R. J. Reynolds Tobacco Company and Philip Morris USA Inc. v. Guy Cuddihee, as Personal Representative of the Estate of Gil Cuddihee

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D19-0385
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R. J. REYNOLDS TOBACCO
COMPANY and PHILIP MORRIS
USA INC.,

Petitioners,

v.

GUY CUDDIHEE, as Personal
Representative of the Estate of
Gil Cuddihee, Deceased,

Respondent.
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Petition for Writ of Prohibition—Original Jurisdiction.

May 6, 2019

PER CURIAM.

R. J. Reynolds Tobacco Company and Philip Morris USA, Inc.
seek a writ of prohibition following an order denying their motion
to disqualify the trial judge from presiding over an Engle 1 progeny
trial. Because the motion to disqualify was legally sufficient, we
grant the petition.

1 Engle v. Liggett Grp., Inc., 945 So. 2d 1246 (Fla. 2006).
 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 2 motion to disqualify,
Petitioners alleged the following facts concerning the trial judge’s
involvement in Engle progeny cases brought against Petitioners
and/or their predecessors 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

2 Respondents did not oppose the motion to disqualify, but in
their response to the petition for the writ of prohibition, argue that
disqualification was not required.

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 that a jury could hear from the trial judge as both presiding
judge and an examining lawyer.

The alleged facts, which we must take as true, demonstrate
the trial judge’s recent and extensive involvement in Engle
progeny actions against Petitioners and/or their successors,
including his role in developing evidence for use in Duval County
Engle trials like the one here. 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. See Fla. R. Jud.
Admin. 2.330(d); Port Everglades Pilots Ass’n v. Florida-Caribbean
Cruise Ass’n, 170 So. 3d 952, 955 (Fla. 1st DCA 2015). We,
therefore, grant the petition, but withhold formal issuance of the
writ, confident that the judge will promptly issue an order of
disqualification. We quash the order denying the motion to
disqualify, and remand to the circuit court with directions that a
new judge be assigned to preside over the case.

ROWE, OSTERHAUS, and WINOKUR, JJ., concur.

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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Jason T. Burnette, Stephanie E. Parker, John M. Walker, and
Edward M. Carter of Jones Day, Atlanta, and Charles R. A. Morse,
Jones Day, New York, NY, for Petitioner R. J. Reynolds Tobacco
Company; Laura Whitmore of Shook, Hardy & Bacon, L.L.P.,
Tampa, and J. Daniel Gardner of Shook, Hardy & Bacon, L.L.P,
Miami, for Petitioner Philip Morris USA, Inc.

David J. Sales and Daniel R. Hoffman of David J. Sales, P.A.,
Sarasota, for Respondent.

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