Commercial Litigation and Arbitration

Judicial Recusal — May Judges Recuse Themselves from Part of a Case But Not All of It under § 455? — Circuit Split — Sixth Circuit Adopts Majority Rule that Partial Recusal Is Permissible

Decker v. GE Healthcare Inc., 2014 U.S. App. LEXIS 20049 (6th Cir. Oct. 20, 2014):

On March 22, 2013, after twelve days of testimony and two days of deliberation, a jury returned a verdict in favor of the Deckers. Although the jury found for GEHC on the design defect and nonconformance to representation claims, the jury found for plaintiffs on the failure-to-warn claim, unanimously determining that GEHC knew or should have known about the risks that Omniscan presented to patients with renal impairment but failed to warn adequately the medical community--including Mr. Decker's radiologist, Phillip Shaffer, who administered the  [**10]  contrast dye--about those risks. The jury awarded Mr. Decker $4,500,000 in compensatory damages--$1,000,000 for economic loss and $3,500,000 for noneconomic loss--and Mrs. Decker $500,000 for loss of consortium. The district court entered judgment on March 28, 2013.

Following the verdict, plaintiffs sought prejudgment interest. Under Ohio law plaintiffs that prevail at trial are entitled to prejudgment interest if they made a good faith effort [*19]  to settle the case before trial and defendant, by contrast, did not do so. See Ohio Rev. Code § 1343.03(C)(1). This decision is usually made by the trial judge following the verdict. See Singer v. Celina Group, No. 94-CA-0333, 1995 WL 495427 (Ohio Ct. App. May 30, 1995). In this case, however, Judge Polster sua sponte recused himself from ruling on plaintiffs' motion. Judge Polster explained that he "was so heavily involved in mediating a resolution of this case that [he] would likely [have been] a witness to a litigated dispute involving the parties' settlement efforts" and that he was "not allowed to act as both a judge and a witness." Judge Polster emphasized that his recusal applied only to the discrete issue of plaintiffs' motion for prejudgment interest "and nothing more." Plaintiffs' motion for prejudgment interest was reassigned to Judge Donald Nugent, who held a hearing on the motion on October 3, 2013. On November 21, 2013, Judge Nugent denied the motion, finding that counsel for both parties carefully and rationally evaluated the case and followed the recommendations of the court and that neither party failed to act in good faith during settlement negotiations.

GEHC moved for a new trial, to alter or amend the judgment, and for remittitur. GEHC argued, inter alia, that *** (3) because Judge Polster recused himself from ruling on the Deckers' post-trial motion for prejudgment interest, he should never have presided over the trial. ***

First, GEHC argues that Judge Polster's sua sponte recusal [*21]  from ruling on the Deckers' motion for prejudgment interest requires vacatur of the judgment and a new trial. Relatedly, GEHC suggests that since Judge Polster recused himself from ruling on the prejudgment-interest motion, he should have also recused himself from ruling on GEHC's Rule 59 motion. The district court rejected these arguments in two opinions and orders denying GEHC's motion for a new trial. We review a district court's denial of a motion for a new trial for abuse of discretion. Nolan v. Memphis City Schs., 589 F.3d 257, 264 (6th Cir. 2009) (citing Morgan v. N.Y. Life Ins. Co., 559 F.3d 425, 434 (6th Cir. 2009)). "Reversal is only warranted if the Court has a 'definite and firm conviction that the trial court committed a clear error of judgment.'" Id. (quoting Barnes v. Owens--Corning Fiberglas Corp., 201 F.3d 815, 820 (6th Cir. 2000)). Furthermore, "[t]his court will affirm a district judge's decision not to recuse himself pursuant to 28 U.S.C. § 455(a) unless it constitutes an abuse of discretion." United States v. Howard, 218 F.3d 556, 566 (6th Cir. 2000) (citing Union Planters Bank v. L & J Dev. Co., 115 F.3d 378, 382 (6th Cir. 1997)).

GEHC contends that 28 U.S.C. § 455 prohibits piecemeal recusal and, therefore, the district court's recusal with respect to plaintiffs' motion for prejudgment interest entailed recusal from all other rulings in the case, including GEHC's motion for a new trial. Under § 455(a), "[a]ny justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality [*22]  might reasonably be questioned." 28 U.S.C. § 455(a). Section 455(d)(1) states that a "'proceeding' includes pretrial, trial, appellate review, or other stages of litigation." This court has yet to interpret these provisions to determine whether § 455 permits partial recusals.

GEHC cites In re Aetna Casualty and Surety Co., 919 F.2d 1136 (6th Cir. 1990) (en banc), as support for its favored position. Aetna, however, did not hold that § 455 prohibits partial recusals. In Aetna, a chief district court judge had recused himself from seven cases, which had been consolidated, because his daughter worked for a firm that participated in four of the cases. See id. at 1137. Upon knowing that the cases would not be tried together, the judge reentered the remaining three cases. Id. at 1137-38. Aetna moved for disqualification, the district court denied that motion, and Aetna petitioned for a writ of mandamus from the Sixth Circuit. See id. at 1137. This court granted that petition, holding that the judge should have recused himself "from making decisions in any of the consolidated FDIC-Aetna cases." Id. at 1145. Even if his daughter's firm were not of counsel in the three cases the district judge assigned to himself, this court explained, because a decision on the merits might have constituted law of the case, involved collateral estoppel, [*23]  or served as persuasive precedent, § 455(b) warranted his disqualification. See id. at 1143, 1146. This court also vacated the judge's grant of partial summary judgment because "the risk of undermining the public's confidence in the judicial process [was] significant." See id. at 1145-46 (citing Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 864 (1988)). Aetna straightforwardly addressed a disqualification motion under § 455(b). It did not concern the instant, specific issue of whether § 455 permits a limited, partial sua sponte recusal in an appropriate case.

