In Re: Bridgestone Corporation ( 2013 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned March 19, 2013
IN RE: BRIDGESTONE CORPORATION, ET AL.
No. 06-MD1
Appeal from the Circuit Court for Davidson County
(Nos. 05C1552, 05C1555, 05C1556, 05C1560, 05C1561, 05C1570)
Thomas W. Brothers, Judge
No. M2013-00637-COA-10B-CV - Filed April 26, 2013
This appeal arises out of the second consolidated case to be tried in a number of related cases
involving accidents that occurred in Mexico and allegedly were caused by defective tires
and/or vehicles. The trial judge denied the plaintiffs’ motion that he recuse himself. The
motion was based upon allegations of the appearance of bias or prejudice. Having reviewed
the filings in this appeal under the required de novo standard of review, we affirm the trial
court’s denial of the motion.
Tenn. R. App. P. 3 Appeal as of Right/Tenn. Sup. Ct. R. 10B; Judgment of the
Circuit Court Affirmed
P ATRICIA J. C OTTRELL, P.J., M.S., delivered the opinion of the Court, in which F RANK G.
C LEMENT, J R. and A NDY D. B ENNETT, JJ., joined.
Steve North, Madison, Tennessee; Richard L. Denney, Lydia JoAnn Barrett, Norman,
Oklahoma; Robert L. Langdon, J. Kent Emison, Lexington, Missouri, counsel for the
appellants, Nos. 05C-1552 (Torres), 05C-1555 (Rodriguez), 05C-1556 (Santin), 05C-1560
(Hernandez); Douglas S. Johnston, Jr., Nashville, Tennessee, counsel for the appellants, Nos.
05C-1561 (Rivera Ruiz), 05C-1570 (Crispo Valdiva).
Stephen A. Marcum, Huntsville, Tennessee; Gregory G. Garre, Roman Martinez, Washington,
DC, for the appellee, Ford Motor Company.
A. Scott Ross, James F. Sanders, Nashville, Tennessee; Marc R. Brousseau, Denver,
Colorado; Scott G. Edwards, Dallas, Texas; Craig A. Morgan, Austin, Texas; Warren E. Platt,
Phoenix, Arizona, for the appellees, Bridgestone Corporation and Bridgestone/Firestone
North American Tire, LLC.
OPINION
The appellants appeal from the denial by the trial judge of a motion to recuse himself.
Some background about the cases in which the motion was filed is in order. This appeal
arises out of one of twelve cases, each of which is a consolidation of a number of other cases.
The cases were originally filed in 2001 and arise from injury accidents allegedly related to tire
and/or vehicle failures, all taking place in Mexico.
Since the filing of the cases, the same trial judge has been assigned to all of them.
There have already been at least two appeals involving procedural and venue issues. The trial
judge has, through a series of orders, organized the progress of the cases, including
consolidating them into fourteen cases and setting the cases for trial on a schedule that began
in January of this year and will extend into 2015.
The first consolidated case to be tried went to trial in January of 2013. The next case
in line to be tried is the case that is the subject of this appeal. It involves a number of separate
plaintiffs in related cases. The first case had been tried by a jury and verdict entered before
the motion for recusal was filed in this case. The plaintiffs in six of those individual cases
filed the motion and are the appellants herein.
I. A PPEALS UNDER T ENN. S. C T. R. 10B
Appeals from orders denying motions to recuse are governed by Tenn. S. Ct. R. 10B.
Pursuant to §2.01of that rule, parties are entitled to an “accelerated interlocutory appeal as of
right” from an order denying a motion for disqualification or recusal. The appeal is effected
by filing a “petition for recusal appeal.” Tenn. S. Ct. R. 10B, §2.02. If this court, based on
the petition and supporting documents, determines that no answer is needed, we may act
summarily on the appeal. Tenn. S. Ct. R. 10B, §2.05. Otherwise, this court may order an
answer and may also order further briefing by the parties. In addition, Tenn. S. Ct. R. 10B,
§2.06 grants this court the discretion to decide the appeal without oral argument.
