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479 So. 2d 230

479 So.2d 230

10 Fla.L.Weekly 2661

Docket No. 85-810.

Davis v. Pfund

Edwina H. DAVIS and Jeff V. Davis, Appellants, v. Gene H. PFUND, Irma Pfund, and the Insurance Company of North America, a Foreign Corporation, Appellees.

District Court of Appeal of Florida

Decided December 3, 1985.

Rehearing Denied December 30, 1985.

District Court of Appeal of Florida · decided 1985-12-03

Relies on LoBue v. Travelers Ins. Co. · Musachia v. Terry · 397 So. 2d 442 - Dandashi v. Fine

Good law ✅— No negative treatment on recordhow we know

Decided 1985-12-03

How this case has been cited

Cited by 8 later decisions — most recently May 2014

8 state decisions

401985199020002010decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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¶1*231 Fred Butner, Key West, James C. Blecke, Miami, for appellants.

¶2Papy, Poole, Weissenborn & Papy and John G. Poole, Jr., Coral Gables, for appellees.

¶3Before SCHWARTZ, C.J., and BASKIN and JORGENSON, JJ.

¶4PER CURIAM.

¶5We agree with the plaintiffs/appellants that it was error for the trial court to have excluded the plaintiffs' witness, James Elwood, from testifying. The trial court's stated reason for not permitting the testimony was that, following the pretrial conference and the closure of discovery, Mr. Elwood had returned to the scene of the accident and taken certain measurements in order to clarify his original drawings. The trial court concluded that Elwood's activity was in violation of its order closing discovery. Appellees have not offered, nor has our independent research disclosed, any authority for the proposition that an expert cannot continue to prepare materials (in this case, the drawings) or examine objects (in this case, an allegedly defective staircase) about which he is to testify. It was error, therefore, for the trial court to have prohibited Elwood from testifying on the ground that Elwood's activity constituted a violation of the court's discovery order. Cf. Dandashi v. Fine,397 So.2d 442, 443 (Fla. 3d DCA 1981) (no authority in Florida for exclusion of testimony of expert witness where expert, without knowledge of counsel, discusses case with opposing party, who is also an expert). Exclusion of a witness's testimony "is a drastic remedy which should be invoked only under the most compelling circumstances." LoBue v. Travelers Insurance Co.,388 So.2d 1349, 1351 (Fla. 4th DCA 1980).

¶6Because the trial court prevented a proffer of Elwood's testimony, we cannot determine the effect of this exclusion. We must presume that the exclusion was prejudicial, and, therefore, we reverse. See Musachia v. Terry,140 So.2d 605, 608 (Fla. 3d DCA 1962). In view of our reversal on this point, we do not consider the other issue raised.

¶7Reversed and remanded for a new trial.

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