Lazofsky v. Sommerset Bus Company, Inc., 389 F. Supp. 1041, 1043 (E.D. N.Y. 1975).
Eighth, the Plaintiffs contend that during the argument on the motion for mistrial, the undersigned judge accused Plaintiffs' counsel of attempting to put him in a bad light when in fact Plaintiffs' counsel accurately stated that the undersigned judge himself first brought up insurance during the questioning of the prospective jurors. Plaintiffs characterize this comment as showing "animus" to Plaintiffs' lawyer as a result of the undersigned judge's prejudice against the Plaintiffs. In effect, the Plaintiffs are contending that the Court's alleged bias against their counsel indicates prejudice against the Plaintiffs. Judge Bell, now Attorney General Bell, in Davis v. Board of School Commissioners of Mobile County, 517 F.2d 1044, 1050-51 (5th Cir. 1975) stated that "party" as used in § 144 does not include counsel as such. Bias or prejudice against counsel except where it demonstrates bias of such a nature as to amount to a bias against the group of which the party is a member, for example, Negroes, Jews, Germans, or Baptists, does not constitute grounds for disqualification. See United States ex rel. Wilson v. Coughlin, 472 F.2d 100, 104 (7th Cir. 1973); Giebe v. Pence, 431 F.2d 942, 943 (9th Cir. 1970); United States v. Valenti, 120 F. Supp. 80, 86 (D. N.J. 1954). In addition, the undersigned judge's comment resulted from activity of Plaintiffs' counsel he observed during the trial, not from an extrajudicial source.
Ninth, the Plaintiffs contend the undersigned judge's allegedly harsh and hostile treatment of counsel for the Plaintiffs indicates his personal bias and personal prejudice against the Plaintiffs. According to the Plaintiffs, the undersigned judge unnecessarily commented that the remarks of counsel for the Plaintiffs which caused the mistrial in this case was "grossly improper." The characterization was made in the statement to the jury of the reason for the declaration of mistrial. The jurors and the parties were entitled to an explanation of the Court's granting of the motion for mistrial. In addition, according to the Plaintiffs' affidavits, the undersigned judge on two previous occasions indicated that he was "shocked" at Plaintiffs' counsel's conduct. All three of these incidents resulted from the Court's observation of Plaintiffs' counsel either in pre-trial proceedings or during the trial. Thus, any bias which this conduct displays is not extrajudicial in origin. United States v. Grinnell Corporation, 384 U.S. 563, 583, 16 L. Ed. 2d 778, 86 S. Ct. 1698 (1966); Duplan Corporation v. Deering Milliken, Inc., 400 F. Supp. 497, 518 (D. S.C. 1975). To the extent that the Court's remarks may indicate bias against Plaintiffs' counsel they do not constitute grounds for recusal.
Tenth, the Plaintiffs contend that the Court's ruling without hearing argument from either side that asking hypothetical questions of doctors who would be expert witnesses would not be permitted at trial indicates the Court's prejudice toward the Plaintiffs. This Court usually does not permit hypothetical questions. This is a legal ruling and does not indicate personal bias toward the Plaintiffs. The Plaintiffs have not been singled out for special treatment. This is the Court's general policy which stems from the current Rules of Evidence. The Plaintiffs have the opportunity to attempt to ask hypothetical questions when their experts take the stand and persuade the Court that its original ruling was incorrect. The Court is not aware that it had made a blanket ruling that hypothetical questions would not be allowed under any circumstance. I believe that I stated that I usually do not permit hypothetical questions. But for the purposes of this motion the Court will accept Plaintiffs' contention as true. The manner in which a Court renders a ruling is not grounds for recusal pursuant to § 144. Blank v. Sullivan and Cromwell, 418 F. Supp. 1 (S.D. N.Y. 1973); Lazofsky v. Sommerset Bus Company, Inc., 389 F. Supp. 1041, 1043 (E.D. N.Y. 1975). This incident stems from trial and not from an extrajudicial source.
