Recusal Not Required In Smokers Cases

The Florida Judicial Ethics Advisory Committee has opined on the ethics of a judge handling tobacco-liability litigation where a relative may have a claim.

The facts

The inquiring judge is a circuit judge assigned to the circuit’s civil division that includes presiding over Engle Progeny cases. Engle Progeny lawsuits reference the Florida Supreme Court’s decision in Engle v. Liggett Group, Inc., 945 So. 2d 1246 (Fla. 2006), where the ruling allowed Florida smokers who were members of the class to file lawsuits of his or her own on an individual basis and use the liability findings from the class action trial. “Engle Progeny” lawsuits stem from the Engle case filed in 1994, when six Florida smokers, including Dr. Howard A. Engle, filed a class action suit alleging that members of the class estimated at over 100,000 Florida smokers had been injured by cigarette usage by the tobacco industry.

The inquiring judge learned that in 2008 a late uncle, as the personal representative of the inquiring judge’s grandfather’s estate, filed an Engle Progeny case regarding the grandfather’s death. (Hereinafter, “2008 case.”) The 2008 case was filed within the inquiring judge’s circuit, assigned to another circuit judge and ultimately dismissed as being time-barred in 2016. The inquiring judge was not a beneficiary and there was no recovery by the estate. The inquiring judge was not aware of the case while it was pending, but learned of the family’s 2008 case when it was dismissed in 2016.

In 2014, the inquiring judge presided over one Engle Progeny trial which is final and disposed, and another in 2015 which is currently on appeal. The inquiring judge will preside over a third Engle Progeny case that will be proceeding to trial in 2016. The inquiring judge will be assigned future Engle Progeny cases as part of the assigned case load.

Conclusion

In reviewing this Committee’s prior precedents, this inquiry is the first involving an Engle Progeny case. However, we have addressed and found that neither prospective involvement as a plaintiff in a mortgage foreclosure, nor current involvement as a tenant/defendant in a mortgage foreclosure, mandated recusal by a judge in all cases concerning residential mortgage foreclosures. See Fla. JEAC  Op. 15-14.

Nor was the inquiring judge required to recuse in all cases involving the same lawyers, lenders, or assignees involved in the judge’s residential foreclosure unless the judge determines that the judge had a personal bias or prejudice against the lawyers, lenders, or assignees. In Florida Judicial Advisory Committee Opinion 97-12, the Committee advised that the decision to recuse, from cases involving a lawyer who represented defendants in a case where the judge was a plaintiff, was a “personal and case specific” decision.

Applying the applicable canons and case law to this inquiry, disclosure of the 2008 case would be advised on future Engle Progeny cases assigned to the inquiring judge.

If the same attorney that represented the inquiring judge’s family member’s case appeared before the inquiring judge on an unrelated Engle Progeny case, there could be the appearance of impropriety and the perception of being in a favorable position to influence the inquiring judge contrary to Florida Code of Judicial Conduct, Canon 2B which states a judge shall not “convey or permit others to convey the impression that they are in a special position to influence the judge.” On the other hand, if  the same attorney(s) that represented the tobacco company defendant in the 2008 case also appeared before the inquiring judge on an unrelated Engle Progeny case, there could be the appearance that the attorney(s) could be in an unfavorable position before the inquiring judge.

(Mike Frisch)