In a 180-degree flip, Florida's Fourth District Court of Appeal on Wednesday found that Broward Circuit Judge William W. Haury Jr. should be removed from a wrongful-death lawsuit over comments he made about defendant Publix Super Markets Inc.'s policy on cellphone use for delivery drivers.

Though the appellate panel came to the opposite conclusion in January, it replaced that opinion after agreeing to rehear the case.

The lawsuit has revealed divisions among judges over where to draw the line between questioning techniques and judicial bias, as both rulings drew dissents.

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Related story: Divided Court Refuses to Remove Broward Judge From Publix Case

The dispute began with the death of Alberto Olivares, who was hit by defendant Randolph Sapp, a Publix truck driver who ran a red light at a Weston intersection. Sapp admitted he was on the phone at the time — a distraction Olivares' family claims caused the crash.

But Haury's grasp on the case fell into doubt after he probed defense lawyers on Publix's cellphone-use policy in ways the attorneys claimed revealed bias.

At one point, Haury asked if Publix might change its policy and compared cellphone use to drunken driving. And when one defense attorney argued no case law allowed punitive damages for cellphone use, Haury said, "At least not yet." In response to a comment that the Florida Legislature allowed phone use but banned texting, Haury remarked, "Because they all talk on the phone while they're driving to Tallahassee."

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'I would deny the petition'

In January, the appellate panel ruled that "mere mental impressions or opinions formed in the progress of argument do not require disqualification." But this time around, it found Haury's comments were enough to "create fear in a reasonable person that Publix would not receive a fair trial."

"The judge's comments tended to show a disdain not only for Publix's legal position but for the company's lack of a policy prohibiting cell phone use while driving," Wednesday's opinion said. "Thus the judge exhibited a bias against Publix, and the judge should have disqualified himself."

Judges are bound by a strict code of ethics that says even the appearance of impropriety warrants removal.

This time, Fourth DCA Judge Melanie May changed her stance to agree with Judge Cory Ciklin, who had dissented in the original decision, calling the case "a textbook example of when disqualification is required."

And Judge Martha Warner, who wrote the original ruling, dissented Wednesday with just five words: "I would deny the petition." She pointed to a 1970 Third DCA ruling that said, "We do not subscribe to the view that a judge is necessarily disqualified because he has formed an opinion as to the legal questions involved in the case."

The panel declined to have the entire court weigh in with an en banc rehearing.

In an emailed statement, plaintiffs counsel Michael Freedland of Freedland Harwin Valori in Fort Lauderdale expressed a desire to get back to the merits of the case.

"In this case, Publix's driver was habitually and continually on the phone making calls to pass the time, which we allege distracted him from the task of driving a large tractor trailer," Freedland said. "Publix's phone-use policy permitted him to engage in this dangerous conduct. There is overwhelming evidence that Publix's driver was speeding, talking on the phone and ran a red light when he collided with Mr. Olivares. As a result, a valued and loved member of our community was killed. The appellate court affirmed entitlement to seek punitive damages and we look forward to seeking justice for the Olivares family."

Counsel to Publix, Edward Guedes and Adam Hapner of Weiss Serota Helfman Cole Bierman in Coral Gables, declined to comment on the case.

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

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