We have granted appellees’ motion to file a response to the petition for recusal appeal
and also granted appellants’ motion to file a reply to that response. Having reviewed the
filings and supporting documents, we find oral argument unnecessary.
The only issue before this court in an appeal under Tenn. S. Ct. R. 10B is whether the
trial court erred in denying the motion for recusal. We review the trial court’s recusal
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decision under a de novo standard of review. Tenn. S. Ct. R. 10B, §2.06.1
II. G ROUNDS FOR R ECUSAL
The plaintiffs’ motion for recusal alleges as grounds actual bias and prejudice; the
appearance of partiality that creates a “reasonable basis for questioning the judge’s
impartiality;” and the appearance of impropriety.
The importance of an impartial and unbiased court cannot be overstated. As the
Tennessee Supreme Court has explained:
Litigants, as the courts have often said, are entitled to the cold neutrality of an
impartial court. Kinard v. Kinard, 986 S.W.2d 220, 227 (Tenn. Ct. App.
1998). Thus, one of the core tenets of our jurisprudence is that litigants have
a right to have their cases heard by fair and impartial judges. Id. at 228.
Indeed, it goes without saying that a trial before a biased or prejudiced fact
finder is a denial of due process. Wilson v. Wilson, 987 S.W.2d 555, 562
(Tenn. Ct. App. 1998). Accordingly, judges must conduct themselves at all
times in a manner that promotes public confidence in the integrity and
impartiality of the judiciary and shall not be swayed by partisan interests,
public clamor, or fear of criticism. Tenn. Sup. Ct. R. 10, Cannon 2(A),
3(B)(2).
Davis v. Liberty Mut. Ins. Co., 38 S.W.3d 560, 564 (Tenn. 2001). “If the public is to maintain
confidence in the judiciary, it is required that cases be tried by unprejudiced and unbiased
judges.” Smith v. State, 357 S.W.3d 322, 340 (Tenn. 2011) (quoting State v. Rimmer, 250
S.W.3d 12, 37 (Tenn. 2008)).
In addition to the essential lack of actual bias, “it is of immense importance, not only
that justice be administered . . . but that [the public] shall have no sound reason for supposing
that it is not administered.” Davis, 38 S.W.3d at 564 (citing In re Cameron, 151 S.W. 64,
76 (1912)). “[T]he preservation of the public’s confidence in judicial neutrality requires not
only that the judge be impartial in fact, but also that the judge be perceived to be impartial.”
State v. Reid, 213 S.W.3d 792, 815 (Tenn. 2006) (quoting Kinard v. Kinard, 986 S.W.2d 220,
1
Prior to the adoption of Tenn. S. Ct. R. 10B, appellate courts reviewed recusal decisions under an
abuse of discretion standard. State v. Hester, 324 S.W.3d 1, 72-73 (Tenn. 2010); Bailey v. Blount County
Bd of Educ., 303 S.W.3d 216, 239-40; State v. Hines, 919 S.W.2d 573, 578 (Tenn. 1995) (“A motion for
recusal based upon the alleged bias or prejudice of the trial judge addresses itself to the sound discretion of
the trial court and will not be reversed on appeal unless clear abuse appears on the face of the record.”)
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228 (Tenn. Ct. App. 1998)).
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“It is the appearance that often undermines or resurrects faith in the system. To
promote public confidence in the fairness of the system and to preserve the
system’s integrity in the eyes of the litigants and the public, ‘justice must
satisfy the appearance of justice.’”
Smith, 357 S.W.3d at 340 (quoting State v. Lynn, 924 S.W.2d 892, 898 (Tenn. 1996) (further
quotation omitted).
The plaintiffs rely on Rule 2.11 of the Rules of Judicial Conduct, which provides:
(A) A judge shall disqualify himself or herself in any proceeding in which the
judge’s impartiality might reasonably be questioned, including but not limited
to the following circumstances:
(1) The judge has a personal bias or prejudice concerning a party
or party’s lawyer, or personal knowledge of facts that are in
dispute in the proceedings.2
The question of recusal on the basis of bias involves two inquiries. The first is
whether the judge has actual bias; the second is whether his or her impartiality might
reasonably be questioned, i.e., whether there may be an appearance of bias even though no
actual bias exists. The public’s confidence in the judiciary requires not only that the judge
be impartial in fact, but also that the judge be perceived to be impartial.
