Dentist argues for immunity from lawsuit

A man was wrongly arrested in the slaying of a 9-year-old girl based partly on opinions the dentist gave to a grand jury.

By CARY DAVIS

© St. Petersburg Times, published May 5, 2000

DADE CITY -- A Hudson dentist stated in court papers released Thursday that he cannot be sued for the opinions he gave that led to the wrongful arrest of Dale Morris Jr. in the murder of 9-year-old Sharra Ferger.

Attorneys for Kenneth Martin are asking a judge to remove the dentist from the wrongful arrest lawsuit Morris filed in 1998, saying that experts who offer opinions in legal proceedings are immune from civil action.

Martin testified before a grand jury that bite marks found on Ferger's back were produced by Morris' teeth, a conclusion supported by a second dentist, Richard Souviron.

Although he was eventually proved wrong, Martin cannot be sued for giving a professional opinion at the request of a law enforcement agency, his attorneys argue.

"The purpose of Defendant's employment was to assist authorities in the investigation of a homicide, express the results of his investigation in opinion form, and ultimately express those opinions to the grand jury," Martin's attorneys wrote. "As such, Defendant's conduct, his actions, and the opinions he expressed are absolutely privileged, and he is immune from suit of any sort."

Michael Seigel, associate dean of the University of Florida law school, said there is a good chance Martin will be dropped from the lawsuit.

"He's in a pretty good position legally," said Seigel, a former federal prosecutor in Tampa. "I believe he's immune because of the fact he was giving testimony."

Morris also names Souviron and Pasco County Sheriff Lee Cannon in his lawsuit.

Ferger disappeared from her home on Oct. 2, 1997, and her partially clothed body was found the next day in a nearby field. She had been sexually assaulted, stabbed more than 30 times and bitten on her shoulder and back.

Morris was arrested two weeks later and jailed for four months. The charges against Morris were dropped in February 1998 after DNA evidence cleared him.

Ferger's death remains unsolved.

Cannon said in a 1999 deposition that the opinions of Martin and Souviron were the only hard evidence detectives had that linked Morris to Ferger's killing.

The lead detective on the case testified that Morris also was arrested because of his inconclusive polygraph test, the proximity of his home to Ferger's and his weak alibi.

In court documents, Cannon has blamed the wrongful arrest of Morris on the dentists and overzealous prosecutors.

The sheriff testified that he didn't think there was enough evidence to arrest Morris. He authorized the arrest, he said, because he was pressured by Assistant State Attorney Phil Van Allen.

The sheriff's attorneys have filed a motion arguing that Cannon cannot be held responsible for Morris' arrest because his agency was acting on a grand jury indictment that was largely based on the testimony of Martin and Souviron.

Cannon's attorneys are asking a judge to drop the sheriff from Morris' lawsuit. The motion is still pending.

Seigel said Cannon is probably not liable for Morris' arrest because of the grand jury's indictment.

"The sheriff has the obligation to make arrests based on probable cause," Seigel said. "The grand jury's indictment is the equivalent of probable cause."

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