MOUNT VERNON - St. Clair County Circuit Judge Christopher Kolker improperly branded Johnson & Johnson vice president Susan Nicholson as a criminal and fined her $500 without due process, according to Fifth District appellate judges.
While jurors reached a verdict in favor of Johnson & Johnson following a two and a half week trial last July, the company indicated at the time that it would appeal Kolker’s orders of direct criminal contempt.
On May 18, appellate justices reversed Kolker. They didn’t find evidence for reducing his orders to indirect contempt, so they remanded the matter to Kolker for a hearing on the lesser charge.
At trial, Nicholson testified as a vice president of Johnson & Johnson on a Friday morning, on a claim that talcum powder caused Betty Driscoll to die.
On lunch break, Kolker asked estate counsel John Driscoll, John Baricevic, and C. J. Baricevic how long cross examination would take.
They told him it could go into Monday.
Kolker said he’d recess at 3:30 p.m.
Back in court, defense counsel Beth Bauer told Kolker and counsel for the estate that Nicholson would stay as long as it took to finish. But, Bauer said Nicholson couldn’t be there next week due to a conflict.
Kolker said she better change her plans.
“When an expert witness goes on a Friday the assumption would be you better be prepared for them to be here on Monday,” Kolker said.
He brought Nicholson into court and said, “We need you back next week and there’s a couple ways we can do that.
“Some of them are not desirable. I don’t want to put you up in county housing and force you to stay here.
“I want you to come back or be here on Monday on your own.
He asked her to explain and Nicholson said she didn’t want to explain with a room full of people present.
“Tuesday?” Kolker asked.
She said she could be there Thursday.
Kolker asked her to whisper her personal commitment in his ear, and she did.
“I think we have resolved the issue and Dr. Nicholson will be here on Monday morning,” Kolker said.
Later, Bauer again asked to finish on Friday or allow Nicholson to testify by video.
Kolker denied both requests.
He didn’t see Nicholson on Monday, and he asked if she’d be available Tuesday.
Bauer said she could give additional information in Kolker’s chambers.
Kolker said, “Hold on a second.”
He said Nicholson whispered to him that, “she had a friend or someone close to her that I’m going to infer has cancer.”
“Of course that would imply that this person’s time is limited,” Kolker said.
He said he wondered why Johnson & Johnson put her on the stand on Friday. He also said he didn’t believe Nicholoson on Friday.
He said he received email from defense counsel at 10 p.m. Sunday, informing him that she wouldn’t appear because of a medical condition.
Bauer said she wasn’t in Virginia visiting her sick friend but was on her way to her medical provider. Bauer said a psychiatrist could testify live about her condition and illness.
Jurors entered and Kolker told them Nicholson refused to appear.
He said her earlier testimony was stricken.
“Wipe it out as if it never happened,” Kolker told jurors.
He issued contempt orders finding Nicholson, acting as agent of Johnson & Johnson, impeded and interrupted proceedings.
He found she lied about her reasons and about being in court on Monday.
Losing her testimony didn’t hurt her employer, in a case in which plaintiff attorneys sought up to $50 million in damages.
Johnson & Johnson appealed the contempt orders and moved for a substitute judge on the basis of bias.
They quoted Kolker saying Nicholson lied to his face, acted smugly, and gave shifting reasons “just like every liar.”
On appeal, Fifth District judges found direct criminal contempt cannot rest upon mere opinion or presumption.
They found absence alone doesn’t establish that a person willfully intended to disrupt the proceedings and embarrass the court.
They found a judge has no way of knowing why an individual was not present and whether absence was willful.
Justice Randy Moore wrote, “In this case, the trial court did not have any personal knowledge that any statements by the defendants regarding Dr. Nicholson’s medical illness or J&J’s efforts to secure her testimony were false.”
“Ultimately, the trial court inferred and presumed the falsity of the defendants’ claims made on Monday from circumstances that transpired on Friday,” Moore wrote.
He found Kolker declined to accept Johnson & Johnson’s evidence.
“Therefore, we cannot construe the trial court’s finding of direct contempt as a finding of indirect contempt because due process was not afforded,” he wrote.
The appellate court denied substitution, though it found Kolker could have phrased his criticisms more artfully.
“The circumstances the defendants cite do not display such a deep seated favoritism or antagonism that would make fair judgment impossible,” Moore wrote.
State’s Attorney James Gomric represented the people on appeal, with state appellate prosecutor Luke McNeill as lead counsel.
Fifth District judges have reversed Kolker seven times in his three and a half years as circuit judge.
In 2020, in Burdess v. Cottrell Inc., they reversed two contempt orders against third party Continental Indemnity for failure to comply with discovery orders.
They found Kolker shouldn’t have entered the discovery orders, which involved a large number of workers’ compensation cases. They found he didn’t gather evidence and conduct a balancing test to determine the associated burden. They found the burden of production disproportionate to the benefit.
In 2020, in Phillips v. Gale, they found Kolker defeated the goal of a medical malpractice trial by barring an expert as a sanction for a discovery violation.
Kolker’s ruling, in a trial only on damages, prevented the defendant from asserting the relevance of prior accidents, injuries, or conditions.
Justice Mark Boie wrote, “There can be no trial on the merits when one party is completely prohibited from presenting evidence on the sole issue before the jury.”