When two prominent Los Angeles trial lawyers arranged for 90 family members and friends in the legal and medical professions to go on a Mediterranean cruise last August, it triggered sniping from rival attorneys.
Now one of the judges who went on the cruise is facing a motion calling for him to recuse himself from a case. The reason: One of the trial's expert witnesses was on the cruise too.
The motion, aimed at Pasadena Superior Court Judge Coleman A. Swart--one of 10 judges who went on the cruise arranged by attorneys Thomas V. Girardi and Walter J. Lack--was announced earlier this week in a civil case involving a contractual dispute.
Swart, the supervising judge in the Pasadena court, denied that any conflict exists.
However, in response to the recusal motion, the judge offered three times in a hearing Tuesday afternoon to order the expert witness--Lack law partner Paul Engstrom--disqualified as a witness in the case.
Although denying that there is a question of partiality in his hearing the case, Swart said he was offering to disqualify Engstrom to save the time and expense of a possibly lengthy hearing in another court on the disqualification motion.
The judge, who says he paid for his part of the weeklong cruise on the Sea Goddess II out of Monte Carlo, said he does not know Engstrom personally.
"I obviously was on this trip," Swart said. "I would not be able to identify Mr. Engstrom if he walked in the courtroom. I might be able to recognize his face as somebody that I saw on the trip or that I may have said hello to, but I could not put a name with a face, as far as Mr. Engstrom is concerned."
However, he went on, according to a court transcript released Friday: "I'm prepared at this time to disqualify Mr. Engstrom as a witness in this case, and I think perhaps that would be the most expedient way to handle this matter."
But Andre Jardini, the attorney for the defendants in the case of Wolf Air et al. vs. Associated Aviation Underwriters, said he would not accept the judge's offer and would persist in trying to disqualify him from hearing the case.
Jardini told Swart that his proposed solution "is papering over the problem."
The attorney said that to him and his clients, the presence of the judge and the expert witness on a cruise arranged by the witness' partner creates "extraordinary and unusual and unfortunate" circumstances.
"An objective person might reasonably entertain doubts based on those circumstances of [your] impartiality," Jardini told Swart.
But the judge said: "I think to put the court in a position that you have to disqualify yourself every time somebody appears as a witness who you may have at least had some casual connection with, I think, is not the intent [of the law]."
Engstrom said in an interview Friday: "I don't even know the judge, except to say hello to him. I have given a deposition in the case, but I have not been called as a witness and I have not testified, so I don't know that there's any problem here."
Girardi has said the Sea Goddess cruise was purchased at a discount but eight of the 10 judges who went paid their own way, and the other two, U.S. District Judges Dickran Tevrizian and Ronald Lew, went free because they gave lectures on the trip.
The cruise cost $3,070 per person. The normal price for it on the Cunard liner is $6,500.
Some lawyers criticized the cruise because among the judges aboard were three of the five retired judges who participated in a toxic pollution lawsuit that Girardi and Lack filed against Pacific Gas & Electric. The two lawyers won a $333-million settlement for their clients last year, receiving a fee of at least $120 million. The judges served on private mediation or arbitration panels.
This week, a PG & E attorney said a letter raising questions about the judges' ethical standards and the fairness of the mediation is being sent to the association that administers the work of many private judges, Judicial Arbitration and Mediation Services.
The retired judges who went on the cruise, all saying they were paying their own way, were Jack Tenner, John Trotter and Jack Goertzen. Trotter and Goertzen are arbitration service judges, and Tenner formerly was with the service.
Judge Keith Wisot, an arbitration service administrator, has said there is no indication that any of the judges did anything wrong in going on the cruise.
However, some critical attorneys and judges have suggested that the discount offered to the invitation-only cruise passengers was something the judges could not ordinarily have received.