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In re Medtronic, Inc. Sprint Fidelis Leads Products Liability Litigation: US District Court : CIVIL PROCEDURE - motion to recuse denied; no facts to bring impartiality into questions

In re Medtronic, Inc. Sprint Fidelis
Leads Products Liability Litigation
Multidistrict Litigation
No. 08-1905 (RHK/JSM)
This document relates to: MEMORANDUM OPINION
Daniel E. Gustafson, Gustafson Gluek, PLLC, Minneapolis, Minnesota, Plaintiffs lead
counsel, Robert K. Shelquist, Lockridge Grindal Nauen P.L.L.P., Minneapolis,
Minnesota, Plaintiffs liaison counsel, Charles S. Zimmerman, Zimmerman Reed PLLP,
Minneapolis, Minnesota, chair of Plaintiffs Steering Committee, for Plaintiffs.
George W. Soule, Jennifer K. Huelskoetter, Melissa R. Stull, Bowman and Brooke LLP,
Minneapolis, Minnesota, Kenneth S. Geller, David M. Gossett, Carl J. Summers, Mayer
Brown LLP, Washington, D.C., Herbert L. Zarov, Daniel L. Ring, Stephen J. Kane,
Mayer Brown LLP, Chicago, Illinois, Philip S. Beck, Tarek Ismail, Bartlit Beck Herman
Palenchar & Scott LLP, Chicago, Illinois, for Defendants.
In deciding the sensitive question of whether to recuse . . . , the test of
impartiality is what a reasonable person, knowing and understanding all the
facts and circumstances, would believe. It is for that reason that we cannot
adopt a per se rule holding that when someone claims to see smoke, we must
find that there is fire. That which is seen is sometimes merely a smokescreen.
Judicial inquiry may not therefore be defined by what appears in the press. If
such were the case, those litigants fortunate enough to have easy access to the
media could make charges against a judges impartiality that would effectively
veto the assignment of judges. Judge-shopping would then become an
additional and potent tactical weapon in the skilled practitioners arsenal.
Instead, the sensitive issue of whether a judge should be disqualified requires
a careful examination of those relevant facts and circumstances to determine
whether the charges reasonably bring into question a judges impartiality.
In re Drexel Burnham Lambert Inc., 861 F.2d 1307, 1309 (2d Cir. 1988). The relevant
facts and circumstances here concern my son, Richard H. Kyle, Jr., a shareholder at
Fredrikson & Byron, P.A. (Fredrikson), a large Minneapolis law firm that represents
the Defendant, Medtronic, in corporate matters and other litigation unrelated to the case
sub judice. According to Plaintiffs, these facts require my recusal from this case. The
Court does not agree.
This multidistrict litigation concerns Medtronics Sprint Fidelis defibrillator leads,
which were voluntarily recalled on October 15, 2007. See In re Medtronic, Inc. Sprint
Fidelis Leads Prods. Liab. Litig., 592 F. Supp. 2d 1147, 1154 (D. Minn. Jan. 5, 2009).
Following the recall, plaintiffs nationwide filed actions against Medtronic alleging
(among other things) claims for negligence, strict products liability, fraud, and breach of
express and implied warranties. On February 21, 2008, the Judicial Panel on Multidistrict
Litigation consolidated 27 such actions before the Court for pretrial proceedings, pursuant
to 28 U.S.C. 1407. Hundreds of other cases were later transferred here as tag along
actions. At present, this multidistrict litigation comprises over 700 individual cases.
Following its initial status conference in May 2008, the Court appointed lead
counsel for Plaintiffs and a steering committee to direct the course of the litigation, who
later filed a Master Consolidated Complaint for Individuals (the MCC) on behalf of all
individual Plaintiffs in this case. Medtronic later moved to dismiss the MCC, arguing that
each of the asserted claims was preempted under federal law. The parties engaged in
substantial briefing on that issue, and the Court held a nearly two-hour hearing on the
Motion in December 2008. On January 5, 2009, the Court granted Medtronics Motion
1 The Court subsequently granted Plaintiffs leave to file a Motion for Leave to Amend the
and dismissed the MCC with prejudice.1 At no point during the proceedings before the
JPML, at the initial status conference, in the many status conferences that followed, or in
connection with the briefing and oral argument on Medtronics Motion to Dismiss, did
Plaintiffs raise the issue of my sons position at Fredrikson or the firms representation of
Medtronic in other matters.
