Case 1:09-cv-00752-HTW Document 11-4 Filed 05/04/09 Page 1 of 14

IN ARBITRATION JA.MES J. MURTAGH, JR., M.D., Claimant.

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FULTON-DEKALB HOSPITAL AUTHORITY. EMORY UNIVERSITY, EMORY HEALTHCARE. INC., GRADY HEALTHCARE, INC., GRADY HEALTH SERVICES COMPANY, INC., JOHN DOES 1-10

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SUBMITTED IN CONFIDENTIAL ARBITRATION

DECISION OF THE ARBITRATOR In his Motion for Recusal of the Arbitrator and Disclosure of Information Related to Potential Conl1icts ("Motion"), Plaintiff Dr. James J. Murtagh, .Ir. claims that "[d]ocuments recently obtained ... through production from [defendant] Emory reveal that Arbitrator Deane has a cont1ict or the appearance of a conflict that requires recusal" ,md contends therefore that the Arbitrator should recuse himself (Motion at 2.) In the alternative, Dr. Murtagh's Motion requests that "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 filII 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." (Motion at 4.) The original basis for Dr. Murtagh's Motion, filed as Exhibit A to the Motion, was a ccrtification filed by Mr. Deane on April 6, 2000 in his capacity as Unitcd States Attorney filr the Northern District of Georgia. The certification was filed in the case captioned Murtagh v. Emmy

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University; Juha P Kokko; Gerald W Staton, Jr., Civil Action No, I :99-cv-2864-JEC, and states that: 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 On the basis of the information now available with respect to the matters referred to in the Amendment to the Complaint, defendant Samuel M, Aguayo, MD" was acting within the scope of his employment by the United States at the time of the events alleged in the Amendment to the Complaint (Motion Exhibit A,) Dr, Murtagh elaims in his Motion to have learned of this certification for the first time in September 2007 by receiving the documcnt in a production madc by dcfendants Emory University and Emory Healthcare, Inc, ('"Emory"), (Motion at 2,) Dr, Murtagh contends that this certification indicates that "Arbitrator Deane had reviewed and made decisions rcgarding Plaintiffs' underlying case in 2000 while Mr, Deane was the U,S. Attorney," and that "[tlhis information was not revealed by Emory or the Arbitrator prior to Plaintiffs' discovery,"
(ld.) Dr, Murtagh's Motion states that that the certification is "contrary to Emory's statement of

the potential conflicts," which Dr, Murtagh gfeans from the document attached to the Motion as Exhibit B. That document is a July 25, 2005 e-mail from Emory's counsel to the Arbitrator with carbon copies to counsel for all parties, which states in relevant part: Richard: I also had one other request I meant to raise on the phone. Would you mind making a wTitten diselosure of the past relationships you have had with the parties and/or their counsel. I know you have already given an oral disclosure that ineluded (I) you worked in the US Attorney's office during a period of time that overlapped with Kent Alexander's working in the officc and therefore worked with Mr. Alexander, [and] (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.

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(Motion Exhibit B.) Dr. Murtagh's Motion cites the rules of the American Arbitration /\ssociation (AAA) regarding Disclosure (Rule 15) and Disqualification (Rule 16) but appears to contend that the Arbitrator should rule on the Motion in the first instanee.

Emory's Opposition
Emory argues that Dr. Murtagh was aware at the time Mr. Deane was engaged as the Arbitrator that he had served as the U.S. Attorney at the time of at least one of Dr. Murtagh's prior lawsuits against Emory, and attached to its opposition an e-mail exchange between Mr. Deane and Dr. Murtagh's counsel at the time of the engagement. (Opposition Exhibit E.) The Arbitrator stated in an August 4, 2005 e-mail: I will also speak to the issues raised in your prior email regarding my association with any of the parties or issues. 1will include reference to this issue in the letter, but I would like more information about the qui tam that was mentioned. 1 have no recollection of any such and don't know if the matter would have come to my attention or not. Are any of the substantive issues from the qui tam left to be resolved by me or do all of the issues arise out of the settlement? Also, since you are all more familiar than I am with that litigation, do your records indicate that I took any action with regard to the matter or are you[] aware of any such Irom your involvement in that litigation? (Id.) In an August 5, 2005 response, Dr. Murtagh's counsel references a case captioned United Slates ex reI. Diane F. Owen and James J. Murtagh. iI'/. D. v. EmOfY University, N.D.Ga. Case No. I :99-CV-2909 and states that it was the understanding of Dr. Murtagh's counsel that "the qui tam action was resolved at the time the parties entered into thc Settlement Agreement in August 2001 and that the United States had previously declined to intervene." (Id.) Emory also attaches to its opposition the August 12, 2005 engagement letter between the Arbitrator and the parties, in which the Arbitrator made the I()llowing disclosure: Further, in an ef1()rt to assist in determining possible con!1icts, 1 have advised you that 1previously worked in the U.S. attorney's office during a period of time that overlapped with Kent Alexander, the General Counsel at Emory University. You, in tum, have advised me that during my tenure as U.S. Attorney Dr. Murtagh filed

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a qui tarn action. I have no specific recollection of any such action and do not know if! took any action relative to that matter. You have advised that the matter was settled and that notwithstanding the qui tam, you all agree to my service as arbitrator.

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None of you has raised an issue in light of these disclosures, and I am, theref()re, prepared to proceed with this matter. (Opposition Exhibit F.) Emory argues that as a result of these disclosures, Dr. Murtagh was "well aware that Mr. Deane was the U.S. Attorney at the timc of the Kokko Action and the Kokko Action Certification, which was served on his counsel." (Opposition at 8.) Intending to show Dr. Murtagh's prior receipt of these documents, Emory attaches to its Opposition a copy of the certificate of service indicating service of not the certification but of a related Motion to Dismiss filed in the same case by the U.S. Attorney's otlice and served on counsel for Dr. Murtagh on April 10, 1999. (Opposition Exhibit A.) Emory further contends that Dr. Murtagh's Motion is untimely, alleging that Dr. Murtagh received the certification not only when it was executed by Mr. Deane's office in April 2000 but also again when Emory produced a copy of the certification in a January, 2007 production of documents. (Opposition at 8.) Emory argues that even if Dr. Murtagh had not received the certification until September 2007 as allcged in the Motion, Dr. Murtagh still "waited until January 2008, four months after his allegcd 'discovery' of the conflict, to even raise the issue."

1 Defendants the Fulton-Dekalb Hospital Authority and Grady Health Services Company, Inc. filed a Response to Plaintiff Dr. James rv-1urtagh '$ Motion for Recusal of Arbitrator and Disclosure of Intonnation Related to Potential Contlicts on January 25, 2008. In that paper. the Grady Defendants adopt the arguments set fmth by Emory' in their response filed January 23, 2008.

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Dr. Murtagh's Reply On reply Dr. Murtagh refers not only to the certification that was the basis of his prior motion, but also to the motion to dismiss filed by the U.S. Attorney's Office in the same matter. which was attached to Emory's Opposition as Exhibit A. Dr. Murtagh claims that this document [r]eflects that in addition to having filed. in his prior role as United States Attorney, a certification authorizing the United States to defend one or more parties named as defendants by Dr. Murtagh in prior related litigation, the Arbitrator also filed, or approved the filing ot~ a motion to dismiss Dr. Murtagh's claims in that litigation. (Reply at 2.) Dr. Murtagh claims that this motion to dismiss "must have been in the files of the Emory Defendants and their counsel, who unlike Dr. Murtagh's counsel, have not ehanged during the eourse of the litigation in question." (ld. at 3.) Dr. Murtagh argues that because neither the certification nor the motion to dismiss were reterenced in Mr. Deane's disclosure, the disclosure was insufficient. However, citing AAA Rule 16 and the Settlement Agreement that is the basis of the claims in Arbitration, Dr. Murtagh also claims (for the first time on Reply) that "the decision on Dr. Murtagh's Motion to Recuse must be made by the AAA, not the arbitrator." Rule 16 provides that "[u]pon objeetion of a party to the continued serviee of an arbitrator, ... the AAA shall determine whether the arbitrator should be disqualified ... :,2 Discussion The August 10,2001 Settlement Agreement between the Parties (the "Settlement") requires that the arbitration "shall be governed by the United States Arhitration Act, 9 USc. sections 1-16, and judgment upon the award rendered by the arbitrator may be entered by the

2 Emory has refused to submit the arbitration to the ;\AA, and Dr. Murtagh's counsel reports that the AAA \vill not review the matter \vithout the consent of both parties< Because Dr. Murtagh's opening paper clearly sought a decision by the Arbitrator on this issue and that paper has not been withdrawn, and because there appears to be no means f)r obtaining a decision no01 the AAA, the Arbitrator \vil! decide the recusal i\Aotion in the first instance.

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United States District Court for the Northern District of Georgia." (Settlement '113.) The Act itself does not address recusaJ. However, discussion of the circumstances requiring disclosure and disqualification often arises in cases presenting motions for the vacatur of arbitration awards pursuant to 9 U.S.c. 10. Although this Arbitration was never submitted to the AAA, the parties agreed in the Settlement to conduct the Arbitration in conforn1ance with the AAA rules. (See Settlement ~ 13.) The Supreme Court has observed that the AAA rules require an arbitrator to "disclose any circumstances likely to create a presumption of bias or which he believes might disqualify him a an impartial Arbitrator." Commonwealth Coatings CO/po v. ('ontinental Casualty Co., 393 U.S. 145, 149 (1968) (quoting then AAA Rule 18). The current AAA Rule governing disclosures is substantially the same as the one set forth by the Supreme Court in Commonwealth ('oatings: 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 eflect throughout the arbitration. (AAA Rule 15 (emphasis added).) Courts reviewing arbitration results have reached similar conclusions regarding the standards for disclosure of potential connicts of interest. See Power
Services Assoc., Inc. v. [JNC ;\,fetcallServicing, Inc., 338 F. Supp. 2d 1375, 1380 (N.D. Ga. 2004)

(collecting cases). In Power Services, the U.S. District Court for the Northern District of Georgia concluded trom the AAA rules, the Supreme Court's Opinion in Commonwealth
Coatings, and other state cases reviewing arbitration results that the required disclosures are

those that "create an impression, reasonable inference or presumption of bias." Id. Counsel f()r Dr. Murtagh rightly noted during the hearing on this matter that the requirement of impartiality is especially important in Arbitration. The Supreme Court in

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Commonwealth Coatings observed that "we should, if anything, be even more serupulous to
safeguard the impartiality of arbitrators than judges, sinee the former have completely free rein to decide the law as well as the facts and are not subject to appellate review." 393 U.S. at 149. Howevcr, the Arbitrator's possible involvement as U.S. Attorney in Dr. Murtagh's prior lawsuits against Emory was or should have been known by Dr. Murtagh at the time of the Arbitrator's disclosure, and in any event does not fairly create an impression, reasonable inference or presumption of bias. First, the Arbitration record shows that Dr. Murtagh was on notice of the U.S. Attorney's possible involvement in the lawsuits about which Dr. Murtagh now complains. Paragraph 2 of the Settlement identifies a number oflawsuits and other claims, each of which Dr. Murtagh agreed as part of that Settlement to dismiss with prejudice. Among those matters were: [A]n action captioned James J. Murtagh, Jr., M.D. v. Emory University, Manual Martinez-Maldonado. M.D .. Juha P. Kokko, M.D., Ph.D" and Gerald W. Staton, Jr., M.D., filed in the Superior Court of DeKalb County of the State of Georgia on or about August 30, 1999, Civil Action NO. 99-9971-4, which action was removed to the United States District Court for the Northern District of Georgia, Atlanta Division, on or about November 3, 1999, and which is captioned James J. Murtagh, Jr., M.D. v. Emory Universitv, Manual Martinez-Maldonado. M,D., United States of America as partially substituted for Juha P. Kokko. M.D" Ph.D., and Gerald W. Staton, M,D" and Samuel M. Aguavo, M.D" Civil Action No, I:99-CY-2864-A-JEC; an action captioned United States of America ex rei. Diane F. Owen and James J. Murtagh. Jr., M.D. v. Emory University, filed in the United States District Court for the Northern District of Georgia, Atlanta Division, on or about November 9, 1999, Civil Action No. I:99-2909-TWT (the "Qui Tam Action")

(Settlement ,[ 2.eA.) The first of these actions is the case identified in Dr. Murtagh's Motion for Recusal (the "Kokko Matter"). The second of these actions is the qui tam action referenced in Dr. Murtagh's counsel's pre-engagement e-mail. (Opposition Exhibit E.) These aetions appear

