Cipollone v. Liggett Group, Inc., s. 85-5073

• Decision Date: 29 September 1986
• Docket Number: 85-5074,Nos. 85-5073,s. 85-5073
• Citation: 802 F.2d 658
• Parties: Antonio CIPOLLONE, individually and as Executor of the Estate of Rose D. Cipollone v. LIGGETT GROUP, INC., etc. Appeal of LIGGETT GROUP, INC. Appeal of LOEW'S THEATRES, INC.
• Court: U.S. Court of Appeals — Third Circuit

Page 658

802 F.2d 658

55 USLW 2262

Antonio CIPOLLONE, individually and as Executor of the Estate of Rose D. Cipollone v. LIGGETT GROUP, INC., etc Appeal of LIGGETT GROUP, INC Appeal of LOEW'S THEATRES, INC.

Nos. 85-5073, 85-5074.

United States Court of Appeals, Third Circuit.

Sept. 29, 1986.

Before GIBBONS, SLOVITER and STAPLETON, Circuit Judges.

OPINION ON MOTION TO VACATE

GIBBONS, Circuit Judge:

Antonio Cipollone, individually and as an Executor of the Estate of Rose D. Cipollone, asks this court to vacate its judgment and opinion in Cipollone v. Liggett Group, 789 F.2d 181 (3d Cir.1986). Cipollone alleges that one member of the panel that decided that appeal, the Honorable James Hunter, III, should have recused himself because his participation created an appearance of partiality. We deny the motion.

The underlying case is a products liability action in which Cipollone seeks money damages from several cigarette manufacturers for cigarette-induced injury and death. In an interlocutory appeal pursuant to 28 U.S.C. Sec. 1292(b) (1982), the panel held that some of Cipollone's claims are preempted by the Federal Cigarette Labeling and Advertising Act, 15 U.S.C. Secs. 1331-1342 (1982 & Supp. III 1985). That Act was passed in 1965, Pub.L. 89-92, July 27, 1965, 79 Stat. 282.

Judge Hunter was appointed to this court in 1971. Cipollone contends that an appearance of partiality arose because Judge Hunter, while in private practice, represented The American Tobacco Company in a case involving a similar products liability claim. That case, Lapp v. American Tobacco Company, No. L-21590-63 (N.J.Super.Ct.Law Div.) was filed in the Superior Court of New Jersey in 1964, and was terminated, as to American Tobacco Company, on February 10, 1966. American Tobacco Company is not a defendant in Cipollone's case. Furthermore, the preemptive effect of the Federal Cigarette Labeling and Advertising Act could not have been an issue in the Lapp case, since the events giving rise to that action occurred before the passage of that Act.

Even if American Tobacco Company were a party to the Cipollone case, the long passage of time since Judge Hunter's last representation of that Company requires the conclusion that no reasonable person could question his impartiality. See, e.g., Chittimacha Tribe of Louisiana v. Harry L. Laws Company, Inc., 690 F.2d 1157, 1166 (5th Cir.1982), cert. denied, 464 U.S. 814, 106 S.Ct. 69, 78 L.Ed.2d 83 (1983) (recusal not warranted where judge had represented the defendant in unrelated matters at least six years earlier); Jenkins v. Bordenkircher, 611 F.2d 162, 165-67 (6th Cir.1979), cert. denied, 446 U.S. 943, 100 S.Ct. 2169, 64 L.Ed.2d 798 (1980) (recusal not required where trial judge had prosecuted defendant for several unrelated crimes during the period four to thirteen years prior to the time of trial); Gravenmier v. United States, 469 F.2d 66, 67 (9th Cir.1972) (where trial judge was of counsel in prior prosecution six years before present unrelated prosecution, recusal not required); Darlington v. Studebaker-Packard Corp., 261 F.2d 903, 906 (7th Cir.), cert. denied, 359 U.S. 992, 79 S.Ct. 1121, 3 L.Ed.2d 980 (1959) (recusal not warranted where trial judge had represented defendant in unrelated matters for a period of four to five years which ended three to four years before judge's decision); Royal...