Now, less than two months following the dismissal of the MCC but over a year
after the JPMLs consolidation order in this Court, Plaintiffs have moved for my recusal.
According to Plaintiffs, [a]pproximately two weeks ago, [they] discovered . . . that
Fredrikson . . . has handled billion in what it describes as deals with Medtronic.
(Pl. Mem. at 1.) As a result of these strong financial interests and many other
connections between Medtronic and Fredrikson, including (i) several Fredrikson
attorneys having previously worked for Medtronic and (ii) Fredrikson representing the
company in intellectual-property litigation, counseling, and corporate work, Plaintiffs
contend that there exists a presumption that I am biased due to my sons position as a
shareholder at Fredrikson. (Id. at 2.) Plaintiffs further argue that even if no such
presumption exists, I must nevertheless recuse because a reasonable person would
question my impartiality. (Id. at 1-2.)
Recusal in the federal courts is governed by 28 U.S.C. 455, which contains two
subsections pertinent here. Under Section 455s generalized, catchall recusal
provision, Liteky v. United States, 510 U.S. 540, 548 (1994), a judge must disqualify
himself whenever his impartiality might reasonably be questioned. 28 U.S.C. 455(a).
The second, more-specific subsection addresses a judges personal relationships and
requires recusal whenever a judge knows that a family member has an interest that could
be substantially affected by the outcome of the proceeding. 28 U.S.C. 455(b)(5)(iii).
The decision whether to grant a motion under Section 455 is committed to the Courts
sound discretion. Moran v. Clarke, 296 F.3d 638, 648 (8th Cir. 2002) (en banc).
Judges are presumed to be impartial and, accordingly, parties seeking recusal bear
the substantial burden of proving otherwise. United States v. Dehghani, 550 F.3d 716,
721 (8th Cir. 2008) (emphasis added) (internal quotation marks and citation omitted);
accord Fletcher v. Conoco Pipe Line Co., 323 F.3d 661, 664 (8th Cir. 2003) (movant
carries a heavy burden of proof) (citation omited). A judge is as much obliged not to
recuse himself when it is not called for as he is obliged to when it is. In re Drexel
Burnham Lambert, 861 F.2d at 1312; accord Laird v. Tatum, 409 U.S. 824, 837 (1972)
(Mem. of Rehnquist, J.); Sw. Bell Tel. Co. v. FCC, 153 F.3d 520, 523 (8th Cir. 1998)
(Mem. of Hansen, J.). Otherwise, parties could easily engage in judge shopping and
deal a serious blow to the integrity of the court system. ADC Telecomms., Inc. v.
2 Section 455(b)(5)(iii) also applies to any other family members within the third degree
of relationship to a judge or his spouse.
Thomas & Betts Corp., Civ. No. 98-2055, 2001 WL 848559, at *1 n.1 (D. Minn. July 25,
2001) (Frank, J.).
I. Section 455(b)
The Court begins its analysis with the more specific subsection of Section 455,
Section 455(b). As noted above, Section 455(b)(5)(iii) requires a judge to recuse if his or
her child2 is known to have an interest in an action that could be substantially affected
by its outcome. Plaintiffs argue that because my son is a shareholder at Fredrikson, and
because Fredrikson derives significant revenue from Medtronic, it necessarily follows
that my son has an interest that could be affected by the outcome of this case. (Pl. Mem.
at 15-17.) The argument, it seems, is predicated on the assumption that Medtronic is
likely to steer its legal business elsewhere in the event the Court were to rule against it in
this case. (See id. at 13.)
The Court cannot find any principled basis to accept this argument, particularly
given the purportedly symbiotic relationship between Fredrikson and Medtronic. Indeed,
Plaintiffs repeatedly note that there exists a deep, pervasive and ongoing relationship
between the two (Pl. Mem. at 17), which is driven by the fact that several former
Medtronic attorneys now work for the firm. In light of this close association, it seems
particularly unlikely that any ruling the Court might make in this case, whether favorable
3 One could argue that a sufficiently adverse ruling might put Medtronic out of business,
thereby depriving Fredrikson of a significant client. Given Medtronics sheer size, however,
such an outcome is highly unlikely.
or unfavorable to Medtronic, would have an impact on the quantum of business the firm
receives. Simply put, the associations between Medtronic and its former lawyers, and the
amount of business those associations generate for the firm, will in all probability
continue to exist regardless of the outcome here.3
Furthermore, it is utter speculation not in accord with common sense that a
negative outcome in this litigation would affect the relationship between [Fredrikson] and
[Medtronic], when Medtronic is a large, multi-national company with in-house counsel
who presumably know that it would be improper for the court to be influenced by
[Medtronics] relationship with the firm. Diversifoods, Inc. v. Diversifoods, Inc., 595 F.
