In re "Agent Orange" Product Liability Litigation

97 F.R.D. 541, 36 Fed. R. Serv. 2d 903, 1983 U.S. Dist. LEXIS 17561

Opinion

PRETRIAL ORDER NO. 49

GEORGE C. PRATT,

* Circuit Judge.

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.

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