The California Court of Appeal, Fourth Appellate District Division One held in its unpublished opinion filed on April 19, 2021: “The arbitrator committed misconduct on several levels. At least one requires vacating the arbitration award. A neutral arbitrator has a continuing duty to disclose all matters that could cause a person aware of the facts to reasonably entertain a doubt that the neutral arbitrator would be able to be impartial. The arbitrator’s ex parte communication with Kaiser’s counsel certainly qualifies. Because the arbitrator was aware of this communication and did not disclose it to Grabowski, the award must be vacated. (§ 1286.2, subd. (a)(6)(A).) We therefore reverse the order dismissing the petition with directions to grant the petition and vacate the arbitration award.”
Plaintiff Joanna G. Grabowski alleged that Kaiser negligently failed to diagnose a large, benign ovarian tumor. A Kaiser physician noted abnormalities in an early radiological scan and recommended follow-up, but this recommendation was not followed by Kaiser. Over the ensuing years, Grabowski suffered severe pain and discomfort, which she attributed to the growing tumor. The tumor was discovered when Grabowski was a teenager, after it had grown close to the size of a melon. Kaiser performed surgery to remove it. After the surgery, Grabowski continued to suffer severe pain. A different medical provider discovered that a portion of Grabowski’s small intestine had become trapped when her surgical incision was closed.
Grabowski brought claims for medical malpractice against Kaiser Foundation Health Plan, Inc., Southern California Permanente Medical Group, and various associated physicians that were heard by an arbitrator pursuant to a contractual arbitration agreement. Grabowski, now college-aged, represented herself but was assisted by her mother. After a contested hearing, the arbitrator awarded judgment in favor of Kaiser.
In his award, the arbitrator found that Grabowski’s tumor could not have been diagnosed until it became approximately the size of a melon. He understood Grabowski’s expert to testify that Kaiser’s physicians had individually met the requisite standard of care, but that Kaiser as a whole “breached its standard of care for not diagnosing the tumor earlier.” The arbitrator rejected this theory, which he characterized as “an attempt to impose liability on Kaiser without finding fault or blame on any of the doctors” who treated Grabowski. The arbitrator noted that Grabowski had suffered severe pain for many years and continued to experience pain. He theorized that her pain was caused by “her intense engagement in athletics as a pitcher on her college softball teams.” The arbitrator concluded that Grabowski “failed to establish through expert testimony that the legal cause of her injuries was the failure of her Kaiser doctors to exercise the care and skill required under the circumstances.” He therefore awarded judgment in favor of Kaiser.
Grabowski’s mother recorded the arbitration procedure that included an ex parte communication between the arbitrator and Kaiser’s counsel. Grabowski’s mother was recording the proceedings on her cell phone and had inadvertently left it going while she and Grabowski left the room. During that absence, the cell phone recorded comments by the arbitrator making light of Grabowski’s self-representation and her inability, in the arbitrator’s view, to effectively represent herself. The arbitrator volunteered these comments to Kaiser’s counsel, ex parte, and they shared “a hearty laugh” about Grabowski’s perceived shortcomings as an advocate.
The California Appellate Court stated: “we conclude a person aware of the ex parte communication could reasonably entertain a doubt that the arbitrator would be able to be impartial. The communication showed that the arbitrator had concluded that Grabowski could not be an effective advocate for herself. While this conclusion may not necessarily evince bias in and of itself, the arbitrator’s decision to share his conclusion with Kaiser’s counsel certainly does. The arbitrator plainly felt a connection to Kaiser’s counsel, which made him comfortable enough to violate ethical rules and comment on Kaiser’s opponent. Moreover, the arbitrator’s comments went far beyond the bare conclusion that Grabowski was ineffective. The audio recording, which reveals the arbitrator’s tone and attitude, is striking. The arbitrator commiserated with Kaiser’s counsel about their shared predicament (in his view) and shared a hearty laugh at Grabowski’s expense. The arbitrator vividly expressed his incredulity that Grabowski was representing herself. The arbitrator also commented on the nature of the case itself, stating that Grabowski “picked one of the toughest, factual cases [the arbitrator had] ever dealt with to have somebody in [pro. per.]””
The California Appellate Court continued: “His emotional response is apparent. The exact reason for the laughter is somewhat unclear, but it was clearly improper. Whether it was nervous laughter at the ethical transgression that had just occurred, disbelieving laughter that Grabowski was so unable to represent herself, or derisive laughter about Grabowski’s perceived incompetence, it highlights the reasons why the ex parte communication was improper. A person aware of the ex parte communication could reasonably believe that the arbitrator did not take Grabowski seriously and could not maintain an open mind about her claims. He was biased against her for a particular reason, i.e., her self-represented status. A person aware of the ex parte communication could also reasonably believe that the arbitrator was partial to Kaiser’s counsel, again for a specific reason. He was a fellow professional at the mercy (in the arbitrator’s view) of Grabowski’s lack of legal training and perceived incompetence.”
“Again, we emphasize that an arbitrator’s private conclusion that an advocate is ineffective or incompetent does not necessarily create grounds for disqualification. The dispositive circumstances here are the arbitrator’s decision to share this conclusion with Kaiser’s counsel and the arbitrator’s obviously emotional response to Grabowski’s self-representation. A reasonable person could conclude that these were not the actions and statements of an impartial decision maker.”
The California Appellate Court summarized: “the arbitrator’s ex parte communication with Kaiser’s counsel could cause a person aware of the facts to reasonably entertain a doubt that the arbitrator would be able to be impartial. The arbitrator was therefore required to disclose the communication to Grabowski, so she could decide whether to seek his disqualification. (§ 1281.85; Ethics Standards, std. 7(d).) The arbitrator did not disclose the communication, and Grabowski was unable to exercise her right. The arbitrator’s failure to disclose a ground for disqualification requires that the arbitration award be vacated without any further showing of prejudice.”
The California Appellate Court held: “Because a reasonable person aware of the ex parte communication could reasonably entertain a doubt that the arbitrator would be able to be impartial, the arbitrator was required to disclose the communication within 10 calendar days. (Ethics Standards, std. 7(c)(2).) Grabowski would then have had the opportunity to disqualify the arbitrator. (See § 1281.91, subd. (d); Ethics Standards, std. 10(a)(3).) The arbitrator did not make the required disclosure. The statute therefore requires that the arbitration award be vacated, without any further showing. (§ 1286.2, subd. (a)(6)(A); see Haworth, supra, 50 Cal.4th at p. 394.)”
Source Grabowki v. Kaiser Foundation Health Plan, Inc., D076968.
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