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THIS TION IS SET FOR HEARING
ON
‘AT 9:00 A:M. BEFORE JUDGE CANAVAN
—_—
IN THE DISTRICT COURT IN AND FOR POTTAWATOMIE COUNTY
STATE OF OKLAHOMA
GLORIA HINTON, an individual, and
BILL WASHBURN, an individual,
Plaintiffs,
vs.
KENNETH PERRYMAN, an
individual; K & J CONSTRUCTION,
an Oklahoma company; and K & J
SPRAY FOAM; an Oklahoma Cause No. CJ-2015-452
company; RHINO LININGS Judge Canavan
CORPORATION, a California
corporation; UNIFLEX, a business-unit
of THE SHERWIN-WILLIAMS
COMPANY; and THE SHERWIN-
WILLIAMS COMPANY,
Defendants.
MOTION TO DISQUALIFY JUDGE FOR CAUSE
COME NOW Plaintiffs Mr. Bill Washburn and Ms. Gloria Hinton and move this Court to
disqualify the Honorable Chief Judge John G. Canavan pursuant to the Oklahoma Code of
Judicial Conduct and District Court Rule 15, and to transfer this matter to an alternate judge, and
to stay all pending motions, including those which were set for hearing before this Court on
August 31st, on the ground that Judge Canavan's judicial independence and professional
judgment are biased and prejudiced in favor of Defendants and, in support, Plaintiffs allege as
follows:
FACTS
On August 31st, 2020, during a regularly-set hearing, which was being recorded by a
stenographer, Plaintiffs' counsel requested an en camera hearing pursuant to District Court Rule
15,
During the en camera hearing, which was conducted off-record, Plaintiffs’ counsel
Mot to Recuse
-1-moved for Judge Canavan to recuse himself and transfer the matter to an alternate judge due to
apparent conflicts of interest which have prejudiced his judicial independence and professional
judgment for the benefit of Defendants. Defendants objected to his recusal. Judge Canavan
responded by indicating that he needed to consider Plaintiffs' request. Because Plaintiffs’ request
was not satisfactorily resolved at the en camera hearing, Plaintiffs file and deliver this Motion to
Judge Canavan more than ten (10) days prior to trial pursuant to District Court Rule 15.
The most recent evidence of Judge Canavan's apparent conflicts of interest pertain to
Defendants’ current scheduling order, which they presented ex parte to Judge Canavan for his
signature and filing, see Fourth Agreed Amended Scheduling Order, attached hereto as Exhibit
"A." This current scheduling order states that it is "agreed;" however, it obviously lacks
Plaintiffs’ counsel's approval and signature. Therefore, this current scheduling order was
"agreed," ex parte, between Judge Canavan and Defendants' counsel. This current scheduling
order set the dispositive motion deadline and pre-trail conference dates for August Ist, and set
the trail dates in this matter for September 14th through September 25th.
After Judge Canavan signed and filed this current scheduling order, Defendants then filed
another motion to continue the trail to some indefinite date, and to otherwise continue any
deadlines that they choose. Then, Judge Canavan set the August 31st hearing date, and reset the
pretrial conference date, which is now stricken.
Judge Canavan's ex parte promise to Defendants to again extend the current scheduling
order and any other deadlines that they choose became apparent when Defendants’ counsel
offered numerous dates to participate in Plaintiff's expert's trial deposition, and the dates they
offered were dates in which they had set the trial in their current scheduling order, see email
chains attached as Exhibit "B." In addition, Defendants filed a dispositive motion two (2) months
Mot to Recuse
-2-after their August Ist dispositive motion deadline had passed, and set that motion for hearing on
October Ist, a date which is after the trial is currently scheduled to be concluded. Defendants
also filed a second motion, which is also set to be heard after the trial is currently scheduled to be
concluded.
When Plaintiffs' counsel became aware of Defendants having another ex parte
communication with Judge Canavan, this time regarding their current scheduling order,
Plaintiffs' counsel questioned Mr. Bardell, of Defendants’ counsel, by telephone. Of course, Mr.
Bardell denied that any of Defendants’ counsel had participated in an ex parte communication
with Judge Canavan, and explained that Defendants' counsel were relying on a conversation that
he had with the court clerk to set office appointments during the dates when they had set the
matter for trail, and to otherwise ignore the scheduling order and its deadlines.
Then Plaintiffs' counsel questioned Judge Canavan during the August 31st hearing, both
on- and off-the-record, regarding his ex parte promise to Defendants to extend the scheduling
order and deadlines again for Defendants' benefit. Judge Canavan responded by adamantly and
repeatedly denying that the current scheduling order had been change at all, and adamantly and
repeatedly denied that any ex parte communication had taken place between himself and
Defendants counsel.
However, upon being presented with the evidence of Defendants’ counsel setting office
appointments on dates when they had set the matter for trial in their current scheduling order,
and were continuing to file dispositive motions two (2) months after their current dispositive
motion deadline had passed, and were setting matters for hearing on dates after the trail would be
concluded, Judge Canavan admitted that he had "spoken with someone," of Defendants' counsel,
and had authorized extending the scheduling order and deadlines. This admission confirmed that
Mot to Recuse
3-Mr. Bardell's statement that "No one has undertaken another ex parte communication with Judge
Canavan," Ex. "B," was demonstrably false.
