Jackson v. Fort Stanton Hosp. and Training School

• Decision Date: 28 December 1990
• Docket Number: Civ. No. 87-0839 JP.
• Citation: 757 F. Supp. 1231
• Parties: Walter Stephen JACKSON, et al., Plaintiffs, v. FORT STANTON HOSPITAL AND TRAINING SCHOOL, et al., Defendants, v. John E. and Iris YOUNG, legal guardians and parents of Rita Kay Young, et al., Intervenors.
• Court: U.S. District Court — District of New Mexico

757 F. Supp. 1231

Walter Stephen JACKSON, et al., Plaintiffs, v. FORT STANTON HOSPITAL AND TRAINING SCHOOL, et al., Defendants, v. John E. and Iris YOUNG, legal guardians and parents of Rita Kay Young, et al., Intervenors.

Civ. No. 87-0839 JP.

United States District Court, D. New Mexico.

December 28, 1990.

Paul L. Biderman, Santa Fe, N.M., Philip B. Davis, Albuquerque, N.M., Robert Levy, Levy and Geer, P.A., Daniel W. Shapiro, Albuquerque, N.M., Timothy M. Cook, Judith A. Gran, Frank Laski, The Public Interest Law Center of Philadelphia, Philadelphia, Pa., Peter Cubra, Marlene Foster, Protection and Advocacy System for New Mexicans with Developmental Disabilities, Albuquerque, N.M., Ann Tilford Sims, Williams, Conroy & Sims, Belen, N.M., Nancy Koenigsberg, Protection and Advocacy System, Albuquerque, N.M., for plaintiffs.

Barbara Bergman, School of Law, University of New Mexico, Albuquerque, N.M., Guardian Ad Litem, for Felicia Botello.

Kent Winchester (Roberta Beyer, of counsel), Albuquerque, N.M., for applicants-in-intervention plaintiffs.

Vernon W. Salvador, Albuquerque, N.M., for intervenors.

Jerry A. Dickinson, Beth W. Schaefer, Patricia E. Bustamante, Sp. Asst. Attys. Gen., Hal Stratton, Atty. Gen., Chris Coppin, Santa Fe, N.M., Joel I. Klein, Paul M. Smith & Rebecca L. Brown, Onek, Klein & Farr, Washington, D.C., for State defendants.

MEMORANDUM OPINION AND ORDER

PARKER, District Judge.

The subject of this memorandum opinion and order is "Plaintiffs' Motion for Disqualification," filed August 29, 1990. After reviewing the memoranda submitted by the parties in conjunction with the motion, and after consulting the applicable authorities, I conclude that plaintiffs' motion should be denied.

I. Background

This action was filed on July 8, 1987. The case has required numerous proceedings and orders and has involved a multitude of parties and witnesses.¹ After many days of evidentiary hearings on requests for emergency relief beginning in late 1987, the main trial began on October 16, 1989, consuming a total of eight weeks in the following trial segments: October 16-19, 1989; October 30 to November 3, 1989; November 13-16, 1989; December 12-15, 1989; January 2-5, 1990; and April 2-27, 1990. In the course of the trial, many witnesses, most of whom were presented as experts, testified; over eight hundred exhibits were admitted into evidence; and over 10,000 pages of transcripts were recorded.

During the trial I decided that the assistance of a court-appointed expert, with broad expertise in the area of developmental disabilities, would enhance my ability after trial to articulate an opinion based on the trial evidence.² In addition, at the time I was considering appointing an expert, which was before I heard all of the parties' experts testify, I believed it would be useful to have an independent expert available after trial to advise me on whether my conclusions based on the trial testimony and other evidence were professionally understandable and practical.³ By letter of December 15, 1989, I asked the attorneys to confer and jointly to submit recommendations, or preferably one recommendation, to fill the position. If counsel were unable or unwilling to agree on a joint submission, I requested separate submissions of no more than five recommendations each. Letter to counsel, December 15, 1989.

In early January, 1990 the attorneys conferred but to no avail. In short order, I received three sets of recommendations: defendants provided four nominees, intervenors one, and plaintiffs five, with no common recommendation. The parties offered substantial commentary on their own nominees, as well as on those of the other parties. The defendants and plaintiffs provided lengthy criticisms of one another's selections. I endeavored to select the nominee with the broadest experience who would be the most acceptable to all parties. To that end, I chose Dr. James Foshee, a nominee of the defendants who was then employed as Assistant Commissioner of Mental Retardation Services for the State of Tennessee.