Therefore, a trial judge should grant a recusal motion not only when he or she has any
doubt as to his or her ability to preside impartially in the case, i.e., where actual bias is
alleged, but also when “a person of ordinary prudence in the judge’s position, knowing all
of the facts known to the judge, would find a reasonable basis for questioning the judge’s
impartiality.” Hester, 324 S.W.3d at 73; (quoting Bean v. Bailey, 280 S.W.3d 798, 805
(Tenn. 2009)).
Thus, even when a judge believes that he or she can hear a case fairly and impartially,
the judge should grant the motion to recuse if the judge’s impartiality might reasonably be
questioned. Tenn. Sup.Ct. R. 10, R. 2.11(A); Bailey, 280 S.W.3d at 805. The test is
ultimately an objective one since the appearance of bias is as injurious to the integrity of the
judicial system as actual bias. Smith, 357 S.W.3d at 341; Davis, 38 S.W.3d at 565.
2
Rule 2.11(A) lists other specific situations which create questions regarding the judge’s ability to
be impartial, including defined relationships to the parties or counsel on the part of the judge or the judge’s
family. None of those situations is alleged to exist here.
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III. P RIOR R ELATIONSHIP AND R ULINGS
In the appeal before us, the plaintiffs’ allegations of bias are based upon three separate
circumstances. The first is a prior relationship between the trial judge and the attorneys for
a defendant. The second allegation is, more or less, an argument that the judge’s rulings
indicate a bias against the plaintiffs. Essentially, the plaintiffs’s counsel assert the rulings are
so unreasonable that there can be no other explanation for them. We will address these two
factual bases first.
The plaintiffs assert that the trial judge should have recused himself because in the past
he had been a client of the firm which represents one of the defendants, and that he should
have disclosed this past relationship early in the proceedings. The plaintiffs allege that a
lawyer in the firm of Neal & Harwell, the firm representing Bridgestone in the case before us,
had represented the trial judge in federal court. The plaintiffs allege that the lawyer first
entered an appearance on behalf of the trial judge with the federal court on August 25, 1992.
Neal & Harwell withdrew from that representation in October or November of 1992.
In accordance with Tenn. S. Ct. R. 10B, §1.03, the trial judge filed a thorough
memorandum opinion detailing the grounds for his denial of the motion for recusal. In
addressing the allegation arising from a prior attorney-client relationship with a defendant’s
counsel, the trial judge stated:
The prior representation was for a limited time at the inception of a proceeding.
The association was terminated over twenty years ago. There is no possibility
of any continuing benefit from the prior relationship. There is no personal or
social relationship between myself and members of the law firm of Neal &
Harwell different from my relationship with other lawyers.
The trial court relied upon this court’s holding in Young v. Young, 971 S.W.2d 386,
390 (Tenn. Ct. App. 1997). In that opinion, this court relied upon Judicial Ethics Opinion
No. 94-2. In Young, the trial judge had been represented ten years earlier by the attorney who
was representing one of the parties in a divorce case pending before the judge. We held that
the judge was not required to recuse himself, in part because the attorney had not represented
the judge in the ten years since that one case.
The trial judge also relied upon the ethics opinion cited in Young, and he attached that
opinion to his order. The opinion of the Judicial Ethics Committee stated, in pertinent part:
There is no canon that explicitly requires recusal under the facts related by the
judge. If recusal is mandated, it is because the prior attorney-client relationship
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of the attorney and the judge could create an appearance of impropriety (Canon
2) or reasonably call into question the judge’s impartiality (Canon 3C).
Either Canon 2 or 3C would require a judge to recuse him/herself for a time
from cases involving an attorney who then represents, or has recently
represented, the judge. How remote in time the representation must be before
the need for recusal dissipates, or for how long the need for recusal persists,
must be determined on a case-by-case basis. For example, the nature of the
lawyer’s representation of the judge, and the duration of the representation,
would be relevant considerations. Certainly the passage of ten years after an
uncontested divorce, with no further representation during that time,
completely obviates the need for recusal.
