October 19, 1993  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT

                                          

No.  93-1914

                              IN RE:

                PETER FISHER &amp; BALFOUR HOLDINGS, INC.,
                           Petitioner.

                                           

                           ERRATA SHEET

     This opinion  of this  court issued on  October 12,  1993 is
amended as follows:

     On  page 4, not  2, fifteenth  line, replace  "Trainor" with
Fisher".

     On page 6, eighth line  of the first full paragraph, replace
"circumstances which"  with "circumstances,".

October 12, 1993      [NOT FOR PUBLICATION]

                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT
                                           

No. 93-1914 

                              IN RE:

              PETER FISHER &amp; BALFOUR HOLDING, INC.,
                           Petitioner.

                                           

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

           [Hon. Joseph L. Tauro, U.S. District Judge]
                                                     

                                           

                              Before

                       Breyer, Chief Judge,
                                          
               Torruella and Selya, Circuit Judges.
                                                  

                                           

  Evan Slavitt, Hinckley, Allen  &amp; Snyder, James B. Hicks, Kathy  A.
                                                                    
Jorrie and Andrews &amp;  Kurth L.L.P., on Petitions for Writ of Mandamus,
                                
for petitioners.

                                           

                                           

       Per  Curiam.    Petitioners  Peter  Fisher  and  Balfour
                  

  Holding, Inc. [hereinafter collectively "Fisher"] seek a writ

  of mandamus directed to the United States District Court  for

  the District of  Massachusetts.  This petition  arises out of

  the district  court's order  declaring a  mistrial after  the

  parties to the action could  not agree on the implications of

  the jury's answer to questions submitted to  them pursuant to

  Fed.R.Civ.P.   49(a).     The  court   found   that  in   the

  circumstances of the case, "justice w[ould] best be served by

  retracing what, in the context of this litigation, ha[d] been

  a relatively small step."

  Background
            

       The matter below has its  source in two actions, both of

  which  relate to a multi-party  venture aimed at developing a

  human  blood substitute.   We  summarize  the facts  briefly.

  Biopure Corporation manufactures Hemopure, a potential  human

  blood substitute.   In the  late  1980s, William  Trainor and

  Peter  Fisher  discussed   entering  into  a   joint  venture

  agreement  to provide  financial  assistance  to  Biopure  in

  exchange for  certain rights  in Hemopure  and other  Biopure

  products.  Fisher believed that an agreement had been entered

  into.  However, in 1990, Biopure and a corporation controlled

  by Trainor, Bio-Vita,  Ltd., entered into an  agreement which

  did  not  include  Fisher.    Believing  himself   wrongfully

  excluded  from the  deal, Fisher  brought  an action  against

  Biopure and Trainor [the "Fisher Action"].  After Trainor had

  invested over  one million  dollars in  the Biopure  project,

  Biopure rescinded  the 1990  agreements on  the grounds  that

  Trainor  had  made  misrepresentations  and  failed  to  meet

  certain obligations.   Trainor then commenced his  own action

  against Biopure [the "Bio-Vita Action"].

       After  more than  two years  of  pretrial discovery  and

  litigation, the Fisher Action was called to trial in November

  1992.  The court severed  the first count of Fisher's amended

  complaint  for immediate  trial.    This  count  alleged  the

  existence, and Trainor's  breach, of a binding  joint venture

  agreement.   The amended  complaint also  included counts  of

  misrepresentation, interference with contract or advantageous

  relationship, and  breach of fiduciary duty  against Trainor,

  and several counts against Biopure.

       At the  conclusion of the trial, and upon stipulation by

  the  parties, the following  questions were submitted  to the

  jury pursuant to Fed.R.Civ.P. 49(a):

          1.     Did [Fisher] and  [Trainor] enter into
          a binding  oral contract providing  that they
          would share  50/50 in  the expense  and gains
          involved in the Biopure project?

          If  your answer to  question one is  "No" you
          need  go no  further.    If  your  answer  to
          question one  is "Yes"  go on to  question[s]
          two and three.

          2.     Did [Fisher] breach the terms of [the]
          oral contract with [Trainor] by unjustifiably

                               -4-

          failing to contribute [his] agreed upon share
          of  the  purchase  price  and other  expenses
          incurred with respect to the Biopure project?

