IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

PAUL SVINDLAND, et al. : CIVIL ACTION

:

v. :

:

THE NEMOURS FOUNDATION, :

et al. : NO. 05-417

________________________________________________

ROBERT DADDIO, et al. : CIVIL ACTION

:

v. :

:

THE A.I. DUPONT HOSPITAL FOR :

CHILDREN OF THE NEMOURS :

FOUNDATION, et al. : NO. 05-441

MEMORANDUM

McLaughlin, J. August 21, 2009

The plaintiffs in these medical malpractice cases are

the parents of infants who died after undergoing open-heart

surgery at the A.I. duPont Hospital for Children in Wilmington,

Delaware. These cases were initially assigned to the Honorable

Berle M. Schiller of the Eastern District of Pennsylvania. After

a jury verdict for the defendants in the Svindland case, the

Svindlands appealed to the United States Court of Appeals for the

Third Circuit. The Court of Appeals vacated the jury verdict and

remanded the case for a new trial. After remand in 2008, both

cases were reassigned to me.

In September and October 2008, the parties filed

motions concerning the enforceability of subpoenas served by the

plaintiffs on two third parties, the Children’s Hospital of

Case 2:05-cv-00417-MAM Document 243 Filed 08/24/09 Page 1 of 8
 Judge Schiller previously denied the plaintiffs’ motion to 1

enforce the subpoenas in the Daddio case and their motion for

reconsideration of that decision. See Daddio Docket No. 98. By

order dated March 23, 2007, those decisions were incorporated

into the Svindland case. See Svindland Docket No. 98.

 Plaintiffs’ counsel have explained that it was not until 2

after the CHOP data ruling that they discovered my representation

of CHOP.

 In their motion, the plaintiffs also ask me to reconsider 3

my decision regarding the CHOP data. The plaintiffs have not

stated a basis for reconsideration other than my prior

2

Philadelphia (“CHOP”) and Dr. James Goin, a statistician at CHOP. 

Through these subpoenas, the plaintiffs sought to obtain the raw

data that served as the basis for publications of two studies

done at CHOP (the “CHOP data”). In a memorandum opinion filed on

May 19, 2009, I denied the plaintiffs’ motion to compel CHOP and

Dr. Goin to produce the data and granted the defendants’ motion

for a protective order over the data.1

On June 1, 2009, one week before the Svindland trial

was set to begin, the Svindlands filed a motion asking me to

recuse from sitting as trial judge. On June 5, 2009, the Daddios

filed an identical motion. The basis for these motions was my

representation of CHOP in an antitrust action filed in 1993. See

Huhta v. The Children’s Hosp. of Phila., No. 93-2765, 1994 WL

245454 (E.D. Pa. May 31, 1994), aff’d, 52 F.3d 315 (3d Cir.

1995). The plaintiffs argued that this representation created 2

an appearance of partiality and presented the risk that my

rulings might be influenced by extrajudicial knowledge of facts.3

Case 2:05-cv-00417-MAM Document 243 Filed 08/24/09 Page 2 of 8
representation of CHOP. None of the other bases for

reconsideration is present. See Max’s Seafood Café ex rel.

Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999). 

3

In order to give the parties as much notice as possible

of my decision on the recusal motions, I told counsel for the

parties during a telephone conference on the morning of June 5,

2009, that I would deny the motions. I told them, however, that

I would issue a written decision at a later date so as not to

delay trial of the Svindland case. 

Also on June 5, 2009, the plaintiffs filed a Petition

for a Writ of Mandamus with the United States Court of Appeals

for the Third Circuit based on my denial of their recusal

motions. They also filed an emergency motion to stay the

proceedings until a ruling on their petition by the Court of

Appeals issued. I agreed to stay the Svindland case, but was

informed on the evening of June 5 that the Court of Appeals had

denied the mandamus petition. The Svindland trial started on

June 9, 2009, and the jury returned a verdict for the plaintiffs

on June 18, 2009. By memorandum opinion dated August 21, 2009, I

granted the defendants’ motion for summary judgment in the Daddio

case. I will now explain my rationale for denying the

plaintiffs’ recusal motions.

Case 2:05-cv-00417-MAM Document 243 Filed 08/24/09 Page 3 of 8
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Under 28 U.S.C. § 455, a judge shall disqualify herself

in any proceeding in which her impartiality might reasonably be

questioned. She must also disqualify herself in cases where she

has a personal bias or prejudice concerning a party, or personal

knowledge of disputed evidentiary facts concerning the

proceeding. The test for recusal is whether a reasonable person,

with knowledge of all the facts, would conclude that the judge’s

impartiality might reasonably be questioned. In re: Kensington

Int’l, Ltd., 353 F.3d 211, 220 (3d Cir. 2003). 

