U.S. District Judge Arthur J. Schwab of the Western District of Pennsylvania wasn’t ordered to amend the time limit he imposed for an upcoming trial, but the U.S. Court of Appeals for the Third Circuit did suggest that he do so.

Addressing a mandamus petition from the defendants in a complex case stemming from the bankruptcy of a nursing home in Pittsburgh, a three-judge panel on the appeals court ruled that Schwab’s seven-and-a-half-hour allotment for each side’s presentation at trial didn’t merit the extraordinary measure of a writ of mandamus, but the judges did caution that the stiff time-limit could be grounds for a retrial.

“It is difficult to conceive how either side in this complex case could possibly present the necessary evidence to a jury in seven-and-a-half hours of trial time,” Third Circuit Judge Thomas Vanaskie wrote on behalf of the court in In re Baldwin, concluding the footnote at the end of the opinion with, “We therefore urge the district court to re-examine the time-limit order to avoid the necessity of a retrial.”

The Third Circuit has weighed in on two of Schwab’s other cases this year — reassigning a high-profile antitrust case to another judge and ordering a new trial in a case where Schwab hadn’t vetted material before allowing it to be shown to a jury.

In 2004, it issued a stiff rebuke to Schwab after concluding that defense lawyers had submitted a proposed opinion that Schwab adopted nearly verbatim as his own.

Without naming Schwab in the opinion, Vanaskie gave some background of the case, including the Third Circuit’s reversal of his grant of summary judgment in favor of the defendants, 16 former officials who ran the Lemington Home for the Aged and are accused of neglecting their fiduciary duties to the home, sinking it deeper into insolvency.

The appeals court remanded the case for trial, which was scheduled for last December, but was stayed pending the outcome of this appeal, regarding the time limit Schwab imposed on each side.

As Schwab denied the defendants’ motion to extend the trial to be 16 days, which would amount to 96 hours — more than six times what Schwab had allotted — he noted that he’s tried many cases on the clock and has had only one, a criminal case, run more than 16 days, according to a transcript.

“It’s unfair to our jurors to bring them in here and just put witness after witness on the stand with repetitive testimony and run it like a deposition,” Schwab said, according to the transcript.

The defendants had planned to call up to 34 witnesses, with 20 listed as definite and 14 as standby, according to the Third Circuit’s opinion. The plaintiff, a committee of creditors appointed by the bankruptcy court, planned to call as many as 51 witnesses, according to the opinion.

The three-judge panel, which included Third Circuit Judges Thomas Ambro and Kent Jordan, quickly dismissed the defendants’ first argument for a writ of mandamus by citing the final judgment rule.

“‘A writ of mandamus should not be issued where relief may be obtained through an ordinary appeal,’” Vanaskie said, quoting from the Third Circuit’s 1998 opinion in In re Chambers Development.

If they lose at trial, the defendants can appeal the issue after the judgment is issued, Vanaskie said. The court appreciates the time and expense of litigation, he explained, but that doesn’t “warrant the extraordinary step of mandamus intervention.”

Similarly, the court wasn’t convinced that the time limit effectively stifled the defendants’ right to a jury trial. If the right to a jury trial is in question, then a writ of mandamus would be appropriate.

However, that isn’t the case here, the appeals court held.

“The Lemington defendants’ attempt to shoehorn a fair trial claim into a jury trial claim for which mandamus review may lie is unavailing,” Vanaskie said. “There is simply no basis for us to conclude that the time-limit order has the effect of depriving the parties of a jury trial. Nor can we decide ex ante that the effect of the time-limit order is so draconian and such a mockery of the trial process as to amount to no trial at all.

“It may be that, in this case, the time-limit order is found to be reversible error,” Vanaskie said. “But that determination must await the presentation of a record that identifies with precision the evidence that the Lemington defendants were unable to present because the trial judge’s clock ran out.”

The court was also loath to set a precedent allowing parties to seek mandamus when they are faced with a time limit at trial.

“To hold otherwise would invite parties to seek mandamus relief whenever they are ‘placed on the clock,’ requiring appellate courts to hazard guesses as to whether an impact of a time-limit order is so severe as to deprive a party of the right to a ‘fair’ jury trial,” Vanaskie said. “We decline to endorse such use of the extraordinary remedy of the writ of mandamus.”

Neither Mark Hamilton of Cipriani & Werner in Pittsburgh, who represented the defendants, nor Arthur Zamosky of the Bernstein Law Firm in Pittsburgh, who represented the committee, could be reached for comment.

Saranac Hale Spencer can be contacted at 215-557-2449 or sspencer@alm.com. Follow her on Twitter @SSpencerTLI.

(Copies of the 15-page opinion in In re Baldwin, PICS No. 12-2236, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •