ROBERT JOSEPH ZERBY, III, PETITIONER,
v.
HON. WILLIAM F. EDWARDS, CIRCUIT JUDGE, ETC., RESPONDENT
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The court held that a judge's prior exclusion of an expert's evidence in unrelated cases does not, by itself, create a reasonable fear of bias in a new case where the expert is a party.
Petitioner sought a writ of prohibition to recuse a judge based on the judge's prior exclusions of the petitioner's expert testimony in unrelated case…
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PETERSON, Judge.
Robert Joseph Zerby, III, petitions for a writ of prohibition directing the Honorable William F. Edwards, Circuit Judge for the Fifth Judicial Circuit, to recuse himself from the dissolution action between the petitioner and his wife, Donna Jo Zerby. We deny the writ.
Zerby’s affidavit in support of his petition indicates that he is a chiropractic physician and that frequently he has testified as an expert before Judge Edwards in cases unrelated to the instant case. In those cases in which thermographic film evidence was offered, the affidavit goes on, the judge excluded it. Zerby concludes that the exclusions cast aspersions upon the validity of his testimony. We do not know the basis for the exclusions, and Zer-by does not allege any additional facts that would cast any reasonable doubt upon Judge Edwards’ ability to decide the dissolution action fairly.
We find that the grounds alleged by Zerby “would not place a reasonably prudent person in fear of not receiving a fair and impartial trial.” Livingston v. State, 441 So. 2d 1083, 1087 (Fla.1983). The mere fact that a judge, in unrelated litigation, has sustained objections to evidence sought to be introduced through an expert cannot be a reasonable basis to conclude that a judge cannot treat that expert fairly in a trial in which the expert is a party. There may be other circumstances surrounding a judge’s exclusion of evidence, such as demeanor or comments directed toward a witness, that would be indicative of prejudice, but no allegation of such circumstances has been made in the instant case.
WRIT DENIED.
DAUKSCH and GOSHORN, JJ., concur.