R.J. Reynolds Tobacco Co. v. Morales , 237 So. 3d 1093 ( 2017 )

Third District Court of Appeal
State of Florida
Opinion filed December 27, 2017.
Not final until disposition of timely filed motion for rehearing.
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No. 3D17-2093
Lower Tribunal No. 07-16277
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R. J. Reynolds Tobacco Company,
Petitioner,
vs.
Barbara Morales,
Respondent.
On Petition for Writ of Certiorari from the Circuit Court for Miami-Dade
County, Bronwyn Miller, Judge.
King & Spalding LLP, and William L. Durham II (Atlanta, GA); Scott
Michael Edson (Washington, D.C.); Carlton Fields Jorden Burt, P.A., and
Benjamine Reid, Jeffrey A. Cohen, and Douglas J. Chumbley, for petitioner.
Gerson & Schwartz, P.A., and Philip M. Gerson, for respondent.
Before SUAREZ, LOGUE, and LINDSEY, JJ.
LOGUE, J.
R.J. Reynolds Tobacco Company seeks a writ of certiorari quashing an order
in which the trial court rescinded its prior order allowing R.J. Reynolds to
substitute Dr. Felix Torres for Dr. Myrna Bobet as its addiction expert in a new
trial. The issue is whether this order is justified in light of the misconduct of the
lawyer for R.J. Reynolds at the deposition of Dr. Torres. We find no error in the
trial court’s decision warranting certiorari and deny the petition.
Dr. Bobet was listed and testified as R.J. Reynolds’s expert at the first trial
of this matter. Following a mistrial for an unrelated reason, R.J. Reynolds moved
the court to make the substitution because Dr. Bobet appeared at trial by videotape
and was unable to appear in person, and R.J. Reynolds believed its relationship
with Dr. Torres was such that he was more likely to appear at the new trial in
person. R.J. Reynolds represented that Dr. Torres would testify to the same
opinions offered by Dr. Bobet. The trial court granted the substitution but ordered
R.J. Reynolds to assume the costs of Dr. Torres’s deposition.
After Dr. Torres’s telephonic deposition, the plaintiff below, Barbara
Morales, moved to strike Dr. Torres as a witness due to R.J. Reynolds’s
misconduct during the deposition. In a meticulously detailed 42-page opinion
which quotes extensively from the deposition, the trial court rescinded its prior
order as a sanction for abusive discovery tactics.
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Although the transcript of the deposition runs for only 232 pages, the trial
court found that R.J. Reynolds’s attorney made speaking objections or otherwise
tried to influence Dr. Torres’s testimony “on at least two hundred and thirty-five
[235] occasions.” Even after being warned by plaintiff’s counsel, “if you coach the
witness one more time I’m going to terminate the deposition and ask for relief,”
R.J. Reynolds’s attorney continued to make speaking objections which appeared to
be intended to steer Dr. Torres.
In fact, one-third of the way through the deposition, plaintiff’s counsel, in
apparent frustration, asked Dr. Torres whether he understood that the objections
made by counsel for R.J. Reynolds were not intended to influence his answers to
questions. R.J. Reynolds’s attorney objected even to this question.
What is more, R.J. Reynolds’s attorney then proceeded to openly coach Dr.
Torres to consider her objections when framing answers to questions: “If I’m
objecting to the form of the question, that means I think there’s something wrong
with the form of the question. So he [Dr. Torres] can ask you [plaintiff’s counsel]
to clarify it if he believes that there is something that he needs clarification for.”
R.J. Reynolds’s lawyer continued, “So, I don’t think you can just say that Dr.
Torres should just ignore, you know objections and go ahead and answer the
questions since I’m objecting that there’s something wrong with your question.”
And thereafter Dr. Torres appears to have dutifully responded to speaking
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objections by asking for clarification or making evasive answers, even when the
questions were fairly straightforward such as, “Dr. Torres, are there any benefits to
a smoker from smoking cigarettes?”