          3.     Did [Trainor] breach the  terms of his
          oral contract with  [Fisher] by unjustifiably
          denying    [Fisher]    an    opportunity   to
          participate on  a 50/50 basis in  the Biopure
          project?

The  jury answered "yes" to questions  one and three, and "no" to

question  two.1   The  court  then  recessed  the jury  with  the

intention of  bringing them  back later to  resolve the  issue of

damages.   

       The jury was never called back.  Instead on July 12, 1993,

the court declared a mistrial sua sponte.   It based its decision
                                        

on  the fact  that the  parties "could  not .  .  . agree  to the

implications of the  jury's special verdict"2 and  how to proceed

                      

  1.    Given these  responses  the jury  was  not required  to
  address a  fourth question  which asked, if  both Fisher  and
  Trainor had breached the contract, who breached it first.

  2.  According to the court's memorandum: 

       Trainor believes that Fisher's right to any relief-
       -i.e., a  share in  the judgment,  if any,  against
       Biopure--should be conditioned upon  his payment of
       those  expenses he  would  have been  obligated  to
       cover  had he not been excluded as a joint venturer
       from  the Biopure project.    Fisher argues that he
       is excused  from not  putting up  his share  of the
       expenses, in light of Trainor's breach of the joint
       venture agreement.  Fisher contends that  the trial
       of  the  remaining  counts in  the  Fisher  Action,
       including  the damages  phase  of the  first count,
       should await  the conclusion  of the  trial in  the
       Bio-Vita   Action.     Trainor   has  expressed   a
       willingness  to proceed  with the  Bio-Vita Action,
       but not  without the  financial support of  Fisher.
       Moreover,  the parties disagree as to who should be
       controlling counsel  with respect to  the remaining

                               -5-

against  Biopure   in  the   Bio-Vita  Action.     "Given   these

extraordinary  circumstances,  [the court]  decided  not  to hold

either party to the other's  interpretation of the verdict, or to

[its] own."

       Petitioners  contend that in  failing to enter  a verdict,

pursuant to Fed.R.Civ.P. 58(2), in accord with the jury's special

verdict, the court deprived them of their Seventh Amendment right

to  have judgment  entered on  the findings  of the  jury.   They

petition  this court  to issue a  writ to  the district  court to

enter judgment on the special verdict.

Uses of Mandamus
                

       The All Writs  Act, 28 U.S.C.    1651(a), empowers federal

courts to issue writs of mandamus where "necessary or appropriate

in aid  of their respective  jurisdictions."  See In  Re Pearson,
                                                                

990 F.2d 653, 656 (1st Cir. 1993).  Traditionally such writs have

been used "to  confine inferior courts to the  lawful exercise of

their  prescribed jurisdiction or  compel them to  exercise their

authority when  duty demands."  Id.; see also  Mallard v.  United
                                                                 

States Dist. Court  for Southern Dist., 490 U.S.  296, 308 (1989)
                                     

(quoting Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 26 (1943)).
                                       

Being drastic measures, such writs "must be used sparing and only

in  extraordinary situations."  Pearson, 990  F.2d at 653 (citing
                                       

cases).   Otherwise they  may undermine the  policies surrounding

                      

       counts.

                               -6-

the  congressional  judgment  that in  general  appellate  review

should be postponed until after  final judgment.  Allied Chemical
                                                                 

Corp. v. Daiflon, Inc., 449 U.S. 33,  35 (1980).  The decision on
                     

whether  to issue the writ is within the sound discretion of this

court.  Kerr v. United  States District Court for Northern Dist.,
                                                               

426 U.S. 394, 403 (1976).

       To  ensure that  the  writ  issue  only  in  extraordinary

circumstances, a  petitioner is  required to  show "some  special

risk of irreparable harm" and  a "clear entitlement to the relief

requested" before a  writ will be issued.3   In Re  Recticel Foam
                                                                 

Corp., 859 F.2d 1000, 1005 (1st Cir.  1988); Pearson, 990 F.2d at
                                                    

656.   To  satisfy  the  first  requirement, a  petitioner  "must

ordinarily demonstrate  that something  about the  order, or  its

circumstances  would make  an end-of-case  appeal ineffectual  or

leave legitimate  interests  unduly  at risk."      Id.  (quoting
                                                      

Recticel,  859  F.2d  at  1005-06).    To   satisfy  the  second,
        

petitioner  must "establish a  'clear and indisputable'  right to

the  requested  relief or,  in other  words, that  the challenged

order is  palpably erroneous."   Id. (quoting Banker Life  &amp; Cas.
                                                                 

