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RICHARDSON-MERRELL INC. v. KOLLER

decided: June 17, 1985.

RICHARDSON-MERRELL INC
v.
KOLLER, AN INFANT, BY AND THROUGH KOLLER ET UX., HER NATURAL GUARDIANS, ET AL.



CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT.

O'connor, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, White, Marshall, Blackmun, and Rehnquist, JJ., joined. Brennan, J., filed a concurring opinion, post, p. 441. Stevens, J., filed a dissenting opinion, post, p. 442. Powell, J., took no part in the decision of the case.

Author: O'connor

[ 472 U.S. Page 425]

 JUSTICE O'CONNOR delivered the opinion of the Court.

Last Term, in Flanagan v. United States, 465 U.S. 259 (1984), the Court unanimously held that pretrial orders disqualifying counsel in criminal cases are not subject to immediate

[ 472 U.S. Page 426]

     appeal under 28 U. S. C. § 1291. In this case, the Court of Appeals for the District of Columbia Circuit held that § 1291 confers jurisdiction over interlocutory appeals of orders disqualifying counsel in a civil case. 237 U. S. App. D.C. 333, 737 F.2d 1038 (1984). Because we conclude that orders disqualifying counsel in a civil case are not collateral orders subject to immediate appeal, we reverse.

I

Respondent Anne Koller (hereafter respondent) was born without normal arms or legs in a District of Columbia hospital in 1979. She filed suit in the United States District Court for the District of Columbia, alleging that petitioner Richardson-Merrell, Inc., is liable for her birth defects. The complaint alleged that respondent's mother, Cynthia Koller, had taken the antinausea drug Bendectin during the early stages of her pregnancy, and that the drug had caused Anne Koller's injuries. Petitioner is the manufacturer of Bendectin.

Respondent was initially represented by Cohen & Kokus, a Miami law firm, and by local counsel in Washington. As discovery progressed into 1981, however, a Los Angeles law firm, Butler, Jefferson, Dan & Allis, took the lead in trial preparation. James G. Butler entered an appearance pro hac vice for respondent on January 26, 1981; his partner Nicholas Allis was admitted pro hac vice on October 19, 1982. As the case neared trial in early 1983, respondent's counsel of record included at least eight lawyers from the Cohen firm, the Butler firm, and two Washington firms.

On December 22, 1982, Nicholas Allis' secretary, Krystyna Janowski, twice called the offices of Davis, Polk & Wardwell, Richardson-Merrell's attorneys. Janowski left messages indicating that Koller's suit was fraudulent and that Cynthia Koller had not taken Bendectin during the crucial early weeks of her pregnancy. App. 19-20. Janowski subsequently regretted her actions, and on December 26 she told

[ 472 U.S. Page 427]

     a paralegal at her firm that investigators for Richardson-Merrell had been attempting to persuade her to sign a statement indicating that Koller's case was fraudulent.

The next day, Allis twice went to see Janowski, first at a hospital where the secretary was visiting her child, and later at the secretary's apartment. During the second visit, Allis was accompanied by a private investigator who surreptitiously taped the conversation on a concealed tape recorder. Allis presented Janowski a typed statement indicating that "[at] no time did I ever hear Cynthia Koller or anyone else say that Cynthia Koller did not take Bendectin." Id., at 26-27. Janowski signed the statement. The following day, December 28, 1982, Allis received a copy of a letter that Davis, Polk & Wardwell had sent to the District Court. The letter recounted Janowski's telephone calls, informed the court that petitioner had engaged independent counsel for Janowski, and requested a hearing. Id., at 21-22. Allis' firm responded with its own letter to the court. The letter recounted the story Janowski had told Allis. A copy of the statement obtained from Janowski was attached. Id., at 23-25. During subsequent discovery into the matter, Janowski recanted the signed statement.

While the District Court and counsel were struggling with these unusual revelations, they were also preparing for an imminent trial. A pretrial hearing was scheduled to commence on January 31, 1983, and trial was to commence immediately upon the conclusion of the hearing. On January 17, 1983, the trial judge issued a pretrial ruling excluding collateral evidence related to two children who had birth defects like those of the respondent. The court ruled that it would not "grant plaintiffs a license to submit the birth defects of children whose only demonstrable relationship to Anne Koller is that they have suffered birth defects that are superficially similar." Id., at 60-61. On January 28, 1983, James Butler submitted to the Food and Drug Administration a set of "Drug Experience Reports" prepared by his firm. The

[ 472 U.S. Page 428]

     reports described the birth defects of a number of children whose mothers had taken Bendectin, including the two children covered by the District Court's order of January 17. In an accompanying letter, Butler urged the FDA to take Bendectin off the market. Butler sent copies of the reports and his letter to a reporter for the Washington Post.

