[Cite as In re Disqualification of McKay, 135 Ohio St.3d 1286, 2013-Ohio-1461.]




                        IN RE DISQUALIFICATION OF MCKAY.
                            COBB ET AL. v. SHIPMAN ET AL.
         [Cite as In re Disqualification of McKay, 135 Ohio St.3d 1286,
                                    2013-Ohio-1461.]
Judges—Affidavit of disqualification—R.C. 2701.03—Affidavit of disqualification
        should be filed as soon as possible after incident giving rise to claim—
        Affidavit of disqualification is not a vehicle to contest matters of
        substantive or procedural law—Media reports standing alone are not
        persuasive indicators of a public perception of partiality—Affidavit
        denied.
                     (No. 13-AP-011—Decided March 6, 2013.)
ON AFFIDAVIT OF DISQUALIFICATION in Trumbull County Court of Common Pleas
                                Case No. 2006-CV-2992.
                                 __________________
        O’CONNOR, C.J.
        {¶ 1} Joseph A. Farchione, counsel for defendants in the underlying
case, Dr. Tara Shipman and Associates in Female Health, Inc., has filed an
affidavit with the clerk of this court under R.C. 2701.03 seeking to disqualify
Judge W. Wyatt McKay from presiding over any further proceedings in case No.
2006-CV-2992, now pending on plaintiffs’ motion for prejudgment interest in the
Court of Common Pleas of Trumbull County.
        {¶ 2} Farchione alleges that throughout this lengthy litigation, plaintiffs’
counsel have engaged in “deceptive manipulations of the law and fact in their
arguments” and that Judge McKay has “almost universally accepted” their
representations.    Farchione further claims that Judge McKay’s rulings have
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created an appearance of bias or prejudice against Shipman “to the point that an
entire medical community believes there is no way to get a fair trial in his
courtroom.”
       {¶ 3} Judge McKay has responded in writing to the allegations raised in
Farchione’s affidavit, asserting that his rulings were not the result of any bias or
prejudice and that they have not created any appearance of impropriety. Judge
McKay further claims that “criticism in the community by certain interested
groups of people does not equal evidence of judicial bias or prejudice.”
       {¶ 4} Martin F. White, one of the attorneys for plaintiffs in the
underlying case, has filed an affidavit and memorandum opposing Farchione’s
affidavit. White avers that Judge McKay has not shown any bias or favoritism
toward any party in the litigation.
       {¶ 5} For the reasons explained below, no basis has been established to
order the disqualification of Judge McKay.
                         Judge McKay’s adverse rulings
       {¶ 6} Farchione suggests that Judge McKay’s “consistently adverse and
prejudicial rulings” against Shipman have created an appearance of bias
mandating the judge’s disqualification. Farchione sets forth a long list of such
adverse rulings—including the judge’s refusal to declare a mistrial based on a
comment made by plaintiffs’ counsel during voir dire, his rulings on various
motions in limine and regarding witness testimony at trial, the judge’s final jury
instructions, his orders on posttrial motions, and his signing of a writ of execution
of judgment without a hearing. These allegations, however, do not establish bias,
prejudice, or a disqualifying interest under R.C. 2701.03.
       {¶ 7} First, an affidavit of disqualification must be filed “as soon as
possible after the incident giving rise to the claim of bias and prejudice occurred,”
and failure to do so may result in waiver of the objection, especially when “the
facts underlying the objection have been known to the party for some time.” In re




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Disqualification of O’Grady, 77 Ohio St.3d 1240, 1241, 674 N.E.2d 353 (1996).
The events giving rise to Farchione’s affidavit occurred years ago. Specifically,
the underlying trial occurred in September and October 2010, and the most recent
challenged ruling was made in September 2011, when Judge McKay signed the
writ of execution. Yet Farchione did not file his affidavit until February 2013. If
Farchione believed that Judge McKay’s conduct demonstrated bias or prejudice,
he should have timely sought disqualification, i.e., “as soon as possible after the
incident giving rise to the claim of bias and prejudice occurred.” Id. Because
nothing in the record justifies the delay in filing the affidavit of disqualification,
Farchione has waived the ability to seek Judge McKay’s disqualification based on
his adverse rulings.
       {¶ 8} Second, contrary to Farchione’s assertions, whether Judge McKay
erred in any of the various rulings cannot be litigated in an affidavit-of-
disqualification proceeding.       It is well established that an affidavit of
disqualification “is not a vehicle to contest matters of substantive or procedural
law.” In re Disqualification of Solovan, 100 Ohio St.3d 1214, 2003-Ohio-5484,
798 N.E.2d 3, ¶ 4. And a party’s disagreement or dissatisfaction with a court’s
legal rulings, even if those rulings may be erroneous, is not grounds for
disqualification. In re Disqualification of Floyd, 101 Ohio St.3d 1217, 2003-
Ohio-7351, 803 N.E.2d 818, ¶ 4. Farchione may submit his legal arguments to
the court of appeals, but the chief justice’s statutory and constitutional authority to
decide whether a judge can serve fairly and impartially does not authorize the
removal of a trial judge because a party is unhappy about a series of rulings.
Moreover, “[a] party is not entitled to a certain number of favorable rulings, and a
judge must be free to make rulings on the merits without the apprehension that a
disproportionate number of rulings in favor of one party will create the impression
of bias toward that party or against its adversary.” In re Disqualification of