ARGUMENTS AND AUTHORITIES
Plaintiffs believe that this example indicates Judge Canavan's violation of numerous
Rules of the Oklahoma Code of Judicial Conduct.
Rule 2.9 prevents a judge from participating in any ex parte communication which
concerns litigation unless the purpose of the communication is for scheduling, administrative, or
emergency purposes; and the communication does not address substantive matters; and the judge
reasonably believes that no party will gain a procedural, substantive, or tactical advantage as a
result of the communication; and the judge promptly notifies the other parties of the substance of
the communication; and the judge gives those parties who were excluded from the
communication an opportunity to respond.
The procedural, substantive, and tactical advantages gained by Defendants from this
example of Judge Canavan's ex parte communication(s) with them benefited them and
prejudiced Plaintiffs. However, this example also represents a pattern of Judge Canavan's
deference of his judicial independence and professional judgment to benefit Defendants.
Other examples exist where Judge Canavan has ratified Defendants’ requests and has has
ratified behavior, including their false statements, refusals to cooperate, and refusals to follow
procedural, discovery and settlement rules. Other examples also exist of Judge Canavan
requiring the parties to comply with scheduling order deadlines when it benefited Defendants,
and then waiving scheduling order deadlines when it benefited them. Other examples also exist
where Defendants’ counsel have submitted ex parte orders for Judge Canavan's signature and
filing as they come in but, when those orders inaccurately reflect hearing results, yet Judge
Mot to Recuse
-4-Canavan has ratified them as Defendants have presented those propose orders. Other examples
exist of Judge Canavan's deference of his judicial independence and professional judgment to
benefit Defendants.
This Motion excludes examples of appealable errors.
Rule 2.11 of the Oklahoma Code of Judicial Conduct requires a judge to disqualify
himself if his impartiality might reasonably be questioned, 5 O.S. § Rule 2.11(A)(1). The
Comment to this Rule requires that "a judge is disqualified whenever the judge's impartiality
might reasonably be questioned," id., Cmt. (1) (emphasis added). In addition, "a judge's
obligation not to hear or decide matters in which disqualification is required applies regardless of
whether a motion to disqualify is filed," id. Cmt. (2).
In summary, Plaintiffs believe that this example of Judge Canavan's ex parte
communication with Defendants, along with his denial and then admission of such
communication, violated the Oklahoma Rules of Judicial Conduct, and this violation is not
excused even if he intended to eventually "formally" grant Defendants’ motion to extend any and
all deadlines that they choose.
WHEREFORE, because grounds exist for Judge Canavan to be disqualified from further
proceedings in this matter pursuant to Oklahoma law, Plaintiffs request that he is disqualified,
and that all pending matters, including the motions that were set for hearing on August 31st, be
stayed until Judge Canavan's disqualification is affirmed.
Respectfully submitted,
Sa
Kirk A. Marshall, OBA# 19345
KIRK MARSHALL, PLLC
kirkmarshall@msn.com
Mot to Recuse304 W. Grand Teton Ct.
Yukon, OK 73099
(405) 706-5641
Attorney for Plaintiffs
CERTIFICATE OF SERVICE VIA U.S. MAIL
I, the undersigned, certify that on this 2nd day of August 2020 that a true and correct
copy of the above and foregoing Motion to Disqualify Judge for Cause was served by United
States first-class mail, postage prepaid thereon to:
Greg S. Keogh, Esq. Alan Bardell, Esq.
Holden Litigation, Holden PC Hayes Magrini & Gatewood
15 East 5th Street, Suite 3900 P.O. Box 60140
Tulsa, OK 74103 Oklahoma City, Oklahoma 73146-0140
Mathew K. Felty, Esq.
Lytle, Soule, & Felty, PC
1200 Robinson Renaissance
119 N. Robinson Avenue
Oklahoma City, Oklahoma 73102
a2
Kirk A. Marshall
Mot to Recuse
-6-STATE OF OKLAHOMA
GLORIA HINTON, an individual, and
BILL WASHBURN, an individual,
Plaintiffs,
Vv.
KENNETH PERRYMAN, an individual;
K & J CONSTRUCTION, an Oklahoma
company; and
K & J SPRAY FOAM, an Oklahoma company;
RHINO LININGS CORPORATION, a California
corporation;
UNIFLEX, a business-unit of THE SHERWIN-
WILLIAMS COMPANY, and
THE SHERWIN-WILLIAMS COMPANY;
BARTT SYDNEY HINTON, an individual;
BRADD ROBERT HINTON, an individual; and
ANY PERSONS WHO MAY CLAIM AN
INTEREST IN THE PROPERTY COMMONLY
KNOWN AS 321 N. HODGE, MAUD,
OKLAHOMA,
Defendants.
eT SS SS SS SSS YS SSL
Case No. CJ-2015-452
Judge Canavan
FOURTH AMENDED AGREED SCHEDULING ORDER
WHEREAS the parties assert that the above-entitled cause is at issue, pursuant to
Rule 5 of the Rules for District Courts of Oklahoma, the Court finds and Orders as follows:
By agreement of the parties, the following deadlines shall apply:
1. Motion to Join Additional Pasties:
2. Motion to Amend Pleadings:
3. Discovery completion date:
4. All dispositive motions to be filed by:
N/A
N/A
August 20, 2020
August 1, 2020
Ev a fu5. Pretrial Conference shall take place: August 20, 2020 at 3:00 PM
6. Jury Trial Date: September 14, 2020 - September 25, 2020
7. Non-Jury Trial Date: N/A
8. Estimated Time of Trial: NA
9. Requested Jury Instructions must be: Time of Jury Selection
10. Proposed Findings of Fact and Conclusions of law: To be determined at Pretrial
11. Mediation to be Completed by: Pretrial Conference
12. Final Witness and Exhibit List: July 3, 2020
13. Medical Examination of Plaintiff: June 12, 2020
a. The Medical Examiner shall submit the report to counsel requesting the
examination, who shall submit a complete copy to all counsel, no later than
A/ tt __, 2020,
14. Trial briefs to be filed by: Pretrial
IT IS ORDERED this 3 da day of March, 2020.
