In Re Federal Skywalk Cases. In Re Melanie Hanson Johnson and Gerard Stanley Johnson, in Re Federal Skywalk Cases. In Re Jacqueline N. Rau

680 F.2d 1175, 34 Fed. R. Serv. 2d 176, 1982 U.S. App. LEXIS 18649

• Court: Court of Appeals for the Eighth Circuit
• Decided: June 7, 1982
• Docket: 82-1181, 82-1207
• Status: Published

Opinions

McMILLIAN, Circuit Judge.

This action challenges the validity of a mandatory class certification order rendered by the United States District Court¹ for the Western District of Missouri during the course of litigation arising out of the collapse of two skywalks at the Hyatt Regency Hotel in Kansas City, Missouri in July, 1981.² The class was certified on the issues of liability for compensatory and punitive damages and amount of punitive damages, and includes all business invitees at the hotel during the disaster.

Two objecting plaintiffs (objectors) now petition this court to vacate the order and disqualify the federal district judge asserting jurisdiction under 28 U.S.C. § 1292(a)(1), or alternatively, under mandamus.³ In response the class representative argues that the order is interlocutory thereby precluding appellate review. Alternatively, the class representative argues that the federal district judge did not abuse his discretion in certifying the class and further that the class is appropriate.⁴ For the reasons discussed below, we conclude that we do have jurisdiction under 28 U.S.C. § 1292(a)(1) and further that the order must be vacated because it violates the Anti-Injunction Act, 28 U.S.C. § 2283. We also conclude that 28 U.S.C. § 455(a) does not require the disqualification of the federal district judge.

On July 17, 1981, two skywalks in the central lobby of the Hyatt Regency Hotel in Kansas City, Missouri, collapsed killing 114 persons and injuring hundreds of others. Following the disaster numerous individual lawsuits were filed in both the Circuit Court for Jackson County, Missouri (state court), and the United States District Court for the Western District of Missouri (district court).⁵ The federal district court jurisdiction was based on 28 U.S.C. § 1332, diversity of citizenship.

The state court cases were consolidated and assigned to Judge Timothy O’Leary. The federal cases were also consolidated and assigned to Judge Scott O. Wright. Shortly after the first cases were filed, the state and district court consolidated their respective cases for discovery. Each court appointed a Plaintiffs’ Liaison Committee to aid in discovery and other matters. In addition, the two courts appointed a joint state-federal Plaintiffs’ Liaison Committee to aid in the consolidated discovery.⁶ Each court held pretrial conferences and issued pretrial orders concerning the scheduling of discovery.

Prior to the class certification, the Plaintiffs’ Liaison Committee accomplished substantial discovery and trial preparation on behalf of all plaintiffs. The accomplishments included nearly completing the interrogatory phase of discovery and serving requests for production upon the defendants. In addition, the committee collected approximately 300,000 documents pertaining to the litigation and had arranged for a document depository available to all plaintiffs’ counsel. The committee had also arranged for the testing of the skywalk materials by the National Bureau of Standards. Brief In re Melanie Hanson Johnson, Appendix I “Affidavit of Patrick McLarney.”

On October 27, 1981, Molly Riley, a district court plaintiff, filed a motion for class certification. The motion sought class certification under Fed.R.Civ.P. 23(b)(1)(B), or in the alternative under 23(b)(3), as to the issues of liability for compensatory and punitive damages and the amount of punitive damages.⁷ The basis for requesting class certification was Riley’s concern that there would be inadequate funds available to pay all claims for compensatory and punitive damages. Riley also moved that her counsel be appointed as lead counsel for the class.

Several federal and state court plaintiffs filed pleadings in opposition to Riley’s motion. The objecting plaintiffs challenged Riley’s and her attorney’s qualifications to represent the class. They also challenged the need for and desirability of class action treatment arguing that there was no evidence of insufficient funds to satisfy all claims. A hearing was held before Judge Wright on December 10, 1981.

Prior to issuing the class certification order now on appeal, Judge Wright became aware that Riley could not serve as class representative because she was not of diverse citizenship from all defendants. Judge Wright then reviewed the complaints on file and determined that plaintiffs Sto-ver, Johnson, Vrabel, Grigsby and Abernathy were diverse to all defendants.

Thereafter, Judge Wright placed two telephone calls to Robert Collins, Stover’s attorney, and inquired whether Stover would serve as class representative if a class was certified.⁸ Judge Wright also stated that if Stover would agree to be class representative he would appoint Collins as assistant class counsel to Riley’s attorney if a class was certified. Judge Wright and Collins agreed to speak again after Collins consulted with Stover. Collins thereupon called defense counsel and unsuccessfully attempted to settle Stover’s claim. Stover then agreed to be class representative.

