*1 CONCLUSION reasons, foregoing appeal

For the judgment

dismissed as moot. The of the vacated,

district court is and the matter is

remanded dismissal action. KELLY, Appellant,

Francis J.

DREXEL UNIVERSITY.

No. 95-2046. Appeals,

United States Court of

Third Circuit.

Submitted under Thud Circuit 34.1(a) 12, 1996. Aug.

LAR Aug.

Decided 1996. Rehearing Sept.

Sur Petition for *2 Roche, Levering,

Kathryn H. Susan M. Homans, Drinker, D. Michael Biddle & Reath, PA, Philadelphia, Appellee. ALITO, Before: GREENBERG and FISHER, Judges, and District Circuit Judge.*

OPINION OF THE COURT GREENBERG, Judge. Circuit

I. INTRODUCTION Appellant Kelly appeals Francis J. from an order for entered in this brought against action which he his former employer, University, alleging Drexel that employment Drexel terminated his and sub- sequently him in failed rehire violation of Age Employment Discrimination Act (“ADEA”), 621-34, §§ the Ameri- U.S.C. (“ADA”), Act can with Disabilities U.S.C. Pennsylvania §§ Human (“PHRA”), Act Pa. Relations Cons.Stat. (1991). addition, Kelly §§ In Ann. 951-63 alleges Drexel discriminated him terms, respect compensation, to his con- ditions, privileges on the age. basis of his summary judg- court entered The district ment Drexel’s favor. Drexel (E.D.Pa.1995). Univ., F.Supp. 864 The held, first, was not disabled purposes ADA and thus was for the that Act. protection not entitled to court went on to hold the alternative disabled, legally he failed even were produce sufficient evidence Drexel against him on the basis of had discriminated Further, impairment. the court held that against Kelly due not discriminate Drexel did rejected age The court also to his either. rehiring Kelly’s claims with terms, conditions, privi- compensation, employment. Kelly appealed. then leges of procedural posture of the In view of the case, light most the facts in a we recite Kelly. Drexel hired who favorable to old, PA, years April as a Hagan, Philadelphia, for was then Mary Ann Sep- buyer purchasing department. in its Appellant. * Fisher, Judge States the United Clarkson S. Senior Honorable 7, 1995, 1987, Kelly hip, leaving opinion fractured Ms of November entered

