IN RE: Asbestos School Litigation ( 1994 )

Opinions of the United
1994 Decisions States Court of Appeals
for the Third Circuit
12-28-1994
IN RE: Asbestos School Litigation
Precedential or Non-Precedential:
Docket 94-1494
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Recommended Citation
"IN RE: Asbestos School Litigation" (1994). 1994 Decisions. Paper 228.
http://digitalcommons.law.villanova.edu/thirdcircuit_1994/228
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 94-1494
____________
IN RE: ASBESTOS SCHOOL LITIGATION
PFIZER INC.,
Petitioner
v.
THE HONORABLE JAMES T. GILES,
Nominal Respondent
and
BARNWELL SCHOOL DISTRICT NO. 45; SCHOOL DISTRICT
OF LANCASTER; MANHEIM TOWNSHIP SCHOOL DISTRICT;
LAMPETER-STRASBURG SCHOOL DISTRICT; BOARD OF
EDUCATION OF THE MEMPHIS CITY SCHOOLS And A
Conditionally Certified Class
____________________
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)
____________________
Argued: September 16, 1994
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
STAPLETON, Circuit Judge, dissenting:
I respectfully dissent.
It may well be that the district court's denial of
Pfizer's motion for summary judgment was in error. The issue
before us, however, is whether Pfizer is entitled to
interlocutory appellate review of that denial. Nothing in the
First Amendment or Claiborne Hardware provides justification for
our granting such review. Moreover, I fear that the principle
announced by the court today will be impossible to cabin.
Joining together with others does not render legal
conduct that would be illegal if engaged in on one's own.
Neither the First Amendment right of association nor Claiborne
Hardware provides otherwise. To the contrary, while Claiborne
Hardware holds that one cannot be held civilly liable solely for
belonging to a group some of whose members have committed acts of
violence, it expressly recognizes that one may be held liable if
one supports a group that one knows to have "illegal aims." 458
U.S. at 920. This is the legal theory that the plaintiffs here
press. It is also the legal theory pressed by all others who
bring conspiracy cases.
As the court points out, there appears to be no causal
nexus between the damages sought by plaintiffs and "any allegedly
misleading statements that the SBA subsequently made concerning
ACBP removal." Slip Op. at 13. Moreover, there appears to be
precious little evidence in this record from which a trier of
fact could infer that Pfizer's participation in the SBA was for
the purpose, in whole or in part, of accomplishing an illegal
objective that the SBA was pursuing. For these reasons, if the
record before us were a trial record and Pfizer had suffered an
adverse judgment I might well side with it. We have a summary
judgment record before us, however, and Pfizer has failed to
convince me that its position is in any way different from a
defendant in any antitrust conspiracy case, for example, that has
lost a motion for summary judgment.
An individual's right to join any group of other
individuals or firms is protected by the First Amendment. So,
too, is an individual's right to express himself or herself
through the activities of the group. This does not, however,
mean that one cannot be held liable for civil conspiracy based on
the activities of the group, including activities of a group
involving representations and other expressive communications to
third parties. Indeed, members of trade associations like SBA
have repeatedly been held liable for anticompetitive activities
of their association where they were aware that the association
had undertaken such activities. See, e.g., Kline v. Coldwell,
Banker & Co., 508 F.2d 226 (9th Cir. 1974), cert. denied, 421
U.S. 963 (1975); Phelps Dodge Refining Corp. v. FTC, 139 F.2d 393
(2d Cir. 1943).
As I read the opinion of the court, the thing that
singles Pfizer out from other defendants in civil conspiracy
cases and entitles it to immediate appellate review is that its
First Amendment rights will be chilled during the course of this
litigation if its innocence is not immediately established. Two
sources of such a chill are identified. The first is the fact
that continued participation in the SBA pendente lite may be
admissible in evidence at trial in support of the plaintiffs'
conspiracy theory. The second is "the extraordinary size and
complexity of this class action" and the attendant litigation
burden that denial of immediate review will place on Pfizer.
Neither factor, however, serves to distinguish this case from
most other conspiracy cases.
In any conspiracy case in which the alleged
conspirators are still capable of associating with one another,
they face the prospect that continued association pendente lite
may be admissible in evidence at trial in support of the
plaintiffs' theory of recovery. Yet this has never been regarded
as an intolerable burden on the First Amendment rights of alleged
co-conspirators. Contrary to the court's suggestion, I see no
similarity at all between the chill resulting from the prospect
of a contempt citation for violating a prior restraint and the
chill occasioned by a prospect that everyone contemplating a new
social or business association necessarily faces -- i.e., the
prospect that if a third party perceives the new association as
having an illegal aim, he or she may be sued and his or her
associational activities may be introduced in evidence in support
of a claim that he or she is liable for the activities of the
association.
In each of the cases cited by the majority, a court, by
threatening a contempt citation, had directly targeted and
threatened to punish activity that might include expression
protected by the First Amendment. The resulting chill has long
been held to be an intolerable burden on First Amendment
interests. Pfizer does not face contempt, however, and no court
or other agent of the state has targeted or threatened to punish
the exercise of its First Amendment rights. Pfizer faces only
the possibility that evidence of any continuing participation in
the SBA may be admitted in evidence at trial. This is the
incidental and unavoidable consequence of the fact that
Pennsylvania embraces the traditional concepts of the law of
civil conspiracy. For at least as long as prior restraints have
been condemned by the Supreme Court, the law of conspiracy and
its necessary effects have been found compatible with the First
Amendment.1
1
. It is well established doctrinally that direct "gag order"
type restrictions -- restrictions which target the protected
activity directly -- receive heightened First Amendment scrutiny,
while restrictions which only have an incidental, unintended,
effect on the protected activity rarely raise First Amendment
concerns. See, e.g., Arcara v. Cloud Books, Inc., 478 U.S. 697
(1986) (closing a book store because of prostitution on the
premises was constitutionally permitted despite the incidental
effect on a First Amendment-protected activity).
If the burden of litigation can ever justify immediate
appellate review where none would otherwise exist, this is not a
situation in which it does. While this case has been going on
for a long while, it is currently scheduled for trial in less
than a year. Moreover, immediate appellate review, whatever its
outcome, would not spare Pfizer the moderate litigation burden it
faces. The plaintiffs have other claims against Pfizer and it
would be required to stay and defend to judgment even if its
position on the conspiracy claim were immediately vindicated.2
I would deny the petition.
(..continued)
2
. The majority also asserts that "requiring Pfizer to stand
trial for civil conspiracy and concert of action predicated
solely on its exercise of its First Amendment freedoms could
generally chill the exercise of freedom of association" of
others. Slip Op. at 28 (emphasis added). The Supreme Court has
consistently rejected these "general" chill arguments. See
University of Pennsylvania v. E.E.O.C., 493 U.S. 182 (1990)
(rejecting the University of Pennsylvania's claim that a general
chilling effect warranted a First Amendment privilege for peer
review materials); Branzburg v. Hayes, 408 U.S. 665 (1972)
(rejecting reporters' claims to a privilege against revealing the
identities of their confidential sources because the claimed
chilling effect on speech was incidental and speculative).