Louisiana Record

Sunday, August 25, 2019

Retrial ordered after judge's alleged bizarre behavior in medical malpractice case

By Emily Crowe | Jun 18, 2016

Louisiana Supreme Court building in New Orleans. | Bobak Ha'Eri / Wikimedia Commons

NEW ORLEANS – The Louisiana Supreme Court has ordered a retrial in a medical malpractice case during which the judge allegedly displayed "bizarre and disturbing" behavior.

Judge Timothy C. Ellender, now retired, was accused by the trial's plaintiffs, Richard and Carrie Logan, of wandering around the courtroom, staring out the window, snacking on candy, sitting in the jury box and warmly greeting witnesses during the trial.

The justices voted 4-3 in favor of granting the Logans a new trial against Dr. Donald Schwab, Jr.

"The cumulative effect of Judge Ellender’s behavior and actions can only be viewed as resulting in prejudice to the plaintiffs’ case," wrote Chief Justice Bernette J. Johnson in a concurring opinion.

Johnson further stated that she found Ellender's disruptive behavior to undermine the seriousness of the court proceedings and legitimacy of the case.

Johnson also made mention of the fact that the Supreme Court had twice disciplined Ellender in the past for misconduct both on and off the bench. Ellender was suspended for six months without pay in 2004 for appearing at a public Halloween party dressed in blackface and a prison jumpsuit.

In 2009, Ellender was suspended for 30 days without pay for his failure to treat a petitioner’s application for protection from domestic abuse seriously, as well as acting in a condescending and demeaning manner toward her.

The three justices who dissented from the majority opinion all noted a lack of evidence to back up the allegations of Ellender’s inappropriate behavior. According to the justices, the claims were not noted in the trial record and the Logans never objected to the behavior during the course of the trial. Additionally, counsel on each side said they did not personally witness the behavior since it was located behind them in the courtroom.

Justice John L. Weimer specifically noted a lack of testimony as to whether any improper outside influence was brought upon any juror.

"As a reviewing court, we cannot and should not simply assume that these allegations are accurate, let alone make the additional leap that such allegations justify granting a new trial," he wrote.

Justice Marcus R. Clark shared a similar sentiment.

“While I do not condone the trial judge’s behavior if the allegations are true, I find proof of those allegations to be lacking, certainly below that which we should require in order to overturn a jury verdict,” he wrote in his dissent.

John S. Baker, Jr., Ph.D., professor emeritus at Louisiana State University Law Center, believes that if the conduct described by the plaintiffs is indeed true, there should be disciplinary action brought against Ellender.

"One possibility might have been to remand the thing for an evidentiary hearing," Baker told the Louisiana Record. "The problem with that is that it would encourage other plaintiffs to do the same kind of thing and you don’t want to do that."

At a minimum, "the party that has made the allegation against the judge ought to file a complaint with the discrimination committee because either the judge should be sanctioned for what he did or, if this is false and it’s a false claim, this ought to be cleared," Baker said.

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Louisiana State University Louisiana Supreme Court