Absent any factors other than the single episode of representation in an
uncontested divorce ten years ago, the judge’s impartiality could not
reasonably be questioned under Canon 3C. Similarly, the “appearance of
impropriety” of Canon 2 also must be measured by a standard of
reasonableness; a decade-old representation of the judge by a particular lawyer
should not create in the mind of a reasonable person the appearance of
impropriety when that lawyer appears before the judge.
We agree with the reasoning in this Ethics Opinion, the Young opinion, and the trial
court’s application of relevant legal principles. Accordingly, we are not of the opinion that
the trial judge should have recused himself on the basis of a prior representation of limited
duration and in the more distant past.
In order to reduce the amount of time that passed after the representation, the plaintiffs
also allege that the first of the many cases involving accidents in Mexico was filed in October
2000 and assigned to the Sixth Circuit Court. Apparently, the clerk’s office assigned the first
case to that court in 2001. Later, all the approximately 30 similar cases that had been filed
were also assigned to that court. Plaintiffs assert that the trial judge should have disclosed
his past attorney-client relationship with defendant’s counsel at the time the first case was
filed. In support of this assertion, plaintiffs rely on RJC 2.11(C), which sets out a procedure
that may be used to disclose conflicts or other situations that may make the judge “subject to
disqualification” under the Rule. The procedure then allows the parties, after disclosure, to
consider whether to waive the disqualification.
However, it must be pointed out that all the cases were dismissed in 2003 or 2004
pursuant to this court’s reversal of the trial court’s denial of defendants’ motion to dismiss.
In re Bridgestone/Firestone and Ford Motor Company Tire Litigation, 138 S.W.3d 202-8-
(Tenn. Ct. App. 2003). After pursuing suits brought in Mexico, the plaintiffs refiled here.
At the time the existing cases were refiled in 2003 or 2004, there was no basis for
disqualification of the trial judge based upon the brief representation of him by Neal &
Harwell, for the same reasons we found earlier that his disqualification on that ground was
not required. We find that judge’s impartiality could not reasonably be questioned based on
that representation, whether the question was raised in 2001, 2004, or 2013. Accordingly,
no duty to disclose existed and the judge was not “subject to disqualification” at the earlier
time.
The plaintiffs also assert that some rulings by the trial judge demonstrate his bias or
prejudice. The judge has made only one recent ruling in the case before us, the case that was
to be the second case tried. That is the ruling that the plaintiffs cite as suggesting the
appearance of bias, partly because it was rendered shortly after the plaintiffs’ request that the
trial judge recuse himself. The ruling in question set out how the court was going to apply
Mexican law in this case. Plaintiffs assert that the ruling effectively capped damages in the
case at about $110,000. It seems to us that that ruling was not inconsistent with prior rulings
by the trial court regarding application of Mexican law. In addition, we have reviewed the
order in question, and we find the trial court carefully and thoroughly explained his decisions
and their effects, including translation and interpretation of statutes in effect in the particular
provinces involved.
The trial judge granted plaintiffs a Tenn. R. App. P. 9 Interlocutory Appeal. This court
has also granted the appeal. Thus, we will in due course review the merits of the trial court’s
ruling. However, whether we eventually agree with the trial judge or not has no relevance
to any alleged bias. What the plaintiffs actually complain of is the trial court’s refusal to grant
a stay pending the Rule 9 appeal when the trial was set to begin in less than two weeks.3 The
plaintiffs also cite as prejudice the trial judge’s suggestion that counsel may have a difficult
ethical decision to make since proceeding to trial would likely cost their clients more than
could be recovered.
Generally, the terms “bias” and “prejudice” refer to a state of mind or attitude that
works to predispose a judge for or against a party. Alley v. State, 882 S.W.2d 810, 821 (Tenn.
