Chesher et al v. 3M Company et al

Filing 330

ORDER AND OPINION: Plaintiffs motion for vacatur (Dkt. No. 326) is DENIED.AND IT IS SO ORDERED. Signed by Honorable Richard M Gergel on 1/6/22.(ltap, ) Modified document type (opinion) on 1/7/2022 (sshe, ).

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Civil Action No. 3:15-cv-2123-RMG

James Willson Chesher and Cheryl Ann
Chesher,
Plaintiffs,

ORDER AND OPINION

v.
3M Company, et al.,
Defendants.

Before the Court is Plaintiffs’ motion for vacatur (Dkt. No. 326). For the reasons set forth
below, the Court denies Plaintiffs’ motion.
Background
This case originally concerned Plaintiff James Willson Chesher’s alleged exposure to
asbestos while serving in the Navy. Plaintiffs filed this action in state court and, on May 22, 2015,
it was removed to federal court. (Dkt. No. 1). Judge David C. Norton was assigned to the case.
Plaintiffs brought claims against 25 corporate defendants. Eventually, however, Plaintiff
settled with or otherwise dismissed all defendants except Crane Co. (“Crane”).
On March 31, 2017, after holding an evidentiary hearing, Judge Norton granted Crane’s
motion to exclude the testimony of Plaintiff’s expert Dr. Carlos Bedrossian. (Dkt. Nos. 308, 312).
At the time, Crane was the only remaining defendant. On March 29, 2018, Judge Norton granted
Crane’s renewed motion for summary judgment. (Dkt. No. 323). After entering judgment for
Crane, the case was closed. Plaintiffs did not file an appeal.
Over three years later, on November 3, 2021, Plaintiffs filed a motion for vacatur pursuant
to Fed. R. Civ. P. 60(b)(6) and 28 U.S.C. § 455(b). (Dkt. No. 326). Based on the undisputed record
before the Court, Plaintiffs discovered, around July 22, 2021, that during the pendency of this
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action, Judge Norton owned stock in three of the defendants in this case: General Electric Co., 3M
Co., and Verizon Communications Inc. (the “Subject Entities”). (Id. at 2) (citing pertinent financial
disclosures). A review of the docket also reveals that, at Plaintiffs’ request, the Subject Entities
were dismissed from this action under Fed. R. Civ. P. 41. (Dkt. Nos. 235, 237) (General Electric
Co.); (Dkt. No. 219) (3M Co.); (Dkt. No. 139) (Verizon Communications Inc.). Plaintiffs argue
that Judge Norton’s holding stock in the Subject Entities was an unwaivable conflict under §
455(b) and that the appropriate remedy for this conflict is vacatur of the judgment entered for
Crane. (Dkt. No. 326). Crane opposes Plaintiffs’ motion. (Dkt. No. 327). Plaintiffs filed a reply.
(Dkt. No. 328).
Plaintiffs’ motion is fully briefed and ripe for disposition.
Legal Standard
Rule 60(b) of the Federal Rules of Civil Procedure permits the Court to relieve a party from
a judgment for “mistake, inadvertence, surprise, or excusable neglect” or “any other reason that
justifies relief.” Fed. R. Civ. P. 60(b)(1) and (6). The motion for relief “must be made within a
reasonable time,” including “no more than a year after the entry of judgment or order” if the
grounds for relief are “mistake, inadvertence, surprise, or excusable neglect.” Fed. R. Civ. P.
60(c)(1).
Recusal of federal judges is generally governed by 28 U.S.C. § 455. Subsection (b) of §
455 provides a list of specific instances where a federal judge's recusal is mandated, regardless of
the perception of a reasonable observer. Liteky v. United States, 510 U.S. 540, 567 (1994)
(Kennedy, J., concurring). Pertinent here, subsection (b)(4) mandates recusal where a judge,
individually or as a fiduciary, “has a financial interest in the subject matter in controversy or in a
party to the proceeding.” § 455(b)(4); Liljberg v. Health Services Acquisition Corp., 486 U.S. 874,

