Untimely Motion to Continue Trial Prejudice

Late Disclosure and Exclusion of Expert Witnesses

A recurring problem in trial practice is the late disclosure of expert witnesses and/or their opinions, which is usually met by a motion by the adverse party, seeking the exclusion of the expert witness' testimony or opinions at trial. These issues should be anticipated by counsel or by the court and specifically addressed at pretrial conference and in case management and pretrial orders.

An orderly trial is most likely to occur when the judge enforces discovery and pretrial orders strictly and requires each party to make full and proper disclosure before trial. Florida courts have stressed the need to "strictly enforce" provisions of pretrial stipulations. See Cen. Square Tarragon LLC v. Great Divide Ins. Co., 82 So. 3d 911, 914 (Fla. 4th DCA 2011) (admonishing defense counsel for engaging in "gamesmanship" by failing to honor the pretrial stipulation). This prevents last minute gamesmanship, and makes disruption of the trial and error on appeal less likely.

Generally, last-minute additions of witnesses and substantial changes to testimony should not be admissible at trial. Failure to exclude such testimony prejudices the opposing party and constitutes reversible error. See Belmont v. N. Broward Hosp. Dist., 727 So. 2d 992, 994 (Fla. 4th DCA 1999); Garcia v. Emerson Elec. Co., 677 So. 2d 20, 21 (Fla. 3d DCA 1996); Auto Owners Ins. Co. v. Clark, 676 So. 2d 3, 4 (Fla. 4th DCA 1996); Grau v. Branham, 626 So. 2d 1059, 1061–62 (Fla. 4th DCA 1993); Florida Marine Enters. v. Bailey, 632 So. 2d 649, 652 (Fla. 4th DCA 1994). A party who fails to disclose a substantial reversal in an expert's opinion does so at his peril. Gouveia v. F. Leigh Phillips, M.D., 823 So. 2d 215, 222 (Fla. 4th DCA 2002).

The Florida Supreme Court established the test for the admission or exclusion of late disclosed or undisclosed expert witnesses in Binger v. King Pest Control, 401 So. 2d 1310 (Fla. 1981). In Binger, the plaintiffs called an undisclosed expert at trial to impeach the testimony of a defense expert who was disclosed more than a month prior to trial. Id. at 1311.

The Florida Supreme Court held that a trial court has the discretion to and may properly exclude the testimony of a witness whose name has not been disclosed in accordance with a pretrial order. Binger, 401 So. 2d at 1313. However, that discretion must not be exercised blindly but "should be guided largely by a determination as to whether use of the undisclosed witness will prejudice the objecting party. Id. at 1314. "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." Id.

Accordingly, in order to succeed on an objection to undisclosed evidence or testimony, the objecting party must show prejudice or surprise in fact. Binger, 401 So. 2d at 1314. The Florida Supreme Court identified three other factors that the trial court should consider in addition to the prejudice to the objecting party:

• the objecting party's ability to cure the prejudice or, similarly, his independent knowledge of the existence of the witness;
• the calling party's possible intentional, or bad faith, noncompliance with the pretrial order; and
• the possible disruption of the orderly and efficient trial of the case (or other cases).

Id.

Nevertheless, the undisclosed or late disclosed expert witness should be allowed to testify, "[i]f after considering these factors, and any others that are relevant, the trial court concludes that use of the undisclosed witness will not substantially endanger the fairness of the proceeding …." Binger, 401 So. 2d at 1314. The list of factors identified in Binger is not exclusive and trial courts may consider any additional effect on the proceedings or the parties in ruling on a motion to exclude an expert witness. Kellner v. David, 140 So. 3d 1042, 1047 (Fla. 5th DCA 2014).

A claimed violation of the pre-trial order or other discovery violation regarding any witness, including experts, is subject to the test established by the Florida Supreme Court in Binger. As with other discovery violations, the sanction must fit the offense. Striking the entire testimony of an expert witness is the most drastic remedy available. Lobue v. Travelers Ins. Co., 388 So. 2d 1349, 1351 (Fla. 4th DCA 1980). Under many circumstances, barring the expert from testifying is too harsh and likely to be reversed on appeal. Id. See also, Kaye v. State Farm Mut. Auto Ins. Co., 985 So. 2d 675, 677 (Fla. 4th DCA 2008) (striking a witness for violation of discovery orders is a drastic remedy which should be utilized only under the most compelling circumstances).

For example, in cases where an expert claims to have a new opinion, it is probably best to bar the new opinion rather than the expert's entire testimony. Keller Indus. v. Volk, 657 So. 2d 1200, 1203 (Fla. 4th DCA 1995). When an expert is the only witness a party has to establish a key element in the case, courts should be particularly hesitant to strike the expert's testimony. Id. The same rule applies to an expert who could offer key rebuttal evidence. Griefer v. DiPietro, 708 So. 2d 666, 672 (Fla. 4th DCA 1998). Finally, where a plaintiff's expert has already testified to new opinions, it is proper to allow the defense expert to give new opinions in order to respond. Gonzalez v. Largen, 790 So. 2d 497, 500 (Fla 5th DCA 2001).

Discovery disputes can sometimes arise over the role of experts retained by a party. In Carrero v. Engle Homes, Inc., 667 So. 2d 1011 (Fla. 4th DCA 1996), a trial court ordered disclosure of the names of experts a party had consulted for trial. That decision was reversed on appeal. In doing so, the court followed the well-settled rule that the names of consulting experts need not be disclosed. Id. at 1012. The court held, however, that a trial court has "ample authority" to strike experts if a party unreasonably delays disclosing the names of trial (as opposed to consulting) experts. Id.

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