Tuesday, August 4, 2010
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Court: Arbitrator Had No Duty to Disclose Censure
By KENNETH OFGANG, Staff Writer
A retired Los Angeles Superior Court judge had no duty to disclose his censure for making offensive comments about women based on their physical attributes before arbitrating a medical malpractice claim centering on a woman’s appearance, the state Supreme Court ruled yesterday.
In a 5-2 decision, the court overturned lower court rulings and reinstated an arbitration award in favor of Beverly Hills cosmetic surgeon Randal Haworth.
The arbitrators, in a decision authored by retired Los Angeles Superior Court Judge Norman Gordon, rejected Susan Ossakow’s claim that Haworth lacked her consent to perform a procedure on her lips in 2003, his fifth cosmetic procedure on her face. The panel also ruled that Haworth did not breach the appropriate standard of care.
In moving to vacate the arbitration award, Ossakow and her attorneys said they were unaware until April 2007, two months after the arbitration award, that Gordon had been censured by the state high court in 1996. The court found at the time that between April of 1990 and October of 1992, the then-judge had made a number of inappropriate comments and gestures of a sexual nature around staff members, as well as comments of an ethnic nature.
1995 Settlement
One of the complainants was a court reporter who sued Gordon and the state for sexual harassment and obtained an $85,000 settlement in 1995.
In agreeing to serve as the neutral member of the Ossakow-Haworth arbitration panel, Gordon filed a mandatory disclosure form. He notified the parties of past involvement in cases with the firm representing the doctor, but did not disclose that the had been censured.
Los Angeles Superior Court Judge Alan Goodman vacated the arbitration award, ruling that Gordon had a duty to disclose the censure, as a fact that would cause a reasonable person to doubt the ex-judge’s willingness or ability to rule impartially on Ossakow’s claim.
This district’s Court of Appeal, in a 2-1 decision, affirmed. Justice Sandy Kriegler authored the opinion of Div. Five, with Presiding Justice Paul Turner concurring and Justice Richard Mosk dissenting.
But Chief Justice Ronald George, writing for the high court, rejected the appellant’s claim that the trial judge’s decision was entitled to deference, saying the question of whether the facts required disclosure under the arbitration statute was a mixed question of law and fact as to which de novo review was appropriate.
Bias Issue
Turning to the merits, the chief justice said the facts of the censure did not indicate that Gordon was biased against women generally, or that he would not judge fairly in a case involving a female patient suing a male doctor.
“None of the conduct or comments for which Judge Gordon was censured involved litigants or occurred in the courtroom while court was in session,” the chief justice noted. “...Had this court concluded that Judge Gordon was unable to be fair to female litigants generally, public censure—which permitted him to continue to sit as a judge—would have been an inadequate form of discipline.”
George also said the public interest in the finality of arbitration awards would not be served by allowing such an award to be overturned based on an arbitrator’s failure to disclose such “readily discoverable” information as a censure that was published in the Official Reports of the California Supreme Court.
Justices Marvin Baxter, Ming Chin, Joyce L. Kennard, and Carol Corrigan concurred.
Justice Kathryn M. Werdegar, joined by Justice Carlos Moreno, dissented. Werdegar argued that “the embarrassing, belittling and disrespectful conduct and comments the Commission [on Judicial Performance] found occurred,” would “at the least” cause a reasonable person “to doubt the arbitrator would be fair to the female plaintiff’s claims of negligent cosmetic surgery.”
Werdegar added:
“...Judge Gordon’s censured conduct demonstrated an unwillingness or inability to control his impulse to harass and belittle women, even in a context—employment in judicial chambers—in which he must have known such harassment could have serious consequences. A person aware of the facts of Judge Gordon’s censure could for this reason reasonably doubt whether he could resist giving sway to his biased attitudes and render an impartial decision.”
The case was argued in the Supreme Court by Susan H. Schmid of the downtown Los Angeles firm Schmid & Voiles for Haworth, Daniel J. Koes of Pasadena’s Brown Shenoi Koes for Ossakow, and Fred J. Hiestand of Sacramento for the Civil Justice Association of California as amicus supporting the physician.
The case is Haworth v. Superior Court (Ossakow), 10 S.O.S. 4423.
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