Supp. 133, 139 (N.D. Ill. 1984). Accordingly, the company reasonably could not be
expected to be resentful of [Fredrikson] or think less of . . . the firm, which is not even
involved in this case, if Medtronic should lose this litigation. Id. Simply put, it is not
reasonable to accept Plaintiffs argument that the outcome of the proceeding adversely
would affect [Fredrikson]s relationship with [Medtronic]. Id.
At bottom, the argument Plaintiffs advance is little more than a hypothetical house
of cards: my son could be affected if the Court were to rule against Medtronic, if
Medtronic then retaliated by withdrawing business from Fredrikson, if the removal of
that business were to impair my sons financial interests, and if that impairment were
4 Plaintiffs baldly assert that whatever substantially affects Medtronic . . . necessarily
has an effect on Fredrikson, and in turn, its shareholders. (Pl. Mem. at 14.) That contention,
however, is pure hypothesis and ignores the realities of modern law-firm economics. More
importantly, the question is not whether this case might affect my sons interests, but rather
whether it might substantially affect them. 28 U.S.C. 455(b)(5)(iii) (emphasis added).
Something that substantially affects Medtronic need not substantially affect Fredrikson let
alone my son ipso facto, particularly given my sons relatively small stake in the firms profits
(see Koneck Aff. 16).
5 The text of Section 455(b)(4) tracks that in Section 455(b)(5)(iii) and requires recusal
when a judge, his spouse, or a minor child residing with him has an interest that could be
substantially affected by the outcome of the proceeding.
substantial. The converse argument, which Plaintiffs also raise, is similarly conjectural:
my son could be affected if the Court were to rule in favor of Medtronic, if Medtronic
then rewarded Fredrikson by funneling it more business, if the additional business
enhanced my sons financial interests, and if that enhancement were substantial.4 But
Plaintiffs are required to offer proof of partiality, Dehghani, 550 F.3d at 721;
unsupported, irrational, or highly tenuous speculation will not do. Hinman v. Rogers,
831 F.2d 937, 939 (10th Cir. 1987); accord In re Kan. Pub. Employees Ret. Sys., 85 F.3d
1353, 1362 (8th Cir. 1996) (recusal not required where alleged interest is too remote,
speculative, [or] contingent). For this reason, arguments like those asserted by Plaintiffs
have been repeatedly rejected. See Canino v. Barclays Bank, PLC, No. 94 Civ. 6314,
1998 WL 7219, at *4 (S.D.N.Y. Jan. 7, 1998) (All of the courts that have addressed this
issue have held that 455(b)(4) does not compel disqualification under these
By way of example, Microsoft Corp. v. United States, 530 U.S. 1301 (2000), the
well-publicized antitrust case, addressed circumstances nearly identical to those here.
Although Microsoft involved a simple denial of a petition for a writ of certiorari, Chief
Justice Rehnquist took the unusual step of placing a statement in the United States
Reports explaining why he had declined to recuse from considering that petition. He
noted that Microsoft had retained Goodwin, Procter & Hoar, a Boston law firm where his
son was a partner, to represent it in antitrust matters; although his son was involved in
those matters, neither he nor the firm were involved in the case then pending before the
Court. After analyzing both Section 455(a) and Section 455(b), Chief Justice Rehnquist
determined that his recusal was not warranted, stating it would be unreasonable and
speculative to conclude that the outcome of any Microsoft proceeding in this Court would
have an impact on [his sons] interests when neither he nor his law firm would have done
any work on the matters here. Id. at 1302. In the instant case, the connection is even
more attenuated than that discussed in Microsoft unlike the Chief Justices son, my son,
who practices in the area of criminal defense, does not now represent, and has never
previously represented, Medtronic. (Koneck Aff. 14.)