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Lawson, 135 Ohio St.3d 1243, 2012-Ohio-6337, 986 N.E.2d 6, ¶ 7, citing Flamm,
Judicial Disqualification, Section 16.3, 449 (2d Ed.2007).
                   Alleged public reaction to Judge McKay’s rulings
        {¶ 9} Farchione also argues that Judge McKay’s adverse rulings have
resulted in an “erosion of public faith” in the court’s ability to fairly adjudicate
Shipman’s case. Specifically, Farchione claims that the local medical community
has “waged a very public protest campaign” and that local physicians believe that
Shipman “cannot and will not get a fair trial or fair treatment after trial.”
According to Farchione, the fact that so many members of the medical
community have lost faith in Judge McKay demonstrates the existence of an
appearance of impropriety.
        {¶ 10} “The proper test for determining whether a judge’s participation in
a case presents an appearance of impropriety is * * * an objective one. A judge
should step aside or be removed if a reasonable and objective observer would
harbor serious doubts about the judge’s impartiality.” In re Disqualification of
Lewis, 117 Ohio St.3d 1227, 2004-Ohio-7359, 884 N.E.2d 1082, ¶ 8. In general,
media reports or editorials suggesting judicial bias, standing alone, are not
competent sources on which to base an affidavit of disqualification, and they
cannot act as a barometer of the reasonable-person standard. See Flamm, Section
5.7, at 131-133, citing TV Communications Network, Inc. v. ESPN, Inc., 767
F.Supp. 1077, 1080 (D.Colo.1991) (“articles and features in the media suggesting
impropriety cannot act as a barometer of the reasonable observer standard”); In re
Detroit, 828 F.2d 1160, 1168 (6th Cir.1987) (“letters and articles * * * do not
necessarily mean that the public believes [the judge] is biased”); Datagate, Inc. v.
Hewlett-Packard Co., 941 F.2d 864, 871 (9th Cir.1991) (“fact that the judge’s
decision was reported in the newspapers is not persuasive of a public impression
of partiality”).




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       {¶ 11} More important, Farchione has not substantiated his allegations on
these claims. He attaches to his affidavit items that he labels “protest materials,”
which he claims demonstrate that the local medical community believes that
Shipman will not receive a fair trial.       The alleged protest materials—which
include newspaper letters to the editor and newspaper articles—for the most part
are not specifically directed against Judge McKay, but involve local physicians’
concerns regarding the rising cost of medical-malpractice insurance in Mahoning
and Trumbull counties. While most of the letters and articles mention the jury
verdict in the underlying case of Cobb v. Shipman, only one of the provided items
directly criticizes Judge McKay. Specifically, Farchione includes a copy of a
faxed letter, which appears to be dated September 16, 2011, from the president of
the medical staff at Trumbull Memorial Hospital. The author addressed the letter
to his colleagues and requested that they attend a staff meeting to discuss the
“latest OUTRAGEOUS ATTACK on Tara Shipman, M.D. by Marty White and
his bedfellow, Judge McKay.” (Capitalization sic.) This one letter does not
establish that the public—or even the local Trumbull County medical
community—questions the impartiality of Judge McKay or that the alleged public
protests against Judge McKay are so strong that disqualification is warranted.
                                   Conclusion
       {¶ 12} It has long been held that “absent extraordinary circumstances, a
judge will not be subject to disqualification after having presided over lengthy
proceedings in a pending case.” In re Disqualification of Celebrezze, 94 Ohio
St.3d 1228, 1229, 763 N.E.2d 598 (2001). No extraordinary circumstances are
present here. Farchione points to no action on the part of Judge McKay that
demonstrates bias, prejudice, or a disqualifying interest. Further, “[a] judge is
presumed to follow the law and not to be biased, and the appearance of bias or
prejudice must be compelling to overcome these presumptions.”                In re




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Disqualification of George, 100 Ohio St.3d 1241, 2003-Ohio-5489, 798 N.E.2d
23, ¶ 5. Those presumptions have not been overcome in this case.
       {¶ 13} For the reasons stated above, the affidavit of disqualification is
denied. The case may proceed before Judge McKay.
                          ______________________




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