UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
August 12, 1996
ROBERT T. HULMES, Plaintiff,
HONDA MOTOR COMPANY, LTD., HONDA RESEARCH AND DEVELOPMENT GROUP, LTD., HONDA R & D NORTH AMERICA, INC., and AMERICAN HONDA MOTOR COMPANY, INC., Defendants. and HONDA MOTOR COMPANY, LTD., et al., Third Party Plaintiffs, vs. NICHOLAS J. HULMES, Third Party Defendant. SHERRY HULMES, Plaintiff, vs. HONDA MOTOR COMPANY, LTD., et al., Defendants. and HONDA MOTOR COMPANY, LTD., et al., Third Party Plaintiffs, vs. NICHOLAS J. HULMES, Third Party Defendant.
The opinion of the court was delivered by: ORLOFSKY
ORLOFSKY, District Judge:
Plaintiff, Robert T. Hulmes ("Hulmes," or the "plaintiff"), filed this product liability action against defendants, Honda Motor Company, Ltd., Honda Research and Development Group, Ltd., Honda R & D North America, Inc., and American Honda Motor Company, Inc. (collectively referred to as "Honda"). Plaintiff has filed a motion requesting certification under 28 U.S.C. § 1292(b) of this court's Order, filed on July 22, 1996 (the "Order"), denying plaintiff's motion in limine seeking to bar evidence of Hulmes's alcohol consumption immediately prior to the tragic accident which gives rise to this case. Plaintiff has also applied to this court for a stay under § 1292(b). Because this court is not of the opinion that an interlocutory appeal of the Order in question is appropriate, certification and a stay will both be denied.
I. Interlocutory Appeal Under Section 1292(b)
Section 1292(b) provides for immediate appeal of interlocutory decisions of the district court under the following circumstances:
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 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. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order: Provided, however, That application for an appeal hereunder shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order.
28 U.S.C. § 1292(b).
Interlocutory appeal under § 1292(b) is "used sparingly in exceptional" cases. 16 Charles A. Wright, et al., Federal Practice and Procedure, § 3929, at 134 (1977). An appeal under this section is an exception to the important policy of avoiding "piecemeal appellate review of trial court decisions which do not terminate the litigation." United States v. Hollywood Motor Car Co., 458 U.S. 263, 265, 73 L. Ed. 2d 754, 102 S. Ct. 3081 (1982).
In order to merit interlocutory review, a movant must point to: (1) a controlling question of law, (2) about which there is substantial ground for difference of opinion, the immediate resolution of which by the appeals court will (3) materially advance the ultimate termination of the litigation. In evaluating these factors, "the court must remember that . . . [a] motion should not be granted merely because a party disagrees with the ruling of the district judge." Max Daetwyler Corp. v. Meyer, 575 F. Supp. 280, 282 (E.D. Pa. 1983); see also United States v. Grand Trunk Western R.R., 95 F.R.D. 463, 471 (W.D. Mich. 1981) (denying certification because the moving party "merely questions the correctness" of the court's ruling).
A question is "controlling" if its incorrect disposition would require reversal of the final judgment. Katz v. Carte Blanche Corp., 496 F.2d 747, 755 (3d Cir. 1974). It is clear that this court's Order, if held to be error on plaintiff's appeal from an adverse verdict, would probably require a new trial. Nevertheless, a "controlling" question under § 1292(b) must also be a question "of law," and it must be a question about which there is "substantial ground for difference of opinion."
A party's disagreement with the district court's ruling does not constitute a "substantial ground for difference of opinion" within the meaning of § 1292(b). Rather, the difference of opinion must arise out of genuine doubt as to the correct legal standard. Indeed, one court in this Circuit refused to certify a previously undecided issue of law because it found the statutory language to be clear, even in the face of a squarely contradictory ruling on the same issue from another district court. See Singh v. Daimler-Benz, AG, 800 F. Supp. 260 (E.D. Pa. 1992) (holding that the amendment to the diversity jurisdiction statute which defined a permanent resident alien as a citizen for diversity purposes gave the federal court subject matter jurisdiction over a case brought by a permanent resident alien against a nonresident alien).
Furthermore, Judge Newcomer explained that an interlocutory appeal in Singh would only materially advance the ultimate termination of the litigation "if the Third Circuit concludes that this court does not have jurisdiction over this case, [but] if the Third Circuit finds that this court does in fact have jurisdiction, the litigation will not be advanced, but will instead will be considerably delayed." Id. at 263. Judge Newcomer was prescient in focusing on the risk of unnecessary delay. On appeal from the final judgment in Singh, the Third Circuit affirmed the district court, holding that the diversity jurisdiction statute, as amended, gives federal courts subject matter jurisdiction over cases brought by permanent resident aliens against alien defendants. Singh v. Daimler-Benz, AG, 9 F.3d 303 (3d Cir. 1993).
