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                             NONPRECEDENTIAL DISPOSITION
                               To be cited only in accordance with
                                       Fed. R. App. P. 32.1



                  United States Court of Appeals
                                For the Seventh Circuit
                                Chicago, Illinois 60604
                                Submitted May 30, 2014
                                 Decided June 4, 2014


                                         Before

                             WILLIAM J. BAUER, Circuit Judge

                             FRANK H. EASTERBROOK, Circuit Judge

                             JOHN DANIEL TINDER, Circuit Judge




    No. 14-2051                                               Petition for Writ of
                                                              Mandamus.
    IN RE:
        GLAXOSMITHKLINE LLC,
                                                              No. 12 C 6403
           Petitioner
                                                              James B. Zagel, Judge.




                                         Order

         Defendant petitions for a writ of mandamus in this tort suit, which arises
    under the diversity jurisdiction. Petitioner developed paroxetine hydrochloride,
    an antidepressant, which received the FDA’s approval and was marketed as
    Paxil. After patent protection ended, other manufacturers began to sell
    generic paroxetine hydrochloride. Stewart Dolin used one of these generic
    substitutes for Paxil and later committed suicide, allegedly as a consequence of
    the drug; his estate asks for damages from petitioner, even though petitioner did
    not make the drug that Dolin took. (Mutual Pharmaceutical Co. v. Bartlett, 133 S.
    Ct. 2466 (2013), makes it difficult if not impossible to hold the generic
    manufacturer liable.)
No. 14-2051                                                                   Page 2

    The district court denied petitioner’s motion for summary judgment, ruling
that the inventor and initial marketer of a drug can be liable for harms caused by
the sale of generic equivalents. The district judge then denied petitioner’s request
to certify the decision for an interlocutory appeal under 28 U.S.C. §1292(b).
Petitioner asks us to issue a writ of mandamus that would compel the district
court to grant its motion for summary judgment.

    Mandamus is appropriate to rectify a district court’s usurpation or grave
misuse of power, when an appeal from final judgment would be an inadequate
remedy. That standard has not been met. A district court does not abuse its
power by taking one view, rather than another, of a debatable legal issue. The
district court recognized that a majority of federal courts has ruled in favor of the
pioneer manufacturer, but others have ruled just as the district court did. The
Supreme Court has yet to resolve this conflict. While the issue escapes definitive
resolution, taking one position rather than another cannot be a usurpation of
power.

     What is more, the question can be resolved on appeal from a final judgment,
should petitioner lose in the district court. Petitioner expresses concern that it
will win on some other ground (perhaps a jury will conclude that the drug’s
warnings about suicide risk are adequate, that warning was unnecessary, or that
the drug did not cause Dolin’s death). The possibility that the “innovator
liability” issue will not matter in the end would be a poor reason to engage in
interlocutory review. Most cases potentially entail many subjects that turn out
not to matter; the process of litigation winnows issues. That is a major benefit of
the final-decision rule, not a reason to disregard it.

    The petition for a writ of mandamus is denied.
