CLEOMENE ALEXANDRE AND EDNER FRANCOIS, APPELLANTS,
v.
STACI LEE MEYER, APPELLEE
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Defendants appealed the trial court's order striking an undisclosed expert witness served on a supplemental witness list closer to trial than authorized by the pretrial order. The Fourth District affirmed, holding that the trial court did not abuse its discretion in striking the witness where defendants failed to identify him as an expert or provide required information and made no proffer on the record.
The trial court did not abuse its discretion in striking the undisclosed witness. Although defendants argued the witness was merely replacing a previously disclosed expert and thus caused no prejudice, defendants' failure to identify him as an expert, advise plaintiff of the replacement, or proffer the required information on the record prevented them from demonstrating an absence of prejudice justifying the trial court's broad discretion under Binger.
[1] A trial court abuses its discretion in striking a witness from a supplemental witness list when the party providing the witness fails to demonstrate that the opposing par…
[2] A party seeking to introduce an expert witness not previously disclosed must provide the opposing party with the expert's name, curriculum vitae, and a summary of opinion…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“should be guided largely by a determination as to whether use of the undisclosed witness will prejudice the objecting party”
Establishes the standard from Binger for whether to allow undisclosed witness testimony
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Join FLexlaw to unlock all legal intelligenceA plaintiff injured in an automobile accident sued defendants. The pretrial order required expert disclosures with curricula vitae and opinion summari…
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KLEIN, J.
The issue in this case is whether the trial court abused its discretion in striking a witness named by the defendants in a supplemental witness list which was served closer to the trial date than was authorized by the pretrial order. Appellee plaintiff was injured in an automobile accident, and there were issues as to whether she had been wearing her seatbelt and if not, whether that contributed to her injuries. The pretrial order required the plaintiff to exchange names, curricula vitae and a summary of the opinions of all experts sixty days before calendar call. The same order gave defendants fifty days. Both sides timely listed experts.
After the trial was continued to September 8, 1997, defendants served a supplemental witness list on August 15,1997, which included the name of Lew Pytell. This list did not state that Pytell was an expert or contain the information required for experts. On August 22, 1997 plaintiff moved to strike Pytell’s name, alleging prejudice in that plaintiff would be unable to prepare to rebut his testimony by September 8. The case was then reset, because of the absence of another expert, for October 8. The hearing on plaintiffs motion to strike Pytell occurred on September 3, and the court entered an order striking him as a witness on September 15. The trial began on October 20, resulting in a verdict for plaintiff.
Defendants rely on the seminal case governing the allowance of the testimony of undisclosed witnesses, Binger v. King Pest Control, 401 So. 2d 1310, 1314 (Fla.1981), which holds that trial courts “should be guided largely by a determination as to whether use of the undisclosed witness will prejudice the objecting party.” Defendants argue that there was no prejudice here because Pytell was going to replace their prior expert whose testimony on the seatbelt issue had been disclosed.
The problem is that the defendants did not advise plaintiff that Pytell was an expert, that he was replacing defendants’ prior expert, or that he was going to testify about the seatbelt. If the required information had been supplied on the supplemental witness list, the trial court might well have allowed the witness to testify because there would have been no prejudice to plaintiff. Nor was the information about the expert even proffered on the record. In the absence of a proffer, the defendants are not able to demonstrate an abuse of the trial court’s “broad” discretion. Binger, 401 So. 2d at 1312.
Affirmed.
WARNER, J., and OWEN, WILLIAM C., JR., Senior Judge, concur.
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Harrell v. Aztec Env't, Inc., 921 So. 2d 805 (Fla. 1st DCA 2006)…ound no negligence on their part. ANALYSIS The trial court’s exclusion of witnesses named in a supplemental witness list served closer to the trial date than authorized by the pretrial order is reviewed for abuse of discretion. Alexandre v. Meyer, 722 So. 2d 904, 904 (Fla. 4th DCA 1998). The Florida Supreme Court has held: [A] trial court can properly exclude the testimony of a witness whose name has not been disclosed in accordance with a pretrial order. The discretion to do so must not be exercised blind…
Authorities Cited
- Binger v. King Pest Control, 401 So. 2d 1310 (Fla. 1981)