R. J. Reynolds Tobacco Company, Petitioner,
Barbara Morales, Respondent.
final until disposition of timely filed motion for rehearing.
Petition for Writ of Certiorari from the Circuit Court for
Miami-Dade County, Bronwyn Miller, Judge. Lower Tribunal No.
& 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.
& Schwartz, P.A., and Philip M. Gerson, for respondent.
SUAREZ, LOGUE, and LINDSEY, JJ.
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an order in which the trial court rescinded its prior order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.
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.
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extensively from the deposition, the trial court rescinded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.
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  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.
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.
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 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
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. ...