Biased comments on cellphone use disqualifies judge from wrongful death case

April 15, 2020

Tyson Fisher

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Publix Super Markets and one of its truckers were granted a rehearing in a Florida state appellate court in a wrongful death lawsuit after the court agreed that a trial judge should had disqualified himself for biased comments against Publix’s cellphone policy.

On April 8, a Florida appellate court panel vacated an opinion it published earlier this year that denied Publix’s request to disqualify the trial judge in a case against it and one of its truckers, Randolph Sapp, in a wrongful death case. In an about-face to its original opinion, the appellate panel concluded that “the judge exhibited a bias against Publix, and the judge should have disqualified himself.”

The case stems from a fatal crash involving a Publix truck driven by Sapp. According to the latest opinion, Sapp was using his cellphone with a hands-free device at the time of the crash. Sapp allegedly ran a red light, striking and killing a driver going through the intersection on a green light. Plaintiffs claim that cellphone use was the cause of the crash.

Evidence provided by plaintiffs showed that Sapp was driving downhill on a curved road. He was approaching a red light in a residential neighborhood with a 40 mph speed limit. He was driving 51 mph one minute before the crash but slowed to 44 mph immediately before impact. Sapp’s cellphone use made him “oblivious to the red light,” plaintiffs argue. Although Publix’s training emphasizes speed management, plaintiffs argue that allowance of hands-free cellphone use is inconsistent with its safety policies.

During litigation in the trial court, Publix argued that “hands-free use of a cellphone while driving, or a policy permitting such use, does not justify punitive damages, because cellphone use while driving is not prohibited by law,” according to court documents. However, the trial judge questioned the defense attorneys in a manner they believe was biased.

In February 2019, the trial judge asked Publix’s attorneys if the company was going to change its hands-free cellphone policies. One attorney replied, “That’s nothing I could speak to …”

During another hearing in April 2019, plaintiffs moved to amend their complaint to include punitive damages. The argument is that Sapp was on his cellphone for the expressed purpose of distracting himself from the driving task. Regarding Publix, plaintiffs argue it negligently trained Sapp and approved his cellphone use and speeding.

Publix’s attorneys explained that the core of the plaintiffs’ argument for punitive damages was the use of cellphones. However, no Florida case has ever held that punitive damages, based upon cellphone use, were allowed. The plaintiffs had not even cited a trial court case where punitive damages, based upon cellphone use, were allowed. The trial judge responded that he has permitted punitive damages for cellphones in multiple cases. Publix countered by pointing out that both FMCSA regulations and Florida statues allow cellphone use. More specifically, Florida lawmakers banned texting while driving, but not talking.

“Because they all talk on the phone while they’re driving to Tallahassee,” the trial judge interjected.

The judge then compared cellphone use to drunk driving. Defense counsel again pointed out there is no case law that has allowed punitive damages for cellphone use. The trial judge responded “At least not yet.”

Shortly after the back and forth between Publix and the trial judge, Publix filed motions to disqualify the judge after the judge granted plaintiff’s motion to amend for punitive damages. The judge denied the motion, which Public promptly appealed.

In January, a Florida appeals court denied Publix’s petition for disqualification in a 2-1 vote. Judges Melanie May and Martha Warner held the majority votes.

“Every allegedly objectionable statement made was relevant to the issue and showed that the judge engaged in a Socratic questioning method to analyze the issue,” the appeals court opined. “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 court clearly did not deny defense counsel the opportunity to argue his case and the legal issues involved. Mere mental impressions or opinions formed in the progress of argument do not require disqualification.”

Essentially, the trial judge’s alleged biased questions were just a way to test Publix’s positions and arguments. Furthermore, if punitive damages are awarded by a jury on the basis of a claim that has not been declared illegal, Publix is free to challenge that ruling when it arises.

In his dissent, Judge Cory Ciklin wrote the following:

“Simply stated, the trial judge made numerous comments that would legally and objectively lead a reasonably prudent person to believe that the trial court has a personal bias, including multiple statements indicating that (1) it independently investigated facts and expressly considered evidence outside of the record, (2) it had pre-judged the case and (3) it personally believed that talking on a cellphone while driving is extremely reckless and that Publix should do something about it to prohibit it in the future.”

 

Publix then filed a motion for rehearing or rehearing with the full appellate court. Without much explanation, May changed her opinion, while Warner maintained her initial denial of the motion to disqualify.

“Here, the trial judge’s multiple comments denigrating Publix’s position regarding its cellphone policy would create fear in a reasonable person that Publix would not receive a fair trial,” the majority opinion explains. “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 cellphone use while driving. Thus the judge exhibited a bias against Publix, and the judge should have disqualified himself.”