Eleventh, Plaintiffs contend that the undersigned judge is biased and prejudiced against them because he has "vehemently" stated on several occasions that in his opinion matters such as the Plaintiffs' personal injury case do not belong in the federal courts. Many federal judges, including Chief Justice Burger, have publicly stated that they do believe that diversity jurisdiction should be abolished. Following Plaintiffs' reasoning, every federal judge who has indicated such a position including the Chief Justice would be forced to recuse himself in every diversity case. To avoid this result federal judges would be deprived of their opportunity to express their views concerning the general operation of the federal courts. Such a situation would be intolerable. The mere fact that a judge has previously expressed himself on a particular point of law is not sufficient to show personal bias or prejudice. United States v. Bray, 546 F.2d 851, 857 (10th Cir. 1976). In this case, the undersigned judge merely indicated a view as to a general kind of case. An attitude or feeling a judge may entertain toward the subject matter of a case does not disqualify him. Lawton v. Tarr, 327 F. Supp. 670, 673 (E.D. N.C. 1971). See Blank v. Sullivan and Cromwell, 418 F. Supp. 1 (S.D. N.Y. 1975); Commonwealth of Pennsylvania v. Local U. 542, International U. of Op. Eng., 388 F. Supp. 155 (E.D. Pa. 1974).
Twelfth, Plaintiffs contend in their affidavits that the undersigned judge's refusal to allow the use of visual aids to present their case to the jury indicates prejudice against them. The Court recollects that it refused to allow the use of the visual aids during the Plaintiffs' opening statement to the jury because there would be no expert witness to interpret the visual aids and because there would be no means of verifying the accuracy of the visual aids. But it will assume that the Plaintiffs' recital of the facts is correct for the purpose of this motion. The Court's alleged denial of visual aids was a legal ruling and does not show personal bias. It stems from the trial, not from an extrajudicial source. Repeated rulings against the litigant, no matter how erroneous and vigorously and consistently expressed, are not a basis for disqualification of a judge on the grounds of bias and prejudice. Maret v. United States, 332 F. Supp. 324, 326 (E.D. Mo. 1971). A reasonable individual would not conclude that the Court's denial of the use of visual aids indicated personal bias against the Plaintiffs.
Thirteenth, Plaintiffs contend that the undersigned judge's comparison of their case on several occasions to a major malpractice case recently tried by him indicates that the undersigned judge has a preconceived idea that their case is unimportant. This interpretation of the Court's statement appears to be without basis. The Court viewed the procedures employed in a major malpractice case that it had tried in May, 1977 as a guide to the conduct of this case. Its characterization of another case as a major case in no way indicated that it viewed the present case as a minor case. A reasonable person would not conclude that the undersigned judge's comparison of this case to a major, malpractice case indicated personal bias against the Plaintiffs. Plaintiffs maintain that my comment that I was shocked when their counsel asked for an hour for his opening statement because even in a recent major case I had allowed only 15 minutes for opening remarks shows my prejudice against them. This comment in no way indicates that I believe that this case is not important. A reasonable person would not conclude that this incident establishes personal bias.
All of the Plaintiffs' contentions concerning this Court's bias if taken together do not establish personal animosity toward the Plaintiffs. They involve rulings and statements made by this Court based on its observation of the conduct of this case. Disqualifying myself on the basis of the facts set forth in these affidavits would encourage judge-shopping when a party believed that a judge's rulings had been adverse to it. It is this Court's view that the purpose of this motion is to obtain another judge whom counsel feels will render more favorable decisions, particularly on the question of bifurcation. No bias, personal or judicial, has been shown by the affidavits presented by the Plaintiffs. The Court has accepted every fact in the affidavits as true, even though in its opinion certain incidents were greatly misrepresented.
In the light of the foregoing, the Plaintiffs' request for disqualification of the undersigned judge will be denied.
An appropriate order will be entered.
MALCOLM MUIR / MUIR, U.S. District Judge ORDER
The Plaintiffs' request for disqualification of the undersigned judge pursuant to 28 U.S.C. § 144 is denied.
MALCOLM MUIR / MUIR, U.S. District Judge