automobile manufacturer or any liability on the part of a manufacturer. The reason for such omissions is, of course, obvious. The several paragraphs of the affidavit which attempt to link my injuries with a "bent of mind" against the defendant are no more than speculative and unsupported assertions. He then advances an unwarranted conclusion that, because I sustained loss of a limb in an automobile accident, I would be unable to preside in an impartial manner and without bias in litigation involving automobile safety.
The outer limits of a supporting affidavit have been defined by our Court of Appeals; the affidavit must "show a true personal bias, and must allege specific facts and not mere conclusions or generalities." Brotherhood of Locomotive Firemen and Enginemen v. Bangor and Aroostook Ry. Co., 127 U.S. App. D.C. 23, 380 F.2d 570, 576 (D.C.Cir.1967) (citations omitted). The Fallon affidavit fails to meet this minimum standard. Moreover, a trial judge is presumed to be impartial and the affiant assumes a heavy burden in demonstrating the contrary. United States v. Mitchell, 377 F.Supp. 1312, 1316 (D.D.C.1974), aff'd sub nom., United States v. Haldeman, supra.
A consideration of the defendant's motion that section 455 warrants my disqualification leads to the same result. Subsection (a) focuses on the appearance of impartiality as opposed to the existence, in fact, of any bias or prejudice. As noted earlier, this section was designed to promote the public's confidence in the impartiality and integrity of the judicial process, and if there is any reasonable factual basis for doubting the trial court's impartiality, the judge should step down. The standard for disqualification in this case is whether a reasonable person, knowing all the circumstances concerning my injury and disability and considering the factual issues involved in this proceeding, would have an adequate basis for harboring doubts about my impartiality in presiding over this proceeding. Potashnick, 609 F.2d at 1111; Rademacher v. City of Phoenix, 442 F.Supp. 27, 29 (D.Ariz.1977). Under this standard it is clear that such doubts could not reasonably exist.
Indeed, the logical extension and result of Fiat's argument would require my disqualification in a substantial number of other proceedings. If, in fact, my injuries and losses would cause a reasonable person to question my ability to render impartial judgments on questions of automobile safety and defects, would it not also lead a litigant to raise questions about my impartiality in any personal injury litigation involving an automobile? If the defendant's position were accepted, would it be proper for me to preside in any trial involving a serious personal injury claim, whether it stems from a motor vehicle collision, an aircraft disaster, an industrial explosion or any of an endless list of other types of accidents resulting in serious personal injury?
While Fiat's argument may at first blush seem to have a surface allure, on close examination and careful analysis it soon unravels. The unfortunate incident which I experienced several years ago is, of course, lasting in nature, but it is no more lasting than some of the personal and background experiences of other trial judges where disqualification attempts were advanced by a litigant and denied. As Fiat's counsel has pointed out, no case authority directly on point or similar to the situation here, involving disqualification or recusal, has been found. However, several recent cases have presented factual situations in which a litigant has focused on a particular background characteristic of personal experiences of the presiding judge.
In Parrish v. Board of Commissioners, 524 F.2d 98 (5th Cir. 1975) (en banc) (Tuttle, Goldberg, dissenting, Wisdom separately dissenting), cert. denied, 425 U.S. 944, 96 S. Ct. 1685, 48 L. Ed. 2d 188 (1976), the Fifth Circuit upheld the denial of a recusal motion under sections 144 and 455. The plaintiffs sought to disqualify a district court judge who was a former officer and still maintained membership in the Alabama State Bar Association which once barred blacks. They claimed that he could not rule in a case alleging that the Bar Association discriminated against blacks. The majority held that the affidavit in that case, like the one here, only set out general facts regarding the judge's background and was insufficient and fell short of making the required showing of personal bias. In Paschall v. Mayone, 454 F.Supp. 1289, 1299-1301 (S.D.N.Y.1978), a case involving alleged prison beatings in violation of the plaintiff's civil rights, the defendants moved to disqualify the trial judge because of his frequent representation of prisoners in civil rights cases while an active litigator with the NAACP Legal Defense Fund. The trial judge denied the motion, rejecting the claim that his prior litigation experience gave rise to any appearance of impartiality. Judge Constance Motley, also a NAACP litigator, denied efforts to secure her disqualification in a class action charging sex discrimination under Title VII of the Civil Rights Act of 1964. Blank v. Sullivan & Cromwell, 418 F.Supp. 1, 4 (S.D.N.Y.1975). She rejected defendant's argument under sections 144 and 455 that her strong identification with the victims of discrimination provided any showing that she would be biased in the case against that law firm. Judge Leon Higginbotham, as a trial judge, denied a recusal motion based on similar allegations in Commonwealth of Pennsylvania v. Local 542 International Union of Operating Engineers, 388 F.Supp. 155 (E.D.Pa.1974). There a labor union charged with racial discrimination in the construction industry claimed that he could not decide the case impartially because of his long identification as a spokesperson for racial integration and because of a speech he had recently given before a predominantly black historical group. These facts, Judge Higginbotham concluded, showed only the "ordinary results" of experiences in "this day and generation" and did not in any way demonstrate bias.
