Broward Circuit Judge William Haury. Photo:Melanie Bell/ALM.

The Fourth District Court of Appeal has declined to remove Broward Circuit Judge William W. Haury Jr. from a wrongful death lawsuit, finding the judge's comments about defendant Publix Super Markets Inc.'s policy on cellphone use for delivery drivers did not demonstrate bias.

The lawsuit revolves around Alberto Olivares, who died when Publix truck driver Randolph Sapp ran a red light and crashed into him at a Weston intersection. Sapp admitted he was on the phone at the time — a distraction Olivares's family claims caused the crash — and phone records showed he had been throughout the day.

Plaintiff Monica Olivares accused Publix and Sapp of negligence and sought punitive damages, claiming the company encouraged hands-free devices, and failed to investigate cellphone use and speeding among drivers. She pointed to the Florida Commercial Driver's License handbook, which warns that hands-free devices are as dangerous as handhelds while driving.

Publix countered that Florida law allows drivers to use hands-free devices, and many company policies reflect that.

'At least not yet'

Both defendants took issue with Haury's handling of court hearings.

One of the comments came when trial attorney Mark Ruff of Wicker, Smith, O'Hara, McCoy & Ford noted the Florida Legislature banned texting but allowed phone use, and Haury said, "Because they all talk on the phone while they're driving to Tallahassee."

Another stemmed from Ruff's argument that Publix couldn't be subjected to punitive damages without an evidentiary basis, and Haury interjected to ask, "You don't think there's been sufficient evidentiary proffer thus far?"

The judge also asked if Publix might change its policy at some point and compared cellphone use to driving drunk, commenting, "If I were to find that speaking on the phone — which some say is found to be four times more dangerous than driving while drunk — was the basis for the improper conduct, why would that not be sufficient?"

When Ruff argued there was no case law allowing claims for punitive damages based upon cellphone use, Haury said, "At least not yet," and said he'd permitted it in multiple cases.

The Fourth DCA found "the comments, taken in context, do no create a reasonable fear that the judge is biased or had prejudiced the issues involved." The opinion said Haury's questioning was based on the Socratic method, which involves posing hypothetical questions to encourage critical thinking.

"At no point did the court cut off the defense argument, or disparage the argument or defense counsel, although it was apparent that the judge did not agree with it," the opinion said. "Mere mental impressions or opinions formed in the progress of argument do not require disqualification."

Fourth DCA Judge Martha Warner wrote the opinion, with Judge Melanie May concurring.

'Unfathomable'

Fourth DCA Judge Cory Ciklin dissented, calling the case "a textbook example of when disqualification is required."

"A judge may make comments from the bench reflecting his or her observations or mental impressions," Ciklin wrote. "But trial judges who say too much—and thus risk appearing to have prejudiced the case or to be biased—do so at their own peril."

Ciklin said regardless of Haury's questioning technique, the record shows "the trial court objectively stepped over the line," giving Publix reasonable fears about impartiality.

"I find it unfathomable to hold any other way because the record on review should lead us to the inescapable conclusion that this trial judge should not continue to preside over this case," Ciklin wrote.

In a second opinion, the panel affirmed Haury's ruling allowing punitive damages.

Plaintiffs attorneys Raymond Valori and Michael Freedland of Freedland Harwin Valori in Fort Lauderdale said they did not feel comfortable commenting on the rulings, while Publix's appellate counsel Edward G. Guedes and Adam M. Hapner of Weiss Serota Helfman Cole & Bierman said they were yet to consult with their client.

Sapp's attorney, Cindy J. Mishcon of Lewis Brisbois Bisgaard & Smith in Fort Lauderdale, did not respond to a request for comment by deadline.

 

Read the opinion:

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