The court in Transportes Coal Sea de Venezuela C.A. v. SMT Shipmanagement &
Transport Ltd., No. 05 Civ. 9029, 2007 WL 62715 (S.D.N.Y. Jan. 9, 2007), reached a
similar conclusion. There, the issue was whether an arbitration award should be set aside
because the arbitrators son worked for a law firm that represented one of the parties in an
unrelated matter. In declining to vacate the award, the SMT court borrowed from the
standards applicable to recusal in federal court:
Additionally, the Court finds it significant that federal judges, who are held to
a more stringent standard of impartiality, . . . are free to hear cases in which a
party is represented in unrelated matters by the law firms of family members.
Even under these more stringent standards, for example, a claim that a judges
spouse is a partner in a firm which represented a party appearing before the
judge and that, as a result of this relationship, the judge and her husband
benefitted from fees from that client describes a chain of causation too
attenuated to [require recusal].
Id. at *10 (internal quotation marks, alterations, and citations omitted); accord, e.g.,
Pashaian v. Eccleston Props., Ltd., 88 F.3d 77, 83 (2d Cir. 1996) (It would simply be
unrealistic to assume . . . that partners in todays law firms invariably have an interest that
could be substantially affected by the outcome of any case in which [a different] partner
is involved.); Canino, 1998 WL 7219, at *4 (Nor can it be said that simply because one
or more partners in [the judges] husbands law firm represented Defendant in some
matters, [her] husband possessed an interest that could be substantially affected by the
outcome of the proceedings.).
Plaintiffs note that the judges in In re Digital Music Antitrust Litigation, MDL No.
1780, 2007 WL 632762 (S.D.N.Y. Feb. 27, 2007), and Diversifoods declined to recuse
because, inter alia, their family members law firms did not receive significant
compensation from the defendants. Plaintiffs attempt to contrast those cases with the
instant one, arguing that Medtronic is a significant and material Fredrikson client.
(See infra note 5.) In essence, Plaintiffs invite the Court to draw a bright-line rule: if a
6 Plaintiffs cite various articles posted on Fredriksons website to argue that Medtronic is
a significant and material client of the firm, although none of the cited website sections or
articles actually uses those terms. (See Pl. Mem. at 5, 17 & n.2.) Regardless, Fredrikson is a
large and diverse law firm, with more than 240 lawyers in five offices spanning three countries,
with a wide range of practice areas includ[ing] banking, corporate, employment, energy,
renewable energy, franchise, government relations, healthcare, intellectual property,
international, litigation, real estate, securities, and tax. http://www.fredlaw.com/news/press/
pr090121.html (last visited March 9, 2009). Plaintiffs arguments notwithstanding, there is
simply nothing in the record to indicate that Medtronic is Fredriksons raison detre.
judges child is a partner in a law firm that derives substantial revenue from a client, then
the judge must recuse from all cases involving that client. The Court declines Plaintiffs
invitation. Such a hard-and-fast rule is contrary to the Eighth Circuits admonition that a
relationship between a party and a judges son or daughter does not per se necessitate a
judges disqualification. Rather, the determination of whether a conflict exists in a given
situation is factually bound. In re Kan. Pub. Employees, 85 F.3d at 1364. Here, the
facts point to a close-knit relationship between Fredrikson and Medtronic, which suggests
that there will be little (if any) financial consequences to the firm let alone to my son
no matter how Medtronic fares in this litigation. That Medtronic might be a significant
Fredrikson client, therefore, does not rule the day.6
In addition to the ostensible financial interest that my son has in this case,
Plaintiffs also argue that he has other interests, such as business relationships and
reputations, that could be substantially affected were the Court to rule against
Medtronic. (Pl. Mem. at 15.) Plaintiffs are correct that Section 455(b)(5)(iii) is not
limited to purely financial interests. See In re Kan. Pub. Employees, 85 F.3d at 1359.
But Plaintiffs fail to explain, and the Court fails to understand, how a decision for or
against Medtronic here might affect his reputation when neither he, nor his firm, is
counsel of record in this case. For the same reason, it is equally unclear to the Court how
a decision in this case will affect his (or the firms) business relationships. Large law
firms like Fredrikson gain and lose clients even material clients all the time, and
the reputation and good will of those firms has not been affected substantially.
Diversifoods, 595 F. Supp. at 139. There is no reason to conclude otherwise here. At the
end of the day, it is impossible to do more than speculate that [my son] might someday
reap a [non-pecuniary] benefit as an indirect result of the success of Medtronic in this
litigation. Scott v. Metro. Health Corp., 234 Fed. Appx. 341, 357 (6th Cir. 2007)
For all of these reasons, the Court finds that Plaintiffs have failed to satisfy their
burden of demonstrating that recusal is required under 28 U.S.C. 455(b).