tember limp. orthopaedic granting His Drexel’s motion and on De- a noticeable order diagnosed his condition as severe specialist 1995, the court entered an order cember joint degenerative disease of post-traumatic Kelly’s denying motion for reconsideration. *3 hip protrusio and acetabulum of the right the 6, Kelly appeal filed a notice of on December 1993, joint. January In Drexel right hip 1995, appeal and an amended notice of on Kelly’s position. At the time eliminated 19,1995. December discharged Kelly, purchasing de- the Drexel indicated, found that As we have the court director, James partment consisted Kelly was not disabled and that Drexel did assistant, Graham, buyers, buyer and three against him when it dis- not discriminate responsibility. areas of each with distinct charged Kelly challenges him. these deter- old, years then was 68 was the who appeal. minations on this As we also have buyer, supervised general pur- and senior indicated, rejected Kelly’s the university. Thomas Tucker chases for the against him claims that Drexel discriminated 54) buyer the scientific and handled (age was respect rehiring respect to and with to departments. the science purchases terms, conditions, compensation, privi- and 46) (age physical plant Dick was John leges employment, Kelly, of at buyer responsible was for the universi- and 878, challenge but does these de- ty’s plant department. physical appeal. terminations on this experiencing financial Drexel was part university-wide of a jur- difficulties and as a question The district court had federal Gallot, spending, to cut Freddie Drex- effort Kelly’s ADEA ADA isdiction over and claims treasurer, president vice and instructed el’s § pursuant to 28 U.S.C. and exercised purchasing depart- Graham to reduce jurisdiction supplemental Kelly’s over state $30,000. by budget ment’s Graham deter- § claims under 28 U.S.C. We have required mined that he could attain the sav- appellate jurisdiction pursuant to 28 U.S.C. ings by eliminating Kelly’s position, which plenary § 1291 and exercise review. $32,340, assigning Kelly’s responsi- paid January himself. bilities Tucker and On II. DISCUSSION 26, 1993, posi- Drexel notified January be effective tion was to eliminated proMbits employers The ADA from dis- 31,1993. criminating against qualified individuals with disabilities because of their disabilities cer- 1, 1993, Kelly July charge filed a of On employment-related tain matters. U.S.C. disability age discrimination with the 12112(a).1 prohibits age § The ADEA dis- Equal Employment Opportuni- United States (“EEOC”) against crimination in decisions ty and a similar com- Commission persons years age. who are least 40 of plaint Pennsylvania Human Rela- 623(a)(1).2 § prohibits U.S.C. The PHRA an tions Commission. After the EEOC issued a alia, hire, letter, employer, refusing inter from right Kelly brought to sue suit on 29, 1994, discharging, discriminating August or otherwise the district court. On 23, 1995, summary against employee age on the basis of or June Drexel moved for non-job judgment. handicap disability. On November the dis- related or 955(a).3 court, pursuant § trict to its memorandum Pa. Cons.Stat. Ann. provides part: 1. The ADA in relevant It shall be unlawful for an ... discharge any to fail or refuse to hire or to entity against No covered shall discriminate individual or otherwise discriminate qualified disability with a individual because of any compensa- individual with to his regard of such individual in tion, terms, conditions, privileges employ- job procedures, or of application hiring, ad- ment, vancement, age.... discharge employees, employ- because of such individual's or 623(a)(1). job training, § compensation, 29 U.S.C. ee and other terms, conditions, privileges employ- part: 3.The PHRA reads in relevant ment. 12112(a). 42 U.S.C. discriminatory practice, It he shall an unlawful (a) race, provides part: any employer 2. The ADEA in relevant ... because of the vidual”; Pennsylvania impair- courts are has “a record of such an While Pennsyl interpretations ment”; “regarded having in their or not bound such an interpretations paral law federal vania 12102(2); impairment.” 42 U.S.C. VII, ADA, in Title or provisions lel § 1630.2(g). Kelly C.F.R. does not claim ADEA, Pennsylva Harrisburg Dist. v. Sch. that he was fired based on a record dis- Comm’n, 77 Pa. Human Relations nia ability, so we focus on the first third (1983), its 466 A.2d Cmwlth. addition, definitions. Br. at 36-37. In Drex- generally interpret nevertheless courts dispute el does not suffers from an counter PHRA in accord with its federal that causes to walk with a Servs., Allegheny Health parts; see Gomez limp walking activity. is a (3d Cir.1995) Inc., 71 F.3d 1083-84 *4 Thus, Br. at 12 n. 8. the burden rests with VII are inter (noting that PHRA and Title Kelly injury “substantially to show that his — denied, U.S. -, similarly), cert. preted ability limits” his to walk. (1996); 2524, 135 L.Ed.2d 1049 116 S.Ct. 470, 412 City Pittsburgh, 488 Pa. Chmill of “major The ADA does not define life activ precedents (recognizing A.2d 871 Scrivner, Inc., ities.” Bolton v. Relations Act suggesting that “the Human — (10th Cir.1994), denied, 942 cert. U.S. light ‘principles of be construed should -, 130 L.Ed.2d 1071 S.Ct. emerged employment law which have fair (1995). however, regulations, The EEOC [statute]_”’) (quot relative to the federal provide, substantially that an individual is PHRC, Corp. v. 469 Pa. ing General Elec. major activity limited in a life “[u]n- he is (1976)). Moreover, 292, 365 A.2d major activity perform able to life “handicap or disabili PHRA definition of the average person general population in the can ty” to the definition of similar perform” “[significantly or is restricted as to “disability” the ADA. Fehr v. McLean under condition, the manner or duration under F.Supp. Packaging Corp., 860 particular major perform which can [he] (E.D.Pa.1994). Consequently, district the condition, activity compared to life as the properly Kelly’s PHRA claims treated manner, average or duration under which the ADA and ADEA coextensive with his claims, dispute person general population perform can and does not this treat appeal. major activity.” ment on that same life 29 C.F.R. 1630.2(j). part, regulations § relevant indicated, granting we As have suggest considering “[t]he nature severi district court held ty impairment.”4 C.F.R. prima failed to establish a facie 1630.2(j)(2)(i). Kelly § admits that he is able disability because the case of discrimination question presented to walk so the is whether for the court found that he was not disabled adduced sufficient evidence from which he ADA. purposes of the reasonably could conclude that the factfinder holding. A We first address this 873-74. injury significantly severity of his nature and “disability” purposes for the plaintiff has a ability compared to walk as restricted his physical ADA if he has “a or mental general popu average person with an substantially limits one or impairment that activities of such indi lation. more of the sex, creed, color, ancestry, age, pendent is the best able and most religious na contractor handicap origin non-job required. or competent perform or related the services tional guide support 955(a). of a or or use Pa. Ann. Cons.Stat. blindness, deafness or animal because of the handicap any

