WASHINGTON, April 1 (UPI) -- The Supreme Court Monday reversed a lower court decision that removed a judge from a tobacco lawsuit filed by Sao Paolo State, Brazil.
The lower court had removed the judge because of his accidental connection to a previous tobacco suit.
The Supreme Court reversed the lower court in an unsigned "per curiam" decision, making it tougher for high-profile liability defendants -- such as the tobacco companies -- to claim bias on the part of a judge.
Sao Paolo State filed its original suit against the major tobacco companies in Louisiana state court in February 2000, becoming one of three dozen foreign government plaintiffs trying to recover damages because of the health effects of tobacco use.
The companies -- Fortune Brands Inc., R.J. Reynolds Tobacco Co., Brown & Williamson Tobacco Corp., Phillip Morris Inc., Lorillard Tobacco Co., Liggett Group Inc. and others -- successfully asked the case be moved to federal court, where it randomly was assigned to U.S. District Judge Carl Barbier.
Barbier was also overseeing a parallel suit brought by the government of Panama against the tobacco companies.
The companies moved to disqualify Barbier in both the Sao Paolo and the Panama suits because of his alleged involvement in an earlier suit against Big Tobacco.
Eight years earlier in a liability suit called the "Gilboy" case, while the judge was in private practice, his name appeared on a brief filed by the Louisiana Trial Lawyers Association.
The brief argued the tobacco industry should be held responsible for the deaths caused by lung cancer.
The companies in the Sao Paolo case did not argue Barbier was prejudiced against them, only that there was "an appearance of impropriety" because his name appeared on the Gilboy brief.
Barbier refused to remove himself from the Sao Paolo case. The judge explained his name had mistakenly been put on the Gilboy brief, which was filed after he left office as president of the Louisiana Trial Lawyers Association, and that he "had absolutely nothing to do with researching, writing, signing or approving this brief in any manner."
Barbier also said he had "never taken any position or opinion regarding the tobacco industry or any of the issues raised" in the case, and had never associated with the lawyers involved in the earlier or current cases.
For him to recuse himself, Barbier said "would open the door to Pandora's box" and a flood of challenges to trial judges.
Having previously sent the Panama case back to state court for trial -- where the penalties could be higher -- Barbier did the same thing to the Sao Paolo case.
The tobacco companies appealed at that point, citing Barbier's alleged impropriety.
A three-judge panel of the U.S. Court of Appeals for the 5th U.S. Circuit reversed Barbier's refusal to disqualify himself in the Panama case.
Two of the three judges were assigned to another three-judge panel in the Sao Paolo appeal, and they also reversed Barbier's refusal to disqualify himself in that case.
In each case, the panel did not identify any actual prejudice, but said Barbier's name appearing on the earlier brief, even by mistake, might convey the appearance of impropriety.
The full U.S. Appeals Court for the 5th Circuit refused to rehear the issue en banc, which brought a dissent from six circuit judges.
The dissenters said the refusal by the full court to hear the issue was "opening a new, broad avenue for litigants to avoid appearing before a judge they perceive to be unfairly disinclined to favor their side of a case."
Sao Paolo State then asked the Supreme Court for review.
Monday, the Supreme Court granted review and ruled in the case without hearing argument.
In its unsigned opinion, the Supreme Court said the appeals court majority "is inconsistent with Liljeberg vs. Health Services Acquisition Corp. ... which stated that (federal law) requires judicial recusal (removal) 'if a reasonable person, knowing all the circumstances, would expect that the judge would have an actual knowledge' of his interest or bias in the case."
The Supreme Court said it was "self-evident that a reasonable person would not believe (Barbier) had any interest or bias."
The ruling sends the case back down for a new appeals court decision based on the per curiam opinion.
(No. 010835, Sao Paolo State vs. The American Tobacco Co. et al)
