NEW ORLEANS – The Louisiana Supreme Court has ordered a retrial in a medical
malpractice case during which the judge allegedly displayed "bizarre and
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
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
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
Justice John L. Weimer specifically noted a lack of
testimony as to whether any improper outside influence was brought upon any
"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,"
Justice Marcus R. Clark shared a similar sentiment.
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.