The personal background and experience of a trial judge has also been found legally insufficient for disqualification in a variety of other situations. For example, in United States v. Clark, 398 F.Supp. 341, 361-63 (E.D.Pa.1975), aff'd without opinion, 532 F.2d 748 (3rd Cir. 1976), Judge Herbert Fogel, of the Eastern District of Pennsylvania, denied the recusal motion based on his personal friendship with a kidnap victim in a criminal proceeding where the defendant was charged with a bank robbery by taking a hostage. Also, in State of Idaho v. Freeman, 478 F.Supp. 33 (D.Idaho 1979), Judge Marion Callister denied the recusal motion in a case challenging the ratification process for the Equal Rights Amendment because of his "prominent position" in the Mormon Church.
A 1948 opinion of our Circuit Court succinctly stated the standards for disqualification to be applied:
Prejudice, to require (recusal), must be personal according to the terms of the statute(s), and impersonal prejudice resulting from a judge's background or experience is not, in our opinion, within the purview of the statute(s).
Eisler v. United States, 83 U.S. App. D.C. 315, 170 F.2d 273, 278 (D.C.Cir.1948), cert. dismissed, 338 U.S. 883, 70 S. Ct. 181, 94 L. Ed. 542 (1949). None of these decisions lend support to Fiat's claim that I am or even appear biased because of my injuries. Although Eisler addressed only section 21 of the Judicial Code which, like its successor section 144, required a showing of actual bias for recusal, as defendant points out, our Court of Appeals had read that provision as applying an appearance of bias standard for recusal before Eisler. See Whitaker v. McLean, 73 App. D.C. 259, 118 F.2d 596 (D.C.Cir.1941).
Fiat's second argument, not urged or addressed at the April 3rd hearing, will nonetheless be considered. The claim that I had personal knowledge of disputed evidentiary facts is based on my comment at a recent January 23rd status conference that problems of rust and corrosion by other automobile manufacturers similar to those alleged to have been experienced by Fiat in this case have not been a matter of the public's attention. Fiat argues that this comment shows prejudice and a prejudgment of an issue in the case; that the comment demonstrates that because of my injuries I have taken a peculiar and particular interest in matters involving automobile defects and consequently I have personal knowledge of evidentiary matters in this case.
Fiat has inflated the significance of that statement. It was no more than a comment at a discovery motion hearing as to my knowledge of the state of the record and the pleadings, as then developed by the parties. The suggestion that I made an evaluation of relevant evidence outside the scope of this proceeding and the suggestion that I had made a prejudgment of material, factual or legal issues is misplaced, exaggerated and a gross misunderstanding of the Court's comment. Standing alone, or in context, the statement does not show a fixed opinion or a closed mind on the merits. In any event, the statement was made in open court and on the record. Under the statute "alleged bias and prejudice to be disqualifying must stem from an extrajudicial source and result in an opinion on the merits of some basis other than what the judge learned from his participation in the case." United States v. Grinnell Corp., 384 U.S. 563, 583, 86 S. Ct. 1698, 1710, 16 L. Ed. 2d 778 (1966). Accord, In re International Business Machines Corp., 618 F.2d 923, 927-28 (2d Cir. 1980).
In conclusion, putting aside all that has been said the repetitive statements, the comments and concerns set out in the Fallon affidavit about my injuries Fiat fails to identify or to state that I have exhibited any personal bias or prejudice against their company. The affidavit does not contain one unequivocal allegation of bias or prejudice attributed to me, nor can it, for none exists. Nor is the affidavit sufficient to fairly support any such inferences. Further, I know of nothing that would lead a reasonable person to question my interest in this case.
My only concerns with this proceeding are that all the relevant facts be fully revealed; that the law be applied correctly and evenhandedly and that this litigation advance through the discovery and pretrial stages without unnecessary and unwarranted delay. Fiat must, indeed, recognize that auto safety is an issue of general concern in this country, and that, in fact, was recognized by the Congress when it enacted the statute at issue in this case. This proceeding has been assigned to me for trial, and that is the extent of my interest. The attempt to exaggerate any generalized interest in auto safety into a specific bias by citing injuries sustained is simply insufficient on its face.
The present efforts of Fiat rest on a crimped and distorted consideration of the facts and a superficial analysis of the applicable law. The defendant's motion is baseless and it is denied.
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