physical individual or inde regulations provide also that the decision 4. The contractor, employ pendent to refuse to hire or expect- “[t]he consider duration or maker should with, discharge contract or to bar or to or impairment” per- "[t]he ed of the duration indepen employment such individual or from expected long impact, or the manent or term contractor, or to otherwise discriminate dent resulting long impact permanent term of or or independent con such individual or 1630.2(j). impairment.” 29 from the C.F.R. hire, compensation, tractor with tenure, terms, in this provisions are not determinative These privileges or of em conditions case. contract, ployment if the individual or inde- following deposition provides manual also two during Ms about The asked When relating walking: examples walking, Kelly on his stated the limitations not walk “more permanent he could Example that he believed 1—CP has a knee “certainly pain or so” and that he impairment than a mile that causes when he App. periods. at 467. He also stated He can walk jog.” walks for extended couldn’t discomfort, stairs, climbing pace “I have to for ten miles at time without that when slower, would, experiences pain naturally, hold but he on the eleventh myself and I Friedenberg, mile. CP’s knee does not sub- rail.” Id. Dr. Z.B. onto the stantially ability limit to walk. The M.D., Kelly’s treating physician, submitted average person general population in the following statement: would not be able to walk for eleven miles my care Mr. has been since experiencing without some discomfort. problems for severe December CP, Example who has sickle cell ane- 2— joint. right hip with his mia, frequently experiences severe back patient diagnosis on this was severe joint pain. As result of the sickle degenerative joint post-traumatic disease disease, cell often cannot walk for more CP right hip protrusio acetabulum very impair- than short distances. CP’s *5 Mp joint. right of the (sickle anemia) substantially ment cell lim- great patient’s ability average condition causes him person The its his to walk. The difficulty walking in around. general population in can walk for very than more short distances. however, Kelly, presented App. at no Id. at 902-17. required any special he devices evidence that in walking. or crutches to aid him severity Kelly’s injury like a cane While the The district court held “as matter of law falls somewhere between the cases discussed stairs, [Kelly’s] climbing which that trouble examples, regulations in these both the slowly requires him to move and hold the comparatively that the manual make clear handrail, substantially does not limit his abili- ability on the to walk moderate restrictions ty walk.” 907 at 874. We regulations to are not disabilities. The state: holding the district court’s in this will affirm who, impair individual because of an [A]n regard. ment, only very periods can walk for brief substantially time would be limited in Compliance Manual5 notes The EEOC major activity walMng. life An indi complaints questions that most ADA involve legs vidual who uses artificial would like ability an individual’s to work but the about substantially major wise be limited in the recognizes ability manual that this need not activity walking life because the individ Compliance Manual be an issue. EEOC ual is unable to walk without the aid of 902, (1995); § at 902-18 see also Hamm v. prosthetic devices. (7th Cir.1995) 721, Runyon, 724 n. added). 1630.2(j) § app. (emphasis 29 C.F.R. (noting addressing dearth of cases substan- regulations provide: further walk). ability tial limits on The manual out, instance, points substantially “if An in for an individu- individual is not limited (as unusually major activity it ... al’s arthritis makes difficult life the limitation compared people average significant to most or to the does not amount to a restriction walk, person general population) compared in with when the abilities of the substantially average person. example, then the individual is limited in an individu- ... ability one would not al who had once been able to walk at an [and] walk extraordinary speed not need to ascertain whether the individual is would be substan- substantially working.” tially activity also limited limited life if, walking physical impair- Compliance Manual at 902-18. as a result of a EEOC explains determining 5. The manual that was "issued for use whether an individual should be it investigators investigating when Compliance EEOC considered disabled. EEOC Man- charges under of discrimination the ADA” and §ual at 1. particular provides guidance 902 in section plaintiff that the failed to answer ment, only to walk at Stone noted were able he or she employer’s arguments any legal pre- moderately speed, or even at average an cedent or evidence of substantial limitation. average speed. below “[although explained plaintiff The court added). Similarly, the manual (emphasis Id. briskly; and has some cannot walk trouble a disabili- rise to the level of “[t]o states that stairs, ability I climbing find that his to walk significantly must restrict ty, significantly nor limited Impair- major life activities. an individual’s *4. restricted.” Id. at mild limitations are that result ments Similarly, in v. William Richardson Powell Compliance Man- EEOC not disabilities.” plaintiff testified that she suffered Co. at 902-19. ual degenerative hip, from arthritis in her which limp” her to walk with noticeable “cause[d] in which a court has Kelly points to no case and “made it difficult for her to climb stairs.” difficulty plaintiffs moderate held that *3, Despite *7. this WL climbing sufficed to consti walking stairs testimony, granted sum- the district fact, “disability” the ADA. In it tute mary judgment on favor appears that in the several grounds plaintiff failed to show arisen, issue has cases in which the any major that “her condition interfered rejected such claims. See Grav courts have activity.” Id. at *7. The district court 94-C-1228, Eng’g No. er v. National allege emphasized plaintiff did not (N.D.Ill. 1995); July 1995 WL 443944 impairment adversely affected her that her Servs., Inc., Entergy No. Stone work, place any that her doctor did not re- (E.D.La. 1995); June 1995 WL 368473 activities, regu- on and that she strictions her Foods, Inc., larly No. 93- and at work. Angelo’s Italian climbed stairs at home Lowe v. (D.Kan. Id. 1233-PFK, Nov. 1994WL 675027

