                                                                                                                           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Precedential or Non-Precedential: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).
