The Fourth District Court of Appeal granted a petition to disqualify Broward Circuit Judge William W. Haury Jr. from 12 Engle progeny cases after he disclosed an ex parte communication with a plaintiff's lawyer in another case.

The defendants — tobacco giants R.J. Reynolds Tobacco Co., Philip Morris USA Inc., Liggett Group LLC, and holding company Vector Group Ltd. — had sought Haury's removal in light of an announcement he made during a status conference in a case brought by smoker Johnnie Calloway's family.

According to the opinion, Haury told the court he'd known Steven Hammer, one of Calloway's lawyers, for more than 30 years. They'd played on the same flag football team and now lived down the street from one another, Haury pointed out.

Haury also disclosed a conversation he had with Hammer about the consolidation of cases in tobacco litigation, according to the opinion, which labeled this “a hot button issue.”

According to the opinion, Haury said, “This past Sunday, I spoke with [Hammer] with regard to his recent trial in front of Judge Rodriguez. I guess it went until approximately midnight one night. We also spoke briefly with regard to Judge Rodriguez and his thoughts concerning consolidations.”

On the heels of that disclosure, the defendants in that case petitioned to have Haury disqualified. When the court said no, the defense filed a petition for writ of prohibition, according to the opinion.

But before the plaintiff had time to demonstrate why Haury shouldn't be removed from the case — which was slated for trial in three weeks — he disqualified himself and had it transferred to another judge.

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This prompted defendants in 15 other tobacco cases before Haury to petition for his removal. The court agreed the judge should step down from three — as Hammer featured on the plaintiff's team — but it denied the 12 in which Hammer wasn't involved.

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'Very Troubled'

The defense appealed, claiming Haury had also displayed bias by disqualifying himself from the Calloway case and hand-picking his replacement.

The Fourth DCA also took issue with that move as the decision was still pending in the appellate court when Haury passed it on.

“We are very troubled by the fact that in the Calloway disqualification order, the trial judge ignored our stay order and directed that the Calloway case be transferred to another judge, specifically named, and that the scheduled trial was to begin on a specific date,” the opinion said.

That said, the court pointed out Haury had complied with Canon 3E(1) by trying to avoid the appearance of impropriety in the Calloway case and disclosing his links with Hammer.

The decision overturns the trial court's order denying Haury's removal in the remaining 12 cases, as the Fourth DCA said it couldn't be sure Haury's actions were harmless.

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Click here to read the full court opinion

Judge Burton C. Conner wrote the opinion, backed by Judges Jonathan D. Gerber and Cory J. Ciklin.

Conner closed by stressing that the decision is this case shouldn't mean that Haury should be disqualified from all Engle progeny cases that come before him.

Counsel to R.J. Reynolds, Val Leppert and William L. Durham II and Jeffrey L. Furr did not respond to requests for comment before deadline. Philip Morris attorneys Stacey E. Deere and Timothy E. Congrove, and lawyers for Liggett Group LLC and Vector 2 Group LTD, Kelly Anne Luther, Maria H. Ruiz and Giselle Manseur, were also unresponsive.

Tallahassee plaintiffs lawyer John S. Mills declined to comment on the case, while Miami plaintiffs lawyers Juan P. Bauta II and James L. Ferraro did not respond before deadline.

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