1994), part, 87 F.3d part, in rev’d in Eng’g plain- In v. Co. the Graver National aff'd (10th Cir.1996); v. in Richardson William tiff suffered from arthritis his left ankle pro- that he “walked with a and testified C-1-93-528,1994 WL 760695 Powell No. experienced significant limp nounced and (S.D.Ohio 10, 1994). Nov. *1, 443944, at pain walking.” while 1995WL Servs., example, Entergy in Stone that he “was not able to walk *10. He stated Inc., his plaintiff the testified that due to grass surfaces” and on or other non-level polio, from “muscle bout with he suffered slowly than would [he] that he “walked more weakness, leg longer partial paralysis, one [his] the condition of left have walked absent longer and one foot than the than the other court found ankle.” Id. at *10. The district plaintiff 1995 WL at *3. The other.” “[a]lthough plaintiff walks with a endurance, inability his limp, limited an there is no evidence that also claimed marked walk, ability to limp significantly impaired his flights than two of stairs with- to climb more himself, perform the functions of care for or resting, difficulty descending stairs be- out Thus, grant- job.” *11. the court his Id. at support his right his foot could not cause summary employer. the Id. judgment for ed run, in weight, inability an to limited motion at *12. sup- body, difficulty bending over without Foods, Finally, Angelo’s Italian in Lowe v. port, inability keep pace to with others plain- Inc. district court addressed the the group, difficulty main- walking in a when claim that she was tiffs dual taining generally. Id. The em- his balance ability to walk and to work. limited her however, ployer’s expert physician, testified employer 1994 WL at *4-*5. The body impair- plaintiff had a “total manager in plaintiff, a kitchen dismissed the disabled, 15%,” ment of that he was not restaurant, the after she informed soon syndrome “post polio that his mild [was] diagnosed employer that had been she enough require not the use of [did] that he bend, multiple longer and no could sclerosis braces, canes, crutches, any aor wheelchair.” objects. at *1. Her stoop, carry heavy Id. facts, granted Id. these the district court On employer to as physician had written her employer, in favor of the follows: holding plaintiff to show a the failed neurological problems she Because of her case, easily fatigues exceedingly and needs to be “disability.” in this the court As occasionally. good prior as it was to the tear” and that his She is not sit down able to stooping, “inability briskly run or climb stairs as able to do lots of to going to be heavy carry anything easily injury could the are not bending and cannot as he before lbs.) anything up (greater than 15 sufficient residual effects constitute ‘dis- ” occasionally. ability.’ should avoid only She Id. 15 lbs. to use a hand rail she needs stairs. She Rogers v. International Marine Termi- stairs, cannot climb stairs so has to climb nals, plaintiff employer Inc. the laid off the carry anything. he took leave for treatment of bone after sick Id. at *4. gout spurs, ligament damage, and the “[tjhere right was at *1. The court noted ankle. 1995 WL The district impair- impact granted employer summary of [her the no evidence away from To the judgment plaintiff work. because the had averred ment] [her] on in the case focus- contrary, evidence was the to his that his upon of these limitations merely temporary es on the effect “a condition and not a job.” at *5. ability perform her Id. disability.” Relying permanent [her] Id. at *3. on facts, plain- Blanton, the court held On these court found that even the district impairment sub- tiff failed to show that her accepting plaintiffs later statement that stantially ability or to limited her to work permanent, suffering he still was “from a summary judgment against granted walk and anatomical, whole-body impairment of thir- recognize that plaintiff. Id. We percent,” not teen such a limitation did Appeals for the Tenth Circuit Court disability. amount to a Id. The court of Foods, Inc., Angelo’s Lowe v. Italian affirmed, appeals holding that there was “no (10th Cir.1996), substantially impaired Roger’s impairment evidence that substan- validity precedent reversing Lowe’s tially ability limits his to stand and walk.” summary judgment on the ADA claim Rogers, 87 F.3d at 759. plaintiff “presented evidence because difficult, perhaps pos It is indeed genuine of fact with which creates issue sible, bright delineating to draw line ability to whether her to lift is sub- point affecting an em at which a condition stantially impaired.” at 1172. The court Id. ability regarded ployee’s to walk can be as a however, appeals, did not address the agree within ADA. we Yet walking issue. general thrust of these district court *7 Moreover, in two other cases district unfeeling we are not with re cases. While rejected have contentions that residu courts condition, spect Kelly’s simply still we injuries impairments after serious consti al regard disability cannot it as a under the Rogers ADA. tuted disabilities See ADA it limit him in as does Terminals, Inc., v. International Marine