Louisiana Record

Sunday, October 13, 2019

Attorney's forecast of impending MDL meltdown over lack of 'cold neutrality and impartiality' introduced in recusal motion

Attorneys & Judges

By Karen Kidd | Aug 13, 2019


Platform supply vessels battle the blazing remnants of the offshore oil rig Deepwater Horizon in 2010. | Wikimedia Commons

NEW ORLEANS — It isn't every day that an attorney introduces a self-published book to bolster his argument for a new judge in long-running, high-profile multi-district litigation.

Tampa attorney Brian J. Donovan attached a 70-page exhibit titled "Collusion: Judicial Discretion vs. Judicial Deception – The Impending Meltdown of the United States Federal Judicial System" to his motion for recusal of the judge presiding over Deepwater Horizon litigation. That title is the same as Donovan's self-published book, in which the attorney says the federal judicial system of assigning a single judge to handle perhaps thousands of multistate lawsuits, such as in the Deepwater Horizon litigation, is unconstitutional.

Donovan, who states on his law firm's Wordpress page that he also is an engineer "with over thirty-nine years of international business experience," attached the exhibit to his Aug. 7 motion for U.S. District Court Judge Carl Joseph Barbier to recuse himself. Barbier, on the bench in Louisiana's Eastern District, was appointed by the U.S. Judicial Panel on Multi District Litigation (MDL) shortly after the Deepwater Horizon disaster in the Gulf of Mexico April 20, 2010.

In the prologue of his exhibit, Donovan says the "immediate cause of the meltdown of the U.S. federal judicial system" will be "unregulated use" of victims' compensation funds administered by New York attorney Kenneth R. Feinberg.

"Meltdowns occur when judges cease to exhibit cold neutrality and impartiality," Donovan said in his exhibit. "An MDL-triggered meltdown of the U.S. federal judicial system is impending."

Feinberg was appointed "special master" of the U.S. government's September 11th Victim Compensation Fund and the Troubled Asset Relief Program (TARP) Executive Compensation program. In 2013, Feinberg was appointed to administer Massachusetts' One Fund, which assists victims of the 2013 Boston Marathon bombings.

Feinberg was already referred to as the compensation czar when he was appointed administrator of the BP Deepwater Horizon Disaster Victim Compensation Fund in August 2010.

Most recently, Feinberg was tapped by Northern District of California Judge Vincent Chhabria to mediate Roundup claims, after the sides could not agree on a mediator, Reuters reported.

Many of the same points in Donovan's exhibit and his book also are found in his 130-page lawsuit filed in February against New Orleans attorney Stephen J. Herman, co-chair of a plaintiffs steering committee that oversees settlement negotiations in cases filed against BP. Donovan said in his lawsuit that Herman colluded with Feinberg, Barbier and BP to limit damages paid out to plaintiffs suing BP in the wake of the disaster.

The federal MDL process, created by Congress in 1968, allows for the grouping of even thousands of related lawsuits that have similar claims in common. The idea should work, Donovan told Legal Newsline in January of last year.

"It's an excellent idea, and the MDL statute really will increase efficiency if it's handled properly, but what's happened is rather than consolidate coordinating cases from various districts to maximize efficiency, the end game has not been remand," Donovan was quoted in the Legal Newsline story. "It's settlement. It's called a 'black hole,' because once you enter a MDL, you never get out."

In his exhibit, Donovan refers to many statements made by Barbier and said that one way to "hold an MDL accountable" is to take a close look at judges who fail to recuse themselves.

"MDL Plaintiffs should consider filing a motion to recuse if they believe that the transferee judge has a personal bias or prejudice concerning them, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding, or merely if his impartiality might reasonably be questioned," Donovan's exhibit said.

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