Opinion
No. 21-AP-016
03-11-2021
IN RE DISQUALIFICATION OF BICKERTON. STEED v. BOSTON SCIENTIFIC CORPORATION ET AL.
[Cite as In re Disqualification of Bickerton , ___ Ohio St.3d ___, 2021-Ohio-1266.] Judges—Affidavits of disqualification—R.C. 2701.03—Affiant failed to demonstrate bias or prejudice or that judge had disregarded defendant's welfare or endangered health of those who enter courthouse—Disqualification denied. ON AFFIDAVIT OF DISQUALIFICATION in Columbiana County Court of Common Pleas, General and Domestic Relations Division, Case No. 2017 CV 00137. O'CONNOR, C.J.
{¶ 1} David E. Oeschger Jr., attorney for the defendant, Dr. Fu-Nen Lee, has filed an affidavit pursuant to R.C. 2701.03 and Article IV, Section 5(C) of the Ohio Constitution seeking to disqualify Judge Megan L. Bickerton from the above-referenced medical-malpractice case.
Background
{¶ 2} In May 2020, Judge Bickerton scheduled a jury trial for February 16, 2021. In January 2021, Judge Bickerton held a pretrial conference and indicated that despite the COVID-19 pandemic, jury trials had resumed in the Columbiana County Court of Common Pleas. Although Mr. Oeschger and Judge Bickerton dispute some of what occurred at the January pretrial, they appear to agree that Mr. Oeschger raised concerns about requiring Dr. Lee, who is 79 years old, to travel from Florida to appear in person for the trial and that Judge Bickerton indicated that Dr. Lee could testify via remote technology. After the hearing, Mr. Oeschger moved to continue the trial, arguing that for several reasons, Dr. Lee would be prejudiced by testifying remotely and that because of his age and overall health condition, he did not feel safe traveling to Ohio at that particular time. On February 3, Judge Bickerton denied the motion and ordered Dr. Lee to appear in person for the February 16 trial. The judge noted that the underlying case had been pending since 2017 and that she had adopted a jury-trial protocol to avoid the spread of COVID-19 in her courtroom. Mr. Oeschger thereafter filed this affidavit of disqualification. The trial did not go forward as scheduled.
{¶ 3} In his affidavit, Mr. Oeschger claims that by requiring Dr. Lee to appear in person for trial, Judge Bickerton would endanger the health and safety of Dr. Lee in a manner that warrants her disqualification under the legal standard established in In re Disqualification of Fleegle, 161 Ohio St.3d 1263, 2020-Ohio-5636, 163 N.E.3d 609. Mr. Oeschger further asserts that Judge Bickerton has not complied with the chief justice's pandemic guidance and that Judge Bickerton's jury-trial protocol is insufficient to alleviate Dr. Lee's specific health concerns. In addition, Mr. Oeschger alleges that Judge Bickerton's February 3 entry denying his request for a continuance demonstrated an "unwarranted bias and prejudice towards Dr. Lee and his counsel" and that Judge Bickerton had "arbitrarily withdraw[n] Dr. Lee's option to testify at the trial remotely."
{¶ 4} Judge Bickerton filed a response to the affidavit and requests that it be denied. She states that her main concern is to continue court operations in a manner that protects the health and safety of all participants. In distinguishing the facts here from Fleegle, Judge Bickerton notes that she has implemented and enforces a COVID-19 jury-trial protocol. She further states that in deciding to resume jury trials, she consulted with the county health department and considered the decreasing infection and community-spread rates in Columbiana County. The judge believes that she has complied with all guidance from this court and the Centers for Disease Control and Prevention. She also notes that she ordered Dr. Lee to appear in person only because he had expressed an unwillingness to appear remotely. Despite her prior order, the judge notes that she would have granted any subsequent request for Dr. Lee to appear remotely but no such request was filed.
Merits of the affidavit of disqualification
{¶ 5} In Fleegle, a defense attorney sought to disqualify a judge from two jury trials scheduled for December 2020, arguing that the judge had failed to implement precautions to protect against the spread of the coronavirus in his courtroom. The judge had no written COVID-19 protocol, and there was no evidence that he had employed remote technology to reduce the flow of people in the courthouse. In addition, the judge failed to sufficiently explain the urgency of going forward with the jury trials at "what could be the height of the COVID-19 pandemic" and when "daily numbers of confirmed COVID-19 cases, hospitalizations, and deaths ha[d] significantly increased." Fleegle at ¶ 5. The judge was removed from the two cases, and it was noted that a judge's failure to comply with public-health directives "endangers the health of those who enter the courthouse and their families" and "whittles away at the public's trust and confidence in the judiciary." Id. at ¶ 8.
{¶ 6} Contrary to Mr. Oeschger's contention, Judge Bickerton has not violated any legal standard established in Fleegle. "[T]he ability of a judge to preside fairly and impartially in a particular matter must be analyzed on a case-by-case basis." In re Disqualification of Blanchard, 150 Ohio St.3d 1260, 2017-Ohio-5543, 80 N.E.3d 504, ¶ 5. Judge Bickerton has adopted a detailed written jury-trial protocol that she shared with the underlying parties. She notes that facial coverings are required during all hearings, social distancing is enforced by marks on the floors and chairs, and the courtroom is sanitized daily and in between hearings. And to accommodate Dr. Lee's concerns about appearing in person, she has indicated that he could participate remotely.
{¶ 7} In addition, we are at a different stage of the pandemic than when Fleegle was decided. Infection rates are steadily decreasing, and individuals close to Dr. Lee's age should have access to a vaccine. But because we are not yet out of the woods, judges should continue to ensure that scrupulous safety practices are followed for all in-person hearings—as it appears Judge Bickerton is doing here. In the end, Mr. Oeschger has not established that Judge Bickerton has disregarded Dr. Lee's welfare or endangered the health of those who enter the courthouse to the extent that disqualification is necessary. See, e.g., In re Disqualification of Forchione, ___ Ohio St.3d ___, 2021-Ohio-627, ___ N.E.3d ___, ¶ 9-14.
{¶ 8} Nor does Judge Bickerton's February 3 entry demonstrate that she is otherwise biased against Dr. Lee or his counsel. In disqualification requests, "[t]he term 'bias or prejudice' 'implies a hostile feeling or spirit of ill-will or undue friendship or favoritism toward one of the litigants or his attorney, with the formation of a fixed anticipatory judgment on the part of the judge, as contradistinguished from an open state of mind which will be governed by the law and the facts.' " In re Disqualification of O'Neill, 100 Ohio St.3d 1232, 2002-Ohio-7479, 798 N.E.2d 17, ¶ 14, quoting State ex rel. Pratt v. Weygandt, 164 Ohio St. 463, 469, 132 N.E.2d 191 (1956). "The proper test for determining whether a judge's participation in a case presents an appearance of impropriety is * * * an objective one. A judge should step aside or be removed if a reasonable and objective observer would harbor serious doubts about the judge's impartiality." In re Disqualification of Lewis, 117 Ohio St.3d 1227, 2004-Ohio-7359, 884 N.E.2d 1082, ¶ 8. The judge's entry does not indicate that she has hostile feelings toward Dr. Lee or that she has formed a fixed anticipatory judgment on any issue in the underlying case. Nor has Mr. Oeschger set forth a compelling argument for disqualifying Judge Bickerton to avoid an appearance of bias.
{¶ 9} The affidavit of disqualification is denied. The case may proceed before Judge Bickerton.