(WU
JUDGE youly G. cA CANAVAN, JR.Dr0ee Y surhine
Steve Holden, OBA #4289
Grace E. Dawkins, OBA #32765
15 East 5" Street, Suite 3900
Tulsa, OK 74103
(918) 295-8888; (918) 295-8889 fax
SteveHolden@HoldenLitivation.com
GraceDawkins@HoldenL itization.com
Attorneys for Defendant,
Rhino Linings Corporation
—
Tue 8/25/2020 4:26 PM
Kirk:
Kirk:
Your understanding is incorrect. No one has “undertaken another ex parte communication” with Judge
Canavan. I’m not sure where you got this information, but | certainly did not say that anyone talked to
Judge Canavan. | guess we'll have to talk about Dr. Bernhoft’s deposition with the court at the hearing
next Monday.
Alan W. Bardell
Hayes Magrini & Gatewood
1220 N. Walker Avenue
Oklahoma City, Oklahoma 73103
Office: (405) 235-9922
Fax: (405) 235-6611
abardell@hmglawyers.com
1 foe "“fiXHAKAKAEA EER MATL, CONFIDENTIALITY #*****# #4 #4 #4
This message is for the intended recipient only, and is protected by attorney-client privileges.
The contents of this e-mail are confidential and proprietary in nature. If you are not the indented
recipient of this message, you are prohibited from disclosing, printing, copying or disseminating
this message. If you receive this message in error, please immediately notify the sender by
return e-mail, delete the message from your system and destroy all copies. Unauthorized
interception of this e-mail is prohibited.
Kirk Marshall
Tue 8/25/2020 3:45 PM
Yes, that is correct and it is my understanding from our conversation that Defendants’ counsel
have undertaken another ex parte communication with Judge Canavan to discuss pushing back
the trail date once again, which explains why Defendants' counsel would curiously offer dates
for Dr. Bernhoft's trial deposition that are during the dates that your prior ex parte scheduling
order with Judge Canavan indicated would be during trial, set for September 14th through the
25th.
Kirk Marshall, PLLC
Attorney-at-law
405-706-5641
304 W. Grand Teton Ct.
Yukon, OK 73099
Alan Bardell
Tue 8/25/2020 3:34 PM
Kirk:
This follows our conversation just now. You advised that you are setting Dr. Bernhoft’s trial deposition
for September 11 over our objection. This date is in conflict with at least two parties’ schedules and all
defendants object to the trial deposition since we have not had a chance to conduct a discovery
deposition.
Alan W. Bardell
Hayes Magrini & Gatewood
1220 N. Walker Avenue
Oklahoma City, Oklahoma 73103
Office: (405) 235-9922
Fax: (405) 235-6611
abardell@hmglawyers.comJRE NATL CONFIDENTIALIT Y*** #***#***###*
This message is for the intended recipient only, and is protected by attorney-client privileges.
The contents of this e-mail are confidential and proprietary in nature. If you are not the indented
recipient of this message, you are prohibited from disclosing, printing, copying or disseminating
this message. If you receive this message in error, please immediately notify the sender by
return e-mail, delete the message from your system and destroy all copies. Unauthorized
interception of this e-mail is prohibited.
Matthew Felty
Tue 8/25/2020 2:54 PM
<__Tean be available 9/16 or 9/17. >
Matthew K. Felty
mkfelty@lytlesoule.com
119 N. Robinson, Suite 1200
Oklahoma City, OK 73102
405-235-7471 | 405-232-3852 (fax)
www.lytlesoule.com
IMPORTANT NOTICE:
E-mail to clients of this firm presumptively contain privileged and confidential information. E-mail to non-clients are presumptively confidential
and may be privileged. The information transmitted is intended only for the person or entity to which it is addressed. Any review,
retransmission, dissemination or other use of this information, directly or indirectly, by persons or entities other than the intended recipient is
prohibited. If you received this in error, please contact the sender and delete the material from all computers in which it resides.
Alan Bardell
Tue 8/25/2020 2:51 PM
All:
As of now, | am available September [1
Alan W. Bardell
Hayes Magrini & Gatewood
1220 N. Walker Avenue
Oklahoma City, Oklahoma 73103
Office: (405) 235-9922
Fax: (405) 235-6611
abardell@hmglawyers.com
HRKKEREEE EE NATL CONFIDENTIALITY ***#**# #4 ###*
This message is for the intended recipient only, and is protected by attorney-client privileges.
The contents of this e-mail are confidential and proprietary in nature. If you are not the indented
recipient of this message, you are prohibited from disclosing, printing, copying or disseminating
this message. If you receive this message in error, please immediately notify the sender byreturn e-mail, delete the message from your system and destroy all copies. Unauthorized
interception of this e-mail is prohibited.