A. A Controlling Question of Law
It is perhaps an all too common failing among attorneys that, under the guise of zealously discharging their professional duties to their clients, they claim the prerogative of Humpty-Dumpty, who said: "When I use a word, . . . it means just what I choose it to mean -- neither more nor less." Lewis Carroll, Through the Looking-Glass and What Alice Found There 163 (Norton ed. 1971). Plaintiff's counsel, in this instance, however, has surpassed Humpty-Dumpty, because for plaintiff's counsel, when the court uses a word, it means just what plaintiff's counsel chooses it to mean, and nothing else.
In an attempt to obtain immediate appellate review of this court's Order, plaintiff's counsel has manufactured a "controlling question of law" out of whole cloth. Plaintiff's true purpose is transparently evident in the manner in which counsel has phrased what he contends to be the "controlling question of law" in this case as to which there is "substantial ground for difference of opinion." Plaintiff's counsel asks this court to certify the following question:
Whether the Court in this diversity case erred by failing to apply either the holding of the "leading" New Jersey appellate decision, Gustavson, which requires the use of an "unfitness to drive" test in determining the admissibility of alcohol evidence, and the holding of Rovegno, which expressly mandated the use of a state's "unfitness to drive" test in diversity cases; and by instead adopting a relaxed standard based on Rule 403, Fed. R. Evid., through which the Court admitted evidence of plaintiff's alcohol use based solely on defendant's expert testimony of .10% or .11% BAC.
Plaintiff's Notice of Motion at 2-3 (citations omitted). The obvious problem with this statement of the question to be certified is that, in reaching its decision, this court applied New Jersey's "unfitness to drive" standard, as articulated in Gustavson v. Gaynor, 206 N.J. Super. 540, 503 A.2d 340 (App. Div. 1985), certif. denied, 103 N.J. 476 (1986), and, thereby, fully complied with the Third Circuit's mandate in Rovegno v. Geppert Bros., Inc., 677 F.2d 327, 329 (1982).
Plaintiff's suggestion co the contrary is wholly unsupported by this court's Opinion of July 22, 1996, which described and relied upon the holdings of Gustavson; Guzzi v. Clarke, 252 N.J. Super. 361, 599 A.2d 956 (L. Div. 1991); Clement v. Consolidated Rail Corp., 130 F.R.D. 530 (Wolfson, M.J.), aff'd, 1990 U.S. Dist. LEXIS 4598, NO. CIV. 88-3793, 1990 WL 49978 (D.N.J. April 17, 1990) (Fisher, J.); and Straley v. United States, 887 F. Supp. 728, 732-39 (D.N.J. 1995). Indeed, Straley is the most recent published discussion of New Jersey's "unfitness to drive" rule. Slip Opinion filed July 22, 1996 ("Slip Op."), at 16-22. This court agreed with Judge Debevoise "that the Third Circuit meant what it said in Rovegno, and that, 'on the question of alcohol consumption, [Rovegno] requires the application of state law rules of admissibility.'" Id. at 12 (quoting Straley, 887 F. Supp. at 737).
This court cited, as persuasive authority, one other state appellate case applying a similar "unfitness to drive" standard. Cuellar v. Hout, 168 Ill. App. 3d 416, 522 N.E.2d 322, 118 Ill. Dec. 867 (Ill. Ct. App.), appeal denied, 530 N.E.2d 242 (Ill. 1988). Slip Op. at 23, 28. This court also discussed, without relying upon them, other cases decided within this Circuit. Smith v. Deere & Co., 1989 U.S. Dist. LEXIS 2678, CIV. A. No. 87-7998, 1989 WL 24903 (E.D. Pa. March 17, 1989); Kempe v. Dometic Corp., 866 F. Supp. 817 (D. Del. 1994). Slip Op. at 25-26. Finally, having applied New Jersey's "unfitness to drive" standard to the facts of this case, this court concluded in a footnote: "Although I reach this conclusion by applying New Jersey's evidentiary law in accordance with Rovegno, I would reach the same result were I to apply Fed. R. Evid. 403." Slip Op. at 30, n.8.
It is fair to say that this court, in its Opinion, criticized the Third Circuit's decision in Rovegno, as have other Circuits and commentators. See Slip Op. at 9-12. It cannot be said fairly that this court did not follow Rovegno. This, however, is precisely what plaintiff contends. Indeed, Plaintiff has asked this court to certify for interlocutory appeal a question that it did not decide.