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859 n.8 (1988) (observing that Ҥ 455(e) specifies that a judge may not accept a waiver on any
ground for disqualification under § 455(b)”). “Financial interest” means “ownership of a legal or
equitable interest, however small.” § 455(d)(4). But “[a]lthough § 455 defines the circumstances
that mandate disqualification of federal judges, it neither prescribes nor prohibits any particular
remedy for a violation of that duty.” Liljeberg, 486 U.S. at 862. Instead, Congress “wisely
delegated to the judiciary the task of fashioning the remedies that will best serve the purpose of
the legislation.” Id.
In Liljeberg, the Supreme Court affirmed the Fifth Circuit's decision to vacate a district
court judge's final judgment where that judge should have disqualified himself under § 455(a) due
to an appearance of impropriety. Id. at 852. Although the Court agreed with the Fifth Circuit that
vacatur was appropriate under the facts of that case, it explained that harmless error analysis can
apply to violations of § 455(a). Id. at 862 (“As in other areas of the law, there is surely room for
harmless error committed by busy judges who inadvertently overlook a disqualifying
circumstance. There need not be a draconian remedy for every violation of § 455(a).”). The Court
concluded that, when deciding whether to vacate a judgment for violation of § 455(a), a court
should consider: (1) “the risk of injustice to the parties in the particular case”; (2) “the risk that the
denial of relief will produce injustice in other cases”; and (3) “the risk of undermining the public's
confidence in the judicial process.” Id. at 864. Courts apply these factors when analyzing cases
under § 455(b) as well as § 455(a). See Shell Oil Co. v. United States, 672 F.3d 1283, 1292 (Fed.
Cir. 2012) (citing cases from the Eleventh and Fifth circuit to this effect); Polaroid Corp. v.
Eastman Kodak Co., 867 F.2d 1415, 1420–1421 (Fed. Cir. 1989).
Analysis
As a preliminary matter, the Court finds that by failing to recuse himself despite owning

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stock in the Subject Entities, Judge Norton violated § 455(b)(4). The conflict was unwaivable and
required Judge Norton to recuse himself from the action and direct the clerk to reassign the matter.
See e.g., Liljberg, 486 U.S. at 859 n.8; Shell Oil Co., 672 F.3d at 1290; § 455(e). This violation,
however, does not end the Court’s inquiry. Under the factors articulated in Liljberg, the Court must
now consider an appropriate remedy. See 486 U.S. at 862 (“As in other areas of the law, there is
surely room for harmless error[.] There need not be a draconian remedy for every violation of §
455(a)” and § 455(b).).
As to the first factor, the injustice Plaintiffs identify is Judge Norton’s order on Crane’s
motion to exclude Plaintiffs’ expert. (Id. at 5-7) (expressing disagreement with said order’s
reasoning). Thus, Plaintiffs conclude, because Judge Norton’s ruling “benefited all defendants in
asbestos litigation,” Plaintiffs were prejudiced and vacatur of the judgment for Crane is necessary.
See (id. at 6-7).
The Court rejects Plaintiffs’ argument. Namely, while Plaintiffs makes clear that they
disagree with Judge Norton’s order, disagreement does not constitute “injustice” under § 455(b).
Specifically, Plaintiffs nowhere explain how the order excluding Plaintiffs’ expert benefited the
Subject Entities as opposed to Crane—especially given Plaintiffs voluntarily dismissed the Subject
Entities from this litigation. Compare (Dkt. No. 326 at 5) (“The most immediate harm . . . is that
the Court wrote a lengthy opinion striking plaintiffs’ expert, and then granted summary judgment
. . . depriv[ing] plaintiffs any chance of recovering compensation from Crane.”) and (id. at 6)
(arguing hypothetical future harm to other plaintiffs and hypothetical future benefits to the Subject
Entities because “Judge Norton’s ruling [] greatly benefited all defendants in asbestos litigation,
including the defendants in which he owned and still owns stock”) with Shell Oil Co., 672 F.2d at
1293 (finding prejudice under § 455(b) where trial court discovered conflict after entering final

