Collective Facts Require Disqualification
The Florida First District Court of Appeals granted a writ of prohibition and reversed an order denying judicial disqualification
A party may move to disqualify a trial judge when the “party fears that he or she will not receive a fair trial or hearing because of specifically described prejudice or bias of the judge.” Fla. R. Jud. Admin. 2.330(d)(1). The trial court reviews a motion to disqualify only for legal sufficiency and may not pass on whether the allegations of fact are true. Fla. R. Jud. Admin. 2.330(f). A legally sufficient motion must allege facts that “would place a reasonably prudent person in fear of not receiving a fair and impartial trial.” Livingston v. State, 441 So. 2d 1083, 1087 (Fla. 1983).
In support of their unopposed motion to disqualify, Petitioners alleged the following facts concerning the trial judge’s involvement in the Engel progeny cases brought against Petitioners and/or their successors in interest:
• From as early as 2008 until 2016, before his appointment to the circuit court in 2017, he appeared as counsel of record for plaintiffs in nineteen cases where Petitioners were defendants;
• He served as trial counsel for plaintiffs in five of those cases;
• In one of the cases in which he served as trial counsel, he served as co-counsel with the Wilner firm, a firm representing the Respondent here;
• In one of the cases in which he served as trial counsel, the jury returned a $17 million verdict, including $11 million in punitive damages; and,
• He deposed five corporate representatives of tobacco companies (including representatives of Petitioners and/or their predecessors in interest) for use in Engle progeny trials in Duval County. Given the applicable procedures in Duval County Engle litigation, this raises the possibility that a jury could hear from the trial judge as both presiding judge and an examining lawyer…
We do not determine that the facts alleged in the motion to disqualify individually require disqualification, but viewed collectively, the facts alleged are legally sufficient to create a well-founded fear that Petitioners would not receive a fair and impartial trial.
Hat tip sunEthics. (Mike Frisch)