No. major activity, walking. the relevant life As (E.D.La. 17, 1995 WL 16787 Jan. Ingalls the court indicated Dutcher v. (5th 1995), Cir.1996); aff'd, 87 F.3d 755 Blan Shipbuilding, physical impairment, “[a] Printing F.Supp. v. 868 804 ton Winston alone, necessarily standing is not a (M.D.N.C.1994). In Blanton v. Winston 723, contemplated by as the ADA.” 53 F.3d granted Printing Co. the district court Cir.1995). (5th Kelly impaired 726 but not employer summary judgment where the disabled. plaintiff in his had torn his medial meniscus may suggests also that Drexel 806, F.Supp. plaintiff knee. 868 at 808. The per have terminated because he was presented that he had “retain[ed] evidence being ceived as disabled. Br. at 36-37. Un slight of his function” and limitation knee regulations, ADA a der the and the EEOC easily.” “run could not well nor climb stairs may if claimant be considered disabled even Id. at 806. The district court found substantially limit a impairment his does not plaintiff may at while the have been disabled activity, times, “is treat impairments duration of such short entity by constituting'such ed a covered as qualify Id. at 807. did not as disabilities. 1630.2(i)(l).6 explained plaintiffs “post- limitation.” 29 C.F.R. Our The court injury nearly analysis of claim not on physical condition this focuses [was] 1630.2(7) applicable. suggest 6. does not that subsections of section are Subsec- abilities, judgment paral- rather on the on that claim his actual but and under the persons provisions in- perceptions of the lei of the PHRA. reactions and working him. 2 teracting or EEOC carefully We have considered Kel Manual, Compliance at 902-3 to 902- ly’s age discrimination claims and in full are accord with the district court’s conclusion summary judg that Drexel was entitled to a claim, Kelly support of this al Consequently, ment on them. we will affirm limp leges that his was “visible and summary judgment its order for on those apparent,” br. at and that was Graham discussion, except point claims without out app. problem, aware of his at 157. The Kelly questions that while the economic ne rejected properly argu this cessity having employ for Drexel reduced its ment. at 874-75. Gra force, hardly appropriate ee it would be for deposition ham testified at his that he did not guess management us to second deci Kelly’s impairment disabling. App. consider all, dealing, sion. We are after with discrimi 760; Stone, Rogers, 87 F.3d at 501. See nation statutes which are not intended “to Moreover, 368473, at *4. hold 1995 WL we managers handcuff the and owners of busi employer that the mere fact that an is aware quo.” Gray nesses the status v. York employee’s impairment is insufficient to Inc., (3d Newspapers, 957 F.2d employer demonstrate either re Cir.1992). Thus, qualitative there is a dis garded employee as disabled or that that reviewing tinction between court a business perception caused the adverse determination that there should be a reduc Dallas, City v. action. See Chandler considering tion in and a court force an em (5th Cir.1993), F.3d cert. de ployee’s employer claim that an discrimi - nied, -, 114 S.Ct. U.S. against him in reducing nated its force. The (1994) (holding employ L.Ed.2d 61 that even management first determination is a decision plaintiff perform er’s belief that could not with which a court should be loath to inter safely particular task does not establish that requires fere. The second determination disabled); employer regarded plaintiff as cf. analysis conventional under the relevant anti- Dept. Cook Rhode Island Mental discrimination statute. Health, Retardation, Hosps., (1st Cir.1993) (holding employer re III. CONCLUSION garded plaintiff as disabled where reasons, foregoing will affirm we plaintiffs impairment believed that foreclos the order of Novem- range employment options in ed broad 9, 1995, ber order of December otherwise, industry). If relevant we held 1995,denying reconsideration. reasoning, person in parity then *8 SLOVITER, Judge, Before: Chief protected group from adverse STAPLETON, MANSMANN, BECKER, i.e., anyone, prima actions could establish a GREENBERG, SCIRICA, COWEN, merely by discrimination case demon facie NYGAARD, ALITO, ROTH, LEWIS, and strating some adverse action the indi MeKEE, FISHER, Judges, and Circuit vidual and that the was aware that Judge. District employee’s placed characteristic him or race, group, e.g., age, in the her or sex. SUR PETITION FOR REHEARING Overall, we are satisfied that is not Sept. disabled within ADA on either basis that he Thus, by appeal. petition rehearing advances on this the district for filed properly granted summary appellant, cap- court Francis in the above Drexel J. impairments provides physi- de- tion that an individual “has a an individual “has none of the cal or mental lim- [by regulations] fined but is treated its life activities as a result of the entity having substantially limiting covered impairment.” attitudes of others toward such 1630.2(1)(3). impairment." 29 C.F.R. 1630.2(0(2). C.F.R. Subsection states that having been submitted to the tioned matter participated the decision of