Plaintiff bases his contention that this court applied Fed R. Evid. 403, instead of New Jersey law, on the following reference: "while Rovegno instructs me to apply New Jersey law to decide this issue, I may also look to the decisions of federal courts applying Rule 403 in balancing the probative value of evidence of alcohol consumption against the potential prejudicial effect of such evidence." Slip Op. at 13-14. This conclusion was not suggested, as plaintiff argues, by the Third Circuit's observation that "in interpreting [Pennsylvania's 'unfitness to drive' rule] we may draw on our own decisions dealing with review of rule 403 exercises," but rather by the Third Circuit's recognition, in the previous sentence, that Pennsylvania law "implicitly requires the same discretionary weighing required by Rule 403." Rovegno, 677 F.2d at 329. This court merely noted, therefore, that New Jersey "explicitly" requires the same kind of balancing, insofar as it has adopted the language of the Federal Rules of Evidence in N.J. R. Evid. 403. See Slip Op. at 13. This was nothing more than an observation about the similarity in the type of discretionary balancing required by the federal rules and by state law. It was demonstrably not a choice by this court to apply the federal rule instead of New Jersey decisional law. It is one thing to note the similarity of the balancing test under either the state or federal rules, it is quite another thing to reject the state case law that determines the outcome of that test. In context, it is clear that this court applied New Jersey law.
Plaintiff's counsel does not, because he cannot, point to any case relied upon by this court in its Opinion applying Fed. R. Evid. 403 instead of the relevant state's "unfitness to drive" test. For example, in discussing the Rovegno decision, and particularly that decision's reception outside the Third Circuit, this court cited McInnis v. A.M.F., Inc., 765 F.2d 240 (1st Cir. 1985). However, this court nowhere relied upon McInnis in deciding the issue of the admissibility of the evidence of plaintiff's alcohol consumption in this case.
B. Substantial Ground for Difference of Opinion
Plaintiff's statement of the "controlling question of law" is disingenuous. Moreover, there is, in this case, no "substantial ground for difference of opinion" as to the applicable law. Plaintiff is in complete agreement with this court that Rovegno and Gustavson are controlling. In light of this agreement, it is clear that plaintiff's request for certification under § 1292(b) reflects nothing more than his disagreement with this court's application of the governing law to the relevant facts of this case. Section 1292(b) was not designed to secure appellate review of "factual matters" or of the application of the acknowledged law to the facts of a particular case, matters which are within the sound discretion of the trial court. Link v. Mercedes-Benz, 550 F.2d 860, 863 (3d Cir. 1977); see also Fechter v. Connecticut General Life Ins. Co., 800 F. Supp. 178, 181 (E.D. Pa. 1991).
In deciding the question of the admissibility of evidence of plaintiff's alcohol consumption in this case, this court faced the task of applying a New Jersey evidentiary rule, which has only been discussed by one New Jersey appellate court and one state trial court,
to a complex factual scenario. This alone, however, does not justify interlocutory appeal. I concur with those courts which have found that § 1292(b) "is not intended as a vehicle to provide early review of difficult rulings in hard cases." Abortion Rights Mobilization, Inc. v. Regan, 552 F. Supp. 364, 366 (S.D.N.Y. 1982).
At least one court has held that "it is improper to certify a question of state law to the United States Court of Appeals for interlocutory review." Cummins v. EG & G Sealol, Inc., (D.R.I. 1988). The Cummins court noted the following dilemma, which is implicit in the certification of state law questions under § 1292(b):
If, on the other hand, this Court were to grant § 1292(b) certification, the [Circuit Court of Appeals] would find itself in no better position to make a determination concerning state law than this Court now finds itself. In fact, it is quite likely that the Court of Appeals, should it accept the interlocutory appeal, would feel compelled to itself certify the state law issue to the Rhode Island Supreme Court. The delay that would be caused by such a circuitous certification route, of an issue that may become moot, would be inefficient for the courts involved and unfair to the litigants.
Id. In reaching this conclusion, the Cummins court reflected on the history of Perkins v. F.I.E. Corp., 762 F.2d 1250 (5th Cir. 1985), in which the district court certified questions of Louisiana state law under § 1292(b) which the Fifth Circuit, in turn, certified to the Louisiana Supreme Court, which declined to accept certification. As the Cummins court pointed out, "in Perkins, after yet more delay, the Fifth Circuit was compelled to decide the state law issue anyway. Had the Fifth Circuit held that a cause of action did exist, remand to the district court would have been necessary with the possibility of another appeal regarding other issues after a final judgment." Cummins, 697 F. Supp. at 71.
The Cummins court decided to reserve all state law questions for certification to the Rhode Island Supreme Court after trial. Alas, this court is without that option, as New Jersey has no certification procedure. The absence of such a procedure guarantees that, were this question to be certified under § 1292(b), the Third Circuit would be forced to predict whether this court's prediction of the New Jersey Supreme Court's probable ruling, if faced with the facts of this case, was correct.
