Chemetron Investments v. Fidelity & Casualty of N.Y., 886 F. Supp. 1194, 1199 (W.D. Pa. 1994); Casper v. Cunard Line, Ltd., 560 F. Supp. 240, 244 (E.D. Pa. 1983); see also Jones v. Southeastern Pa. Transp. Auth., 1993 U.S. Dist. LEXIS 5698, No. 92-2053, 1993 WL 141646, at *2-3 (E.D. Pa. Apr. 30, 1993). The doctrine of depecage is consistent with the more flexible choice of law rules adopted by the Supreme Court of Pennsylvania. See Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796, 805-06 (Pa. 1964). Under the doctrine of depecage, the earlier decision of this Court to apply the substantive law of Michigan to plaintiff's punitive damages claim was consistent with existing law because Michigan was the state in which defendant Ford had its principal place of business and was where the alleged misconduct causing the product defect occurred. Kelly v. Ford Motor Co., 933 F. Supp. 465, 469 (E.D. Pa. 1996) (citing Cavalier Clothes, Inc. v. Major Coat Co., 1991 U.S. Dist. LEXIS 8861, No. 89-3325, 1991 WL 125179, at *4 n.8 (E.D. Pa. June 26, 1991); Serbin Dev. Corp. v. North River Ins. Co., No. 85-4273, 1986 WL 4315, at *1-2 (E.D. Pa. Apr. 8, 1986));
3. Plaintiff Kelly has not convinced the Court that the issue of punitive damages involves a controlling question of law. Because a punitive damages award is an element of the damages claim, its presence or absence does not affect the final outcome of this lawsuit with respect to liability and compensatory damages;
4. Finally, Plaintiff Kelly has not swayed the Court that an immediate appeal would materially advance the ultimate termination of the litigation. First, an immediate appeal on punitive damages would not eliminate the need for a trial on liability and compensatory damages. Second, the punitive damages claim would not eliminate complex issues so as to simplify the trial. Indeed, an immediate appeal would actually delay the trial scheduled in the near future.
Third, discovery is virtually complete and therefore an immediate appeal would not render discovery easier or less costly.
it is accordingly hereby ORDERED that motion of plaintiff for certification is DENIED.
LOWELL A. REED, JR., J.