Gallardo et al v. USA et al

Filing 160

ORDER denying as moot 154 Plaintiffs' Motion to Recuse. By Judge Philip A. Brimmer on 3/23/12.(mnfsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 10-cv-00868-PAB-CBS
MARIA GALLARDO and
D.R.G., a minor child by and through
her natural mother and next best friend, MARIA GALLARDO,
Plaintiffs,
v.
UNITED STATES OF AMERICA,
Defendant.
_____________________________________________________________________
ORDER
_____________________________________________________________________
This matter comes before me on Plaintiff’s Motion to Recuse [Docket No. 154].
At the trial preparation conference on March 16, 2012, I informed the parties that one of
the government’s listed expert witnesses was currently acting as a physician for my
wife. I asked the parties to file any motions for recusal based on that disclosure by
March 23. On March 20, 2012, plaintiffs filed their motion to recuse pursuant to 28
U.S.C. § 455 and Liteky v. United States, 510 U.S. 540 (1994), based both on actual
bias and on an appearance of bias. Specifically, plaintiffs believe that I would give
greater weight and credibility to the opinions of that witness or that there would be an
appearance that I would do so.
On March 22, the United States filed a response to the plaintiffs’ motion
indicating that it is no longer intending to call that witness at trial and that the plaintiffs’
recusal motion is therefore moot. Given that the plaintiffs’ motion is predicated on that

witness testifying at trial and given that the witness will no longer be testifying, the Court
agrees that the asserted grounds for recusal no longer exist. Moreover, there is no
suggestion from either side that the witness’ opinions would otherwise be introduced at
trial. Therefore, it is
ORDERED that the Plaintiffs’ Motion to Recuse [Docket No. 154] is denied as
moot.

DATED March 23, 2012.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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