On January 19, 1982, counsel for the objecting plaintiffs moved, pursuant to 28 U.S.C. § 455(a), to disqualify Judge Wright based on his communications with Collins.

On January 25, 1982, Judge Wright entered the order appealed from in which he (1) denied Riley’s motion for class certification because her citizenship was not diverse from all defendants, (2) certified a class action under Rule 23(b)(1)(A) on the issues of liability for compensatory and punitive damages, (3) certified a class action under Rule 23(b)(1)(B) on the issues of liability for punitive damages and the amount of punitive damages, (4) selected plaintiffs Stover, Vrabel, Grigsby and Abernathy as class representatives,⁹ (5) selected Riley’s counsel as lead counsel, and counsel for the class representatives as assistant class counsel, (6) denied the motion to disqualify himself under § 455(a), explaining that he called Collins as a matter of courtesy and had intended to call the lawyers for Johnson, Vrabel, Grigsby and Abernathy but did not do so because the motion to disqualify was filed, and further that he had not decided to certify the class until the order was drafted and entered, and (7) denied objectors’ request to certify an interlocutory appeal under 28 U.S.C. § 1292(b). In re Federal Sky-walk Cases, 93 F.R.D. 415 (W.D.Mo.1982).

In support of its order the district court found that the general prerequisites for class actions prescribed by Rule 23(a) were satisfied, id. at 420-22, and that the specific requirements of Rule 23(b)(1) were also satisfied. The court stressed that the “interests of all parties concerned” would best be served by “the avoidance of wasteful, repetitive litigation,” and that such litigation could be avoided by “trying the issues of liability for compensatory damages, liability for punitive damages and amount of punitive damages only once.” Id. at 423.

In support of the Rule 23(b)(1)(A) class the court found that individual suits on the issues of liability for compensatory and punitive damages would create a risk of inconsistent results. Id. at 424.

In support of the Rule 23(b)(1)(B) class the court relied on three considerations. First, the defendants held liable for punitive damages might lack the funds to pay the full amount of such damages. Id. at 424. Second, individual suits for punitive damages would create a risk of unfairness to the other claimants because “there is some uncertainty under Missouri law as to whether a single defendant can be liable for more than one award of punitive damages.” ¹⁰ Id. at 424. Third, the court noted that the prosecution of individual punitive damage actions could create an ethical problem for counsel representing more than one victim in that the counsel would be forced to decide which suit to bring first. Id. at 425.

On February 9, 1982, the objectors filed their notice of appeal and petition for mandamus.

Our initial inquiry must be whether the order is appealable. Recognizing that the order is interlocutory, we would nevertheless have appellate jurisdiction under 28 U.S.C. § 1292(a)(1) (1976)¹¹ if that order is injunctive in character. Therefore, resolution of this issue depends upon the nature of the order. The objectors argue that the order enjoins them from prosecuting their state court actions for punitive damages. In response the class argues that the order is not an injunction because it does not use injunction terminology and, more importantly, it does not enjoin the objectors from settling their claims. The class characterizes the order as follows:

[t]he motion concerns only whether the defendants can use individual punitive damage settlements as evidence to defeat or diminish the recovery of punitive damages in the classwide trial on that issue. The representative plaintiff and the class have never sought to enjoin any member of the class from entering into an individual settlement of any claim.

Brief on Behalf of the Representative Plaintiff and the Class at 4 (emphasis added). We do not agree with that characterization and conclude that we do have jurisdiction under 28 U.S.C. § 1292(a).

The determination of whether an order is an injunction depends upon the substantial effect of the order rather than its terminology. See Ettelson v. Metropolitan Life Insurance Co., 317 U.S. 188, 63 S.Ct. 163, 87 L.Ed. 176 (1942); In re Glenn W. Turner Enterprises Litigation, 521 F.2d 775 (3d Cir. 1975).

In the present case, contrary to the class’s assertion, the district court expressly prohibited class members from settling their punitive damage claims:

Legitimate claimants may negotiate and execute settlements with those defendants who have vociferously urged this court to allow the settlement process to continue. Those claimants who want to exact payment for allegedly punishable acts must forego the settlement process and await the trial of the punitive damage issues.

In re Federal Skywalk Cases, at 428 (emphasis added). In addition, the substantial effect of the order also enjoined the state plaintiffs from pursuing their pending state court actions on the issues of liability for compensatory and punitive damages and the amount of punitive damages.

At oral argument counsel for the class argued that 28 U.S.C. § 1292(a)(1) should not be construed to apply to class certification because the inevitable effect of a mandatory class is an injunction against state court actions on class issues. We conclude that the argument is not persuasive on the facts before us.

It is true that parties to a mandatory class are not free to initiate actions in other courts to litigate class certified issues. See Reynolds v. National Football League, 584 F.2d 280, 283 (8th Cir. 1978). However, in the present case the objectors had commenced their state court actions before the motion for class certification had been filed in district court. The state court cases had been filed, consolidated, and discovery had begun.¹² It is this injunction against pending state court actions that gives us jurisdiction under 28 U.S.C. § 1292(a). See In re W.F. Hurley, Inc., 553 F.2d 1096, 1101 (8th Cir. 1977); In re Glenn Turner Enterprises Litigation, 521 F.2d at 775.

Because we have jurisdiction over the appeal and because the injunction is interdependent with the remainder of the appealed order, we may review the entire order insofar as it has been appealed. See Deckert v. Independence Shares Corp., 311 U.S. 282, 287, 61 S.Ct. 229, 232, 85 L.Ed. 189 (1940) (jurisdiction reviewable); Adashunas v. Negley, 626 F.2d 600, 602 (7th Cir. 1980) (class issues reviewable); Emerson Electric Co. v. Black and Decker Manufacturing Co., 606 F.2d 234, 237 (8th Cir. 1979) (venue reviewable). Therefore, we need not decide whether the order would have been reviewable as a petition for mandamus.

Our conclusion that the order enjoins pending state proceedings necessitates an inquiry as to the propriety of that order under the Anti-Injunction Act, 28 U.S.C. § 2283. The Act provides that “[a] court of the United States may not grant an injunction to stay proceedings in a state court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgment.”

In Atlantic Coast Line R.R. v. Locomotive Engineers, 398 U.S. 281, 286-87, 90 S.Ct. 1739, 1742-43, 26 L.Ed.2d 234 (1970), the Supreme Court recognized that the Act imposes a flat and positive prohibition:

On its face the present Act is an absolute prohibition against enjoining state court proceedings, unless the injunction falls within one of three specifically defined exceptions. The respondents here have intimated that the Act only establishes a “principle of comity,” not a binding rule on the power of the federal courts. The argument implies that in certain circumstances a federal court may enjoin state court proceedings even if that action cannot be justified by any of the three exceptions. We cannot accept any such contention. In 1955 when this Court interpreted this statute, it stated: “This is not a statute conveying a broad general policy for appropriate ad hoc application. Legislative policy is here expressed in a clear-cut prohibition qualified only by specifically defined exceptions.” Amalgamated Clothing Workers v. Richman Bros., 348 U.S. 511, 515-516, [75 S.Ct. 452, 455, 99 L.Ed. 600] (1955).

Recently a plurality of the Court in Ven-do Co. v. Lektro-Vend Corp., 433 U.S. 623, 630-31, 97 S.Ct. 2881, 2887, 53 L.Ed.2d 1009 (1977), emphasized the continuing force of Atlantic Coast Line:

The origins and development of the present Act, and of the statutes which preceded it, have been amply described in our prior opinions and need not be restated here. The most recent of these opinions are Mitchum v. Foster, 407 U.S. 225, [92 S.Ct. 2151, 32 L.Ed.2d 705] (1972), and Atlantic Coast Line R. Co. v. Locomotive Engineers, 398 U.S. 281, [90 S.Ct. 1739, 26 L.Ed.2d 234] (1970). Suffice it to say that the Act is an absolute prohibition against any injunction of any state court proceedings, unless the injunction falls within one of the three specifically defined exceptions in the Act. The Act’s purpose is to forestall the inevitable friction between the state and federal courts that ensues from the injunction of state judicial proceedings by a federal court. Oklahoma Packing Co. v. Oklahoma Gas & Electric Co., 309 U.S. 4, 9, [60 S.Ct. 215, 218, 84 L.Ed. 447] (1940). Respondents’ principal contention is that, as the Court of Appeals held, § 16 of the Clayton Act, which authorizes a private action to redress violations of the antitrust laws, comes within the “expressly authorized” exception to § 2283.

We test this proposition mindful of our admonition that:

“[a]ny doubts as to the propriety of a federal injunction against state court proceedings should be resolved in favor of permitting the state courts to proceed in an orderly fashion to finally determine the controversy.” Atlantic Coast Line R. Co., supra, [398 U.S.] at 297, [90 S.Ct. 1739 at 1748].