Whether to recuse from hearing a matter lies within the

discretion of the trial judge. United States v. Wilensky, 757

F.2d 594, 599-600 (3d Cir. 1985). Judicial recusal is not to be

undertaken lightly, and, as courts in this circuit and in other

circuits acknowledge, there is as much obligation upon a judge

not to recuse herself when there is no occasion to do so as there

is for her to recuse when there is. See, e.g., Hinman v. Rogers,

831 F.2d 937, 939 (10th Cir. 1987); Wolfson v. Palmieri, 396 F.2d

121, 124 (2d Cir. 1968) (quoting In re Union Leader Corp., 292

F.2d 381, 391 (1st Cir.), cert. denied, 368 U.S. 927 (1961));

Lynch v. City of Phila., No. 08-4780, 2009 WL 1424489, at *1 n.3

(E.D. Pa. May 20, 2009); Smith v. Danyo, 441 F. Supp. 171, 175

(M.D. Pa. 1977), aff’d, 585 F.2d 83 (3d Cir. 1977).

Where a party alleges bias or prejudice, “the alleged

bias and prejudice to be disqualifying must stem from an

Case 2:05-cv-00417-MAM Document 243 Filed 08/24/09 Page 4 of 8
5

extrajudicial source and result in an opinion on the merits on

some basis other than what the judge learned from his

participation in the case.” United States v. Grinnell Corp., 384

U.S. 563, 583 (1966).

As an initial matter, I see no reason to recuse from

sitting as trial judge in the Daddio case. The plaintiffs have

explained that their desire to see the CHOP data stemmed from the

fact that they believe the CHOP data to be the only set of data

in existence from which the effects of cooling times used during

pediatric cardiac surgery can be analyzed. Even before I denied

the plaintiffs access to the CHOP data on May 19, 2009, however,

the Daddios had disavowed that their theories of negligence and

causation related to cooling times. Plaintiffs’ counsel did not

explain any other way in which the CHOP data are relevant to the

Daddio case. CHOP has no other involvement in the case. My

representation of CHOP cannot be a basis for recusing from the

Daddio case.

As for the Svindland case, the plaintiffs do not argue

that my decision on the merits of the CHOP data issue stemmed

from a bias against them or in favor of the defendants. Rather,

they argue that my prior representation presents the appearance

of bias or partiality toward CHOP. 

I do not think that my representation fifteen years ago

of CHOP, a third-party recipient of a subpoena in this case,

Case 2:05-cv-00417-MAM Document 243 Filed 08/24/09 Page 5 of 8
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leads to the appearance of bias or partiality toward CHOP. In

the earlier case, Dr. James Huhta, a pediatric cardiologist,

brought an action alleging various antitrust and pendent state

law claims against CHOP; the University of Pennsylvania; The

School of Medicine of the University of Pennsylvania; Edmond F.

Notebaert, the CEO of CHOP; Drs. Elias Schwartz, Bernard J.

Clark, and Alvin J. Chin, physicians at CHOP. I represented CHOP

and Mr. Notebaert.

Dr. Huhta, the former Chief of the Division of

Cardiology at CHOP, complained about certain limitations placed

on his privileges at CHOP after he left CHOP and opened a group

practice at Pennsylvania Hospital. The district court granted

summary judgment to the defendants on the antitrust claim and

declined to exercise jurisdiction over the state law claims. The

United States Court of Appeals for the Third Circuit affirmed

that decision. See Huhta v. Children’s Hosp. of Phila., 52 F.3d

315 (3d Cir. 1995). Dr. Huhta then brought his state law claims

against CHOP and Mr. Notebaert in the Court of Common Pleas.

Neither Mr. Notebaert nor CHOP’s General Counsel in

1993 is currently at CHOP. Dr. Norwood was at CHOP during the

earlier antitrust litigation as the Director of Cardiothoracic

Surgery but was not a party in the Huhta case. My memory is that

Dr. Norwood was not deposed in that case. I do remember a

meeting with Dr. Norwood during the litigation, but do not recall

Case 2:05-cv-00417-MAM Document 243 Filed 08/24/09 Page 6 of 8
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any specifics about that meeting. Nor do I see any connection

between the Huhta case and the data sought from CHOP here. 

The plaintiffs do not allege that I have actual

knowledge of disputed evidentiary facts, as is required to

support recusal under § 455(b). Rather, they contend that I may

have extrajudicial knowledge about parties or issues “that may

have been forgotten due to the passage of time . . . but may be

recalled as the evidence is presented during the trial of this

case.” See Svindland Docket No. 192 at 6. 

The plaintiffs have not alleged any facts or general

category of facts related to this case that I knew at that time

or that might be remembered during the trial of these cases, or

how those facts might influence my decisions. The plaintiffs’

general and speculative allegations did not require recusal at

the time of their filing; moreover, now that the Svindland case

has gone to trial, I can say categorically that I recalled

nothing from the Huhta case that related to the issues in the

Svindland case.

Finally, I am very sensitive to the fact that a judge

may not recuse herself if the requirements for recusal are not

met even if it might be more convenient to do so. I am not

persuaded that a reasonable person with knowledge of all the

facts and circumstances surrounding my representation of CHOP and

Case 2:05-cv-00417-MAM Document 243 Filed 08/24/09 Page 7 of 8
8

CHOP’s involvement in this litigation would question the my

impartiality. The plaintiffs’ motions for recusal are denied.

An appropriate Order shall issue separately.

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