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judgment, “br[oke] [defendant] Texaco [the conflicted party] out of this case, vacate[d] all orders
as they relate[d] to Texaco” and had the clerk reassign Texaco to a different judge because, “given
the identity of the issues involved, the parties [agreed] . . . a decision in [the original] case []
control[led] the outcome in the severed case involving Texaco”) (emphasis added).1 Here, unlike
in Shell Oil Co., Judge Norton made no substantive rulings as to the Subject Entities nor were
Judge Norton’s later rulings as to Crane premised on, directly beneficial to, or binding on the
Subject Entities. These undisputed facts belie Plaintiffs’ contention that Judge Norton’s violation
of § 455(b)(4) harmed them.
In sum, the Court finds that the first Liljeberg factor weighs in favor of Crane.
Relatedly, the Court finds that the third Liljeberg factor favors Crane as well because the
facts here do not “risk [] undermining the public’s confidence in the judicial process.” The Subject
Entities were dismissed from this litigation at Plaintiffs’ request—not, for example, through
motions to dismiss which Judge Norton ruled on. Thus, there is no risk that an objective observer
would question Judge Norton’s impartiality when viewing his orders on Crane’s dispositive
motions. See Chase Manhattan Bank v. Affiliated FM Ins. Co., 343 F.3d 120, 129 (2d Cir. 2003)
(analyzing § 455(b)(4) in light of § 455(a) and noting “[n]o appearance of partiality can attend a
situation in which the judge has decided nothing. Or a district judge may issue routine, standard
scheduling orders in a large number of newly filed cases, missing a disqualifying party in a case
with several parties. . . . There is no reasonable appearance of partiality in such circumstances.”);
Shell Oil Co., 672 F.3 at 1293 (finding a risk of undermining the public’s confidence in the judicial

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Specifically, rulings in the original action would have “prejudicial effect” on the government in
the severed action through the doctrine of collateral estoppel. See Shell Oil Co. v. United States,
672 F.3d 1283, 1291, 1293 (Fed. Cir. 2012) (noting that § 455 prohibits judges from fashioning
remedies beyond those available in § 455(f)).
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process “given that, several months after disclosing a financial interest in ‘Chevron Texaco Stock,’
the trial judge [nevertheless]: (1) denied the government motion for reconsideration; and (2)
entered final judgment in excess of $86 million in favor of the Oil Companies”); Liljeberg, 486
U.S. at 865.
Last, the Court finds denial of relief unlikely to produce injustice in other cases. In their
briefing, Plaintiffs fail to analyze or discuss this factor explicitly. See generally (Dkt. No. 326).
As noted above, Plaintiffs never appealed Judge Norton’s ruling excluding their expert—a ruling
Plaintiffs characterize in their briefing as “unusual” and “outside the mainstream.” See Travelers
Ins. Co. v. Liljeberg Enterprises, Inc., 38 F.3d 1404, 1408 (5th Cir. 1994) (“[I]t goes without saying
that a Rule 60 motion is not a substitute for appeal from an underlying judgment.”). At bottom, the
Court finds that allowing Plaintiffs to reopen a litigation for which Plaintiffs declined to pursue an
appeal because of a later discovered conflict that concerned entities voluntary dismissed from this
case would be unfair to Crane, and ultimately serve no deterrent function. See Polaroid Corp., 867
F.2d at 1420 (affirming order denying Kodak’s motion to vacate and noting, “[a]pplying the
Court's guidance in Liljeberg to the facts of this case, the risk of injustice to the parties weighs far
more heavily on Polaroid’s side of the scales; there is little or no risk of injustice in other cases,
the present denial resting on the specific facts of this case; and the public's confidence in the
judicial process is less likely to be undermined when its result is adhered to in repose, and would
be more likely to be undermined if the law were to countenance a sundering of the result six and
one-half years later on grounds other than the merits”)2; Chase Manhattan Bank, 343 F.3d at 132