Crim. App. 1994). However,
not every bias, partiality, or prejudice merits recusal. To disqualify, prejudice
must be of a personal character, directed at the litigant, “must stem from an
extrajudicial source and result in an opinion on the merits on some basis other
3
This court has granted a stay of trial court proceedings in this case pending resolution of the Tenn.
R. App. P. 9 appeal.
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than what the judge learned from participation in the case.”
Id. (citations omitted.); see also Spain v. Connolly, 606 S.W.2d 540, 544 (Tenn. Ct. App.
1980).
It is well settled that “[a]dverse rulings by a trial court are not usually sufficient
grounds to establish bias.” Keisling v. Keisling, 92 S.W.3d 374, 380 (Tenn. 2002); Alley, 882
S.W.2d at 821. The reason for this proposition has been explained:
[T]he mere fact that a judge has ruled adversely to a party or witness . . . is not
grounds for recusal. Given the adversarial nature of litigation, trial judges
necessarily assess the credibility of those who testify before them, whether in
person or by some other means. Thus, the mere fact that a witness takes
offense at the court’s assessment of the witness cannot serve as a valid basis for
a motion to recuse. If the rule were otherwise, recusal would be required as a
matter of course since trial courts necessarily rule against parties and witnesses
in every case, and litigants could manipulate the impartiality issue for strategic
advantage, which the courts frown upon.
Davis, 38 S.W.3d at 565 (citations omitted).
Thus, the mere fact that a judge has ruled adversely to a party or witness is not grounds
for recusal. State v. Hines, 919 S.W.2d 573, 578 (Tenn. 1995). If the rule were otherwise,
recusal would be required in every case since trial courts necessarily rule against at least one
party on all motions and other proceedings.
Accordingly, we find no basis for disqualification in the trial court’s rulings. Further,
we do not interpret the trial judge’s statements regarding the quandry facing plaintiffs’
counsel as indicating bias.
IV. P ROPOSAL R EGARDING E QUIPMENT
The remaining ground for recusal based upon the appearance of bias or prejudice stems
from a discussion between the trial judge and the attorneys for both sides. This meeting took
place after the jury had retired in the first case. During the meeting, the trial judge suggested
an arrangement or agreement that would result in additional technological capabilities or
equipment, i.e., a large screen monitor, for the courtroom to use in the other trials scheduled
in these 31 related cases.
According to the trial judge, he had been aware that these trials would involve
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“extensive use of detailed exhibits, photographs, x-rays, and videos.” Consequently, he
sought funding to enhance the video recording and display technology in the courtroom.
Only part of the improvements sought by the trial judge were funded: upgrading the recording
equipment and one large monitor, which was mounted on the wall behind the jury box. The
enhanced technology was used during the trial of the first case. As the trial judge later
explained:
The display technology in the courtroom was used constantly during the trial
and it became very apparent that the images displayed on the LCD monitor
were vastly superior to the same image from the projector. The lawyers
frequently directed the jury to turn around and look at the images on the
monitor since they were much clearer. Mr. Langdon even commented during
one session that the monitor was one of the best displays he had ever seen. Tire
marks on some photographs were important and on the projector they were
barely visible, but on the monitor they were clearly shown. X-rays and
photographs of the tires were not as crisp and clear on the projector as on the
monitor.
The judge was of the opinion that an additional monitor would be helpful in the trials
of the next cases, with the next trial beginning March 18, 2013. He again sought government
funding, but none was available. “Faced with this dilemma,” the trial judge explained, “I
decided to try a novel approach.”
The judge met with the lawyers on February 28, the day after the jury in the first trial
began deliberations. The judge asked the lawyers if they would each agree to pay $2500 per
party that would be used to purchase and install an additional monitor in his courtroom before
the trial of the next of these related cases began. In return, the parties would receive all future
video records in the 13 cases remaining to be tried. The trial judge described the offer as a
voluntary prepayment for all video records, at a reduced cost. One party’s lawyer sent in a
check for the prepayment; the others chose not to.
