NATIONAL GYPSUM COMPANY, United States Gypsum Company, Armstrong World Industries, Inc., Azrock Industries, Inc., G.A.F. Corporation, Celotex Corporation, Eagle-Picher Industries, Inc., W.R. Grace Company, Keene Corporation, Kentile Floors, Inc., Pittsburgh Corning Corporation, Nicolet, Inc., Flintkote Company, Owens-Corning Fiberglas Corporation, Pfizer, Inc., U.S. Mineral Products Company, Turner & Newall, PLC, Basic Incorporated, PPG Industries, Inc., and H.K. Porter Co., Inc., Petitioners, v. Honorable Ray CORNS, Judge, Franklin Circuit Court, Respondent.
No. 87-SC-353-MR.
Supreme Court of Kentucky.
Sept. 24, 1987.
325
David L. Armstrong, Atty. Gen., Kevin M. Noland, Susan N. Mastin, Kathleen B. Dorman, Asst. Atty. Gen., for respondent.
LAMBERT, Justice.
Petitioners appeal to this Court from the final order of the Court of Appeals which
On December 30, 1985, an action was commenced in the Franklin Circuit Court styled Commonwealth of Kentucky, ex. rel. David L. Armstrong, Attorney General v. United States Gypsum Co., et al. Named as defendants were twenty-three corporations alleged to have produced and marketed asbestos-containing products which were used in the construction of approximately 4,000 public buildings in Kentucky. The Commonwealth predicated its claim for relief upon strict liability, negligence, restitution, and fraud and misrepresentation. It also alleged concert of action and market share liability. Judgment was demanded for compensatory damages in excess of 68 million dollars, punitive damages, injunctive relief, and indemnity.
In their answers, defendants pled, inter alia,
Aggrieved by the trial court‘s order, defendants brought an original action for writ of mandamus in the Court of Appeals. In a 2-1 decision, that court denied the petition. This appeal followed.
We are urged by petitioners to reverse the Court of Appeals and direct the trial court to apply the five-year statute of limitation. They contend that the trial court was “clearly erroneous” and that such error, coupled with the complexity and anticipated expense of the litigation, justifies the extraordinary remedy sought. Petitioners also contend that a decision as to which statute controls is needed to clarify the law and serve judicial economy. Finally, they make an argument based on denial of due process and equal protection of the law.
The Commonwealth responds that petitioners have failed to show that they lack an adequate remedy by appeal or that they will suffer irreparable injury. The Commonwealth also argues that the trial court‘s ruling is not clearly erroneous and that action by this Court at this time would be premature.
At the outset, we must determine whether the Court of Appeals was required to entertain the petition for writ of mandamus. Unless petitioners were able to demonstrate their entitlement to extraordinary relief, there was no need for the Court of Appeals to reach the merits of the claim.
It is beyond dispute that mandamus may not be used as a substitute for appeal. Merrick v. Smith, Ky., 347 S.W.2d 537 (1961). So long as the trial court is acting within its jurisdiction, error or probable error, standing alone, does not provide a basis for the issuance of a writ of mandamus. In Allen v. Walter, Ky., 534 S.W.2d 453, 454 (1976), we said:
[I]f what he (the trial court) does is wrong it can be undone in due course and in the same manner applicable to any other case.... [I]f every action taken or about to be taken by a trial judge were made subject to day-to-day supervision by an appellate court the result would be chaos.
To obtain relief by writ of mandamus, a petitioner must show that great injustice or irreparable injury will result and that appeal does not provide an adequate remedy. Barker v. Breslin, Ky., 329 S.W.2d 578 (1959). The foregoing principles are easily enough stated, but their application to a particular case is more difficult. For guidance in this respect, we turn to Bender v. Eaton, Ky., 343 S.W.2d 799 (1961).
Bender was decided about eight years after Kentucky adopted the Rules of Civil Procedure. Commissioner Clay, writing for this Court, undertook to review the law
In Bender, plaintiff sought recovery for personal injuries. By deposition, she disclosed the names of several physicians with whom she had consulted. Defendants moved the court for an order requiring plaintiff to produce all medical reports by the doctors whose names had been disclosed. Plaintiff objected to this request in reliance upon
Once the information is furnished it cannot be recalled. It may or may not be used at the trial. If the writings were subsequently introduced in evidence they might be competent so that an objection at that time would be unavailing. The injury suffered by petitioners, assuming their adversaries have no right to this disclosure under the Civil Rules will be complete upon compliance with the order and such injury could not thereafter be rectified in subsequent proceedings in the case. Petitioners have no other adequate remedy. Bender at p. 802.
In the instant case, petitioners have not shown that appeal is an inadequate remedy if the trial court is wrong in its determination of the applicable statute of limitation. Upon entry of a final judgment in the trial court, petitioners will have the same right of appeal as any other litigant.
As to the requirement that a petitioner for a writ of mandamus show “great and irreparable injury,” we simply observe that petitioners have made no such showing. The essence of their argument on this issue is anticipated litigation expense. This was raised in Jaggers v. Ryan, Ky., 474 S.W.2d 85 (1971) and in response, the Court stated at p. 86:
Jaggers states that his reason for asking for the writ of mandamus is that if it is denied he will incur extensive and unnecessary costs in defending the case on appeal. We have held this was insufficient ground for granting the extraordinary relief asked for. (Citation omitted.) See also Ison v. Bradley, Ky., 333 S.W.2d 784 (1960).
Petitioners attempt to establish that litigation expense may be grounds for extraordinary relief by reminding us that:
This is not an intersection collision case in which forcing the parties to finish litigating their differences prior to appeal will result in a delay of six months and a cost of $5,000.
In effect, we are invited to apply a different standard to big cases than we would apply to more modest cases. The unfairness and unworkability of such a practice is evident and needs no further comment.
In summary, we do not believe the Court of Appeals erred in deciding that petitioners failed to show sufficient grounds for
By this proceeding, petitioners are attempting a premature appeal and seeking a precipitate decision of this Court on an interlocutory order. It takes a minimum of imagination to envision the utter confusion and chaos in the trial of cases if this Court should entertain original proceedings in cases of this character. The basis urged for so doing is the financial distress of litigants. This is not an uncommon status, however unwanted it may be, and is not confined to litigants. Thus, the delay incident to litigation and appeal by litigants who may be financially distressed cannot be considered as unjust, does not constitute irreparable injury, and is not a miscarriage of justice.
For the foregoing reasons, the order of the Court of Appeals is affirmed.
STEPHENS, C.J., and LEIBSON, VANCE and WINTERSHEIMER, JJ., concur.
STEPHENSON, J., dissents by separate opinion in which GANT, J., joins.
STEPHENSON, Justice, dissenting.
After reviewing the complaint and amendment, it is apparent to me that this litigation will not be resolved in this century.
Ordinarily I would agree that we should not consider an appellate review of this interlocutory order. However, I would make an exception in this case. This is a truly extraordinary situation. A determination of the limitation question in favor of the five-year statute would resolve a major portion of the case. This question is squarely presented and can be resolved on the record before us. I might add that probability of success in challenging an interlocutory order in a case of this magnitude should play a significant part in determining whether to permit an appellate court to review the order.
With all of the novel issues and the complexity of proof in a case such as this, we are sentencing the parties to years of litigation which may well be futile in the end.
Accordingly, I dissent.
GANT, J., joins in this dissent.