Reinsurance Law Blog : Oklahoma Insurance Lawyer & Attorney : Stauffer & Nathan Law Firm

Vanderwerf v. SmithKline Beecham Corp. involved a claim by surviving family members that the drug Paxil caused or contributed to a suicide.  Over the course of the proceedings, several partial judgments were granted, with the end result being that all claims were eventually dismissed.  A Rule 59(e) motion to reconsider was timely filed by plaintiffs, but no decision was made on the motion for over 7 months.  So Plaintiffs withdrew their motion to reconsider and appealed the summary judgment.  But the court said the appeal was untimely, because when the motion to reconsider was withdrawn, the date of the order appealed from was more than 30 days before the notice of appeal was filed. 

There is a strong dissent which notes the unfairness of this "catch 22".  The dissent notes that the tolling starts with the filing of the motion, and only ends when the court enters an order on the motion. 

While not an insurance case, this case notes a trap for the unwary.   The court notes the plaintiffs had other options: 

The Vanderwerfs had other options, which may have allowed this court to take jurisdiction. First, the Vanderwerfs could have filed a motion requesting a ruling. Second, they could have continued to wait for a ruling, or sought a writ of mandamus in this court, which, if granted would compel the district court to rule on the Rule 59 motion. Third, they might have filed a motion for an extension of time under Federal Rule of Appellate Procedure 4(a)(5)(A)(ii), provided that they might show good cause or excusable neglect underlying the untimely notice. Fourth, they might have filed a premature notice of appeal that would ripen into a timely notice of appeal when the district court finally ruled. See Fields v. Okla. State Penitentiary, 511 F.3d 1109, 1111 (10th Cir.2007). Finally, it seems the best option may have been for the Vanderwerfs to have moved to withdraw the motion, in hopes that the district court would rule on that motion thereby triggering a 30-day period for the filing of a timely appeal.

The court dismissed the appeal for failure to timely file it.

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In Miller vs. Monumental Life Ins. Co. the trial court ordered (after remand from a prior appeal) that the ERISA based case be sent back to the plan administrator so the record could be completed.  The plaintiff, Miller, appealed from this order, claiming it was improper on various grounds.  The Tenth Circuit ruled that it was an interlocutory order over which it had no jurisdiction to determine. 

Aside from a few well-settled exceptions, federal appellate courts have jurisdiction solely over appeals from final decisions of the district courts of the United States.  A final decision is one that ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.  The order remanding the case to the plan administrator was not a final decision.

The court considers whether ERISA remand orders are reviewable on a case by case basis, and considers “practical finality.”  Neither the cost or delay associated with additional review of the “sole cause” defense, nor Miller’s unfounded fear about loss of his argument that Monumental was not entitled to raise this defense, justifies treatment of the remand order as a final order for purposes of review. Miller’s contentions are not “effectively unreviewable.” The appeal was dismissed for lack of jurisdiction.

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