II. Section 455(a)
As noted above, Section 455(a) is broader than Section 455(b). Its purpose is to
promote confidence in the judiciary by avoiding even the appearance of impropriety
whenever possible. Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 865
(1988) (emphasis added). Hence, in determining whether recusal under Section 455(a) is
appropriate, the issue is whether a judges impartiality might reasonably be questioned
by the average person on the street who knows all the relevant facts of a case. Scenic
Holding, LLC v. New Bd. of Trs. of Tabernacle Missionary Baptist Church, 506 F.3d
656, 662 (8th Cir. 2007) (quoting Moran, 296 F.3d at 648). The use of such an objective
standard renders irrelevant whether a judge is actually biased or actually knows of a
ground requiring recusal. Id. Yet, it is not enough for [Plaintiffs] to throw out [such]
charges and then maintain that they cast a pall over the proceedings [simply] because they
are not inconceivable. Scott, 234 Fed. Appx. at 355. That is, judges should not
recuse themselves solely because a party claims an appearance of partiality. In re
Aguinda, 241 F.3d 194, 201 (2d Cir. 2001) (emphasis added); see also In re Mason, 916
F.2d 384, 386 (7th Cir. 1990) (inquiry under Section 455(a) is not made from perspective
of a hypersensitive or unduly suspicious person).
Plaintiffs argument for recusal under Section 455(a) largely parrots their argument
under Section 455(b). They contend that a reasonable person could question my
impartiality because my son is a Fredrikson shareholder and a ruling against Medtronic
could adversely affect Fredrikson (whether financially or by reputation or by its ability to
obtain new business from Medtronic). (Pl. Mem. at 13.) For the reasons set forth above,
the Court rejects that argument, as Plaintiffs offer nothing more than the gossamer
strands of speculation and surmise to support it. In re United States, 158 F.3d 26, 35 (1st
Cir. 1998). An average person, knowing all of the facts and circumstances, would not
conclude that my presiding over this case would have any impact on Medtronics
relationship with Fredrikson.
As with Section 455(b), the Court is not painting on a blank palette in reaching this
conclusion legions of cases have come to the same result. For example, in In re
Billedeaux, 972 F.2d 104 (5th Cir. 1992), the plaintiff sought recusal of the district judge
because her husband was a partner at a law firm that represented the defendant (Tidex) in
other matters. The district judge denied the motion, and the plaintiff then petitioned the
Fifth Circuit for a writ of mandamus compelling the district judge to recuse. The
appellate courts rejection of that petition is particularly apt here:
There is no assertion that [the district judge] ever represented Tidex; nor is
there an averment that her husband has handled matters for that client. The
claim, instead, is that her husband is a partner in a firm that has represented
Tidex on various occasions and that, as a result of that relationship, she and her
husband benefit from fees from that client and that, accordingly, her
impartiality might reasonably be questioned.
A similar argument was made in Chitimacha Tribe [of La. v. Harry L.
Laws Co., 690 F.2d 1157 (5th Cir. 1982)]: The Plaintiffs asserted that the
judge was receiving payments from his former firm, which at all times still
represented the defendant and thus might suffer financially if the judge were
to rule adversely to the defendant. We held that [a]t best, this speculation is
remote and unrealistic and does not justify disqualification. Id. at 1167.
Here, as well, there is no reason to conclude or speculate that any action
[the district judge] might take in the case sub judice would affect [her
husbands law firm] or [her] husband. A remote, contingent, or speculative
interest is not one which reasonably brings into question a judges partiality.
Thus, any interest of [the district judge] is too remote and speculative to
support or suggest recusal.
