Newman Hearing Transcript Highlights Concern Over Cardiac Health

The cardiac health of 96-year-old Judge Pauline Newman and a neurologist’s examination she submitted to a Federal Circuit judicial committee were central to a July hearing on her compliance with the probe into her fitness, according to a redacted transcript released Wednesday over Newman’s objections.

The three-judge panel unsealed the hearing’s transcript despite Newman’s attorney’s objection to inserting the descriptor “cardiac condition” in several instances to replace a more specific redacted phrase about the judge’s health, according to a Wednesday order, which said that descriptor was the “sole objection” to the release.

“Shrouding the oral argument in secrecy at this point would only raise questions and speculation about what could have been discussed at the argument,” the per curiam order said.

During the July 13 hearing to determine whether Newman was justified in not complying with an investigative committee’s request for medical records during the fitness probe, the judge’s attorney said the matter should be moved out of the US Court of Appeals for the Federal Circuit.

“We believe this matter should not stay with the Federal Circuit,” Greg Dolin, one of Newman’s lawyers, said when asked why Newman didn’t want to discuss her medical records with the committee or undergo a medical examination. “We believe this Committee has not made a prima facie case as to why the evaluation is needed in the first place.”

The fitness and misconduct probe began in March after multiple judges expressed concerns about Newman’s functioning on the court. The committee voted to sanction Newman over her refusal to cooperate, according to a report made public earlier this month, and unanimously recommended she be suspended from new case assignments for one year or until she cooperates with the investigation.

Newman has vigorously rejected suggestions she is unfit to serve and said allegations she suffered a heart attack in 2022 are unfounded. She submitted a report from a neurologist and professor at the George Washington University School of Medicine & Health Sciences that said he found “no significant cognitive deficits” at the end of June.

Since the report was meant to replace a medical examination by a doctor the committee had selected, the panel questioned why Newman thought it was inappropriate to supply the investigative committee with the documents that formed the basis of the neurologist’s opinion. Without specifying what documents were provided to the doctor, Dolin said the neurologist “reviewed those materials that he deemed in his professional judgment appropriate” before giving Newman a neurological test.

The test involved three questions that required writing, but Newman had a cast that prevented her from completing that section when it was administered. The panel questioned why the neurologist said Newman was unable to write for two of the questions but credited her for the third one.

“This whole professor of neurology may generally be great, but his own report is internally inconsistent,” Chief Judge Kimberly A. Moore said.

Ted Rothstein, the physician who examined her, took issue with how the judicial committee described his report in an interview with Bloomberg Law earlier this month.

Moore also clarified that though Newman sat for fewer cases between 2021 and 2023, it wasn’t because of the chief judge’s assignments, as Dolin suggested during an exchange about Newman’s productivity.

“Every judge does their own selection,” Moore said. “And just to be clear, the assignment of cases is random.”

Judges Sharon Prost and Richard G. Taranto sat for the panel.

The case is In re: Complaint, Fed. Cir., No. 23-90015, 8/16/23.