Finally, counsel for R.J. Reynolds repeatedly instructed Dr. Torres to not
answer questions. RJ Reynolds’s attorney instructed Dr. Torres not to answer why
he made changes to his notes that were produced to the opposing side. She also
instructed him not to answer questions like the following:
 Well, when you see your patients, don’t you conduct an
examination?
 Does conducting a clinical examination assist you in
formulating an opinion about whether or not a patient is
addicted?
 Is it your opinion that a clinical examination of Barbara
Morales by you was unnecessary in this case for you to
formulate a reliable opinion?
 So you believe that there’s no need or benefit to you as a
clinician in formulating your opinion to actually examine
Ms. Morales?
The plaintiff’s counsel admonished R.J. Reynolds’s counsel, “let me just
say one more thing on this subject and all of the other instructions you’ve given the
witness not to answer. And that is that I intend to move to strike the witness from
testifying in this trial based on this. So I am asking you one final time to please
consider that.” Heedless of the warning, R.J. Reynolds’s counsel continued to
instruct the witness not to answer. The instruction to Dr. Torres to not answer these
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questions was a violation of Florida Rules of Civil Procedure 1.310(c) which
provides “a party may instruct a deponent not to answer only when necessary to
preserve a privilege, to enforce a limitation on evidence directed by the court, or to
present a motion under [Rule 1.310] subdivision (d).”
Citing to the continuous speaking objections, the on-the-record coaching of
the witness, and the improper instructions to not answer, the trial court expressly
found that R.J. Reynolds’s counsel “engaged in a willful design to obstruct
discovery and influence the testimony of the expert.”
R.J. Reynolds responds in part to Morales’s petition by pointing out
instances where the plaintiff’s attorney may also have acted improperly, including
his statement to R.J. Reynolds’s counsel towards the end of the deposition: “I’m
not going to argue with you, young lady.” After R.J. Reynolds’s counsel
reprimanded him, the plaintiff’s counsel responded, “Please, just let the witness
answer the questions then.”
Whether a momentary lapse or a conscious attempt to demean and
intimidate, the plaintiff’s attorney’s reference to opposing counsel’s age and
gender was clearly unprofessional. It does not, however, excuse the conduct of R.J.
Reynolds’s lawyer. As we have done in the past, we decline to adopt the practice
of allowing one party’s misconduct to wipe the slate clean of the other party’s
misconduct:
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In our view, it is no longer—if it ever was—acceptable
for the judiciary to act simply as a fight promoter, who
supplies an arena in which parties may fight it out on
unseemly terms of their own choosing, and then, on the
ground that the loser has asked for what he received,
obediently raise the hand of the one who emerges
victorious. We demean ourselves and the system of
justice we serve when we permit this to occur.
Borden, Inc. v. Young, 479 So. 2d 850, 851–52 (Fla. 3d DCA 1985) (refusing to
hold that one party’s unprofessional conduct excused the other party’s
unprofessional conduct).
Certiorari is an extraordinary writ. “To support a writ of certiorari, the
petitioner must demonstrate that the challenged non-final order (1) departs from
the essential requirements of law, (2) results in material injury for the remainder of
the case, and (3) such injury is incapable of correction on postjudgment appeal.”
Sea Coast Fire, Inc. v. Triangle Fire, Inc., 170 So. 3d 804, 807 (Fla. 3d DCA
2014). Moreover, “[t]he required ‘departure from the essential requirements of
law’ means something far beyond legal error. It means an inherent illegality or
irregularity, an abuse of judicial power, an act of judicial tyranny perpetrated with
disregard of procedural requirements, resulting in a gross miscarriage of justice.”
Chessler v. All Am. Semiconductor, Inc., 225 So. 3d 849, 852 (Fla. 3d DCA 2016)
(quoting Jones v. State, 477 So. 2d 566, 569 (Fla. 1985) (Boyd, C.J., concurring
specially)). Given the trial court’s well-reasoned and meticulously documented
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order, and our own review of Dr. Torres’s deposition, we fail to find the type of
essential illegality and gross miscarriage of justice that is the focus of certiorari.
Certiorari denied.
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