Taylor et al v. Cottrell, Inc. et al
OPINION, MEMORANDUM AND ORDER re: 414 :ORDERED that Defendant's Motion for Leave to Take Interlocutory Appeal Pursuant to 28 U.S.C. 1292, [Doc. No. 414], is granted. FURTHER ORDERED that the Court certifies the above questions for interlocuto ry appeal pursuant to 28 U.S.C. § 1292(b); FURTHER ORDERED that Plaintiff's request to vacate and stay these proceedings until there is a resolution of the appellate process is granted. FURTHER ORDERED that the Trial Setting of March 31, 2014 is vacated.. Signed by District Judge Henry E. Autrey on 3/28/14. (CEL)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
TIMMY A. TAYLOR and DEBORAH
COTTRELL, INC., and AUTO
Case No. 4:09CV536 HEA
OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Plaintiffs’ Motion for Rule 54(b) Express
Determination that there is No Just Reason for Delay to Allow Appeal, or in the
Alternative, for Order Enabling Appeal Pursuant to 20 U.S.C. 1292(b), Combined
with Request for Entry of Order Staying Proceedings in this Court and Vacating
Trial Date until Resolution of Appellate Process,, [Doc. No. 414]. Defendants
have no objection to the entry of an order allowing an interlocutory appeal. For
the reasons set forth below, the Motion is granted.
Plaintiffs brought this action against Defendants for physical injuries
allegedly sustained by Plaintiff Timmy A. Taylor. Plaintiffs base their claims on
alleged defects in Defendants’ products, and certain failures to warn of said
On February 4,2014, the Court entered an Order barring one of Plaintiffs’
experts from testifying based on a finding that the expert had entered into a
contingency agreement with Plaintiffs. On March 26, 2014, the Court granted
Defendants’ Motion in Limine to bar any evidence of Plaintiffs’ alleged damages
or to Dismiss Claims based on use of the stricken expert’s records.
Plaintiffs now seek entry of immediate judgment or alternatively, a
certification for an interlocutory appeal pursuant to 28 U.S.C. § 1292(b).
The Court denies Plaintiffs’ request for Rule 54(b) judgment.
When deciding whether to grant Rule 54(b) certification, the district
court must undertake a two-step analysis. The court “ ‘must first
determine that it is dealing with a final judgment .... in the sense that
it is an ultimate disposition of an individual claim.’ ” Outdoor Cent.,
643 F.3d at 1118 (quoting Curtis–Wright Corp. v. Gen. Elec. Co., 446
U.S. 1, 7, 100 S.Ct. 1460, 64 L.Ed.2d 1 (1980)). Second, “[i]n
determining that there is no just reason for delay, the district court
must consider both the equities of the situation and judicial
administrative interests, particularly the interest in preventing
piecemeal appeals.” Id. (citation and quotation marks omitted).
“Certification should be granted only if there exists ‘some danger of
hardship or injustice through delay which would be alleviated by
immediate appeal.’ ” Hayden v. McDonald, 719 F.2d 266, 268 (8th
Cir.1983) (per curiam) (citation omitted).
Williams v. County of Dakota, Neb., 687 F.3d 1064, 1068 (8th Cir. 2012), citing
Outdoor Cent., Inc. v. GreatLodge.com, Inc., 643 F.3d 1115 (8th Cir.2011). The
Court’s concludes, after review of the record, arguments, equities of the situation
and judicial administrative interests, in particular, the interest in preventing
piecemeal appeals, that an Order under Rule 54(b) is not warranted.
Section 1292(b) provides the requirements necessary for certification of an
interlocutory order for appeal:
When a district judge, in making in a civil action an order not
otherwise appealable under this section, shall be of the opinion that
such order involves a controlling question of law as to which there is
substantial ground for 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.
The Court of Appeals which would have jurisdiction of an appeal of
such action may thereupon, in its discretion, permit an appeal to be
taken from such order, if application is made to it within ten days
after the entry of the order: Provided however, That application for an
appeal hereunder shall not stay proceedings in the district court unless
the district judge or the Court of Appeals or a judge thereof shall so
This provision sets forth three requirements that must be met before a
district court opinion may be certified for interlocutory appeal. White v. Nix, 43
F.3d 374, 377 (8th Cir.1994). Specifically, “the district court must be of the
opinion that (1) the order involves a controlling question of law; (2) there is
substantial grounds for difference of opinion; and (3) certification will materially
advance the ultimate termination of the litigation.” Id. See also Lloyd’s
Acceptance Corp. v. Affiliated FM Ins. Co. ___Fed.Appx.___, 2014 WL 903374
(8th Cir. 2014). The Eighth Circuit has also emphasized that “it is the policy of
the courts to discourage piecemeal appeals because most often such appeals result
in additional burdens on both the court and the litigants.” White, 43 F.3d at 376.
See also Control Data Corp. v. International Business Machines Corp., 421 F .2d
323, 325 (8th Cir.1970) (“It has, of course, long been the policy of the courts to
discourage piecemeal appeals....”). In accordance with the policy of discouraging
interlocutory appeals, “§ 1292(b) should and will be used only in exceptional
cases where a decision on appeal may avoid protracted and expensive litigation....”
White, 43 F.3d at 376. In reaching this determination, the burden is on the
movant “to demonstrate that the case is an exceptional one in which immediate
appeal is warranted.” Id. It is within the trial court's discretion to grant or deny a
motion for interlocutory appeal, and also within the discretion of the court of
appeals to certify the appeal. Id. A district court's grant of interlocutory appeal
must be in writing, and must state the basis for the interlocutory appeal. Federal
Deposit Ins. Corp. v. First Nat. Bank of Waukesha, Wis., 604 F.Supp. 616, 620
(D.Wis.1985) (“he shall so state in writing in such order.”). Furthermore, the
application for appeal “shall not stay proceedings in the district court unless the
district judge or the Court of Appeals or a judge thereof shall so order.” 28 U.S.C.
The Court agrees with the parties that the requirements of 28 U.S.C. §
1292(b) have been met in this matter.1 The Court finds the following issues
involve controlling questions of law as to which there is substantial grounds for
difference of opinion:
Whether a doctor who will not be paid for his services rendered to Plaintiff
if Plaintiffs do not recover in the litigation should be barred from testifying;
Whether, after a doctor has been so barred from testifying, that same
doctor’s records, absent any other valid objection, can be admitted into evidence;
Whether granting a motion in limine can serve as a means for the effective
dismissal of claims;
Whether medical causation can be established by a treating physician who
was not the primary treating physician for a plaintiff;
Whether medical causation can be established by records certified pursuant
to Rule 902(11).
IT IS HEREBY ORDERED that Defendant’s Motion for Leave to Take
Interlocutory Appeal Pursuant to 28 U.S.C. § 1292, [Doc. No. 414], is granted.
IT IS FURTHER ORDERED that the Court certifies the above questions
The Court makes no determination of the timeliness of Plaintiffs’ Section 1292(b) with
respect to the February 4, 2014 Opinion, Memorandum and Order standing alone, as the Motion
was not filed within ten days from the entry of that Opinion.
for interlocutory appeal pursuant to 28 U.S.C. § 1292(b);
IT IS FURTHER ORDERED that Plaintiff’s request to vacate and stay
these proceedings until there is a resolution of the appellate process is granted.
IT IS FURTHER ORDERED that the Trial Setting of March 31, 2014 is
Dated this 28th day of March, 2014
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE
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