Dismissal Upheld of Expert Witness's Defamation Suit Against Judge

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October 6, 2002

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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."		Related: Appeals Court Lets Stand Ban of Surgeon as Expert Witness Trading Barbs

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Dismissal Upheld of Expert Witness's Defamation Suit Against Judge