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In Polaroid: (1) the trial judge informed the parties at the outset of trial that her mother-in-law
owned stock in Kodak but that she did not think it was a disqualifying conflict; (2) at the time of
final judgment, neither the judge nor her spouse had a financial interest in a party to the proceeding
(and thus § 455(b)(4) did not apply); (3) years later, after the judgment was appealed, the Federal
Circuit affirmed, and the case was returned to the district court for assessment of damages and trial
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(vacating and ordering new trial under § 455(a) where district judge, after receiving mandate of
appellate court, realized he held stock in party to case, divested himself of the stock and, acting
under 28 U.S.C. § 455(f), conducted requisite proceedings on remand. Because the disqualifying
circumstances appeared in 1997, they could not be cured by divestiture in 2000, long after bench
trial, findings of fact, and issuance of judgment); see also id. (noting vacatur would “prevent a
substantive injustice in some future case by encouraging a judge . . . to more carefully examine
possible grounds for disqualification and to promptly disclose them when discovered” especially
given district judge held a bench trial where evidence admitted clearly identified conflict, tending
to show judge “knew of his disqualifying financial interest . . . at the time of his 1997 decision”)
(emphasis added) (quoting Liljeberg, 486 U.S. 867-68)).
Therefore, for the reasons stated above, the Court denies Plaintiffs’ motion for vacatur
pursuant to § 455(b).
Additionally, in their reply, Plaintiffs argue in passing for vacatur under § 455(a). (Dkt.
No. 328 at 7-8). While the argument is procedurally improper as Plaintiffs did not raise it in their
original brief, see, e.g., Moseley v. Branker, 550 F.3d 312, 325 n.7 (4th Cir. 2008) ("As a general
rule, arguments not specifically raised and addressed in [an] opening brief, but raised for the first
time in reply, are deemed waived."), the Court addresses the argument for completeness’s sake.
Section 455(a) states that “[a]ny judge . . . of the United States shall disqualify himself in
any proceeding in which his impartiality might be questioned.” The determination of whether such
an appearance has been created is an objective one based on what a reasonable person knowing all
on remaining claims whereby the judge held a pretrial conference explaining that her mother-inlaw died and that “she was sua sponte disqualifying herself because she was a legatee and her
husband was executor of the estate”; and (4) Kodak sought to vacate all of the judge's orders after
six and a half years of litigation. Polaroid Corp. v. Eastman Kodak Co., 867 F.2d 1415, 1416-17
(Fed. Cir. 1989).
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the facts would conclude. See Chase Manhattan Bank, 343 F.3d at 127 (citing Liljeberg, 486 U.S.
at 860-61)).
For reasons substantially like those articulated above, the Court denies Plaintiffs’ motion
as to § 455(a). Given that Plaintiffs voluntarily dismissed the Subject Entities before Judge Norton
ruled on Crane’s dispositive motions, and given these later rulings were not premised on, directly
beneficial to, or otherwise binding on the Subject Entities, the Court finds that no reasonable
person knowing all these facts would find an appearance of partiality requiring disqualification
under § 455(a). See Liljeberg, 486 U.S at 864 (“Rule 60(b)(6) relief is accordingly neither
categorically available nor categorically unavailable for all § 455(a) violations.”); Chase
Manhattan Bank, 343 F.3d at 129 (analyzing § 455(b)(4) in light of § 455(a) and noting “[n]o
appearance of partiality can attend a situation in which the judge has decided nothing. Or a district
judge may issue routine, standard scheduling orders in a large number of newly filed cases, missing
a disqualifying party in a case with several parties. . . . There is no reasonable appearance of
partiality in such circumstances.”).
Accordingly, the Court denies Plaintiffs’ motion for vacatur pursuant to § 455(a).
Conclusion
For the reasons stated above, Plaintiffs’ motion for vacatur (Dkt. No. 326) is DENIED.
AND IT IS SO ORDERED.
s/ Richard Mark Gergel
Richard Mark Gergel
United States District Judge
January 6, 2022
Charleston, South Carolina

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