An appeal of a ruling to set aside a $10.9 million jury verdict and hold a new trial for former Miami Dolphins standout O.J. McDuffie has been sidelined another six months amid a lawyer’s charges Miami-Dade Circuit Judge Michael Genden broke rules governing impartiality and fairness.
The retired football star’s lawyers asked Genden to disqualify himself after learning he called a defense attorney twice in late May asking for documents without notifying them. The state Code of Judicial Conduct prohibits one-sided communication by a judge in an active case, McDuffie’s attorneys maintain.
“It is both a delicate and difficult matter to request the disqualification of a trial court — but most respectfully these ex parte communications with defendant’s appellate counsel as well as the request that was conveyed in each require the court to disqualify itself from proceeding further,” said the motion by Miami appellate attorney Joel Eaton of Podhurst Orseck.
Soon afterward, one of McDuffie’s attorneys, Stuart Ratzan of the Ratzan Law Group in Miami, asked Genden to also disqualify himself in an unrelated tobacco lawsuit citing his client’s fear that she would not receive a fair and impartial trial “due to the judge’s conduct and history of antagonism” toward Ratzan in the McDuffie case.
Genden denied both motions, and McDuffie’s legal team asked the Third District Court of Appeal to intervene.
A jury in May 2010 awarded McDuffie $11.5 million in damages against former team doctor John Uribe, and Genden reduced the amount. McDuffie ruptured ligaments in his left big toe during a 1999 game but said he initially was not told how severe the injury was; he played four more games while getting shots to numb the pain.
In September 2010 Genden ordered a new trial, agreeing with Uribe’s lawyers that McDuffie’s lawyers improperly used a medical textbook as evidence, referred to steroid injections without any evidence that Uribe gave McDuffie such shots and engaged in “egregious misconduct” during closing arguments.
McDuffie appealed, and the Third DCA told Genden a week before oral arguments were scheduled May 15 to amend his order “specifying each of the particular and specific grounds” for granting the new trial.
The motion to disqualify in the smoker lawsuit details an uneasy relationship between the judge and Ratzan. Juana Gonzalez, Ratzan’s client, is suing R.J. Reynolds Tobacco Co. and others in the death of her cigarette-smoking husband, Agustin.
Ratzan’s motion said the McDuffie legal team filed its motion for Genden to disqualify himself May 30 before the judge filed his revised order, again citing Ratzan’s “egregious misconduct.” Ratzan said Genden dated his order May 29, “which had the effect of making it at least look as if the verbatim order had been entered before Mr. Ratzan and his co-counsel filed their motion.”
Although it’s not unusual for a judge to adopt an order drafted by one side, Eaton strenuously objected in an appellate motion to strike Genden’s second new trial order.
“The trial court did not write a single word of it. Every word in the highly argumentative 31-page order was written by defendant’s appellate counsel more than a year and seven months ago,” he wrote.
The motion in the tobacco case also said McDuffie’s trial team accused Genden of improperly passing a note to Uribe’s lawyers, Charles Michael Hartz of George Hartz & Lundeen in Coral Gables and Wendy Lumish of Carlton Fields, during Ratzan’s closing argument. The attorneys did not respond to requests for comment by deadline.
Genden said the note concerned only how much time Ratzan had to finish his closing, the motion said, but months later a “red-faced” Genden told one of Ratzan’s colleagues he was still waiting for Ratzan to apologize.
The McDuffie motion said Genden called attorneys on both sides of the case May 16 and asked Uribe’s lawyer to send copies of both the September 2010 new trial order and the proposed defense order from a month earlier. The next day he asked for a copy of a post-trial transcript and made ex parte phone calls to the defense May 21 and May 22, McDuffie’s attorneys contend, citing email they received from the defense.
The August 2010 proposed order from the defense said Ratzan engaged in “a series of highly inflammatory and prejudicial comments disparaging Dr. Uribe, the defense’s witnesses and defense counsel and his arguments.”
Ratzan, an accompanying defense memo said, “made at least 26 improper comments maligning the defense’s theory and witnesses” in violation of Florida law and the Rules of Professional Conduct.
McDuffie’s attorneys, including Herman Russamanno of Russomanno & Borrello in Miami, complained Genden’s amended new trial order was a copy of the defense’s 2010 draft order, showed no “independent judgment” on his part and was produced after he should have disqualified himself. They asked the Third District to strike the order. An appellate panel denied the motion Friday and gave the lawyers 45 days to rebrief the original appeal. Oral arguments are now scheduled for Nov. 7.
The McDuffie team also asked for a writ of prohibition to remove Genden from the case altogether. The panel gave Uribe’s lawyers and Genden 20 days to respond.
Genden was rated highly qualified or qualified by 90 percent of the responding attorneys in a 2010 Dade County Bar Association poll. He was re-elected without opposition that year.
McDuffie, a wide receiver, was the Dolphins’ first-round draft choice out of Penn State in 1993. His 90 receptions in 1998 led the National Football League. He retired in 2000.