Clay Co. judge's business dealings lead to his removal from lawsuit

bestep@herald-leader.comJune 18, 2009 

A Clay County circuit judge can't preside over a voyeurism lawsuit against the local hospital because he has property interests with an attorney representing the people suing the facility, the state's chief justice has ruled.

The ties between Circuit Judge Oscar Gayle House and Manchester attorney R. Scott Madden cast doubt on House's ability to remain impartial, Supreme Court Chief Justice John D. Minton said in his opinion.

Minton ordered that a new judge be assigned to the case. He did not say that House had engaged in any improper conduct. But that wasn't the test, the chief justice said.

The question was whether the ties between House and Madden, viewed from the "objective perspective of a reasonably prudent person" raised doubts about House's ability to not favor either side in the lawsuit, Minton said.

They did, Minton said.

Attorneys for the hospital and other defendants had asked that House be removed from the case after learning the judge owns a small piece of property with Madden and rents a house from Madden and members of his family.

Madden is one of several attorneys who represent two people suing Manchester Memorial Hospital, its parent company and several employees.

Defense attorneys did not argue that House did anything improper in the case.

But the ties between House and Madden — and the fact the judge did not disclose them — raised an appearance of impropriety that justified disqualifying House, attorneys for the hospital argued.

"The hospital believes it cannot get a fair trial" with House presiding, said Knoxville attorney James H. London, who represents the hospital and other defendants.

The lawsuit alleges that the hospital had a hidden camera in a room where employees changed clothes outside two surgical suites.

Operating-room nurse Angel Edwards and Terry Nitz, a nurse anesthetist, filed the lawsuit in July 2007 charging that the hospital and employees had violated their privacy, broken the state law against voyeurism and caused them emotional distress.

The hospital has denied doing anything improper.

Minton's order means a new judge will consider a request to set aside a ruling by House that was very critical of the hospital.

House said the facility and other defendants had willfully failed to properly preserve evidence from the hidden camera — undermining the plaintiff's case — and stonewalled efforts by attorneys for Nitz and Edwards to get information.

The defendants had engaged in "reprehensible" conduct, House said.

As a result, House said he would bar the hospital from using certain defenses, make the defendants pay some of the plaintiff's costs, and allow some information to be presented to jurors as fact even without images from the camera.

London said the defendants strongly contest that they failed to preserve any evidence they should have.

London said he had attorneys do research on House after he handed down that "very arduous" ruling, which turned up information cited in the request for House to be disqualified.

"It concerned me greatly," London said of the ruling.

Madden had argued that his landlord-tenant relationship with House and their ownership of a small piece of property that produces no income didn't create even an appearance of impropriety, and did not merit removing House from the case.

Madden also said that ordering House off the hospital case not only would run counter to previous ethics opinions, but could cause problems because he and his law partners have dozens of other cases pending before House.

London said Minton's order could affect some other cases. However, if the ties are disclosed, attorneys can agree that it's okay for House to remain on cases involving Madden, London said.

"Our problem was that it was never disclosed," he said.

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