TALLAHASSEE, Fla. - (Mealey's) A Florida judge who compared a former tobacco company chief executive officer to a Nazi war criminal was disqualified by the state's First District Court of Appeal Sept. 5 from presiding over a tobacco case (Philip Morris USA Inc. v. Mary Brown, No. 1D12-3090, Fla. App., 1st Dist.).
(Opinion available to lexis.com subscribers: Document #04-120919-012Z.)
Trial began June 11 before Judge Adrian Soud of the Fourth Judicial Circuit for Duval County. On June 19, Judge Soud was conducting a hearing outside the presence of the jury regarding the admissibility into evidence of a 1971 videotape of Philip Morris USA Inc. former CEO Joseph Cullman, in which the executive suggests that lower birth weights caused by smoking may actually be desirable to some women who "might prefer having smaller babies," the panel said.
Judge Soud made several remarks during the hearing comparing Cullman to Dr. Josef Mengele, known as the "Angel of Death," who, the panel said, "is best known for conducting horrific experiments on human subjects in the Auschwitz concentration camp during the Second World War."
"Although Judge Soud employed qualifying statements, such as 'I'm not saying it's that serious' or 'I'm not saying he is,' we believe that a reasonably prudent person would nevertheless be placed in fear of judicial bias," the panel said. "Put simply, no amount of qualifiers negate[s] the fact that the trial judge made the connection between Petitioner's former CEO and a Nazi war criminal, and remarked that this would be a plausible comparison for the jury to draw.
"Moreover, the transcript makes it clear that Judge Soud himself was reminded of Dr. Mengele by Mr. Cullman's remarks and that he was not merely speculating on what the jury might conclude."
Mary Brown brought the action against Philip Morris in November 2007 as surviving spouse of Rayfield Brown and personal representative of the estate. She asserted membership in Engle v. Liggett Group, Inc. (945 So. 2d 1246 [Fla. 2006]), in which the Florida Supreme Court decertified the class for trial on damages but partially tolled the statute of limitations and gave preclusive effect to certain liability findings.
Judges William A. Van Nortwick Jr., Joseph Lewis and Bradford L. Thomas, concurred in the per curiam decision.
Gary L. Sasso and Joseph Hagedorn Lang Jr. of Carlton Fields in Tampa, and Kenneth J. Reilly of Shook, Hardy & Bacon in Miami represent Philip Morris. John S. Mills and Courtney Brewer of The Mills Firm in Tallahassee, Fla., John S. Kalil of the Law Offices of John S. Kalil in Jacksonville, and Leslie J. Bryan of Doffermyre, Shields, Canfield & Knowles in Atlanta represent Brown.
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