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to have been filed or removed within a week of each other in the U.S. Distriet Court !{)r the Northern District of Georgia, and were dearly proseeuted by Dr. Murtagh contemporaneously. Dr. Murtagh does not complain about the Arbitrator's disdosure with regard to the qui
tam action. Rather, he contends that the disdosure in Mr. Deane's engagement letter and in the

e-mail by Emory's counsel was insufficient to put Dr. Murtagh on notice of the U.S. Attorney's action with respect to the Kokko Matter. The Power Services opinion is instructive here. In that case, the arbitrator disdosed that his law firm had a number of current engagements on behalf of the corporate parent of one of the parties to the arbitration as well as a number of other subsidiaries of the corporate parent. 338 F. Supp. 2d at 1377. However, the Power Services arbitrator did not disclose that several decades earlier he had personally represented the corporate parent. Id. at 1378. The losing party in the arbitration asked the district eourt to vacate the award, alleging that the arbitrator failed to disclose that he previously represented the corporate parent an that this failure was materially misleading. Judge Duffey reasoned that "'[i]fa party goes forward with the arbitration, having actual knowledge ... of facts that reasonably should have prompted further, limited iuquiry, it may not later claim bias based upon the failure to disclose such facts,''' 338 F. Supp. 2d at 1381 (quoting JP. Stevens & Co., Inc. v. Rytex Corp., 34 N.Y.2d 123, 129 (N,Y, 1974. There, knowledge of the arbitrator's firm's ongoing relationship with the corporate parent and other subsidiaries put the parties on notice of facts that required further inquiry to prevent waiver of the conflict claim. In the same way, the Arbitrator's disclosure of his Office's possible involvement in the
qui tam case should have prompted further inquiry by Dr. Murtagh, and in the absence of that

inquiry Dr. Murtagh waived the right to later assert the purported conllict that would have been

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discovered by such inquiry3 Indeed, Dr. Murtagh need only have looked at the Settlement Agreement upon whieh his claims in Arbitration were based to realize that the Kokko matter and the qui tam suit were both pending in the Northern District at the same time, thus raising the possibility that the U,S. Attorney may have played a role in both cases. In fact, the U.S. Attorney's Office's involvement in the Kokko matter is all the more apparent since the caption cited in the Settlement agreement clearly indicates that the United States had bccn substitutcd as a party in that casc. (See Settlement ~ 2.e.) Yet this substitution (and the United States' motion to dismiss the lawsuit) is the essence of the activity that Dr. Murtagh now claims gives rise to a potential contlict of interest that requires recusal. 4 As in Power Services, even though information that would have led to this discovery appears to have been at all times available to him, Dr. Murtagh "made no further inquiry and eleeted to proceed with the arbitration in the faee of information suggesting at least an appearance of impartiality on the part of the arbitrator." 338 F. Supp. 2d at 1382. Nor does the timing of Dr. Murtagh's Motion support its credibility. Dr. Murtagh claims he first became aware of the Arbitrator's prior involvement in the Koko matter in September, 2007. Assuming this were true, Dr. Murtagh waited roughly four months to file this Motion, and during that time his counsel appealed to the Arbitrator's authority on a number of oceasions despite Dr. Murtagh's apparent awareness of the faets that are the basis of his Motion. Dr. Murtagh's eounsel sought the authority of the Arbitrator to sehedule depositions (9/18/2007 e3 In an e~mail to counsel for both parties prior to engagement, the Arbitrator asked the parties to look into this issue: "since you are all more familiar than I am with that litigation, do your records indicate that 1 took action with regard to the matter or are you aware of any such from your involvement in that litigation? I would like to have a little more clarification on this point." (8/4/2005 e-mail from R. Deane to T. Duffield, J. Breen, T. Eichelberger et aI., Emory Opp. Ex. E.)

4 During a telephonic hearing on this issue and in his Reply brief, Dr. Murtagh also identif1ed a case Dr. Murtagh filed against the Veterans Administration Medical Center, Civil Action No. I:OO-CV-22! 9. The Arbitrator has not been presented with any evidence indicating that the U.S. Attorney's Office was involved in that litigation or indicating any particular involvement by Mr. Deane.