Other circuit courts have expressed contrary views on the matter of partial recusals. The majority view approves partial recusals as an important case-management device. See, e.g., Ellis v. United States, 313 F.3d 636, 642 (1st Cir. 2002) ("Today, we make that approval explicit: we hold that a judge may, in an appropriate case, decide certain issues and recuse himself or herself as to others."); Pashaian v. Eccelston Props., Ltd., 88 F.3d 77, 84-85 (2d Cir. 1996) (holding that district court did not err in deciding a motion before effecting recusal and that such was "a practical and appropriate resolution"); United States v. Kimberlin, 781 F.2d 1247, 1258-59 (7th Cir. 1985) (finding no abuse of discretion where the trial judge issued a limited recusal order); but see United States v. Feldman, 983 F.2d 144, 145 (9th Cir. 1992) ("[W]hen a judge determines that recusal is appropriate it is not within his discretion to recuse by subject matter or only as to certain issues and not others."). [*24]

We join the majority view that 28 U.S.C. § 455(a) does not categorically prohibit partial recusal. Construing § 455(a), we find that the reasons for questioning judicial impartiality in one "proceeding" of a case do not necessarily obtain in every "proceeding" of that case. See 28 U.S.C. § 455(d)(1). Rather, in the appropriate instance, partial recusal serves the interests of case management and judicial economy. See, e.g., Ellis, 313 F.3d at 642 (finding that the judge's partial recusal "was a valid exercise of judicial authority" and "constituted a sound method of dealing with the prickly problem of balancing the demands of section 2255--a statute that evinces a strong preference for post-conviction review by the judge who presided at the defendant's trial--with the demands of the recusal statute, 28 U.S.C. § 455(a)").

In this case, Judge Polster declined to rule on the Deckers' motion for prejudgment interest, which requires a showing of the prevailing party's good faith effort to settle and the non-prevailing party's lack of such an effort. See O.R.C. § 1343.03(C)(1). Because Judge Polster "was so heavily involved in mediating a resolution of this case that [he] likely [would have been] a witness to a litigated dispute involving the parties' settlement efforts," and because Judge Polster was not allowed [*25]  to act as both a judge and a witness, see Fed. R. Evid. 605, he held that any ruling on the Deckers' motion would have been improper. Judge Polster also explained that from the beginning of the MDL in 2008 he had been extensively involved in mediating resolutions and that over six hundred cases had been resolved, a majority with his direct assistance. Because cases remained in the MDL, including several cases in which GEHC was a party, Judge Polster was concerned that a ruling on GEHC's good faith in pursuing pre-trial settlement might have impaired his ability to assist in settling the remaining MDL cases. Unlike the district court judge in Aetna, Judge Polster's limited recusal avowedly was not based on any financial conflict, any other conflict, or any actual or perceived bias or prejudice to either party, and had no bearing on his impartiality as a trial judge. The specific reasons for Judge Polster's delimited recusal, especially his first-hand knowledge of the parties' settlement efforts, simply are not implicated in his subsequent rulings, including his denial of GEHC's motion for a new trial. Accordingly, we hold that Judge Polster's decision not to recuse himself from ruling on GEHC's Rule 59 motion [*26]  was not an abuse of discretion.

Nor does Judge Polster's recusal from ruling on the Deckers' motion for prejudgment interest require vacatur and a new trial. GEHC argues that the recusal indicated an appearance of partiality and argues that vacatur of the judgment and a new trial are necessary to maintain public confidence in the judiciary. GEHC suggests that because recusal is warranted where a judge acquires "a deep-seated favoritism or antagonism that would make a fair judgment impossible," Liteky v. United States, 510 U.S. 540, 555 (1994), an impartial observer could conclude that Judge Polster's recusal arose from such an antagonism, and, therefore, vacatur and a new trial are necessary to maintain the appearance of impartiality and the public confidence in the judiciary. GEHC also suggests that Judge Polster's concern over his impartiality as to the Deckers' motion for prejudgment interest demonstrates a lack of impartiality that arose before trial.

GEHC overstates the case. First, Judge Polster's recusal was not from the entire case but only from the Deckers' motion for prejudgment interest. Second, he gave motion-specific reasons for recusal, citing his firsthand knowledge of the parties' settlement efforts and his concern [*27]  that ruling on the Deckers' motion would undermine his ability to mediate other settlements in the MDL. Third, he avowed that his limited recusal was not due to any financial conflict or to any actual or perceived bias toward either party. GEHC has not shown otherwise. Therefore, the reasons for Judge Polster's recusal from the Deckers' prejudgment interest motion are specific to that motion, do not impugn his impartiality or the appearance thereof with respect to the jury trial or any other proceeding, and simply do not count in favor of his disqualification from the entire case. Vacatur and a new trial are not required to ensure the appearance of impartiality and public confidence in the judiciary. Accordingly, Judge Polster did not abuse his discretion in holding that recusal from the Deckers' motion for prejudgment interest does not require a new trial.

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