Unpublished Dispositionnotice: Tenth Circuit Rule 36.3 States That Unpublished Opinions and Orders and Judgments Have No Precedential Value and Shall Not Be Cited Except for Purposes of Establishing the Doctrines of the Law of the Case, Res Judicata, or Collateral Estoppel.aaron Geisler, an Infant Under the Age of Eighteen, Who Suesby His Parents, Guardians and Next Friends, Herbert A.geisler and Cynthia A. Geisler and Herbert A. Geisler Andcynthia A. Geisler, Individually, Plaintiffs-respondents v. Wyeth Laboratories, a Division of American Home Productscorporation, a Foreign Corporation, and Wyeth Laboratories,inc., a Foreign Corporation, American Home Productscorporation, Defendants-petitioners, 934 F.2d 326 (10th Cir. 1990)

Plaintiff Aaron Geisler has moved for remand to the district court of the issues in defendant Wyeth's pending petition for interlocutory appeal under 28 U.S.C. § 1292(b) (1988). We grant the motion.

The pending section 1292(b) petition was filed by Wyeth after its motion to disqualify Geisler's counsel, the law firm of Michaud, Hutton & Bradshaw, was denied by the district court. See Geisler v. Wyeth Labs., 716 F. Supp. 520 (D. Kan. 1989). In its petition, Wyeth seeks review of the district court's determination that implementation of a screening mechanism would suffice to obviate the need to disqualify the Michaud firm from representing Geisler.

While the section 1292(b) petition was pending, we decided Graham v. Wyeth Labs., 906 F.2d 1419 (10th Cir. 1990), a disqualification motion involving the same facts underlying the issues here. In Graham, we held that insufficient factfindings precluded us from determining whether the Michaud firm was in fact disqualified, and we remanded the motion to the district court for an appropriate evidentiary hearing. See id. at 1424.

We are persuaded by our decision in Graham that we should grant Geisler's motion. The issues in the instant section 1292(b) petition concerning the propriety or adequacy of a screening mechanism are entirely premature if it is determined that the Michaud firm is in fact not disqualified. We therefore remand the instant section 1292(b) petition to the district court¹  for further proceedings in accordance with our decision in Graham.