972 F.2d at 105-06 (citations omitted). Similarly, in Microsoft, Chief Justice Rehnquist
stated that he did not believe that a well-informed individual would conclude that an
appearance of impropriety exists simply because [his] son represents, in another case, a
party that is also a party to litigation pending in this Court. 530 U.S. at 1302; see also In
re Digital Music Antitrust Litig., 2007 WL 632762, at *12 (Courts have uniformly
rejected the argument that an appearance of impropriety exists in the following situation:
(i) a judges spouse is a partner in a law firm that represents a litigant in matters other
7 That the judges husband in Diversifoods had some connection with the events
underlying that litigation is noteworthy. Here, Plaintiffs assert that [c]ertain former Medtronic
employees, now Fredrikson shareholders, worked on regulatory and compliance matters
including aspects of the PreMarket Approval or exemption from approval, of the very product or
root devices in question. (Pl. Mem. at 13.) In support, they rely on a 2000 letter between a
Fredrikson shareholder (Robert Klepinski), who was then employed by Medtronic, and the FDA
regarding temporary pacemaker electrodes that include myocardial needles used during open
chest surgery. (Gustafson Aff. Ex. D.) But there is no obvious connection between such
devices and the Sprint Fidelis leads, which are wires permanently affixed to implantable cardiac
defibrillators (see MCC (Doc. No. 129) 2-3), nor do Plaintiffs point to any. Moreover,
Fredrikson specifically avers that it has never represented Medtronic in any regulatory matter
concerning Fidelis leads and played no role in advising Medtronic during the design,
development, testing, premarket approval, or post-market surveillance of Fidelis leads.
(Koneck Aff. 8.) In any event, Diversifoods makes clear that recusal would not be required
even if this nine-year-old letter indicated some minor connection between Klepinski and the
facts underlying this litigation.
than the case before the judge; and (ii) the spouse did not perform any work at the law
firm for the litigant or worked for the litigant or unrelated matters.); Canino, 1998 WL
7219, at *3 (Even if Judge Cederbaum had known that her husbands law firm
represented the Defendant in an unrelated matter, 455(a) would not have compelled her
disqualification from this litigation.); Diversifoods, 595 F. Supp. at 134, 139-40 (no
appearance of impropriety where judges husband was partner of law firm that presently
represents the defendant in other matters, and, prior to the filing of this lawsuit, had some
connection with the events underlying this litigation).7 As the Seventh Circuit has noted,
the care with which the recusal rules were crafted should lead any judge to hesitate to
treat the general language of 455(a) as a bar to judicial service whenever a relative has
something to do with a party. In re Natl Union Fire Ins. Co. of Pittsburgh, 839 F.2d
8 Plaintiffs reliance on United States v. Miell, No. 07-CR-101, 2008 WL 974843 (N.D.
Iowa Apr. 8, 2008), is misplaced. There, the defendant was indicted for scheming to defraud
several insurance companies. One such insurer sued the defendant to recover its losses and was
represented in that litigation by the judges husbands law firm. See id. at *1. Because of the
close connection between the criminal and civil cases, the judge recused out of an abundance of
caution. Id. at *3. The facts here are markedly different.
9 Notably, the Court was contacted by a reporter for the Wall Street Journal within hours
of that conference call, even though no transcript or other public record of that call had yet been
filed. These facts call to mind the concerns raised in In re Drexel Burnham Lambert, 861 F.2d at
1309, that litigants with access to the media can manipulate the press in an attempt to obtain a
judge more to their liking.
1226, 1229 (7th Cir. 1988). That is all that is present here, given the highly tenuous
connection between me, my son, and Medtronic.8
Plaintiffs also argue that my comments in response to inquiries from several
reporters would lead a reasonable person to question the Courts impartiality. (Pl.
Mem. at 19.) Plaintiffs are referring to comments made shortly after I was informed by
Plaintiffs lead counsel, in a conference call, that Plaintiffs intended to move for my
recusal.9 In those comments, I noted that I was then unaware of any relationship between
Medtronic and Fredrikson and that, because my son practices in the area of criminal
defense, I did not then perceive any basis to disqualify myself. (See id. at 18-19.) I fail
to see how those comments in any way suggested that I had predetermin[ed] . . . the
outcome of the [instant] motion, as Plaintiffs argue. (Id. at 19.) Rather, they simply and
accurately reflected the state of affairs as they existed at the time I was asked to comment.
Only under a strained interpretation can they be read to imply that I would not recuse
myself under any circumstances or would ignore the facts Plaintiffs intended to present to
10 After the First Circuit decided In re Bostons Children First, the district judge asked the
court to rehear the matter en banc. Although that request was denied, half of the active judges of
the Circuit expressed the view that the district courts statement to the reporter . . . d[id] not
create an appearance of partiality such as to require mandatory recusal under 28 U.S.C.
455(a). 244 F.3d at 171. Those judges were particularly concerned that section 455(a) not
be read to create a threshold for recusal so low as to make any out-of-court response to a
reporters question the basis for a motion to recuse. Id.
me. See, e.g., Metro. Opera Assn, Inc. v. Local 100, Hotel Employees & Rest.
