The recent California appellate decision in Alper v. Rotella begins by noting that “four business partners had a dispute that ultimately led to a nine-day arbitration hearing. During the hearing, the arbitrator openly took pain medications. After the arbitrator issued a final ruling, the two losing partners filed a petition in the trial court to vacate the arbitration award. They alleged—for the first time—that the arbitrator was ‘unable to properly perceive the evidence or . . . unable to properly conduct the proceeding.’”
With evidence that was, at best, inconclusive as to any impairment–the victors, of course, asserted that “[the arbitrator] interjected with pointed questions, paid full attention, heard and ruled on motions and objections. He held numerous proceedings before, during and after the arbitration, and considered briefings and argument at each stage of the process,” and even the losing party submitted a letter from a physician asserting a professional opinion that “a dose of Percocet, on its own, does not generate sufficient impairment immediately after taking it, in the experienced user”–the court refused to set aside the award.
The court focused on the loser’s full awareness that the arbitrator admittedly and openly was taking pain killers due to a recent injury, and raised no issue of alleged impairment until after receiving an adverse result. Indeed, the victor’s counsel asserted in a declaration that “I spoke to [plaintiffs’] counsel frequently during breaks in the arbitration, and before and after the arbitration itself. We discussed a myriad of topics and issues, ranging from case related to where to have dinner. Never once did Plaintiffs, Mr. Bailey or Mr. Hargan come close to express any concern or observation to me regarding [the arbitrator’s] competency or ability to be impartial. Nor did I ever observe Plaintiffs or their counsel express concern to [the arbitrator] directly or ask him if he was okay.”