Products Liability Law Daily Amid complex backdrop of conflicting jurisdictional precedent and multiple rulings, dismissal of mesothelioma victim’s case was affirmed
Friday, July 17, 2020

Amid complex backdrop of conflicting jurisdictional precedent and multiple rulings, dismissal of mesothelioma victim’s case was affirmed

By Leah S. Poniatowski, J.D.

Earliest-precedent rule, merging of interlocutory order into final ruling, and adverse position supported appellate court’s jurisdiction over denied motion for reconsideration.

Untangling the ‘Jackson Pollack-like’ landscape of conflicting precedent, the U.S. Court of Appeals for the Eleventh Circuit determined that it had appellate jurisdiction over the denial of a motion for reconsideration relating to the voluntary dismissal of products liability claims against multiple companies in an asbestos exposure lawsuit. The appellate court ultimately affirmed the lower court’s ruling that the injured Navy serviceman could not raise the novel issue of application of maritime law on a motion for reconsideration after summary judgment had been granted (Corley v. Long-Lewis, Inc., July 16, 2020, Pryor, W.).

A serviceman in the U.S. Navy who also worked as a mechanic and repairman, and his wife, (collectively, the serviceman) filed a lawsuit against dozens of companies after he developed malignant mesothelioma. The serviceman alleged that he had been exposed to asbestos while working in those roles, which caused his illness and, later, death.

Procedural history. The couple initially filed their lawsuit in Alabama, which was removed to federal court by the companies. The lawsuit was transferred to a federal district court in Pennsylvania by the Judicial Panel on Multi district Litigation. The Pennsylvania court granted summary judgment to 17 companies that supplied the Navy on the ground that the statute of limitations had passed on those claims. The serviceman filed a motion to reconsider, requesting "leave to elect the application of maritime law and, in so doing, the [extended] statute of limitations recognized under maritime law." The court denied the motion, holding that it occurred too late in the litigation for their theory of liability to change. The Pennsylvania court proceeded to trim the defendant pool down to the final two and remanded the case to the Alabama federal court. Those companies, Honey well International, Inc. and Ford Motor Company, were then dismissed with prejudice from the lawsuit.

Bankrupt suppliers. The serviceman filed an appeal vis-a-vis the denial of the motion for reconsideration. Two of the Navy suppliers filed suggestions of bankruptcy to the appellate court, after which the appellate court discovered that the serviceman’s claims against the companies, Fair banks Morse Pump Corporation and Gar lock Sealing Technologies, LLC, were still pending in the lower court. The serviceman’s appeal was dismissed.

On remand, the serviceman reported that the two companies’ bankruptcy filings had stayed the proceedings against them. The bankruptcy court’s reorganization plan confirmation blocked the serviceman from litigating his claims against the suppliers. Thus, the serviceman requested that district court voluntarily dismiss the claims against those suppliers without prejudice pursuant to federal procedural Rule 41(a) (2) as the claims had "already been eliminated as a matter of law" by the bankruptcy court. The court granted the motion, entering a "final judgment with respect to all claims asserted in this action." The serviceman then filed the present appeal to challenge the dismissal of the motion to reconsider the suppliers’ motions for summary judgment.

Appellate jurisdiction. The appellate court held that it had jurisdiction to review the appeal, the analysis of which concerned subject matter jurisdiction under 28 U.S.C. § 1291, territorial jurisdiction under 28 U.S.C. § 1294, and standing under Article III of the U.S. Constitution.

Finality of voluntary dismissal. The serviceman and suppliers disagreed over whether the voluntary dismissal under Rule 41(a) (2) was a final appealable decision under 28 U.S.C. § 1291. According to governing case law, a "final decision" pursuant to that statutory provision is "one by which a district court disassociates itself from a case." Although the voluntary dismissal of the claims fits within that definition, the precedent on the issue of voluntary dismissals being final decisions "splinters in multiple directions." The appellate court held that the earliest-precedent rule applied because it could not harmonize the prior decisions. The earliest ruling held that voluntary dismissals under Rule 41(a) (2) are final judgments for purposes of appeal. Therefore, there was jurisdiction under §1291.

Territorial jurisdiction. Under 28 U.S.C. §1294, “appeals from reviewable decisions of the district courts shall be taken to the court of appeals for the circuit embracing the district." The conflict under this provision is what order is the reviewable decision. The serviceman contended that the voluntary dismissal order granted by the federal district court in Alabama is the "reviewable decision" at issue, but the suppliers asserted that it was the denial of the motion for reconsideration that was issued by the Pennsylvania district court. Again, there is a circuit split concerning the application of § 1294 to interlocutory orders that precede an inter-circuit transfer. The majority interpretation holds that "reviewable decisions" refers to appealable decisions. With regard to interlocutory orders, the appellate court can review them only when they merge into a final judgment of the district court, and that final judgment was the "reviewable decision." Therefore, there was jurisdiction under §1294.

Standing. The appellate court sua sponte addressed the issue of whether it had constitutional standing under Article III, §2, acknowledging that "[t]his appeal does not fit neatly within our precedents on voluntary dismissals." The serviceman was adverse to the order that denied his motion to reconsider summary judgment in favor of the suppliers, which was sufficient to establish standing, the appellate court concluded.

Motion for reconsideration. The serviceman’s argument that he had a right to make an election between civil and admiralty law after the district court entered summary judgment was not persuasive. The appellate court explained that district courts have discretion as to when to consider arguments made for the first time in a motion for reconsideration. Precedent held that allowing litigants to raise new arguments on motions to amend "essentially affords a litigant two bites at the apple." Because they raised the admiralty issue late in the litigation and there was no compelling reason for their delay, they were not entitled to "a second bite at the apple." Therefore, the lower court’s ruling was affirmed.

The case is No. 18-10474.

Attorneys: Grover Patterson Keahey, Jr. (Law Office G. Patterson Keahey), James Arthur Butts (John D. Saxon, PC) and Nathan David Finch (Motley Rice, LLC) for Myra Corley and Charles Corley. Jeffrey Edwin Friedman (Friedman Dazzio Zulanas & Bowling, PC) for Long-Lewis, Inc. f/k/a Lewis Hardware Co., Birmingham Rubber and Gasket Co., Inc. and McConnell Sales and Engineering Corp. Frank E. Lankford, Jr. (Huie Fernambucq & Stewart, LLP) for Refractory Sales & Service Co., Inc. Brian M. Blythe (Morris Manning & Martin, LLP) for Wittichen Supply Co. Robert Wayne Heath (Porterfield Harper Mills Motlow & Ireland, PA) and Laurie J. Hepler (Greines Martin Stein & Richland, LLP) for Warren Pumps, LLC. Charles F. Rule (Paul, Weiss, Rifkind, Wharton & Garrison LLP) for Elanco Animal Health Inc. Nicole Mapp Hardee (Harris & Harris LLP) for CBS Corp.

Companies: Long-Lewis, Inc. f/k/a Lewis Hardware Co.; Birmingham Rubber and Gasket Co., Inc.; McConnell Sales and Engineering Corp.; Refractory Sales & Service Co., Inc.; Wittichen Supply Co.; Warren Pumps, LLC; Elanco Animal Health Inc.; CBS Corp.

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