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West Penn Allegheny seeks judge?s removal from lawsuit

Picking up a gauntlet thrown down by a federal judge, West Penn Allegheny Health System has asked a higher court to remove the judge from the antitrust lawsuit it filed against UPMC.

U.S. District Judge Arthur Schwab issued the challenged in February when he halted the case after West Penn suggested in a footnote to a motion that some of the judge's recent decisions had the appearance of bias in favor of UPMC.

The judge told West Penn that the footnote was effectively a motion seeking his removal from the case. He then "denied that ‘motion' and indefinitely stayed the litigation pending review by this court," West Penn says in its March 2 appeal to the 3rd U.S. Circuit Court of Appeals.

Schwab's "actions go well beyond managing the judicial process and ruling on issues raised by the litigants," West Penn said in the appeal. "Instead, the district court independently has raised and addressed issues never placed before it by a party."

West Penn claims in the lawsuit that UPMC has engaged in monopolistic practices to drive it out of business. The lawsuit originally claimed that Highmark Inc. had conspired with UPMC in the monopolistic practices, but West Penn dropped Highmark from the lawsuit after the insurer agreed to buy West Penn for $475 million.

In addition to asking the appeals court to remove Schwab from the case, West Penn is asking the justices to reverse Schwab's Feb. 1 order that the health system has to turn over information about its business operations to UPMC before the judge rules on whether West Penn can file a new complaint that names only UPMC as a defendant.

Schwab and a UPMC spokesman couldn't immediately be reached for comment.

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