In accordance with my needs, and in consideration of the parties' preferences,⁴ Dr. Foshee was an acceptable expert for the duties required of him by the court. Although opposed to Dr. Foshee, the plaintiffs found him to be the least objectionable of defendants' nominees. In discussing those nominees, plaintiffs allowed: "... only one of those individuals even meets the sole criteria sic established by the court; only James Foshee could fairly be called a `generalist' in the field of developmental disabilities." And further:

James Foshee comes closest among the four to meeting the criteria plaintiffs have recommended. As assistant commissioner for mental retardation services in the state of Tennessee over the past 14 years he is experienced in administering or contracting for the provision of both institutional and community based services. He can fairly be called a "generalist."

Letter from plaintiffs, January 12, 1990, 2 & 5. Nonetheless, plaintiffs objected to Dr. Foshee for two stated reasons. First, plaintiffs believed that Dr. Foshee's personal and professional relationship with Dr. Carl Haywood, who testified at trial on behalf of the defendants, would inhibit a candid expression of Dr. Foshee's views. Second, they argued that his employment by Tennessee, a state with a relatively high rate of institutionalization, would inhibit his ability or inclination to take positions contrary to that state's practices. Id. at 5-6.

In response to plaintiffs' concerns, I interviewed Dr. Foshee by telephone in early February, 1990. After speaking with him at length, I was fully satisfied that he had no predisposition as to the outcome of the case and would have no difficulty taking positions contrary either to those expressed by Dr. Haywood or to the practices of his employer. Regarding this second point, Dr. Foshee also informed me that he was contemplating retirement within the following few months; as it turned out, before Dr. Foshee toured the institutions or engaged in substantive conversations, he had decided to retire, and did retire from his position with the state before his deposition was taken. Finally, I was impressed with Dr. Foshee's willingness to express opinions with frankness and without hesitation. See letter to counsel, February 16, 1990. I informed counsel that although Dr. Foshee would not be present for the completion of the trial, he would review the transcripts of the proceeding and would visit both institutions following the completion of the trial. With respect to his role I explained to all counsel: "I plan to call on Dr. Foshee to assist me with technical questions as well as to comment on trial testimony on which I elicit his views." Id.

Plaintiffs renewed their objections to the impending appointment of Dr. Foshee. Citing Rule 706(a), plaintiffs also argued that communications between the court and Dr. Foshee must be on the record. Letter from plaintiffs, February 23, 1990, 3.⁵

By order of March 28, 1990 I appointed Dr. Foshee as the court expert. My order, which was modelled after an order⁶ submitted by the plaintiffs, directed Dr. Foshee: to investigate and evaluate conditions at the two facilities; to evaluate training received by individually named plaintiffs to determine its adequacy in preventing deterioration of self-care skills; to determine and verify the proper basis of placement recommendations by interdisciplinary teams for individually named plaintiffs; to evaluate the reports and testimony of the expert witnesses of all parties; and to offer testimony after trial, if requested, as to his findings and expert opinions. Additionally, the order granted the parties reasonable opportunity to depose Dr. Foshee after completion of his review, investigation and evaluation and, furthermore, granted the parties the right to cross-examine him on any findings and opinions. Order, filed March 28, 1990. In a letter accompanying the order, I informed the parties: "In regard to plaintiffs' request that communications with Dr. Foshee be made on the record, the parties should be advised that I plan to communicate with Dr. Foshee by telephone when necessary. Copies of any written correspondence, however, are being placed in the court file." Letter to counsel, March 28, 1990.

After presentation of evidence during April, Dr. Foshee reviewed the trial transcripts and visited the institutions, accompanied by me, my law clerk Laura Cordero, and representatives of all parties.

In response to questions by the parties as to the evidentiary form in which Dr. Foshee would present his findings and what role the parties would play in that process, I advised counsel that I would not be asking Dr. Foshee to prepare an extensive written report. I thought such a request would unnecessarily delay resolution of the case. Letter to all counsel, May 22, 1990. During trial on April 27, 1990, I had asked counsel for suggestions concerning communications between the court and Dr. Foshee. Defendants and intervenors had requested an opportunity to depose him on any opinions rendered to the court pursuant to Rule 706. Plaintiffs had asked that any communications be placed on the record.

In particular, plaintiffs were concerned by my stated intention to speak with Dr. Foshee by telephone. Before engaging in any substantive conversations with Dr. Foshee, I sought to address plaintiffs' concern. I therefore asked all counsel what type of record would adequately inform them of my conversations with Dr. Foshee, which I planned to begin once he had completed his review of transcripts and his visit to the facilities. On April 27, 1990, the following exchange took place between me and the parties, Mr Cerf for the defendants, Mr. Winchester for the intervenors, and Mr. Cubra for plaintiffs:

THE COURT:

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Now I want to address the broader issue of the Court's communications with Dr. Foshee, and tell you that

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