Employees Intl Union, 332 F. Supp. 2d 667, 675 (S.D.N.Y. 2004). An average person
fully informed of the facts would not perceive bias based on these comments.
In re Bostons Children First, 244 F.3d 164 (1st Cir. 2001), upon which Plaintiffs
rely, is readily distinguishable. There, the district judge wrote a letter to a newspaper and
later spoke with a reporter, in both instances defending her decision to defer ruling on a
motion for class certification. Id. at 166-67. Under those highly idiosyncratic
circumstances, the First Circuit concluded that the district judge should have recused
herself. Here, by contrast, my comments did not address, let alone defend, any prior
decision in this case. Nor were my comments reasonably susceptible to the interpretation
that I had pre-judged the instant Motion.10
Plaintiffs have failed to show that recusal under Section 455(a) is warranted.
III. Additional considerations
The analysis set forth above fully disposes of Plaintiffs Motion. Nevertheless, the
Court pauses to address several additional matters, although it need not (and does not)
rely on any of them in reaching its decision.
First, the Court believes that the timing of Plaintiffs Motion speaks volumes.
Plaintiffs claim they learned of the purportedly extensive relationship between
Fredrikson and Medtronic only a few weeks ago, but their evidence of that relationship
consists almost entirely of articles posted on Fredriksons website, many of which are
several years old. For instance, Plaintiffs cite a June 16, 2005, press release touting the
firms hiring of Klepinski (see Pl. Mem. at 5 n.1 (citing http://www.fredlaw.com/news/
press/pr050616.html (last visited March 9, 2009))); the July/August 2006 issue of
Corporate Board Member magazine, which lists Medtronic as a representative client of
the firm (see Pl. Mem. at 5 n.2 (citing http://www.fredlaw.com/firm/CBM2006.pdf (last
visited March 9, 2009))); and a June 1, 2007, article in the Minneapolis St. Paul Business
Journal discussing the firms hiring of a former Medtronic attorney (see Pl. Mem. at 6 n.3
(citing http://www.fredlaw.com/news/24113(eprint).pdf (last visited March 9, 2009))).
Plaintiffs also cite various other internet sources that appear to have existed far longer
than two weeks. (See, e.g., Pl. Mem. at 10 n.22 (citing http://www.bizjournals.com/
twincities/stories/2008/09/01/daily5.html (last visited March 9, 2009)).)
The Eighth Circuit has repeatedly held that [m]otions for recusal under 28 U.S.C.
455 will not be considered unless timely made. Tri-State Fin., LLC v. Lovald, 525
F.3d 649, 653 (8th Cir. 2008) (internal quotation marks and citation omitted); accord
Fletcher, 323 F.3d at 664; United States v. Bauer, 19 F.3d 409, 414 (8th Cir. 1994).
Timeliness requires a party to raise a claim at the earliest possible moment after
obtaining knowledge of facts demonstrating the basis for such a claim. Fletcher, 323
F.3d at 664 (citation omitted). Plaintiffs seeking recusal cannot claim ignorance of key
facts easily discoverable they are charged with knowledge of all facts known or
knowable, if true, with due diligence, from the public record or otherwise. In re Digital
Music, 2007 WL 632762, at *9; accord In re Kan. Pub. Employees, 85 F.3d at 1363 n.8
(rejecting belated suggestion of partiality based on information easily accessible from
Almanac of the Federal Judiciary); United States v. Daley, 564 F.2d 645, 651 (2d Cir.
1977) (recusal motion untimely where predicate facts were a matter of public record
[and] were at all times ascertainable by counsel); Huff v. Standard Life Ins. Co., 643 F.
Supp. 705, 708 (S.D. Fla. 1986) (where basis for motion is known, or knowable, with
due diligence from public records or otherwise, delay in filing motion is basis for
denial). The age of the sources relied on here belies Plaintiffs assertion that they lacked
awareness of the connections between Fredrikson and Medtronic. Indeed, Plaintiffs
themselves describe the connection between the firm and Medtronic as highly promoted
and long standing. (Pl. Mem. at 10.)
Moreover, there is not now, nor has there ever been, any secret that my son is a
shareholder at Fredrikson. Notably, Plaintiffs claim only that they were unaware of
Fredriksons connection to Medtronic, not that they were unaware of my sons position at
11 A judge may rely on facts drawn from his own personal knowledge when ruling on a
recusal motion under 28 U.S.C. 455. United States v. Balistrieri, 779 F.2d 1191, 1202 (7th Cir.
