Expert brother-in-law offers insight into when judges sit cases

A rehearing petition arguing the Federal Circuit Judge Kara F. Stoll shouldn’t have heard a case in which his brother-in-law served as an expert witness provides a window into judicial recusal decisions in court when potential conflicts of interest are unclear.

DuBose Strapping Inc. wants the entire United States Court of Appeals for the Federal Circuit to reconsider its case, in which a panel of three judges, including Stoll, summarily upheld a patent infringement verdict of 1, $8 million in favor of Western Plastics Inc.

Western argues the judge was not required to recuse herself because her brother-in-law, Faegre Drinker’s partner Robert Stoll, is not a material witness in the case.

The court’s internal operating procedures provide that each judge will determine whether to recuse themselves based on the companies and attorneys involved in a case. Judges can also ask the clerk’s office to verify these conflicts.

But the proceedings do not address how the court identifies potential conflicts of interest, like the one alleged by DuBose Strapping, which are less obvious.

Courts generally have good safeguards in place to avoid conflicts based on judges’ financial interests, said Dmitry Bam, professor of ethics at the University of Maine School of Law. “But in terms of witnesses or expert witnesses, I feel like that doesn’t really exist,” he said.

“The cleanest approach” would be for the court to allow judges to add the names of frequent witnesses or other potentially conflicting people to the database to verify action challenges so that they can be taken to the fore, Bam said.

Judge Stoll declined to comment on the pending case through a court spokesperson. The clerk’s office declined to provide details on how it prevents disputes.

“Hardware Witness”

DuBose appealed a trial court judgment finding that he willfully infringed Western’s patent on steel coil packaging. Eleven days after the dispute, the Federal Circuit panel summarily upheld the decision.

DuBose filed a motion for a rehearing en banc or rehearing before a new panel, challenging various aspects of the trial court’s decision.

He also argued that Judge Stoll should not have been assigned to the case because her brother-in-law was an important witness for Western. Robert Stoll has become the go-to expert witness on unfair conduct matters before the Patent Office since retiring as Commissioner of Patents in 2011.

“Although the Federal Circuit’s practice of disclosing panel members shortly before oral argument prevented DuBose from assessing the situation at that time, there is no doubt that a panel member of a court of The appeal in which the brother-in-law is the opposing party’s expert witness provides an appearance of impropriety that should not be overlooked,” DuBose argued.

Federal law requires a judge to disqualify herself if she or her spouse, or a person related to either, “is, to the judge’s knowledge, likely to be a material witness in the proceeding. “. The law also provides a catch-all for situations not specifically enumerated where “the impartiality of the judge could reasonably be questioned”.

The court requested a response to DuBose’s motion, indicating that at least one member of the court was interested in the issues raised.

Western argued in its responding brief that DuBose’s challenge to Judge Stoll “is based on a blatant lie” because Robert Stoll was not a “likely material witness in the proceedings” at any time when the case was before the federal circuit. A material witness is someone believed to have critical information that could affect the outcome of a case.

“The prospect of Mr. Stoll being a witness evaporated when the district court dismissed DuBose’s unfair conduct charges on grounds unrelated to his opinions,” Western said.

Western argued that DuBose’s defiance of Judge Stoll’s involvement was a “backup strategy” he only employed when he was unsuccessful on appeal. DuBose’s “exceptionally weak” arguments for a rehearing and his false statements warrant penalties, Western said.

When to raise?

The Federal Circuit is unusual among federal appeals courts in that it does not announce the composition of the three-judge panel that hears each case until the morning of argument. DuBose argued that this meant he had no meaningful chance to challenge Stoll’s potential conflict of interest before the dispute was over.

But DuBose should have known right away that this was a potential conflict, Bam said. They probably could have pointed out that Robert Stoll’s name was in the court file even before the panel was appointed, he said.

Sarah Cravens, professor of ethics at the University of Tulsa College of Law, said DuBose could also have raised the issue in the 11 days between argument and opinion. “That’s still a long time to write a memoir,” she said.

Bam said he understood DuBose’s point. “As a litigant, I would have questions about impartiality in this case,” he said. Even though Robert Stoll’s involvement did not affect Judge Stoll’s decision, it remains problematic because it creates the appearance of bias, Bam said.

Cravens disagreed. “I can see where the concern is coming from, but the question I would have is, is there any indication that the credibility of the expert witness was really what the court was relying on?” she says. “That’s really the only thing that would bring him up to the level of the appearance of irregularity.”

Without a written notice in the case, it is impossible to know whether the judges considered Robert Stoll’s testimony and his credibility on appeal.

“I tend to give the judges the huge benefit of the doubt,” Cravens said. “That’s why I would think it wasn’t a question of credibility, that it was so right in the middle that he would be decided on some other issue that it wouldn’t have occurred to him to be. worry about it.”

Even if he is not considered a material witness, DuBose could still rely on the withdrawal position that his involvement raises questions of impartiality, said law school ethics professor Leslie W. Abramson. from the University of Louisville.

And now?

The court rules provide that if a judge recuses himself after a closing argument, the remaining judges may decide the case themselves or opt to appoint a third judge. They do not specifically address a situation in which the conflict is discovered after the panel has made its decision.

A new bench hearing seems unlikely. “The impression I get is that the whole yard isn’t shoal mad,” Abramson said. The court could allow the other two judges to reaffirm the decision if they decided they would have reached the same result without Judge Stoll on the panel, or they could rehear the case with a new judge, he said. .

Reaffirming is tricky because the Supreme Court recently suggested that it doesn’t matter how the other justices decided the case — the conflicting judge may have influenced their decision, Bam said.

“The mere presence of a biased judge is enough, but I don’t know if the court would do that here,” Bam said.

Robert Stoll has become the preeminent expert on unfair conduct, which means the situation could happen again in the future. Bam suggested that the case inform the court that Judge Stoll may have to recuse himself in these cases. “There are enough panelists that they can avoid assigning Judge Stoll to one of his brother-in-law’s cases,” he said.

But Cravens suggested that might not be necessary.

“If he’s the preeminent expert, does it go the other way?” said Cravens. “No matter who looks at him, he will talk about it.”.

The case is W. Plastics, Inc. v. DuBose Strapping, Inc., Fed. Cir., no. 21-1371, response filed on 02/15/22.

Sharon D. Cole