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mail to the Arbitrator), filed with the Arbitrator an Opposition to Emory's Motion for a Protective Order (9/20/2007), reported to the /\fbitrator certain alleged violations of the Settlement Agreement by Emory after the contempt hearing (10116/2007), and in one of his various e-mail oppositions to Emory's request for a ruling on its Motion for Sanctions argued that certain issues "arc clearly spelled out as the province of the Arbitrator" (12/03/2007 e-mail to the Arbitrator), In a separate December 3, 2007 e-mail to the Arbitrator, Dr. Murtagh's counsel requested an opportunity to file supplemental briefing in opposition to Emory's Motion for Sanctions on the basis that "deposition tcstimony and discovery responscs obtained since the response was tiled [make a] ... a supplemental response [] necessary so that the Arbitrator would be fully informed on all of the material facts and applicable Icgal argument." At no time during any of these communications did Dr. Murtagh's counsel raise any concern about the Arbitrator's "impartiality or independence." And by these requests, Dr. Murtagh implicitly acknowledged the Arbitrator's authority despite his admitted awareness during this time of the facts leading to his January 2008 Motion. Because "we do not want to encourage the losing party to every arbitration to conduct a background investigation of each of the arbitrators in an effort to uneover evidence of a former relationship with the adversary"

tid.

quoting :Herit Ins. Co. v. Lealherby Ins. Co, 714 F.2d 673, 683 (7th Cir. 1983, the Arbitrator finds that the disclosure of the Arbitrator's possible involvement in Dr. Murtagh's qui lam action put Dr. Murtagh on notiee that additional inquiry might be required. Dr. Murtagh's decision to continue the Arbitration despite this disclosure (and for at least four months after learning of thc purported con!1ict about which he now eomplains) effectivcly waived the right to object to the Arbitrator's service on that basis now.

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Moreover, the Arbitrator's personal involvement in these matters was ministerial and insubstantial, and as such, simply docs not "reasonably support an inference of bias." Power
Services, 338 F. Supp. 2d at 1380 (quoting Seligman v. Allstate Ins. Co., 195 Misc. 2d 553, 557,

756 N.Y.S. 2d 403 (N.Y. Sup. Ct. 2003. It is well known that Assistant U.S. Attorneys manage most ofthe Office's thousands of cases on a day-to-day basis. and the Arbitrator has no reason to believe that Dr. Murtagh's lawsuits were any different than the vast majority of eases that are delegated largely to the Assistants. Given the structure and workload of the Office. it is not surprising that the Arbitrator, as U.S. Attorney, had no more than a de minimis involvement in any of the matters Dr. Murtagh has identified, and has no personal recollection of any of them. Indeed, Dr. Murtagh, as the plaintiff in the Kokko matter, was in a much better position than the Arbitrator to be aware of the purported connict at the time the Arbitrator was engaged. Under these circumstances, what Dr. Murtagh describes as a "belated disclosurc" regarding the Koko matter simply "does not provide an inference of impartiality ... [because] lilt was too remote to do so" Power Services, 338 F. Supp. 2d at 1382. Under AAA Rule 15, the Arbitrator's prior, ministerial involvement in Dr. Murtagh's prior lawsuits against Emory in conjunction with the Arbitrator'S duties as U.S. Attorney for the Northern District of Georgia simply does not give rise to a "justifiable doubt as to the Arbitrator's impartiality or independence." This is particularly true since the U.S. Attorney's Office's involvement in the Kokko matter did not even address the merits of Dr. Murtagh's claims. The certification Dr. Murtagh identified in his opening paper indicates only that the Arbitrator reviewed the complaint and that "based on the information now available" one of the named defendants "was acting within the scope of his employment by the United States at the time of the events alleged in the Amendment to the Complaint." (Motion Exhibit A.) Likewise, the Rule 12(b)(l) and (6) motion

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to dismiss Dr. Murtagh identifies in his Reply was based not on the merits of Dr. Murtagh's slander claim against the federal employee but on the procedural "failure to exhaust the jurisdictional prerequisites of [a Federal TOlt Claims Act] action" once the United States was substituted as a delendant, and the "slander exception to the FTCA." (Reply Exhibit at 2.) Thus, the U.S. Attorney's Office took no position on whether Dr. Murtagh's slander claim was supported by the facts. Rather, the Office argued, as a matter of law, that the district court lacked jurisdiction to hear the case because the exhaustion requirements of the FTCA were not met, and that the case should be dismissed because the FTCA expressly excepts intentional torts trom its waiver of sovereign immunity. (See Id.) Any decision on this motion would have assumed the truth of the facts as stated in the Amended complaint, and it is clear that "[a] court's task in ruling on a 12(b)( 6) motion is merely to assess the legal teasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof." Official Cmle.

