Critiques of the Judiciary
A Win Against Judicial Conflict of Interest OLERUD, ET AL. V. MORGAN, ET AL.
Gilbert and Annette Olerud sued Dr. Walter M. Morgan, III and Vanderbilt University Medical Center's Children's Hospital, alleging medical malpractice in connection with the death of their young daughter, Rachel. The complaint was filed July 24, 2007 in Circuit Court for Davidson County, Tennessee, with Judge Barbara N. Haynes presiding.
Unknown to the Oleruds, Judge Haynes was a member of the Board of Directors of Vanderbilt Children's Hospital and had been its former chairman, facts that the judge failed to disclose to the plaintiffs or their attorneys during the course of the litigation which ended with a grant of summary judgment to the defendants. Only after losing the case did the Oleruds discover Judge Haynes' connection with Vanderbilt,1 whereupon they filed motions to recuse her, challenging her order that favored the defendants. Judge Haynes denied these motions.2
Undeterred, the Oleruds took their case to the next higher level.
To the credit of the Tennessee Court of Appeals, its judges agreed that Judge Haynes should have disqualified herself, and they ruled that her orders be vacated and that the case be sent back to the lower court to be tried by a judge whose impartiality could not be questioned.3“A judge should disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification.”-- From: Commentary, Canon 3E
Code of Judicial Conduct
The Olerud's case was reheard by Judge Amanda McClendon of the Second Circuit Court of Davidson County, Tennessee, at Nashville. The new judge, moved by the compelling arguments of the Oleruds' attorney, William Kennerly Burger,4 allowed the litigation to proceed to trial but required that a sincere attempt first be made by the parties to resolve the dispute through mediation. About six weeks prior to trial, and assisted by a mutually-approved mediator, attorneys for the Oleruds and Vanderbilt University reached a confidential settlement agreement that involved compromise on both sides.5 The case was concluded April 8, 2013.6
Appeals Court Tells Judge To Recuse HerselfJEREMY FINLEYFebruary 22, 2011
NASHVILLE, Tenn. The Tennessee Court of Appeals is rebuking a Nashville judge for the appearance of bias in a medical malpractice case involving a dead child.
The Court of Appeals on Tuesday said that Davidson County Circuit Court Judge Barbara Haynes should have recused herself from a case involving the children's Hospital at Vanderbilt.
The Channel 4 I-Team first exposed how Haynes sat on the hospital's board.
One of the plaintiffs in the lawsuit, Annette Olerud, has also filed a judicial ethics complaint against Judge Barbara Haynes. "Even if her intent was not to use her power and influence, it certainly leaves the appearance of impropriety. That's why these rules are in place for judges: so there can never be any question," Olerud told the I-Team.
The decision by the appeals court did not address whether Haynes was biased in favor of the hospital. It only said that it was reasonable for the judge's relationship with Vanderbilt to be questioned by parents Gilbert and Annette Olerud.
The court also overturned Haynes' decision to dismiss the case.
Olerud filed a malpractice lawsuit against a doctor who worked for Vanderbilt Children's Hospital after her daughter, Rachael, died. Haynes oversaw the case, and after she ruled in favor of the hospital, Olerud decided to find out more about the judge.
"I decided to do a Web search. (I found) a Vanderbilt news letter that says, 'Judge Barbara Haynes has been named the board of Vanderbilt Children's Hospital,'" Olerud said.
Vanderbilt Children's Hospital confirmed Haynes is a sitting member of its board and was once its chairwoman. Olerud said Haynes never disclosed to her or her attorney that she sat on the board.
"I said (to my attorney), 'How could this not be a conflict of interest?'" Olerud said.
Olerud's attorney then filed a motion for the judge to recuse herself, writing in the motion that there was a conflict.
Attorneys representing the hospital responded in another motion that the board Haynes sits upon does not govern the hospital, so there is insufficient grounds for a recusal.
Vanderbilt Children's Hospital's website described the board as advising and advocating for the hospital.
Haynes herself made the final determination on the matter, ruling that she did not have to recuse herself.
In November, the I-Team spoke with one of the nation's top judicial ethics experts about the case. Professor Stephen Gillers from New York University's law school said the judge should have recused herself.
"I think she had to recuse herself in that instance even if the board doesn't have any real legal power," Gillers said.
Gillers said it's a simple common sense issue that judges should never give the public there is a perception of a conflict on a case.
