Wednesday, April 20, 2022

Media Comments, Facebook Activity Require Judge's Recusal In Opioid Litigation

The Tennessee Court of Appeals ordered a trial judge's recusal and vacated a substantive order entered in litigation against an opioid manufacturer based on Facebook posts and a Law360 interview

The trial judge stated during the February 10 hearing that he would hold the Endo Defendants in default and that their former counsel “might be going to jail with or without their toothbrush” “if they had . . . show[n] up” at the hearing. Following the February 10 hearing, the trial judge gave an interview to a Law360.com reporter, and the interview formed the basis for an article that appeared on the website on February 14, 2022. Per the article, the trial judge is quoted as saying, among other things, that the alleged discovery violations by the Endo Defendants were “the worst case of document hiding that I’ve ever seen. It was like a plot out of a John Grisham movie, except that it was even worse than what he could dream up.” Subsequently, on February 15, 2022, the trial judge posted on his personal Facebook page about the apparent lack of local media coverage in this case, stating, “Why is it that national news outlets are contacting my office about a case I preside over and the local news is not interested.” Screenshots of the trial judge’s Facebook page reveal that the page appears to be devoted in part to a re-election effort given a “Re-Elect” picture banner next to his name.

In addition to the general comment regarding the apparent lack of local media coverage of this case, the trial judge’s Facebook activity evidenced several other communications by the judge relative to his Facebook post and the case. After one commenter stated that “You’re not trying to ban drunken bridesmaids on peddle carts,” the trial judge responded, “[N]ope. Opioids.” The commenter then followed up by stating, “I don’t know if you’re going to get the help or platform you need from those with power/deep pockets. Many of Tennessee’s powerful have ties to pharmaceuticals.” The trial judge specifically “liked” this comment.

When another commenter inquired into whether the trial judge could say why the case was newsworthy, the judge responded, “Is a $1.2 Billion opioid case. Our area has been rocked with that drug for decades. Lots of interesting and new developments about the manufacturers in this case.” Other commenters added a number of statements opining on who should be held accountable, following which one person commented, “We do not have a serious local news reporting outfit around here. . . . The Tennessean is a left leaning rag so that leaves the internet to provide people the local ‘news.’” The trial judge “liked” this post and responded that “[t]his is an earth shattering case, especially for our community. Fake news is not always what they publish, but what they choose not too also.”

The court

In our view, this activity by the trial judge positions himself publicly as an interested community advocate and voice for change in the larger societal controversy over opioids, not an impartial adjudicator presiding over litigation. This perception is enhanced when considered alongside the trial judge’s ready participation in the Law360.com article and apparent desire, as expressed on his Facebook page, for more local media coverage. The trial judge appears to us to be motivated to garner interest in this case and draw attention to his stated opposition to opioids within a community that he noted had been “rocked with that drug.”

...In this case, it is clear to us that a reasonable basis for questioning the trial judge’s impartiality exists. Particularly noteworthy here in our view is the trial judge’s engagement on Facebook concerning this litigation, activity that occurred after the trial judge had given the aforementioned interview to Law360.com concerning the case.

Result

Regardless of the specific motivation, however, it is clear here to us that the trial judge’s comments and social media activity about this case are easily construable as indicating partiality against entities such as the Endo Defendants. For this reason, and to promote confidence in our judiciary, we conclude that the trial judge erred in refusing to recuse himself from the case. We therefore reverse the trial court’s order denying the Endo Defendants’ motion for recusal and remand the case to the Presiding Judge of the Thirteenth Judicial District for transfer to a different judge.

(Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2022/04/the-tennessee-court-of-appeals-ordered-a-trial-judges-recusal-and-vacated-prior-orders-entered-in-litigation-against-an-opioi.html

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