CHARLESTON – Four Justices of the West Virginia Supreme Court of Appeals dishonored former Justice Arthur Recht when they ordered him to hold a new trial, in the view of dissenting Justice Brent Benjamin.

Benjamin rose to Recht's defense in an unusually personal dissent July 25.

He began by asking, "Where, exactly, did Judge Recht go wrong?"

He wrote that the majority substituted its judgment for Recht's. He wrote that they should have deferred to his reasoned determination.

In a footnote he added, "A determination, I note, borne of Judge Recht's long standing, dedicated service to the justice system in this State both as a distinguished trial judge and a member of this Court."

The majority in June granted a new trial to Sally Black, for the estate of Charles Black, in a suit against CSX Transportation.

At trial before Recht, Ohio County jurors ruled in favor of CSX.

In reversing Recht, the Supreme Court of Appeals ruled that he should have disqualified from the jury pool a physician who admitted a bias against personal injury lawyers.

Benjamin, protesting that the majority failed to include a record of Recht's deliberation, put it into his dissent.

It shows that when Recht denied a motion to disqualify the physician, he said he didn't think any of his answers would disqualify him for cause.

When Black renewed the motion, Recht said, "The first response that he has a bias against personal injury lawyers is a strong statement."

He said the physician modified his statement and said he was a man of science who would not be swayed by emotion.

Recht asked what it would take to overcome that bias. He said, "I don't think that question was asked."

Recht decided to ask. The physician answered that a lawyer's credibility would overcome his bias and he would decide the case on law and evidence.

Benjamin wrote that the majority may have established a standard in West Virginia that a juror who states that he or she will rely on facts and law and not on emotion may be subject to disqualification.

It especially irritated Benjamin that the physician did not sit on the jury. Black rejected him with a peremptory challenge.

Benjamin wrote, "Notwithstanding his absence, the jury that heard the evidence still found no causation whatsoever to support Appellant's claim."

He called it pure speculation that the juror who would have replaced the physician in the jury pool might have impacted the verdict.

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