Friday, January 10, 2003
Ninth Circuit Overturns Verdict Due to Lawyer’s Kinship to Judge
By KENNETH OFGANG, Staff Writer/Appellate Courts
A $650,000 verdict in a personal injury action was overturned yesterday by the Ninth U.S. Circuit Court of Appeals, which said the judge should have been disqualified because his brother-in-law, an associate at the law firm representing the plaintiff, sent two letters about the case to an expert witness.
Lawyers at the Great Falls, Mont. firm of Hoyt & Blewett filed “materially misleading” affidavits denying that Kurt Jackson had worked on Elaine Mangini’s case, Judge Stephen S. Trott wrote for the court. Jackson’s wife is the sister of Chief U.S. District Judge Donald Molloy, who tried the case.
Mangini retained Hoyt & Blewett after she was injured while touring Glacier National Park on a bicycle. The firm eventually filed suit on her behalf against the touring company, Timberline Adventures, and the federal government, alleging that the defendants were negligent in failing to warn regarding a dangerous patch of gravel on a highway within the park.
Mangini claimed severe injuries as a result of having been pitched over the handlebars.
About three weeks before the December 2000 trial, Timberline’s attorneys moved to disqualify Molloy on the basis of his relationship to Jackson. They cited 28 U.S.C. Sec. 455, which requires disqualification when a judge or judge’s spouse is related “within the third degree of relationship” to a person “acting as a lawyer in the proceeding” or to the spouse of such a person.
The motion was denied after firm partner John C. Hoyt—since deceased—and Jackson filed affidavits declaring that Jackson’s only involvement with the case was authorship of correspondence before suit was filed. Molloy tried the case without a jury, awarding Mangini $656,000 against Timberline and $98,000 against the government, which later dropped its appeal.
On appeal, the court allowed Timberline to supplement the record with three documents—two letters about the case, sent by Jackson to an expert witness after suit was filed, plus a document from the expert’s file listing Jackson as the expert’s contact at Hoyt & Blewett.
Hoyt & Blewett argued that Jackson’s activities were clerical in nature and did not constitute participation as a lawyer in the case, a contention Trott said was “unconvincing.”
Communication between counsel and an expert is not a mere clerical task, the appellate jurist said, but “would, in almost all circumstances, constitute professional work for which attorney fees could be awarded.”
Normally, Trott went on to say, denial of a motion to disqualify is reviewed for abuse of discretion. But where the judge has been misled, as in this case, there was no opportunity for the exercise of reasoned discretion and reversal is required, especially where there has been a bench trial, the judge said.
“The appropriate remedy in this case is to vacate and remand for a new trial before a different district court judge,” Trott wrote. “...Here—there is no way to cure this problem because the fact remains that, unbeknownst to Judge Molloy, his brother-in-law acted as a lawyer for a tort plaintiff in an action that was tried in his court, without a jury.”
The case is Mangini v.Gottsegan, 01-35273.
Copyright 2003, Metropolitan News Company