"This is about public perception of fairness. We don't want the public to suspect that, because of the judge's affiliation with the children's hospital in this case, that she somehow tilted or even subconsciously favored the interest of the defendant," Gillers said.
Haynes declined the I-Team's request for comment at the time and said her ruling speaks for itself.
Olerud has filed an ethics complaint against the judge.
"Even if her intent was not to use her power and influence, it certainly leaves the appearance of impropriety. That's why these rules are in place for judges: so there can never be any question," Olerud said.Copyright 2011, WSMV.com
From: Jeremy Finley, "Appeals Court Tells Judge To Recuse Herself," WSMV Channel 4, Feb. 22, 2011, Nashville, TN, http://www.wsmv.com/story/14818078/appeals-court-tells-judge-to-recuse-herse, accessed 09/19/2016. Reprinted in accordance with the "fair use" provision of Title 17 U.S.C.
§ 107for a non-profit educational purpose.
Adadped from video initially attached to above article of Feb. 22, 2011 by Jeremy Finley and uploaded to YouTube on Mar. 11, 2011 by JudicialReformNow. See: https://www.youtube.com/watch?v=Jw_Aopn-mJQ, accessed 09/21/2016. Reproduced in accordance with the "fair use" provision of Title 17 U.S.C.
§ 107for a non-profit educational purpose.
Judge Investigated for Possible MisconductJEREMY FINLEYFebruary 23, 2011
NASHVILLE, Tenn. The Channel 4 I-Team has confirmed Circuit Court Judge Barbara Judge Haynes is under investigation by a court that oversees judges' actions.
The Tennessee Court of the Judiciary has opened a full investigation into Haynes' ruling on a hospital malpractice suit in which she failed to disclose that she sits on the board of the hospital, two sources confirm to the I-Team.
The I-Team first exposed that Haynes dismissed a lawsuit against Vanderbilt Children's Hospital, but never disclosed she was once the chairwoman of the hospital's board and is currently still a member.
It all started when Smyrna mother Annette Olerud discovered that Haynes sat on the board after Haynes dismissed Olerud's lawsuit against Vanderbilt Children's Hospital.
After the case was dismissed, Olerud's attorney filed a motion for Haynes to recuse herself. Haynes refused.
Olerud then filed an ethics complaint with the Tennessee Court of the Judiciary.
The court's website reads when a judge is under investigation, that judge must first respond in writing to the complaint.
The possible actions of the court include dismissing the complaint, public censure or formal charges.
"I think they (the Tennessee Court of the Judiciary) understand that she erred," Olerud said.
Haynes has refused the I-Team's repeated requests for an interview.
The I-Team's confirmation of the investigation into the ethics complaint comes a day after the Tennessee Court of Appeals ruled Haynes should have recused herself from the case, and it ordered a new trial.
"For me, that's why this is so wrong. From the time that my daughter was diagnosed with cancer until she passed away was eight months. But this has drug on for four years. And we're back to the beginning," Olerud said.
An attorney representing the hospital responded in a court motion that the board Haynes sits upon does not govern the hospital, so there is no conflict. The Tennessee Court of Appeals ruled Tuesday there was an appearance of bias, but they found she was not biased in her opinion.
Olerud said she will now begin the process of suing the hospital once again.Copyright 2011, WSMV.com
From: Jeremy Finley, "Judge Investigated for Possible Misconduct," WSMV Channel 4, Feb. 23, 2011, Nashville, TN, http://www.wsmv.com/story/14818181/judge-investigated-for-possible-misconduct-2-23-2011, accessed 10/01/2016. Reprinted in accordance with the "fair use" provision of Title 17 U.S.C.
§ 107for a non-profit educational purpose.
Gilbert Olerud, et al. v. Dr. Walter M. Morgan, III, et al.
Case No. 07C2101, Circuit Court for Davidson County, Nashville, TennesseeEndnotes
- AFFIDAVIT OF ANNETTE RAE OLERUD, February 10, 2010.
- ORDER, May 26, 2010.
- APELLATE COURT OPINION, February 18, 2011.
- PLAINTIFFS' RESPONSE TO DEFENDANTS' THIRD RENEWED MOTION FOR SUMMARY JUDGMENT, January 9, 2013.
- Personal communication from William Kennerly Burger to Carl Bernofsky, October 17, 2016.
- FINAL ORDER, April 8, 2013.
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