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Dismissal Upheld of Expert
Witness's Defamation Suit Against Judge
Laurie Cunningham
Miami Daily Business Review
10-01-2002
Though not amused by the choice of words hurled at an expert witness by
Broward Circuit Judge Robert Lance Andrews, Florida's 4th District Court
of Appeal has upheld a decision to dismiss a complaint filed by a doctor
who claimed the judge damaged his reputation by calling him a liar in
open court.
Stephen Gervin, a Pembroke Pines, Fla., neurosurgeon, sued Andrews after
the judge refused to let him testify for the defense in a personal
injury case in February 2000.
During a pretrial hearing, a defense attorney in the case asked Andrews
to explain his decision to exclude Gervin as a witness. The judge
responded by calling Gervin an "insidious perjurer" who "wouldn't know
the truth if it leapt up and bit him on the ass."
In court papers, Gervin sought to have the comments stricken from the
record, claiming they hurt his chances of obtaining future business as
an expert witness.
Gervin said the judge violated his constitutional rights by making
damaging statements about his credibility and excluding him from the
case without a proper hearing.
"The judge threw him out of the courtroom without due process, without a
right to be heard," said Gervin's attorney, Bruce Rogow, a law professor
at Nova Southeastern University. "That's as bold and bald a violation of
right that one would ever see."
Although judges are protected from defamation suits by the doctrine of
immunity, Gervin's case raised the question of whether witnesses had
other legal remedies when judges made negative comments about them in
open court.
But the appellate court upheld Andrews' ruling that Gervin's claim
lacked merit, because he failed to show that he was deprived of property
or liberty interests under the 14th Amendment.
Reputation is not an interest protected by the due process clause and
Gervin is still able to testify in other cases, the appellate court
found.
However, the three-judge panel made it clear it did not approve of
Andrews' behavior.
"To affirm the dismissal in this case is not to condone the language or
procedure utilized by the trial judge in Popps v. Knispel," wrote
4th District Court of Appeal Judge Robert Gross.
Andrews did not return a phone call seeking comment.
Gervin, a doctor since 1963 who has testified as an expert witness for
25 years, does not plan to petition the Florida Supreme Court or file a
complaint with the state Judicial Qualifications Commission, his
attorney said.
"Dr. Gervin is not a whiner and I'm not a whiner," Rogow said. "Not
every wrong is correctable by a lawsuit, and this is an example of that
adage."
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Related:
Appeals Court Lets Stand Ban of Surgeon as Expert Witness
Trading Barbs
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