In re Agent Orange Product Liability Litigation

Full title: In re

Court: United States District Court, E.D. New York.

Date published: Apr 20, 1983

97 F.R.D. 541 (E.D.N.Y. 1983)

Opinion

97 F.R.D. 541 (E.D.N.Y. 1983) In re " AGENT ORANGE" PRODUCT LIABILITY LITIGATION. MDL No. 381. United States District Court, E.D. New York. April 20, 1983

         Defendants brought a motion seeking an order certifying for interlocutory appeal the court's ruling which deferred certification of plaintiff class and determination of appropriate notice to class until after trial of the government contract defense. The District Court, George C. Pratt, Circuit Judge, sitting by designation, held that defendants were not entitled to the order certifying the court's ruling for interlocutory appeal, since while there may have been substantial ground for difference of opinion concerning the issue of class certification, it did not involve a controlling question of law on which an immediate appeal could materially advance ultimate termination of the litigation, but rather appeal from the order would only have served to delay the proceedings.

         Motion denied.           PRETRIAL ORDER NO. 49

          GEORGE C. PRATT, Circuit Judge.^*

* Of the United States Court of Appeals for the Second Circuit, sitting by designation.

         By motion filed April 18, 1983, defendants seek an order certifying for interlocutory appeal pursuant to 28 U.S.C. § 1292(b) the court's ruling of April 6, 1983, which deferred certification of the plaintiff class and determination of appropriate notice to the class until after trial of the government contract defense, which will begin on June 27, 1983. The motion is denied.

         Section 1292(b) provides that

When a district judge * * * shall be of the opinion that [the] order involves a controlling question of law as to which there is substantial ground for a 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.

28 U.S.C. § 1292(b). While there may be substantial ground for difference of opinion concerning the issue of class certification, it does not involve a controlling question of law on which an immediate appeal may materially advance the ultimate termination of the litigation. Rather, appeal from the order deferring class certification and determination of notice for four months until after the trial of the affirmative defense would only serve to delay these lengthy proceedings still further.

         SO ORDERED.