On January 31, 1983, the District Court ruled that it would not admit any "Drug Experience Reports" that were submitted to the FDA more than one year after the birth of the children involved. Id., at 84-91. The 14 reports Butler had submitted to the FDA fell within this category. The following day, a Washington Post reporter interviewed Butler at the attorney's invitation. Id., at 341. Butler discussed the Koller case and the materials he had sent to the FDA. On February 7, 1983, after the court had already called the February jury pool from which the Koller jury panel would likely be drawn, the Washington Post published a lengthy article discussing the Koller case and the Drug Experience Reports which the trial court had excluded from evidence.

In the wake of these events, the District Court postponed the trial and allowed further discovery concerning Janowski's allegations. In February 1983, petitioner moved to disqualify Butler, Allis, and their firm from the Koller case on the ground of their alleged misconduct. After a 4-day evidentiary hearing on the issue of whether respondent's law firm had improperly obtained Janowski's statement, the District Judge issued an order requiring Butler and Allis to show cause why they and their firm should not be disqualified. The show cause order identified two "alleged incidents of misconduct" as possible grounds for disqualification: Butler's release of information to the Washington Post in an effort to "prejudice the jury" and to "bring inadmissible evidence before the jury pool," and Allis' preparing and obtaining a statement from Janowski "without regard for the truth" of the statement in an effort to protect his firm's financial interest and to thwart an investigation. Id., at 246-248.

[ 472 U.S. Page 429]

     Butler and Allis opposed disqualification and defended their conduct in testimony at a lengthy hearing. Nevertheless, on January 6, 1984, the District Judge found that Allis had attempted "to thwart a true investigation of a crucial witness" and that Butler's release of information to the media "was calculated to prejudice the defendant's case and circumvent the Court's prior rulings." App. to Pet. for Cert. 77a-78a. Noting that respondent's other counsel of record could provide competent representation, the court revoked the pro hac vice admissions of Butler and Allis and the appearance of their law firm. Id., at 80a.

Respondent appealed the disqualification to the Court of Appeals for the District of Columbia Circuit, which stayed all proceedings in the trial court pending the outcome of the appeal.*fn1 App. 339. The Court of Appeals subsequently held that it had jurisdiction to entertain the appeal pursuant to 28 U. S. C. § 1291. On the merits, the panel held that the District Court's disqualification order was invalid and that the appearances of Allis, Butler, and their firm should be reinstated. 237 U. S. App. D.C. 333, 737 F.2d 1038 (1984). We granted certiorari to review the Court of Appeals' jurisdictional ruling as well as its decision on the merits of the disqualification. 469 U.S. 915 (1984).

II

Title 28 U. S. C. § 1291 grants the courts of appeals jurisdiction of appeals from all "final decisions of the district courts," except where a direct appeal lies to this Court. The statutory requirement of a "final decision" means that "a party must ordinarily raise all claims of error in a single

[ 472 U.S. Page 430]

     appeal following final judgment on the merits." Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374 (1981). As the Court noted in Firestone, the final judgment rule promotes efficient judicial administration while at the same time emphasizing the deference appellate courts owe to the district judge's decisions on the many questions of law and fact that arise before judgment. Ibid.; Flanagan v. United States, 465 U.S., at 263-264. Immediate review of every trial court ruling, while permitting more prompt correction of erroneous decisions, would impose unreasonable disruption, delay, and expense. It would also undermine the ability of district judges to supervise litigation. In § 1291 Congress has expressed a preference that some erroneous trial court rulings go uncorrected until the appeal of a final judgment, rather than having litigation punctuated by "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 (1982).

An order disqualifying counsel in a civil case is not a final judgment on the merits of the litigation. There has been no trial or final judgment in this case, and indeed the stay imposed by the Court of Appeals assures that there can be none pending the outcome of these interlocutory proceedings. Section 1291 accordingly provides jurisdiction for this appeal only if orders disqualifying counsel in civil cases fall within the "collateral order" exception to the final judgment rule. In Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546 (1949), the Court recognized an exception to the final judgment rule for a "small class" of prejudgment orders which "finally determine claims of right separable from, and collateral to, rights asserted in the action, [and are] too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated."

The collateral order doctrine is a "narrow exception," Firestone, supra, at 374, whose reach ...


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