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MEST v. CABOT CORPORATION

United States District Court, E.D. Pennsylvania


May 10, 2004.

MERRILL MEST et al., Plaintiffs
v.
CABOT CORPORATION et al., Defendants

The opinion of the court was delivered by: CYNTHIA RUFE, District Judge

MEMORANDUM OPINION AND ORDER

By Memorandum Opinion and Order dated April 29, 2004 (the "Order"),*fn1 this Court granted in part Defendants Cabot Corporation and Cabot Performance Materials' (collectively referred to as "Cabot") Motion for Summary Judgment against Plaintiffs Wayne and Suzanne Hallowell*fn2 and Merrill and Betty Mest. In the Order, this Court held that the discovery rule did not toll the statute of limitations on Plaintiffs' claims. Accordingly, the Court granted summary judgment in favor of Cabot on Plaintiffs' claims based on Cabot's activities prior to November 10, 1998. Plaintiffs now move for a certification of interlocutory appeal pursuant to 28 U.S.C. § 1292(b).

Section 1292(b) sets forth the requirements the Court must consider when deciding whether to allow an appeal of an interlocutory order such as the Order:

When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is a substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order.*fn3
Thus, this Court has the discretion to grant a section 1292(b) certificate if the Order "(1) involve[s] a controlling question of law, (2) offer[s] substantial ground for difference of opinion as to its correctness, and (3) if appealed immediately [would] materially advance the ultimate termination of the litigation."*fn4 One of the main purposes of this statute is to prevent wasteful litigation.*fn5 With this principle in mind, the Court applies these factors to the Order.

  Controlling Question of Law

  "A controlling question of law must encompass at the very least every order which, if erroneous, would be reversible error on final appeal."*fn6 An order need not "be determinative of any plaintiff's claim on the merits," nor must "a reversal of the order terminate the litigation," for a district court to find the existence of a controlling question of law.*fn7 "The key consideration . . . is whether [the order] truly implicates the policies favoring interlocutory appeal," one of which is "the avoidance of possibly wasted trial time and litigation expense."*fn8

  Whether the discovery rule tolls the statute of limitations of Plaintiffs' claims is clearly a controlling question of law. The Order precludes Plaintiffs from recovering damages based on Defendants' activities prior to November 10, 1998, thereby precluding a trial on those damages. If the Third Circuit were to find the Order erroneous after a trial addressing only Defendants' activities after November 10, 1998, the Court would have to conduct another trial based on Defendants' conduct prior to November 10, 1998. Thus, if erroneous, the Order would constitute reversible error on final appeal.

  Substantial Ground for Difference of Opinion*fn9

  Although the Court is confident that the Order is correct, substantial ground for difference of opinion as to its correctness exists. The issue of when the discovery rule applies to toll the statute of limitations is frequently disputed, as evidenced by the Third Circuit's recent opinion in Debiec v. Cabot Corp., 352 F.3d 117 (3d Cir. 2003), which Plaintiffs believe is analogous to this case. The application of the discovery rule is fact sensitive and unlike the instant case, which involves injury to animals, Debiec and the vast majority*fn10 of discovery rule cases deal with injury to humans. Specifically, the Debiec decision addressed "how to measure the impact of a professional medical diagnosis on a court's evaluation of whether a plaintiff has exercised reasonable diligence in investigating her condition."*fn11 It has yet to be decided how the Debiec decision applies to a case such as this one where Plaintiffs allegedly relied on the opinions of "veterinarians and others involved in the field of animal health."*fn12 Thus, there is a difference of opinion as to how the holdings in Debiec and similar cases involving injury to humans apply to Plaintiffs' reliance on the puported animal health specialists in this case.

  Advance the Ultimate Termination of the Litigation

  Finally, an immediate appeal of the Order will advance the ultimate termination of this litigation. An immediate appeal and resolution by the Third Circuit eliminates the possibility of having duplicative trials, as would occur if the Third Circuit were to find the Order erroneous after a trial on Defendants' conduct after November 10, 1998. In light of the parties' indication to the Court that a trial in this case will last at least four weeks, the avoidance of such a scenario would be consistent with one of the main policies behind § 1292(b): "the avoidance of possibly wasted trial time and litigation expense."*fn13 Accordingly, the Court finds that each of the requirements of § 1292(b) have been satisfied and that an immediate appeal is appropriate.

  The Court therefore amends its April 29, 2004 Order and certifies it for immediate appeal. An appropriate Order follows. ORDER

  AND NOW, this 10th day of May, 2004, upon consideration of Plaintiffs' Motion for Certification of Interlocutory Appeal and Stay of Proceedings [Doc. #134] and Defendants' Response thereto [Doc. #136], it is hereby ORDERED that Plaintiffs' Motion is GRANTED IN PART and DENIED IN PART. Plaintiffs' Motion is GRANTED as to Certification of Interlocutory Appeal pursuant to 28 U.S.C. § 1292(b) and DENIED as to a stay of proceedings. It is further ORDERED that the Order of April 29, 2004 [Doc. #133] is AMENDED as follows:

1. Defendants' Motion for Summary Judgment is GRANTED and JUDGMENT IS ENTERED in favor of Defendants on Plaintiffs' claims based on Defendants' activities prior to November 10, 1998.
2. The Order in the previous paragraph involves a controlling question of law as to which there is substantial ground for difference of opinion and an immediate appeal from the Order may materially advance the ultimate termination of this litigation.
3. All other terms of the April 29, 2004 Order shall remain unchanged.
It is so ORDERED.


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