The plaintiffs characterize the meeting with the judge a little differently. The lawyers
for defendant Bridgestone/Firestone, for defendant Ford Motor Company, and for the
plaintiffs in this, the second case, were also the lawyers who had represented the parties in
the first case. The plaintiffs’ counsel states that when they all met, the trial judge informed
the attorneys that his courtroom needed a 90 inch video monitor priced at $7500 prior to the
beginning of the trial of the next Tire Litigation case.
The plaintiffs continue, “The trial court informed the attorneys that, if each party
contributed $2500 for its technology fund, they would be provided DVDs, which are the
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official record for this court, for life without charge . . . . The court announced that the court
would start producing the DVDs itself rather that continue to have the Clerk’s office do so
. . . .”
The plaintiffs characterize the judge’s offer as a solicitation and cite Rules 3.1 and 3.7
of the Rules of Judicial Conduct. Rule 3.1 establishes restrictions on judges while
participating in personal or extrajudicial activities. Rule 3.7 provides guidelines for a judge’s
participation in activities of charitable and non-profit organizations, and specifically provides
that a judge may solicit donations to such an organization only from his or her family or some
other judges. The plaintiffs quote from Comment 3 to Rule 3.7, stating that to do other than
to limit solicitations by judges would “present an element of coercion.”4 They also quote
Comment 4 of Rule 3.1:
While engaged in personal or extrajudicial activities, judges must not coerce
others or take action that would reasonably be perceived as coercive. For
example, depending upon the circumstances, a judge’s solicitation of
contributions or memberships for an organization, even as permitted by RJC
3.7(A), might create the risk that the person solicited would feel obligated to
respond favorably, or would do so to curry favor with the judge.
While recognizing that the money or equipment discussed by the trial judge herein was
not a solicitation for a charitable organization or for a political campaign, the plaintiffs argue
that the trial judge’s actions herein are essentially the same in their potential effect. The
plaintiffs assert: “But in soliciting that funding from the parties (or their attorneys) in a case
(or cases) pending before him, the Court presented that very element of coercion which is
both expressly and impliedly prohibited by the Code of Judicial Conduct.”
We find the discussion and the trial judge’s “novel approach” to be problematic and
inappropriate. We know of no authority for a state trial court to receive donations or to
receive payment for records. As a general rule, any donations to, or money received by, a
governmental entity is government revenue subject to the appropriation process. In other
words, we know of no authority for a state trial court to receive funds from private parties and
use those funds for a specific purpose without legislative action. 5
Additionally, parties to litigation are not responsible for furnishing equipment, or any
4
The Comment actually states that certain specified activities for charitable organizations “are not
solicitations and do not present an element of coercion or abuse the privilege of judicial office.”
5
The trial court told the lawyers to send the funds or make them payable to State Trial Courts, which
we believe is a category within the budget for the Metropolitan Government for Nashville and Davidson
County.
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other item, to the courts. Parties who wish to use technology not present in a particular
courtroom may seek permission to bring in their own equipment, but that equipment leaves
the courtroom when its use is no longer desired by the owner. Many courts in this state
conduct trials with less available technology than that present in the courtroom of this trial
judge. It cannot be maintained that the quality of justice suffers in those courts.6
We believe the goal of the trial judge herein was to enhance the jury’s understanding
of the evidence in these cases. There was no potential personal gain for the trial judge. And,
we do not find that the discussion among the judge and the attorneys involved coercion by
the judge. The suggestion made by the judge was not of the type that would reasonably be
construed as coercive. All parties were offered receipt of video records in all the remaining
trials.7 In his ruling on the motion to recuse, the trial judge stated “I expressly and clearly told
them that I did not want anyone to perceive this discussion as an attempt to compel them to
pay for anything and that any participation would be strictly voluntary.”
The trial judge also said that the response to his proposal was very favorable, and when
he asked if anyone had questions, the only question involved the practical implementation.
The judge stated three times that he inferred from the comments in the meeting and in a brief
discussion after the meeting8 that all the lawyers were in agreement and wanted to proceed
with the option. The defendants’ description of the meeting is consistent with that of the
judge. In fact, the plaintiffs do not dispute what was said in the meeting, but disagree as to
its impact on recusal. We cannot conclude that the discussion regarding the monitor was
coercive.
