Expert Brother-in-Law Offers Peek Into When Judges Sit Cases Out

A rehearing petition arguing Federal Circuit Judge Kara F. Stoll shouldn’t have heard a case in which her brother-in-law served as an expert witness offers a window on decisions about judicial recusal at the court when potential conflicts of interests aren’t clear-cut.

DuBose Strapping Inc. wants the full U.S. Court of Appeals for the Federal Circuit to reconsider its case, in which a three-judge panel including Stoll summarily affirmed a $1.8 million patent infringement verdict in favor of Western Plastics Inc.

Western argues that the judge wasn’t obligated to recuse herself because her brother-in-law, Faegre Drinker partner Robert Stoll, isn’t a material witness in the case.

The court’s internal operating procedures provide that each judge will determine whether he or she should recuse based on the companies and attorneys involved in a case. Judges also can have the clerk’s office check for those conflicts.

But the procedures don’t address how the court identifies potential conflicts of interest, like the one DuBose Strapping alleged, that are less obvious.

Courts usually have pretty good safeguards in place for avoiding conflicts based on the judges’ financial interests, University of Maine School of Law ethics professor Dmitry Bam said. “But in terms of witnesses or expert witnesses, my sense is that doesn’t really exist,” he said.

The “cleanest approach” would be for the court to allow judges to add names of frequent witnesses or others who might pose a conflict to the database for checking for stock recusals so they can be caught on the front end, Bam said.

Judge Stoll declined comment on the pending matter through a court spokesperson. The clerk’s office declined to provide specifics on how it prevents conflicts.

‘Material Witness’

DuBose appealed a trial court judgment finding it willfully infringed Western’s patent on wrap for steel coils. Eleven days after argument, the Federal Circuit panel summarily affirmed the ruling.

DuBose filed a petition for en banc rehearing or rehearing before a new panel, challenging various aspects of the trial court’s decision.

It also argued that Judge Stoll shouldn’t have been assigned to the case because her brother-in-law was a material witness for Western. Robert Stoll has become the go-to expert witness on issues of inequitable conduct before the patent office since he retired as commissioner for patents in 2011.

“While the Federal Circuit’s practice of revealing panel members shortly before oral argument kept DuBose from evaluating the situation at that time, there can be no doubt that a panel member on an appellate court whose brother-in-law is the adverse party’s expert witness provides an appearance of impropriety that should not be overlooked,” DuBose argued.

Federal law requires a judge to disqualify herself if she or her spouse, or a person related to either, “is to the judge’s knowledge likely to be a material witness in the proceeding.” The law also provides a catchall for situations not specifically enumerated where the judge’s “impartiality might reasonably be questioned.”

The court asked for a response to DuBose’s petition, indicating that at least one member of the court was interested in the issues it raised.

Western argued in its response brief that DuBose’s challenge to Judge Stoll “is premised on a blatant falsehood” because Robert Stoll wasn’t a “likely material witness in the proceeding” at any time when the case was before the Federal Circuit. A material witness is one thought to have critical information that could affect a case outcome.

“The prospect of Mr. Stoll being a witness evaporated when the district court dismissed DuBose’s inequitable conduct charges on grounds unrelated to his opinions,” Western said.

Western argued DuBose’s challenge to Judge Stoll’s involvement was a “backup strategy” that it only employed when it didn’t win on appeal. DuBose’s “exceptionally weak” arguments for rehearing and its misrepresentations warrant sanctions, Western said.

When to Raise?

The Federal Circuit is unusual among federal appeals courts in that it doesn’t announce the makeup of the three-judge panel hearing each case until the morning of argument. DuBose argued that meant it didn’t have a meaningful chance to challenge Stoll’s potential conflict of interest until after argument.

But DuBose should have known right away that was a potential conflict, Bam said. They probably could have flagged that Robert Stoll’s name appeared in the record for the court even before the panel was assigned, he said.

University of Tulsa College of Law ethics professor Sarah Cravens said DuBose also could have raised the issue in the 11 days between the argument and the opinion. “That’s still plenty of time to write a brief,” she said.

Bam said he understood DuBose’s argument. “As a litigant, I would have questions about impartiality in this case,” he said. Even if Robert Stoll’s involvement didn’t affect Judge Stoll’s decision, it’s still problematic because it creates the appearance of bias, Bam said.

Cravens disagreed. “I can see where the concern comes from, but the question I would have is, is there any indication that the credibility of the expert witness was really what the court was relying on?” she said. “That’s really the only thing that would make it rise to the level of the appearance of impropriety.”

Without a written opinion in the case, it’s impossible to know whether the judges considered Robert Stoll’s testimony and his credibility on appeal.

“I tend to give judges the huge benefit of the doubt,” Cravens said. “That’s why I would think it wasn’t about credibility, that it was so straight down the middle that it would be decided on some other issue that it didn’t occur to her to worry about it.”

Even if he doesn’t qualify as a material witness, DuBose could still rely on the drop-back position that his involvement raises questions of impartiality, ethics professor Leslie W. Abramson of the University of Louisville School of Law said.

What Now?

The court’s rules provide that if a judge recuses herself after oral argument, the remaining judges may decide the case themselves or opt to have a third judge designated. They don’t specifically address a situation in which the conflict is uncovered after the panel makes its decision.

En banc rehearing seems unlikely. “The impression I have is that the entire court isn’t crazy about en bancs,” Abramson said. The court might allow the other two judges to reaffirm the ruling if they decide they would have reached the same result without Judge Stoll on the panel, or they could rehear the case with a new judge, he said.

Reaffirming is tricky as the Supreme Court recently suggested it doesn’t matter how the other judges decided the case—the conflicted judge may have influenced their decision, Bam said.

“Just the mere presence of a biased judge is sufficient, but I don’t know that the court would go that way here,” Bam said.

Robert Stoll has become the preeminent expert on inequitable conduct, meaning the situation could arise again in the future. Bam suggested the case puts the court on notice that Judge Stoll may need to recuse in those cases. “There are enough panelists that they can avoid assigning Judge Stoll for any of her brother-in-law’s cases,” he said.

But Cravens suggested that may not be necessary.

“If he’s the preeminent expert, does that go the other way?” Cravens said. “It doesn’t really matter who looks at it, he’s going to be the one talking about it.”.

The case is W. Plastics, Inc. v. DuBose Strapping, Inc., Fed. Cir., No. 21-1371, response filed 2/15/22.