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Case Gets New Trial Due To Judge’s Unusual Behavior

There are a lot of reasons that an appellate court may decide to overturn the ruling of a lower court. For example, the lower court may have misconstrued the law or misinterpreted a statute or there may be a split of authority on a particular issue and the highest court needs to clarify what the law of the land will be. Sometimes, however, an appellate court will overturn a case for a more unusual reason. The ABA reported a case that was announced by the Louisiana Supreme Court at the end of this past May. The high court overturned the ruling a lower court because of the unusual and erratic behavior of the judge during the trial.

The case is called Logan v. Schwab. The per curiam opinion did not give any details about the underlying case when it ordered a new trial for plaintiffs Richard and Carrie Logan. However, there was one concurring opinion filed as well as three dissents which shed some light on the reasons the court decided a new trial was appropriate.

The underlying case involved alleged medical malpractice. Logan and his wife are suing Dr. Donald Schwab Jr., claiming that his liver was damaged during gallbladder surgery. The trial, which took place in 2013, was overseen by Judge Timothy Ellender. Ellender had been twice disciplined by the court for his conduct, once in 2004 for behavior outside the courtroom and again in 2009 for behavior while on the bench. According to the Daily Comet, Ellender retired in 2014.

In his concurrence, Chief Justice Johnson stated that “[i]n my view, it is undisputed that Judge Ellender engaged in bizarre and disturbing behavior during the jury trial of this matter such that the jury’s verdict cannot be allowed to stand.” The “bizarre and disturbing behavior” that Justice Johnson is referring to included the judge roaming around the courtroom “sitting in various chairs, and, inexplicably, [he] sat in the jury box with the jurors while eating candy – all during witnesses’ testimony.” Also while the counsel for the plaintiffs’ was questioning witnesses, the judge would look out the window. He “greeted the defense medical expert” with “with a handshake and embrace in front of the jury.” In addition, in front of the jury, Ellender asked the plaintiffs’ counsel questions about how much the plaintiffs’ medical expert was being paid, even though neither the plaintiffs nor the defense brought it up. According to Justice Johnson, this violates the “spirit and intent” of a court rule, as judge’s are allowed to question witnesses with the parties’ consent but the consent is not supposed to be requested while the jury is present.

Justices who dissented took issue with the evidence provided of Ellender’s behavior. Justice Weimer questioned the majority’s reliance on “an affidavit by a single juror who served as the jury foreperson,” and the lack of any objection by the plaintiffs’ counsel in the trial record. Justice Crichton had similar objections to the majority’s opinion and Justice Clark merely stated that he found “proof of those allegations to be lacking.”

In ordering a new trial for the Logan’s, the Court stated “[h]aving reviewed the record and considering the briefs and oral argument of the parties, we are convinced that the trial judge’s actions resulted in a miscarriage of justice. Therefore, considering the unique and narrow facts presented, we conclude a new trial must be granted.”

About the Author

Charles GilmanCharles Gilman
Charles Gilman

As managing partner and co-founder of Gilman & Bedigian, it is my mission to help our clients recover and get their lives back on track. I strongly believe that every person who is injured by a wrongful act deserves compensation, and I will do my utmost to bring recompense to those who need and deserve it.


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