This cautious approach is mandated by the “explicit wording of § 2283” and the “fundamental principle of a dual system of courts.” Ibid. We have no occasion to construe the section more broadly:

“[It is] clear beyond cavil that the prohibition is not to be whittled away by judicial improvisation.” Clothing Workers v. Richman Bros. Co., 348 U.S. 511, 514, [75 S.Ct. 452, 454, 99 L.Ed. 600] (1955).

433 U.S. at 630-31, 97 S.Ct. at 2887 ....

See also County of Imperial v. Munoz, 449 U.S. 54,101 S.Ct. 289, 66 L.Ed.2d 258 (1980) (reemphasizing absolute nature of the Act).

Therefore, if the injunction is to be upheld, it must be on the basis that the district court’s authority derives from one of the three exceptions. On appeal the class relies on the “necessary in aid of its jurisdiction” exception. In support it first draws an analogy between the order and a Rule 22 interpleader under which a federal court can enjoin claimants from prosecuting claims in state court. The class reasons that here, as in the interpleader situation, there is a limited fund and that the class action is necessary to protect all claimants. We disagree.

The analogy is based on the premise that the possibility of defendants being required to pay only one punitive damage award is comparable to the limited fund concept underlying federal interpleader. That premise is erroneous. “Federal interpleader jurisdiction depends on identifiable property or a limited fund or pecuniary obligation, and it is not proper to predicate jurisdiction on the mere potential to recover damages for pecuniary injury.” Murphy v. Travelers Insurance Co., 534 F.2d 1155,1159 (5th Cir. 1976), citing Wallach v. Cannon, 357 F.2d 557 (8th Cir. 1966).

In the present case the class has an uncertain claim for punitive damages against defendants who have not conceded liability. The claim does not qualify as a limited fund which is a jurisdictional prerequisite for federal interpleader. Without the limited fund there is no analogy to an interpleader and no reason to treat the class action as an interpleader for purposes of the Anti-Injunction Act.

The class proposes a second analogy between the order and several earlier ■ decisions which allowed an injunction when an insurance company brought a federal suit for a declaratory judgment that a particular policy was invalid and the beneficiary subsequently sues in state court to recover under the policy. We conclude that the analogy is not persuasive.

Initially we note that the most recent case cited by class was decided in 1940, long before the enactment of the current Anti-Injunction Act.¹³ We also note that even the commentator cited by the class acknowledges:

... it seems probable that a federal court would not be warranted in enjoining the prosecution of a pending state action [on the policy], where it is brought during the contestable period and there is an opportunity to set up the defense of fraud in the state court ....

1A Moore’s Federal Practice H 910.225 at 2621.

In addition, the cited cases are distinguishable on the basis that they involved situations in which identical parties were litigating mutually exclusive theories concerning their rights in the same policy in different forums. Such is not the case here. Furthermore, as conceded by the class, the cases involved injunctions against subsequent state actions. In contrast, the injunction in the present case was against pending state actions.

Next the class argues that allowing individual actions in state court will nullify the purpose of the class. The Supreme Court has narrowly interpreted the “necessary in aid of jurisdiction” exception, and a pending state suit must truly interfere with the federal court’s jurisdiction. As the objectors correctly point out, a plurality of the Supreme Court reaffirmed in Vendo Co. its earlier holdings that a simultaneous in per-sonam state action does not interfere with the jurisdiction of a federal court in a suit involving the same subject matter.

In Toueey v. New York Life Ins. Co., 314 U.S. [118], at 134-135, [62 S.Ct. 139, 144, 86 L.Ed. 100 (1945)], we acknowledged the existence of a historical exception to the Anti-Injunction Act in cases where the federal court has obtained jurisdiction over res, prior to the state-court action. Although the “necessary in aid of” exception to § 2283 may be fairly read as incorporating this historical in rem exception, see C. Wright, Federal Courts, § 47, p. 204 (3d ed. 1976), the federal and state actions here are simply in personam. The traditional notion is that in personam actions in federal and state court may proceed concurrently, without interference from either court, and there is no evidence that the exception to § 2283 was intended to alter this balance. We have never viewed parallel in personam actions as interfering with the jurisdiction of either court; as we stated in Kline v. Burke Construction Co., 260 U.S. 226, [43 S.Ct. 79, 67 L.Ed. 226] (1922):

“[A]n action brought to enforce [a personal liability] does not tend to impair or defeat the jurisdiction of the court in which a prior action for the same cause is pending. Each court is free to proceed in its own way and in its own time, without reference to the proceedings in the other court. Whenever a judgment is rendered in one of the courts and pleaded in the other, the effect of that judgment is to be determined by the application of the principles of res adjudicata . . . Id., at 230, [43 S.Ct. 79 at 81] (emphasis added).

