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R. J. Reynolds Tobacco Co. v. Morales

Florida Court of Appeals, Third District

December 27, 2017

R. J. Reynolds Tobacco Company, Petitioner,
v.
Barbara Morales, Respondent.

         Not final until disposition of timely filed motion for rehearing.

         On Petition for Writ of Certiorari from the Circuit Court for Miami-Dade County, Bronwyn Miller, Judge. Lower Tribunal No. 07-16277

          King & 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.

          Gerson & Schwartz, P.A., and Philip M. Gerson, for respondent.

          Before SUAREZ, LOGUE, and LINDSEY, JJ.

          LOGUE, J.

         R.J. Reynolds Tobacco Company seeks a writ of certiorari quashing an order in which the trial court rescinded its prior order allowing R.J. Reynolds to substitute Dr.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.

         Dr. 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.

         After 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 In a meticulously detailed 42-page opinion which quotes extensively from the deposition, the trial court rescinded its prior order as a sanction for abusive discovery tactics.

         Although 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 [235] 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.

         In 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.

         What is 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 cigarettes?"

         Finally, 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. ...


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