Greg Keogh
Tue 8/25/2020 1:15 PM
Good afternoon Kirk,
lalso have a conflict with September 4, 2020. However, | am available September 11 and| Please
provide alternative dates that work for Dr. Bernhoft.
Greg S. Keogh bio v-card
Attorney, Oklahoma City Office
Holden Litigation, Holden P.c.
Bricktown Central
114 East Sheridan Avenue, Suite 101
Oklahoma City, OK 73104
Phone: 405-813-8888
Fax: 405-813-8889
www.HoldenLitigation.com
Global 1-877-896-8007
TEXAS | OKLAHOMA | MISSOURI | ARKANSAS | KANSAS
From: Kirk Marshall
Sent: Friday, August 21, 2020 7:13 PM
To: Matthew Felty ; Alan Bardell ; Greg Keogh
Cc: Sheri Porter
Subject: Re: Depositions
[EXTERNAL EMAIL] This email originated outside the organization. Do not click any links or
attachments unless you know the sender.
We received no request from Defendants prior to the discovery deadline that Defendants
entered into ex parte with Judge Canavan, to depose any of Plaintiffs' witnesses, except Dr.
Hand. Therefore, Dr. Bernhoft's deposition on September 4th will be a trial deposition.
When Plaintiffs invited Defendants to participate in Dr. Bernhoft's trial deposition, we offered
several dates and then offered alternative dates. Of course, we expect Defendants to object to
every good faith offer that we make with demands and no alternative solutions since that
practice has been so successful throughout this litigation. Therefore, we expect Defendants to
offer no alternative dates to our indication that Thursdays or Fridays are possibilities for Dr.
Bernhoft. Therefore, we have no objection if anyone who has entered their appearance in this
matter on behalf of Defendants refuses to participate.
On a similar note, we suggest that Defendants consider sending a request for production of Ms.
Hinton's trial deposition if Defendants would like to have the opportunity to cross-examine her
before trial. You have also offered nothing as a solution to your refusal to participate in that
matter.Kirk Marshall, PLLC
Attorney-at~law
405-706-5641
From: Matthew Felty
Sent: Friday, August 21, 2020 3:30 PM
To: Kirk Marshall ; Alan Bardell ; Greg Keogh
‘
Cc: Sheri Porter
Subject: RE: Depositions
Counsel:
This will not be a trial deposition, as the Defendants are entitled to conduct a full discovery deposition
prior thereto. Furthermore, | am unavailable on 9/4. Please provide alternative dates.
Matthew K. Fel:
119 N. Robinson, Suite 1200
Oklahoma City, OK 73102
405-235-7471 | 405-232-3852 (fax)
www. lytlesoule.com
IMPORTANT NOTICE:
E-mail to clients of this firm presumptively contain privileged and confidential information. E-mail to non-clients are presumptively confidential
and may be privileged. The information transmitted is intended only for the person or entity to which it is addressed. Any review,
retransmission, dissemination or other use of this information, directly or indirectly, by persons or entities other than the intended recipient is
prohibited. If you received this in error, please contact the sender and delete the material fram all computers in which it resides.
From: Kirk Marshall
Sent: Thursday, August 20, 2020 6:24 PM
To: Alan Bardell ; Matthew Felty ; Greg Keogh
Cc: Sheri Porter
Subject: Re: Depositions
This will be a trail deposition and he is available generally on Thursdays and Fridays. The dates
suggested are not good for me and | won't need a whole day so | am suggesting Friday the 4th
of September.Kirk
From: Kirk Marshall
Sent: Monday, August 10, 2020 6:54 PM
To: Alan Bardell ; mkfelty@lytlesoule.com ;
Greg Keogh .
Cc: Sheri Porter
Subject: Re: Depositions
Counsel,
We are intending to conduct an audio/video trial deposition of Dr. Robin (not Robert) Bernhoft
from his office in Ojai, California, with accompanying audio/video and stenographic recording
on either Thursday or Friday, August 20th or 21st.
Please let me know whether these days are possible for you.
Kirk Marshall, PLLC
Attorney-at-law
405-706-5641
304 1 Tetor
From: Alan Bardell
Sent: Monday, July 20, 2020 5:05 PM
To: mkfelty@lytlesoule.com ; Kirk Marshall ; Greg
Keogh
Cc: Alan Bardell
Subject: Depositions
Counsel,
In reviewing everyone’s witness lists, we have a number of possible depositions remaining. Right now,
we might need to schedule the following individuals for deposition.
Dr. Shawn Roberson, Ph.D.
Jon Shephard
Farheen Khan
Robert Block, Ph.D., P.E.
Mike Berryman
VPwNERichard “Skip” Landes
Kelly Parker, P.E.
Representative of Dirty Deeds
. Dr. William Michael Clark
10. Dr. Robert A. Bernhoft
LPA2ND
If you guys have additional witnesses, let me know. | have concerns about being able to do all of these
depositions (if necessary) by the discovery cutoff. Please provide your thoughts. Thank you.
Alan W. Bardell
Hayes Magrini & Gatewood
1220 N. Walker Avenue
Oklahoma City, Oklahoma 73103
Office: (405) 235-9922
Fax: (405) 235-6611
abardell@hmglawyers.com
FRR AAEAR NAATT, CONFIDENTIALITY ***#**######*
This message is for the intended recipient only, and is protected by attorney-client privileges.