I respectfully suggest that the Third Circuit is in no better position to make such a prediction than is this court.
C. Materially Advance the Ultimate Termination of the Litigation.
Finally, plaintiff has failed to persuade this court that immediate appeal will "materially advance the ultimate termination of the litigation." Katz v. Carte Blanche Corp., 496 F.2d 747 (3d Cir. 1974), is a good example of how certification can "materially advance" the litigation. In Katz, the district court certified a class of approximately 800,000 Carte Blanche cardholders pursuant to Fed. R. Civ. P. 23(b)(3), and simultaneously certified its order under § 1292(b). Carte Blanche, which opposed the class certification, prevailed on interlocutory appeal. As a result of the Third Circuit's ruling on interlocutory appeal, the case could be tried in the district court by a single plaintiff, rather than as a class action, with the attendant delays caused by the notice provisions and the close judicial scrutiny that is mandated by Fed. R. Civ. P. 23.
Thus, the character of the underlying litigation in Katz, and the time that it would take to pursue it, were significantly altered by the Third Circuit's decision. On the other hand, had the Third Circuit affirmed the class certification on interlocutory appeal, the underlying litigation would not have been excessively delayed, principally because the class certification question arose early in the procedural history of the case. In Katz, therefore, from the point of view of the district court, there was much to gain and little to lose by granting leave to take an interlocutory appeal.
By contrast, this action arises out of an accident which took place on July 28, 1991. This case has been proceeding in this court since 1993. Discovery has finally been concluded. Trial in this matter is scheduled to commence on September 16, 1996. If this question were certified, and a stay granted, under § 1292(b), trial would be postponed for an indefinite period. Ultimately, of course there would be a trial in this matter, and that trial would be of approximately the same duration as it would have been had no interlocutory appeal been taken.
In view of all these factors, it is clear that interlocutory appeal at this time will not materially advance the litigation, but rather, will result in further delay. At oral argument, plaintiff's counsel noted, in passing, that if his proposed question were certified for interlocutory appeal and this court were affirmed by the Third Circuit, then plaintiff would be proven wrong on the substantive New Jersey law. But, as plaintiff's counsel failed to acknowledge, this scenario would also mean that the trial in this matter would be needlessly delayed while the Third Circuit considered this question of state law. "Delay is a particularly strong ground for denying appeal if certification is sought from a ruling made shortly before trial." Baranski v. Serhant, 602 F. Supp. 33, 36 (N.D. Ill. 1985). See also Singh, 800 F. Supp. at 263.
In the final analysis, plaintiff's motion for certification fails because counsel has taken out of context, and distorted the clear language of this court's Opinion.
As Judge Learned Hand once observed:
Words are not pebbles in alien juxtaposition; they have only a communal existence; and not only does the meaning of each interpenetrate the other, but all in their aggregate take their purport from the setting in which they are used . . . .
NLRB v. Federbush Co., 121 F.2d 954, 957 (2d Cir. 1941). Quod erat demonstrandum.
Because plaintiff has failed to meet the requirements of § 1292(b), his request for interlocutory appeal will be denied. Accordingly, there is no need to entertain plaintiff's application for a stay of proceedings in this action. The Court will enter an appropriate order.
STEPHEN M. ORLOFSKY
United States District Judge
Dated: August 12, 1996
This matter having come before the Court on August 9, 1996, on plaintiff's motion to certify an interlocutory appeal from this Court's Order filed on July 22, 1996, pursuant to 28 U.S.C. § 1292(b), Lewis M. Levin, Esq., and William Murphy, Esq., of Lewis M. Levin & Associates, appearing on behalf of the plaintiff, Robert T. Hulmes, and Brian C. Dareff, Esq., of Marshall, Dennehy, Warner, Coleman & Goggin, appearing on behalf of the defendants, Honda Motor Company, Ltd., Honda Research and Development Group, Ltd., Honda R & D North America, Inc., and American Honda Motor Company, Inc.; and,
The Court having considered the briefs filed in support of and in opposition to this motion, as well as the oral argument of counsel, for the reasons set forth in this Court's OPINION, filed concurrently with this ORDER;
It is on this 12th day of August, 1996:
ORDERED that plaintiff's request for expedited consideration of his motion for § 1292(b) certification is GRANTED; and it is further
ORDERED that plaintiffs' motion to certify an interlocutory appeal of this Court's Order filed July 22, 1996, pursuant to 28 U.S.C. § 1292(b) is DENIED; and, it is further
ORDERED that plaintiff's request for a stay of the proceedings in this case pursuant to 28 U.S.C. § 1292(b) is DENIED.
STEPHEN M. ORLOFSKY
United States District Judge