The more problematic issue is whether the action by one of the defendants created a
situation that would lead a person of ordinary prudence in the judge’s position to find a
reasonable basis for questioning the judge’s impartiality. Shortly after the meeting where the
proposal for funding the monitor was discussed, counsel for the plaintiffs asked counsel for
defendants to let him know if they intended to make the payment, since it needed to be an “all
6
Consequently, we cannot agree with the defendants’ inference that the trial court’s recognition that
a fair trial would require the jury to examine the evidence closely and in detail leads to any conclusion that
the additional monitor, or any other upgrade of technology, was necessary to a fair trial.
7
The trial judge explained that his proposal was directed at all the remaining cases in the
Bridgestone/Firestone Tire Litigation and that it would have allowed each set of plaintiffs to spend less than
$200 for the video record of their trials and related proceedings, which the judge considered to be a financial
benefit to the plaintiffs. We note, however, that there was no certainty that all the remaining cases would,
in fact, proceed to trial.
8
One of plaintiffs’ attorneys asked to whom the money should be sent, and another of plaintiffs’
attorneys commiserated with the judge on the difficulties of getting government funding. Additionally,
counsel for plaintiffs communicated with counsel for defendants later that day asking that he be informed
if either of them intended to make the payment and raised no concern about the propriety of the discussion.
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or nothing deal.” Nevertheless, counsel for Bridgestone/Firestone sent a check for $2500 to
the court administrator for the trial courts of Davidson County “in connection with the above-
captioned cases” without alerting plaintiffs’ counsel.
In his order denying recusal, the trial judge stated that his proposal would have
required that all the parties agree to participate. If one or more declined to participate, the
plan would not be implemented. Counsel for the defendants agree with that characterization.
The plaintiffs assert that participation by counsel for one party coupled with plaintiffs’ refusal
to participate created the appearance that the trial judge would be biased against the plaintiffs
as a result of their preventing the purchase of the monitor for the courtroom.
The defendants defend the proposal by the trial judge, asserting the valid reason and
intentions underlying it, the lack of any personal benefit or gain to the judge, the equal
economic benefits, and the inapplicability of the ethical rules related to extrajudicial activities
and campaign fundraising. With regard to the assertion that their sending in money without
the plaintiffs’ agreeing to participate created a situation in which prejudice could be alleged,
the defendants merely argue that in light of the circumstances, particularly the judge’s
emphasis on the voluntariness of the proposal, “no reasonable observer would believe that
his subsequent rulings would be ‘tainted’ by the fact that Firestone had supported the
proposal but Plaintiffs had not.” They analogize this proposal to a trial judge’s proposals
regarding the administration of a case and argue that a party’s disagreement with such a
proposal is not a basis for recusal.
While we do not agree that the potential for the appearance of bias or prejudice can be
so easily dismissed on the basis of conclusory assertions, we do agree that the circumstances
present in this case do not require that the trial judge recuse himself. First, the plaintiffs were
not the only party who chose not to participate in the proposal; the other defendant, Ford
Motor Co., also did not agree to prepay for copies of the video records. Second, the judge
made it clear that only if all parties agreed to participate would the proposal be implemented.
One defendant acted without insuring that all parties were in agreement. It was this action
that created the potential for the appearance of bias.
Finally, the goal of the judge’s proposal was to obtain additional technology that
would help in the trial of the 13 other similar cases involving some of the same plaintiffs. In
particular, the monitor would have aided the jury in performing its role. No party has
disagreed with the trial judge’s explanation of the types of exhibits involved or the assistance
that another monitor would provide.
The plaintiffs have not provided any evidence or argument that would indicate that the
trial judge’s interest in the additional monitor was anything other than as an aid to trying the
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upcoming 13 cases. They have failed to convince us that the trial court had an interest so
concrete, personal, or strong that the failure of his proposal would affect his judgment or
impartiality. Under the circumstances of this case, we hold that the trial court’s decision to
deny the motion to recuse should be affirmed.
The costs of this appeal are taxed to the Appellants.
____________________________
PATRICIA J. COTTRELL, JUDGE
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