judges who cir- to all the other available

this court and regular court in active judges of the

cuit

service, judge who concurred in the no rehearing, for and a having asked

decision judges of the circuit

majority of the circuit having for

regular service voted active banc, petition

rehearing by rehearing is denied. In re ORTHOPEDIC BONE SCREW SCIRICA, Before MANSMANN PRODUCTS LIABILITY DIAMOND, Judges and District Circuit LITIGATION. Judge.* Society and M. Scoliosis Research Steven ORDER OF DISMISSAL M.D., Mardjetko, Petitioners at No. 96- SCIRICA, Judge. Circuit 1131, Appellants at No. 96-1132. January On the Scoliosis Research Nos. 96-1132. (“SRS”) Society Mardjetko, and Steven M. M.D., stay seeking public filed a motion of Appeals, United States Court by plaintiffs underlying disclosure of data Third Circuit. study safety efficacy of bone screws, Study entitled “A Historical Cohort Argued Aug. 1996. Thoracic, Fixation in Lum- Pedicle Screw Aug. Decided Spinal They bar and Sacral Fusion.” assert- privileged under the Illinois ed the data was Act, Medical 5 Ill. Con. Stat. Studies 5/8— seq,1

2101 et February In a memorandum dated the motion. the district court denied First, the district court found the Illinois inapplicable Medical Studies Act under Fed R. Evid. it believed “there [was] 501 because pervasive aspect litigation,” federal to the mandating application of the federal law of Order, privilege. In re: Memorandum and Orthopedic Liability Bone Screw Products (E.D.Pa. Litigation, MDL 1014 at 4 Febru- *9 1996) (Pretrial 252). ary Order No. Sec- ond, law the district court found Illinois govern did not under Klaxon v. Stentor Elec- Mfg. tric 313 U.S. 61 S.Ct. (1941). Finally, L.Ed. 1477 the court reaf- Study prior ruling that firmed its Cohort * Diamond, inadvertently produced Study Gustave United States 1. The FDA Cohort The Honorable plaintiffs prior materials to the in October 1995 Judge of Penn- District for the Western District Mardjet- adjudication of the SRS's and Dr. to ko’s claims of sylvania, sitting by designation. privilege.