433 U.S. at 641-42, 97 S.Ct. at 2892-93

In the present case the federal and state actions are in personam claims for compensatory and punitive damages. Therefore, based on the foregoing principles, we are compelled to hold that despite Judge Wright’s legitimate concern for the efficient management of mass tort litigation, the class certification order must be vacated. Mr. Justice Black’s concluding words in Atlantic Coast Line are particularly apt here:

This case is by no means an easy one. The arguments in support of the union’s contentions are not insubstantial. But whatever doubts we may have are strongly affected by the general prohibition of § 2283. Any doubts as to the propriety of a federal injunction against state court proceedings should be resolved in favor of permitting the state courts to proceed in an orderly fashion to finally determine the controversy. The explicit wording of § 2283 itself implies as much, and the fundamental principle of a dual system of courts leads inevitably to that conclusion.

398 U.S. at 296-97, 90 S.Ct. at 1747-48.

The foregoing ruling does not dispose of the entire appeal because the objectors also seek the disqualification of Judge Wright under 28 U.S.C. § 455(a), which provides that a judge “. . . shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” The objectors argue that Judge Wright’s ex parte communications with Collins raise reasonable questions as to whether Judge Wright is biased in favor of the obliging class members. We disagree.

28 U.S.C. § 455(a) requires a judge to disqualify himself if a reasonable person would have factual grounds to doubt the impartiality of the court. Blizard v. Frechette, 601 F.2d 1217, 1220 (1st Cir. 1979). The determination for the district judge to make is whether “his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). Once that determination has been made, our role on review is limited to deciding whether the district court’s evaluation of the claim of partiality or prejudice, amounted to an abuse of discretion. Blizard v. Frechette, 601- F.2d at 1221.

Initially we note that we do not condone Judge Wright’s communications with Collins. Once it became apparent that the named plaintiff could not serve as class representative, we think the better practice would have been for the district judge to have called counsel of all potential class representatives and held a hearing to determine whether any of them would serve as class representative in the event the district judge decided to certify a class. However, after a careful review of the entire record, we conclude that Judge Wright did not abuse his discretion in refusing to disqualify himself.

A claim of bias must be evaluated in light of .the full record, not simply in light of an isolated incident. See Walker v. Bishop, 408 F.2d 1378, 1382 (8th Cir. 1969). In the present case Judge Wright developed an extensive record before he made his decision to certify the class. By order dated November 17, 1981, Judge Wright directed the parties and invited all interested parties to submit briefs on any issues relevant to the certification of a class. On December 10, 1981, Judge Wright held a hearing on the motion at which time the parties had the opportunity to present their objections to the court. During the course of the hearing, Judge Wright decided that two additional issues needed briefing, namely (1) whether multiple punitive damage verdicts could be obtained by successive plaintiffs based on the same conduct and (2) whether Missouri law allows recovery of punitive damages in wrongful death actions. These issues were briefed and submitted to Judge Wright before he made his decision to certify the class.

The order itself is carefully reasoned and stresses Judge Wright’s concern that “[i]f a defendant can only be punished once, then the first claimant to get an award [of punitive damages] is the first and only winner. The Court is not inclined to permit the sacrifice of one aggrieved party’s claim for the sole benefit of another aggrieved party.” In re Federal Skywalk Cases, slip op. at 424-25.

We conclude that Judge Wright certified the class based solely on his judgment that such action would best serve the interests of all parties involved. In addition, we note the complexity of the issues before Judge Wright and commend his creative efforts in attempting to achieve a fair, efficient and economical trial for the victims of the Hyatt Regency disaster.¹⁴ However, as explained above, the order cannot stand on the facts before us.

The order of the district court is vacated.

1 . The Honorable Scott O. Wright, United States District Judge for the Western District of Missouri.

2 . In re Federal Skywalk Cases, 93 F.R.D. 415 (W.D.Mo.1982).

3 . The individual plaintiff designations are In re Jacqueline N. Rau and In re Melanie Hanson Johnson. In addition, defendants Crown Center Redevelopment Corp., Hallmark Cards, Inc., Hyatt Corp. and the Plaintiffs’ Liaison Committee participated as amici curiae. All amici curiae oppose class certification, but only the Plaintiffs’ Liaison Committee seeks disqualification of the district judge.