The contents of this e-mail are confidential and proprietary in nature. If you are not the indented
recipient of this message, you are prohibited from disclosing, printing, copying or disseminating
this message. If you receive this message in error, please immediately notify the sender by
return e-mail, delete the message from your system and destroy all copies. Unauthorized
interception of this e-mail is prohibited.
Preview
THIS TION IS SET FOR HEARING ON ‘AT 9:00 A:M. BEFORE JUDGE CANAVAN —_— IN THE DISTRICT COURT IN AND FOR POTTAWATOMIE COUNTY STATE OF OKLAHOMA GLORIA HINTON, an individual, and BILL WASHBURN, an individual, Plaintiffs, vs. KENNETH PERRYMAN, an individual; K & J CONSTRUCTION, an Oklahoma company; and K & J SPRAY FOAM; an Oklahoma Cause No. CJ-2015-452 company; RHINO LININGS Judge Canavan CORPORATION, a California corporation; UNIFLEX, a business-unit of THE SHERWIN-WILLIAMS COMPANY; and THE SHERWIN- WILLIAMS COMPANY, Defendants. MOTION TO DISQUALIFY JUDGE FOR CAUSE COME NOW Plaintiffs Mr. Bill Washburn and Ms. Gloria Hinton and move this Court to disqualify the Honorable Chief Judge John G. Canavan pursuant to the Oklahoma Code of Judicial Conduct and District Court Rule 15, and to transfer this matter to an alternate judge, and to stay all pending motions, including those which were set for hearing before this Court on August 31st, on the ground that Judge Canavan's judicial independence and professional judgment are biased and prejudiced in favor of Defendants and, in support, Plaintiffs allege as follows: FACTS On August 31st, 2020, during a regularly-set hearing, which was being recorded by a stenographer, Plaintiffs' counsel requested an en camera hearing pursuant to District Court Rule 15, During the en camera hearing, which was conducted off-record, Plaintiffs’ counsel Mot to Recuse -1-moved for Judge Canavan to recuse himself and transfer the matter to an alternate judge due to apparent conflicts of interest which have prejudiced his judicial independence and professional judgment for the benefit of Defendants. Defendants objected to his recusal. Judge Canavan responded by indicating that he needed to consider Plaintiffs' request. Because Plaintiffs’ request was not satisfactorily resolved at the en camera hearing, Plaintiffs file and deliver this Motion to Judge Canavan more than ten (10) days prior to trial pursuant to District Court Rule 15. The most recent evidence of Judge Canavan's apparent conflicts of interest pertain to Defendants’ current scheduling order, which they presented ex parte to Judge Canavan for his signature and filing, see Fourth Agreed Amended Scheduling Order, attached hereto as Exhibit "A." This current scheduling order states that it is "agreed;" however, it obviously lacks Plaintiffs’ counsel's approval and signature. Therefore, this current scheduling order was "agreed," ex parte, between Judge Canavan and Defendants' counsel. This current scheduling order set the dispositive motion deadline and pre-trail conference dates for August Ist, and set the trail dates in this matter for September 14th through September 25th. After Judge Canavan signed and filed this current scheduling order, Defendants then filed another motion to continue the trail to some indefinite date, and to otherwise continue any deadlines that they choose. Then, Judge Canavan set the August 31st hearing date, and reset the pretrial conference date, which is now stricken. Judge Canavan's ex parte promise to Defendants to again extend the current scheduling order and any other deadlines that they choose became apparent when Defendants’ counsel offered numerous dates to participate in Plaintiff's expert's trial deposition, and the dates they offered were dates in which they had set the trial in their current scheduling order, see email chains attached as Exhibit "B." In addition, Defendants filed a dispositive motion two (2) months Mot to Recuse -2-after their August Ist dispositive motion deadline had passed, and set that motion for hearing on October Ist, a date which is after the trial is currently scheduled to be concluded. Defendants also filed a second motion, which is also set to be heard after the trial is currently scheduled to be concluded. When Plaintiffs' counsel became aware of Defendants having another ex parte communication with Judge Canavan, this time regarding their current scheduling order, Plaintiffs' counsel questioned Mr. Bardell, of Defendants’ counsel, by telephone. Of course, Mr. Bardell denied that any of Defendants’ counsel had participated in an ex parte communication with Judge Canavan, and explained that Defendants' counsel were relying on a conversation that he had with the court clerk to set office appointments during the dates when they had set the matter for trail, and to otherwise ignore the scheduling order and its deadlines. Then Plaintiffs' counsel questioned Judge Canavan during the August 31st hearing, both on- and off-the-record, regarding his ex parte promise to Defendants to extend the scheduling order and deadlines again for Defendants' benefit. Judge Canavan responded by adamantly and repeatedly denying that the current scheduling order had been change at all, and adamantly and repeatedly denied that any ex parte communication had taken place between himself and Defendants counsel. However, upon being presented with the evidence of Defendants’ counsel setting office appointments on dates when they had set the matter for trial in their current