Co. v. Holland,  346 U.S. 379, 384 (1953)  (quoting United States
                                                                 

v. Duell, 172 U.S. 576, 582 (1899))).
        

                      

  3.    Cases of great public import where advisory mandamus is
  appropriate are excepted  from these requirements. See  In Re
                                                               
  Recticel Foam Corp., 859 F.2d 1000, 1005 n.4 (1st Cir. 1988).
                    
  This is not such a case.

                               -7-

Discussion
          

       Petitioners  assert  that  the  court's failure  to  enter

judgment in accord with the  verdict in their favor deprived them

of their rights under the Seventh Amendment.  See Robles v. Exxon
                                                                 

Corp., 862  F.2d 1201,  1204 (5th Cir.),  cert. denied,  490 U.S.
                                                      

(1989)  ("rule 58(2)  and  the  seventh  amendment  command  that

judgment  be entered  on the  verdict if  the jury's  answers are

clear and  consistent, subject, of  course, to the  usual motions

under rules 50 and 59 for judgment notwithstanding the verdict or

a new trial"); Toucet v. Maritime  Overseas Corp., 991 F.2d 5,  8
                                                

(1st  Cir.  1993) ("[w]hen  a  special  verdict form  results  in

apparently  conflicting findings,  a court has  a duty  under the

Seventh Amendment  to harmonize  the answers  if at  all possible

under a  fair  reading").    Furthermore, they  assert  that  the

court's  declaration of a mistrial  because the parties could not

agree  on  the meaning  of  the  verdict  was  a clear  abuse  of

discretion.   See Freeman  v. Package  Machinery,  Co., 865  F.2d
                                                     

1331, 1333 (1st Cir. 1988)  (judge may set aside jury  verdict in

civil case "only if, 'it is quite clear that the jury has reached

a  seriously  erroneous  result.'") (quoting  Borras  v. Sea-Land
                                                                 

Services, Inc., 586  F.2d 881, 887 (1st  Cir. 1978)).  We  do not
             

address the merits of these contentions.

       As  we  have  said  above,  to  obtain  mandamus relief  a

petitioner must show both a  special risk of irreparable harm and
                         

a clear entitlement to the relief he seeks. The Supreme Court has

                               -8-

indicated that "[a] trial court's ordering of a new trial rarely,

if ever, will justify the issuance of a writ of mandamus" because

it is  likely to  meet neither of  these standards.  Daiflon, 449
                                                            

U.S.  at 36   First, since a  litigant may seek  review on direct

appeal after final judgment, it  cannot be said that the litigant

is without  other adequate means  of relief.  Id.   Second, in  a
                                                

matter  committed to  the discretion  of the  trial court,  it is

unlikely  that a  litigant can  demonstrate that  his right  to a

particular result is clear and indisputable.  Id.  
                                                

       Even  if this were  a rare instance  where a discretionary

order  by a  trial  court  was a  palpable  abuse of  discretion,

petitioners still have an adequate remedy through a direct appeal

after final  judgment. See   Navarro de Cosme v.  Hospital Pavia,
                                                                

922 F.2d 926, 929 (1st Cir. 1991) ("[i]n a civil case, the remedy

for  a wrongfully  declared mistrial  is  a second  trial").   An

erroneous declaration of  a mistrial--if the declaration  were in

fact  erroneous--is not an extraordinary circumstance.  Hence, it

does not merit the extraordinary  remedy of mandamus relief.  Nor

does the  fact that an  appeal after final judgment  will require

more  burdensome litigation, standing  alone, justify our  use of

the power of mandamus.  In Re Pearson, 990 F.2d at 661.
                                     

       Petitioners' request for a writ of mandamus is denied.
                                                            

                               -9-
