These two cases were recently consolidated for trial. They stem from the ingestion of the drug diethylstilbestrol ("DES"), a synthetic estrogen, decades ago. See In re DES Cases, 789 F. Supp. 552, 558-59 (E.D.N.Y. 1992). Plaintiffs' mothers each allegedly took DES to prevent a miscarriage.
Plaintiff Suzanne Bilello, a resident of New York State, alleges that as a result of her prenatal exposure to DES in 1955-1956 she has developed abnormalities of the reproductive tract and infertility. Plaintiff Marie Theoret, a Canadian citizen, claims that she developed a form of vaginal cancer as a result of her exposure to the drug in 1956-1957. There has been extensive motion practice and discovery in these cases. They are ready for trial.
At one time more than five hundred DES cases were pending against scores of defendants in New York State alone in federal and state courts. Since it was estimated that individual trials of these cases would have required more than fifty judge-years and thousands of jurors, a Special Master was jointly appointed for the state and federal cases to assist the parties in settling the cases. In re New York County DES Litigation, 142 F.R.D. 58 (E.D.N.Y. 1992). Settlement of the state cases involving this defendant was made more difficult because orders to consolidate state cases for trial were appealed and have remained undecided for some time.
There has been extraordinary cooperation between the state and federal courts and the among the parties to the litigation in connection with settlement negotiations. Through the efforts of the Special Master, Kenneth R. Feinberg, Esq., about half of the cases have been settled. Many defendants have entered into global settlements with all plaintiffs. Other cases are currently in negotiations.
In May and June of 1992, this court, in its settlement role, met in chambers on four occasions, on the record, with plaintiffs' counsel in the instant case, a number of DES daughters and one DES son as well as a number of family members. These were representative plaintiffs, engaged in settlement negotiations, who desired to share their DES experiences with the court, to express their views about the litigation and to hear from the court how the cases might be resolved without trial. At the time of these meetings no DES cases were pending before the federal court because those that had been pending had been tried or settled. This court, in cooperation with New York State Supreme Court Justice Ira Gammerman, was continuing to assist in settling all state cases.
The women recounted tragic stories of how DES had affected their lives. Helene G., a DES mother, lost her eighteen year old daughter to cancer. Thirty-eight year old Charlotte L. told of countless surgeries in twenty-four years and more than eight years of infertility treatments with medical costs exceeding $ 113,000. Deena H. described her fear at learning that she had a recurrence of clear cell cancer, six years after she was told she was cured. She described the pain and humiliation of the invasive procedures she has been subjected to in attempting a permanent cure. Margaret B. recounted how at barely nineteen she discovered she had vaginal cancer. Nine years later she developed lymphedema which caused her body to swell to such gross proportions that she was unable to sit or stand. She described her humiliation at being deposed about her sexuality. Susan H. described the gynecological problems she has been experiencing since the age of fourteen. As a result of developing vaginal cancer at age twenty-one, she had a radical hysterectomy and vaginectomy. Because her vagina was reconstructed with her colon, she had to catheterize herself daily. Her bout with vaginal cancer has resulted in three surgeries and ten hospitalizations. She was dropped by one health insurer. The insurance she currently maintains at extremely high premiums gives little protection. She is infertile and lives in constant fear of a recurrence of cancer.
These were but a sample of the stories that the court heard during those sessions. In addition, the court received letters from several DES victims, some of which were read into the record. Each letter was acknowledged by the court. Each was filed and docketed.
The court explained to the participants some of the problems associated with DES litigation such as those associated with causation. The court also outlined the law of New York respecting market share (see Hymowitz v. Eli Lilly & Co., 73 N.Y.2d 487, 541 N.Y.S.2d 941, 539 N.E.2d 1069 (Ct. App.), cert. denied sub nom. Rexall Drug Co. v. Tigue, 493 U.S. 944, 107 L. Ed. 2d 338, 110 S. Ct. 350 (1989)) and the extension of the statute of limitations (see N.Y. CPLR 214-c). The women were informed of the difficulty in bringing cases to trial because of lack of judicial resources and of the courts' efforts to settle the cases. The court expressed regret that the law was not in a position to help establish a fund to benefit those who suffer from DES exposure, as requested by some of those present, similar to the funds established for victims of asbestos, Agent Orange and the Dalkon Shield intra-uterine device.
The court maintained its neutrality at all times. It noted the importance of giving due process to both plaintiffs and defendant drug companies. Above all, the court emphasized the desirability that these cases be settled so that plaintiffs could put the matter behind them and get on with their lives.