scheduling order, and were continuing to file dispositive motions two (2) months after their current dispositive motion deadline had passed, and were setting matters for hearing on dates after the trail would be concluded, Judge Canavan admitted that he had "spoken with someone," of Defendants' counsel, and had authorized extending the scheduling order and deadlines. This admission confirmed that Mot to Recuse 3-Mr. Bardell's statement that "No one has undertaken another ex parte communication with Judge Canavan," Ex. "B," was demonstrably false. ARGUMENTS AND AUTHORITIES Plaintiffs believe that this example indicates Judge Canavan's violation of numerous Rules of the Oklahoma Code of Judicial Conduct. Rule 2.9 prevents a judge from participating in any ex parte communication which concerns litigation unless the purpose of the communication is for scheduling, administrative, or emergency purposes; and the communication does not address substantive matters; and the judge reasonably believes that no party will gain a procedural, substantive, or tactical advantage as a result of the communication; and the judge promptly notifies the other parties of the substance of the communication; and the judge gives those parties who were excluded from the communication an opportunity to respond. The procedural, substantive, and tactical advantages gained by Defendants from this example of Judge Canavan's ex parte communication(s) with them benefited them and prejudiced Plaintiffs. However, this example also represents a pattern of Judge Canavan's deference of his judicial independence and professional judgment to benefit Defendants. Other examples exist where Judge Canavan has ratified Defendants’ requests and has has ratified behavior, including their false statements, refusals to cooperate, and refusals to follow procedural, discovery and settlement rules. Other examples also exist of Judge Canavan requiring the parties to comply with scheduling order deadlines when it benefited Defendants, and then waiving scheduling order deadlines when it benefited them. Other examples also exist where Defendants’ counsel have submitted ex parte orders for Judge Canavan's signature and filing as they come in but, when those orders inaccurately reflect hearing results, yet Judge Mot to Recuse -4-Canavan has ratified them as Defendants have presented those propose orders. Other examples exist of Judge Canavan's deference of his judicial independence and professional judgment to benefit Defendants. This Motion excludes examples of appealable errors. Rule 2.11 of the Oklahoma Code of Judicial Conduct requires a judge to disqualify himself if his impartiality might reasonably be questioned, 5 O.S. § Rule 2.11(A)(1). The Comment to this Rule requires that "a judge is disqualified whenever the judge's impartiality might reasonably be questioned," id., Cmt. (1) (emphasis added). In addition, "a judge's obligation not to hear or decide matters in which disqualification is required applies regardless of whether a motion to disqualify is filed," id. Cmt. (2). In summary, Plaintiffs believe that this example of Judge Canavan's ex parte communication with Defendants, along with his denial and then admission of such communication, violated the Oklahoma Rules of Judicial Conduct, and this violation is not excused even if he intended to eventually "formally" grant Defendants’ motion to extend any and all deadlines that they choose. WHEREFORE, because grounds exist for Judge Canavan to be disqualified from further proceedings in this matter pursuant to Oklahoma law, Plaintiffs request that he is disqualified, and that all pending matters, including the motions that were set for hearing on August 31st, be stayed until Judge Canavan's disqualification is affirmed. Respectfully submitted, Sa Kirk A. Marshall, OBA# 19345 KIRK MARSHALL, PLLC kirkmarshall@msn.com Mot to Recuse304 W. Grand Teton Ct. Yukon, OK 73099 (405) 706-5641 Attorney for Plaintiffs CERTIFICATE OF SERVICE VIA U.S. MAIL I, the undersigned, certify that on this 2nd day of August 2020 that a true and correct copy of the above and foregoing Motion to Disqualify Judge for Cause was served by United States first-class mail, postage prepaid thereon to: Greg S. Keogh, Esq. Alan Bardell, Esq. Holden Litigation, Holden PC Hayes Magrini & Gatewood 15 East 5th Street, Suite 3900 P.O. Box 60140 Tulsa, OK 74103 Oklahoma City, Oklahoma 73146-0140 Mathew K. Felty, Esq. Lytle, Soule, & Felty, PC 1200 Robinson Renaissance 119 N. Robinson Avenue Oklahoma City, Oklahoma 73102 a2 Kirk A. Marshall Mot to Recuse -6-STATE OF OKLAHOMA GLORIA HINTON, an individual, and BILL WASHBURN, an individual, Plaintiffs, Vv. KENNETH PERRYMAN, an individual; K & J CONSTRUCTION, an Oklahoma company; and K & J SPRAY FOAM, an Oklahoma company; RHINO LININGS CORPORATION, a California corporation; UNIFLEX, a business-unit of THE SHERWIN- WILLIAMS COMPANY, and THE SHERWIN-WILLIAMS COMPANY; BARTT SYDNEY HINTON, an individual; BRADD ROBERT HINTON, an individual; and ANY PERSONS WHO MAY CLAIM AN INTEREST IN THE PROPERTY COMMONLY KNOWN AS 321 N. HODGE, MAUD, OKLAHOMA, Defendants. eT SS SS SS SSS YS SSL Case No. CJ-2015-452 Judge Canavan FOURTH AMENDED AGREED SCHEDULING ORDER WHEREAS the parties assert that the above-entitled cause is at issue, pursuant to Rule 5 of the Rules for District Courts of Oklahoma, the Court finds and Orders as follows: By agreement of the parties, the following deadlines shall apply: 1. Motion to Join