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May 9, 2003

Eleanor M. COONEY, as Executrix of the Estate of Daniel T. Cooney, Jr., Deceased, et al., Plaintiffs,
Robert E. BOOTH, Jr., MD., et al., Defendants.

The opinion of the court was delivered by: EDUARDO ROBRENO, District Judge.



  Presently before the court is an affidavit/certification filed by Helen E. Cooney Mueller, Esq. ("Movant"), as pro se plaintiff, on her own behalf and as counsel*fn1 for the other plaintiffs in this action, setting forth allegations of personal bias and prejudice and/or demonstrative of an appearance of impropriety on the part of the presiding judge in the case.

  Movant is a disappointed litigant in a medical malpractice action brought by the estate of her father, the late Daniel T. Cooney, Jr. ("Mr.Cooney"), her mother, herself and her adult siblings (who together with Movant are referred to as "plaintiffs") against five physicians at Pennsylvania Hospital in Philadelphia, Pennsylvania who performed a knee replacement surgery on Mr. Cooney. A number of medical complications set in after surgery and Mr. Cooney died a few weeks later without returning home.

  On March 13, 2001, the case proceeded to trial against Robert E. Booth, Jr., M.D. ("Booth") only. The remaining defendants were either dismissed by plaintiffs or by the court on motion by the defendants prior to trial. Following a six day trial, the jury returned a verdict for defendant Booth. Thereafter, the court entered judgment for the defendants and plaintiffs appealed. On February 12, 2002, the Third Circuit affirmed.

  On June 12, 2002, plaintiffs filed a motion to set aside the judgment and/or for a new trial ("motion to reopen the judgment") claiming that defendants committed perjury during the litigation and at trial and that they otherwise caused a fraud on the court to occur. On January 30, 2003, the court denied the motion to reopen the judgment.

  On February 7, 2003, Movant, on her own behalf and on behalf of plaintiffs, filed a motion for reconsideration of the court's order denying the motion to reopen the judgment and an affidavit/certification executed by Movant requesting recusal of the presiding judge. The gist of this charge of

[262 F. Supp.2d 498]

      bias appears to grow from Movant's impression, presumably based on an unidentified newspaper report, that the presiding judge was recommended for appointment to the Third Circuit by Senator Arlen Specter and thereafter nominated to the Third Circuit by President Bush. This misunderstanding fuels the Movant's apparent suspicion that there is a connection between the alleged recommendation by Senator Specter and subsequent alleged nomination by President Bush of the presiding judge to the Third Circuit and certain adverse rulings made by the presiding judge for the benefit of the defendants, one of whom the Movant claims "was extremely good friends" with Senator Specter's son, Shanin Specter, or, at least, that the alleged recommendation and nomination created an appearance of impropriety. Specifically, the affidavit/certification makes the following allegations:*fn2

  Paragraph 4: "[P]laintiffs were forced by [the presiding judge] to retain another attorney [other than Movant]."

  Paragraph 6:
[I]mmediately prior to trial[,] defendants made a[m]otion in [l]imine to exclude any evidence that defendants were being investigated for Medicare Fraud. Through rumor, plaintiffs had heard that defendants were being investigated for Medicare Fraud and, therefore, stated same at their depositions. Unfortunately, there was no evidence to confirm same and thus the motion was ultimately granted.
  Paragraph 7: "[W]ithout explanation," the presiding judge dismissed Defendant Arthur R. Bartolozzi, M.D. ("Bartolozzi"). "[T]he facts [of the case] in no way warranted a dismissal of Bartolozzi."
  Paragraph 8: The presiding judge:
never reviewed the court's battery jury instructions with the parties' attorneys. . . . Contrary to the law, [the presiding judge] instructed the jury that in order to find defendant, Booth, liable for battery, the jury must find negligence by defendant Booth. Following jury instructions, [the presiding judge] left the courthouse and another judge filled in for the jury verdict. Plaintiffs[ ] appealed to the Third Circuit based on the erroneous battery instructions.
Paragraph 9:
In December, 2001, it was reported in local newspapers that United States Senator, Arlen Specter, was recommending that [the presiding judge] be appointed to the Third Circuit. This recommendation was shockingly "outside" Pennsylvania committee recommendation procedures and the recommendation was to replace a New Jersey Third Circuit Judge. This was extremely disturbing to plaintiffs given the fact that Shanin Specter, son of Arlen Specter was "extremely good friends" with defendant, Bartolozzi, and given the facts that [the presiding judge] had dismissed defendant, Bartlozzi, without explanation, without any basis in the facts, and despite documentation of Bartolozzi's involvement in the matter, only a couple of days prior to trial. Further, plaintiffs discovered that Shanin Specter's partner, Thomas Kline, was on several federal judiciary appointment committees.
Paragraph 10:
On January 23, 2002, the Third Circuit heard oral argument [on plaintiffs' appeal of the trial court's battery instruction]. Following oral argument, the Third Circuit judges unusually requested that the parties' attorneys remain [in]

