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Judge’s Crude Trial Notes Tainted Malpractice Case

(CN) - A Florida appeals court came down on a judge caught lampooning the plaintiff in a medical malpractice case as a "bag lady with shits" and a "barfer."

Judge J. Michael McCarthy had doodled the remarks while presiding over a jury trial in the Circuit Court of Polk County, Fla.

M.B., as the plaintiff is described in the court record to protect her privacy, had claimed that a botched hysterectomy forced her to wear an external urine-collection bag over a three-month period during which time she also allegedly suffered from nausea and diarrhea.

An attorney for M.B. spotted McCarthy's note during sidebar conference.

Affixed to a verdict sheet left in plain view on the bench, the note read: "Bag lady with shits (full of). Barfer, too." (Parentheses in original.)

McCarthy first acknowledged the note, then said it was "gone," and continued by saying his notes are "absolutely no business of counsel's."

"If I sit here and do crossword puzzles, it's none of your damn business either," McCarthy told the lawyer.

After the judge refused to order a mistrial, M.B.'s attorney then asked McCarthy to recuse himself.

The Second District Court of Appeals noted Friday that the lawyer technically sought disqualification.

In refusing to step down, McCarthy insisted that he had not affected the integrity of the trial since he had not shared his derogatory opinion of the plaintiff with the jury.

"The scribbles I make up here are my sarcastic comments that stay with me, they don't go anyplace else," McCarthy said. "I am not noted for being the most outwardly friendly person in the world and I do make some fairly critical notes that nobody should have even looked at up here[] and they had nothing to do with anything." (Brackets in original.)

When the trial resumed, the jury ruled for the defendants.

The appellate panel found Friday that M.B. deserves a new trial.

"We hold that the comments made by the trial judge, in addition to the trial judge's written note, caused M.B. to have a well-founded fear that she would not receive a fair and impartial trial," Justice Robert Morris wrote for a three-judge panel.

"Litigants have the right to have their cases heard in a '[calm] and dispassionate environment before an impartial judge and have their rights adjudicated in a fair and just manner,'" the judge added. "It can hardly be said that the trial judge's comments and note in this case reflected a 'calm and dispassionate environment.' Quite the contrary, the comments reflected a bias or prejudice against M.B., thereby rendering the entirety of the proceedings fundamentally unfair."

Judges Darryl Casanueva and Douglas Wallace joined in the ruling,

M.B.'s retrial will go before a different judge, according to the 13-page ruling.

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