Court reinstates breach of warranty claims; discusses judicial bias

In Fox v. Sherwin-Williams Company, the defense attorneys' error in disclosing to the Court and publishing a mediation recommendation, turned a $4,500.00 dispute into a brouhaha that ultimately led to an award of more than $25,000.00 in sanctions against the plaintiffs. The Court ultimately reversed those sanctions and sent the case back for one more round of bitter wrangling. Judge Peter D. O'Connell, one of the more thoughtful and least partisan of the Court's judges wrote a thoughtful concurrence on the issue of judicial bias and recusal. He pointed out that through no fault of her own, the District Court judge in this case had become personally embroiled in the party's bitter dispute over the weather-proofing of a deck, and should be removed from the case. Judge O'Connell noted that because of the Defense attorney's error, the judge could not even review the pleadings in the file, clearly leaving her incapable of sitting as the judge of the case. Judge O'Connell wrote an article on pre-trial publicity in 1988, entitled "Pretrial Publicity: Change of Venue, Public Opinion Polls: A Theory of Procedural Justice." He quoted Charles Curtis' view of prejudice, which we all should keep in mind: "There are two ways to be quite unprejudiced and impartial. One is to be completely ignorant. The other is to be completely indifferent. Bias and prejudice are attitudes to be kept in hand, not attitudes to be avoided." On that basis, he would have insisted that this case be assigned to a different judge on remand.