At the close of the May 27 meeting, a woman whose name is recorded in the transcript as "Susan Bill" recounted her experiences as a DES daughter, including her ever-present fear of developing clear cell cancer and her inability to have biological children. The woman referred to as Susan Bill is, it is stipulated, is the plaintiff, Suzanne Bilello, in the instant case. She had also submitted two letters to the court.
The May 27 meeting was reported on Newsday. See Pamela Newkirk, Victims of DES Testify, Newsday, May, 28, 1992 at 6. The article described the court's having listened intently and sympathetically to "wrenching stories of cancer and infertility." Id. The reporter characterized the session as providing an opportunity for the women to "put their tragic experiences on the record finally after years of waiting for their day in court." Id.
The court, together with the Special Master and his staff, has been working with the parties in the case in an attempt to reach a settlement for these and over one hundred other pending cases. The parties disagree about a fair settlement figure. At the court's suggestion, the Special Master utilized a settlement formula to guide the parties and the court. The relatively high historical settlements achieved by attorney for plaintiffs were analyzed case-by-case and were averaged. The same calculation was made for the historical settlements of defendant. Recent settlement figures were isolated to determine what, if any, trends there have been in settlement values for the last year. In the course of these settlement discussions, the court became fully aware of the contentions of all parties. The detailed contentions of defendants as to the instant cases were presented forcefully.
Defendant moves to disqualify the court based on the court's ex parte communication with Ms. Bilello at the May 27 meeting. Defendant urges that disqualification is now required because the court has personal knowledge of disputed evidentiary facts and the situation is one that has the appearance of partiality. Moreover, defendant argues that the court's contact with plaintiff was extrajudicial because it did not center around any pending case. Defendant also contends that the court's sympathetic attitude toward these DES plaintiffs requires disqualification.
"Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." 28 U.S.C. § 455(a). The judge shall also disqualify him- or herself "where he has . . . personal knowledge of disputed evidentiary facts concerning the proceeding." Id. at § 455(b)(1). "Because of [the] general provision of § 455(a), an overly-nice reading is not required of the specific instances of disqualification spelled out in § 455(b)." 13A Charles A. Wright, Arthur R. Miller and Edward H. Cooper, Federal Practice and Procedure § 3549 (Supp. 1993). See generally Susan B. Hoekema, Comment, Questioning the Impartiality of Judges: Disqualifying Federal District Under 28 U.S.C. § 455 (a)., 60 Temple L.Q. 697 (1987).
Section 455(a) embodies an objective standard. The test is whether "a reasonable person, knowing all the facts, [would] conclude that the trial judge's impartiality could reasonably be questioned." United States v. Lovaglia, 954 F.2d 811, 815 (2d Cir. 1992). See also DeLuca v. Long Island Lighting Co., Inc., 862 F.2d 427 (2d Cir. 1988) ("The test for an appearance of partiality is . . . whether an objective, disinterested observer fully informed of the facts underlying the grounds on which recusal was sought would entertain a significant doubt that justice would be done in the case."), citing, Pepsico, Inc. v. McMillen, 764 F.2d 458, 460 (7th Cir. 1985); In re Drexel Burnham Lambert Inc., 861 F.2d 1307, 1309 (2d Cir. 1988) ("The test of impartiality is what a reasonable person, knowing and understanding all the facts and circumstances, would believe."); In re Int'l Business Machines Corp., 618 F.2d 923, 929 (2d Cir. 1980) (section 455(a) creates a so-called "appearance of justice" rule).
The fact that the judge is capable of discharging his duties free from bias or prejudice is not the measure. See Haines v. Ligett Group Inc., 975 F.2d 81, 96 (3d Cir. 1992) (even though trial court is capable of performing impartially, disqualification may be required because "the polestar is 'impartiality and the appearance of impartiality.'") (emphasis in original); United States v. Torkington, 874 F.2d 1441, 1447 (11th Cir. 1989) (even though district judge is able to act impartially, disqualification responds "to the appearance of a lack of neutrality" and the court "preserves in the public mind the image of absolute impartiality and fairness of the judiciary"); United States v. Pepper & Potter, Inc., 677 F. Supp. 123, 126 (E.D.N.Y. 1988) (court is required to recuse itself, even though its impartiality is not questioned by either party, because its limited involvement in the case while United States Attorney, of which the court had no recollection, would likely give rise to an appearance of impartiality). The courts must take into account the fact that "people who have not served on the bench are often all too willing to indulge suspicions and doubts concerning the integrity of judges." Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 864-65, 100 L. Ed. 2d 855, 108 S. Ct. 2194 (1988).
