In Re: Arnold Lincow v. Lincow , 253 F. App'x 243 ( 2007 )

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
11-8-2007
In Re: Arnold Lincow v. Lincow
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-1514
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"In Re: Arnold Lincow v. Lincow" (2007). 2007 Decisions. Paper 240.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 07-1514
___________
IN RE: ARNOLD LINCOW, D.O.;
7622 MEDICAL CENTER,
Petitioners
___________
On Petition for a Writ of Mandamus to the
United States District Court for the
Eastern District of Pennsylvania
(D.C. Civil No. 05-cv-05368)
District Judge: The Honorable Eduardo C. Robreno
___________
Submitted Under Third Circuit LAR 34.1(a)
June 15, 2007
Before: McKEE, STAPLETON, and NYGAARD, Circuit Judges.
(Filed November 8, 2007)
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OPINION OF THE COURT
___________
NYGAARD, Circuit Judge.
Because our opinion is wholly without precedential value, and because the parties
and the District Court are familiar with its operative facts, we offer only an abbreviated
recitation to explain why we will deny Dr. Lincow’s petition for a writ of mandamus.
Plaintiffs State Farm Mutual Automobile Insurance Company and State Farm Fire
and Casualty Company sued Dr. Lincow and several associates for common law fraud,
violations of the Pennsylvania Insurance Fraud Statute, and violations of the Federal
Racketeer Influenced and Corrupt Organizations Act. State Farm alleged that Dr. Lincow
and his associates actively participated in a scheme by which they extracted over $1.4
million from insurers based upon, inter alia, fraudulent medical records, reports,
prescriptions, bills, and referrals.
After several pre-trial conferences, two motions to dismiss, a motion for summary
judgment, and numerous discovery rulings, Dr. Lincow filed a motion requesting that
Judge Robreno recuse himself based on an appearance of bias.1 Dr. Lincow contended
that Judge Robreno expressed an “unfavorable predisposition” against him during
criminal proceedings in 2003. After briefing and oral argument on the matter, Judge
Robreno denied the motion, and denied a motion to stay the proceedings pending the
present petition.
After careful review of the relevant transcripts, we conclude that Judge Robreno
did not abuse his discretion when he refused to recuse himself. His remarks during the
1.
Dr. Lincow did not identify a statutory basis for his claim before the District
Court, but now bases his claim on 28 U.S.C. §455.
2
Hirsh proceedings do not warrant recusal. “[O]pinions formed by the judge on the basis
of facts introduced or events occurring in the course of the current proceedings, or of
prior proceedings, do not constitute a basis for a bias or partiality motion unless they
display a deep-seated favoritism or antagonism that would make fair judgment
impossible.” Liteky v. United States, 510 U.S. 540, 555 (1994). Judge Robreno merely
expressed his opinion that the Government should prosecute physicians, as well as other
individuals who engage in insurance fraud. His comments do not reveal a “deep-seated
antagonism” toward Dr. Lincow specifically, nor do they raise any serious doubts
regarding his impartiality three years later.
We conclude that Judge Robreno did not abuse his discretion in refusing to recuse
himself. Accordingly, we will decline to issue the writ of mandamus.
3