Additional Pasties: 2. Motion to Amend Pleadings: 3. Discovery completion date: 4. All dispositive motions to be filed by: N/A N/A August 20, 2020 August 1, 2020 Ev a fu5. Pretrial Conference shall take place: August 20, 2020 at 3:00 PM 6. Jury Trial Date: September 14, 2020 - September 25, 2020 7. Non-Jury Trial Date: N/A 8. Estimated Time of Trial: NA 9. Requested Jury Instructions must be: Time of Jury Selection 10. Proposed Findings of Fact and Conclusions of law: To be determined at Pretrial 11. Mediation to be Completed by: Pretrial Conference 12. Final Witness and Exhibit List: July 3, 2020 13. Medical Examination of Plaintiff: June 12, 2020 a. The Medical Examiner shall submit the report to counsel requesting the examination, who shall submit a complete copy to all counsel, no later than A/ tt __, 2020, 14. Trial briefs to be filed by: Pretrial IT IS ORDERED this 3 da day of March, 2020. (WU JUDGE youly G. cA CANAVAN, JR.Dr0ee Y surhine Steve Holden, OBA #4289 Grace E. Dawkins, OBA #32765 15 East 5" Street, Suite 3900 Tulsa, OK 74103 (918) 295-8888; (918) 295-8889 fax SteveHolden@HoldenLitivation.com GraceDawkins@HoldenL itization.com Attorneys for Defendant, Rhino Linings Corporation — Tue 8/25/2020 4:26 PM Kirk: Kirk: Your understanding is incorrect. No one has “undertaken another ex parte communication” with Judge Canavan. I’m not sure where you got this information, but | certainly did not say that anyone talked to Judge Canavan. | guess we'll have to talk about Dr. Bernhoft’s deposition with the court at the hearing next Monday. Alan W. Bardell Hayes Magrini & Gatewood 1220 N. Walker Avenue Oklahoma City, Oklahoma 73103 Office: (405) 235-9922 Fax: (405) 235-6611 abardell@hmglawyers.com 1 foe "“fiXHAKAKAEA EER MATL, CONFIDENTIALITY #*****# #4 #4 #4 This message is for the intended recipient only, and is protected by attorney-client privileges. The contents of this e-mail are confidential and proprietary in nature. If you are not the indented recipient of this message, you are prohibited from disclosing, printing, copying or disseminating this message. If you receive this message in error, please immediately notify the sender by return e-mail, delete the message from your system and destroy all copies. Unauthorized interception of this e-mail is prohibited. Kirk Marshall Tue 8/25/2020 3:45 PM Yes, that is correct and it is my understanding from our conversation that Defendants’ counsel have undertaken another ex parte communication with Judge Canavan to discuss pushing back the trail date once again, which explains why Defendants' counsel would curiously offer dates for Dr. Bernhoft's trial deposition that are during the dates that your prior ex parte scheduling order with Judge Canavan indicated would be during trial, set for September 14th through the 25th. Kirk Marshall, PLLC Attorney-at-law 405-706-5641 304 W. Grand Teton Ct. Yukon, OK 73099 Alan Bardell Tue 8/25/2020 3:34 PM Kirk: This follows our conversation just now. You advised that you are setting Dr. Bernhoft’s trial deposition for September 11 over our objection. This date is in conflict with at least two parties’ schedules and all defendants object to the trial deposition since we have not had a chance to conduct a discovery deposition. Alan W. Bardell Hayes Magrini & Gatewood 1220 N. Walker Avenue Oklahoma City, Oklahoma 73103 Office: (405) 235-9922 Fax: (405) 235-6611 abardell@hmglawyers.comJRE NATL CONFIDENTIALIT Y*** #***#***###* This message is for the intended recipient only, and is protected by attorney-client privileges. The contents of this e-mail are confidential and proprietary in nature. If you are not the indented recipient of this message, you are prohibited from disclosing, printing, copying or disseminating this message. If you receive this message in error, please immediately notify the sender by return e-mail, delete the message from your system and destroy all copies. Unauthorized interception of this e-mail is prohibited. Matthew Felty Tue 8/25/2020 2:54 PM <__Tean be available 9/16 or 9/17. > Matthew K. Felty mkfelty@lytlesoule.com 119 N. Robinson, Suite 1200 Oklahoma City, OK 73102 405-235-7471 | 405-232-3852 (fax) www.lytlesoule.com IMPORTANT NOTICE: E-mail to clients of this firm presumptively contain privileged and confidential information. E-mail to non-clients are presumptively confidential and may be privileged. The information transmitted is intended only for the person or entity to which it is addressed. Any review, retransmission, dissemination or other use of this information, directly or indirectly, by persons or entities other than the intended recipient is prohibited. If you received this in error, please contact the sender and delete the material from all computers in which it resides. Alan Bardell Tue 8/25/2020 2:51 PM All: As of now, | am available September [1 Alan W. Bardell Hayes Magrini & Gatewood 1220 N. Walker Avenue Oklahoma City, Oklahoma 73103 Office: (405) 235-9922 Fax: (405) 235-6611 abardell@hmglawyers.com HRKKEREEE EE NATL CONFIDENTIALITY ***#**# #4 ###* This message is for the intended recipient only, and is protected by attorney-client privileges. The contents of this e-mail are confidential and proprietary in nature. If you are not the indented recipient of this message, you are prohibited from disclosing, printing, copying or disseminating this message. If you receive this message in error, please immediately notify the sender byreturn e-mail, delete the message from your