12 Plaintiffs claim they had no obligation to conduct such an investigation, citing
American Textile Manufacturers Institute, Inc. v. The Limited, Inc., 190 F.3d 729, 742 (6th Cir.
1999), for the proposition that litigants are not required to pore through the judges private
affairs to discover a potential conflict. (See Pl. Mem. at 21.) But the facts Plaintiffs allege to
have recently discovered have nothing to do with my private affairs they concern only the
links between Fredrikson and Medtronic. And given Plaintiffs lead counsels long-standing
knowledge that my son is a shareholder at Fredrikson, the Court does not believe it was
appropriate for Plaintiffs to sit idly by while the Court (and the parties) invested substantial time,
effort, and expense in this case for the past year only to then move for my recusal. See In re
Natl Union, 839 F.2d at 1232 (noting the substantial costs to the administration of justice . . .
caused by delay in pursuing recusal); In re Mercedes-Benz Antitrust Litig., 226 F. Supp. 2d
552, 557 (D.N.J. 2002) (given courts substantial investment of time in case, [f]airness to the
litigation process and to the parties weigh[ed] against recusal; This is no time for the Court to
abandon its post through an excessively nice sense of the proprieties.).
the firm. Of course, Plaintiffs could not have made that assertion I am informed that my
son has known Plaintiffs lead counsel, Dan Gustafson, for many years, and he is well
aware of my sons position with the firm.11 Given that knowledge, Plaintiffs could have
and in the Courts view, should have investigated the extent of the purported close,
continuing relationship between the firm and Medtronic long ago. (Id. at 10.)12
Instead, the timing of Plaintiffs Motion coming not long after the Court issued a
major ruling adverse to Plaintiffs suggests, to be charitable, that it is an exercise in
judge shopping. The Eighth Circuit has expressed its disapproval of litigants who wait to
seek recusal until after a judge has issued an unfavorable ruling. Neal v. Wilson, 112
F.3d 351, 357 n.6 (8th Cir. 1997). Counsel may not lie in wait, raising the recusal issue
only after learning the courts ruling on the merits. Phillips v. Amoco Oil Co., 799 F.2d
1464, 1472 (11th Cir. 1986). A judge faced with a recusal motion, therefore, must be
alert to avoid the possibility that those who . . . question his impartiality are in fact
seeking to avoid the consequences of his . . . adverse decision. In re Kan. Pub.
Employees, 85 F.3d at 1358-59 (citation omitted). That would appear to be the case here.
The Court is also keenly aware of the prudential considerations militating against
Plaintiffs Motion. Accepting Plaintiffs logic would require judges to run conflict
checks through the law firms employing their children, spouses, parents, aunts and uncles,
and other family members within the circle of consanguinity set forth in Section 455.
Difficult questions would need to be asked if a party to a proceeding before the judge
appeared on such a conflict check: is this a substantial client? Is it likely the client will
retain the firm in the future? How is the family members compensation structured, and
is it likely to be affected by this clients business? Such a system would be wholly
unworkable, as well as a massive drag on the pace of litigation. Such a concern is not
merely illusory indeed, the spouses, children, and other family members of many of the
judges of this Court work for law firms in the Twin Cities.
Furthermore, accepting Plaintiffs argument would push the Court down a slippery
slope that could require recusal in many situations well beyond the carefully crafted
parameters of Section 455. Should the Court recuse, for example, in any case involving a
major medical-device manufacturer, such as St. Jude or Boston Scientific? After all,
rulings for (or against) a key player in an industry can affect the fortunes of others in the
same industry, such as Medtronic in this hypothetical. Or perhaps the Court should
recuse from all cases involving lawyers who are friends with my son, for conceivably (by
Plaintiffs logic) ruling adverse to such a lawyer could impair that friendship. Indeed, it
is not difficult for the creative or, perhaps more accurately (and bluntly), litigationsavvy
mind to conjure up a plethora of parades of horribles that could require recusal
based on only the thinnest reed of logic. Adopting that logic would cripple the bench and
eviscerate the Courts ability to perform its key function: the administration of justice.
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
ORDERED that Plaintiffs Motion for Recusal (Doc. No. 245) is DENIED.
Dated: March 9, 2009 s/Richard H. Kyle
United States District Judge


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