In re AH Robins Co., Inc., MDL No. 211.

• Decision Date: 01 February 1985
• Docket Number: MDL No. 211.
• Citation: 602 F. Supp. 243
• Parties: In re: A.H. ROBINS COMPANY, INC., "Dalkon Shield" IUD Products Liability Litigation.
• Court: U.S. District Court — District of Kansas

602 F. Supp. 243

In re: A.H. ROBINS COMPANY, INC., "Dalkon Shield" IUD Products Liability Litigation.

MDL No. 211.

United States District Court, D. Kansas.

February 1, 1985.

Bradley Post, Post, Syrios & Bradshaw, Wichita, Kan., for plaintiffs.

Alexander H. Slaughter, McGuire, Woods & Battle, Richmond, Va., for defendant Robins.

OPINION AND ORDER

THEIS, District Judge.

Defendant A.H. Robins Company, Incorporated ("Robins") has filed a motion under 28 U.S.C. § 455(a) seeking the recusal of the presiding judge in this case. This motion is based solely upon this Court's filing of an affidavit before an investigatory panel of the Eighth Circuit Judicial Council concerning Robins' charges of judicial misconduct by the Honorable Miles W. Lord, Chief Judge of the United States District Court for the District of Minnesota.

Since December 10, 1975, this Court has presided over the instant multidistrict litigation ("MDL") proceedings, covering over a thousand federal cases and initially several hundred tagalong state cases involving products liability issues concerning the Dalkon Shield, a birth control device manufactured by Robins. During 1984, Judge Lord made certain remarks to Robins' executives during a settlement conference involving seven Dalkon Shield lawsuits pending before him. As a result of these remarks, Robins filed a misconduct complaint against Judge Lord in the Eighth Circuit. In addition, Robins appealed the district court's actions during the settlement negotiations, which appeal was decided on November 2, 1984, in Gardiner v. A.H. Robins Co., Inc., 747 F.2d 1180 (8th Cir.1984). In the disciplinary proceeding before the Eighth Circuit Judicial Council, this Court filed an affidavit which related the discovery process in the multidistrict Dalkon litigation and which espoused the right of a judge to comment on the proceedings before him. On January 10, 1985, Robins filed the present motion for recusal.

The Court would first disassociate itself from the contention of plaintiffs' counsel that the Robins' disqualification motion is somehow untimely. The Court agrees with Robins that such motion is timely and within the ambit of counsels' duty to use all possible judicial processes to protect their client.

Initially at issue is the applicable legal standard governing the consideration of the motion for recusal. Under 28 U.S.C. § 455(a), "any ... judge ... shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." The 1974 amendment to section 455 changed the standard for recusal from a subjective one, which left to the judge "in his opinion" the decision whether it would be improper to sit, 28 U.S.C. § 455 (1970), to the present objective standard, which requires disqualification whenever the judge's impartiality "might reasonably be questioned." In its motion for recusal, Robins has placed emphasis on the single term "might." More properly, the inquiry should be whether "there is a reasonable factual basis for doubting the judge's impartiality.... Disqualification for lack of impartiality must have a reasonable basis." H.Rep. No. 1453, 93rd Cong., 2d Sess., reprinted in 1974 U.S.Code Cong. & Admin.News 6351, 6355 (emphasis in original). The test is whether the charge of lack of impartiality is grounded on facts that would create a reasonable doubt concerning the judge's impartiality, not in the mind of the judge or in the mind of the litigant filing the motion for recusal, but rather in the mind of a reasonable person. United States v. Cowden, 545 F.2d 257, 265 (1st Cir.1976), cert. denied, 430 U.S. 909, 97 S.Ct. 1181, 51 L.Ed.2d 585 (1977).

Prior to the 1974 amendment, the rule was that a judge had a duty to sit on a case if the statutory grounds for his disqualification had not been established. See United States v. Diorio, 451 F.2d 21, 24 (2nd Cir.1971), cert. denied, 405 U.S. 955, 92 S.Ct. 1173, 31 L.Ed.2d 232 (1972); United States v. Anderson, 433 F.2d 856, 860 (8th Cir.1970); Edwards v. United States, 334 F.2d 360, 363 (5th Cir.1964). Courts generally agree that the amended version of section 455 was intended to displace the so-called "duty to sit" decisions. See, e.g., Parrish v. Board of Commissioners of the Alabama State Bar, 524 F.2d 98, 103 (5th Cir.1975). Recent decisions have noted, however, that a "trial judge has as much obligation not to recuse himself when there is no reason to as he does to recuse himself when the converse is true." United States v. Bray, 546 F.2d 851, 857 (10th Cir.1976). Accord United States v. Baskes, 687 F.2d 165, 170 (7th Cir.1981).

Several additional standards give the Court guidance in its consideration of Robins' motion for recusal, a motion the Court recognizes Robins did not make lightly. Dk. No. 727, p. 2. It is fundamental that the determination of bias, prejudice or lack of impartiality must be made on the basis of conduct which is extrajudicial in nature. United States v. Grinnell, 384 U.S. 563, 583, 86 S.Ct. 1698, 1710, 16 L.Ed.2d 778 (1966); United States v. Bray, 546 F.2d 851, 859 (10th Cir.1976); United States v. Patrick, 542 F.2d 381, 390 (7th Cir.1976); United States v. Cook, 400 F.2d 877, 879 (4th Cir.1968), cert. denied, 393 U.S. 1100, 89 S.Ct. 898, 21 L.Ed.2d 792 (1969).

Plaintiffs allude to ulterior motives behind the present motion, such as forumshopping. To evidence this contention, plaintiffs suggest that Robins' motion for class action certification, filed in In Re: Dalkon Shield Punitive Damages Litigation, No. 84-0884-R (E.D.Va., filed October 22, 1984), and Robins' motion for transfer of MDL 211 to the Eastern District of Virginia, filed with the Judicial Panel on Multidistrict Litigation, indicate an intent to shift the focus of the Dalkon Shield litigation to Robins' home district of Virginia. The Court believes that forum-shopping is not an appropriate subject of inquiry for the purposes of the present motion. A single matter is properly before the Court at this time: whether this Court should recuse under section 455.

The Court is mindful of the proposition that "disqualification is not favored where ... a single judge has acquired by experience familiarity with a protracted, involved case which could not easily be passed on to a second judge." City of Cleveland v. Cleveland Electric Illuminating Co., 503 F.Supp. 368, 370 (N.D.Ohio), mandamus denied sub. nom City of Cleveland v. Krupansky, 619 F.2d 576 (6th Cir.1980). See also National Auto Brokers Corp. v. General Motors Corp., 572 F.2d 953 (2nd Cir.1978), cert. denied, 439 U.S. 1072, 99 S.Ct. 844, 59 L.Ed.2d 38 (1979). With the above standards in mind, the Court shall proceed to analyze the substance of the parties' arguments.

The precise issue at hand is somewhat difficult to capsulize. Robins has framed the issue by employing a number of terms, such as "ex parte communication," "witness in a proceeding," and "personal opinion." These characterizations miss the mark. The issue concerns whether this Court's remarks took place in an extrajudicial context or whether they constituted appropriate judicial action. More particularly, may a judge come to the assistance of a fellow judge in a disciplinary proceeding without risking disqualification himself?

To be disqualifying, the alleged bias or prejudice must arise from an extrajudicial source and must result in an opinion "on some basis other than what the judge learned from his participation in the case." Davis v. Cities Service Oil Co., 420 F.2d 1278, 1282 (10th Cir.1970) (citing United States v. Grinnell Corp., 384 U.S. 563, 583, 86 S.Ct. 1698, 1710, 16 L.Ed.2d 778 (1966). See also Smith v. Halford, 570 F.Supp. 1187, 1189 (D.Kan.1983)). The Fifth Circuit has held that although a judge's remarks or behavior occur in a judicial context, this does not exclude them from scrutiny if they reflect "such pervasive bias and prejudice as would constitute bias against a party." Phillips v. Joint Legislative Committee on Performance and Expenditure Review, 637 F.2d 1014, 1020 n. 7 (5th Cir.1981), cert. denied sub. nom Mississippi v. Phillips, 456 U.S. 960, 102 S.Ct. 2035, 72 L.Ed.2d 483 (1982). Counsel for Robins, however, carefully noted at oral argument on the recusal motion that he advanced no allegations of actual bias or prejudice, but that he was concerned only about the appearance of partiality.

The Court believes that the appearance of impartiality is as important as the fact of it, but finds that the question of impartiality cannot be analyzed ex nihilo. Thus, the inquiry must be targeted toward whether the Court's action in filing an affidavit in Judge Lord's chastisement proceeding occurred in a judicial or extrajudicial context.

Numerous courts have drawn the distinction between bias that is personal in nature and bias that is judicial, see, e.g., United States v. Carmichael, 726 F.2d 158, 160 (4th Cir.1984), but few have delineated the contrast between judicial and extra-judicial activities. It is clear that a motion for disqualification may not be predicated on a judge's rulings "in the instant case or in related cases, nor on a demonstrated tendency to rule any particular way, nor on a particular judicial leaning or attitude derived from his experience on the bench." Phillips, 637 F.2d at 1020. See also Shaw v. Martin, 733 F.2d 304, 308 (4th Cir.1984). Beyond that, the ambit of the judicial context is somewhat murky.

To ascertain the nature of this Court's action in filing an affidavit in a fellow judge's disciplinary proceeding, a fairly unique set of circumstances unaddressed directly by the reported cases, the Court looks to cases focusing upon whether a judge's conduct occurred in a judicial or extrajudicial capacity. During the Watergate prosecutions, the intrepid probing of Judge John Sirica led to the revelations of corruption at the highest levels of government. Judge Sirica presented the testimony of a witness which neither party had called, an action approved...