Kissing Camels Surgery Center, LLC et al v. HCA Inc. et al

Filing 46

ORDER denying 36 Defendant Centura Health Corporations (Centura Health) Motion for Consideration of Recusal. I find that in the circumstances of the instant action, no reasonably objective person could conclude that my contractual relationship with the President and CEO of non-party Catholic Health raises an appearance of bias on my part. Accordingly, the Motion is DENIED, by Judge William J. Martinez on 1/25/2013.(ervsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 12-cv-3012-WJM-BNB
KISSING CAMELS SURGERY CENTER, LLC,
CHERRY CREEK SURGERY CENTER, LLC,
ARAPAHOE SURGERY CENTER, LLC, and
HAMPDEN SURGERY CENTER, LLC,
Plaintiff,
v.
HCA INC.,
HCA - HEALTHONE LLC,
CENTURA HEALTH CORPORATION,
COLORADO AMBULATORY SURGERY CENTER ASSOCIATION, INC., and
KAISER FOUNDATION HEALTH PLAN OF COLORADO,
Defendants.

ORDER DENYING DEFENDANT CENTURA HEALTH
CORPORATION’S MOTION FOR CONSIDERATION OF RECUSAL

This matter is before the Court on Defendant Centura Health Corporation’s
(“Centura Health”) Motion for Consideration of Recusal (ECF No. 36) (the “Motion”).
Plaintiffs have filed a response in opposition to the Motion (ECF No. 37). For the
reasons that follow, I deny the Motion.
Basis for the Motion
In large part, the Motion is predicated on my decision to sua sponte recuse
myself as the Presiding Judge in two cases previously filed in the District of Colorado:
Jane Doe v. Catholic Health Initiatives Colorado, a Colorado non-profit corporation,
d/b/a Centura Health-Penrose Hospital, Civil Action No. 12-cv-00165, and Jane Roe v.

Catholic Health Initiatives Colorado, a Colorado nonprofit corporation, d/b/a Centura
Health-Penrose Hospital, No. 11-cv-02179. As Centura Health correctly points out, in
each of those Orders of Recusal, I concluded that I had regular continuous dealings
with an executive of Catholic Health Initiatives Colorado (“Catholic Health”) sufficient to
be construed as an ongoing relationship, such that “a reasonable person would harbor
doubts about my impartiality.” Motion at 1. As a result, I recused myself in each of
those earlier cases, pursuant to 28 U.S.C. § 455(a).
Moreover, in its Motion, Centura Health brings to my attention the fact that the
defendant in those two previously-filed actions, Catholic Health, “is one of the two
sponsoring organizations of Centura Health Corporation. Catholic Health Initiatives
Colorado has a 70% interest, as a sponsoring organization, in Centura Health
Corporation.” Id. at 2. Centura Health also points out that Catholic Health does
business as Centura Health-Penrose Hospital, and that claims in this case “make
specific reference to Penrose Hospital and arose during the same time frame as the
claims in those cases, when the same executive leadership was in place at Centura
[Health] and Catholic Health[.]” Id.
Analysis
Section 455(a) of Title 28 of the United States Code states that “Any justice,
judge, or magistrate judge of the United States shall disqualify himself in any
proceeding in which his impartiality might reasonably be questioned.” A United States
judge must recuse himself or herself when there is an appearance of bias, regardless of
whether there is actual bias. Nichols v. Alley, 71 F.3d 347, 350 (10th Cir. 1995). The
test is whether a reasonable person, knowing all the relevant facts, would harbor doubts
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about the judge’s impartiality. Hinman v. Rogers, 831 F.2d 937, 939 (10th Cir. 1987).
To allow all parties and the public to assess the nature of the referenced
relationship, I will now disclose the particulars of the relationship. To the best of my
knowledge, Dr. Kenneth B. Kashkin has, since mid-2011, been and to date remains
President and CEO of Catholic Health. Since July 1, 2011 Dr. Kashkin and I have had a
landlord-tenant relationship, as Dr. Kashkin and his wife are tenants of mine, residing in
property of which I am the owner. This landlord-tenant relationship will terminate no
later than June 30, 2013, and may well terminate as early as March 31, 2013. Apart
from being landlord-tenant, Dr. and Ms. Kashkin and I have no other personal or social
relationship, and certainly not one which will survive the termination of their lease with
me later this year.
In its response to the Motion (the “Response”), Plaintiffs accurately point out
that, unlike in the two previously-filed actions, Catholic Health is not a party to this
action, and only maintains a “sponsorship interest” in Defendant Centura Health.
Response at 2. It is far from clear to me the precise nature or form of this “sponsorship
interest” which Catholic Health has in Centura Health. Nor is it in anyway apparent to
me what legal significance or factual import, if any, I should ascribe to this “sponsorship”
relationship between these two entities. What I can easily conclude in these
circumstances, however, is that if such a relationship was particularly material or
significant to the legal analysis of the issues raised in the Motion, that Centura
Health would certainly not have spared whatever additional effort was required to
apprise me of the exact contours and legal significance of this relationship.
Since no such effort was expended, I conclude that all that is material or relevant
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to my analysis here has been touched upon by Centura Health in its Motion. My
conclusion in this regard is amply buttressed by the fact that, whatever is the actual
nature and significance of the relationship between Defendant Centura Health and nonparty Catholic Health, that relationship was not substantial enough to have been noted
by Centura Health on its corporate disclosure form to this Court (ECF No. 11). I find
that all of these facts are relevant factors in the determination of the necessity of my
recusal in this action. See, TV Communications Network, Inc. v. ESPN, Inc., 767 F.
Supp. 1077, 1079 (D. Colo. 1991), citing Lexalt v. McClatchy, 602 F. Supp. 214, 217 (D.
Nev. 1985).
This Court has previously acknowledged that which should by now be selfevident – that when considering the level of a judge’s interest in an action for purposes
of evaluating the need vel non for recusal – it must be kept firmly in mind that “[a] judge
is not expected to live in isolation. Through the years, he is bound to have developed
many business and personal contacts in the community, and to have acquired
supporters and critics.” TV Communications Network, 767 F. Supp. at 1079.
In my view it necessarily follows that the mere existence of some type of
relationship – without more – does not perforce create an appearance of bias sufficient
to require a judge’s recusal. Clearly, the nature, duration and intimacy of that
relationship must be carefully assessed, both in the abstract as well as in the context of
the specific claims and defenses asserted in the case at issue.
Here, the nature of my relationship with Dr. Kashkin is purely one of an armslength contractual relationship. And while the landlord-tenant relationship I have with
Dr. Kashkin might reasonably cause a disinterested person to conclude that I have a
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vested interest in his financial well being, I find that that factor is considerably
outweighed by three other considerations which obtain in this dispute: First, apart from
the contractual relationship I’ve just described, I have no personal or social relationship
with Dr. Kashkin. Second, the subject contractual relationship will be terminated in at
most five months from now, with the possibility that it could conclude as soon as 65
days from today. Finally, facts being stubborn things, the fact remains that Catholic
Health is not a party to this action. Thus, whatever one can say of the contractual
relationship I have with Dr. Kashkin, it must be viewed in light of the fact that this
relationship is with a person who is not a party to this litigation.
Conclusion
For the foregoing reasons, I find that in the circumstances of the instant action,
no reasonably objective person could conclude that my contractual relationship with the
President and CEO of non-party Catholic Health raises an appearance of bias on my
part. Accordingly, the Motion is DENIED.
Dated this 25th day of January, 2013.
BY THE COURT:

__________________________
William J. Martínez
United States District Judge

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