Case 1:09-cv-00752-HTW Document 11-5 Filed 05/04/09 Page 1 of 7

IN SEALED ARBITRATION ) JAMES J. MURTAGH, M.D., Plaintiff, v. FULTON-DEKALB HOSPITAL AUTHORITY, EMORY UNIVERSITY, EMORY HEALTHCARE, INC., GRADY HEALTH SERVICES COMPANY, INC., JOHN DOES 1-10 Defendants. ) ) ) ) ) ) ) ) SERVED IN CONFIDENTIAL ARBITRATION

PLAINTIFF DR. JAMES MURTAGHS MOTION FOR RECUSAL OF ARBITRATOR AND DISCLOSURE OF INFORMATION RELATED TO POTENTIAL CONFLICTS Plaintiff, Dr. James Murtagh, hereby respectfully submits his motion for recusal of the Arbitrator. In support of this motion, Dr. Murtagh states as follows: The AAA rules provide the following in regard to disclosures by and recusal of an arbitrator: 15. Disclosure

a. Any person appointed or to be appointed as an arbitrator shall disclose to the AAA any circumstance likely to give rise to justifiable doubt as to the arbitrator's impartiality or independence, including any bias or any financial or personal interest in the result of the arbitration or any past or present relationship with the parties or their representatives. Such obligation shall remain in effect throughout the arbitration. b. Upon receipt of such information from the arbitrator or another source, the AAA shall communicate the information to the parties and, if it deems it appropriate to do so, to the arbitrator and others. c. In order to encourage disclosure by arbitrators, disclosure of information pursuant to this Section R-15 is not to be construed as an indication that the arbitrator
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considers that the disclosed circumstance is likely to affect impartiality or independence. 16. Disqualification of Arbitrator a. Any arbitrator shall be impartial and independent and shall perform his or her duties with diligence and in good faith, and shall be subject to disqualification for: 1. partiality or lack of independence, 2. inability or refusal to perform his or her duties with diligence and in good faith, and 3. any grounds for disqualification provided by applicable law. The parties may agree in writing, however, that arbitrators directly appointed by a party pursuant to Section R-13 shall be nonneutral, in which case such arbitrators need not be impartial or independent and shall not be subject to disqualification for partiality or lack of independence. b. Upon objection of a party to the continued service of an arbitrator, or on its own initiative, the AAA shall determine whether the arbitrator should be disqualified under the grounds set out above, and shall inform the parties of its decision, which decision shall be conclusive. Documents recently obtained by Dr. Murtagh, through production from Emory reveal that Arbitrator Deane has a conflict or the appearance of a conflict that requires recusal. Plaintiff discovered in September, 2007 upon reviewing materials Emory produced in discovery that Arbitrator Deane had reviewed and made decisions regarding Plaintiffs underlying case in 2000 while Mr. Deane was the U.S. Attorney. 1 This information was not revealed by Emory or the Arbitrator prior to Plaintiffs discovery. Arbitrator Deane, in his prior capacity as U.S. Attorney, had been called upon to review aspects of Dr. Murtaghs prior litigation and make a determination as to whether one of the defendants named by Dr. Murtagh should be defended by the United States because that defendants challenged actions were performed in an official capacity. Mr. Deane signed a document indicating that he had read Dr. Murtaghs pleading and

See Exhibit A. Dr. Murtagh had different counsel at the time of the instant litigation when the conflicts disclosure was being addressed than in the underlying litigation some five years prior in which Mr. Deane had made his certification on behalf of a defendant in that underlying litigation. Dr. Murtagh was unaware of Mr. Deanes certification until he obtained it via the recent discovery production.

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determined that the defendant was acting in an official capacity and would be defended by the United States. Emory had an affidavit from Mr. Deane in its possession from April, 2000 in which Mr. Dean testified that he had reviewed Dr. Murtaghs Amended Complaint in Murtagh v. Emory, 1:99-CV-2864-JEC (U.S. District Court, N.D. Ga.) while serving as US attorney, and based on that review, Mr. Dean declared that one of the defendants serving at the VA hospital, Dr. Aquayo (concurrently an officer of Emory), was acting within the scope of his federal employment (and therefore was eligible to be defended by Mr. Deanes office in that litigation). Emory was in possession of this affidavit showing an important conflict of interest, but failed to disclose this information to Plaintiff Murtagh until Emory produced this affidavit finally in September, 2007. This newly obtained information is contrary to statements Emory made at the outset of this arbitration regarding the limits of Mr. Deanes potential conflicts, statements Emory submitted to Mr. Deane for approval to create a purportedly accurate disclosure and record of any potential conflicts of Mr. Deane. (See Exhibit B.) Given this belatedly disclosed conflict of interest, Dr. Murtagh has no choice but to request that the Honorable Arbitrator recuse himself. Emory stated as follows on Monday, July 25, 2005 4:36:36 PM: Wozniak: "Richard, I also had one other request I meant to raise on the phone. Would you mind making a written disclosure of the past relationships you have had with the parties and/or their counsel. I know you have already given an oral disclosure that included (1) you worked in the US Attorney's office during a period of time that overlapped with Kent Alexander's working in the office and therefore worked with Mr. Alexander, (2) you were the US Attorney at the time the qui tam action initiated by Dr. Murtagh was filed but are not aware of the specifics of the case." See Exhibit B. The April 6, 2000 affidavit of Mr. Deane however, is contrary to Emorys statement of the potential conflicts. Then U.S. Attorney Richard H. Deane certified, in making the determination
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that the defendants in question should be defended by the United States, that: Pursuant to 28 U.S.C. 2679, by virtue of the authority vested in me by the Assistant Attorney General under 28 C.F.R. 15.3, I hereby certify the following: I have reviewed the Amendment to the Complaint, as well as documentation pertaining to the allegations concerning Samuel M. Aguayo, M.D., in the Amendment to the Complaint. See Exhibit A. If the Arbitrator is not to immediately recuse, at minimum there should be a full disclosure of all potential conflicts, including the extent of the friendship and past and on-going relationships between the Arbitrator and Kent Alexander, and a full disclosure of any ex parte communications between Mr. Alexander and the Arbitrator, and Dr. Murtagh should be allowed discovery on the evidence Emory possesses regarding any potential conflicts of interest. Six Georgia Senators have made clear that the present dispute has large implications for public policy. (See Exhibit C.) For this reason, a scrupulously neutral arbitrator is required so that there is public confidence in the result. We urge that Emory immediately reveal any conflict of interest or potential conflict of interest it knows of regarding any judge or arbitrator in this case. Dr. Murtagh has a constitutional right to a neutral judge and arbitrator, and that right appears to have been violated. Dr. Murtagh thanks the Honorable Arbitrator for his service, but under the circumstances, he respectfully asks the Arbitrator to recuse himself. CONCLUSION AND RELIEF REQUESTED For the reason expressed above Dr. Murtagh requests that the Honorable Arbitrator recuse and, in the alternative, disclose all information relevant to the above referenced conflict or potential conflict of interest and any other information giving rise to a real conflict or the appearance of a conflict in this matter.

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