A California appellate court affirmed a trial court’s decision to vacate an arbitration award issued in a medical malpractice case because one of the arbitrators failed to disclose that he had been censured while he was a judge for making inappropriate remarks about the physical attributes and ethnicity of some of his female colleagues.

In Haworth v. Superior Court, No. B204354, 2008 WL 2690296 (Cal. Ct. App. July 10, 2008), Haworth performed cosmetic surgery on Susan Ossakow, and Ossakow subsequently sued Haworth for medical malpractice. The matter was submitted to arbitration pursuant to the parties’ arbitration agreement. The parties chose a panel of arbitrators, and retired Judge Gordon served as the "neutral" arbitrator that the parties mutually selected.

The arbitration panel issued an award in favor of Haworth. After receipt of the award, Ossakow discovered that while Judge Gordon was on the bench, he had been publicly censured by the California Supreme Court for making inappropriate remarks, including sexually suggestive remarks and an ethnic slur. Ossakow subsequently moved to vacate the award because Judge Gordon had not disclosed his censure prior to the arbitration.

The trial court vacated the award, holding that a reasonable person advised of Judge Gordon’s censure would entertain a doubt as to his impartiality. As such, Judge Gordon was required to disclose the censure under California law, and his failure to disclose served as a valid basis for vacatur under California law. Haworth appealed.

The Court affirmed, holding that Judge Gordon was required to disclose his censure under California law because he was censured for his treatment of women and disparaging comments about their physical appearance. Consequently, because this was a medical malpractice case involving cosmetic surgery on a woman, the Court held that Judge Gordon should have disclosed the censure because a reasonable person aware of the censure would harbor doubts that Judge Gordon could be impartial in this case.

Haworth argued that because the censure was published, Ossakow or her attorney should have discovered it. The Court rejected Haworth’s argument, holding that it would not create a "public records exception" to California’s statutory disclosure requirements, as the "plethora of statutory and case authority impos[es] the duty of disclosure squarely on the neutral arbitrator’s shoulders."

Judge Mosk filed a dissent, arguing that vacating the arbitration award for nondisclosure in this case "greatly increases the scope of the disclosures required of arbitrators" and "undermines the institution of arbitration." Judge Mosk noted that twelve years had passed between the events leading to the censure and the arbitration, and argued that "it is objectively unreasonable to infer . . . that years later Judge Gordon is biased against all women with unspecified physical attributes." Furthermore, Judge Mosk noted that the Supreme Court had recognized that Judge Gordon’s comments were intended to be humorous and did not imply impartiality; they were just inappropriate in the workplace.