No Recusal of Judge in $920 Million Kevlar Case

     (CN) – A federal judge whose name appears on a 26-year-old fax cover sheet for a case involving Kevlar trade secrets refused to step down from a different Kevlar case that recently resulted in a $920 million jury award.



     DuPont developed Kevlar fiber technology in the 1960s, and it rapidly became a staple for law-enforcement and military arsenals. It also has various applications in other industries, ranging from sporting goods to fiber optic cables.
     The chemical manufacturing giant sued a competitor, Akzo Nobel, over Kevlar trade secrets in the 1980s. DuPont was then represented by two law firms, Fitzpatrick, Cella, Harper & Scinto and McGuire Woods & Battle.
     Robert Payne, a McGuire Woods partner, was later appointed the federal bench in Richmond, Va.
     He revealed this link in 2007 when DuPont filed suit against Korea-based Kolon Industries for its alleged use of Kevlar technology. Neither party objected to Payne presiding over the case.
     Kolon subpoenaed documents from the Akzo case during discovery and found a letter dated May 9, 1985, from Fitzpatrick to Payne, which read:
     “Dear Mr. Payne: Confirming our telephone conversation, I would appreciate your telecopying the complaint directly to our office, as well as to each of the following persons as soon as possible.”
     The file with the attached complaint also included a fax cover sheet from Payne to Fitzpatrick.
     When Kolon brought this letter to Payne’s attention in July 2011, Payne said, “having reviewed those document, I have no recollection of having had a conversation with Mr. Cella or Mr. Fitzpatrick. I still don’t. And I have no recollection of forwarding the complaint to him, nor does it prompt in my mind any recollection of any involvement in this litigation.” Kolon did not press the matter any further at that time.
     Following years of litigation, a jury found in September 2011 that Kolon misappropriated 155 separate trade secrets “by improper means,” willfully and maliciously.
     Payne ordered Kolon to pay $350,000 in punitive damages in November.
     Then, in January 2012, Kolon moved to recuse Payne, based on the contents of the 26-year-old letter.
     Payne denied the motion as untimely last week. He said that to “allow a party, with knowledge of a disqualifying circumstance, to lay in wait and spring the trap when doing so would provide a strategic advantage. Such a rule would foster great mischief. Further, the result of such a rule would lead to the waste of party and judicial resources and to prejudice and unfairness to the adverse party.”
     “The record here would not afford the basis of a reasonable person to question the presiding judge’s impartiality much less to believe that the presiding judge has at any time herein known of any basis of disqualification,” Payne added.

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