system and destroy all copies. Unauthorized interception of this e-mail is prohibited. Greg Keogh Tue 8/25/2020 1:15 PM Good afternoon Kirk, lalso have a conflict with September 4, 2020. However, | am available September 11 and| Please provide alternative dates that work for Dr. Bernhoft. Greg S. Keogh bio v-card Attorney, Oklahoma City Office Holden Litigation, Holden P.c. Bricktown Central 114 East Sheridan Avenue, Suite 101 Oklahoma City, OK 73104 Phone: 405-813-8888 Fax: 405-813-8889 www.HoldenLitigation.com Global 1-877-896-8007 TEXAS | OKLAHOMA | MISSOURI | ARKANSAS | KANSAS From: Kirk Marshall Sent: Friday, August 21, 2020 7:13 PM To: Matthew Felty ; Alan Bardell ; Greg Keogh Cc: Sheri Porter Subject: Re: Depositions [EXTERNAL EMAIL] This email originated outside the organization. Do not click any links or attachments unless you know the sender. We received no request from Defendants prior to the discovery deadline that Defendants entered into ex parte with Judge Canavan, to depose any of Plaintiffs' witnesses, except Dr. Hand. Therefore, Dr. Bernhoft's deposition on September 4th will be a trial deposition. When Plaintiffs invited Defendants to participate in Dr. Bernhoft's trial deposition, we offered several dates and then offered alternative dates. Of course, we expect Defendants to object to every good faith offer that we make with demands and no alternative solutions since that practice has been so successful throughout this litigation. Therefore, we expect Defendants to offer no alternative dates to our indication that Thursdays or Fridays are possibilities for Dr. Bernhoft. Therefore, we have no objection if anyone who has entered their appearance in this matter on behalf of Defendants refuses to participate. On a similar note, we suggest that Defendants consider sending a request for production of Ms. Hinton's trial deposition if Defendants would like to have the opportunity to cross-examine her before trial. You have also offered nothing as a solution to your refusal to participate in that matter.Kirk Marshall, PLLC Attorney-at~law 405-706-5641 From: Matthew Felty Sent: Friday, August 21, 2020 3:30 PM To: Kirk Marshall ; Alan Bardell ; Greg Keogh ‘ Cc: Sheri Porter Subject: RE: Depositions Counsel: This will not be a trial deposition, as the Defendants are entitled to conduct a full discovery deposition prior thereto. Furthermore, | am unavailable on 9/4. Please provide alternative dates. Matthew K. Fel: 119 N. Robinson, Suite 1200 Oklahoma City, OK 73102 405-235-7471 | 405-232-3852 (fax) www. lytlesoule.com IMPORTANT NOTICE: E-mail to clients of this firm presumptively contain privileged and confidential information. E-mail to non-clients are presumptively confidential and may be privileged. The information transmitted is intended only for the person or entity to which it is addressed. Any review, retransmission, dissemination or other use of this information, directly or indirectly, by persons or entities other than the intended recipient is prohibited. If you received this in error, please contact the sender and delete the material fram all computers in which it resides. From: Kirk Marshall Sent: Thursday, August 20, 2020 6:24 PM To: Alan Bardell ; Matthew Felty ; Greg Keogh Cc: Sheri Porter Subject: Re: Depositions This will be a trail deposition and he is available generally on Thursdays and Fridays. The dates suggested are not good for me and | won't need a whole day so | am suggesting Friday the 4th of September.Kirk From: Kirk Marshall Sent: Monday, August 10, 2020 6:54 PM To: Alan Bardell ; mkfelty@lytlesoule.com ; Greg Keogh . Cc: Sheri Porter Subject: Re: Depositions Counsel, We are intending to conduct an audio/video trial deposition of Dr. Robin (not Robert) Bernhoft from his office in Ojai, California, with accompanying audio/video and stenographic recording on either Thursday or Friday, August 20th or 21st. Please let me know whether these days are possible for you. Kirk Marshall, PLLC Attorney-at-law 405-706-5641 304 1 Tetor From: Alan Bardell Sent: Monday, July 20, 2020 5:05 PM To: mkfelty@lytlesoule.com ; Kirk Marshall ; Greg Keogh Cc: Alan Bardell Subject: Depositions Counsel, In reviewing everyone’s witness lists, we have a number of possible depositions remaining. Right now, we might need to schedule the following individuals for deposition. Dr. Shawn Roberson, Ph.D. Jon Shephard Farheen Khan Robert Block, Ph.D., P.E. Mike Berryman VPwNERichard “Skip” Landes Kelly Parker, P.E. Representative of Dirty Deeds . Dr. William Michael Clark 10. Dr. Robert A. Bernhoft LPA2ND If you guys have additional witnesses, let me know. | have concerns about being able to do all of these depositions (if necessary) by the discovery cutoff. Please provide your thoughts. Thank you. Alan W. Bardell Hayes Magrini & Gatewood 1220 N. Walker Avenue Oklahoma City, Oklahoma 73103 Office: (405) 235-9922 Fax: (405) 235-6611 abardell@hmglawyers.com FRR AAEAR NAATT, CONFIDENTIALITY ***#**######* This message is for the intended recipient only, and is protected by attorney-client privileges. The contents of this e-mail are confidential and proprietary in nature. If you are not the indented recipient of this message, you are prohibited from disclosing, printing, copying or disseminating this message. If you receive this message in error, please immediately notify the sender by return e-mail, delete the message from your system and destroy all copies. Unauthorized interception of this e-mail is prohibited.