[262 F. Supp.2d 499]

      the courtroom while they took a short break in chambers. On return, they dismissed the attorneys. Interestingly, later that day, President Bush handed down his nominations for Federal Circuit Court of Appeals judges.   Paragraph 11: "Despite a strong legal basis for plaintiffs' appeal, the Third Circuit decided to affirm the trial judgment."

  Paragraph 15: In response to plaintiffs' motion to reopen the judgment, the presiding judge:
ordered a[h]earing in the matter. . . . Plaintiffs served defendants with subpoenas for appearance at said [h]earing. Immediately prior to the [h]earing, defendants brought a[m]otion to quash the subpoenas stating "inconvenience" to the defendants. [The presiding judge] then incredibly, in total contradiction to his August 13, 2002 Hearing Order, requests that the attorneys submit Memorand[a] of Law, and held oral argument on the Motion on September 24, 2002.
Paragraph 16: During oral argument, Movant:
referred to her difficulty in obtaining an attorney in the matter who did not have a conflict of interest. She erroneously refers to Steven Specter, the other son of Arlen Specter, rather than Shanin Specter who she had actually contacted. [The presiding judge] incredibly corrects [the Movant] and specifically states: "Shanin Specter."
  Paragraph 17: Following argument on the Movant's motion to reopen the judgment, but before the court had actually ruled on the motion, an individual informed the Movant that she had spoken with John F. O'Brien, II ("O'Brien"), counsel for the defendants and that during this conversation:
O'Brien stated to her that "[the presiding judge] has blown off the matter." At this juncture, the [c]ourt had not ruled on plaintiffs' [motion to reopen the judgment]. . . . After waiting approximately nine(9) months for a ruling in this matter, [the presiding judge] issued an [o]rder that did in fact "blow off" plaintiffs['] [motion to reopen the judgment] and offers erroneous statements in support of same (i[.]e[.,] says there was a[h]earing when in fact there was no [h]earing in the matter). [ ][T]his implies that there may have been ex parte communication between [the presiding judge and O'Brien].
  Paragraph 18: The presiding judge erroneously denied the motion to reopen the judgment.

  Claims that a federal district judge should recuse in an ongoing litigation are generally examined under 28 U.S.C. § 144 and 28 U.S.C. § 455. As discussed below, the statutes, while related and designed to serve the common purpose of insuring the integrity of the judicial process, contain quite different procedural requirements and have distinct pedigrees. Although the Movant claims only that the facts asserted in the affidavit/certification establish "more than the appearance of impropriety" on the part of the presiding judge, and that the presiding judge "was not only impartial but in fact may have made determinations that were not guided by justice," Movant does not specify which of the two statutes, or both, she is preceding under. Nor has Movant submitted a legal memorandum pointing to the legal basis for the recusal request. Nevertheless, for the sake of completeness and in the interest of justice, given the adverse impact that unaddressed allegations of bias and partiality on the part of a presiding judicial officer have on the public's confidence in the judicial system, the court will address the Movant's claims against the presiding judge under both statutes.*fn3

[262 F. Supp.2d 500]


  For the reasons that follow, the court finds that, under 28 U.S.C. § 144, accepting as true the allegations set forth in the affidavit/certification, the facts asserted are legally insufficient to warrant a reasonable person to conclude that the presiding judge harbors a personal bias either in favor of or against any party to this action and that the affidavit/certification is untimely. Moreover, under 28 U.S.C. § 455, Movant has failed to show that a reasonable person, knowing all the circumstances, would have doubts as to the presiding judge's impartiality in this case.


 A. Recusal under 28 U.S.C. § 144.

  Title 28 of the United States Code, Section 144 ("Section 144") provides in pertinent part:
Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.
28 U.S.C. § 144. Recusal is not automatic. ...

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