4 . The class representative argues that class certification is an appropriate device to handle the claims arising out of the disaster. However, in view of our holding, we do not reach the merits of these arguments.

5 . By the end of January, 1982, there were approximately 120 cases filed in state court and eighteen filed in district court. In addition, prior to the class certification, 123 claims had been settled at a total settlement cost of $18.5 million.

6 . The state court Liaison Committee consisted of twelve attorneys and the district court committee consisted of five attorneys. Three committee members were appointed by both courts and served on both committees.

7 . Fed.R.Civ.P. 23 provides in pertinent part:

(a) Prerequisites to a Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.

(b) Class Actions Maintainable. An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition:

(1) the prosecution of separate actions by or against individual members of the class would create a risk of

(A) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or

(B) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or

(2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or

(3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action.

Class members in a 23(b)(3) class are free to “opt out” while, under the majority rule, class members in a 23(b)(1)(A) or 23(b)(1)(B) class cannot “opt out.” See Reynolds v. Nat’l Football League, 584 F.2d 280 (8th Cir. 1978).

8 . The content of the telephone conversations is disputed. Patrick McLarney, a state plaintiff’s attorney, and Max W. Foust, a defendant’s attorney, stated that Collins had told them that Judge Wright had told Collins he was going to certify a class and appoint Riley’s counsel as lead counsel. In re Melanie Hanson Johnson Appendix Volume II Exhibits 13, 14, Affidavits of Max W. Foust and Patrick McLarney. Collins, however, states that Judge Wright only told him that he might certify a class. Appendix to Brief In Opposition to Petition for Mandamus Exhibit 6, Affidavit of Robert Collins.

9 . On February 1, 1982, Grigsby, Vrabel and Abernathy were deleted as class representatives because Grigsby had settled and Vrabel and Abernathy were not of diverse citizenship to Hyatt Corp.

10 . It appears that the main concern underlying Judge Wright’s certification is that there is an uncertain question of Missouri law as to whether plaintiffs may seek to recover multiple awards of punitive damages arising from a single wrongful act of a defendant.

11 . 28 U.S.C. § 1292(a)(1) provides in pertinent part:

(a) The courts of appeals shall have jurisdiction of appeals from:

(1) Interlocutory orders of the district courts of the United States .. ., granting, continuing, modifying, refusing or dissolving injunctions ....

12 . Judge O’Leary had also aided in the settlement process by convincing the insurers for Hallmark Cards, Inc., Crown Center Redevelopment Corp. and the Hyatt Corp. to commit a minimum of $151 million Qf the total $333 million liability insurance coverage to the settlement of the claims. Hyatt Corp. v. Occidental Fire & Cas. Co., No. CV81-22009 (Mo.Cir.Co. Dec. 30, 1981), transcript 54-55, 75-77.

Prior to the class certification 123 cases had been settled. The settlement process slowed down considerably after the class certification because the plaintiffs were not able to release their punitive damage claims. In re Federal Skywalk Cases, at 428. The defendants were unwilling to pursue only compensatory damage settlements.

13 . The class representative cites the following cases in support of her argument: Keystone Dairy Co. v. New York Life Ins. Co., 19 F.2d 68 (3d Cir. 1927); Mutual Ben. Health & Accident Ass’n v. Teal, 34 F.Supp. 714 (E.D.S.C.1940); Jamerson v. Alliance Ins. Co., 87 F.2d 253 (7th Cir.), cert, denied, 300 U.S. 683, 57 S.Ct. 753, 81 L.Ed. 886 (1937) (by implication); Brown v. Pacffic Mut. Life Ins. Co., 62 F.2d 711 (4th Cir. 1933) (by implication). We need not decide how those cases would be decided today. But see 17 C. Wright, A. Miller, E. Cooper, Federal Practice and Procedure §§ 4222-4223 '(1978), explaining that the Anti-Injunction Act was not applied as an absolute prohibition against enjoining state court proceedings until the Supreme Court’s decision in Toucey v. New York Life Ins. Co., 314 U.S. 118, 62 S.Ct. 139, 86 L.Ed. 100 (1941).

14 . We note that several commentators, including Professors Moore, Wright and Miller, also maintain that class actions are particularly appropriate for disposing of mass accident litigation. See Comment, Mass Accident Class Actions, 60 Cal.L.Rev. 1615, 1616 n.7 (1972).