The purpose of section 455(a) is "to promote public confidence in the integrity of the judicial process" which "does not depend upon whether the judge actually knew of facts creating an appearance of impropriety, so long as the public might reasonably believe that he or she knew." Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 860, 100 L. Ed. 2d 855, 108 S. Ct. 2194 (1988). "Thus, if a judge's partiality might be reasonably questioned, recusal is warranted even if the judge in fact holds no bias." Several authors, Disqualification of Judges (The Sarokin Matter): Is it a Threat to Judicial Independence?, 59 Brooklyn L. Rev. 1063, 1072 (1993). See, e.g., In re School Asbestos Litig., 977 F.2d 764, 781 (3d. Cir. 1992) (reasonable person might question partiality of trial judge who attended "a predominantly pro-plaintiff conference on a key merits issue" that was funded by plaintiffs). A reasonable person might suspect that a judge who has an opportunity to "preview" plaintiff's case is predisposed to the plaintiff's position. Id. at 782.
The litigant's belief that he or she has had a fair trial must be protected. "The ability to seek another judge protects the perception of fairness." United States v. Escobar, 803 F. Supp. 611, 615 (E.D.N.Y. 1992) (permitting peremptory challenge of judge in a capital case). "To perform its high function in the best way 'justice must satisfy the appearance of justice.'" In re Murchison, 349 U.S. 133, 136, 99 L. Ed. 942, 75 S. Ct. 623 (1955), citing, Offutt v. United States, 348 U.S. 11, 14, 99 L. Ed. 11, 75 S. Ct. 11 (1954).
A judge's supposed knowledge of the facts of the case, in some instances, is not sufficient to require disqualification. See generally 13A Charles A. Wright, Arthur R. Miller and Edward H. Cooper, Federal Practice and Procedure § 3543 (2d ed. 1984); United States v. Professional Air Traffic Controllers Org., 527 F. Supp. 1344, 1359 (N.D. Ill. 1981) (disqualification not required based on conversations overheard or observations made during judge's visit to Air Traffic Control Center); United States v. Coven, 662 F.2d 162, 168 (2d Cir. 1981), cert. denied, 456 U.S. 916, 72 L. Ed. 2d 176, 102 S. Ct. 1771 (1982) (no recusal where judge heard incriminating evidence about defendants when the government sought her approval of an agreement by a receiver she had appointed to cooperate in a criminal investigation). Although there is a duty to avoid ex parte communication, not every ex parte communication with the trial court requires recusal. Price Bros. Co. v. Philadelphia Gear Corp., 629 F.2d 444, 446 (6th Cir. 1980).
Disqualification is usually warranted when the critical prejudicial knowledge is obtained from an extrajudicial source. United States v. Grinnell Corp., 384 U.S. 563, 583, 16 L. Ed. 2d 778, 86 S. Ct. 1698 (1966); Apple v. Jewish Hosp. and Med. Center, 829 F.2d 326, 333 (2d Cir. 1987) (disqualification denied as untimely); In re Int'l. Business Machines Corp., 618 F.2d 923, 928-29 (2d Cir. 1980) (recusal not warranted where claim of prejudice based solely on judge's conduct and rulings in the case at hand). Facts learned by the judge while acting in his judicial capacity cannot form the basis for disqualification. United States v. Bernstein, 533 F.2d 775, 785 (2d Cir.), cert. denied, 429 U.S. 998, 50 L. Ed. 2d 608, 97 S. Ct. 523 (1976); Person v. General Motors Corp., 730 F. Supp. 516, 518 (W.D.N.Y. 1990). Furthermore, "mere allegation that conduct is extrajudicial does not make it so." Allen-Myland v. Int'l. Business Machines Corp., 709 F. Supp. 491, 494 (S.D.N.Y. 1989).
It is well established and appropriate for judges to meet with counsel and parties in connection with settlement negotiations. Federal Rule of Civil Procedure 16 encourages judges to take an active role in the settlement of civil suits. Judicial involvement in settlement is increasing. See Scott A. Miller, Note, Expanding the Federal Courts Power to Encourage Settlement Under Rule 16: G. Heileman Brewing v. Joseph Oat, 1990 Wisc. L. Rev. 1399; Peter H. Schuck, The Role of Judges in Settling Complex Cases: The Agent Orange Example, 53 U. Chi. L. Rev. 337 (1986); D. Marie Provine, Settlement Strategies for Federal District Judges (Federal Judicial Center 1986).
The judge, as case manager, relies on settlement-enhancing procedures to help contain the costs of litigation and to keep cases moving forward. . . . Clients are potential allies in the effort to arrive at dispositions that are economically rational and that occur as early in the life of the case as possible.