Prior Representation Of Expert Witness Does Not Require Recusal

Recusal is not required as a consequence of the judge’s prior representation of one party’s expert witness, according to a decision of the Tennessee Court of Appeals

Asserted basis for recusal

The parties engaged in discovery. Defendant disclosed an expert—structural engineer Alan Rommes (“Rommes”). Rommes was slated to testify about the structural integrity of the home. The parties agree that Rommes’ testimony is of central importance to the case, and that the trial judge’s assessment of his credibility will be key. At one point, Rommes asked counsel for Defendant who the trial judge was. When told Judge Cook, Rommes shared that Judge Cook had represented him for approximately seven years in a slip and fall case when she was a practicing attorney. The representation ended in December 2021, shortly before Judge Cook took office. On March 26, 2024, counsel for Defendant informed counsel for Plaintiff about the potential conflict. The parties agreed that Judge Cook should recuse. On March 28, 2024, Petitioners filed a joint motion for recusal. Petitioners do not allege actual bias on Judge Cook’s part, but rather that there is an appearance of impropriety based on her prior representation of Rommes.

The court

To prevail on their motion to recuse, Petitioners have to show that a person of ordinary prudence in Judge Cook’s position, with knowledge of all facts known to Judge Cook, would find a reasonable basis to question her impartiality. See Adams v. Dunavant, 674 S.W.3d 871, 878 (Tenn. 2023). That Judge Cook previously represented Rommes in an unrelated matter is not an ipso facto basis for her recusal. Petitioners point to no evidence contradicting Judge Cook’s detailed explanation of her representation of Rommes, a case which consisted mainly of delays. To be sure, one can visualize a scenario in which a trial judge’s prior representation of a witness could give rise to the appearance of impropriety. Here, however, Petitioners have only the duration of the prior representation and its proximity to when Judge Cook took the bench to go on, both of which are heavily mitigated by the different subject matter and sporadic activity in the prior case.

Petitioners say nevertheless that “[t]he trial judge inevitably formed opinions of Rommes during her seven year representation of him . . . .” We respectfully disagree. That is supposition on Petitioners’ part. As Judge Cook explained, Petitioners have not even established that Rommes’ testimony was a factor in the prior case, so his credibility may not even have been implicated. We find no reversible error in the Trial Court’s denial of Petitioners’ motions for recusal. Based on our holding regarding the merits of the recusal motions, the Trial Court’s denial based on various procedural defects is pretermitted as moot.

(Mike Frisch)