Ollhe Unsecured Creditors olColor Tile, Inc. v. C'oopers & Lybrand, LL.P., 322 F.3d 147, 158
(2d Cir. 2003). Moreover, the matters about which Dr. Murtagh now complains were resolved entirely by the Settlement, and the substantive issues at stake in these matters are not in any way at issue in the Arbitration. 5 Rather, the claims before the Arbitrator relate to conduct that is allegedly in violation of the Settlement itselt: conduct that by de/tnition could not have occurred until after

5 As Counsel for Dr. Murtagh noted during the hearing, Emory referenced in its Answer and Amended Counterclaims the lawsuits med by Dr. Murtagh against Emory. (Emory Ans. and Am. Counterclaims ~ 20.) However, mere reference to these lawsuits in a section of its Amended Counterclaims entitled "Events Leading to

the Settlement Agreement" does not put the substance of those lawsuits at issue in the Arbitration. As Emory
explained in a footnote to the introductory section 0[11S Amended Counterclaims, "[t]his background information," which included identification of Dr. Murtagh's lawsuits, "is being provided to explain why the confidentiality, nondisparagement, and non-publication provisions are critical components of the Settlement Agreement ..." (/d at 18 & n.2)

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the parties executed the Settlement Agreement and thus could not have occurred until atter the resolution of the litigation on which Dr. Murtagh bases his Motion. Likewise, although merely instructive here, nothing in the disqualification provisions of Georgia's Rules of Judicial Conduct would support a contrary result. Canon 3E of the judicial rules, like AAA Rule 15, finds conl1ict that would require recusal only where ajudge's "impartiality might reasonably be questioned." Canon 3E(l) (emphasis added). As discussed above, the Arbitrator's involvement in the Kokko matter does not give rise to a reasonable inference of bias. The Canon docs enumerate certain specific instances in which recusal is required, but the closest the enumerated instances come to describing tbe events in this case is Canon 3E(l)(b): the judge served as a lawyer in (he matter in controversy, or a lawyer with whom the judge previously practiced law served during such assoeiation as a lawyer concerning the rnatter .... Canon 3E(1 )(b) (emphasis added). However, this Rule is plainly concerned with instances in whieh the judge has served as a lawyer in the same proceeding that later comes before him or her as a judge. As discussed above, the Arbitration does not relate to the claims at issue in the Kokko matter, but rather to alleged violations of the Settlement. The judicial rules plainly could have prohibited judicial service in matters that merely relate to persons or entities that had been parties to proceedings in which the judge had partieipated as an attorney, but neither the spirit nor the leller of the rules require recusal under such circumstanees.

Dr. Murtagh's Alternative Request for Relief

In the alternative to recusal, Dr. Murtagh requests that "at minimum there should be a full disclosure of all potential eonnicts, including the extent of the friendship
~md

past and on-going

relationships between the Arbitrator and Kent /\Iexander, and a full disclosure of any ex parte

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communications bctween Me Alexander and the Arbitrator, and Dr. Murtagh should be allowed discovery on the cvidence Emory possesses regarding any potential conflicts of interest" (Motion at 4.) However, the AAA Rules' requirement that the Arbitrator disclose "any circumstance likely to give rise to justifiable doubt as to the arbitrator's impartiality or independence" continues "in effect throughout the arbitration." (/IJ\A Rule 15(a).) Thus, if there were any circumstance to report under this provision, such would already have been disclosed. Likewise, there has been no evidence presented which would otherwise support Dr. Murtaugh's alternative requests for relief. Conclusion For the foregoing reasons, Dr. Murtagh's Motion for Reeusal is DENIED. Dr. Murtagh's alternative request for relief is likewise DENIED for the reasons set forth above.

Dated: March 13.2008

JONES DAY 1420 Peachtree Street. N.E. Suite 800 Atlanta, GA 30309-3053 Telephone: (404) 521-3939 Facsimile: (404) 521-8330 Neutral Arbitrator

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