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722 So. 2d 904

Alexandre v. Meyer

District Court of Appeal of Florida

Decided December 2, 1998

District Court of Appeal of Florida · decided 1998-12-02

Cited by 1 later decisions — most recently February 2006

1 state decisions

Key passage — most relied on by later courts

“[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 blindly, however, and should be guided largely by a determination as to whether use of the undisclosed witness will prejudice the objecting party. Prejudice in this sense refers to the surprise in fact of the objecting party, and it is not dependent on the adverse nature of the testimony. Other factors which may enter into the trial court’s exercise of discretion are: (i) the objecting party’s ability to cure the prejudice, or similarly, his independent knowledge of the existence of the witness; (ii) the calling party’s possible intentional, or bad faith noncompliance with the pretrial order; and (iii) the possible disruption of the orderly and efficient trial of the ease (or other cases).”

quoted by 1 later decision, including Harrell v. Aztec Environmental, Inc.

Relies on 401 So. 2d 1310 - Binger v. King Pest Control

Good law ✅— No negative treatment on recordhow we know

Decided 1998-12-02

View the full empirical analysis of this case →

KLEIN, J.

¶1The 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.

¶2Appellee 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.

¶3After 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.

¶4*905On 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.

¶5Defendants 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.

¶6The 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.

¶7Affirmed.

WARNER, J., and OWEN, WILLIAM C., JR., Senior Judge, concur.
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