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A Columbia County Court of Common Pleas judge won’t recuse himself from overseeing a medical malpractice suit that involves a man whom the judge had prosecuted in his former role as district attorney.

On March 14, Judge Gary E. Norton dismissed a motion for recusal in Matos v. Geisinger Medical Center after counsel for the medical center contended that Norton’s prosecution of the man who murdered the plaintiff’s decedent in an unrelated case several years prior to the civil action necessitated that Norton remove himself as judge. Norton opined that he had little recollection of his interactions with the man, and that the defendant’s motion was made as a bad-faith attempt to “judge shop.”

The plaintiff in the case, Cheryl Matos, who is the administratrix of the estate of Jessica L. Frederick, is pursuing a medical malpractice claim against the Geisinger Medical Center and the Alley Medical Center, as well as doctors from both facilities, after Westley Wise murdered Frederick. Matos alleged that one of the facilities failed to properly treat or admit Wise for psychiatric evaluation on the day of the murder, and she sought punitive damages.

Norton said in the opinion that he had prosecuted Wise for an incident of alleged assault in 2006.

According to Norton, after he “signaled” that he would likely allow the plaintiff’s claim for punitive damages to proceed, the medical center’s counsel, listed on the opinion as White and Williams attorney Anna Marie S. Bryan, began raising the issue of recusal.

“That was a clear bad-faith tactical move to attempt to remove the undersigned and ‘judge shop’ for a jurist who might dismiss the punitive damages claim,” Norton said. “The Geisinger defendants are conjuring up facts which do not exist, and taking those conjured facts and professing to be the articulator of public sentiment.”

According to Norton, Wise presented for a psychiatric evaluation at the defendant institutions on Jan. 21 and 24, 2011, with his family stating that he had a violent psychiatric disorder. The plaintiff alleged the defendants released Wise without proper admission or treatment, and he later went on to kill the plaintiff’s decedent Jan. 24, 2011. Wise pleaded guilty to third-degree murder in Montour County, Norton said.

Norton said that at the beginning of an oral argument session regarding the defendants’ preliminary objections, he notified both sides that he had been the district attorney of Columbia County from Jan. 5, 2004, until Jan. 2, 2012, and that, in 2006, he prosecuted Wise regarding an assault Wise allegedly committed. Norton said he recalled a habeas corpus hearing in 2006 in which the alleged victim denied having any memory of the incident, “which left her with a knife wound to the neck,” but that he did not believe he secured any psychiatric or medical records of Wise.

After Norton made the announcement, nobody immediately objected, Norton said. However, after Norton said there could be a question of fact regarding the plaintiff’s claim for damages, Bryan questioned whether Norton could be objective and that he could be a witness in the present case, Norton said.

According to Norton, Wise had pleaded guilty to simple assault after the habeas corpus motion was granted regarding attempted murder and aggravated assault charges, and that due to the motions being granted, no hearing occurred regarding a motion Wise made seeking to undergo a psychiatric examination.

Norton said he ordered a transcript of Wise’s guilty plea hearing, in which the only mention of mental illness was Wise asserting that he was “bipolar.”

Norton contended that due to the limited discovery that had been completed in the civil case stemming from the 2011 murder, it was unresolved whether Wise’s alleged mental illness would be a factor in the case, and, therefore, any claims that Norton’s alleged knowledge of Wise’s mental condition could affect the case were premature.

Norton further contended that Bryan misrepresented his statements and knowledge of the 2006 prosecution, as she claimed in her brief that Norton said he had a “vivid memory” of the case and that he had access to relevant information not accessible to the public regarding Wise’s mental condition, which Norton called “pure speculative fluff and irresponsible to assert.”

Norton said the attorney also exaggerated the media attention the 2006 prosecution received, and characterized Bryan’s claim that the 2006 plea deal had been criticized following the 2011 murder as being deduced “out of thin air” and “overreaching.”

While the Pennsylvania Code of Judicial Conduct requires a judge to recuse if the judge served as a lawyer in the “matter in controversy,” Norton said he did not serve as a lawyer in the matter related to the prosecution of Wise for Frederick’s murder.

Norton also said the 1983 ruling in Commonwealth v. Darush applied. That case held that a person who prosecuted a defendant in a criminal case as a district attorney is not disqualified from adjudicating a later and separate case involving the same defendant as a judge.

“It is also clear that Geisinger’s counsel’s statement that the undersigned would be a witness in the present case was manipulative and tactical in nature, because that threat only came out after the undersigned professed an inclination to permit the claim for punitive damages to continue,” Norton said. “As a result, this manipulative tactical maneuver was presented in bad faith.”

Bryan did not return a call for comment. Plaintiffs attorney Michael D. Shaffer of Shaffer & Gaier also did not return a call for comment.

Max Mitchell can be contacted at 215-557-2354 or mmitchell@alm.com. Follow him on Twitter @MMitchellTLI.

(Copies of the 16-page opinion in Matos v. Geisinger Medical Center, PICS No. 14-0527, are available from Pennsylvania Law Weekly. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •